Phase I Environmental Site Assessments –COVID-19 Challenges.
COVI-19 restrictions have created challenges for conducting Phase I Environmental Site Assessments (ESA) :
• Environmental consulting companies have adopted site inspection, social distancing, travel and lodging restrictions to minimize risks to their employees and may require information from the property owner to assess COVID-19 exposure and precautions, such as any known COVID-19 cases.
• Records may not be available such as governmental records and historical city directories.
• Owners of sites may prohibit or restrict inspections.
The Phase I ESA requirements include a process to address data gaps, such as the inability to conduct a site visit or obtain governmental records, by requiring the Environmental Professional (EP) to follow the data gap process:
• Identify data gaps that affect the ability of the EP to identify Recognized Environmental Conditions (RECs).
• Identify sources of information consulted to address the data gap.
• A data gap is only significant if other information and/or professional experience raises reasonable concerns involving the data gap.
Potential buyers and tenants obtain Phase I ESAs to identify and assess any environmental conditions that may require remediation or mitigation, and to qualify for landowner liability protections. A potential buyer or tenant needing an environmental site assessment, but facing COVID-related challenges, may want to consider the following alternatives, depending on the circumstances, timing, cost, and the purpose of site assessment:
• Phase I ESA, addressing any data gaps.
• Desktop review.
• Environmental Transaction Screen.
EPA Issues Temporary COVID-19 Environmental Guidance Documents.
The United States Environmental Protection Agency (EPA) issued a temporary policy memorandum on March 26, 2020: COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. This memo outlines temporary guidelines for loosening environmental compliance obligations and enforcement discretion at facilities permitted by EPA. In general, EPA states that it will exercise reasonable discretion to forego civil enforcement if the regulated entity acts responsibly and is making good faith, reasonable decisions. The COVID-19 public health emergency will take precedence over the enforcement of environmental regulatory obligations that do not present acute danger to public health or the environment, such as monitoring, testing, sampling, training, and reporting, and compliance certifications. https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf
Highlights of EPA Temporary Policy:
• Regulated entities should comply with environmental compliance obligations if reasonably practicable. The pandemic may limit the ability of a regulated entity to perform routine compliance monitoring, tank integrity testing, sampling, laboratory analysis, training, and reporting or certification.
•Regulated entities should analyze any environmental compliance challenges caused by COVID-19 and document the analysis, decisions, and notices.
• If a compliance challenge could create an acute risk or imminent threat to human health or the environment, the regulated entity should contact EPA or authorized state or tribe.
• EPA has heightened expectations for public water systems and expects operators to continue normal operations, maintenance, and sampling to ensure the safety of drinking water.
• Regulated entities should take reasonable measures to resume compliance activities as soon as possible.
• EPA will provide 7 days’ advance notice before terminating the policy.
• Regulated entities should follow COVID-19 enforcement policies adopted by authorized states or tribes.
• This policy does not apply to activities under Superfund or RCRA Corrective Action enforcement instruments. These matters are addressed by EPA’s April 10, 2020 policy summarized in the following paragraph.
EPA issued Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19on April 10, 2020. This guidance applies to cleanup and emergency response sites where EPA is the lead agency or has direct oversight of or responsibility for the work performed. https://www.epa.gov/sites/production/files/202004/documents/interim_guidance_on_site_field_work_decisions_due_to_impacts_of_covid.pdf
Decisions on continuing, reducing or pausing fieldwork will be made on a case-by-case basis, based on:
• site-specific factors such as travel restrictions, social distancing, medical quarantines;
• whether failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment;
• whether maintaining response actions would lead to a reduction in human health risk or exposure within 6 months; and
• whether work that would not provide a near-term reduction in human health risk could be more strongly considered for the delay, suspension, or rescheduling.
Utah DEQ Issues Temporary COVID-19 Environmental Enforcement and Compliance Guidance. In coordination with EPA’s memo issued March 26, 2010, on COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, the Utah Department of Environmental Quality (DEQ) recently issued separate guidance memos for each of its regulatory divisions. https://deq.utah.gov/communication/news/epa-calls-for-enforcement-and-compliance-discretion-during-the-covid-19-pandemicEach guidance memo states that DEQ will implement the EPA guidance memo as applicable to DEQ’s environmental regulatory programs, in response to a demonstrated need for regulatory relief. DEQ will exercise enforcement discretion for violations during the pandemic where a good faith effort to comply is demonstrated and documents. Each guidance memo is specific to the regulatory division and addresses:
• General requirements for inspections, administrative relief requests, documentation, compliance, permitting, reporting, planning, certifications, and electronic submissions and payments.
• Requirements for specific types of facilities or permits.
Regulated entities should contact DEQ with any questions about how EPA’s memo will affect their compliance with environmental protections during the COVID-19 pandemic.
Other states have issued similar guidance documents.
For additional information, please contact a member of the Jones Waldo Environmental Practice Group
Lucy B. Jenkins