The Pennsylvania Department of Environmental Protection (DEP) announced that it will continue to enforce all environmental laws and regulation for the duration of the state’s COVID-19 disaster duration. This policy takes a much stricter stance on environmental obligations than the U.S. Environmental Protection Agency’s (EPA) temporary policy of enforcement discretion issued on March 26, 2020. Where the EPA will not pursue penalties for certain violations and failures to meet environmental obligations, DEP announced that “[a]ll permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to cessation of operations.”

Despite this seemingly hardline approach, DEP does offer some guidance to businesses facing challenges during the COVID-19 crisis.

  • Businesses may request a suspension of a regulation or permitted condition. Under the Pennsylvania Emergency Management Code, following Governor Wolf’s March 6, 2020 Proclamation of Disaster Emergency, the governor may suspend regulatory and other legal obligations within his jurisdiction “where strict compliance will prevent, hinder, or delay necessary action in coping with the COVID-19 emergency.” To request a temporary suspension, businesses must fill out and submit a form available on DEP’s website.
  • For those businesses that have obtained approval of their request to temporarily suspend regulatory requirements or permit conditions, DEP will allow NPDES permittees to use the EPA’s new No Data Indicator (NODI) code “Z,” if data is missing because of the COVID-19 pandemic. However, Pennsylvania permittees may not use NODI code “Z” if they have not already obtained temporary suspension approval.
  • In order to limit exposure to and the spread of COVID-19, DEP will prioritize field inspections that are critical to public health and safety.
  • DEP requires permit holders that have ceased or suspended operations to meet all obligations under those permits regarding cessation or temporary stoppage of work. Additionally, DEP has suspended its timeframes for providing permit decisions, which may result in delays for permit applicants. DEP will provide emergency authorizations for projects deemed critical to public health and safety.
  • For Chapter 102 earth disturbance permits, only permittees considered a “life sustaining business” under Governor Wolf’s March 19, 2020 executive order may continue to conduct permitted activities and only to the extent those earth disturbance activities are in support of the operation of the life-sustaining business. Non-life sustaining businesses must cease earth disturbance activities and comply with the terms and conditions of their permits, including those for cessation of activities. After temporary or permanent stabilization, non-life sustaining businesses may stop performing weekly routine inspections as otherwise required by their permit. Permittees must continue all other inspections required by their permit. Required site inspections of permitted activities by permittees are considered critical operational functions and remain required obligations.
  • DEP issued guidance titled “Tank Inspections and Installations During COVID-19 Response.” Under this guidance, installation of storage tank systems at life-sustaining businesses by DEP-certified tank handling companies may continue; however, the removal of storage tanks is limited to instances where removal is necessary for a subsequent tank installation or to protect human health and the environment.