On Friday, April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued interim guidance to its regional offices on when to conduct, reduce, or pause field work at remediation and emergency response sites.  The Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 applies to response sites where EPA is the lead agency or has direct oversight of or responsibility for the work being performed, including sites subject to federal Superfund, Resource Conservation and Recovery Act (RCRA) corrective action, Toxic Substance and Control Act, Underground Storage Tank, and Oil Pollution Act programs, among others.

This guidance follows EPA’s March 26, 2020 enforcement guidance that explicitly excluded Superfund and RCRA sites, which we wrote about here.

EPA emphasizes that all decisions will be made on a case-by-case basis.  The agency will prioritize the protection of public health and safety, including that of EPA staff and other cleanup workers, by adhering to public health declarations and restrictions to the extent possible.  However, EPA provides that maintaining its ability to prevent and respond to emergencies or other situations requiring the protection of public health and the environment is also a critical priority.

General Guidance on whether to Start or Continue Cleanup Work

EPA guides regions to evaluate whether site work should continue in areas where COVID-19 health declarations are in effect, and to consider suspending work and securing sites in those areas until the public health threat in that location is resolved.  In all cases, including where cleanups are taking place in areas where there is no public health declaration restricting or prohibiting such work, regions should consider factors such as:

  • availability and safety of work crews and agency staff
  • the critical nature of the work
  • transportation, travel restrictions, and other logistical challenges
  • pre-construction, construction, and post-construction activities
  • other site-specific factors

For any work that will commence or continue, health and safety plans (HASPs) must be reviewed and modified to ensure they meet CDC and other COVID-19 guidelines.

EPA is clear that any decision to pause or extend work does not amend or supersede an enforcement instrument, and any notice or extension procedure under such instrument should be followed, including notices under force majeure clauses or provisions permitting schedule adjustments.  EPA provides that it intends to be flexible with respect to timing of notices made pursuant to such provisions.

Site-Specific Considerations for Proceeding with Cleanup Work

EPA offers several site-specific factors for regions to consider when determining whether site work should continue, be reduced, or put on hold, including:

  • Whether failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is practical to continue such actions. This may include sites with an ongoing threat of imminent acute/direct human exposures, or pose an imminent threat to public health, welfare, and the environment (e.g., exposure to lead, arsenic, PCBs, asbestos, or contaminated drinking water; vapor intrusion risks; and disposal of waste materials that may create an imminent safety issue if not removed).
  • Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months. Examples include vapor intrusion investigations, work to reduce exposure at residential sites, and addressing drinking water impacts.
  • Whether 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 HASPs as appropriate. This work may include routine sampling events, periodic monitoring, active remediation of stable groundwater plumes, and field sampling for remedial investigation/feasibility study or RCRA facility investigation work.

EPA expects that any work to advance cleanups that can be done remotely, such as preparing reports and workplans, modeling, negotiating among parties, and complying with financial assurance requirements, to continue as usual.  EPA also acknowledges that non field-work activities may be delayed due to reduced capacity of supporting operations (e.g. laboratories, access to equipment).  If such a delay will impact a responsible party’s ability to meet cleanup obligations, the party should consult its enforcement instrument for applicable notice procedures.

It appears that COVID-19 restrictions have already impacted site work.  In its April 10, 2020 press release, EPA reported that as of the beginning of April, it has “reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions,” due to COVID-19.

Cole Schotz P.C. Environmental Attorneys are available to address any questions you may have on EPA’s interim policy, or any environmental impacts to your business as a result of COVID-19.  We will continue to provide updates as the situation evolves.


 

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

On April 8, 2020, New Jersey Governor Murphy issued Executive Order 122 (EO-122) mandating, among other things, that all “non-essential” construction projects cease by 8:00 PM on Friday, April 10.  Details on the types of projects that are considered “essential” and can therefore continue, subject to social distancing and other precautions to help avoid the spread of COVID-19, are available here.

With respect to environmental cleanups, New Jersey is following New York’s lead, where remediation projects are allowed to continue notwithstanding the state’s restrictions on construction work.  All such remediation work in New Jersey is subject to the safety requirements described more here.

More specifically, EO-122’s definition of “essential construction projects” includes “[a]ny work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project…”

With this as the only reference to remediation work in EO-122, it appears “remediation” is not being considered “construction” and the intent here is to simply clarify that work required to “remediate a site” can continue, even at “non-essential” construction projects.

The New Jersey Department of Environmental Protection (NJDEP) is expected to issue guidance on EO-122 shortly, as well as announce extensions to certain remediation deadlines in response to COVID-19.  We will continue to provide updates as new developments occur.

Cole Schotz, P.C.’s Environmental Attorneys are available to discuss any questions you may have about EO-122 or any subsequent NJDEP guidance and any potential impact on your business, operations, transactions, or ongoing construction or remediation projects.


 

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

The regulated community received some clarity from the New York State Department of Environmental Conservation (NYSDEC) this week on whether activities to respond to, investigate, and remediate contamination are “essential” in the wake of recent Executive Orders restricting the operation of non-essential businesses and construction work in New York State.

In the guidance, NYSDEC declares as “essential” the following cleanup activities:

  • Remedial construction activities, including new construction starts, at sites that NYSDEC has determined pose a significant threat to public health and/or the environment, including Class 2 sites on the Registry of Inactive Hazardous Waste Disposal Sites and significant threat sites in the Brownfield Cleanup Program;
  • Completion of remedial construction already under way at non-significant threat sites as necessary to ensure site safety and prevent exposure to site contaminants, including completion of site cover systems;
  • Operation and maintenance activities for active remedial systems that are necessary for the continued protection of human health and the environment;
  • Interim remedial measures to address imminent human exposures and/or threat of significant contaminant migration;
  • Spill response actions; and,
  • Investigation, including pre-design investigations, of petroleum and hazardous waste releases as determined by NYSDEC on a case-by-case basis to be necessary to address potential human exposures and/or threat of significant contaminant migration.

