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EPA Cleanup Site Guidance Recognizes COVID-19 Challenges for Response Activities

Today, April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued its anticipated interim guidance on impacts to operations at cleanup sites due to the COVID-19 pandemic.  The guidance memorandum, issued jointly by the heads of EPA’s Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) and directed to Regional EPA Administrators, focuses on adjusting response activities at cleanup sites under a number of EPA administered programs and emergency responses due to the COVID-19 situation and the myriad of state and local shelter-in-place and business curtailment orders.

The memorandum follows a string of novel guidance documents from EPA to address ongoing environmental programs due to the unprecedented public health crisis.  In fact, EPA indicated that it would issue this guidance in its original March 26 enforcement discretion guidance in response to the pandemic.  We have previously written about other COVID-19 related enforcement policy guidance from OECA here and here.  As with EPA’s other recent guidance documents, evaluating how this latest cleanup site guidance may apply to your cleanup actions is critical given the propensity of headlines to miscast and sensationalize the scope of EPA’s temporary pandemic policies.

According to the guidance, EPA will make decisions regarding on-site activities—including whether to continue, reduce, or pause field work—“on  a case-by-case basis and in consultation with other EPA offices, as appropriate”—in light of COVID-19 related challenges.  The temporary policy articulates two priorities that guide case-by-case determinations:  (1) protecting the health and safety of the public and EPA staff and cleanup partners, and (2) ensuring EPA’s “ability to prevent and respond to environmental emergencies” and “protect public health and welfare and the environment.”

EPA plans to apply this same approach to evaluate requests for extensions or other delays by entities conducting cleanup and response activities at sites led by other federal, state, tribal, or local authorities, as well as private entities (including potentially responsible parties or property owners).  The stage of cleanup at a particular site will be an important factor in EPA’s determination of whether to grant a requested delay or extension.  For instance, the agency may be more or less inclined to allow a site to pause or delay work depending on whether the site is engaged in planning, investigation, active remediation, or post-construction maintenance/monitoring.  Further, the guidance memorandum explains that any decisions to allow delays or pauses in work will be made “in accordance with the terms of the applicable enforcement instrument,” and so may vary based on not just the circumstances in play at a particular site but also due to the language of the legal documents relevant to the site.  Lastly, the guidance encourages the continuation of work that can be performed remotely.  Reports, modeling work, negotiations, and other documentation aspects are all highlighted as efforts that can be done virtually and should carry on despite disruptions to physical on-site work.

Regional offices are directed 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 guidance lays out a number of factors for the Regions to consider in making determinations about whether to continue or pause work at a particular site.

The following types of activities are identified as most eligible for delay, suspension or rescheduling of site work in response to limitations caused by the pandemic:

  • Periodic monitoring

  • Routine sampling for five-year reviews or general compliance with existing agreements

  • Field sampling for remedial investigation/feasibility studies or RCRA facility investigation work

  • Active remediation of otherwise stable conditions

Conversely, the  guidance identifies actions less likely to be delayed, suspended or rescheduled in response to COVID-19, including (but not limited to):

  • Work where failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, including emergency response and time critical removal actions

  • Providing alternative water supplies to replace contaminated water sources

  • Abatement of on-going on-site exposures, such as lead, arsenic, or other heavy metals, PCBs, asbestos

  • Responses to prevent a catastrophic event

  • Preventing expansion of groundwater plumes threatening drinking water

  • Preventing releases to waterbodies

  • Assessing and abating vapor intrusion, especially in structures with sensitive populations

There is evidence that the agency is already taking steps to curtail remedial work due to the pandemic.  In a press release accompanying the OLEM/OECA guidance memorandum, EPA stated that it had “reduced or paused on-site construction work at approximately 34 EPA or [potentially responsible party]-lead Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions,” based on COVID-19 considerations as of the beginning of this month.

Companies engaged in cleanup activities at sites subject to EPA’s authority should evaluate whether planned response activities can proceed or are likely to face COVID-19 disruptions.  As always, companies should continue to endeavor to meet environmental obligations.  If you anticipate delays or the need for extension, however, you should consult with counsel now to evaluate the enforcement instruments applicable at your site and assess whether the circumstances at your site may merit forbearance under the guidance.

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Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 101
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J. Tom Boer Environmental Practice Hunton Andrews Kurth San Francisco, CA
Partner

Tom’s experience at the EPA and DOJ provides him with a firsthand perspective into how the government pursues and resolves enforcement actions. He, in turn, offers clients invaluable insights into the processes, risks, issues and strategies for resolving alleged environmental liabilities.

Tom represents companies, municipal utilities, and individuals in federal and state environmental litigation, in defense of environmental enforcement actions and citizen suits, in response to catastrophic environmental emergencies and chemical releases, and in connection with site cleanup and cost...

415-975-3717
Samuel L. Brown Environmental Practice Hunton Andrews Kurth San Francisco, CA
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A former US EPA lawyer, Sam brings deep knowledge and practical experience to his clients’ environmental and natural resource concerns, helping them navigate the demands of regulatory agencies, ensure facility and corporate compliance, respond to government investigations and defend against enforcement actions.

Sam is experienced in domestic and international environmental and natural resource matters that impact client business and operations. His clients primarily include public and private sector manufacturing, mining, electric utility, oil and gas, municipal drinking water and...

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Todd S. Mikolop Environmental Attorney Hunton Andrews Kurth Washington, DC
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Todd, a former environmental crimes prosecutor for the US Department of Justice, advises and defends clients in internal investigations and environmental enforcement actions and counsels clients in federal permitting programs.

Clients faced with crisis situations turn to Todd for advice. His extensive government experience from previous roles as a federal prosecutor in the US Department of Justice and as a judge advocate in the US Coast Guard prove invaluable when conducting internal investigations and defending enforcement actions for companies facing allegations of wrong doing or...

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Dan J. Jordanger Environmental Litigation Attorney Hunton Andrews Kurth Richmond, VA
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Dan helps clients throughout the United States solve environmental problems, litigate complex environmental disputes, and manage issues that arise under an array of environmental laws.

Through his nearly 30 years working with clients to protect their interests and mitigate their exposure to risk, Dan has used his practical knowledge to advance development, manufacturing, transactional and remediation projects. Dan advises clients on natural resource, waste management and reporting obligations. He also manages PRP groups and members of groups at waste sites and during litigation,...

804-788-8609
Lauren A. Bachtel Environmental Attorney Hunton Andrews Kurth Washington, DC
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A former US Department of the Interior and American Wind Energy Association lawyer, Lauren draws on her diverse experience to navigate clients through complex permitting and compliance issues that arise under a host of federal environmental statutes and regulations. She also advocates for clients during related administrative rulemakings and litigation.

Lauren has extensive experience with permitting and litigation under the National Environmental Policy Act (NEPA), Mineral Leasing Act (MLA), Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle...

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