During the coronavirus pandemic, directives focused on avoiding social contact create unprecedented questions for the relationship between water and wastewater utilities and environmental regulators.
For example, should regulators continue to enforce minor failures to meet permit obligations because of unavoidable staffing shortages at water resource recovery facilities (WRRFs)? Does the language in regulatory permits, agreements, or contracts contain provisions for an event like coronavirus? Will routine inspections occur as scheduled?
On March 20, the Water Environment Federation (Alexandria, Va.) held the webcast, “Clean Water Act Regulatory Issues in a Pandemic” to delve into these questions. The hourlong discussion offers regulatory and legal perspectives on emerging compliance and enforcement issues during a unique global health emergency.
Communication and Documentation
Subject matter experts featured in the webcast made clear one prevailing message: When it comes to interacting with regulators, the top priorities for water utilities should be communication and documentation.
“We’re in uncharted territory, and communication is going to be so important moving forward,” said Shellie Chard, director of the Oklahoma Department of Environmental Quality (Oklahoma DEQ) Water Quality Division.
Chard described that federal and state approaches to maintain environmental monitoring programs during the crisis are still evolving. This means that regulators need frequent information about what challenges WRRFs are facing.
Understanding who among regulators to communicate pandemic effects on utilities is also important, said Fred Andes, leader of the water team for the law firm Barnes & Thornburg.
“If you have a problem, you need to know who you’re going to talk with in advance and if there’s any changes in how you communicate with them,” Andes said.
Andes went onto discuss that— especially during coronavirus — a common-sense regulatory relationship depends on sound documentation. Regulators may be willing to exercise discretion in enforcement of minor permit failures, but the prospect becomes more likely with evidence of the pandemic’s effects on WRRF function.
“When things get normal and everybody comes back and looks at your documents, they need to be able to see what happened during the emergency,” Andes said. “You need to show them the records that certain things only happened because of coronavirus and how you addressed that, so they can then use that enforcement discretion and decide not to penalize you for those issues.”
Keeping up-to-date documentation throughout the crisis can help permittees avoid penalties for such infractions as lateness in filing reports, staffing requirements, and delayed construction projects, Andes said.
“I think right now we have certain circumstances that may stay the same or may change tomorrow, but those two issues of documentation and communication are really important,” echoed Susan Sullivan, executive director of the New England Interstate Water Pollution Control Commission. Sullivan served as the webcast moderator.
Uncharted Ground for Utilities and Regulators
On March 17, the Virginia Department of Environmental Quality (Virginia DEQ) placed a two-week hold on all field activities, including facility monitoring and inspections. The goal of the hiatus, explained Virginia DEQ Water Permitting Division Director Melanie Davenport, is to determine a strategy to most effectively ensure environmental compliance during the coronavirus pandemic.
“What we talk about today will certainly have applications going forward, but we obviously can’t predict what’s going to happen two weeks from now or a month from now,” Davenport said. “We’re trying to figure out how to keep this government service going at a time like this.”
For example, much of Virginia DEQ’s fieldwork takes place over several days. Potential precautions during the pandemic could include prioritizing short-term projects that do not require employees to stay in hotels or providing vehicles to each individual field worker to minimize coronavirus transmission risks, Davenport said.
Although Virginia DEQ expects its permittees to continue complying with their typical Clean Water Act treatment limits, the agency “can and will use reasonable enforcement discretion,” Davenport said. She again stressed the importance of frequent testing and documentation. Chard agreed that Oklahoma DEQ and other state regulations are taking a similar approach.
While several state agencies may not currently be performing routine monitoring or inspections, Andes clarified that WRRF staff should still assume inspections will occur unless advised otherwise by the regulator.
“You can’t assume [inspections aren’t] going to happen,” Andes said. “It’s another reason why you need to have your documentation ready, particularly if you’re low on staff or have restrictions on how your staff can operate.”
Utilities Helping Utilities
Maintaining Clean Water Act compliance during a pandemic becomes even more complicated for secluded WRRFs and those that have only one or two operators. Webcast speakers highlighted resources to help operators and facility managers surmount pandemic-related shortfalls in labor or equipment.
Oklahoma, for example, contains many one-operator WRRFs that may face critical labor shortages if illness incapacitates that operator, Chard said. Anticipating such disruptions, Oklahoma DEQ recently upgraded its statewide SoonerWARN program, which enables Oklahoma water utilities to share knowledge, equipment, and even facility staff during times of emergency. Perhaps even more important, Chard said, the system keeps lines of communication open between utilities to ensure community needs and environmental standards remain fulfilled.
“I’ve been reminding people that this is a great time to reach out to neighboring systems to build relationships so that in an emergency they can rely on each other for operations,” Chard said.
SoonerWARN is just one example of several statewide Water and Wastewater Agency Response Networks (WARNs), which are taking on new importance during the coronavirus pandemic.
Chard and Davenport also mentioned that state and federal regulatory agencies are having preliminary conversations about allowing temporary reciprocity of operator credentials across state lines. If implemented, water utilities nationwide would be better prepared to address staffing shortfalls, Chard said.
Throughout the webcast, one message was clear: Cooperation between utilities and regulators is particularly important during the time of coronavirus.
“As public health and environment protectors, we’re all in this together,” Chard said.
Watch the full webcast:
— Justin Jacques, WEF Highlights
March 27, 2020
WEF Resources & Efforts