April 23, 2020
Bruce S. Katcher
MGKF Special Alert
On April 21, 2020, in an apparent move to distance itself from EPA’s approach to enforcement and compliance during the COVID-19 outbreak (the EPA policy is reviewed in our April 2 Alert), NJDEP issued a Compliance Alert entitled “Environmental Compliance and Enforcement During Covid-19 Public Health Emergency”. The Compliance Alert recognizes that “some circumstances” may arise on account of the COVID-19 outbreak where “regulatory flexibility may be necessary to enable a continuity of operations while also ensuring compliance continues in a manner that protects public health, safety, and the environment”. To this end, the agency indicates that “[c]onsistent with DEP’s existing enforcement policy and practice, the DEP may exercise discretion on a situational basis where it determines that an alternative, case-specific compliance pathway will maintain protections for public health, safety and the environment.”
Thus, no general compliance relief is made available via the Compliance Alert. Consequently, regulatory deadlines, reporting requirements, permit limits and conditions and other compliance obligations must still be honored. To the extent that non-compliance occurs or is contemplated arising out of the COVID-19 public health emergency, the Compliance Alert specifies procedures that must be followed if a regulated entity desires to be eligible for NJDEP’s “situational” enforcement discretion, including the following:
- Requests for guidance. “Case-by-case” compliance guidance, if desired, should be should be initiated via an e-mail to “a relevant DEP program contact” with a copy to email@example.com.
- Notification Requirements. Where compliance is at risk due to COVID-19, the regulated entity “must’ notify NJDEP, which will, in turn, notify any relevant municipal or county authorities.
- Compliance and Enforcement Requirements. If non-compliance cannot be avoided, notification through the DEP Hotline is required within two (2) business days of discovery, unless shorter time frames are required by statute, regulation or permit (e.g. spill notification requirements). Where compliance can be re-established within seven days, you must contact firstname.lastname@example.org and the regional enforcement office, in writing, within 14 days with information (described in the Compliance Alert) on the non-compliance, how it was related to COVID-19 and how it was corrected. If compliance cannot be achieved in seven days, a detailed compliance plan to achieve compliance as soon as possible must be developed and submitted to the regional enforcement office.
- Effect of Disclosure and Timely Compliance. If you meet #2 and #3 above, you “may be eligible for a reduction of any civil administrative penalties that may apply.”
Entities that are already subject to an existing enforcement document (e.g., a consent or administrative order) must comply with milestones and other requirements in the document (e.g., notice, force majeure, etc.). In addition, NJDEP indicates that it “is allowing paperwork and other submissions required pursuant to permits, approvals or general rules to be maintained and managed in a manner that minimizes physical contact and facilitates social distancing, including through electronic submissions or remote meetings” as set forth in program specific guidance found on the agency’s COVID-19 website at https://nj.gov/dep/covid19regulatorycompliance/.
Enforcement guidance for the NJPDES program that was issued in March and early April is addressed in our April 20, 2020 News Flash and guidance for the solid waste program is addressed in our April 21, 2020 article. If you have any questions regarding any of these matters, feel free to contact Bruce Katcher at 484-430-2320.