The U.S. Environmental Protection Agency (EPA) on April 10, 2020, issued interim guidance regarding field work at contaminated sites. When deciding whether to continue on-site cleanup and emergency action construction activities during the COVID-19 pandemic, EPA will prioritize protection of public health and safety as well as the health and safety of EPA staff and cleanup partners. Field activities may be suspended if workers test positive for COVID-19 or cannot maintain proper social distancing, or if local health declarations are in effect. A party engaged in cleanup activities should request appropriate extensions or delays pursuant to its existing agreement with EPA, which likely includes a force majeure provision or allows for schedule adjustments at the EPA project manager’s discretion.
Background
EPA oversees on-site field activities pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), Toxic Substances Control Act (TSCA) PCB cleanup provisions, the Oil Pollution Act (OPA), and the Underground Storage Tank (UST) program. Under these programs, EPA conducts cleanup and emergency activities at contaminated sites and oversees work conducted by states, tribes, other agencies, and potentially responsible parties (PRPs).
PRPs typically perform site cleanup work pursuant to consent decrees or administrative orders. EPA’s models for PRP consent decrees and administrative orders include force majeure provisions that define a force majeure event as “any event arising from causes beyond the control” of the PRP “that delays or prevents the performance of any obligation” under the consent decree despite the PRP’s “best efforts.”
As of the beginning of April, EPA had reduced or paused construction at approximately 34 Superfund sites, or 12% of sites with ongoing remedial actions.
EPA Guidance to Regions Regarding Field Work
EPA’s April 10 interim guidance directs regional staff to evaluate the status of ongoing field work during the COVID-19 pandemic, especially where federal, state, tribal, or local health declarations are in effect. The guidance includes factors EPA will consider when determining whether pre-construction, construction, and post-construction cleanup actions should start or continue. Two priorities will guide EPA’s decision to reduce, suspend, or resume on-site construction. Regional staff should prioritize protecting public health and safety, as well as the health and safety of EPA staff and cleanup partners. Another “critical” priority is to maintain EPA’s ability to prevent and respond to environmental emergencies.
These priorities will guide EPA’s response to any request from PRPs engaged in field activities at a contaminated site. PRPs should request deadline extensions or remedial action delays in accordance with any existing agreements such as consent decrees or administrative orders. An enforcement agreement may include provisions that allow for schedule adjustments at the discretion of EPA’s project manager for the site. Additionally, a typical consent decree or administrative order includes a force majeure provision that allows a party to request a schedule adjustment when “any event arising from causes beyond the control” of the PRP “delays or prevents” performance. The interim guidance states that EPA intends to be flexible regarding the timing of the notice typically required to invoke force majeure or request any schedule adjustment.
When considering whether to reduce, pause, or resume on-site activities, EPA will assess whether the field work addresses imminent and substantial risks to human health and the environment, whether maintaining the activities will reduce human health risks or exposures in the next six months, or whether work could be delayed and subsequently resumed with an updated health and safety plan in place. EPA may reduce or suspend required field work if local health officials have requested work be suspended, if any site workers have tested positive or exhibited symptoms of COVID-19, if workers cannot maintain social distancing, or if contractor field personnel cannot work due to local travel restrictions or medical quarantines.
EPA’s non-field site work, including development of work plans, cleanup documentation, negotiations with parties, and decision documents, continues to the extent possible.
Implications
EPA’s interim guidance regarding contaminated site field work is intended to provide a consistent decision-making framework across regions during the COVID-19 pandemic. EPA will prioritize the health and safety of the public and of EPA staff and cleanup partners when considering whether to reduce, pause, or resume field work. PRPs seeking schedule adjustments during the COVID-19 pandemic should make requests pursuant to existing enforcement agreements with EPA, either by requesting the project manager exercise discretion or by invoking force majeure. PRPs should document their request and the factors that justify the schedule adjustment. EPA may agree to reduce or suspend required field work if local health officials have requested work be suspended, if any worker exhibits symptoms of COVID-19, or if workers cannot maintain appropriate social distancing.
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