Environmental Enforcement Discretions by State

On March 26, 2020, USEPA released a memo titled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” describing USEPA’s temporary policy for enforcing environmental legal obligations during the COVID-19 pandemic. EPA understands that many companies may be having difficulties keeping up with certain activities due to reduced staff, work from home policies, reduction in budget, or other COVID-19 related effects.

Many states have issued their own temporary guidance for environmental compliance and will issue discretions under a case-by-case basis. The following lists out where each state stands on this issue.

Federal

EPA has issued enforcement discretion for certain types of noncompliance resulting from the COVID-19 pandemic retroactive to March 13. If compliance is not reasonably practicable, EPA advises entities should take the following steps:

1. Act to minimize the effects and duration of any noncompliance;
2. Identify the specific nature and dates of noncompliance;
3. Identify how COVID-19 was related to the noncompliance, how this was handled by the regulated party, including the party’s best efforts to comply and steps taken to come into compliance;
4. Return to compliance as soon as possible; and
5. Document all of the above.

*You do not have to notify EPA of this information unless the noncompliance will cause an acute risk or imminent threat to human health or the environment, or if COVID-19 issues could cause the facility to exceed enforceable limitations on air emissions, water discharges, or land disposal, or other unauthorized releases. Criminal activity is explicitly excluded from this discretion policy.

EPA’s policy does not give facilities a free pass. EPA has stated that for each noncompliance it “will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement response is appropriate.” As a result, facilities should ensure that any incident of noncompliance meets the parameters of the EPA’s policy.

EPA’s policy applies to routine compliance monitoring and reporting; settlement agreement and consent decree reporting obligations and milestones; facility operations; public water systems; and critical infrastructure.

See the EPA’s website for more detailed information.

Alabama

Alabama Department of Environmental Management (ADEM) has not announced any change to its operations—including enforcement discretions. ADEM has not officially responded to EPA’s COVID-19 Policy.

Find more detailed information here.

Alaska

Alaska Department of Environmental Conservation (DEC) has issued specific guidance for both air emission and water quality stating that DEC “understands that certain permit conditions may take a necessary back seat to guidance on COVID-19.” DEC advises all regulated entities to continue to seek compliance with all permit conditions to the extent that they do not cause an increased risk or contravene guidance on COVID-19.

However, DEC has issued a No Action Assurance Memorandum on enforcement for qualifying events where compliance with permit requirements would contravene guidance on COVID-19 until July 1, 2020.

DEC has adopted EPA’s COVID-19 policy and will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement response is appropriate.

Find more detailed information here.

Arizona

ADEQ announced that it “is aligning with the EPA’s memo” providing for potential enforcement leniency where compliance with certain environmental regulations is reasonably impractical as a result of the pandemic. However, ADEQ’s facility inspections and work to issue permits will continue uninterrupted.

Arizona Department of Environmental Quality (ADEQ) will waive emissions testing for vehicle owners 65 and older for up to one year to allow them to renew their vehicle registrations.

Find more detailed information here.

Arkansas

Arkansas Department of Energy and Environment (E&E) has created an email address for regulated entities that face unavoidable noncompliance situations to request regulatory flexibility and assistance in providing alternative approaches to maintaining compliance, where possible. Email COVID19EE@adeq.state.ar.us to submit enforcement discretion requests.

This may include extending reporting deadlines, consideration of waiving late fees, and exercising enforcement discretion. This policy will be retroactive until March 30th, 2020.

Despite the current state of affairs, all regulated entities remain obligated to ensure compliance, to the best of their ability, with all orders, regulations and permit requirements.

Find more detailed information here. (PDF)

California

California Environmental Protection Agency (CalEPA) issued a direct response to EPA’s COVID-19 policy, stating that its enforcement authority “remains intact” in spite of the EPA memo. The agency acknowledges that some companies might need enforcement relief, but Delson said they should contact CalEPA before falling out of compliance. To report a need for enforcement relief, find the correct contact for your issue here.

