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Law360 (April 27, 2020, 5:46 PM EDT) --
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| Kimberly Bick |
It is a followup to the EPA's memorandum of March 27, "COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program," which did not cover CERCLA and RCRA response actions and enforcement actions.
Case-by-Case Decision Making
The EPA issued the interim guidance for response actions related to cleanup and emergency response sites, including Superfund and RCRA sites, where the EPA is the lead agency or has direct oversight of or responsibility for the work being performed, including sites where work is being conducted by the EPA, states, tribes, other agencies of the federal government and other parties, including potentially responsible parties.
The new guidance provides details on factors that will be considered by the EPA when determining whether to allow delays, suspensions or rescheduling of response actions. The bottom line is that responsible parties will be required to proactively request such consideration, following the terms of the applicable enforcement instrument (consent decree, consent order, settlement agreement, corrective action agreement or order, closure permit, etc.).
The EPA will make decisions on a case-by-case basis, balancing the health risk to workers exposed to COVID-19 as a result of performing the response action, and the imminent and substantial endangerment or acute threat to human health that may be caused if the response action is not performed on schedule.
Work at the response action sites, or travel to the sites, must take into account COVID-19 travel restrictions by state, health and safety regulations, and access to personal protective equipment and lodging. The same considerations must be taken into account for responses to releases or substantial threats of releases into the environment of chemical, oil or other hazardous materials/substances, as well as pollutants or contaminants that may present an imminent and substantial danger to the public health or welfare.
There is tension in the guidance that can only be resolved by weighing the risks on a case-by-case basis, which the guidance allows. The guidance specifically states that "factors should not be considered in a manner that would override protection against unnecessary potential exposure to COVID-19," suggesting that the health risks of COVID-19 take priority.
On the other hand, it also states that decisions to suspend or delay response actions "do not operate to supersede or amend enforcement instruments."
Prioritizing Work Providing Near-Term Reduction in Human Health Risk (E.g., Vapor Intrusion Sampling)
Site work "that would not provide near-term reduction in human health risk" may be delayed, suspended or rescheduled upon request by the performing parties. Work that provides "near-term reduction in human health risk" (for example, vapor intrusion investigations that could lead to a reduction in human health risk/exposure within six months) may move forward.
The EPA will weigh the two risks — COVID-19 and near-term human health impacts — in each case before deciding if a delay in work is acceptable. But weighing those risks will not be simple.
Using vapor intrusion remediation as an example, if vapor intrusion sampling would provide "near-term reduction in human health risk within the next six months for household residents," then the interim guidance suggests that such sampling should not be suspended or delayed.
However, the guidance also directs EPA regions to reduce or suspend response actions at sites that require "close interaction with high risk groups or those under quarantine, such as work inside homes" and "at other sites where social distancing is not possible," which would include vapor intrusion sampling in homes. Again, the internal tension requires a balancing act that the EPA will conduct on a case-by-case basis.
Many Superfund sites, particularly in California, are investigating the vapor pathway, as a result of the California State Water Resources Board's regulation of contamination via vapor intrusion. This often requires indoor air quality monitoring in homes near Superfund sites.
Even without the COVID-19 scare, such sampling requires careful communication to manage the residents' anxiety related to perceived risks of exposure of air contamination that is associated with the sampling indoor air. If the EPA determines that such sampling must continue because the work "provide[s] near-term reduction in human health risk," the ongoing sampling could spawn heightened anxiety for the residents.
Additionally, the residents and the technicians sampling the indoor air will already be suffering from anxiety concerning possible exposure to COVID-19. Though decisions to suspend or delay such sampling will be implemented on a case-by-case basis, this is one area that could use immediate clarification by the EPA to alleviate the anticipated concerns of all parties during a time of national crisis.
Communicate, Communicate, Communicate … in Writing
Performing parties that believe COVID-19 will impact their ability to perform response actions at a site must communicate with EPA project managers about the status of their sites and associated field work, and any anticipated challenges and mitigation measures, including any request for suspension, delay or rescheduling due to COVID-19.
The EPA will promptly decide if a modification to a party's performance obligations is appropriate, depending on whether the obligation is affected by COVID-19, and the effect constitutes a force majeure. The party should look to the applicable enforcement document (consent decree or other) for directions on providing the requisite notice and other information to the EPA, including the timing of such notice.
