By Patrick Paul, Chris Colyer and Michael Ford
On April 10, 2020, the U.S. EPA published “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19.” Directed specifically to the Agency’s Regional Administrators, the interim guidance was issued for response actions related to cleanup and emergency response sites where EPA is the lead agency or otherwise has direct oversight. EPA’s interim guidance is to be used for response actions under the federal Superfund program, the Resource Conservation and Recovery Act , Toxic Substances Control Act, the Oil Pollution Act, and the Underground Storage Tank program.
The Agency’s interim guidance recommends that its Regions adopt a case-by-case approach in consultation with other EPA offices when deciding whether response field work will continue or whether a site will be secured until the COVID-19 threat has dissipated. More particularly, the Regions are directed to evaluate, and periodically re-evaluate, the status of ongoing response work at sites and the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners.
COVID-19-impacted parties who anticipate a delay in the performance of required obligations are directed to consult the “applicable enforcement instrument,” including, specifically, any provisions that might allow for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions which, to the extent available will be interpreted with regulatory flexibility. The interim guidance notes that any formal determination on whether a given situation constitutes force majeure or might require additional response will be site-specific and further will depend on the type of work impacted by COVID-19.
With respect to site-specific work decisions, EPA Regions are required to consider the following factors:
- Whether failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment;
- Whether maintaining any response actions would lead to a reduction in human health risk/exposure over the next six months; and
- Whether work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling, including periodic monitoring, routine and/or field sampling and active remediation of otherwise stable conditions.
EPA notes that when site work may be suspended pursuant to interim guidance, “continued vigilance and communication” is vital. Once a decision has been made to temporarily reduce or suspend fieldwork, Regions should continue to monitor site conditions and anticipate a resumption of fieldwork as soon as appropriate.