EPA Offers Guidance in Response to COVID-19 on Field Site Work for Remediation

In response to the COVID-19 pandemic, the U.S. Environmental Protection Agency (EPA) announced interim guidance this week to regional offices to “ensure that decisions about new or ongoing cleanup activities at sites across the country are made with the health and safety of communities, state and tribal partners, EPA staff, and contractors as the priority.” EPA will address the challenges posed by the COVID-19 pandemic by making decisions about continuing, reducing, or pausing on-site activities on a case-by-case basis utilizing the guidance.

The overall goal of the guidance is to ensure the protection of public health and provide flexibility for decision making on emergency response and longer-term cleanup sites. The guidance relates to sites for which EPA is the lead agency or has direct oversight for the cleanup work, including Superfund (CERCLA) cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substance and Control Act (TSCA) PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions. EPA also has asked states to consider the guidance as they work with similar state-led RCRA cleanup sites. The guidance provides two priorities to follow in this decision making:

• Protecting the health and safety of the public, as well as maintaining the health and safety of EPA staff and cleanup partners; 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.

Someone performing remediation who believes COVID-19 restrictions may delay performance should consult the applicable enforcement document, which may contain a force majeure clause. These clauses often require notice of a force majeure event to be provided within a certain timeframe, but the interim guidance directs the Agency to be flexible on the notice timing.

The focus of the guidance primarily is directed at delays in performance of field work, with the majority of non-field work, such as preparation of investigation reports and work plans, conducting modeling, and continuing negotiations among the parties, to continue. However, non-field work also can be deferred or postponed if it is impacted.

Regional offices should review or modify health and safety plans (HASP) to account for COVID-19, balance site-specific factors when deciding on continuance or delay in field work, utilize applicable enforcement tools, continue non-field work that is not impacted by COVID-19 restrictions and plan for work after COVID-19 restrictions are lessened.

Please contact your Nyemaster attorney for any questions regarding this guidance or for assistance with environmental issues in general.