Written by Amy L. Edwards, Bonni F. Kaufman, and Meaghan A. Colligan, and Holland & Knight LLP
On April 10, 2020, the U.S. Environmental Protection Agency (EPA) Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) issued Interim Guidance on Site Field Work Decisions Due to Impacts of the COVID-19 Pandemic to all EPA Regional Administrators. The Interim Guidance outlines the factors that EPA Regional Offices should consider on a case-by-case basis to evaluate if cleanup actions should continue as is, be reduced or paused, as well as affirmative steps that EPA Regions must take depending on what decision they make. The Interim Guidance is applicable to Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substances Control Act (TSCA) PCB cleanups, cleanups under the Oil Pollution Act, the Underground Storage Tank (UST) program and EPA emergency responses to releases or substantial threats of releases (Response Actions) when EPA is the lead agency. The Response Actions may be performed by EPA, states, tribes other agencies of the federal government and potentially responsible parties where EPA is the lead agency.
EPA was clear that Regional Office decisions and follow-up steps must be made in accordance with EPA’s priorities to 1) protect the health, safety and welfare of the public, EPA staff and third-party environmental professionals, and 2) maintain EPA’s ability to respond to environmental emergencies and protect the environment (EPA’s Priorities). EPA indicated that adherence with federal, state, tribal or local health declarations and restrictions (Health Declarations), when possible, is integral to EPA’s Priorities. EPA was clear that no one factor outlined in the Interim Guidance should be considered in a manner that would override protection against unnecessary potential exposure to COVID-19. Furthermore, EPA indicated that Regional Office decisions to provide extensions or pause work obligations will not supersede or amend enforcement instruments.
When evaluating whether or not to continue, modify or pause a Response Action, EPA made clear that Regional Offices should closely consider whether or not the Response Action is addressing an imminent public health issue, such as access to clean drinking water or vapor exposure concerns, emergency spills, catastrophic events, disposals of certain wastes that may cause an imminent safety issue and in-progress decommissioning of former nuclear facilities and landfills. Applying EPA’s clear guidance that EPA’s Priorities must be at the forefront of the Regional Offices’ decisions, Holland & Knight does not believe the Regional Offices will permit any schedule alterations in these situations, so long as appropriate lodging and personal protective equipment is available for EPA workers or third-party contractors. In contrast, EPA may be more willing to approve schedule modifications for investigations that are part of long-term remedial actions that would not be completed in six months under ordinary circumstances, and remedial actions that do not address an immediate public health concern, i.e., the remedial action was already not scheduled to begin for at least one or two years regardless of any delays caused by the pandemic.
EPA indicated that Response Actions will not simply be abandoned without any controls. Rather, if Regional Offices decide that an action should be paused, Regions should continue to monitor the site and plan to resume field work as soon as it is safe to do so. If a Response Action will continue, Regional Offices must review and modify the health and safety plan (HASP) to ensure that it accounts for CDC’s COVID-19 guidelines and other Health Declarations.
EPA expects work that can be performed remotely to continue, such as completing investigation and cleanup reports, work plans, negotiations between parties, issuing decision documents, progress reports and maintaining compliance with financial assurance obligations.
Parties that believe a COVID-19 restriction will impact their obligations to perform any element of a Response Action are directed to consult the applicable enforcement instrument to review force majeure provisions and any provisions that outline the process for requesting schedule adjustments. Scheduling adjustments will be made on a case-by-case basis in line with EPA’s Priorities and the factors outlined in the Interim Guidance.
EPA indicated that it will update the Interim Guidance as the current situation evolves, as necessary.
Key Elements of the Interim Guidance
General Guidance for Response Field Work Decisions
EPA made clear that Regional Offices would continue to respond to releases or threats of substantial releases to the environment but that Regions should make every effort to ensure worker safety and compliance with travel restrictions, Health Declarations and access to personal protective equipment and lodging.
Under the Interim Guidance, Regional Offices are to perform an evaluation before deciding to continue, modify or pause Response Actions and pre-construction, construction and post-construction activities. In jurisdictions where Health Declarations have been issued, Regions are to evaluate the status of ongoing response work and the possible impact of the COVID-19 pandemic on sites, surrounding communities, EPA personnel and response/cleanup partners. In jurisdictions where Health Declarations have not been issued, Regions should weigh additional factors, including the safety and availability of work crews and EPA, state and tribal staff; the critical nature of the work; logistical challenges such as travel and lodging, and other factors particular to a site.
