EPA Issues Interim COVID-19 Guidance For Decisions to Delay Field-Work at Environmental Cleanup Sites

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On April 10, 2020, Peter Wright, EPA's Assistant Administrator for the Office of Land and Emergency Management, and Susan Bodine, EPA's Assistant Administrator for the Office of Enforcement and Compliance Assurance, issued important Interim Guidance relating field-work decisions at EPA-led contaminated sites during the COVID-19 pandemic.¹ This guidance is the anticipated follow-up to EPA's March 26, 2020 Temporary Policy entitled "COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program," which was explicitly inapplicable to Superfund and RCRA corrective action enforcement instruments.

Today's Interim Guidance applies to sites where EPA is the lead agency, including but not limited to:

• Superfund cleanup sites
• RCRA corrective action sites
• Toxic Substance and Control Act PCB cleanup sites
• Oil Pollution Act spill response sites
• Underground Storage Tank Program action sites

In much the same vein as EPA's March 26, 2020 Temporary Enforcement Policy, the new Interim Guidance should provide some comfort that EPA has and will make reasonable case-by-case decisions regarding required field work at sites and will prioritize the health and safety of workers and residents in the impacted communities when doing so.

The Interim Guidance clearly contemplates that certain field work at sites will be paused or delayed in light of the COVID-19 crisis. Indeed, the EPA press release notes that, as of the beginning of April 2020, "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."²

Today's Interim Guidance sets forth two over-arching priorities for case-by-case decision-making regarding such delays:

• Protecting the health and safety of the public, as well as maintaining the health and safety of EPA staff and cleanup partners, is the Agency's highest priority. Integral to the protection of health and safety is the adherence to any federal, state, tribal, or local health declarations and restrictions, to the extent possible.
• Maintaining EPA's ability to prevent and respond to environmental emergencies, or in any situation necessary to protect public health and welfare and the environment, is also a critical priority for the Agency.

Next, the Interim Guidance gives examples of scenarios that likely warrant (or already have warranted) suspension of field-work:

• State, tribal, or local health officials have requested particular site operations, or types of operations that would pertain to particular sites, be suspended.
• Workers at the site have tested positive for or exhibited symptoms of COVID-19.
• Work that may involve close interaction with high risk groups or those under quarantine, such as work inside homes.
• Contractor field personnel are not able to work due to state, tribal, or local travel restrictions or medical quarantine.
• Other sites and work where social distancing is not possible.

Finally, the Interim Guidance sets forth a number of more specific factors that Regional management should take into account in their case-by-case decisions regarding whether to suspend such field-work:

• 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;
• Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months; or
• Field work that would not provide near-term reduction in human health risk should be more strongly considered for delay, suspension, or rescheduling, in coordination with state, tribal, and local officials and with updated health and safety plans, as appropriate.

Overall, the Interim Guidance suggests that any field work that could materially increase the risk of COVID-19 exposures may be delayed, unless that work is necessary to prevent other health and safety emergencies. For example, we anticipate that Emergency Responses and Time Critical Removal Actions will continue, although workplan schedules and approaches may need adjustment to take the COVID-19 situation into account. Likewise, the COVID-19 situation will not absolve parties of their responsibility to provide alternative water supplies or prevent vapor intrusion where failing to do so would potentially result in unsafe exposure to contamination. The EPA will also likely expect parties to continue work that can be performed remotely and that does not increase the risk of COVID-19 exposure (although the Interim Guidance suggests that COVID-19 might affect even some remote work and warrant potential delays). This remote work includes (among other things) drafting reports (where the data are already collected), party negotiations, and maintaining financial assurance. The types of work that are more likely to be delayed include periodic monitoring, routine sampling, investigatory sampling (e.g., RI/FS or RCRA facility investigation sampling), and active remediation of otherwise stable conditions.

The mechanisms outlined for effectuating delay decisions will likewise be case-specific. For site work led by potentially responsible parties, these decisions will generally be constrained by the terms of existing enforcement instruments which typically contain applicable provisions, including terms allowing for schedule adjustments and provisions governing the invocation of force majeure. The Interim Guidance recommends that parties looking to delay (or continue) work at a site consult the relevant enforcement instrument, as well as with the responsible EPA project manager who has the discretion to make schedule adjustments and formal force majeure determinations. Parties should follow all notice and other procedural requirements in invoking force majeure.

While the Interim Guidance focuses on when delays are appropriate, there may be parties that seek to continue field-work notwithstanding the COVID-19 situation. The Interim Guidance directs Regions to take state directives and local health department restrictions and advisories into account. For field work that can be conducted consistent with applicable COVID-19 restrictions, parties should review the work plans to ensure consistency with COVID-19 recommendations and policies at both the local and federal level. Parties should also consult the current (and often rapidly evolving) COVID-19 policies and should stay in close consultation with the EPA project manager.

Finally, the Interim Guidance is only applicable, on its face, to EPA-led sites; there are likely similar concerns at state-led sites. To that end, the Interim Guidance encourages the Regions to share the guidance with states and subtly recommends that the states follow the same principles. The Interim Guidance also encourages the Regional officials to consult with states and localities regarding COVID-19 policies that may implicate a site or the work to be performed at the site. In other words, the spirit of the guidance is to encourage cooperation and consistent decision making at both the federal and state level. However, many state environmental regulatory agencies have promulgated their own policies and guidance potentially applicable to field work at sites. Parties should consult those policies as well, where applicable.

In sum, during the COVID-19 crisis, the EPA may not be materially more flexible than usual in granting extensions for non-field-work activities. However, it will clearly be more flexible in granting delays of non-urgent field-work at contaminated sites. This attitude should not, however, be viewed as carte blanche for potentially responsible parties to abdicate existing obligations that safeguard the health and safety of communities.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.