COVID-19 Impacts: U.S. EPA and State Environmental Agency Compliance Enforcement Discretion and Operational Changes

April 2, 2020

[Last Updated: July 9, 2020, with updated U.S. EPA info]

With regard to the outbreak of COVID-19, we’re tracking federal and state guidelines to compliance measures, how to communicate with staff from those entities (i.e., if staff are working remotely or not), and how to send submittals to those entities. We’ll update this page as changes occur, but please refer to your regulatory agency for the most up-to-date information, as impacts from the coronavirus can change quickly.

Jump to State Agencies

On the Federal Level: The U.S. EPA

*New* Policy Termination Memorandum

On June 29, 2020, the U.S. Environmental Protection Agency (U.S. EPA) issued a policy termination memorandum announcing an end date of August 31, 2020, for its March 26 discretion policy memorandum below. The end date may occur sooner if there is sufficient loosening of state and federal stay-at-home orders. The U.S. EPA determined that the discretion policy was no longer needed because the state restrictions and federal guidelines that previously impacted regulated entities’ ability to maintain strict regulatory compliance had been reduced. The agency anticipates a period of adjustment would be needed as states reopen and regulated entities develop plans to effectively comply with environmental compliance obligations and with public health guidelines.

Temporary Enforcement Policy

On March 26, 2020, the U.S. EPA released a temporary policy regarding the agency’s enforcement of environmental legal obligations during the COVID-19 pandemic. During the COVID-19 pandemic, the U.S. EPA expects regulated facilities to comply with regulatory requirements where reasonably practicable; however, recognizing potential worker shortages as well as the travel and social distancing restrictions, the EPA will exercise certain enforcement discretion for noncompliance. The highlights of the policy are below.

  • The U.S. EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, the U.S. EPA agrees that such noncompliance was caused by the COVID-19 pandemic.
  • To be eligible for enforcement discretion, your facility must document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic. Facilities must return to compliance as quickly as possible.
  • If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility must notify the implementing authority required by the permit.
  • If a facility is a generator of hazardous waste and is unable to transfer the waste off-site within the time periods required under the Resource Conservation and Recovery Act (RCRA) to maintain its generator status, the facility should continue to properly label and store such waste and document why noncompliance measures were taken.
  • This policy applies retroactively beginning on March 13, 2020 and does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. After this policy is no longer in effect, the U.S. EPA expects full compliance going forward.

NPDES Reporting

On March 31, 2020, the U.S. EPA issued a temporary advisory on how to implement its abovementioned temporary enforcement discretion policy with respect to National Pollutant Discharge Elimination System (NPDES) reporting requirements. This advisory pertains specifically to scenarios impacting a NPDES permittee’s ability to perform required monitoring, sampling, and reporting. Primary details are below.

  • If a permittee is unable to perform required monitoring or sampling, use the new “No Data Indicator” (NODI) in the Integrated Compliance Information System for the NPDES Program (ICICS-NPDES) system under Code Z and include “COVID-19” in the description. If this code is unavailable in your state NPDES program, use NODI Code K, which is used for natural disasters.
  • If an electronic tool is unavailable or you’re unable to report electronically, the U.S. EPA and authorized NPDES programs can grant temporary or emergency waivers from electronic reporting up to 60 days at a time if you submit an electronic reporting waiver request.
  • If you’re unable to timely report electronically and unable to obtain a waiver to report on paper, you should continue to make every effort to meet your environmental compliance obligations and return to compliance as soon as possible. You must:
    • Document and report any instances of noncompliance;
    • Minimize the effects and duration of any noncompliance caused by COVID-19;
    • Document how COVID-19 was the cause of the noncompliance; and
    • Report any missing Discharge Monitoring Requirement (DMR) or other required report as soon as practicable and document that noncompliance was caused by COVID-19.

Specific example scenarios are provided in the memo’s Table 2.

Superfund/CERCLA Cleanups, RCRA Corrective Actions, and Related Work

On April 10, 2020, the U.S. EPA released interim guidance related to Superfund (CERCLA) cleanups, RCRA corrective actions, PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank (UST) Program actions, which were specifically excluded from the abovementioned March 26 memorandum. The highlights of the guidance are the following.