RCRA Sites
For example, when a hazardous waste management unit stops receiving waste at the end of its active life, it must be cleaned up, closed, monitored and maintained in accordance with the Resource Conservation and Recovery Act closure and post-closure care requirements.
Post-closure care is required for land disposal units that leave waste in place upon closure (i.e., landfills, land treatment units, surface impoundments or any other hazardous waste management unit that cannot achieve the clean closure standards). These sites must monitor and maintain liners, final covers, leachate collection and removal systems, leak detection systems and gas collection systems to protect the surrounding environment and population from releases of hazardous constituents.
The standard post-closure care period is 30 years, which means there are many post-closure RCRA sites across the U.S. These sites are subject to monitoring requirements that may be impacted by COVID-19.
The EPA may assert that the monitoring is necessary to prevent an imminent and substantial endangerment under RCRA. This necessity will be balanced against the possible exposure to COVID-19. While the report preparation task alone may be possible in a virtual environment, the report will depend on in-person monitoring activities, which may not be feasible until the distancing requirements are lifted.
Other sites are subject to a RCRA corrective action plan. A CAP provides a site-specific schedule of compliance to be included in a permit or a corrective action order. The EPA may mandate certain actions despite the COVID-19 risk, such as interim/stabilization measures, necessary to control or abate threats to human health and/or the environment from releases and/or to prevent or minimize the further spread of contamination while long-term remedies are pursued.
Other tasks in the CAP may be able to wait until the COVID-19 pandemic is resolved to allow for in-person work again, including: RCRA facility investigations; corrective measures studies, to develop and evaluate corrective measure alternatives and to recommend final corrective measure(s); and corrective measures implementation, to design, construct, operate, maintain and monitor the performance of the corrective measures selected.
The interim guidance provides specifically that the following response actions will be considered by the EPA for delays due to COVID-19, upon request: periodic monitoring; routine sampling activities that typically are considered for five-year reviews or compliance with existing agreements; field sampling for RCRA facility investigation work; and active remediation of otherwise stable conditions.
Landfills, waste sites at facilities, confined animal feeding operations and many other types of facilities are regulated under the RCRA. All of these sites are subject to monitoring and reporting obligations, and some are subject to corrective action, that may be implicated by the interim guidance memo.
Superfund Sites
The 1,178 Superfund sites in the U.S., and the 48 proposed sites, 407 deleted sites and 1,134 completed sites, are in various stages of the Superfund cleanup process. The process includes: preliminary assessments; NPL site listings (identifying a site for remediation with EPA oversight); remedial investigation/feasibility studies, or RI/FS (characterization of sites and remediation options); records of decision, or ROD (selection of remedies); remedial designs, or RD; remedial action, or RA; construction completion; ongoing operation and maintenance, or O&M, and five-year reviews to evaluate ongoing effectiveness of the remedy; NPL deletion; and ultimately (hopefully) site reuse/redevelopment.
The RI/FS, RD, RA, construction and O&M require on-site, in-person activities, including sampling soil and groundwater, monitoring groundwater and surface water, soil excavation, and groundwater extraction and treatment. These activities may be delayed during COVID-19, depending on the EPA's evaluation of a performing parties' requests. Other activities, including hydrogeologic modeling, fate and transport modeling, and allocation advocacy may be able to continue virtually.
The interim guidance provides specifically that active remediation of stable groundwater plumes (not plumes that are expanding or migrating if they are not contained by the response action) may be considered by the EPA for suspension as a result of COVID-19, upon request. The question remains as to what is "stable," considering most groundwater is in a dynamic state.
The guidance does not address how the EPA should address contaminated sediment Superfund sites (e.g., rivers), which are, by their nature, always changing. The guidance will apply such that those activities that can be conducted virtually, should continue to be conducted, and those that require on-site in-person activity or in-person laboratory activity, may require communication with the EPA to determine if a suspension or delay is appropriate to protect workers from COVID-19 health risks.
The interim guidance states that parties should be able to continue negotiating allocations where there are multiple potentially responsible parties at a site, without meeting in person. In theory, that is true, but that is a naïve view of the allocation process. Most allocations involve technical data that parallels, if not relies heavily on, RI/FS, ROD, RD and RA processes.
Without data fully characterizing a site and the selected remedy (and cost of the remedy), potentially responsible parties cannot conduct an allocation that will be agreed upon by the parties and upheld in court. As a result, it is possible that the EPA will see delays in negotiated settlement agreements with groups of potentially responsible parties as a result of COVID-19.
