Environmental Legal Issues; Wisconsin DNR and EPA Compliance During a Pandemic

Under Governor Evers’ “Safer at Home” Order, the Department of Natural Resources (DNR) is currently prioritizing imminent threats and complaints pertaining to public health, safety, and environment over routine inspections and audits.

The DNR recommends as follows:

Emergencies

If you have a spill or compliance problem that poses an imminent or actual threat to health or the environment, report it immediately upon discovery by calling toll free 1-800-943-0003. (Select #1 when prompted.)

Non-Emergencies

If your regulatory, non-compliance situation does not pose an imminent or actual threat to public health or the environment, the DNR directs the regulated entity to request compliance assistance in advance from the DNR by either of the following methods:

  • Contact your DNR compliance contact or project manager for your site or facility, and provide the DNR with information via email. To see the information required, visit here.
  • If your DNR contact is unavailable, use the online form to make site-or facility-specific requests to the DNR, where possible, to assist entities with alternative approaches to maintaining compliance. Alternatives could include extending reporting deadlines, extensions of operator certifications, and other forms of regulatory flexibility. The online form can be found here.

U.S. Environmental Protection Agency Memorandum

In a memorandum on March 26, 2020, the U.S. Environmental Protection Agency (EPA) announced it may ease enforcement of environmental legal obligations during the COVID-19 national emergency after March 13, 2020, if the ongoing pandemic causes inability to comply.

There is still risk of enforcement by state environmental agencies or third parties pursuant to citizen suit provisions, however.

Thus, permit holders should not reduce their efforts to maintain environmental compliance and, in fact, should affirmatively convey to their staffs and contractors the limited nature of this policy. To see the entire memorandum, visit here.

The EPA stated that it “does not expect” to seek penalties for noncompliance with routine monitoring and reporting obligations resulting from the COVID-19 pandemic and will exercise discretion in doing so.

However, a facility must demonstrate that compliance was not reasonably practicable because of the pandemic.

Examples where noncompliance could be reasonably caused by the COVID-19 pandemic likely include, but are not limited to: a) social distancing and travel restrictions by governments, corporations, or the CDC, and; b) shortages of key staff attributable to the health crisis.

Also, the facility must provide the EPA with documentation that:

(1) shows it acted responsibly under the circumstances to minimize the effects and duration of any noncompliance caused by COVID-19;

(2) identifies the specific nature and dates of the noncompliance;

(3) identifies how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity; and

(4) shows return to compliance as soon as possible.

Waiver of EPA penalties is discretionary

The EPA indicated that as long as actions are taken to avoid problems and there is correct documentation, it “will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement response is appropriate.”

The memo states that it “does not alter any provision of any statute or regulation that contains legally binding requirements, and it is not itself a regulation.”

Regulated entities should not rely on this memorandum as protection from statutory penalties and enforcement actions.

Questions about environmental issues during the pandemic?

The environmental lawyers at Murphy Desmond S.C. are available to assist you with environmental matters and to help you interpret the law for your situation. Call us at 608.257.7181.

Published April 8, 2020

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