U.S. EPA Issues Interim Guidance on Site Field Work Decisions Due to COVID-19

On Friday, April 10, EPA OLEM Assistant Administrator, Peter Wright, and OECA Assistant Administrator, Susan Bodine, jointly issued guidance to EPA regions regarding continuation of response field activities in light of challenges presented by the COVID-19 situation.

The guidance applies to response activities under the following programs and supplements a more general “Considerations and Posture” document issued on March 19 by the OLEM:

• Superfund (CERCLA)
• RCRA corrective action
• TSCA PCB cleanup
• Oil Pollution Act
• Underground Storage Tank
• Emergency Response

The guidance states that the EPA will continue to make decisions on a case-by-case basis consistent with two priorities:

• Protecting health and safety of the public, as well as maintaining the health and safety of EPA staff and cleanup partners
• Maintaining the EPA’s ability to prevent and respond to environmental emergencies or in any situation necessary to protect public health and welfare and the environment

The regions are instructed to evaluate and periodically re-evaluate ongoing response work at sites in light of the ongoing COVID-19 limitations, especially in areas where federal, state, tribal, or local health declarations are in effect.

The guidance advises parties who believe performance of their obligations may be delayed due to COVID-19 restrictions to first consult the applicable enforcement instrument, including terms providing for adjustments to schedules, including Force Majeure provisions. The EPA expects to be able to make site-specific determinations under these instruments promptly.

Among the reasons regions might decide to reduce or suspend response actions at particular sites are (but not limited to):

• State, tribal or local health officials have requested particular site operations or types of operations be suspended
• Any site workers have tested positive for or exhibited symptoms of COVID-19
• Sites where there may be close interaction with high risk groups or those under quarantine
• Sites where contractor field personnel are not able to work due to travel restrictions or medical quarantine
• Other sites where social distancing is not possible

Factors that the regions should consider in making site-specific work decisions include:

• 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
• Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months
• Whether work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling

Importantly, the guidance states that non-field site work should continue to the extent practicable. This can include using remote workstations and/or virtual meetings to make progress on investigation reports, modeling, negotiations between parties, decision documents, cleanup documentation workplans, progress reports, and other activities. The EPA recognizes that some off-site work can also be impacted because supporting resources, such as laboratories and equipment, may not be available or may be diverted to other uses due to COVID-19.

For further information, please contact any member of Honigman’s Environmental practice group.