USEPA Issues Interim COVID-19 Guidance for Environmental Cleanup Site Field Work Decisions
Energy, Environment & Natural Resources 04/27/20 George J. Marek, Cynthia A. Faur, Jacqueline M. Vidmar, Lauren R. Harpke, Michael S. Mostow, Jeremy A. Lite
Stay at home orders and public health directives have impacted almost every aspect of the American economy, including ongoing remediation activities at contaminated properties. While actions taken to address contaminated soil, surface water, and groundwater are important and often mandated through consent agreements or federal orders, the timeframe for and manner in which this work is undertaken must now be balanced with the public health risks posed by the COVID-19 virus. On April 10, 2020, EPA issued Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 (the Interim Guidance) to assist federal decision-makers when evaluating whether field activities under EPA-led cleanup programs, including Superfund and RCRA Corrective Action, should continue or be suspended. This Interim Guidance proposes a case-by-case decision-making structure that balances competing risks of COVID-19 and the environmental contamination subject to cleanup obligations.
The Interim Guidance
The Interim Guidance only applies to sites where EPA is the lead agency, including:
- Superfund cleanup sites
- RCRA Corrective Action sites
- Toxic Substance and Control Act (TSCA) PCB Cleanup sites
- Oil Pollution Act Spill Response sites
- Underground storage tank (UST) program action sites
Under this guidance, EPA will decide whether field work at sites should remain unchanged, be put on hold, or delayed due to the COVID-19 pandemic on a case-by-basis. In reaching a decision, EPA will consider a variety of factors and the following two main priorities:
- Protecting public health and safety, as well as maintaining the health and safety of EPA staff and cleanup partners. EPA states that adherence to federal, state, tribal, or local health declarations and restrictions due to COVID-19, to the extent possible, is integral to the protection of health and safety.
- Maintaining EPA’s ability to prevent and respond to environmental emergencies, or in any situation necessary to protect public health and welfare and the environment.
EPA remediation personnel will evaluate, and periodically re-evaluate, the status of ongoing response work and the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners. During these evaluations, EPA will consider:
- Whether maintaining any response actions would lead to reduction in human health risks/exposure within the ensuing six months; and
- 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
EPA has stated that field work that would not provide near-term reduction in human health risk will be strongly considered for suspension or rescheduling. Per the Interim Guidance, scenarios that likely warrant (or already have warranted) the pausing of site field work include those where:
- State, tribal, or local health officials have requested particular site operations, or type of operations that would pertain to particular sites, be suspended;
- Site workers have tested positive for or exhibited symptoms of COVID-19;
- Work may involve close interaction with high risk groups or those under quarantine, such as work inside residences;
- Contractor field personnel are unable to work due to state, tribal, or local travel restrictions or medical quarantine; and
- Social distancing is impossible at the site
While the Interim Guidance on its face is only applicable to those sites that are led by EPA, similar concerns are likely at state-led remediation sites. Thus, the Interim Guidance encourages the EPA regions to share this guidance with states.
Considerations for Responsible Parties
The Interim Guidance primarily concerns EPA decision-making criteria, but it also provides helpful guidance for private potentially responsible parties (PRPs) conducting site remediation, who believe that COVID-19 restrictions may delay their performance of legally enforceable obligations.
- PRPs who are doing work under a federal Consent Decree or Administrative Order should follow the requirements in the Decree or Order that allow adjustments to the field work schedule or that relate to force majeure events. Per the Interim Guidance, EPA intends to be flexible regarding the timing of notices required by Decrees and Orders.
- PRPs should reach out to their EPA Project Manager to discuss status of the field work at the site and any potential delays. Even if work can currently be safely done, open communication with EPA now will be helpful should COVID-19 delays occur in the future. PRPs should continue to communicate during a work delay concerning the logistics for resuming field work when it is safe to do so.
- Site work that can be done remotely, such as preparation of investigation reports, modeling, work plans, and cleanup documentation, should continue as should negotiations between the parties. PRPs should also continue to maintain appropriate financial assurance.
As noted above, this Interim Guidance does not address work at state-led remediation sites. PRPs at such sites should contact their state project manager to discuss how COVID-19 could impact field work at non-federal remediation sites. This guidance also does not address environmental obligations at manufacturing facilities. EPA addressed these issues through its March 26, 2020 temporary enforcement discretion policy. Additional information regarding the March 26, 2020 EPA guidance can be found here.
Find Answers to COVID-19 Issues, Impacts and Recommendations from Quarles & Brady.
If you have questions about the impact of the Interim Guidance on your specific environmental remediation site, please contact your Quarles & Brady attorney or:
- George J. Marek: (414) 277-5537 / [email protected]
- Cynthia A. Faur: (312) 715-5228 / [email protected]
- Jacqueline M. Vidmar: (312) 715-5199 / [email protected]
- Lauren R. Harpke: (414) 277-5183 / [email protected]
- Michael S. Mostow: (312) 715-5158 / [email protected]
- Jeremy A. Lite: (520) 770-8739 / [email protected]