On April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued Interim Guidance regarding EPA decision-making with respect to the potential impacts of the current novel coronavirus (COVID-19) pandemic on field work at certain cleanup sites.  The Interim Guidance, which “supplements” a March 19 EPA guidance, applies to all contaminated sites where EPA is the lead agency or has direct oversight or responsibility, affecting various regulatory programs that were excluded from EPA’s March 26 COVID-19 Enforcement Discretion Memo, including hazardous waste cleanups under CERCLA and RCRA, among others.  This is an interim guidance, and EPA has made it clear that it will “update this guidance as the current situation evolves.”

EPA’s Interim Guidance provides critical information to those concerned that COVID-19 restrictions may delay or obstruct their ability to timely perform work related to the investigation, remediation, and monitoring of environmental contamination.  It also discloses the framework that EPA staff and leadership will use to decide whether certain field work should be suspended or delayed given the COVID-19 pandemic.  Importantly, the Interim Guidance reinforces that these decisions are to be made on a case-by-case basis.

In essence, the Interim Guidance instructs EPA decision-makers to balance the risk that field work could increase COVID-19 exposure against the time sensitive nature of the cleanup work, and instructs regional staff to decide whether immediate action is needed to protect public health, safety, and the environment.  If immediate action is not needed, and cleanup work may be impacted by local COVID-19 restrictions or may result in increased risk of exposure, the Interim Guidance gives EPA’s regional offices the flexibility to suspend or delay cleanup actions.  In its April 10^th press release announcing the Interim Guidance, EPA noted that it 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.”

Parties with response obligations at EPA-led sites that believe that COVID-19 may impact their ability to perform should first work with experienced counsel to review the enforcement instrument under which the cleanup is being conducted (e.g., the Consent Decree or Administrative Order).  Those instruments typically include provisions related to schedule adjustments and force majeure clauses that dictate the notice and information required to modify performance obligations. [1]  The Interim Guidance stresses that compliance with those provisions is required for staff to make a case-by-case determination on any requested scheduling change.

The Interim Guidance offers site-specific factors that regional management should consider in making work decisions.  The factors, too detailed to include here, can be grouped into three broad inquiries:

1. 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;

2. Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months; and

3. 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 & safety plans as appropriate.

The Interim Guidance also provides examples of situations that have (or may) lead regions to reduce or suspend response actions at particular sites, including where:

• State, tribal, or local health officials have requested particular site operations or types of operations be suspended;

• Any site workers have tested positive for or exhibited symptoms of COVID-19, as well as those where there may be close interaction with high risk groups or those under quarantine, such as work inside homes;

• Sites where contractor field personnel are not able to work due to state, tribal, or local travel restrictions or medical quarantine; and

• Sites where social distancing is not possible.

It’s important to note that EPA’s Interim Guidance does not apply to sites where a state, a tribe or another federal agency is the lead agency.  State environmental agencies are taking a wide variety of approaches, from little relief to policies consistent with EPA’s.  For example, on April 15, the California Environmental Protection Agency (CalEPA) issued a broad Statement on Compliance with Regulatory Requirements During the COVID-19 Emergency applicable to all of the State’s environmental agencies that it expects full compliance with all legal requirements “especially given recent studies that suggest a correlation between [environmental burdens] and COVID-19 susceptibility.”  Exceptions will be considered only in “clearly articulated circumstances” and when relief is requested “before falling out of compliance.”  “These time-limited and specific requests that define the hardship must be directed to the specific CalEPA board, department or office as early as possible.”  (Emphasis original.)  On the other hand, environmental agencies in Texas, Ohio and Virginia have all announced that they will provide relief on a case-by-case basis and have established procedures for requesting such relief.

In practice, we expect the framework set forth in EPA’s Interim Guidance to impact primarily non-urgent field work at certain contaminated sites, including routine monitoring and sampling, and in some cases active remediation where contamination does not pose an imminent and substantial threat to human health or the environment.  In situations where EPA determines that suspension or delay is warranted, we recommend that parties remain diligent with respect to satisfaction of critical elements of the National Contingency Plan, including community outreach obligations, which could prove instrumental in any future cost-recovery efforts.

We expect that EPA’s implementation of the Interim Guidance will vary by region, in no small part on account of factors such as the local severity of a COVID-19 outbreak and the restrictions imposed in response to the pandemic.  We do not anticipate that it will result in significant suspension or delay in the obligation to perform time-critical removal actions or implement other emergency measures.  Even in such situations, however, the Interim Guidance advises that responsible parties should review their work plans and ensure that the work will be performed in accordance with federal, state and local directives regarding COVID-19.

The take-home message is that performing parties should proactively anticipate any disruptions that may occur as a result of COVID-19 – and it is critical to document any request for a change due to COVID-19.  Parties should consult with their technical consultants and ensure that work equipment, labor, materials, and analytical laboratories will be able to perform on a timely basis.  Any potential disruption should be communicated to EPA regional staff as provided in the relevant compliance instrument, and parties should maintain regular communication with EPA’s program staff.  This is a minefield that may require careful navigation.

Sheppard Mullin has substantial expertise counseling regulated entities in complying with environmental regulations at the federal, state, and local levels.  If you have any questions on how EPA’s Interim Guidance may apply to your specific industry or facility, please reach out to the authors and we would be happy to assist you.