On April 10, 2020, the United States Environmental Protection Agency (EPA) issued its anticipated Interim Guidance (Guidance) to regional offices on field work at contaminated sites during the COVID-19 pandemic. The Guidance follows EPA’s earlier interim guidance on enforcement discretion, which did not apply to Superfund and RCRA Corrective Action sites.1

The Guidance recognizes that field work at certain sites will be delayed during the COVID-19 pandemic. Indeed, the press release accompanying the Guidance stated that EPA has reduced or paused work at approximately 34 sites, or 12% of all EPA-led sites with ongoing remedial actions due to the pandemic. The Guidance favors factors over bright line rules for how decisions to pause work should be made to promote nationally consistent decisions.

Applicability. The Guidance applies to cleanup or emergency response actions in which EPA is the lead agency under a range of EPA authority, including, but not limited to, the Superfund program, the RCRA Corrective Action program, the Toxic Substance and Control Act’s PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank program. The Guidance does not affect state-led actions. However, the Guidance recommends that regional offices share the Guidance with states and encourage states to adopt it.

EPA’s Overarching Priorities. The Guidance recognizes two overarching priorities:

  1. Protecting the health and safety of the public, as well as EPA’s staff and cleanup partners
  2. Maintaining EPA’s ability to prevent and respond to environmental emergencies and to protect the environment

The Guidance advises that decisions on continuing, reducing, or pausing field work are to be made in accordance with these two goals on a case-by-case basis. The same approach is to be taken with requests from outside parties (e.g., potentially responsible parties) for extensions or delays in performance.

EPA’s Guidance to Regional Offices. With those overarching priorities, the Guidance advises regional offices to evaluate and periodically re-evaluate the status of ongoing field work with regard to the impact of COVID-19 on the sites, surrounding communities, and personnel. In regions where health declarations have been made, the Guidance suggests that site operations be temporarily discontinued. In regions where no such health declarations have been made, the Guidance advises regional offices to weigh other factors, such as the safety and availability of work crews, the critical nature of the work, and any logistical challenges. When regional offices decide to start or continue work, they must review and modify the health and safety plan (HASP) to ensure that it accounts for the CDC’s COVID-19 guidelines.

EPA’s Guidance to Private Parties. Although the Guidance offers no bright line rules, it is clear on one point: that private parties who believe that COVID-19 may delay performance of their obligations should consult their enforcement instruments (e.g., consent decrees, administrative agreements, etc.). The Guidance provides that the determination as to whether a situation constitutes a force majeure or requires additional time depends on site-specific circumstances. The Guidance suggests that these determinations will be consistent with the terms of the enforcement instrument and be made promptly.

Situations Where Work Suspension is Warranted. The Guidance identifies scenarios that likely warrant reducing or suspending response actions, such as:

  • State or local health officials have requested that site operations be suspended
  • Workers have tested positive for or exhibited symptoms of COVID-19
  • Site work requires close interaction with high risk groups or those in quarantine (e.g., work inside homes)
  • Contractors or field workers are unable to work due to travel restrictions
  • Sites where social distancing is not possible

Factors for Case-by-Case Determinations. The Guidance provides three specific factors that regional management should consider when deciding whether to reduce or suspend work. These factors are intended to help regional offices make nationally consistent decisions when addressing similar factual situations. They are:

  1. 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
  2. Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months
  3. Whether work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling

Non-Field Work. The Guidance recognizes that much of the work to advance the cleanup of contaminated sites is performed remotely, such as investigation reports, modeling, negotiations, decision documents, cleanup documentation, work plans, and progress reports. Although the Guidance acknowledges that this work may also be impaired by the COVID-19 pandemic, EPA expects it will continue. If parties believe that they will be unable to perform this work due to the pandemic, the Guidance advises that they should consult the procedures set forth in the applicable enforcement instrument.

Summary. The Guidance suggests that EPA will be more tolerant of delays to field work than non-field work. In short, it seems that any field work that may increase exposure to COVID-19 may be delayed unless it is necessary to prevent significant harm or respond to an environmental emergency. Although remote work may be delayed by the pandemic, the Guidance suggests that EPA expects remote work that does not increase the risk of COVID-19 exposure to continue.

For work at EPA sites led by potentially responsible parties, decisions on COVID-19 related delays to field or remote work will be largely informed by enforcement instruments. Potentially responsible parties should closely review their enforcement instruments and carefully monitor federal, state, and local COVID-19 policies if they anticipate delays to field or remote work. They should also make every effort to continue remote work during this time, as the Guidance suggests EPA expects such work to continue.

[1] For more information about the earlier interim guidance, see our legal update here.