  • Actions that should be continued to the extent possible: Remote cleanup work, such as report preparation and negotiation of oversight instruments
  • Actions that can be considered for suspension, rescheduling, or delay: Site work that would not reduce human health risk in the short term, such as sampling or monitoring activities or where conditions are stable
  • On a case-by-case basis, the agency will consider discretion based on:
    • Would ceasing work “pose an imminent and substantial endangerment to human health or the environment”?
    • Is the response action intended to “prevent a catastrophic event” or to prevent a release of contaminants?
    • Would continuing site work reduce human health risk or exposure in the next six months?
    • Have workers at the site exhibited symptoms of COVID-19 or tested positive for it?
    • Is social distancing at the site possible?
    • Do state, local, or tribal government travel restrictions prevent field personnel from reaching the site?

The April 10 guidance notes that you should refer to your enforcement instrument, particularly any force majeure or discretionary schedule adjustment provisions, for the appropriate procedures for requesting a delay. The U.S. EPA intends to be flexible regarding the timing of force majeure notices to the extent available under the enforcement instrument.

How to Send Submittals

If a submission to the U.S. EPA requires a “wet” signature of a responsible official, the U.S. EPA will accept a digital or other electronic signature. The mere inability to obtain a “wet” signature will not be considered a justification for failure to make a paper submission or certification. For enforcement purposes, the U.S. EPA also will accept emailed submissions even if a paper original is required. We strongly encourage the regulated community use the U.S. EPA’s approved electronic reporting mechanisms.

Coronavirus-Specific Webpages

The U.S. EPA has published coronavirus-specific webpages here and here. Your state’s compliance regulations, if stricter, will supersede the U.S. EPA discretion policy.

 

On the State Level

Please note that this is not a list of all U.S. states. These are the states where we perform the majority of our work. If you don’t see your state, please contact us directly at press@cecinc.com with any questions.

Jump to:

Arizona

Illinois

Indiana

Kansas

Maryland

Massachusetts

Missouri

Nevada

New Hampshire

New Jersey

New York

North Carolina

Ohio

Oklahoma

Pennsylvania

South Carolina

Tennessee

Texas

West Virginia

 

Arizona

Arizona Department of Environmental Quality (ADEQ)

On March 31, the Governor issued a Stay-at-Home Order with the exception of essential services. The ADEQ has yet to address the Order. For now, ADEQ continues to align with the U.S. EPA temporary policy outlined at the beginning of this blog post; details from ADEQ are provided here.

How to Communicate with ADEQ Staff: As usual.

How to Send Submittals: As usual.

If you need help with submittals or have any questions, contact Ryan Dunning (rdunning@cecinc.com) of CEC Phoenix.

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Illinois

Illinois Environmental Protection Agency (IEPA)

No enforcement discretion guidelines reported at this time. Governor Pritzker has issued a statewide Stay-at-Home Order for all Illinois residents.

How to Communicate with IEPA Staff: IEPA staff for the Bureau of Air, Land, and Water are working remotely. For permitting questions dealing with the Bureau, the following contacts can provide you with information or staff contacts to help with your question.

How to Send Submittals: As usual. All submittals are still subject to their respective due dates and will be received at the IEPA headquarters in Springfield, IL. Extensions will need to be coordinated directly with the IEPA Project Managers through their emails or cell phone. 

If you need help with submittals or have any questions, contact Greg Weeks, P.G., R.G., (gweeks@cecinc.com) of CEC Chicago.

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Indiana

Indiana Department of Environmental Management (IDEM)

Regulated entities must still follow the terms in permits, to submit reports, conduct and report on sampling, and other activities; IDEM has not identified any regulatory requirements that should generally be waived. However, to see if you’d be eligible for enforcement discretion or extensions resulting from COVID-19 impacts, you’ll need to communicate:

  • A statement describing how the COVID-19 outbreak contributes to the noncompliance or extension;
  • Your anticipated duration of the noncompliance/extension (if you’re requesting an extension, it can be a period no longer than 60 days, per the Governor’s Order); and
  • The citation of rule/permit provision for which enforcement discretion or extension is requested.

