On Tuesday, April 7, The Vermont Agency of Natural Resources (“ANR”) issued a new Enforcement and Compliance Guidance document pertaining to the regulated community (the “ANR Guidance”).
Generally, the ANR Guidance encourages Permittees and the general public to adhere to the Governor’s stay at home order. Specific to the regulated community, the ANR Guidance directs that ANR may exercise enforcement discretion over Permittees whose activities were not designated critical to public health and safety by the Governor in Addendum 6 to Executive Order 01-20 throughout the remainder of the COVID-19 State of Emergency.
For further Discussion on Addendum 6, and a listing of critical activities, please refer to Gravel & Shea COVID-19 update “What does Vermont’s Stay Home/Stay Safe Order Mean for Vermont Businesses?” dated March 25 and available at: https://www.gravelshea.com/2020/03/what-does-vermonts-stay-home-stay-safe-order-mean-for-vermont-businesses/
Under the ANR Guidance, to the extent that a non-critical Permittee’s cessation of operations results in permit noncompliance, the ANR may exercise enforcement discretion provided the non-compliant Permittee adheres to each of the following requirements:
- Maintain documentation showing that the noncompliance is attributable to COVID-19 pandemic (including that those personnel shortages during the pandemic due to illness, contractors or laboratories not operating due to not being designated as critical under the Governor executive order 01-20);
- Ensure that the noncompliance does not present a significant threat to human health or the environment;
- Take all reasonable steps to prevent and/or mitigate the noncompliance;
- Notify the Agency of the noncompliance as soon as possible following an incident; and
- Comes into compliance as soon as possible, or enters into a schedule to return to compliance with the Agency.
Important for all Permittees to note, the ANR Guidance expires when the Governor ends the State of Emergency, and does not apply to activities regulated by the Department of Fish and Wildlife or criminal permit violations. Additionally, the ANR Guidance does not excuse a Permittee’s responsibility to prevent, respond to, or report accidental releases of petroleum products or hazardous materials as required by Vermont law.