Todd C. Fracassi, Partner, Pepper Hamilton
Mitchell L. Guc, Associate, Pepper Hamilton
Andrea L. Rimer, Partner, Troutman Sanders
Randy E. Brogdon, Partner, Troutman Sanders

On April 10, the U.S. Environmental Protection Agency’s (EPA’s) Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) jointly released a memorandum to all EPA Regional Administrators regarding the suspension, reduction or continuation of on-site cleanup activity in the wake of the COVID-19 pandemic. The memorandum supplements earlier guidance released on March 19 outlining OLEM’s management considerations and posture in response to COVID-19, which is included as an attachment to the April 10 guidance.

How the New Guidance Will Be Applied

The memorandum applies to cleanups “where EPA is the lead agency or has direct oversight of or responsibility for the work being performed,” including cleanups under the Resource Conservation and Recovery Act (RCRA) Corrective Action Program, the Superfund program, the Toxic Substances Control Act (TSCA) cleanup provisions, the Underground Storage Tank (UST) Program, and the Oil Pollution Act cleanup provisions, among others. The guidance outlines EPA’s approach to determining whether on-site cleanup activities should be suspended, reduced or otherwise continued in light of the pandemic. Pending the abatement of the pandemic, the guidance states that these decisions will be made on a case-by-case basis in consideration of all aspects of the cleanup, including pre-construction, construction and post-construction phases.

When making decisions to continue, reduce or suspend on-site cleanup activity, EPA may consider any of the following factors:

  • whether federal, state, tribal or local COVID-19 health declarations are in effect for a site, including those medical and/or travel restrictions that prevent on-site personnel from working
  • whether state, tribal or local health officials have requested suspension of cleanup activities and, if so, to what degree
  • the availability and safety of EPA, state, tribal or local staff and on-site cleanup personnel
  • whether any cleanup personnel exhibited symptoms of or tested positive for COVID-19
  • whether the cleanup activity presents a risk of close interaction with individuals at high risk for infection or with individuals sheltering in place
  • the critical nature of the cleanup activity, including whether and to what degree a failure to continue the activity would pose an imminent and substantial endangerment to human health or the environment
  • whether continuing the cleanup activity would lead to a reduction in human health risk or exposure within the next six months
  • the logistical needs of the site, such as transportation and lodging
  • whether site conditions make social distancing impracticable
  • any other factor unique to the site.

The memorandum suggests that on-site activities that would not provide near-term reduction in human health risk (such as periodic monitoring or routine sampling) might be more likely to receive approval for suspension or reduction. However, it does note that any response activities that can be conducted remotely are expected to continue.

Additionally, if a cleanup activity begins or continues during the pandemic, the health and safety plan (HASP) should be updated to account for the Centers for Disease Control and Prevention (CDC) COVID-19 guidelines, including consideration for best practices related to social distancing and personal protective equipment (PPE).

Evaluating Potential Applicability of the Guidance

Because EPA’s guidance will be applied on a case-by-case basis, parties should carefully review both the guidance and the specific cleanup obligations associated with their sites with environmental legal counsel. These obligations may be affected by the type of cleanup at issue, the location and potential risks associated with the site, and the terms of any consent decree, order or settlement applicable to the site.

If compliance with ongoing cleanup obligations has been affected by the COVID-19 pandemic, effective and timely communication with EPA and other applicable agencies will be critical in developing an appropriate response and ensuring continued compliance with enforceable requirements. A proactive approach to dealing with potential compliance obligations at cleanup sites could also be beneficial in many situations. Parties should closely monitor ongoing developments, as the response to COVID-19 continues to evolve on the federal, state, tribal and local levels, and conditions affecting the compliance at each site may change.

The Environment and Energy attorneys of Pepper Hamilton and the Environmental and Natural Resources attorneys of Troutman Sanders are uniquely positioned to assist parties in evaluating these complex issues and working with regulators during this challenging time.