EPA’s Latest COVID-19 Guidance Addresses Field Work at Superfund Sites but Leaves Unaddressed Compliance Challenges for the Majority of Work

To no one’s surprise, COVID-19-related impacts have proven to be an immediate issue for many site investigations and response activities, which are often resource-intensive, occur over long periods of time, and typically necessitate substantial lead times and advance planning. EPA’s Guidance to Regional Administrators focuses on two primary aspects of site work: (1) whether and to what extent field work for a cleanup action should move forward, and (2) whether and how related deadlines and other requirements can be modified. While the Guidance will help produce more uniform decision making across the regions as COVID-19 disruptions persist, it leaves unanswered some critical questions about triaging site activities that do not occur in the field as workforces continue to have to manage the demands of the ongoing pandemic.

COVID-19-related Compliance Challenges for Superfund Sites

COVID-19 has created many unique challenges for potentially responsible parties, including the disruption of judicially or administratively mandated site cleanup schedules. As of April 1, EPA has reduced or paused on-site construction work at 34 EPA or PRP-lead CERCLA cleanups, which represents 12% of all sites with ongoing remedial actions overseen by EPA. Although EPA’s Guidance for delaying on-site cleanup efforts addresses some immediate and obvious concerns such as the health and safety of workers, the Guidance does not provide the holistic regulatory discretion needed for site investigations because it does not extend to other project work and deadlines. An overwhelming majority of Superfund work occurs not in the field but behind a desk. This work involves collaborations between agencies, responsible parties, consultants, and the public to develop studies and work plans, negotiating those plans and schedules, communicating with the public, and conducting reporting, monitoring and sampling tasks mandated by enforcement documents.

With all participants facing additional demands on their bandwidth due to COVID-19, as well as, for many, reduced access to work facilities, leaner staffing or reduced work schedules, routine compliance and site investigation progress activities may be difficult to complete within the timeframes set forth in enforcement schedules. For many PRPs managing compliance regimes across multiple regulatory programs with more limited resources, decisions are needing to be made about how to prioritize the mountain of administrative work associated with contaminated sites investigations and response activities against worker safety and environmental emissions management programs. Compliance may also be impeded to some degree by slowdowns with analytical work as laboratories across the country with the capabilities to do so are prioritizing the processing of coronavirus tests.

Key Elements of EPA’s Guidance

The Guidance is limited in scope to field work. It details factors EPA will consider when granting temporary extensions or delays of that work. As a general principle, the Guidelines state that all decisions must be protective of health and safety, maintain the agency’s ability to prevent and respond to environmental emergencies, and comply with local and federal COVID-19 guidelines. Specific examples of situations in which a reduction or suspension of onsite activities may be appropriate include when a state or local health authority requests that work be suspended, when workers are in close contact with each other or high risk-groups, where travel restrictions or medical quarantines impede workers, and at sites where any worker has tested positive for COVID-19 or is exhibiting symptoms. In short, where it is plain that work cannot proceed as planned.

The Regional Administrator is instructed to consider site-specific factors when considering work stoppage requests, including whether a delay of remedial activities will result in an imminent or substantial threat to human health or the environment. Logistically, some relief may be granted by the project manager in lieu of the Regional Administrator, but in other cases PRPs must follow the procedures specified in the governing enforcement documents, such as force majeure clauses, which were not written with a pandemic in mind and may or may not be sufficiently flexible to address COVID-19-related challenges to site investigations and response activities.

Key Questions that Remain

Because the Guidance addresses a small portion of what goes into Superfund site investigation and cleanup efforts, PRPs are left with open questions, and concerns, about whether the agency will exercise enforcement discretion on a site-by-site basis to extend other compliance deadlines during this pandemic. While the Guidance does acknowledge that COVID-19 may impact non-field site work, the possibility is summarily addressed by directing parties to consult the procedures in their applicable enforcement instruments for requesting an extension or waiver. By declining to provide specific guidance for managing all aspects of cleanup activities impacted by COVID-19, EPA missed an opportunity to uniformly address this crisis’ full impact on cleanups and provide procedures for Regional Administrators and PRPs to follow if it becomes necessary to amend project timetables for deliverables.  

Finally, the Guidance does not address the duration of any relief that can be granted, perhaps out of necessity given the uncertainty surrounding COVID-19. However, the practical effect is that PRPs are challenged to predict and adjust future schedules with sufficient certainty to balance their contaminated sites and other regulatory obligations. The policy is new, and this crisis is constantly evolving. Therefore, it would not be surprising, and likely welcome, if additional guidance is forthcoming that fills in some of the gaps.

PRPs should keep in mind that, the environmental community is watching this process closely, and missteps will at least be publicized, and may even draw legal action. Practically, extensions granted or delays that occur may not bar citizen suits seeking to enforce deadlines set out in agency orders or consent decrees, Guidance notwithstanding.  

Tips for Using the Guidance to Seek Adjustment of Non-Field Work Activities

• Review enforcement instruments before contacting EPA to understand how the document provides that any force majeure clause is triggered and the form of notice required.
• PRPs should document the facts and nature of COVID-19-related interruptions, and make and retain communications with the EPA project manager regarding such interruptions.
• Consult the relevant provisions of EPA’s National Contingency Plan (NCP), 40 C.F.R. Part 300, which sets forth the framework for EPA-led response actions, including community involvement and notices.
• Local officials’ concerns may play a role in the agency’s exercise of discretion. If relief is requested, ensure that local officials’ concerns are reflected.
• Before taking any action under the Guidance, consider both the immediate and long-term impact on operational schedules, including field and desktop work. Communicate early and frequently about how field work stoppages will impact other deliverables. Collaboration with agency staff will be critical toward practical solutions, particularly in the absence of agency-wide guidance.
• Prepare to demonstrate the efforts being taken to keep the project progressing and to minimize delays.

For more information, please reach out to your regular Pillsbury contact or the authors of this client alert.

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