UPDATE: Virginia DEQ Issues Temporary Environmental Enforcement Policy During COVID-19

Blog Post

On March 30, we posted an article regarding the issuance of temporary environmental enforcement policies by the Environmental Protection Agency (EPA) and some states.  In that article, we discussed the Virginia Department of Environmental Quality's (DEQ) announcement that they were suspending field activities.  We noted that DEQ's announcement did not state it was enacting a similar enforcement approach as EPA.  As such, we explained that regulated entities in Virginia should assume DEQ would continue to treat noncompliance as it has historically until DEQ issued more explicit guidance.

Virginia DEQ issued clarifying guidance on March 31, 2020.  Like EPA, Virginia DEQ announced that it will exercise enforcement discretion if a regulated entity can demonstrate that noncompliance with an environmental requirement is due to COVID-19.  The guidance goes on to state that facilities with environmental compliance challenges should communicate regularly with DEQ and:

  • Act responsibly under the circumstances to minimize the effects and duration of any noncompliance caused by COVID-19
  • Identify the specific nature and dates of noncompliance
  • Identify how COVID-19 was the cause of noncompliance
  • Immediately share with DEQ the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance
  • Return to compliance as soon as possible
  • Document and maintain all related documentation on site for at least three years

As we cautioned in the previous article, regulated entities should not treat this temporary policy as a broad suspension of compliance requirements, and the burden is on the regulated entity to demonstrate that noncompliance is caused by COVID-19.  In addition, as we noted previously, many Virginia local governments have their own permitting and enforcement authority for water pollution, wetlands protection, and solid and hazardous waste mishandling, and regulated entities should not assume local governments will suspend their own enforcement initiatives.  

Regulated entities should communicate with DEQ and their local regulators as soon as a compliance challenge is identified.  In addition, businesses and individuals facing compliance challenges resulting from COVID-19 should consult with counsel to ensure they fully understand their legal rights and liabilities. 

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