In all cases, social distancing practices must be followed to the extent possible, and all activities must be performed in compliance with Department of Health guidance and directives.

In addition to this guidance, NYSDEC has also provided that it will grant extensions, on a case-by-case basis, to the execution of brownfields agreements and amendments, and is accepting electronically-signed agreements and amendments at this time.  NYSDEC will determine at a later time whether it will require originals to be issued thereafter.

Cole Schotz, P.C.’s Environmental Attorneys are available to discuss any questions you may have about the NYSDEC guidance and any potential impacts on your business.

The U.S. Environmental Protection Agency (EPA) has announced that it will temporarily exercise enforcement discretion, retroactive to March 13, 2020, in response to certain facility and operational non-compliance situations resulting from the COVID-19 pandemic.

EPA’s policy applies to noncompliance situations that generally fall in the realm of routine monitoring and reporting; settlement agreement and consent decree reporting obligations and milestones; failure of control or treatment equipment; and hazardous waste generation and disposal.

It is important to note that this policy does not relieve any party from the obligation under federal law to prevent, respond to, and report accidental discharges and releases of oil, hazardous substances, and other pollutants. This policy also does not apply to criminal enforcement for intentional violations of the law.

To qualify for enforcement discretion under the EPA’s temporary policy, companies must take specific steps, including but not limited to:

  • Make every effort to meet environmental compliance obligations. If compliance is not reasonably practicable, then act responsibly to minimize the effects and duration of noncompliance. Also, document the noncompliance and how COVID-19 was the cause. For noncompliance situations not specifically addressed in the policy, EPA will look at whether these measures were taken to determine if enforcement discretion is appropriate.
  • Use existing procedures for reporting noncompliance related to routine compliance monitoring and reporting. If reporting is not reasonably practicable, then maintain the information internally and make it available to EPA or the authorized state upon request. EPA does not expect to seek penalties for routine compliance monitoring and reporting but expects full compliance after the policy is terminated. EPA also does not plan to ask facilities to “catch-up” with missed monitoring or reporting for intervals of less than three months.
  • Provide digital or electronic signatures on required paper submissions. EPA will not consider the inability to obtain a “wet” signature as justification for failing to make a submission.
  • Use notice provisions, including notification of a force majeure, under administrative settlement agreements and consent decrees if enforceable milestones will be missed. EPA will coordinate with the U.S. Department of Justice to exercise enforcement discretion for stipulated penalties under judicially enforceable consent decrees.
  • Contact the appropriate governmental authorities if facility operations impacted by COVID-19 may create an acute risk or imminent threat to human health or the environment. EPA plans to focus its resources largely on situations that may result in acute risk or imminent threat to human health or the environment.
  • Provide notification as quickly as possible of the failure of air emission control or waste water treatment systems, or other facility equipment that may result in exceedances of enforceable limits. Companies should detail in the notice the duration, timing, and identity of pollutants discharged or released as a result of the failure.
  • Continue to properly label and store hazardous waste, for hazardous waste generators that cannot transfer waste off-site within the regulatory time period. If these steps are met, EPA will not treat generators as treatment, storage, and disposal facilities, and will allow companies to maintain their current generator status even if regulatory volume thresholds are exceeded.

More information on EPA’s temporary policy can be found here.

Cole Schotz P.C. Environmental Attorneys are available to address any questions you may have on EPA’s temporary policy or on environmental law impacts to your business as a result of COVID-19. We will continue to provide updates as the situation evolves.

The New York State Department of Environmental Conservation (NYSDEC) just released its new Guidance for Sampling and Analysis of PFAS Under NYSDEC’s Part 375 Remedial Programs January 2020.  Click here for background about PFAS chemicals and why regulators are taking action.

The guidance provides sampling protocols for PFAS in soils, sediments, solids, monitoring wells, surface water, private water supply wells, and in fish.  With protocols for so many forms of environmental media, this is another step in the direction of regulators moving towards site remediation requirements and expanding well beyond their initial focus on PFAS impacts in drinking water.

Along those lines, last year the NYSDEC issued broad-sweeping guidance requiring all sites in the state cleanup program to sample for PFAS in soil, groundwater, surface water, sediment, and, where applicable, biota.  Click here for more details from my partner Jill Richardson’s blog about this expansion of sampling requirements.

All future work plans for investigation and remediation at sites in the state cleanup program should now include these new PFAS sampling and analysis procedures.  Furthermore, PFAS analysis must now be included whenever samples are being analyzed for the standard Target Analyte List/Target Compound List.  Appendix G of the new guidance lists 19 of the more than 3,000 types of PFAS chemicals, including the most commonly known PFOA, PFOS, and PFNA.

New York has not established cleanup standards for any of the PFAS chemicals yet, so the scope of impact is still unclear.  The expansive PFAS sampling requirement does, however, have the potential to significantly impact cost, timing, and complexity of ongoing site investigations and remediation projects, as well as due diligence.

In the big picture, this is yet another move by a state agency in the march towards regulation of PFAS in remediation cases.  Stay tuned as we continue to monitor developments in New York and other states, as well as actions on the federal level.  Here is EPA’s press release from earlier this month announcing its plans to “aggressively” address PFAS through several regulatory and other actions.  2020 promises to be an active year for PFAS.