EPA indicated that Response Actions will not simply be abandoned without any controls. Rather, if Regional Offices decide that an action should be paused, Regional Offices should continue to monitor the site and plan to resume field work as soon as it is safe to do so. If a Response Action will continue, Regional Offices must review and modify the HASP to ensure that it accounts for CDC’s COVID-19 guidelines and other Health Declarations.
During the COVID-19 pandemic, EPA encourages parties and lead agencies to regularly communicate with EPA project managers about the status of the Response Actions and any anticipated challenges and mitigation measures. If COVID-19 restrictions impact a party’s ability to perform any Response Actions, that party should review the enforcement instrument, i.e., consent order, settlement agreement, etc., for the applicable provisions allowing for schedule adjustments or invocation of force majeure provisions. EPA project managers will promptly issue decisions about schedule adjustments on a case-by-case basis.
Factors to Consider for Site Field Work Decisions
EPA provided a list of situations in which Regions have decided and may continue to decide to modify or suspend Response Actions:
- State, tribal or local health officials have requested suspensions.
- Any site workers have tested positive for or exhibited symptoms of COVID-19.
- Any sites where there may be close interaction with high-risk groups or those under quarantine.
- Sites where contractor field personnel are not able to work due to a jurisdiction’s travel restriction or Health Declarations.
- Other sites where social distancing is not possible.
EPA provides a list of factors that regional management should consider with respect to site-specific work decisions, including generally:
- whether failure to continue the Response Action would likely pose an imminent and substantial endangerment to human health or the environment, such as emergency spill responses, catastrophic events, sites that impact drinking water or result in on-site exposures or vapor intrusion, disposals of certain wastes that may cause an imminent safety issue, and in-progress decommissioning of former nuclear facilities and landfills, and whether it is practical to continue the Response Action
- whether maintaining Response Actions would lead to a reduction in human health risk/exposure in the next six months, such as vapor intrusion investigations, residential site work with current exposures to residents, and drinking water-related work
- whether the work would not provide near-term reduction in human health risk, such as periodic monitoring, routine sampling activities and field sampling for remedial or facility investigations. In these instances, EPA is more likely to consider the possibility of a delay, suspension, or rescheduling of work and with updated HASPs as appropriate.
Effects on Non-Field Site Work
EPA expects work that can be performed remotely to continue, such as completing investigation and cleanup reports, work plans, negotiations between parties, issuing decision documents, progress reports and maintaining compliance with financial assurance obligations. EPA did recognize that laboratories and other supporting operations may be impacted by the COVID-19 pandemic and directed parties to follow procedures in those situations outlined in the applicable enforcement instrument.
Next Steps When Pausing Site Work
If a decision is made to pause work, EPA expects Regional Offices to continue to monitor site conditions, plan to resume field work when appropriate and utilize EPA’s internal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Interim Guidance on Public Engagement During COVID-19.
EPA has made it clear to the Regional Offices that they may approve a modification or pause of certain Response Actions, but not if the Response Action is in the process of addressing or will address an imminent or substantial threat to public health and the environment. EPA does, however, require the Regional Offices to balance any decisions with a close review of Health Declarations and exposure or any potential exposure to COVID-19 to the public, EPA workers, and contractors. Based on recent experience, EPA will not extend deadlines for deliverables such as work plans, reports or settlement negotiations based on COVID-19 that can be prepared remotely.
DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.
Information contained in this article is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.
About the Authors
Amy L. Edwards is the co-chair of the Holland & Knight LLP’s National Environmental Team. She is a partner in the firm’s Public Policy & Regulation Group, which has been ranked among the top law and lobbying firms in Washington, D.C., by numerous publications. Ms. Edwards has been recognized as a leading environmental lawyer for several years by Chambers USA, Super Lawyers and Best Lawyers.
Bonni F. Kaufman is a partner in the Public Policy & Regulation Group of Holland & Knight, where she focuses her practice on environmental law. Ms. Kaufman represents clients in a wide variety of matters relating to environmental laws, focusing on regulatory enforcement and compliance, product regulation, litigation and environmental aspects of corporate and real estate transactions.
Meaghan A. Colligan is a Washington, D.C., environmental attorney and member of Holland & Knight’s Public Policy & Regulation Group. She focuses her practice in the areas of environmental, land use, energy and municipal law.