Key Takeaways

• What Happened: On April 10, 2020, EPA issued a memo, Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19, that outlines considerations for reconciling remediation schedules with the complexity and risks of performing this work during the COVID-19 pandemic.

• Who’s Impacted: Responsible parties at Superfund sites and other remediation sites.

• What Should They Consider Doing in Response: Assess the potential for the COVID-19 pandemic to delay remediation activities, whether overseen by EPA or other regulatory agencies. Consult the enforcement instrument(s) applicable to your site and communicate with your EPA points-of-contact to anticipate challenges. Waiting months to act may make it harder to show that a delay stemmed from COVID-19 disruptions.

• By When Should They Act: As soon as reasonable. This may present immediate issues for many Superfund sites.

On April 10, the U.S. Environmental Protection Agency (EPA) issued interim guidance on managing COVID-19 concerns at Superfund sites and other cleanup sites under RCRA^[1] corrective action, TSCA PCB^[2] remediation, the Oil Pollution Act, and the Underground Storage Tank program.^[3] The memorandum, entitled Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19, lays out considerations for reconciling remediation schedules with the complexity and risks of performing this work during the pandemic. It supplements internal COVID-19 guidance circulated within EPA’s Office of Land and Emergency Response, dated March 19, 2020.

The April 10 guidance focuses on two key aspects of cleanup work: (1) whether and to what extent a cleanup action should move forward in the face of the ongoing public health crisis, and (2) whether and how deadlines and other requirements can be modified to account for pandemic-related delays. This is not a theoretical issue, but instead is immediate for many Superfund sites. EPA’s press release announcing the new interim guidance notes that “[a]s of the beginning of April, 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.”

Deciding Whether Cleanup Actions Should Move Forward

The new interim guidance emphasizes that EPA personnel should evaluate and periodically re-evaluate the health hazards raised at each site on a case-by-case basis, with particular focus on whether federal, state, or local authorities have issued applicable health advisories.

Reasons for which EPA Regions have reduced or suspended response actions include:

• Requests from state, tribal, or local health officials for suspension of particular site operations or types of operations that would pertain to particular sites;

• Positive COVID-19 tests or exhibition of COVID-19 symptoms by site workers;

• Potential for close interaction with high risk groups or those under quarantine, such as work inside homes;

• Inability of contractor field personnel to work due to state, tribal, or local travel restrictions or medical quarantine; and

• Impossibility of social distancing.

The guidance also lays out key considerations in deciding whether to continue work in the face of the ongoing public health crisis, including:

• Addressing imminent hazards to human health, with particular emphasis on human exposures through drinking water and vapor intrusion; and

• Addressing imminent environmental hazards such as emergency spill cleanups and potential catastrophic events (e.g., mine blow-outs, gyp stacks, fire, or explosion).

Finally, the guidance notes that EPA personnel’s off-site work should continue from remote workstations where possible and that for all on-site work that does continue, the responsible parties must “review and modify, as appropriate, a response action’s health and safety plan (HASP) to ensure that it accounts for CDC’s (and/or other’s) COVID-19 guidelines, including any potential virus transmission into or across areas.”

Modification of Deadlines and Other Requirements

Per the guidance, parties facing potential delays or other problems should consult the enforcement instrument(s) applicable to their site, including “provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions.” Such provisions are in virtually all cleanup agreements with EPA, as they are in the model agreements that EPA uses to craft site-specific agreements.

Whether and how such modifications are made will depend on the terms of the enforcement instrument and the site-specific circumstances, and EPA encourages parties to “communicate regularly” with their EPA points-of-contact to anticipate challenges.

Conclusion

This is the time to assess the potential for the COVID-19 pandemic to delay remediation activities, whether overseen by EPA or other regulatory agencies.

• Consider immediate deliverables, but also take a longer-term view. Delays or complications in performing work today might have a cascading impact on future schedules. If you wait until months from now, it may be much harder to show that a delay stemmed from the COVID-19 disruptions.

• Prepare to demonstrate the efforts that you are making to keep a project moving and to minimize delays.

• Assess whether you need any documentation as backup.

• Know your rights and commitments. Carefully review the relevant enforcement documents.

Planning for needed long term adjustments can head-off disputes and potential noncompliance, and can provide an opportunity to work collaboratively with the regulators toward practical solutions at this challenging time.

[1] “RCRA” refers to the Resource Conservation and Recovery Act.

[2] “TSCA” refers to the Toxic Substances Control Act, and “PCB” refers to polychlorinated biphenyl.

[3] On March 26, EPA issued guidance on enforcement discretion during the COVID-19 pandemic with respect to programs not addressed in the April 10 guidance.