After Governor Kate Brown’s recent state of emergency declaration to address the spread of COVID-19 in Oregon, DEQ issued a statement explaining the circumstances in which it will consider exercising its enforcement discretion for violations caused by the emergency conditions. DEQ sets forth its expectations that companies “do everything possible to maintain the safe and environmentally protective operation of facilities.” The agency urges companies to prioritize certain activities to protect public health and the environment. While DEQ will evaluate each request on a case-by-case basis, companies that follow DEQ’s suggested priorities will be better positioned to get a favorable result to any enforcement discretion request. DEQ emphasizes the following:

• Operating in a manner that protects public health and the environment.
• Safe and environmentally protective operation of the facility and pollution control equipment.
• Monitoring, testing, and documentation needed to assure proper facility operation or delivery of service.
• Monitoring, testing, and reporting to demonstrate compliance with specific pollutant limits in your permit, license, or certification; including effluent limits, emission limits, and disposal volumes.
• Monitoring, testing, and reporting to demonstrate compliance with all other requirements.

For companies seeking enforcement discretion from DEQ, it is critical to follow DEQ’s recommendations and carefully document the basis and impact of disruptions related to the pandemic as well as the inability to conduct certain activities.

Companies may also find that pandemic-related disruptions cause delay in the issuance of permits, licenses, or certifications. For those businesses waiting on a response from DEQ, it would be useful to call the agency and check on status. DEQ has suspended inspections for several categories of facilities including hospitals, wastewater treatment facilities, and certain industrial pretreatment systems (those that have domestic waste or if close proximity to a wastewater lagoon). Currently, these inspections are suspended until April 14, 2020.

As the leading law firm for environmental law and litigation, B&D helps clients meet environmental, health, and safety challenges impacting the workplace, including many unprecedented issues posed by COVID-19. Please visit B&D’s COVID-19 Resource Page for more information, which we will update as developments occur.