By Brad Bowman
Amid a global pandemic this spring that temporarily shuttered many businesses, members of the regulated community were deemed essential service providers and remained open.
So how could the Kentucky Energy and Environment Cabinet ensure that those organizations comply with federal environmental laws while enabling them to adhere to Governor Andy Beshear’s #HealthyAtHome measures to prevent the further spread of COVID-19, protect their workforce and safely continue providing life-essential services for the Commonwealth?
The Cabinet grappled with important questions: Can social distancing work in a coal mine? How would out-of-state contractors conduct routine inspections in the midst of a travel ban? How are water and sewer plant operators going to get the training and certifications required for their jobs?
In March, Cabinet Secretary Rebecca Goodman created needed regulatory flexibility by issuing a bulletin to ensure that work in life-sustaining services by the regulated community could continue while allowing Kentuckians to remain #HealthyAtHome. The bulletin granted temporary relief and flexibility to the regulated community on a case-by-case basis.
“Protecting the health and safety of our environment and our state residents remains a priority during this unprecedented time,” Secretary Goodman said. “Given the challenges presented by COVID-19, we have created a process by which the regulated community could individually request regulatory flexibility pertaining to their specific circumstances. This is a safe, responsible and practical way to ensure Kentuckians experience no disruptions in life-sustaining services.”
The Cabinet was able to temporarily suspend some of its regulatory requirements because the U.S. Environmental Protection Agency endorsed such flexibility. The EPA made regulatory discretion retroactive to March 13, waiving penalties for delays such as routine reporting and compliance monitoring affected by the pandemic.
As of mid-June, the Cabinet had processed and approved more than 60 requests for regulatory flexibility — and was continuing to do so. To qualify for flexibility, a regulated entity first had to demonstrate with proper documentation that the virus had impeded it from achieving compliance. Then throughout the period, entities were required to continue to document any compliance issues. Like Kentucky, state regulators across the country have provided similar temporary regulatory flexibility.
Testifying before the Interim Joint Committee on Natural Resources and Energy in early June, Secretary Goodman said the process had been a success.
“I’m extremely proud of the work the cabinet employees have been able to accomplish and I’m extremely proud that they understood regulatory flexibility was going to be needed during this pandemic,” Goodman said. “They have done an exceptional job.”
RESPONDING TO A PANDEMIC
The Kentucky Department of Environmental Protection regulates programs that are among those that were eligible to apply for regulatory flexibility.
DEP Commissioner Tony Hatton said many of the programs the EPA approves the DEP to conduct in Kentucky — like the Clean Water Act — required DEP to develop the detailed application process for regulatory flexibility due to the EPA enforcement guidance.
Divisions within DEP — such as the Division of Water, the Division for Air Quality and the Division of Waste Management — provided extensions for wastewater operator certification, the monitoring of emission deadlines, grace periods for asbestos accreditations, and by extending deadlines for reporting and providing flexibility for critical infrastructure services like waste management.
Among the accommodations were those temporarily provided to the waste management industry that enabled it to continue its essential service while allowing it to safely manage workloads and provide opportunities for social distancing for its employees.
Secretary Goodman’s bulletin allowed waste haulers to receive increased amounts of yard waste, recyclables and municipal solid waste at their permitted contained landfills generated from households across the Commonwealth.
Brandon Wright, vice president of communications and media relations at the National Waste and Recycling Association, said the flexibility allowed his industry to continue providing a vital service to state residents.
“We know from history that when that service is interrupted or not performed regularly, that’s how illness and disease can spread,” Wright said. “We appreciate the flexibility given to our members allowing us to continue serving our communities.”
COAL INDUSTRY FLEXIBILITY
The regulatory flexibility also allowed Kentucky’s coal industry, which Beshear declared a life-essential service, to continue operating safely.
Department of Natural Resources Commissioner Gordon Slone said the Cabinet has taken actions to give the coal industry flexibility by developing online training courses for miners, providing extensions for certifications, hours of required training and mining and reclamation deferments.
Commissioner Slone said the flexibility allowed the industry and its workers to continue operations amid COVID-19 with new safety and hygiene guidelines. With additional economic challenges stemming from the coronavirus, the coal industry found itself in “dire straits,” Slone said.
”We now have to stagger times that people can go into the mines (for social distancing),” Slone said. “They have to be flexible in how they do their work and be practical.” Slone said that when violations of social distancing or hygiene requirements are violated, instead of immediately issuing a violation, inspectors take them aside and address how to correct it.
The largest call for flexibility addressed training, Commissioner Slone said. Last year, the EEC trained about 8,000 miners for their initial and annual retraining. On May 4, Secretary Goodman issued a memorandum postponing required annual retraining by 120 days, for miners, mine supervisors and mine emergency technicians whose annual retraining certifications expired before August 1.
Through the U.S. Mine Safety and Health Administration, the EEC’s Division of Mine Safety received permission to conduct online training until the president lifts his emergency order. In June, the division provided annual online training for mine foremen.
A provision for the designation of master loggers was also issued, according to Slone.
A ‘REALISTIC APPROACH’
Whether it’s a regulation requiring the reporting of an air emission or how often a mine inspection is to be done, regulations are in place to protect human health and the environment.
The regulatory flexibility during the Coronavirus pandemic should not be mistaken as a means to avoid any regulations or obligations, said DEP Deputy Commissioner John Lyons.
“It’s not a get out of jail free card,” Lyons said. “The EPA has been sued over their enforcement discretion policy. There has to be proper documentation kept about what they did or did not do. We will check that documentation and reserve the right to cite violations based on what we approve or not approve.”
The provisions for regulatory flexibility issued by Secretary Goodman are only a temporary solution. Lyons said all provisions “have end dates,” and will apply while Kentucky is under the governor’s declared state of emergency due to COVID-19.
It’s important to distinguish, Hatton said, these are requests — not waivers — needed under unusual circumstances.
“At some point in time, every aspect of our culture and daily lives has been impacted,” Hatton said. “The way that we have it set up now is a realistic approach given the extraordinary times that we are in.”