The EPA’s regional offices are reducing or suspending some cleanup work at Superfund sites as a result of the Covid-19 pandemic.
The Environmental Protection Agency issued guidance on Friday specific to Superfund cleanup actions. The agency’s regional offices have decided, and may continue to decide, to slow or stop some work because of social distancing restrictions, travel restrictions, and ill employees, the agency said in its memo.
“This guidance will allow us to keep workers and the residents in these communities safe while also being able to respond to any emergency that may present an imminent danger to the public health or welfare,” EPA Administrator Andrew Wheeler said in a news release.
Bill Ford, partner at Lathrop GPM LLP in Kansas City, Mo., said at some of the sites he’s working on delays have already occurred because of Covid-19. Taking samples in the field has been delayed, and in one instance contractors under shelter-in-place restrictions didn’t feel comfortable traveling to a site, he said.
“What I’ve found so far is the companies, contractors, and the agency have been very sensitive to health concerns,” Ford said. The guidance seems to be a “common sense policy.”
In areas overwhelmed by the virus, such as New York, this guidance may prove especially useful, Eric Boyd, partner at Thompson Coburn LLP in Chicago, said.
“In those harder hit areas, the ones where there are Covid-19 ‘epicenters,’ if you will, there will be more cause for concern,” he said.
‘Somewhat of a Slowdown’
Worker health and safety has been a top priority for employers during the coronavirus pandemic, said Bart Seitz, senior counsel at Baker Botts LLP in Washington. Seitz works with clients on Superfund issues.
“It’s been somewhat of a slowdown just in part because companies and contractors want to be more circumspect and cautious with their personnel,” he said.
At some sites, delays have started in the past week, but it’s unclear when work can resume, Ford said.
The process for getting cleanup work back on schedule after the pandemic isn’t clear in the EPA’s memo, Kimberly Bick, partner at Bick Law LLP in Newport Beach, Calif., said.
“I think that’s the biggest issue, which they don’t really address, but they do leave room for that discussion,” she said.
The memo released Friday incorporates guidance for multiple types of environmental cleanup, including cleanup under the Resource Conservation and Recovery Act, the Oil Pollution Act, the Underground Storage Tank program, and the polychlorinated biphenyl cleanup program under the Toxic Substances Control Act.
“EPA’s interim guidance generally reflects best practices that the agency has already implemented at several Superfund sites,” said Doug Arnold, partner at Alston & Bird LLP’s Atlanta office.
But, he said, “it will help ensure more uniformity, as well as be a valuable reference for implementing similar measures at the state level.”
The EPA released a similar memo March 29, describing its enforcement discretion policy under other statutes as a result of the pandemic. The agency recommended regulated parties “act responsibly” and comply with regulations as much as possible, but also document violations caused by the pandemic.
Acts of God
Under Superfund, cleanup agreements typically include a “force majeure” section that requires the settling party, often a company, to notify the agency of a circumstance out of its control that may cause a delay. The settling party also must explain what will be delayed and how long it might last.
In its memo, the EPA said it “intends to be flexible” with the timing of those notices.
Force majeure is typically invoked for natural disasters, said Stephanie Feingold, partner at Morgan, Lewis & Bockius LLP in Princeton, N.J.
“It’s the type of thing you typically see for a hurricane or a tornado, where you know exactly what it is,” Feingold said. “In the present situation, it’s a lot more nebulous because it’s more widespread, and it’s unclear how long it will last.”
Invoking force majeure at a site doesn’t waive the settling party’s liability or its responsibility to meet agreed-upon cleanup standards.
The agency will determine, on a case by case basis, whether to modify a party’s obligations at a site, the memo said.
Environmental cleanup is mostly considered essential work in states with executive orders limiting certain activities and businesses.
The stream of paperwork necessary for cleanup also continues, and has mostly transitioned to electronic communications, attorneys working with Superfund clients said.
“For paper issues in general, we’ve not been slowed down, but for on-site work that requires boots on the ground, we either have been or may [be delayed],” Ford said.
With the range of sizes and types of companies involved at Superfund sites, transitioning to remote work hasn’t been smooth for everyone, John Gullace, partner at Manko, Gold, Katcher & Fox LLP in Bala Cynwyd, Pa., said.
“Everyone I’m dealing with is trying to work remotely at this point, but we’re not all equally set up to do that,” he said. “My feeling is, everyone needs to be flexible and reasonable with each other during this time, and this goes for regulators and the community.”
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