Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA), in response to the COVID-19 pandemic, has announced interim guidance for the Agency’s regional offices to “ensure that decisions about new or ongoing cleanup activities at sites across the country are made with the health and safety of communities, state and tribal partners, EPA staff, and contractors as the priority.”

The interim guidance released April 10, 2020 permits delay or postponement of ongoing remediation activity, especially in areas with COVID-19, provided that doing so is consistent with protection of public health. The interim guidance focuses on decision making regarding emergency response as well as at longer-term cleanup sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. This includes Superfund (CERCLA) cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substance and Control Act (TSCA) PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions. In addition, EPA has asked states to take the guidance into consideration, as they encounter similar issues at state-lead RCRA cleanup sites. The interim guidance does not specifically discuss state-lead CERCLA cleanups, but previous guidance from EPA has indicated that states should take EPA guidance into account for both state-lead RCRA and CERCLA cleanup sites.

Parties performing remediation under EPA oversight who believe that COVID-19 restrictions may delay their performance are encouraged to consult the applicable enforcement document, including reviewing provisions allowing for adjustments to schedules. The typical remediation agreement, whether a consent decree or administrative order, will contain a force majeure clause. While most force majeure clauses require notice of the event to be provided to EPA within a certain number of days, the guidance indicates that “EPA intends to be flexible regarding the timing of notices.”

The guidance is primarily directed to delays in performing field work. EPA indicates that the majority of non-field work, such a preparation of investigation reports and work plans, conducting modeling, and continuing negotiations among the parties, can and should continue and can be conducted virtually. Even so, if non-field work is impacted, that too is subject to deferral or postponement and could qualify as a force majeure event.

Guidance for EPA Regional Offices on Field Work Decisions at Cleanup Sites

Under this interim guidance, EPA will address the challenges posed by COVID-19 pandemic by making decisions about continuing, reducing, or pausing on-site activities on a case-by-case basis consistent with the following priorities:

• 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.

The interim guidance also includes directions to the Agency’s regional offices on the following:

• Asking Regions to review or modify health and safety plans (HASP) to account for CDC’s and others’ COVID-19 guidelines when deciding to start or continue actions.
• Considering site-specific factors when deciding on whether response actions will continue or be reduced, paused, or resumed, and continuing to monitor site-specific conditions to resume field work as soon as possible.
• Applying Applicable Enforcement Instruments.
• Conducting Non-Field Site Work.
• Planning for Next Steps After Pausing Site Work.

The Agency is also recommending that cleanup 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 staff is rather encouraged to use 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.” EPA indicates that it will update the guidance as the current situation with COVID-19 evolves.