With the rise of COVID-19, local goverments may face difficulty complying with different aspects of their wastewater permit requirements. Both the Minnesota Pollution Control Agency (MPCA) and the U.S. Environmental Protection Agency (EPA) have issued statements and policies to assist permittees with compliance. Both agencies have also stated that they will exercise regulatory discretion under certain conditions. The details of these policies are laid out below:

MPCA Update on Enforcement and Compliance Issues

The MPCA released guidance related to potential noncompliance and the need for regulatory flexibility as a result of upsets or non-compliance caused by the COVID-19 pandemic. The MPCA guidance states that full compliance with all permit and regulatory requirements is required, however, “in the instance where regulated entities will have an unavoidable noncompliance situation, directly due to impact from the coronavirus, the MPCA has established an email box to accept requests for the Commissioner of the MPCA to consider providing regulatory flexibility, where possible, to assist entities in alternative approaches to maintaining compliance, such as extending reporting deadlines, extensions of operator certifications and other forms of regulatory relief.” Regulatory relief MUST be requested, not otherwise assumed. Relief must be requested at this address and include specific information: MPCA.COVID19REGFLEX@state.mn.us

EPA Guidance

The MPCA is the lead enforcement agency for all state environmental laws and regulations and has delegated authority from the EPA to enforce federal requirements under the Clean Water Act and NPDES permitting program. However, the EPA also maintains direct and independent enforcement authority for all federal requirements under the Clean Water Act and NPDES permitting programs. EPA recently issued general guidance on the nationwide implications of COVID-19 for EPA’s enforcement and compliance assurance programs. This is a broad policy – it applies to all of the sectors under EPA’s control where enforcement actions are taken (except for Superfund, RCRA corrective actions, or imported pesticides) and states that the EPA will exercise enforcement discretion for noncompliance resulting from COVID-19. Because MPCA is the lead enforcement agency in Minnesota, this guidance does not bind MPCA; however, it does provide some good general guidance for addressing non-compliance issues related to COVID-19 under federal environmental regulatory programs.

Updates and other notifications will be posted at this site: https://www.epa.gov/enforcement/enforcement-policy-guidance-publications.

General Advice: Assume Strict Compliance is Required—Proactively Document and Communicate any Concerns with MPCA

All permittees should operate as if all permitting and regulatory requirements are in full force and effect and make every effort to achieve compliance. The consequences of the pandemic may constrain the ability of facilities to perform routine compliance monitoring, sampling, laboratory analysis, training, and reporting or certification requirements. If compliance is not reasonably practicable with any permit or other regulatory obligation, permittees should do the following:

  1. Prioritize compliance with effluent limits and all requirements directly related to protecting human health and the environment;
  2. Use existing procedures to address and report non-compliance pursuant to applicable permit requirements, regulation or statute;
  3. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19
  4. Identify the specific nature and dates of the noncompliance;
  5. Identify 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;
  6. Return to compliance as soon as possible; and
  7. Document the information, action, or condition specified in “1” through “4.”
  8. If regulatory relief is needed from MPCA, follow the procedures provided by MPCA here.

The above is not intended as specific legal advice. If you have any specific questions or concerns, consult with legal counsel for specific analysis of facts and law and the applicability of any defenses to non-compliance resulting from COVID-19. Please contact attorneys Daniel Marx at dmmarx@flaherty-hood.com or (651) 259-1907 or Gretel Lee at gllee@flaherty-hood.com or (651) 259-1903 if you need any assistance or have questions or concerns.