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Minnesota Pollution Control Agency Announces Regulatory Flexibility Amidst COVID-19 Impact

The Minnesota Pollution Control Agency (“MPCA”) has announced a process for regulated entities seeking regulatory flexibility that may have an unavoidable noncompliance situation that is directly due to an impact from the COVID-19 Peacetime Emergency, declared by Governor Walz in Emergency Executive Order 20-01.

The MPCA’s notice states that all regulated entities remain obligated to take all available actions necessary to ensure compliance with environmental laws, regulations and permit requirements to protect the health and safety of Minnesota citizens and the environment.  The notice further states “[a]ll permittees and operators are expected to meet all terms and conditions of their permits, including conditions applicable to cessation of operations.”

In the event a regulated entity will have an unavoidable noncompliance situation that is “directly due to impact from COVID-19”, it can ask the MPCA for regulatory flexibility by sending an email request to the MPCA email address:  mpca.covid19regflex@state.mn.us.  The MPCA notice provides that the regulatory flexibility request needs to include, at a minimum, six categories of information specified in the notice.

  1. Identity of the party requesting flexibility by name and applicable permit number and be sent by an individual party (company/county/individual);
  2. Phone number(s) of the individual to contact regarding the flexibility request;
  3. Specific statute/rule/permit condition from which the regulated party is seeking flexibility;
  4. One (1) paragraph summarizing what actions the requestor took prior to the request to meet the requirement and the reason/rationale for why the peacetime emergency makes the requested flexibility necessary;
  5. Bullet points identifying what measures the party will take in order to mitigate and/or minimize the potential environmental impacts (if any); and
  6. Specific time period that the party needs the flexibility and the rationale for why this time is necessary.

If the regulated entity later needs additional time beyond what was approved or needs a change to the approved compliance options, it can send another email seeking an amendment but must include the reason for the requested change(s).

The MPCA’s notice indicates that if it receives multiple requests for regulatory flexibility relating to a specific requirement and the MPCA determines it is appropriate across a specific sector, it may grant the specific sector flexibility for that requirement.  The notice also states that the MPCA is continuing field inspections but is prioritizing its field inspections to those that are “critical to public health and safety” and that it continues to review permits, respond to complaints and environmental emergencies and conduct other work.

This post was drafted by Karen Olson, an attorney in the Minneapolis, MN office of Spencer Fane LLP. For more information, visit spencerfane.com.