Alaska Department of Environmental Conservation Issues No Action Assurance Memorandums in Response to COVID-19 Caused Non-Compliance Concerns

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Last week, the Alaska Department of Environmental Conservation (“ADEC”) issued two No Action Assurance Memorandums, one from the Division of Water (“Water Memo”) and one from the Division of Air Quality (“Air Memo”), to respond to and address concerns over permit non-compliance caused by COVID-19.

The Water Memo instructs operators and permittees to continue to operate in accordance with permit conditions “except in cases where doing so would unduly endanger operators or staff” or where the actions contradict applicable public health mandates. ADEC “does not have authority to waive permit requirements which are derived from the Code of Federal Regulations.” However, the Environmental Protection Agency (“EPA”) may delegate emergency authority to ADEC. In the event such delegation of authority takes place, ADEC will notify permittees.

The Water Memo is effective through June 1, 2020, and applies to “enforcement for qualifying events where compliance with permit requirements would violate guidance on COVID-19.” Permittees are not excused from self-reporting noncompliance, and in the case of qualifying events the permittee must maintain documentation demonstrating a causal relationship with COVID-19. If noncompliance with permit conditions occurs, the relevant events should be documented and reported using a Non-Compliance Notification Form, available on the ADEC website.

The Air Memo acknowledges that “certain permit conditions may take a necessary back seat to guidance on COVID-19.” Operators and permittees are instructed to “continue to seek compliance with all permit conditions to the extent that they do not cause an increased risk or contravene guidance on COVID-19.” The Air Memo is effective through July 1, 2020, and applies to “enforcement for qualifying events where compliance with permit requirements would contravene guidance on COVID-19.” ADEC urges that individuals continue to observe requirements for monitoring, “even if you do so after a certification has lapsed.” All non-compliance events should be submitted to with proper forms for Permit Deviations.

The Air Memo explains that ADEC is working with Alaska Environmental Resources on providing an additional stack test certification course in Anchorage in June but will continue to examine contingency options to comply with the Municipality of Anchorage’s limits on mass gatherings, and other responses to COVID-19. ADEC has limited authority to issue waivers for delayed stack testing requirements, and approval from the EPA may be required. ADEC “cannot offer exemptions, extensions, or assurances for enforcement discretion” but intends to use what discretion it has and will follow the lead of the EPA.

In both memos, ADEC acknowledges that additional guidance may be issued as the COVID-19 situation continues to evolve.

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Tina M. Grovier
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