Permit compliance is still expected and required during the coronavirus pandemic
This may seem odd, but when I think of storm water permit compliance in the time of COVID-19, I reflect on Gabriel García Márquez’s “Love in the Time of Cholera”. Marquez states that “wisdom comes to us when it can no longer do any good”. This makes me think about permit managers or industrial sites where the Legally Responsible Person (LRP) or Duly Authorized Representative (DAR) asks questions, such as “Why didn’t we address these best management practices (BMPs) sooner?” or “If we knew our annual sample results were high in January, why did we wait until July to start implementing additional BMPs?” or worse, “Why are we getting Notices of Violation (NOV) letters about missing required reports?”
With the COVID-19 pandemic ever evolving, municipalities and industries are grappling with how to adjust to the new reality. Maintaining permit compliance, monitoring procedures and reporting in a time when there are new safety guidelines to adhere to can be very challenging. Incorporating COVID-19 safety measures into normal processes, like storm water permit compliance requirements and best management practices (BMPs),adds to the huge responsibilities that facility and municipal managers need to plan for. Additionally, annual budgets may be impacted to the point that hard decisions need to be made to determine what is essential for permit compliance.
The U.S. Environmental Protection Agency (U.S. EPA) posted guidelines in their March 26, 2020 Memo entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. In short, the U.S. EPA expects permittees to comply with all required elements of their permits where possible and that enforcement of permit conditions still applies. In addition, many state entities also implemented procedures to ensure permittees continue to operate in accordance with state and federal regulations. For example, in California, the State Water Resources Control Board issued several notices and emails to permittees that compliance with essential permit conditions is still expected (Compliance with Water Board Requirements During the Coronavirus 2019 (COVID-19) Emergency) https://www.waterboards.ca.gov/resources/covid-19_updates/index.html.
Since many office staff were not allowed to work in an office, increased drive-by or spot inspections would be occurring to verify general conditions at a permitted facility was still employed or evident. With this in mind, the legally responsible persons (owners) and/or facility managers need to be cognizant of their specific permit requirements and reporting deadlines and make sure that compliance is being maintained even in the time of COVID-19. If certain compliance requirements are not achievable, the permittee is expected to provide ample written documentation as to why compliance is not possible. The regulatory agency would then follow up with affirmation, denial or may request additional supporting documentation to make a decision. Not until one receives this confirmation, should any permittee assume that compliance is being met. The U.S. EPA and many states also indicated that enforcement would continue and that potential violations and penalties would still be issued for non-compliance.
The following are some of the conditions that need to be considered during COVID-19 that might impact permit compliance:
- New entry procedures to follow for employees, vendors, visitors, visiting inspection staff;
- Reduced or re-apportioned staff due to budget cuts or reduced operations schedules;
- Delays in receipt of critical BMP supplies, such as spill materials, treatment chemicals, filter socks or other operations equipment supplies;
- Delays in BMP vendor services, such as waste haulers, street sweeping or inlet maintenance activities.
- Reduced movement of goods or waste products that requires stockpiling or outdoor storage that may present an exposure potential;
- New vendors servicing your account that may not be familiar or fully trained for your facility or site;
- Reduced man hours or ability to operate safely due to lack of adequate safety supplies;
- Access issues due to permitted or licensed staff not being available; and
- Training activities being conducted by remote programs, such as Zoom, GoTo Webinar, Skype or other programs and making sure staff have access, apps or computers to use these programs.
- Delays in permit approvals are another item that may impact future planning efforts
- Or, worst case scenario, an active outbreak resulting in potential exposure.
The reality is that leaks and spills can happen at any time. Trash and debris can still run offsite, and new contractors may be coming on to your site to respond to COVID-19 assessments or to perform cleaning, but they may not be familiar with other pollution control requirements. We have been seeing spent gloves and other cleaning supplies on the ground at some sites as a result of the current crisis and inadvertent disposal handling. Managers still need to make sure the waste generated from these and other activities is managed properly and doesn’t make it into the storm drains. We have also heard of unusual spills due to lack of appropriate staff due to furloughing, new staff handling unfamiliar activities or sewer overflows (due to so many flushable wipes, which are really not supposed to be flushed, being put down the sanitary sewer). Non-storm water discharges still need to be prevented and BMPs need to be maintained. You can only do this by performing the required dry weather observations and assessment of BMP functionality by those familiar with your facility’s permit procedures. You may need to modify your procedures to safely perform the required inspections in accordance with your own COVID-19 exposure prevention and action plans.