Despite EPA decision, Virginia says polluters must ‘make every effort’ to comply with environmental regulations

Virginia will not relax its enforcement of environmental regulations despite an announcement by the U.S. Environmental Protection Agency last week that it won’t impose civil penalties on polluting facilities that don’t comply with routine monitoring and reporting obligations during the coronavirus pandemic.

“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,” said Virginia Department of Environmental Quality Director David Paylor in a news release Tuesday. 

As the new form of coronavirus, which can cause a deadly illness known as COVID-19, continues to spread throughout the nation, many infrastructure and industrial facilities, from wastewater treatment and utility plants to manufacturing concerns, have expressed concerns about their ability to meet environmental requirements in the face of reduced workforces and social distancing guidelines.

In his agency’s Tuesday statement, Paylor said that “DEQ staff will consider non-compliance 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.”

The temporary policy put in place by EPA’s March 26 decision allows facilities to forgo “routine activities” such as monitoring, sampling, laboratory analysis, training and reporting requirements if they are “not reasonably practicable due to COVID-19.”

In a statement to the Associated Press, EPA Administrator Andrew Wheeler said the new approach was “designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.”

The policy sparked a backlash from environmental groups, including the Chesapeake Bay Foundation and the Natural Resources Defense Council, among others.

“The concern for me with putting out a policy like this is frankly I believe it invites regulated parties to look for excuses not to do the things they should be doing,” said David Sligh, a former environmental regulator with Virginia DEQ and its predecessor agency and conservation director for environmental advocacy group Wild Virginia.

“Obviously these are unprecedented times, and we do need to be sensitive to the fact that some fieldwork can’t be done safely at the moment,” said Nate Benforado, an attorney with the Southern Environmental Law Center. But, he said, “we don’t think this policy has been tailored to the reality that we’re facing. It undercuts a lot of the protections that really don’t need to be undercut.”

Virginia Secretary of Natural Resources Matt Strickler also denounced the EPA’s new temporary policy on Twitter:Under federal law, most responsibility for environmental enforcement is delegated to the states, meaning they are free to adopt stricter policies than those on the federal level.

Chris Pomeroy, co-founder of environmental law firm AquaLaw and counsel for the Virginia Association of Municipal Wastewater Agencies, said he didn’t interpret the Virginia and federal policies as being particularly different. 

“There’s no waiver of compliance” in the federal policy, he said. Instead, he contended both policies allow facilities like wastewater treatment plants to prioritize the continued operation of essential services over less important tasks in a crisis situation.

“To me, it’s just common sense,” he said.

Benforado, though, said in his view there was “a difference in the tone and approach” between the federal policy and the state one, which he read as putting the onus on businesses to prove to the agency that they cannot comply with their environmental obligations.

“It certainly looks like DEQ is taking a more cautious approach and really insisting [facilities] comply with the law,” he said.

And Brett Vassey, president and CEO of the Virginia Manufacturers Association, said he had been “somewhat shocked” by DEQ’s policy announcement Tuesday.

“It’s unlike DEQ in our experience,” he said. “For there to be no real material relief on just simple reporting … it’s just shocking considering the lengths that we’ve gone to as an industry to protect our workers and community in our supply chain.”

According to Vassey, the Virginia Manufacturers Association on March 12 requested that DEQ defer all reporting deadlines and permit renewals and fees for 90 days but “did not ask for any deviation from environmental compliance standards.” 

“We don’t really know what to do at this point,” he said. The organization will direct individual manufacturers to petition DEQ for relief from the reporting and monitoring requirements on a case-by-case basis, he said, but “I don’t know how the regional offices are going to respond to that many companies asking at once.”