The US Environmental Protection Agency (EPA) has released additional interim guidance for field work decisions at cleanup sites under EPA authority, emphasizing its commitment to ensuring the health and safety of the public, its staff, and others performing work at the sites. In its guidance, the EPA provides principles to consider when evaluating whether to proceed with or pause field work related to Superfund (CERCLA) 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 EPA issued interim guidance on April 10, 2020, providing further direction for work being performed at CERCLA and other cleanup sites subject to EPA lead or oversight. In light of coronavirus (COVID-19) precautions and mandated limitations, the EPA’s interim guidance seeks to provide a framework for decisionmaking by the EPA Regions related to continuing field work at cleanup sites. The EPA also reiterates that decisions about continuing, reducing, or pausing onsite activities will be evaluated on a case-by-case basis.
The new interim guidance is generally consistent with the March 19, 2020, guidance from the Office of Land and Emergency Management (OLEM), which provided considerations for Superfund and RCRA sites related to COVID-19. Like the current interim guidance, the OLEM “Considerations and Posture” document advised the Regions that they should anticipate continued work on these sites, subject to local restrictions and advisories. The EPA now clarifies considerations and recommendations for these sites moving forward.
The EPA identified two priorities in determining whether to continue, reduce, or pause field work. First, EPA stated that its highest priority is protecting public health and safety, as well as the health and safety of those involved in cleanups. Second, a critical priority for EPA at this time is the prevention of and response to environmental emergencies. EPA will take both of these priorities into account when considering extension requests from third parties involved in cleanups. Ultimately, if a Region continues or starts work at a site, EPA has directed Regional management to require amendment of that site’s Health and Safety Plan to ensure compliance with the Centers for Disease Control and Prevention’s (CDC’s) COVID-19 guidelines and other applicable guidelines. For all sites, the interim guidance directs the Regions to make decisions promptly and to reevaluate site status on an ongoing basis.
EPA has directed Regional authorities to take into account a number of criteria when determining whether to pause or reduce field work, including practical considerations such as the safety and availability of personnel, logistical challenges, and access to personal protective equipment, and whether ceasing work would “pose an imminent and substantial endangerment to human health or the environment.” In making this determination, EPA may consider, for example, whether any of the sites or activities involved are time critical removal actions or emergency responses, or whether discontinuing site work may in some way compromise public health by discontinuing provision of alternative water supplies in areas where drinking water is contaminated. Other considerations may also include whether the response action is intended “to prevent a catastrophic event,” or to prevent release of contaminants that are reasonably likely to impact drinking water supplies.
Regional management may also consider if continuing site work would reduce human health risk or exposure in the next six months, which may include investigations into vapor intrusion or work impacting drinking water. This is noteworthy because it suggests work may continue in these areas, which may be critical to health and safety of surrounding communities. This is consistent with most state and municipal definitions of essential services.
Finally, EPA has stated that site work that would not reduce human health risk in the short term, such as sampling or monitoring activities or where conditions are stable, is an appropriate candidate for suspension, rescheduling, or delay. EPA makes clear that a temporary pause of field activities under such conditions should only last as long as necessary, and the Regions should continue to monitor site conditions with an eye toward safely resuming field work as soon as appropriate.
Additional considerations in determining whether to continue or pause work at a given site include whether workers at the site have either exhibited symptoms of COVID-19 or tested positive, whether social distancing is possible at the site, and where state, local, or tribal government travel restrictions prevent field personnel from reaching the site or where these entities have otherwise requested suspension of site activity.
Significantly, EPA explains that remote cleanup work, such as report preparation and negotiation of oversight instruments, should be continued, to the extent possible. That said, EPA recognizes in the guidance that some offsite work, such as laboratory work, may not be practicable or possible in the current environment. As such, EPA has warned that anyone whose non-field site work may be delayed by COVID-19 should follow the applicable procedures in the relevant enforcement instrument.
As a general matter, EPA notes in its interim guidance that, where a party’s performance might be delayed as a result of the current restrictions in place because of COVID-19, parties should refer to their enforcement instrument, particularly any force majeure or discretionary schedule adjustment provisions, for the appropriate procedures for requesting a delay. The guidance, however, indicates that EPA intends to be flexible regarding the timing of force majeure notices to the extent available under the enforcement instrument.
In short, the EPA’s new guidance acknowledges that there are many factors at play in determining whether it is safe or sensible to start or continue field work at any site. The guidance seeks to strike a balance between the competing risks of COVID-19 and site remediation, focusing resources on sites posing imminent threats, while providing flexibility at other sites where the risks and logistical challenges associated with COVID-19 could exceed risks associated with existing site conditions. Approaching this balance on a site-by-site basis is a practical approach.
According to a news release from the EPA, since early April, the EPA has reduced or paused onsite construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites. Further reduction or pausing of work is possible, based on the considerations and recommendations set forth in the EPA’s guidance, and depending on the particular Region. As the COVID-19 situation continues to evolve, recommendations and mandates from the EPA are likely to adjust to address developments. Regulations and executive orders issued by state and municipal governments may also affect continued work at CERCLA sites in the days and weeks to come. In these situations, EPA directs Regions to continue to monitor site conditions, and plan for the eventual resumption of work, where possible.
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