On April 10, 2020, the U.S. Environmental Protection Agency (“EPA”) issued its Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 (COVID-19 Field Work Guidance), which addresses decision-making related to continuing, pausing, or reducing ongoing field work activities at EPA-led cleanup sites during the COVID-19 (novel coronavirus) pandemic. This guidance applies, but is not limited to, cleanups being conducted under the Superfund (or Comprehensive Environmental Response, Compensation, and Liability Act) program; the Resource Conservation and Recovery Act (RCRA) corrective action; Toxic Substances Control Act (TSCA) PCB cleanup provisions; the Oil Pollution Act; and the Underground Storage Tank (UST) program.
In sum, the new guidance states that EPA will make decisions to suspend or delay cleanup site field work on a case-by-case basis, an approach that balances EPA’s priorities to protect public health and safety during the COVID-19 pandemic while maintaining the agency’s ability to prevent and respond to environmental emergencies and imminent threats posed by these sites. The guidance also explains that decisions to continue, reduce, or pause on-site field work will be made in accordance with relevant provisions of any existing agreements or enforcement instruments that normally govern unforeseen events warranting delays in complying with performance obligations (e.g., modification of schedules, force majeure). Finally, the guidance encourages EPA staff to use this time as an opportunity to make progress on non-field work tasks that can be done virtually, such as settlement negotiations with potentially responsible parties (PRPs) and drafting cleanup decision documents and site progress reports.
EPA’s press release accompanying the guidance recommends that “Superfund site teams cancel or postpone in-person public meeting events, door-to-door visits, and other site-related face-to-face interactions to be consistent with” COVID-19 related guidance issued by the CDC and other federal and state officials. EPA stated that it has already “reduced or paused on-site construction work at approximately 34 EPA or PRP-led Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions, due to the evolving situation with COVID-19.” A more detailed description of the guidance, as well as other relevant considerations, is included below.
The COVID-19 Field Work Guidance follows a similar guidance document that EPA released on March 29, 2020, describing its enforcement discretion policy under other environmental statutes (e.g., the Clean Air Act and Clean Water Act) as a result of the ongoing pandemic. The COVID-19 Field Work Guidance also supplements the Office of Land and Emergency Management Considerations and Posture for COVID-19 Pandemic document dated March 19, 2020, and provides additional criteria to be considered for Emergency Response, Superfund Removal/Remedial/Federal Facilities, RCRA Corrective Action, and leaking underground storage tank (LUST) cleanups when determining whether site field work should begin, continue, or be suspended. With the issuance of the COVID-19 Field Work Guidance, EPA now has put in place temporary pandemic policies for all of the agency’s environmental regulatory programs.
General Guidance & Factors to Consider for Site Field Work Decisions
The new guidance is consistent with common-sense based approaches that have already been made at a number of cleanup sites by EPA and state-equivalent agencies due to coronavirus concerns. Case-by-case decisions on whether to continue, reduce, or pause field work will either be made unilaterally by EPA Regional offices or in response to “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.” Such decisions to modify or suspend work activities will be considered for all phases of response activities: “pre-construction, construction, and post-construction.” And although the guidance directly applies to EPA-led sites only, EPA suggests that the regions share the guidance with their state counterparts, as similar issues and decision-making will occur at state-led sites.
In making decisions, EPA regions are encouraged to consider whether federal, state, tribal, or local health declarations (e.g., shelter-in-place orders) are in effect, in addition 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.”
The COVID-19 Field Work Guidance lists the following “site-specific factors” that should be part of EPA’s decision regarding whether response actions will begin, continue, or be reduced, paused, or resumed:
The guidance also includes a non-exhaustive list of factors EPA will consider in making these decisions. The list includes:
Existing Agreements & Enforcement Instruments Will Govern Requests & Decisions to Delay Performance Obligations
EPA cautions that decisions to extend or pause work obligations because of COVID-19 “do not operate to supersede or amend [existing] enforcement instruments.” Rather, case-by-case decisions to extend or pause work obligations will be made in accordance with the terms of applicable enforcement instruments. Such enforcement instruments often contain provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or “force majeure” provisions. The guidance advises PRPs to consult these instruments “for directions on providing the requisite notice and other information described in the provisions” related to a requested extension, delay, or suspension.
The force majeure provisions of these cleanup agreements, which are most typically invoked for events like natural disasters (e.g., wildfires, floods, or hurricanes) and work strikes, often require the settling party to notify EPA of an unforeseen circumstance out of its control that may result in a delay of its performance obligations. The settling party’s notification generally must detail what work will be delayed and the duration of the delay, as well as identify what measures the party has taken to avoid or minimize the delay. For COVID-19, there is inherent uncertainty as to when routine activities will resume. Thus, “EPA intends to be flexible regarding the timing of the notices” and “to make these determinations promptly.”
Opportunity to Focus Efforts on Non-Field Site Work
EPA suggests that, to the extent project teams can coordinate remotely during this time, this work should continue along with virtual agency communications via online teleconference, webinars, etc. Activities unrelated to field work and contact with the public are expected to continue. For example, EPA suggests this situation presents an opportunity to make progress on activities like negotiations between the parties on settlement agreements and administrative orders; drafting cleanup decision documents, workplans, and progress reports; and maintaining compliance with obligations such as financial assurance.
Next Steps When Site Work Is Paused
The process for getting cleanup work back on schedule post-pandemic is less fleshed out in the COVID-19 Field Work Guidance. It says that “[i]f a decision is made to temporarily reduce or suspend field work, Regions will continue to monitor site conditions and plan the logistics for resuming field work as soon as possible when appropriate.” EPA does, however, note that it will update this guidance as the COVID-19 situation evolves.
DGS attorneys are looking at the COVID-19 Field Work Guidance—as well as related federal, state, and local guidance documents and directives—carefully and will continue to closely monitor this evolving situation in coordination with EPA project managers and others as the agency updates its COVID-19-related guidance documents and makes site-specific decisions related to this issue. Although the COVID-19 Field Work Guidance and related guidance documents should offer some comfort to PRPs that certain non-essential field work requirements will be relaxed during this time, parties should strive to satisfy all other existing obligations and do what they can to protect their employees and contractors, the public, and the environment.