The U.S. Environmental Protection Agency and the State Water Board have released statements clarifying their approach to enforcing certain compliance obligations in these unprecedented circumstances. While wastewater agencies remain committed to maintaining water quality and protecting public health throughout this ordeal, multiple agencies are anticipating staffing shortages and other disruptions imposed by COVID-19.
A number of agencies have informed CASA that due to anticipated staffing shortages and other constraints imposed by COVID-19 and various state and local directives to encourage social distancing, they anticipate difficulty in complying with certain operator certification, administrative and reporting requirements in state regulations and individual NPDES permits.
The State Water Board released a statement in late March indicating that timely compliance by the regulated community with all Water Board orders and other requirements is generally considered to be an essential function during the COVID-19 response. The Board encouraged agencies to immediately let the appropriate Regional Board staff know of any inability to comply and document the underlying issues.
On March 26, 2020, USEPA also issued new guidance addressing issues related to environmental compliance and enforcement during the COVID-19 pandemic. The guidance states that USEPA expects the regulated community to continue to comply with the law, while signaling its likely exercise of substantial enforcement discretion for pandemic-related non-compliance where regulated entities follow the conditions set forth in the policy. On March 30, 2020, USEPA issued a statement on the guidance to clarify some of the issues raised by news coverage of their original March 26 guidance. On March 31, USEPA issued further guidance to NPDES Programs and USEPA Regions regarding the March 26 guidance. On April 3rd, USEPA sent a clairifying letter to Senator Feinstein regarding implentation of this guidance.
As wastewater agencies seek to address the potential for significant disruption and uncertainty during these unprecedented times, several concerns have been identified.
- Operator Certification Issues: The ability to staff and operate wastewater systems may be affected by the COVID-19 emergency, including the impacts of illness, governmental directives, employee safety concerns, and childcare obligations. These staffing shortages are exacerbated by the lack of available COVID-19 testing, where staff with symptoms may have to self-quarantine in the absence of a confirmed positive test. Agencies have expressed an interest in addressing some of these issues by:
- Streamlining the process for allowing the use of the “lone operator,” a certified operator working alone at a plant at a grade level lower than the designated operator in charge;
- Allowing treatment plants to staff with a certified operator working in combination with mechanics, electricians, and instrument technicians when there are insufficient certified operators available and no other viable options;
- Potential for “grandfathering in” certifications for retired workers that have lapsed in the last two years, or expediting the process of recertifying expired certifications, so that retired operators may come back and assist agencies until the crisis is over.
- Temporarily extending by an additional 6 months operator certifications that are about to expire to allow time ensure that certifications do not expire during this crisis due to business delays;
- Monitoring and Reporting Issues: There are many monitoring and reporting obligations that are not mission critical, and with limited sampling, laboratory personnel, and other staff, it is imperative to prioritize. If staffing reaches critical levels due to COVID-19, some agencies may be interested suspending or deferring monitoring related to special studies, 13267 investigations, and other related monitoring until normal operations can resume.
- Pretreatment Inspections: Many agencies have suspended proactive or routine pretreatment inspections and monitoring during this time to protect staff from unnecessary exposure, and to comply with the statewide Shelter-in-Place Order. Staff are still available in case of any emergencies and will respond to reports of illicit discharges or to calls from industrial dischargers. However, if this crisis lasts many months, some agencies will not be able to complete the required inspections during this reporting year.
- Supply Chain Issues: Availability of supplies may become a major impediment to protection of wastewater agencies’ employees if the supply chain dries up or continues to be disrupted. As one example, personal protection equipment (PPE) is commonly used in the wastewater community to protect our employees, but some PPE (such as gloves and masks) are currently in short supply and in high demand. Shortages or lack of this essential PPE to ensure the safety of wastewater workers could exacerbate operational problems due to staff shortages. There may also be delays in delivery of chemical supplies in the coming months, or in the general availability of chemicals, such as sodium hypochlorite, needed to meet disinfection requirements and coliform/enterococcus limits.
Project Construction Schedules: In light of extended stay at home orders issued in some Counties, some of which have limited construction activities to essential projects and most of which require social distancing, new sanitation requirements, and other provisions, some wastewater agencies may face potential complications with outside contractors engaged in capital projects and construction. Specifically, some agencies are concerned they may face construction claims for requirements related to employees in the field, in vehicles and the requirements for sanitizing tools and equipment, as well as possible shut down of work and claims for delays caused by County orders and actions.
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