How to Communicate with IDEM Staff: Staff are working remotely.

How to Send Submittals: Electronically. See here for details.

If you need help with submittals or have any questions, contact Andrew Horwath, P.E., (ahorwath@cecinc.com) of CEC Indianapolis.

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Kansas

Kansas Department of Health & Environment (KDHE)

No enforcement discretion guidelines reported at this time. Governor Kelly issued a statewide Stay-at-Home Order through April 19. The order defines managing hazardous materials and waste, managing wastewater, enforcing law, operating essential government operations, responding to emergencies (including planning and cleanup) as essential functions under the order.

How to Communicate with KDHE Staff: Non-essential staff are working remotely. Email addresses are firstname.lastname@ks.gov.

How to Send Submittals: Electronically via email or via the bureau-specific system.

If you need help with submittals or have any questions, contact Kristin Fritchman (kfritchman@cecinc.com) of CEC Kansas City.

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Maryland

Maryland Department of the Environment (MDE)

Governor Hogan issued an executive order providing a grace period for any state licenses, permits, and/or registrations that may be expiring or up for renewal during the state of emergency. Renewal deadlines will be extended up to 30 days after the state of emergency is lifted.

How to Communicate with MDE Staff: Staff are working remotely and are available by phone and email.

How to Send Submittals: Ask your MDE contact prior to sending any submittals.

If you need help with submittals or have any questions, contact Leah Blinn, E.I.T., (lblinn@cecinc.com) of CEC Pittsburgh.

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Massachusetts

Massachusetts Department of Environmental Protection (MassDEP)

Any anticipated project delays as a result of COVID-19 should be reported to MassDEP, which has indicated it will apply enforcement discretion as appropriate.

How to Communicate with MassDEP Staff: Most staff are working remotely. There is a limited amount of staff in the office.

How to Send Submittals: As usual. Waste Site Cleanup Reports will be submitted online.

If you need help with submittals or have any questions, contact Jonathan Kitchen, LSP, P.G., (jkitchen@cecinc.com) of CEC Boston.

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Missouri

Missouri Department of Natural Resources (MDNR)

MDNR issued a letter on March 24 stating that it will take a flexible approach to enforcing environmental requirements during the outbreak. Environmental inspections have been temporarily suspended. If a facility anticipates a compliance issue, contact the Regional Office, the appropriate department, or by emailing regulatory.inquiry@dnr.mo.gov.

How to Communicate with MDNR Staff: State offices are closed to the public. Most staff are working remotely.

How to Send Submittals: Electronically via email or program-specific online system.

If you need help with submittals or have any questions, contact Kristin Fritchman (kfritchman@cecinc.com) of CEC Kansas City.

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Nevada

Nevada Division of Environmental Protection (NDEP)

Regulated entities are expected to maintain full compliance, but NDEP will review reasonable accommodations for environmental compliance directly affected by COVID-19. The NDEP has published a COVID-19 webpage here along with bureau-specific contact information for requesting accommodation of individual circumstances.

How to Communicate with NDEP Staff: The NDEP offices are closed to the public, but you may still call the main line at 775-687-4670. Most staff are working remotely and will be able to respond to email more quickly than phone.

How to Send Submittals: Many NDEP programs can receive and review electronic documents. Please check with your program contact for individual requirements.

If you need help with submittals or have any questions, contact Robert Livermore, GIT, CEM, (rlivermore@cecinc.com) of CEC Phoenix.

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New Hampshire

New Hampshire Department of Environmental Services (NHDES)

If you need to make changes to your solid waste facility operations to meet the recommended guidance, including changes to minimize contact with solid waste that has potential or known COVID-19 contamination, please notify NHDES of the needed changes by emailing solidwasteinfo@des.nh.gov. On April 10, the NHDES sent out an email stating that non-Title V permits due to expire during the NH state of emergency will now expire six months after the date on the permit and that permit applications submitted during the declared NH state of emergency only need to be submitted 30 days prior to permit expiration.

How to Communicate with NHDES Staff: Staff are working remotely and should be contacted via email.

