On Friday April 10, 2020, the United States Environmental Protection Agency (“USEPA”) released its Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 (“Guidance”). While an earlier USEPA guidance document addressed enforcement and regulatory compliance in light of the COVID-19 pandemic, this Guidance document is specific to field work (generally investigations and cleanups) occurring under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund” law), the Resource Conservation and Recovery Act (“RCRA”), and similar statutes where the USEPA is the lead agency, is responsible for oversight of work, or is responsible, itself, for the cleanup of environmental contamination or emergency response work.
The Guidance is not a strict set of guidelines mandating that work stop, or continue, as a result of novel coronavirus (“COVID-19”) or associated health orders. The Guidance states that all decisions regarding work will be made on a case-by-case basis, after consideration of several enumerated factors, but with two foremost priorities in mind: (1) the health and safety of the public as well as EPA staff and contractors – and integral to this priority is adherence to applicable health directives, to the extent possible; and (2) EPA’s ability to prevent and respond to environmental emergencies as well as situations necessary to protect public health and welfare and the environment.
It can be inferred from the Guidance that health orders, such as shelter-in-place orders, while not entirely dispositive of whether or not work will be shutdown, will be given considerable deference. The Guidance goes on to state that, even absent a health order, a region must conduct its own health and safety evaluation before work can proceed or continue. This evaluation must ensure that a site’s health and safety plan takes into consideration applicable recommendations from agencies such as the Centers for Disease Control for reducing virus transmission.
The Guidance also states that potentially responsible parties (“PRPs”) anticipating or experiencing a COVID-19 delay should consult the applicable enforcement document, such as a consent decree or an administrative order, and seek relief accordingly. As we previously discussed here, such enforcement documents usually include provisions, such as force majeure or schedule relief. However, these provisions often have exacting notice requirements. The Guidance counsels PRPs to provide notice as soon as possible and states USEPA’s expectation that decisions in response to such notices will be made “promptly.”
The Guidance identifies numerous site-specific-considerations to be evaluated in connection with reduced or suspended work (e.g., shelter-in-place orders, workers testing positive for COVID-19, sites where social distancing is not practicable). The Guidance identifies work unlikely to provide “near-term reduction in human health risk,” such as periodic sampling or investigative work associated with RI/FSs. Such work is likely amenable to temporary delay. The Guidance also identifies several specific factors to be considered before work is reduced or suspended, with the key factor being whether failure to continue response actions would likely pose an imminent and substantial engagement to human health or the environment. The Guidance provides that work that is likely to “lead to a reduction in human health risk/exposure within the ensuing six months,” such as vapor intrusion investigations, work adjacent to residential areas, or relating to drinking water, will likely receive a preference to proceed.
The Guidance closes by reminding that non-site work, including report preparation, modeling, and negotiations between parties, may happen remotely and should continue to the extent practicable.
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 – https://www.epa.gov/sites/production/files/2020-04/documents/interim_guidance_on_site_field_work_decisions_due_to_impacts_of_covid.pdf (last viewed April 13, 2020).