On April 10, 2020, the Environmental Protection Agency (“EPA”) Office of Land and Emergency Management released “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19” (“Guidance”).1 This memorandum provides EPA Regions (“Regions”) with guidance for response field work decisions for cleanup projects and emergency response. The Guidance supplements a March 19, 2020 memorandum “Office of Land and Emergency Management Considerations and Posture for COVID-19 Pandemic.”2 In the Guidance, EPA directs its Region offices to consider reducing or suspending activities at sites where EPA is the lead agency and COVID-19 related declarations by the state, tribal, or local governments have impacted site operations or where safety/health or logistical concerns have impacted site operations. EPA will prioritize the operation of sites that involve imminent health risks and sites that will provide near-term reduction in human health risk.
For private parties performing Superfund work at particular sites, the Guidance does not modify any deadlines in an administrative order or consent decree. Rather, it suggests that work schedules can only be modified to address COVID-19 concerns within “the discretion of EPA’s project manager” or where the situation constitutes a force majeure event under the relevant enforcement instrument.3 The force majeure provisions of the model Agreement and Order on Consent (“AOC” or “ASAOC”) and Remedial Design/Remedial Action (“RD/RA”) consent decree impose burdensome notification, timing, and mitigation requirements.4 Parties that intend to rely on such provisions in light of COVID-19 should be proactive about reaching out to the agency and document both the effects of the COVID-19 situation and the “best efforts” they have taken to mitigate the impact of COVID-19 on the work in connection with such a request.5 Companies should review their settlements to see how to comply with their force majeure provisions.6 Further, companies should keep track of both federal and state guidance and relief actions regarding COVID-19.7
————————————————————-
The April 10, 2020 Guidance pertains to situations in which EPA is the lead agency for ongoing field activities under a number of federal statutes, including: the Superfund Program, Resource Conservation and Recovery Act (“RCRA”) corrective actions, Toxic Substances Control Act (“TSCA”) PCB clean-up provisions, the Oil Pollution Act, and the Underground Storage Tank program. The Guidance also addresses how, where EPA is a lead agency, it will conduct emergency responses to actual or threatened releases of potentially dangerous pollutants or contaminants. EPA decisions on continuing, reducing, or pausing field work will be made on a case-by-case basis, but will be focused on (1) protecting the health and safety of the public, EPA staff, and others involved, and (2) maintaining EPA’s ability to respond to emergencies and protect public health.
For response field work, the Guidance directs Regions to periodically evaluate the status of ongoing response work at sites in light of the dangers of COVID-19. Particularly, the Guidance states that Regions should “consider whether to continue site operations or secure a site” where a public health threat is declared by a federal, state, tribal, or local government. Where no such public health declaration is in place, the Guidance states that Regions should consider other issues including, but not limited to: “the safety and availability of work crews, EPA, state or tribal staff; the critical nature of the work; logistical challenges (e.g., transportation, lodging, availability of meals, etc.); and other factors particular to a site.”
EPA provides that Regions should consider the safety and health of personnel, health and safety regulations, and logistical issues involved in responding to “releases or substantial threats of releases into the environment of chemical, oil, or other hazardous materials/substances, as well as pollutants or contaminants that may present an imminent and substantial danger to the public health or welfare” in light of COVID-19. EPA provided the following factors to help Regions decide to reduce or suspend response actions at sites:
- Whether a state, tribal, and/or local government has requested the suspension of operation at a site or the types of activities that support operation at a site;
- Whether workers have tested positive for COVID-19;
- Whether there is a risk of close interaction with high risk groups or those under quarantine;
- Whether contractors are unable to work due to travel restrictions imposed by a state, tribe, or local government; and
- Whether social distancing is impossible.
On site-specific decisions, EPA stated that Regions should consider whether failure to continue a response action would pose an imminent and substantial endangerment to human health or the environment. EPA highlighted a few situations to which this might apply, including, but not limited to:
- Emergency responses, emergency response preparedness, and time critical removal actions;
- Threats involving imminent acute or direct human exposure (such as contaminated drinking water or on-site exposure to heavy metals, PCBs, asbestos, etc.); and
- Threats involving imminent exposure that threatens public health (such as catastrophic events, contamination affecting drinking water, on-site security of government property, disposal of dangerous materials, vapor intrusion or contamination involving sensitive populations, and unacceptable releases — nuclear waste or landfill waste).
EPA directed Regions to consider whether maintaining response actions would reduce the risk of or actual exposure within six months, including, but not limited to, situations involving vapor intrusion investigations, residential site work, and work involving drinking water. EPA noted that work that would not provide a near-term reduction in human health risk could be considered for delay, suspension, or rescheduling. EPA also noted that non-field site work should continue, but may be impacted or delayed due to COVID-19 related restrictions. Finally, EPA directed Regions to monitor site conditions and plan for resumption of field work when appropriate.
1 EPA Office of Land and Emergency Management, “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19,” (April 10, 2020), available at https://www.epa.gov/sites/production/files/2020-04/documents/interim_guidance_on_site_field_work_decisions_due_to_impacts_of_covid.pdf.
2 EPA Office of Land and Emergency Management, “Office of Land and Emergency Management Considerations and Posture for COVID-19 Pandemic,” (March 19, 2020), available at https://www.epa.gov/sites/production/files/2020-04/documents/attachment_-_olem_posture_covid-19_final_3-19-20.pdf.
3 Id. at 3.
4 EPA, “RD/RA Consent Decree,” (last visited April 10, 2020), available at https://cfpub.epa.gov/compliance/models/view.cfm?model_ID=81 (the page provides a link to the model consent decree); EPA, “ASAOC for Removal Action,” (last visited April 10, 2020), available at https://cfpub.epa.gov/compliance/models/view.cfm?model_ID=754 (the page provides a link to the model agreement).
5 Six Things to Consider Before the Coronavirus Impacts Environmental Compliance, Vinson & Elkins LLP (Mar. 19, 2020), https://www.velaw.com/insights/six-things-to-consider-before-the-coronavirus-impacts-environmental-compliance/.
6 Id.
7 Tracking Announcements Across All Federal, State, and Territorial Environmental Regulatory Agencies, Vinson & Elkins LLP (2020), https://www.velaw.com/coronavirus-us-federal-state-territory-ehs-agency-relief-actions/.
