U.S. EPA Issues Interim Guidance On Site Field Work In Times Of COVID-19

As the U.S. Environmental Protection Agency (EPA) continues to calibrate its response to COVID-19, the agency issued interim guidance on how to conduct environmental cleanups in light of the ongoing pandemic.  The guidance applies to cleanups under CERLCA, RCRA, the Toxic Substances Control Act, the Oil Pollution Act, and the Underground Storage Tank program.

The interim guidance does not provide any blanket work stoppage, nor does it toll any deadlines.  Rather, it provides that the EPA continues to make decisions about continuing, reducing, or pausing on-site activities on a case-by-case basis.  Those decisions will be made consistent with the following priorities: (a) protecting public health and safety, and maintaining the health and safety of EPA staff and cleanup partners, which includes adhering to federal, state, tribal, or local health declaration and restrictions to the extent possible; (b) 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.

Regions are directed to evaluate and re-evaluate the status of ongoing response work at sites and the possible impact of COVID-19.  Especially in areas where state or local governments have enacted restrictions, Regions should consider whether to continue site operations or, instead, secure a site until the public health threat that gave rise to the restrictions is abated.  In areas where there are no health declarations that prohibit or discourage on-site response actions, the interim guidance provides that on-site response actions may start or continue.  However, in deciding whether to start or continue work, Regions must weigh a variety of other factors, such as:

–       The safety and availability of work crews, EPA, state or tribal staff;

–       The critical nature of the work;

–       Logistical challenges (e.g., transportation, lodging, availability of meals, etc.); and

–       Other site-specific factors.

If a Region decides those factors allow work to start or continue, the Region must review and modify, as appropriate, a response action’s health and safety plan to ensure it accounts for COVID-19 guidelines from federal, state, and local authorities, including any potential virus transmission into or across areas. Where work is temporarily halted, Regions should continue to monitor site conditions and plan the logistics for safely resuming field work as soon as appropriate.

The EPA directs parties who believe COVID-19 related restrictions may delay their performance of cleanup obligations to consult the applicable enforcement instrument, which may allow adjustments at the EPA’s discretion or for force majeure.  A footnote in the interim guidance indicates that the EPA intends to be flexible regarding timing to the extent allowed by applicable agreements.  Modification of parties’ responsibilities may be available on a case-by-case basis.

Hopefully, the EPA’s flexibility will prevent unnecessary disputes regarding the effect of COVID-19 on environmental cleanup operations and allow parties to fulfill their obligations without endangering public health and safety or the environment.