April 15, 2020 Article

EPA Issues Interim Guidance for Decisions to Delay Field Work at Environmental Clean Up Sites Due to COVID-19

On Friday, April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 to all EPA Regional Administrators.  The interim guidance is available here.

The interim guidance outlines certain factors EPA Regional Offices should consider on a case-by-case basis when evaluating whether on-site response actions should continue, be reduced, or paused in light of the challenges posed by the COVID-19 situation.  The interim guidance applies to response actions related to cleanup and emergency response sites where EPA is the lead agency or has direct oversight of or responsibility for the work being performed, which includes, but is not limited to: Superfund cleanups; Resource Conservation and Recovery Act (RCRA) corrective actions; Toxic Substance and Control Act PCB cleanups; Oil Pollution Act spill responses; and Underground Storage Tank Program Actions.  The interim guidance applies to response action being conducted by EPA, states, tribes, other federal agencies, and by other parties, including potentially responsible parties, where EPA is the lead agency.  EPA is also sharing this interim guidance with states and encouraging states to employ the considerations in the interim guidance as they encounter similar issues for state-lead RCRA cleanups. 

General Guidance: Decisions Will Be Made On A Case-By-Case Basis

Under the interim guidance, there are no hard and fast rules regarding when response actions will be suspended, delayed, or continued.  Instead, EPA has made and will continue to make decisions about continuing, reducing, or pausing on-site activities on a case-by-case basis and will balance the health of workers and risk of COVID-19 exposure against the imminent and substantial endangerment to human health or the environment that may be caused if the response action is slowed or paused.  The interim guidance suggests that Regional Offices will be more likely to delay or pause field work where doing so will not pose an imminent and substantial endangerment to human health or the environment, and COVID-19 related concerns and restrictions will interfere with the performance of such work.  Parties who believe COVID-19 will impact their ability to perform response actions must communicate with EPA project managers about the status of their sites and associated field work and any anticipated challenges and mitigation measures. 

The interim guidance provides that Regional Offices will make case-by-case decisions about whether to continue on-site activities consistent with two priorities:

  • Protecting the health and safety of the public, as well as maintaining the health and safety of EPA staff and cleanup partners, is the Agency’s highest priority.  Integral to the protection of health and safety is the adherence to any federal, state, tribal, or local health declarations and restrictions, to the extent possible.
  • 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, is also a critical priority for the Agency.

In addition, Regional Offices will make decisions regarding whether to delay on-site work in accordance with the terms of the applicable enforcement instrument.  Parties are advised to “consult the applicable enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions, for directions on providing the requisite notice and other information described in the provisions.”  Moreover, COVID-19 may not be a force majeure for all sites; instead, the determination of whether COVID-19 constitutes a force majeure will be made based on site-specific circumstances.

The interim guidance directs Regional Offices 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.”  In areas where federal, state, tribal, or local COVID-19 health declarations (Health Declarations) are in effect, Regional Offices should consider whether to continue site operations or secure a site until the public health threat associated with the Health Declaration is resolved.  In areas where there are no Health Declarations, in deciding whether to start or continue work, Regional Offices must weigh other factors, including but not limited to:

  • 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 factors particular to a site.

If a Regional Office decides to start or continue work, it must review and modify, as appropriate, a response action’s health and safety plan (HASP) to ensure it accounts for CDC’s and/or other’s COVID-19 guidelines, including any potential virus transmission into or across areas.

Site-Specific Factors

The interim guidance sets forth certain site-specific factors a Regional Office should consider when deciding whether to continue, reduce, or pause response actions at a site.  First, the interim guidance provides the following examples of scenarios where Regional Offices are likely to decide (or have already decided) to reduce or suspend response actions at sites:

  • 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.

Next, the interim guidance sets forth the following factors Regional management should consider when making site-specific work decisions:

  • 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 of site work, in coordination with state, tribal, and local officials and with updated HASPs as appropriate.

The interim guidance also identifies certain actions that may be more or less eligible for delay or suspension when applying the above factors.  For example, Regional Offices are less likely to delay or suspend the following activities (additional examples are provided in the interim guidance):

  • Response actions that would pose an imminent and substantial endangerment to human health and the environment if they were suspended or delayed, including emergency responses, emergency response preparedness, and time critical removal actions
  • Providing alternative water supplies to individuals who otherwise would be exposed to or consume contaminated drinking water
  • Addressing ongoing on-site exposures to individuals, such as lead, arsenic, other heavy metals, PCBs, asbestos, vapor intrusion, etc.
  • Preventing a catastrophic event, such as mine blow outs, breach of gyp stacks, fire, explosion, etc.
  • Preventing groundwater plume expansion or releases to waterbodies that are reasonably likely to adversely affect drinking water systems

On the other hand, under the interim guidance, Regional Offices are more likely to delay, suspend, or reschedule the following activities: 

  • Periodic monitoring
  • Routine sampling activities that typically are considered for five-year reviews or compliance with existing agreements
  • Field sampling for remedial investigation/feasibility study or RCRA facility investigation work
  • Active remediation or otherwise stable conditions

As noted above, however, any and all decisions will be made on a case-by-case basis and thus there are no blanket rules for when a Regional Office will suspend, delay, or reschedule response actions.  Moreover, the interim guidance states that none of the above factors should be “considered in a manner that would override protection against unnecessary potential exposure to COVID-19.”

Non-Field Site Work

The interim guidance is clear that EPA expects that work that can be performed away from sites, such as investigation reports, modeling, negotiations between the parties, progress reports, and maintaining compliance with financial assurance obligations, will continue.  The interim guidance does acknowledge, however, that some work that normally takes place off site may be impacted, for example, in circumstances where laboratories or materials may be unavailable.  The interim guidance directs parties who believe that COVID-19 restrictions may delay their performance of non-field related work to consult the procedures set forth in the applicable enforcement instrument.

Next Steps When Pausing Site Work 

The interim guidance provides that if a decision is made to temporarily reduce or suspend response action work, Regional Offices should continue to monitor site conditions, plan for resuming field work when appropriate, and use EPA’s internal document, CERCLA Interim Guidance on Public Engagement During COVID-19, to continue conducting Superfund community involvement work at all sites, regardless of whether work has been paused or continues.

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