Oregon Department of Environmental Quality Announces Intention to Exercise Enforcement Discretion During COVID-19 Outbreak

The Oregon Department of Environmental Quality (DEQ) recently released a statement on compliance and enforcement of DEQ permits, licenses, and certification conditions during the COVID-19 (coronavirus) pandemic.

Businesses may be faced with disruptions of standard operating and maintenance activities if their employees are required to stay home during the outbreak.  This could cause difficulties in maintaining compliance with DEQ-issued permits, licenses, and certifications.

Recognizing these difficulties, DEQ’s statement announces that the agency will exercise “reasonable discretion” in deciding whether to pursue potential violations caused by emergency conditions.  In the event of disruption of standard operating and maintenance activities related to DEQ-issued permits, licenses, or certification conditions, DEQ advises businesses to diligently document:

• the justification for the disruption (e.g., staffing shortages);
• the impact of the disruption on the facility; and
• activities the facility is unable to perform.

While this guidance demonstrates the agency’s intention to be flexible during these extraordinary times, it also underscores that DEQ expects businesses to comply with environmental laws notwithstanding the pandemic.  DEQ’s statement emphasizes that businesses should prioritize:

• safe and environmentally protective operation of the facility and pollution control equipment;
• monitoring, testing, and documentation needed to assure proper facility operation or delivery of service;
• monitoring, testing, and reporting to demonstrate compliance with specific pollutant limits in your permit, license, or certification; including effluent limits, emission limits, and disposal volumes;
• monitoring, testing, and reporting to demonstrate compliance with all other requirements; and
• operating in a manner that protects public health and the environment.

The U.S. Environmental Protection Agency (EPA) has yet to release a public statement regarding whether it will exercise similar enforcement discretion or otherwise provide businesses flexibility with environmental compliance obligations.  As the COVID-19 pandemic evolves, we will stay tuned for additional guidance from DEQ and EPA and keep you apprised of any updates.