The California Regional Resource Control Board (CA Water Board) has postponed non-essential file reviews and its essential file reviews are by appointment only.

Find more detailed information here and here.

Colorado

Colorado Department of Public Health and Environment (CDPHE) does not appear to have stated a position on EPA’s COVID-19 policy. On March 25, CDPHE stated that it “intends that the majority of scheduled regulatory and policy activities continue as planned” despite receiving “several letters requesting that the department pause its environmental regulation and policy activities”

They have ordered that certain events be postponed.

Find more detailed information here. (PDF)

Connecticut

Connecticut Department of Energy and Environmental Protection (DEEP) is striving to continue to carry out its mission and provide services while keeping both the public and our workforce safe. DEEP is actively conducting oversight of environmental investigation, cleanup, and construction projects are performing services that are deemed essential.

DEEP is extending the April 30 deadline for the 1st Quarter reporting for Continuous Emissions Monitoring (CEM) to June 1, 2020.

Find more detailed information here.

Delaware

Delaware Department of Natural Resources and Environmental (DnREC) has not announced any change to its enforcement policies and has not officially responded to EPA’s COVID-19 policy.

Find more detailed information here.

District of Columbia

District of Columbia Department of Energy and Environment (DOEE) has not announced any change to its enforcement policies and has not officially responded to EPA’s COVID-19 policy.

DOEE has noted that its office closure and teleworking staff will have impacts on permitting and inspections, meaning there will be a reduced schedule and modified service.

Find more detailed information here.

Florida

Florida Department of Environmental Protection (DEP) has not made a public announcement about any change in enforcement efforts, nor has it responded directly to EPA’s COVID-19 policy. As a result, expect DEP enforcement activities to continue for the immediate future.

Gov. Ron DeSantis issued Executive Order No. 20-52 (PDF), permitting state agencies to “suspend the application of the statutes, rules, ordinances and orders they administer” if “strict compliance with the provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.” Contact FDEP as soon as possible if COVID-19 is negatively impacting compliance obligations.

Find more detailed information here and here.

Georgia

On March 31, EPD issued a formal response to EPA’s COVID-19 policy, stating that EPD will follow the guidance and procedures set by EPA for both federal permits and state-only permits, and will not issue separate guidance.

Appointments, questions and concerns about the impact of COVID-19 are managed through its general email, askepd@dnr.ga.gov.

Find more detailed information here

Hawaii

Hawaii Department of Health has not made a public announcement about any change in enforcement efforts or responded directly to EPA’s COVID-19 policy.

Find more detailed information here and here.

Idaho

Idaho Department of Environmental Quality (DEQ) issued a statement saying they are “working with regulated entities to provide flexibility where possible” amid the pandemic, including “temporarily limiting some routine activities.” “Every effort will be made to avoid unnecessarily disrupting regulated facilities while they respond to COVID-19.”

DEQ encourages regulated parties to document any noncompliance, how COVID-19 was the cause of the noncompliance, and their best efforts to comply.

Find more detailed information here and here.

Illinois

IEPA has not made a public announcement about any change in enforcement efforts or responded directly to EPA’s COVID-19 policy.

The Illinois Environmental Protection Agency (IEPA) has officially suspended only one program, the vehicle emission testing program, which was suspended at least through April 30. Find more information about this here.

Find more detailed information here.

Indiana

Indiana Department of Environmental Management (IDEM) authorizes state agencies to “waive, suspend, or modify any existing rule of their agency where the enforcement of which would be detrimental to the public welfare during this emergency…”.

All regulated entities are encouraged to take all available actions necessary to ensure continued compliance with environmental regulations and permit requirements to protect the health and safety of Hoosiers and the environment. However, in the instance that noncompliance is unavoidable directly due to impacts from COVID-19, IDEM will exercise enforcement discretion as appropriate.

IDEM encourages the regulated community to communicate with agency staff about anticipated issues meeting compliance obligations.

Find more detailed information here (PDF) and here (PDF).

