EPA Issues Guidance For Continuing or Suspending Response Actions During COVID-19 Crisis

/ Brownfields, CERCLA, enforcement, Environmental Due Diligence, Hazardous Waste, oil spills, PCBs, Underground Storage Tanks, vapor intrusion, Water Pollution / By

In our post discussing EPA’s Enforcement Discretion guidance, we mentioned that EPA was working on guidance for performing remedial actions during the Covid-19 crisis. On April 10th, EPA issued its “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19” (Interim Guidance) to regional offices when determining to continue, reduce, or pause on-site activities because of complications related to restrictions imposed by states in response to Covid-19 pandemic.  The Interim Guidance is available Here

The Interim Guidance supplements the “Office of Land and Emergency Management Considerations and Posture for COVID-19 Pandemic” guidance dated March 19, 2020 and provides additional criteria when determining if  field work should continue or be suspended at sites where EPA is the lead agency or has direct oversight of or responsibility for response actions being performed under the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank (UST) program. EPA also indicated that states may use the guidance at state-lead RCRA cleanup sites.

EPA said regional offices should consider the following priorities when deciding to alter or pause on-site activities:

  • 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 close coordination with federal, state, tribal, or local health authorities.
  • Maintaining EPA’s ability to prevent and respond to environmental emergencies, is also a critical priority for the Agency.

In the Press Release announcing the Interim Guidance, EPA said the same principles should apply when responding to requests by third parties such as states, other federal agencies and private parties seeking extensions or delays in performance. These decisions are to be made in accordance with any existing agreements or enforcement instruments.

The press release also indicated EPA has reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites ( 12% of all EPA sites with ongoing remedial actions) due to the evolving COVID-19 crisis. The agency explained that regional offices have agreed to reduce or suspend response actions at particular sites for the following reasons:

  • State, tribal, or local health officials have requested particular site operations or types of operations that would pertain to particular sites be suspended.
  • Site workers have tested positive for or exhibited symptoms of COVID-19.
  • Sites 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

General Guidance for Evaluating Response Action Suspensions/Alterations–

The Interim Guidance states that in states where emergency orders have been issued that restrict activities of non-essential services, the regional offices are directed to determine if site operations should be continued or secure a site until the public health threat associated with the declaration is resolved. Even where such emergency orders have not been issued, regional offices are instructed to be guided by the following criteria when deciding to start or continue response actions:

  • The safety and availability of work crews, EPA or state staff;
  • the critical nature of the work;
  • logistical challenges (e.g., transportation, lodging, availability of meals, etc.); and
  • other factors particular to a site

Regions are also directed to review and modify, where appropriate, a site health and safety plan (HASP) to ensure that it accounts for the CDC’s  and other applicable COVID-19 guidelines, including any potential virus transmission into or across areas.

In all instances, regional offices are expected to evaluate and periodically re-evaluate the status of ongoing response work at sites and the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners.

In addition, the Interim 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 current COVID-19 guidance from the CDC and other federal, state, tribal and local officials. EPA also encourages regional staff to comply with public participation requirements by using virtual and other communication tools such as on-line meetings, webinars, conference calls, and call-in numbers, as well as fact sheets, postcards, phone, and social media.

Site-Specific Factors for Evaluating Response Action Suspensions/Alterations

To promote consistent decision-making across the regional offices for similarly- situated sites, the Interim Guidance sets forth some factors that regions should consider when determining if to continue,  modify or suspend on-site field work. The Interim Guidance emphasizes that these factors should not be considered in a manner that would override protection against unnecessary potential exposure to COVID-19.

Moreover, EPA re-affirms that decisions to extend obligations or pause work obligations do not operate to supersede or amend enforcement instruments. These enforcement instruments usually contain provisions allowing for adjustments to schedules at the discretion of EPA’s project manager, and/or force majeure provisions that generally require responsible parties to provide a notice and facts justifying a requested extension.

