Adding to the many regulatory initiatives undertaken to aid the nation’s COVID-19 response and provide enforcement relief to the regulated community, on April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 (“Interim Guidance”).1 In this alert, we discuss the key aspects of the Interim Guidance, steps parties should take to seek relief under this policy, its interaction with other EPA enforcement guidance, and key concerns for regulated entities.
The Interim Guidance applies to locations across the country where site work is being conducted pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”), Resource Conservation and Recovery Act (RCRA), Oil Pollution Act, Toxic Substances Control Act (TSCA) PCB program, or Underground Storage Tank (UST) program. Issuance of the Interim Guidance was anticipated following EPA’s March 26, 2020 Temporary Policy for enforcement and compliance assurance, which was discussed in detail in an April 1 WilmerHale Client Alert.
While many businesses have shut down or curtailed their on-site operations in response to the evolving state and local “shelter in place” and “stay at home” orders, environmental remediation activities typically have not been addressed in those orders.
However, some jurisdictions, such as New York and several California counties, including San Francisco, have expressly restricted non-essential construction activities, including certain site cleanup and remediation efforts. And, in the jurisdictions where site work is legally permitted to continue, some responsible parties have voiced concern over the safety of proceeding with required site work due to difficulties maintaining social distancing and other protocols.
Indeed, by early April, EPA had reduced or paused on-site work at approximately 12% of all Superfund National Priority List sites with ongoing remedial actions, and we expect that percentage to grow as stakeholders continue to grapple with COVID-19 related challenges. The Interim Guidance aims to provide clarity to EPA Regional staff and regulated entities—and to promote national consistency—regarding pausing or continuing work at EPA-led remediation sites during the pandemic.
Key Elements of EPA’s Guidance
Given the unique and site-specific nature of response and remedial activities, the Interim Guidance sets out a framework of considerations for case-by-case determinations as to whether site activities should be continued, paused, or delayed. EPA personnel are directed to evaluate—and periodically re-evaluate—the status of ongoing response work to determine whether continuing site work is appropriate during the pandemic. Factors to be weighed in those evaluations include: the safety and availability of work crews; the critical nature of the cleanup work; and, logistical challenges (e.g., travel restrictions, the availability of lodging, and access to personal protective equipment).
The Interim Guidance identifies the following situations in which EPA Regions have discretion to reduce or suspend on-site response actions:
- when suspension is requested by state, tribal, or local health officials;
- if any site worker tested positive for or displays symptoms of COVID-19;
- where site work may involve close interaction with high-risk groups or those under quarantine;
- sites where personnel are not able to work due to travel restrictions or medical quarantine orders; and,
- sites where social distancing is not possible.
EPA also identifies countervailing considerations that weigh in favor of continuing response work where it can be conducted safely. EPA personnel will consider whether pausing response actions at a particular site is likely to pose an imminent and substantial endangerment to human health or the environment. Those considerations could arise in situations including emergency response sites and sites with ongoing public health impacts, such as where responsible parties are providing alternative drinking water supplies due to contaminated water. Similarly, EPA will consider whether ongoing work at a site is necessary to prevent an imminent threat to public health or the environment, such as a mine blow-out or the expansion of a contaminated groundwater plume. In contrast, work that is not likely to have near-term impacts on human health should be considered for deferral.
The Interim Guidance also addresses the large volume of cleanup-related work that occurs offsite. To the extent that parties can continue remote work during the pandemic, such as modeling, negotiations, and workplans, they are directed to do so. However, EPA acknowledges that even some offsite work could be delayed by COVID-19 due to unavailable materials, personnel, or other impacts.
How to Seek Relief
Cleanups conducted pursuant to CERCLA, RCRA, and the other authorities subject to the Interim Guidance typically are governed by judicial consent decrees or settlement agreements. Accordingly, rather than establishing standard procedures for potentially responsible parties and others seeking to delay their performance obligations due to COVID-19, EPA directs those parties to follow the procedures set out in the applicable enforcement instrument governing cleanup at their site. Those agreements typically contain force majeure provisions and/or language allowing the cleanup schedule to be adjusted at the discretion of the EPA project manager. In the Interim Guidance, EPA anticipates that project impacts caused by COVID-19 and falling within the criteria discussed above likely will qualify as force majeure events or warrant the exercise of discretion by the project manager. Although the determination as to whether a situation qualifies for an extension must be made on a case-by-case basis, EPA intends to make these determinations promptly.
A party that anticipates—or is already facing—issues complying with their cleanup and response obligations should actively communicate with their EPA project manager as early as is practicable. Any party subject to a consent decree or settlement agreement should review the notice and other requirements in that instrument to anticipate potential compliance issues; EPA stated its intent to be flexible with respect to those requirements to the extent possible, but parties improve their compliance posture by identifying upcoming milestones and communicating with EPA well in advance of deadlines.
After Cleanup is Delayed
Once work is paused, the Interim Guidance directs EPA personnel to monitor site conditions and establish a plan for resuming work as soon as it can be done safely. EPA will also continue some Superfund community involvement work at all sites, although in-person public meetings and other in-person interactions will be cancelled or postponed. EPA staff are encouraged to instead shift to virtual and other communication platforms—e.g., conference calls, fact sheets, postcards, and social media—to stay in touch with affected communities.
Interaction with Self Disclosure Policies, Including the Oil & Gas Existing Owner Audit Program
Regulated entities should consider whether to self-disclose to EPA any potential instances of noncompliance. As discussed in our April 1 client alert, EPA’s Audit Policy—which provides penalty forgiveness for violations that are voluntarily disclosed and expeditiously corrected—continues to apply even as EPA issues other pandemic-specific enforcement guidance.
Upstream oil and gas producers are offered additional certainty by EPA’s Existing Owner Audit Program, which allows owners of exploration and production facilities the opportunity to find, correct, and disclose Clean Air Act violations. For a limited period of time, through December 2020, those entities may enter into a voluntary agreement with EPA to self-audit their facilities for such violations. Once the facility is returned to compliance, EPA guarantees that it will not impose civil penalties for the violations—protection that is superior to that offered by the standard Audit Policy. EPA has not announced whether the December 2020 deadline will be extended due to the COVID-19 pandemic, and an extension likely will be dependent on the longevity of the pandemic’s impacts.
Implications for Responsible Parties
The Interim Guidance aims to promote protection of public health by focusing resources where they are most needed during the pandemic—to aid in urgent COVID-19 response. Through this guidance, EPA recognizes that some non-urgent environmental cleanups can and should be paused due to health and safety concerns. However, responsible parties should remain mindful that a number of environmental regulatory requirements remain in place, making it important to carefully review and identify programs that may not subject to potential enforcement abeyance to avoid violations. While cleanup timelines may become protracted during implementation of the Interim Guidance, EPA will reinstate timelines quickly after conclusion of the pandemic response, and regulated entities should be prepared to re-start work and manage their sites accordingly.
The advisable course of action for responsible parties grappling with whether to seek relief under the Interim Guidance is inherently fact-specific, and will depend on the relevant health and safety concerns, the nature of the cleanup, and the requirements of the applicable enforcement agreement. Those with questions regarding the Interim Guidance or seeking advice on the most prudent course of action at their site should reach out to the authors of this alert or their regular contact at WilmerHale.