USEPA Issues Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19

Environmental Law  

April 13, 2020

Downey Brand COVID-19 News and Updates

On April 10, 2020, the United States Environmental Protection Agency (“USEPA”) issued Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 (“Interim Guidance”). USEPA’s Interim Guidance applies to cleanup and emergency response sites under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the Resource Conservation and Recovery Act (“RCRA”), the Toxic Substances Control Act (“TSCA”), polychlorinated biphenyl (“PCB”) cleanup provisions, the Oil Pollution Act (“OPA”), and the Underground Storage Tank (“UST”) program where USEPA is the lead agency or has direct oversight or responsibility for the work being performed. Although the Interim Guidance states that USEPA will make decisions about continuing, reducing, or temporarily pausing on-site activities in light of the COVID-19 pandemic on a case-by-case basis, including in relation to decisions based on requests from outside parties such as state agencies or property owners, USEPA intends to prioritize protecting the health and safety of the public, USEPA staff, cleanup partners, as well as maintaining USEPA’s ability to prevent and respond to environmental emergencies.

The Interim Guidance provides several broad-level situations where USEPA Regions have decided (and may continue to decide) to reduce or suspend response actions at a particular site:

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

Separately, the Interim Guidance sets forth several detailed site-specific factors for Regional managers to consider when making decisions on whether to reduce or suspend response actions, including, but not limited to:

  • 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 month.
  • 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 Health and Safety Plans (“HASPs”) as appropriate.

Also note that the Interim Guidance encourages Parties who believe that COVID-19 restrictions may delay their performance of obligations to consult the applicable enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of USEPA’s project manager and/or force majeure provisions. Again, such modifications to a party’s performance obligation will be made on a case-by-case basis, but the Interim Guidance anticipates this scenario.

Finally, to the extent it is possible, the Interim Guidance states that non-field site work should continue. In addition, the Interim Guidance specifies that where a decision is made to temporarily reduce or suspend response action work, Regions should continue to monitor site conditions and plan the logistics for resuming field work when appropriate.

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