By Steven M. Siros and Leah M. Song
Building on its March 26, 2020 temporary enforcement policy, on April 10, 2020, the U.S. Environmental Protection Agency (“EPA”) issued its interim guidance regarding new or ongoing cleanup activities during the COVID-19 situation.
The interim guidance focuses on decision making at emergency response and longer term cleanups sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. This includes, but is not limited to, Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substance and Control Act PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions.
Discretion Vested With the Individual Regions
In general, the interim guidance vests each EPA Region with the authority to make site-specific decisions taking into consideration the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners. Importantly, at sites where the Region determines that work should move forward, the Region is charged with reviewing each site’s health and safety plan (“HASP”) to ensure that it appropriately incorporates CDC’s and other relevant COVID-19 guidelines.
Key Factors For Making Site Work Decisions
The interim guidance outlines a series of site-specific factors that should guide Region’s when making determinations as to whether field response actions will continue, be reduced, or be paused. When making this assessment, Regions are directed to consider all relevant site-specific factors, including but not limited to (i) the safety and availability of work crews, EPA, state or tribal staff; (ii) the critical nature of the work; (iii) logistical challenges (e.g., transportation, lodging, availability of meals, etc.); and (iv) other factors particular to a site.
Factors that would support continuing site work include where:
- a 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; and
- maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months.
Factors that would support a pause in work include:
- 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;
- state, tribal or local health officials have requested a stoppage;
- any workers have tested positive for or exhibited symptoms of COVID-19;
- workers may closely interact with high-risk groups or those under quarantine;
- contractors are not able to work due to state, tribal or local travel restrictions or medical quarantine; and
- workers can't maintain proper social distancing.
According to EPA, as of April 1st, EPA has reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions, due to the evolving situation with COVID-19.
With respect to non-field work, given that much of the work to advance cleanup of sites is performed away from sites, to the extent possible, the interim guidance notes that this work should continue. Important work can be conducted virtually and represent opportunities to make progress on primary activities like investigation reports (including pre-NPL work), modeling, negotiations between the parties, decision documents, cleanup documentation, workplans, progress reports, and maintaining compliance with obligations such as financial assurance.
Interim Guidance Does Not Extend Compliance Deadlines
Importantly, the interim guidance does not excuse a parties’ compliance obligations under consent decrees or similar enforcement instruments. Instead, parties are directed to review the governing enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions, for directions on providing the requisite notice and other information described in the provisions. For further discussion regarding these types of provisions in enforcement instruments, please see our earlier blog titled “Does Environmental Investigation and Remediation Continue Despite COVID-19 Business Restrictions and Social Distancing.”
Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID-19 related guidance, as they unfold.