April 20, 2020
Bruce S. Katcher
On March 26, 2020, EPA issued a memorandum setting forth its temporary policy regarding the exercise of EPA enforcement discretion during the COVID-19 public health emergency (EPA Temporary Enforcement Policy, which we reviewed in our April 2 Special Alert, followed several days later by a March 31, 2020 Temporary Advisory on the subject of how EPA will exercise its enforcement discretion for noncompliance with routine NPDES monitoring and reporting requirements (EPA Temporary Advisory, which can be found here). In response to these actions, NJDEP issued an advisory to all NJPDES permittees on April 15, 2020 (the NJPDES Advisory, which can be found here) indicating that any authorization for COVID-19 related “deviations, flexibility, and relief for a NJPDES permittee will be provided for in a written document authored by NJDEP, not USEPA.”
Under the NJDPES Advisory all NJPDES permittees “are to make every effort to comply with all environmental compliance obligations and maintain their monitoring and reporting obligations as specified in their permits unless provided specific instructions or in accordance with guidance posted on NJDEP website at https://www.nj.gov/dep/dwq/covid19.html.” To date, the only relief that has been granted per this website is to reduce permittee monitoring frequencies for domestic sanitary wastewater dischargers (category A and ASC permittees).
A separate NJDEP guidance on those reduced frequencies was issued on March 23, 2020 and can be found here. The latter guidance emphasizes that no other permittees (i.e. primarily industrial dischargers) are granted relief – they are expected to comply with all permit, regulatory and statutory requirements and to forward any deviations or inquiries to the appropriate NJDEP enforcement office for follow-up. In addition, the guidance reminds permittees that N.J.A.C. 7:14A-6.10 requires any permit non-compliance, bypass or violation must be reported to the NJDEP hotline within 2 hours or 24 hours depending on the nature of the violation and urges notification of downstream drinking water purveyors. Finally, NJDEP emphasizes the importance of frequent checking of its Division of Water Quality website for updates to its water quality-related COVID-19 policies.
In contrast, the EPA Temporary Advisory set forth a process whereby permittees could identify in their electronic discharge monitoring reports if data was unavailable due to circumstances relating to COVID 19. This would prevent the computerized reporting system from automatically identifying a “non-receipt” violation but yet allow the relevant agency (federal or delegated state) to assess if follow-up is needed to determine if the enforcement discretion criteria set forth in the EPA’s Temporary Enforcement Policy are met.
The NJDEP Advisory makes it clear that NJDEP enforcement policy, not EPA’s, will govern any regulatory relief to be afforded under the NJPDES program and suggests that, at this time, industrial dischargers are expected to full comply. It also may be taken as an indication that NJDEP enforcement policy, which is likely to be more stringent than what is set forth in the EPA Temporary Enforcement Policy, will govern compliance with any federally delegated program (e.g., water quality, hazardous waste, air quality) and not what EPA has expressed in its own policy pronouncements. If you have any questions concerning the foregoing, please contact Bruce Katcher at 484-430-2320.