How to Send Submittals: Via email when possible. If the file is too large to send via email, generate a link to the file. If you have documents to submit to the NHDES that cannot be mailed or emailed, they can be dropped off during normal business hours (weekdays 8 a.m.- 4 p.m.) in the designated drop-box located in the lobby at 29 Hazen Drive.

If you need help with submittals or have any questions, contact Tom Walker (twalker@cecinc.com) of CEC Boston or Jennifer Flannery (jflannery@cecinc.com) of CEC Philadelphia. For solid waste questions, contact Chris Dohner, P.E., (cdohner@cecinc.com) of CEC Boston.

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New Jersey (NJDEP)

The NJDEP is considering some flexibility to current regulations. In order to provide regulatory relief, the Department would need specific details as to why the relief is needed. Enforcement discretion is handled on a case-by-case basis. No blanket exemptions are being issued right now. Any updated compliance advisories will be added to the NJDEP webpage here. Please note that the State of New Jersey has made a determination that transportation and waste treatment are essential businesses. Requests from transporters and waste facilities for regulatory relief/enforcement discretion should be emailed to solidwasteemergencies@dep.nj.gov. Requests from regulated medical waste generators should be emailed to covid19rmw@dep.nj.gov

How to Communicate with NJDEP Staff: Visit the directory here for contact information.

How to Send Submittals: As usual.

If you need help with submittals or have any questions, contact Tony Eith, P.E., (teith@cecinc.com) of CEC Philadelphia.

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New York

New York State Department of Environmental Conservation (NYSDEC)

No enforcement discretion guidelines reported at this time. NYSDEC notes that the Governor’s recent announcement of a Stay-at-Home Executive Order has an exemption for construction and essential services and that NYSDEC is interpreting this as any service related to emergency (spill) response and remedial activities at inactive hazardous waste sites, including the operation and maintenance of remedial systems put in place for the protection of public health. Also included is any mandated environmental compliance sampling associated with air and water permits and anything that is required to maintain ongoing environmental, health, and safety programs.

How to Communicate with NYSDEC Staff: Staff are working remotely to the extent possible. Only limited key staff are on-site.

How to Send Submittals: As usual. Deadlines for submittals may be extended on a case-by-case basis if requested.

If you need help with submittals or have any questions, contact Cameron Lange (clange@cecinc.com) of CEC Buffalo.

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North Carolina

North Carolina Department of Environmental Quality (NCDEQ)

No enforcement discretion guidelines reported at this time.

How to Communicate with NCDEQ Staff: Staff are on rotations or are working remotely. Public access to regional offices is limited to appointments only.

How to Send Submittals: As usual, via email. If the file is too large to send via email, generate a link to the file.

If you need help with submittals or have any questions, contact Bruce Reilly, P.E., (breilly@cecinc.com) of CEC Charlotte.

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Ohio

Ohio Environmental Protection Agency (Ohio EPA)

The Ohio EPA is not providing general waivers for required regulatory functions, but you may email the director’s office to request flexibility if it is deemed critical. See here for instructions as well as general information regarding COVID-19 response and guidance. The Ohio EPA has created separate webpages for COVID-19 information related to the Division of Drinking and Ground Water and the Division of Surface Water.

How to Communicate with Ohio EPA Staff: District offices and Central Office will be temporarily closed. Most staff are working remotely. In order to reach Ohio EPA by phone, please use the main phone line at 614-644-3020 or the main line for the division or office you’re trying to reach.  If you’re working on a current project and you know the name of the employee you’re working with, you may contact them at firstname.lastname@epa.ohio.gov (files less than 25 MB only). To report a spill or environmental emergency, contact the spill hotline at 800-282-9378 or 614-224-0946. To promote communication, your Ohio EPA district inspector will be periodically reaching out to all publicly owned treatment systems to see if you’re having any operational, supply, or regulatory issues as a result of COVID-19.

How to Send Submittals: There will be significant delays in receiving and processing any hard copy mail or USPS/FedEx/UPS deliveries during this time. All entities are encouraged to submit plans, permit applications, etc., electronically through the following portals:

Ohio Bureau of Underground Storage Tank Regulations (BUSTR)

No enforcement discretion guidelines reported at this time.