Iowa

Iowa Department of Natural Resources (DNR) is exercising enforcement discretion in situations where regulated entities follow the following criteria (1) not seeking administrative penalties for cited violations of the law (2) renewing or not seeking to revoke certain licenses, certifications, or permits. This policy is valid through April 30th, 2020. However, it may be extended in the future.

Find more detailed information here. (PDF)

Kansas

Kansas Department of Health and Environment (KDHE) issued a formal response to EPA’s COVID-19 policy, stating that it “will continue to implement environmental regulations and permit requirements to the best of their ability. Environmental laws and requirements do not stop because of this pandemic.”

However, if a facility has an issue of noncompliance due to COVID-19 circumstances, they should contact KDHE by phone (785-296-1535) or email.

Find more detailed information here (PDF) and here.

Kentucky

Kentucky Energy and Environment Cabinet has issued three bulletins to address potential COVID-19 related issues by granting flexibility in operations and environmental compliance during the current declaration of a State of Emergency in Kentucky. These flexibility provisions do not excuse obligations stemming from local requirements, such as local host agreements and local ordinances.

Find information on the bulletins here.

Find more detailed information here and here.

Louisiana

Louisiana Department of Environmental Quality (LDEQ) has not yet responded to EPA’s COVID-19 policy or announced any changes to its enforcement discretion during the pandemic, but its current order takes a few steps to provide deadline relief to the regulated community.

LDEQ is also providing an automatic 30-day extension of certain deadlines that fall between March 19 and the date the order expires. However, these extensions only apply insofar as a facility does not have sufficient personnel available due to the pandemic and do not extend to monitoring or reporting requirements.

Find more detailed information here. (PDF)

Maine

Maine Department of Environmental Protection (DEP) recognizes that the pandemic may place additional demands on the regulated community, we expect air emission sources to continue meeting all federal and state enforceable laws and/or air emission license requirements. Protecting public health is the Department's highest priority, and it is critical that members of the regulated community ensure their air emissions do not exacerbate the public health crisis.

DEP states that “if pandemic-related constraints...” “impact a facility's ability to meet compliance obligations and are beyond the facility's control, please contact the Department to discuss available options.” Contact Eric Kennedy at 207-287-5412.

Find more detailed information here.

Maryland

Maryland Department of Environment (MDE) has not announced any change in its enforcement policies at this time or made an official response to EPA’s COVID-19 policy.

On March 12, Gov. Hogan issued a separate executive order extending a grace period until 30 days after the state of emergency is terminated for licenses, permits, registrations, and other authorizations that may be expiring or up for renewal during the state of emergency.

Find more detailed information here and here.

Massachusetts

Massachusetts Department of Environmental Protection (MASSDEP) has not announced any change in its enforcement policies at this time or made an official response to EPA’s COVID-19 policy.

Find more detailed information here and here.

Michigan

Michigan Department of Environment, Great Lakes, and Energy (EGLE) has established an email box (EGLE-EnforcementDiscretion@mi.gov) to accept requests for regulatory flexibility from entities who face unavoidable noncompliance directly due to the COVID-19 emergency. In response to those requests, EGLE may consider extending reporting deadlines, waiving late fees, and otherwise exercising enforcement discretion.

Find more detailed information here.

Minnesota

Minnesota Pollution Control Agency (MPCA) is accepting requests for regulatory flexibility for unavoidable noncompliance situations directly due to impacts from COVID-19. Unlike EPA, MPCA is requiring regulated entities to notify them in an incidence of noncompliance

MPCA intends to assist entities by providing alternative approaches to maintaining compliance, such as extending reporting deadlines, extensions of operator certifications and other forms of regulatory relief.

Requests for regulatory flexibility should be sent to mpca.covid19regflex@state.mn.us and should include specific information similar to that sought by the EPA

Find more specific information here.

Mississippi

Mississippi Department of Environmental Quality (MDEQ) issued a memorandum that states “provisions of state statutes, rules, regulations, or orders may be temporarily suspended or modified if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the COVID-19 outbreak.”

MDEQ will make a case specific evaluation and exercise appropriate enforcement discretion in addressing noncompliance, including not assessing penalties for such non-compliance, where the facility provides adequate documentation.

