EPA regions will consider three broad factors in determining whether field work should continue, but EPA explained that these factors “should not be considered in a manner that would override protection against unnecessary potential exposure to COVID-19.” The three factors are whether
- failure to continue response actions would likely pose an imminent and substantial endangerment to human health and the environment and whether it is practical to continue such actions
- maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months
- 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, tribal and local officials and with updated health and safety plans as appropriate
EPA was clear on one point, however. Companies should consult any consent decrees, administrative agreements or other enforcement instruments before taking any steps to reduce or suspend response actions due to COVID-19. Companies are expected to follow any applicable provisions governing schedule adjustments, force majeure, and notice and should proactively contact EPA if any delay in performance is expected. EPA indicated that it expects prompt responses to requests based on such provisions but stopped well short of indicating that COVID-19 would necessarily constitute a force majeure in all circumstances. In fact, while EPA will consider reducing or suspending field work due to COVID-19, EPA expects work on off-site activities, including investigation reports, modeling, workplans, progress reports and maintaining compliance with financial assurance and other obligations, to continue unless such activities would also risk COVID-19 exposure. Regions will continue to monitor site conditions and may amend any temporary changes to response obligations.
The guidance is not entirely clear, however, on one critical point: Must EPA make an affirmative decision in all cases before continuing ongoing field work? Some text implies that EPA should do so in all cases, while other text is less clear. As a practical matter, implementation of the guidance is likely to evolve and may have regional differences.
In sum, EPA’s field work guidance provides the regulated community with a useful if high-level overview of EPA’s conceptual approach to making field work decisions. Based on this guidance, parties obligated to perform Superfund, RCRA or other field work should, at a minimum,
- carefully review the relevant enforcement documents applicable to their obligations to understand the procedures for seeking modifications of existing schedules and/or work plans and for claiming force majeure
- carefully review applicable federal, state and local COVID-19 restrictions that may apply to the projects at issue; there are significant variations in existing stay-at-home orders and other restrictions
- consider nongovernmental COVID-19 policies that may apply, such as the company’s own corporate policies and those of its vendors
- consider the other general criteria set forth in EPA’s guidance
- seek appropriate schedule extensions and other accommodations from EPA should they be necessary or advisable and consider making a protective claim of force majeure (note that in many EPA enforcement documents, the deadline for making force majeure claims is triggered by knowledge of a potential, not actual, delay)
- continue to monitor COVID-19 policies and restrictions for any changes
Where field work is permitted to continue, EPA’s guidance is reasonably clear that the site-specific health and safety plan should be updated to account for applicable COVID-19 guidelines, including those issued by the Centers for Disease Control and Prevention.
Finally, note that this guidance may be litigated. Several state attorneys general and environmental groups filed an emergency petition challenging EPA’s first COVID-19 guidance, its March 26 enforcement discretion guidance, and have publicly stated that they intend to litigate. A similar challenge is possible here, and the prospect of litigation is a consideration that companies may wish to consider.