How to Communicate with BUSTR Staff: Emergency services are still available and the office is operational. Many staff members, including project managers, are working remotely. During normal business hours (8am-5pm), please call the BUSTR main line at 614-752-7938 or 800-686-2878 and follow the prompts to speak to a duty officer. Alternatively, you may also complete the Suspected Release Notification Form and email to web.bustr@com.state.oh.us. After hours (emergency), please call BUSTR at 614-752-7938 or 800-686-2878 and you will be connected to the emergency call-in dispatch service; in addition, please notify your local fire department and the Ohio EPA at 800-282-9378. After hours (non-emergency), please call BUSTR at 614-752-7938 or 800-686-2878 or email at web.bustr@com.state.oh.us and leave a message that includes the name of the person reporting the release, name and address of the facility, contact information, and a description of the release; otherwise, call BUSTR the next business day.

How to Send Submittals: Licenses and permit applications are encouraged to be submitted electronically through email. General questions can be answered by calling 614-752-8200 or via email at websfm@com.state.oh.us.

If you need help with submittals or have any questions, contact Brent Smith, L.P.G., P.G., C.P.G., VAPCP, (brsmith@cecinc.com) of CEC Columbus.

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Oklahoma

Oklahoma Department of Environmental Quality (ODEQ)

An ODEQ memo dates March 30 states that it understands that the pandemic presents potential challenges for regulated entities to comply with certain requirements, so ODEQ will work with regulated entities on a case-by-case basis.

How to Communicate with ODEQ Staff: Most non-essential staff are working remotely. The office is closed to outside visitors.

How to Send Submittals: Electronically.

If you need help with submittals or have any questions, contact Jeff Shepherd, P.E., (jshepherd@cecinc.com) of CEC Oklahoma City.

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Pennsylvania

The Pennsylvania Department of Environmental Protection (PA DEP)

If you’re operating under a PA DEP permit and have ceased or suspended operations or construction due to COVID-19, you must refer to your permit terms and conditions, as they contain regulatory obligations and details regarding cessation or temporary stoppage of work. This includes, but is not limited to, Chapter 102 earth disturbance permits and Chapter 105 encroachment permits. Permittees or operators with questions about specific permit or operating conditions should contact the entities identified on their permit or cover letter. The PA DEP is suspending the time frames for providing permit decisions established in the Policy for Implementing the Department of Environmental Protection Permit Review Process and Permit Decision Guarantee. The PA DEP is currently prioritizing field inspections that are critical to public health and safety.

PA DEP offers a regulatory waiver form for companies seeking a temporary suspension of regulatory requirements and/or permit conditions. We understand that parties under a Consent Order Agreement or Order should seek a separate extension with counsel. The posting gives no information on how the waiver requests will be evaluated for approval or denial.

How to Communicate with PA DEP Staff: Staff are working remotely.

How to Send Submittals: As usual.

If you need help with submittals or have any questions, contact Tom Maher, P.G., (tmaher@cecinc.com) of CEC Pittsburgh.

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South Carolina

The South Carolina Department of Health and Environmental Control (SCDHEC)

According to the SCDHEC COVID-19 webpage, regulated entities should remain diligent in taking safe best efforts to maintain compliance. However, in the event that noncompliance is unavoidable directly due to impact from COVID-19 and/or related legal restrictions (federal/state/local declarations or orders), you may request regulatory relief consideration by emailing environmentalcompliance@dhec.sc.gov.

How to Communicate with SCDHEC Staff: Most regulatory staff are working from home, but the SCDHEC office is still open.

How to Send Submittals: Contact your program area for direction. Hard copies are not necessarily required at this time.

If you need help with submittals or have any questions, contact Britney Barnes (bbarnes@cecinc.com) of CEC Greenville. If you need to upload documents to SCDHEC’s FTP server, contact Donald Cobb (dcobb@cecinc.com) of CEC Charlotte.