Find more detailed information here. (PDF)

Missouri

The Missouri Department of Natural Resources has suspended through May 15 portions of four rules to eliminate certain provisions that are overly burdensome during the COVID-19 emergency. Copies of the Notices of Suspension are available here.

Missouri Department of Natural Resources (MDNR) encourages all regulated entities to develop or continue to develop contingency plans aimed at addressing possible reductions in workforce due to COVID-19, and to pursue all available actions necessary to ensure compliance with environmental regulations and permit requirements.

MDNR’s compliance-assistance approach remains in effect, and we will continue to work with all entities that demonstrate a sincere commitment to compliance. If you anticipate a compliance issue, contact the appropriate Regional Office or other Department contact immediately for assistance. if noncompliance or delayed compliance is unavoidable, email regulatory.inquiry@dnr.mo.gov to request enforcement discretion.

Find more detailed information here. (PDF)

Montana

Montana Department of Environment Quality (MDEQ) issued a statement on March 31 saying, “While we expect everyone will do their best to adhere to all requirements, we understand some limited flexibility may be appropriate during this challenging time.

MDEQ encourage affected communities and companies to identify areas of concern of the highest priority and communicate those concerns to the appropriate DEQ program in an effort to work productively towards resolution of the issue

MDEQ Solid Waste Program has suspended inspections until further notice.

Find more detailed information here and here. (PDF)

Nebraska

Nebraska Department of Environment and Energy (NDEE) issued a letter that states, “the obligation to comply with environmental and drinking water laws and requirements does not stop because of this pandemic”.

NDEE recognizes there will be many challenges for everyone, NDEE expects our regulated community to comply with Nebraska’s environmental laws, regulations, and permits to the best of their ability. Any Nebraska facility facing difficulties complying with environmental requirements in their operations should call or notify them by email.

Find more detailed information here. (PDF)

Nevada

Nevada Department of Conservation & Natural Resources (NDCNR) has not issued a formal policy with any changes to compliance enforcement and has not directly responded to EPA’s COVID-19 policy.

Find more detailed information here.

New Hampshire

New Hampshire Department of Environmental Services (NHDES) has not issued a formal policy with any changes to compliance enforcement and has not directly responded to EPA’s COVID-19 policy.

Find more detailed information here.

New Jersey

The New Jersey Department of Environmental Protection (DEP) has not yet issued any guidance easing its enforcement policy for New Jersey or federally delegated programs and has not responded directly to EPA’s COVID-19 policy.

On March 26, DEP issued guidance for public water systems and wastewater monitoring, licensed operator, and certified laboratory issues due to the COVID-19 pandemic. The guidance stated that DEP “will continue to exercise enforcement discretion to provide the necessary flexibility to allow the Water and Wastewater Sector to continue to provide essential services”

Find more detailed information here.

New Mexico

New Mexico’s Environment Department (NMED) has not indicated that the outbreak will alter its regulatory activity. NMED has not stated a position on EPA’s COVID-19 policy.

Find more detailed information here.

New York

New York Department of Environmental Conservation (NYDEC) has not relaxed enforcement discretion in response to the pandemic. A statement was issues criticizing EPA’s COVID-19 Policy “New York State will continue to fight EPA in court and work to implement the stringent California standards allowed by the federal Clean Air Act.”

DEC’s environmental discretion is limited to regulations on signatures to waste shipments pursuant to NYCRR Parts 364, 372, 374-2 and 381. Find more information here (PDF).

DEC is allowing expedited project review and issuance of an emergency authorization in certain circumstances.

Find more detailed information here.

North Carolina

North Carolina Department of Environmental Quality (NC DEQ) “will work with regulated entities to ensure they remain in compliance and in instances of non-compliance, pursue enforcement actions on a case-by-case basis.” NC DEQ has not publicly commented on EPA’s COVID-19 policy.

Schedules for actions requiring public comment – such as permits and consent orders – have been extended. Additionally, public meetings have been postponed or will occur by teleconference, when possible.