What Justifies a Delay Due to COVID-19
The EPA will consider the following factors when considering if a COVID-19 delay is appropriate:
- There are emergency responses and time critical actions that are practical to continue.
- The site has an ongoing or a threat of imminent acute or direct human exposures that would compromise public health; if so, then the EPA will not be inclined to grant a delay or suspension. For example, providing alternative water supplies (e.g., bottled water, point of entry systems, replacement filters, etc.) to individuals who otherwise would be exposed to or consume contaminated drinking water, and protecting individuals from ongoing on-site exposures, such as lead, arsenic, other heavy metals, PCBs, asbestos, vapor intrusion, etc., will also be prioritized to continue. Prevention of exposures that pose an imminent threat to public health and welfare and the environment will also continue, if possible.
- The response action will prevent a catastrophic event (e.g., mine blowouts, breach of gyp stacks, sites with high probability of fire or explosion, etc.).
- The response action will prevent contaminated groundwater plume expansion that is reasonably likely to adversely affect drinking water sources (private or public), including continued operation of groundwater pump and treat systems. Presumably, the EPA will consider the immediacy of the adverse impacts to the drinking water source. At many Superfund sites with remedies involving extraction and treatment of groundwater with a drinking water end use, suspending or delaying the pumping could result in plume expansion (lack of containment) that could have a future adverse impact on drinking water wells.
- The response action will prevent releases to water bodies that are reasonably likely to adversely affect drinking water intakes or communities downstream, including treatment of acid mine drainage.
- The response action includes onsite security or activities that are necessary to prevent unauthorized access to sites for the safety of life and/or the protection of government property.
- The response action involves the disposal of materials offsite that create an imminent safety issue if not promptly removed (e.g., mine waste, chat, unsafe cylinders).
- The response action is necessary to stabilize in-process response actions to prevent unacceptable releases to the environment (e.g., deactivation and decommissioning of a former nuclear facility, soil excavation, partial closure of a landfill disposal cell).
- The response action would lead to a reduction in human health risk/exposure within the ensuing six months. As with several other factors, this factor could exist at virtually every site, depending on the level of reduction considered by the EPA to justify continuing the work, including vapor intrusion investigations, residential site work and drinking water work. It would be helpful if the EPA could quantify the extent of reduction in human health risk/exposure within six months that would result in prioritizing such response action work over the COVID-19 health risk.
The EPA interim guidance anticipates that work that can be conducted virtually will proceed without delay, despite COVID-19, including "investigation reports, modeling, negotiations between the parties, decision documents, cleanup documentation, workplans, progress reports, and maintaining compliance with obligations such as financial assurance" — unless the work "may be impacted because supporting operations (e.g. laboratories, equipment) and materials are unavailable or have been diverted to other uses in consideration of the national interests."
Conclusion
The key takeaway of this guidance, despite the internal tensions and the case-by-case decision making, is that "[p]arties who believe that COVID-19 restrictions may delay their performance of non-field related work should consult the procedures set forth in the applicable enforcement instrument." As always, communication is key.
Keep in mind the interim guidance applies to EPA actions, not state or tribal actions. The guidance directs the EPA to work with states and tribes and inform them of the guidance. Although the guidance seeks to create "national consistency," the implementation of the guidance will depend on state law, where states are implementing federal statutes.
Until there is a national stay-at-home order, the guidance will also depend on state stay-at-home or social distancing orders. In states where there are no such orders, the EPA will still consider the health impacts to its employees and to others when deciding whether to carry on in-person site activities. In states where there are stay-at-home orders in place, the EPA will comply with those orders; however, in most states, the EPA's activities would be deemed an "essential activity," leaving the EPA with the guidance to weigh when and how to proceed with site work in person.
As a reminder, this interim guidance is consistent with the March 15 announcement from EPA Administrator Andrew Wheeler that as of "Monday, March 16, all employees with a telework agreement across the EPA may, to the extent possible, begin teleworking at least through Friday, April 3." His action was affirmed on March 17 by an Office of Management and Budget memo directing that "[g]overnment must immediately adjust operations and services to minimize face-to-face interactions" during the COVID-19 pandemic.
Kimberly Bick is a founding partner at Bick Law LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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