In response to guidance issued by EPA’s Office of Enforcement and Compliance Assurance regarding enforcement discretion in light of COVID-19, the Virginia Department of Environmental Quality (DEQ) has issued its own guidance. In its accompanying press release, DEQ takes a stern tone and makes clear that DEQ expects compliance with all environmental compliance obligations and permit limits, that the crisis does not “equal a free pass for the regulated community,” and that regulated entities should make every effort to comply.
Nevertheless, like EPA, DEQ will consider any non-compliance resulting from COVID-19 on a case-by-case basis. The guidance states that DEQ will “exercise reasonable enforcement discretion within its authority when deciding whether to pursue potential violations caused by pandemic-related disruptions.” Similar to EPA’s guidance, DEQ requests that any noncompliance be minimized and well-documented, including the specific nature and dates of noncompliance and by identifying how COVID-19 was the cause of the noncompliance. DEQ also requests that any entity with a COVID-19-related compliance issue communicate “early and often” with DEQ. If DEQ agrees that COVID-19 impacts were the case of noncompliance, DEQ’s press release notes that it does not anticipate penalizing certain minor violations such as routine compliance monitoring, sampling, reporting and certification obligations.
DEQ also temporarily suspended all fieldwork, including inspections, earlier this week so that DEQ can assess COVID-19 exposure risks and develop appropriate exposure mitigation plans.
For more information regarding the EPA and DEQ COVID-19 enforcement guidance, please contact Brooks Smith, Andrea Wortzel, or Patrick Fanning.