EPA Takes a Case-by-Case Approach in New Guidance for Cleanups and Emergency Response Actions: A First in Its History

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun

On April 10, the U.S. Environmental Protection Agency (“EPA”) released its latest coronavirus COVID-19 Guidance addressing cleanups and emergency response actions that are being conducted under various environmental laws, including Superfund, RCRA Corrective Actions, TSCA PCB cleanup actions, and the Oil Pollution Act, as well as the underground storage tank program. The bottom line for businesses and the regulated community: for response actions where EPA is the lead agency or has direct oversight for work being performed, EPA is directing its Regional Offices to evaluate, and periodically reevaluate, whether ongoing response actions should continue in light of the potential impact of COVID-19 on cleanup sites, the surrounding communities, EPA personnel, and the respective states. EPA advises that decisions about continuing, reducing, or pausing cleanup actions should be made on a case-by-case basis, and that any requests from potentially responsible parties for extensions or delays in performance should also be evaluated individually.

EPA’s general directive to its regions is that they should consider whether to move forward with response actions, or whether, under the circumstances, securing a site is more appropriate so that response actions can continue at a later date. While on-site response actions may start or continue where there are no COVID-19 health declarations that prohibit or discourage such activities, EPA emphasizes that other factors must also be considered, including: the safety and availability of work crews, the critical nature of the work, logistical challenges (e.g., transportation, lodging, availability of meals, etc.), and the nature of the construction required.

This Guidance is a “first” insofar as EPA has never before exercised forbearance for cleanup and emergency response action obligations in response to a worldwide pandemic. That said, the Guidance should not be interpreted by businesses and the regulated community as signaling any significant change in whether or how the agency intends to pursue an enforcement-oriented agenda. In fact, the Guidance includes a cautionary warning to parties responsible for cleanup actions, and who believe that the pandemic may delay their performance obligations. Specifically, parties are advised to

1. 1. 1. review their respective consent decrees or orders to understand the requirements for modifying remedial schedules or plans;
      2. determine whether modifications are subject to the discretion of EPA’s project manager and/or force majeure provisions; and
      3. understand the details pertaining to agency notification.

Modifications to a party’s performance obligations will be made on a case-by-case basis based upon the terms of the applicable enforcement document and the local impact of COVID-19, including the issuance of any federal, state, tribal, or local health declarations. EPA notes that a determination as to whether a particular situation constitutes a “force majeure” or requires an additional response will depend on the site-specific circumstances, particularly the type of work that is affected by COVID-19.

EPA anticipates that it will be able to make prompt decisions in response to a party’s request and advises responsible parties to maintain ongoing communications with EPA remedial project managers about the status of their sites and associated field work and any anticipated challenges and mitigation measures. The agency identifies various factors that should be considered in delaying any response action or in providing an extension or modification of any enforcement obligation, most of which are driven by whether the failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is otherwise practical to continue response actions under the circumstances.

Given that most response action work is conducted within EPA’s offices, it directs its employees and response teams to continue to work remotely on decision documents (cleanup plans, records of decisions, etc.). EPA also instructs the regions to continue to monitor their sites and to plan the logistics for resuming field work when necessary.

While EPA’s new Guidance provides some relief for parties that need additional time to comply with remedial consent decrees or orders due to COVID-19 issues, it also unfortunately impacts parties that are waiting for EPA to act on its review of critical decision documents such as workplans for cleanup or a record of decision. This administrative delay could lead to increased remedial costs for responsible parties, or the inability to close out a site in a timely manner which may have further legal implications for parties required to do so in accordance with a transaction or a credit agreement, or for parties seeking to redevelop a brownfields site. Evaluating the benefits of EPA’s Guidance on a party’s cleanup obligations will depend on a party’s determination of how much additional cost it will incur, and the additional time needed to close out an enforcement action or transactional responsibility.

If you are experiencing compliance issues due to the COVID-19 situation or have questions regarding EPA’s new Guidance, please contact Margaret Hill, Frank Tamulonis, or Steve Zumbrun.

As COVID-19 issues permeate virtually all aspects of commerce nationally and internationally, we stand ready to help. Blank Rome’s Coronavirus (“COVID-19”) Task Force includes interdisciplinary resources across every business sector from insurance recovery to HR.