ANALYSIS

EPA Guidance on Superfund Site Field Work and Other Enforcement Issues

The U.S. Environmental Protection Agency (EPA) has issued a guidance document that outlines how the agency’s regional administrators should consider the impacts of COVID-19 in approaching ongoing remediation work at EPA cleanup and emergency response sites. “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19” also provides direction on how to evaluate whether on-site field work should continue at each particular site and how regional administrators should address non-field work.

This primer provides an overview of the guidance and similar guidance documents being issued by EPA and state agencies. EPA designated its guidance as interim, and regulation of Superfund sites during the COVID-19 pandemic is an evolving topic that is likely to change as regional administrators and state agencies implement or react to the guidance.

Field Work

EPA instructed regional administrators to make decisions about continuing on-site field work on a case-by-case basis and noted that decisions should be made with EPA’s priorities in mind. These priorities include protecting the health and safety of the public as well as EPA staff and cleanup partners and maintaining EPA’s ability to prevent and respond to environmental emergencies.

EPA stated that this same case-by-case approach should apply to requests for extensions or delays in performance. The agency noted that parties concerned that COVID-19 may delay their performance may be able to use force majeure provisions and provisions allowing for schedule adjustments contained in individual enforcement instruments. EPA emphasized that formal determinations will depend on site-specific circumstances but that “to the extent available under the instrument, EPA intends to be flexible regarding the timing of the notices.”

The interim guidance also outlines specific factors that regional EPA management should consider when making site-specific work decisions, including:

• Whether failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is practical to continue such actions.
• Whether maintaining any response actions would lead to a reduction in human health risk or exposure within the ensuing six months.
• Whether work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension or rescheduling of site work in coordination with state, tribal and local officials and with updated health and safety plans as appropriate.

Additional details about these specific factors can be found in the guidance document.

EPA asked regional administrators to evaluate, and periodically re-evaluate, the status of ongoing work and the impact of COVID-19. In areas where COVID-19 restrictions are in place, the agency instructed regional administrators to consider whether to continue operations or secure a site until the public health threat has been resolved. In areas where restrictions do not prohibit response activities, EPA instructed regional administrators to consider other factors, including: (1) the safety and availability of work crews or the staff of the agency, state or tribe; (2) the critical nature of the work; (3) logistical challenges; and (4) other site-specific factors. EPA emphasized that all field work decisions should account for CDC COVID-19 guidelines and other guidelines in place in a particular area.

Non-Field Work

In its interim guidance, EPA noted that much of a site’s cleanup work is performed remotely. This “non-field work” includes investigation reports, modeling, negotiations, decision documents, cleanup documentation, workplans, progress reports and other compliance obligations. EPA stated that non-field work should continue at remote workstations to the extent it can. However, the agency also recognized that because of the national scope of COVID-19, certain non-field work may be impacted by the unavailability of laboratories, equipment and materials, and parties should consult their enforcement instruments in the event of delays related to COVID-19.

State-Administered Sites

Sites administered under state regulatory regimes may be subject to state-level guidance. For example, the California State Water Resources Control Board issued guidance on March 20, 2020, stating that site work pursuant to any Water Board order or other requirement is “essential” work. However, the Water Board’s guidance also invites parties to contact the Water Board if requirements cannot be fulfilled due to COVID-19. In light of EPA’s Superfund guidance, other states may issue their own guidance, some of which may mirror EPA’s guidance.

Other EPA Enforcement Guidance

EPA has also issued guidance on its enforcement and compliance assurance program that applies retroactively beginning on March 13, 2020. The guidance states that the agency will generally not seek penalties for noncompliance with routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations if EPA agrees that such noncompliance was caused by the COVID-19 public health emergency. The guidance also notes that, for EPA administrative settlement agreement reporting obligations and milestones, parties should utilize the notice procedures in the agreement—including notification of a force majeure—as applicable if they anticipate missing enforceable milestones. EPA states that it does not intend to seek stipulated or other penalties for routine milestones.

For consent decrees, EPA states it will coordinate with the U.S. Department of Justice to exercise enforcement discretion, but, of course, courts retain jurisdiction over consent decrees and could exercise their own authority. EPA also mandated facilities to contact the appropriate authority if it expects that operations affected by COVID-19 may create an acute risk or imminent threat to human health or the environment, which will allow EPA or the state agency to determine if emergency action or an enforcement response is appropriate.

Notification is also required for exceedances of enforceable limitations on emissions to air or water. One of the most important takeaways from the guidance is that facilities should strive to document every exceedance or noncompliance it believes was caused by COVID-19, including why the facility believes as such, and submit that information to the relevant regulatory authority. EPA has issued a press release about this guidance to correct some misconceptions in the media and elsewhere related to the policy, stating the guidance would not necessarily operate as a blanket waiver of environmental requirements or create a presumption that the pandemic is the cause of all noncompliance events.

EPA has also issued an advisory for National Pollutant Discharge Elimination System Reporting. That document addresses NPDES-specific sampling and reporting challenges due to COVID-19.