Sites Posing Imminent and Substantial Endangerment– Regions should determine if failure to continue a response action would likely pose an imminent and substantial endangerment to human health or the environment and if it is practical to continue such actions. The interim guidance provided the following examples of such sites:

  1. Emergency Response and Time Critical Removal Sites;
  2. Sites with an ongoing or a threat of imminent acute or direct human exposures- These are sites where halting response action could compromise public health and include where:
    • EPA or responsible parties are providing alternative water supplies because of contaminated drinking water; or
    • There are individuals with ongoing on-site exposures, such as lead, arsenic, other heavy metals, PCBs, asbestos, vapor intrusion.

3. Sites with prevention of exposures that pose an imminent threat to public health and welfare and the environment- The Interim Guidance identifies the following examples of such sites:

    • response actions to prevent a catastrophic event (e.g., mine blow outs, sites with high probability of fire or explosion, etc.);
    • Prevent contaminated groundwater plume expansion that is reasonably likely to adversely affect public or private drinking water sources, including continued operation of groundwater pump and treat systems
    • Prevent releases to surface waters that are reasonably likely to adversely affect drinking water intakes or communities downstream, including treatment of acid mine drainage
    • On-site security or activities necessary to prevent unauthorized access to sites for the safety of life and/or the protection of government property
    • Disposal of materials off-site (e.g., mine waste, chat, unsafe cylinders) that create an imminent safety issue if not promptly removed
    • Assess potential or actual vapor intrusion, especially into structures with sensitive populations (consideration should be given to the relative risks and be coordinated with residents as appropriate)
    • Complete, continue, or take measures to stabilize in-process response actions to ensure unacceptable releases to the environment do not occur (e.g., deactivation and decommissioning of a former nuclear facility, soil excavation, partial closure of a landfill disposal cell)

Response Actions That Could Reduce Human Exposures/Risks Within Six Months– Regions may consider maintaining response actions that would lead to a reduction in human health risk/exposure within the ensuing six months. This may include, but are not limited to:

  • Vapor intrusion investigations;
  • Residential site work with current exposures to residents
  • Drinking water work

Response Actions Not Likely to Provide Near-Term Human Health Reductions- The Interim Guidance suggest that 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  and local officials and with updated HASPs as appropriate. Examples include:

  • Periodic monitoring
  • Routine sampling activities that typically are considered for five-year reviews or compliance with existing agreements
  • Field sampling for remedial investigation/feasibility study (RI/FS) or RCRA facility investigation (RFI) work
  • Active remediation of otherwise stable conditions (e.g. active remediation of stable groundwater plumes)

Conducting Non-Field Site Work 

The Interim Guidance states that important work such as investigation reports (including pre-NPL work), modeling, negotiations between the parties, decision documents, cleanup documentation, work plans, progress reports, and maintaining compliance with obligations such as financial assurance can be conducted virtually and represent opportunities to make progress on primary activities.

However, EPA also recognized that because of the national scope of COVID-19, some work that normally takes place away from a site may be impacted because supporting operations (e.g. laboratories, equipment) and materials are unavailable or have been diverted to other uses in consideration of the national interests. Parties who believe that COVID-19 restrictions may delay their performance of non-field related work should consult the procedures set forth in the applicable enforcement instrument.

Notices–

The Interim Guidance indicates that parties who believe that COVID-19 restrictions may delay their performance of obligations should consult the applicable enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions to determine the notice requirements including timing of the notice and the information required to be included in the notice.

Modifications to a party’s performance obligations will be made on a case-by case basis in accordance with the terms of the applicable enforcement instrument. The formal determination will be based on the site-specific circumstances, particularly the type of work that is affected by COVID-19.

*Impact of COVID-19 on Complying With All Appropriate Inquiries (AAI)*-

Neither EPA’s Enforcement Discretion memo or the Interim Guidance address how EPA will respond to situations where prospective purchasers or tenants who have conducted phase 1 reports that do not strictly comply with the AAI requirements because the environmental consultant could not complete a site inspection due to restrictions imposed by state emergency orders shutting down non-essential businesses.  In our next post, we will discuss how parties seeking to qualify for the CERCLA landowner liability protections may use the ASTM E1527-13 standard to address these limitations.

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