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ADEQ Issues COVID-19 Memo of Compliance & Enforcement

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by Patrick J. Paul, Chris Colyer, and Michael C. Ford

On March 31, 2020, the Arizona Department of Environmental  Quality (ADEQ) issued a Memorandum of Compliance and Enforcement Implementation During COVID-19. This memo of compliance is consistent with the March 26, 2020 United States Environmental Protection Agency (EPA) Memorandum entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program first summarized by Mike Ford on this blog last week.

ADEQ’s memo of compliance reiterates its approach to compliance management as being historically focused on compliance assistance and informal enforcement, utilizing escalated enforcement and penalties only in those instances of severe noncompliance. Referencing both the EPA memo and Gov. Ducey’s March 26 Stay Home, Stay Healthy, Stay Connected Executive Order 2020-18, the agency created a table explaining its use of compliance and enforcement discretion to implement relief measures for the regulated community in light of COVID-19.

As it relates to general conditions for noncompliance caused by COVID-19, and generally consistent with the EPA memorandum, ADEQ will require non-compliant facilities to document the information, action or condition triggered by a COVID-19 non-compliance event. ADEQ will accept email submissions in lieu of original documents and further will accept electronic and scanned signatures for submitted documents with respect to operator certifications and consistent with Continuity of Work Executive Order 2020 – 17, ADEQ will allow for six months of deferment for required certification, renewals, training, exams, and professional development hours. Further, the agency specifically “encourages facilities to keep experienced operators on the job even when normal certification requirements may not be met.”

ADEQ’s memo, while allowing some latitude on compliance “during this time of emergency” nevertheless distinguishes compliance issues that create impacts for imminent threats to human health or the environment and, in those instances, notices of violation will be issued with approval of agency leadership. Formal enforcement and related civil penalties still will be reserved for the most severe noncompliance and the agency requests that existing informal and formal compliance schedules remain in effect during the COVID-19 crisis.