Find more detailed information here, here, and here.

North Dakota

North Dakota Department of Environmental Quality (NDDEQ) issued a Temporary Environmental Compliance Policy stating “In cases where routine compliance testing (e.g., stack test) or reporting cannot be completed due to COVID-19 reasons, the NDDEQ may consider postponing the requirement until a future date. Any entity seeking relief in this area should contact the appropriate NDDEQ division to request consideration under the alternative compliance policy.”

NDDEQ states that “activities resulting in an unpermitted discharge to the environment must be reported pursuant to state law and rule and remedied as soon as possible.”

Find more detailed information here. (PDF)

Ohio

Ohio Environmental Protection Agency (OEPA) remain obligated to comply with permits and regulatory requirements. However, if a regulated entity has an unavoidable noncompliance, fill out this form that will request OEPA to “consider providing regulatory flexibility”.

Find more detailed information here.

Oklahoma

Oklahoma Department of Environmental Quality (DEQ) issued an Executive Order No. 2020-07 that states that “the exercise of enforcement discretion related to compliance with some environmental requirements may be warranted under certain circumstances.”

Find more detailed information here and here. (PDF)

Oregon

Oregon Department of Environmental Quality (ODEQ) will exercise reasonable enforcement discretion within its authority when deciding whether to pursue potential violations caused by pandemic-related disruptions. ODEQ largely mirrors EPA’s COVID-19 policy.

ODEQ requests that regulated entities document the pandemic-related disruptions to their operations and justify how disruptions to operations have caused or may cause noncompliance.

Find more detailed information here. (PDF)

Pennsylvania

Pennsylvania Department of Environmental Protection (PADEP) provided an option to temporarily suspending regulatory requirements and permit conditions “where strict compliance will prevent, hinder or delay necessary action in coping with the COVID-19 emergency.” Request a suspension by completing this form and emailing it to RA-EPCOVID19SuspReq@pa.gov.

PADEP is working on a waiver policy in response to EPA’s COVID-19 policy.

PADEP has suspended the timeframes provided by its Policy for Implementing the Pennsylvania Department of Environmental Protection Permit Review Process and Decision Guarantee and has advised that applicants may experience delays.

Find more detailed information here. (PDF)

Rhode Island

Rhode Island Department of Environmental Management (DEM) intends “to recognize the conditions and limitations that currently exist and provide flexibility and relief where needed and appropriate while still maintaining a high level of protection.”

DEM is not providing any broad relief measures or policies. Businesses and other regulated entities are encouraged to contact DEM with any specific issues that they are encountering that relate to regulatory compliance. Requests for relief will be considered on a case-by-case basis.

Find more detailed information here.

South Carolina

South Carolina Department of Health (DHEC) is “prepared to address” situations in which “non-compliance is unavoidable directly due to impact from COVID-19 and/or related legal restrictions (federal/state/local declarations or orders).” Requests for “regulatory relief consideration” are to be directed to environmentalcompliance@dhec.sc.gov.

Automatic extensions have been provided for emissions inventories (to April 30); on-site implementation logs (30 days); expiring asbestos personnel licenses; wastewater permitting (30 days); and DMRs (to May 31).

Find more detailed information here and here. (PDF)

South Dakota

South Dakota Department of Environment and Natural Resources (SDDENR) has established monitoring and reporting requirements for your system that are critical to protect human health and the environment. Therefore, these requirements need to be met to the extent possible. Please contact DENR at 1-800-GET-DENR (1-800-438-3367) if you are unable to meet these requirements.

Find more detailed information here.

Tennessee

Tennessee Department of Environment and Conservation (TDEC) has deferred site inspections and other routine fieldwork due to travel restrictions and mandatory stay at home orders. Monitoring visits and non-emergency compliant investigations have also been deferred until they can be performed safely. TDEC still intends to work with the regulated community to monitor compliance remotely.