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Tennessee

The Tennessee Department of Environment and Conservation (TDEC)

TDEC can receive, process, and credit all permit, license, and certification applications and renewals received online or in the offices during this period. Environmental programs are evaluating the need for and ability to exercise discretion regarding expiration of any license, permit, or certification that would expire prior to April 30, 2020. Routine fieldwork, on-site compliance inspections, and monitoring visits may be deferred. Non-emergency complaint investigations have been delayed until they can be safely performed. Even with these unique measures in place, TDEC is working and arranging for environmental compliance activities to be undertaken remotely so those important activities continue to occur during this period. See the TDEC COVID-19 Response webpage for details.

How to Communicate with TDEC Staff: As usual, you should use existing contacts (i.e., field offices). Large number of staff is working remotely, and has implemented an appointment-only model of providing in-person services at the central office in the Tennessee Tower, eight environmental field offices, the Oak Ridge oversight office, archaeology field office, and Fleming Training Center.

If you don’t have existing contact information, use the contact information below.

If your question does not apply to one particular environmental program or area or if you have a general question relating to TDEC’s environmental programs, you may email ask.tdec@tn.gov.

How to Send Submittals: As usual (electronically, if possible).

If you need help with submittals or have any questions, contact Matt Bruck (mbruck@cecinc.com) of CEC Knoxville.

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Texas

Texas Commission on Environmental Quality (TCEQ)

All regulated entities are encouraged to take all available actions necessary to ensure compliance with environmental regulations and permit requirements. In the instance that noncompliance is unavoidable directly due to impact from the coronavirus, you may send a request for potential enforcement discretion by emailing both OCE@tceq.texas.gov and Ramiro.Garcia@tceq.texas.gov with:

  • A statement supporting request for enforcement discretion;
  • Your anticipated duration of need for enforcement discretion; and
  • The citation of rule/permit provision for which enforcement discretion is requested.

Point source emissions inventories (EIs) are due March 31 or as directed by the commission. Due to COVID-19 and reduced staff in the workplace, the TCEQ will exercise enforcement discretion and consider 2019 point source EIs submitted on or before April 30, 2020 as timely received.

TCEQ will consider 2019 annual compliance reports for Mass Emissions Cap and Trade (MECT) and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) programs submitted on or before April 30, 2020 as timely received.

The TCEQ will exercise enforcement discretion and consider effluent monitoring reports for the months of February and March 2020 as received timely if submitted on or before April 30, 2020.

See the TCEQ COVID-19 Regulatory Guidance webpage here for details.

How to Communicate with TCEQ Staff: Most staff are working remotely.

How to Send Submittals: via email.

If you need help with submittals or have any questions, contact Sharon Crabb (scrabb@cecinc.com) of CEC Austin.

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West Virginia

West Virginia Department of Environmental Protection (WVDEP)

No enforcement discretion guidelines reported at this time. Updates and guidance will be communicated via Compliance Bulletins on the Division of Mining and Reclamation (DMR) page of the WVDEP website.

Scott Mandirola, WVDEP Deputy Secretary for External Affairs, stated, “At this time, the WVDEP is trying to maintain normal functions while working remotely and minimizing social contact. The EPA has sent emails indicating, although many of their staff are working remotely, they are attempting to also continue functioning in as normal a fashion as possible.” 

One issue that has arisen is submittals of Discharge Monitoring Reports for NPDES permittees. A policy or procedure addressing this issue is planned to be released this week.

On March 22, WVDEP issued an Emergency Bulletin (in the form of a memo addressed to all West Virginia composite-lined solid waste landfills and approved transfer stations) allowing landfills flexibility with tonnage, hours of operation, storage times, reduction of recyclables and yard waste disposal, and compliance timelines.

How to Communicate with WVDEP Staff: Staff from the WVDEP Office of Oil and Gas and the WVDEP DMR are working remotely.

How to Send Submittals: Use eSS for submittals to DMR staff.

If you need help with submittals or have any questions, contact Brittany Parks (bparks@cecinc.com) of CEC Bridgeport.

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About the Author


CEC Staff

Headquartered in Pittsburgh, Civil & Environmental Consultants, Inc. (CEC) provides comprehensive market-oriented consulting services to advance client strategic business objectives. CEC is recognized for delivering innovative design solutions and integrated expertise in air quality, civil engineering, ecological sciences, environmental engineering and sciences, survey/geospatial, waste management, and water resources.

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