April 13, 2020
On April 10, EPA issued an interim guidance memo (“Interim Guidance”) to all EPA Regional Administrators aimed at addressing how field work carried out at sites under a range of EPA authorities including, but not limited to, the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank (UST) program might be impacted by the COVID-19 pandemic. This guidance also addresses emergency responses to releases or substantial threats of releases into the environment of chemicals, oil, and other hazardous materials/substances, as well as pollutants or contaminants that may present an imminent and substantial danger to the public health or welfare. The Interim Guidance is being issued for response actions related to cleanup and emergency response sites where EPA is the lead agency or has direct oversight of or responsibility for the work being performed. A link to the Interim Guidance is provided below.
EPA indicates the Interim Guidance should be relevant to all entities, including Potentially Responsible Parties (PRPs) and to states authorized to carry out response actions. This Interim Guidance supplements the “Office of Land and Emergency Management Considerations and Posture for COVID-19 Pandemic” document dated March 19, 2020.
EPA indicates it will make case-by-case determinations about continuing on-site activities consistent with the following priorities:
Decisions on whether field work should continue, be reduced or paused will be made by EPA on case-by-case basis in consultation with other EPA offices, as appropriate. This same approach will apply to determinations on requests from outside parties (e.g., states, tribes, local governments, other federal agencies, potentially responsible parties, property owners, etc.) for extensions or delays in performance.
General Guidance for Response Field Work Decisions
EPA Regions are instructed to evaluate and re-evaluate the status of ongoing response work at sites and the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners. There should be an emphasis for evaluation in areas that have been the most impacted by the pandemic. Regions should consider options including whether to continue site operations or secure a site until the public health threat is resolved. Work might continue in areas where there are no health declarations that prohibit or discourage such activities. Other factors to consider in making decisions whether to start or continue work, include but are 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. Where a decision is made to continue work, response action’s health and safety plans (HASPs) should be modified to ensure that they account for CDC’s (and/or other’s) COVID-19 guidelines, including any potential virus transmission into or across areas. If site work is paused, EPA Regions should continue to monitor site conditions and make plans to restart work as conditions permit.
Pre-construction, construction, and post-construction activities should be evaluated by EPA Regions considering factors that might pose risk for such activities, such as the necessity for the activity and the existence of local advisories. EPA should consider safety of all involved in evaluating response to given situations.
For a party believing that COVID-19 restrictions may delay their performance of obligations, EPA instructs them to review applicable enforcement instruments, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions, for instructions on providing the requisite notice and other information described in the provisions. Any relief to a party’s performance obligations will be evaluated on a case-by-case basis consistent with the terms of the applicable enforcement document. Decisions on whether a force majeure condition occurs will depend on site-specific circumstances, particularly the type of work that is impacted or being delayed. EPA indicates it will make these decisions quickly. EPA recommends the lead agency to regularly communicate with EPA project managers about their sites and the status of activity and challenges that might impact the progress at these sites.
Factors to Consider for Site Field Work Decisions
EPA provides some site-specific factors that should be uniformly considered in determining how site activities will proceed in light of COVID-19 challenges. However, an overriding concern should always be protection against unnecessary potential exposure to COVID-19.
EPA notes that a decision to extend an obligation or pause a work obligation under an enforcement document does not supersede or amend that obligation. Instead, any relief is simply an exercise of enforcement discretion under the document itself. Factors set out in the Interim Guidance to evaluate whether to continue activities at a specific site include:
Interim Guidance at page 3.
EPA provides that site-specific work factors/considerations include:
Interim Guidance at pages 4-5.
Effects on Non-Field Work
EPA recognizes that much of the work for cleanup sites is conducted away from the sites. EPA indicates that this work should continue, especially as it can be conducted remotely. EPA provides examples that include making 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 at page 5. The memo recognizes that because COVID-19 has a national impact, some supporting operations (e.g. laboratories, equipment) and materials may be unavailable or be diverted to other uses in consideration of the national interests. Again, parties are instructed to consult the procedures for requesting relief set forth in the applicable enforcement instrument.
Next Steps When Pausing Site Work
EPA emphasizes that vigilance and communication are vital. At sites where work is temporarily reduced or suspended, the site should continue to be monitored and plans should be in place to resume field work when appropriate. Regions are instructed to utilize the internal EPA document, CERCLA Interim Guidance on Public Engagement During COVID-19, to continue conducting Superfund community involvement work at all sites, regardless of whether work has been paused or continues. Interim Guidance at page 5.
For additional information on COVID-19 related issues, please visit the Nelson Mullins COVID-19 resource page or contact a Nelson Mullins attorney.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.