TDEC has suspended the requirements of inspection and testing of light-duty motor vehicles in Tennessee and the requirement for a light-duty motor vehicle owner to submit a certificate of compliance relative to a vehicle’s registration in all cases where required between March 12 and May 18.

Find more detailed information here and here. (PDF)

Texas

Texas Commission on Environmental Quality (TCEQ) has determined that it may be inappropriate to pursue enforcement for violations that were unavoidable due to the pandemic or where compliance would create an unreasonable risk of transmitting COVID-19 or otherwise impede an appropriate response to the pandemic.

TCEQ will be exercising enforcement discretion for other events of noncompliance that are unavoidable directly due to impact from COVID-19. Regulated entities requesting enforcement discretion on that basis should email OCE@tceq.texas.gov and Ramiro.Garcia@tceq.texas.gov

All regulated entities must maintain records documenting all activities related to the noncompliance, including details of the regulated entity’s “best efforts to comply.” TCEQ is not offering enforcement forbearance where an entity fails to report its noncompliance.” But deadlines for certain routine reporting requirements have been extended.

Find more detailed information here and here.

Utah

Utah Department of Environmental Quality (Utah DEQ) will adhere to the EPA’s pandemic policy and “will work with regulated communities on a case-by-case basis to determine reasonable exemptions to environmental rules.” In keeping with the EPA policy, enforcement of regulations that directly affect human health will take priority in Utah.

Find more detailed information here.

Vermont

Vermont Agency of Natural Resources (ANR) issued an Enforcement and Compliance Guidance Document which states “Permittees are required to continue to comply with their permits for the duration of the COVID-19 State of Emergency.”

ANR advises that “If a permittee cannot comply with the terms of a permit, certification, or rule during the COVID-19 State of Emergency, the Agency may consider exercising enforcement discretion on a case-by-case basis.”

This Guidance does not apply to criminal violations or to the responsibility to prevent, respond to, or report accidental releases of petroleum products or hazardous materials as required by Vermont law.

Find more detailed information here and here. (PDF)

Virginia

Virginia Department of Environmental Quality (VDEQ) states that “all regulated entities are expected to make every effort to comply with environmental compliance obligations, adhere to permit limits, and maintain the safe and environmentally protective operation of their facilities.” VDEQ also said that the agency will consider noncompliance issues resulting from COVID-19 on a “case-by-case basis, but by no means does this crisis equal a free pass for the regulated community.”

VDEQ advises that if full compliance is not possible, permit holders should continue to act responsibly, identify and document noncompliance, note how COVID-19 was the cause of noncompliance and return to compliance as soon as possible.

VDEQ has temporarily suspended all field work. They have stated that there are no new requirements for handling COVID-19 contaminated waste.

Find more detailed information here (PDF), here and here.

Washington

Washington’s Department of Ecology (WDOE) “will exercise reasonable discretion … when deciding whether to pursue potential violations that may be linked to the current COVID-19 pandemic.” “all applicable state requirements remain in effect”.

WDOE encourages regulated entities to document the types of disruptions the COVID-19 pandemic has caused for operations, and contact the Department of Ecology with specific information related to the circumstance.

Find more detailed information here.

West Virginia

West Virginia Department of Environmental Protection (WVDEP) issued a statement declaring that “all rules, regulations and permitting requirements under the jurisdiction of WVDEP will remain in full effect.” If permittees find certain compliance requirements “not reasonably practicable,” they should contact the agency.

Find more detailed information here.

Wisconsin

Wisconsin Department of Natural Resources (DNR) issued guidance that states “All state statutes and regulations remain in effect unless otherwise suspended by the governor, and all entities should make every effort to comply with their environmental compliance obligations. Where full compliance is not reasonably practicable, Wisconsin DNR is providing a case-by-case request process to grant regulatory flexibility where possible.”

Find more detailed information here.

Wyoming

Wyoming Department of Environmental Quality (Wyoming DEQ) remains committed to ensuring that all department responsibilities and functions are carried out timely and within regulatory requirements” during the outbreak. Wyoming DEQ does it appear to have responded to EPA’s COVID-19 policy.

Find more detailed information here.