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OnePoint Alert

April 13, 2020

EPA Issues Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19

By Bernard F. Hawkins, Jr.

General Instructions

On April 10, EPA issued an interim guidance memo (“Interim Guidance”) to all EPA Regional Administrators aimed at addressing how field work carried out at sites under a range of EPA authorities including, but not limited to, the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank (UST) program might be impacted by the COVID-19 pandemic. This guidance also addresses emergency responses to releases or substantial threats of releases into the environment of chemicals, oil, and other hazardous materials/substances, as well as pollutants or contaminants that may present an imminent and substantial danger to the public health or welfare. The Interim Guidance is being issued for 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. A link to the Interim Guidance is provided below.

EPA indicates the Interim Guidance should be relevant to all entities, including Potentially Responsible Parties (PRPs) and to states authorized to carry out response actions. This Interim Guidance supplements the “Office of Land and Emergency Management Considerations and Posture for COVID-19 Pandemic” document dated March 19, 2020.

EPA indicates it will make case-by-case determinations about continuing on-site activities consistent with the following priorities:

  • Protecting the health and safety of the public, as well as maintaining the health and safety of EPA staff and cleanup partners. This is identified as EPA’s highest priority. EPA indicates that adherence to any federal, state, tribal, or local health declarations and restrictions, to the extent possible, is integral to protection of health and safety.
  • A related priority is identified as 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.

Decisions on whether field work should continue, be reduced or paused will be made by EPA on case-by-case basis in consultation with other EPA offices, as appropriate. This same approach will apply to determinations on requests from outside parties (e.g., states, tribes, local governments, other federal agencies, potentially responsible parties, property owners, etc.) for extensions or delays in performance.

General Guidance for Response Field Work Decisions

EPA Regions are instructed to evaluate and 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. There should be an emphasis for evaluation in areas that have been the most impacted by the pandemic. Regions should consider options including whether to continue site operations or secure a site until the public health threat is resolved. Work might continue in areas where there are no health declarations that prohibit or discourage such activities. Other factors to consider in making decisions whether to start or continue work, include but are 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. Where a decision is made to continue work, response action’s health and safety plans (HASPs) should be modified to ensure that they account for CDC’s (and/or other’s) COVID-19 guidelines, including any potential virus transmission into or across areas. If site work is paused, EPA Regions should continue to monitor site conditions and make plans to restart work as conditions permit.

Pre-construction, construction, and post-construction activities should be evaluated by EPA Regions considering factors that might pose risk for such activities, such as the necessity for the activity and the existence of local advisories. EPA should consider safety of all involved in evaluating response to given situations.

For a party believing that COVID-19 restrictions may delay their performance of obligations, EPA instructs them to review applicable enforcement instruments, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions, for instructions on providing the requisite notice and other information described in the provisions. Any relief to a party’s performance obligations will be evaluated on a case-by-case basis consistent with the terms of the applicable enforcement document. Decisions on whether a force majeure condition occurs will depend on site-specific circumstances, particularly the type of work that is impacted or being delayed. EPA indicates it will make these decisions quickly. EPA recommends the lead agency to regularly communicate with EPA project managers about their sites and the status of activity and challenges that might impact the progress at these sites.

Factors to Consider for Site Field Work Decisions

EPA provides some site-specific factors that should be uniformly considered in determining how site activities will proceed in light of COVID-19 challenges. However, an overriding concern should always be protection against unnecessary potential exposure to COVID-19.

EPA notes that a decision to extend an obligation or pause a work obligation under an enforcement document does not supersede or amend that obligation. Instead, any relief is simply an exercise of enforcement discretion under the document itself. Factors set out in the Interim Guidance to evaluate whether to continue activities at a specific site include:

  • 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.

Interim Guidance at page 3.

EPA provides that site-specific work factors/considerations include:

  • 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.
    • This may include sites or activities such as:
      • Emergency Responses (including Superfund and Oil Spill Responses)
      • Emergency Response Preparedness necessary to remain ready to respond immediately
      • Time Critical Removal Actions that address imminent threat to public health and welfare and the environment
    • It may include sites with ongoing or a threat of imminent acute or direct human exposures that would compromise public health:
      •  EPA or responsible parties (including Federal facilities) providing alternative water supplies (e.g., bottled water, Point of Entry Systems (POET Systems), replacement filters, etc.) to individuals who otherwise would be exposed to or consume contaminated drinking water
      •  Individuals with ongoing on-site exposures, such as lead, arsenic, other heavy metals, PCBs, asbestos, vapor intrusion, etc.
    •  It may also include sites with prevention of exposures that pose an imminent threat to public health and welfare and the environment:
      • Response actions to prevent a catastrophic event (e.g., mine blow outs, breach of gyp stacks, sites with high probability of fire or explosion, etc.)
      • Prevent contaminated groundwater plume expansion that is reasonably likely to adversely affect drinking water sources (private or public), including continued operation of groundwater pump and treat systems
      • Prevent releases to waterbodies that are reasonably likely to adversely affect drinking water intakes or communities downstream, including treatment of acid mine drainage
      • On-site security or activities necessary to prevent unauthorized access to sites for the safety of life and/or the protection of government property
      • Disposal of materials off-site (e.g., mine waste, chat, unsafe cylinders) that create an imminent safety issue if not promptly removed
      • Assess potential or actual vapor intrusion, especially into structures with sensitive populations (consideration should be given to the relative risks and be coordinated with residents as appropriate)
      • Complete, continue, or take measures to stabilize in-process response actions to ensure unacceptable releases to the environment do not occur (e.g., deactivation and decommissioning of a former nuclear facility, soil excavation, partial closure of a landfill disposal cell)
  • Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months. This may include, but are not limited to:
    • Vapor intrusion investigations
    • Residential site work with current exposures to residents
    • Drinking water work
  • 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. This may include:
    • 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 (RI/FS) or RCRA facility investigation (RFI) work
    • Active remediation of otherwise stable conditions (e.g. active remediation of stable groundwater plumes)

Interim Guidance at pages 4-5.

Effects on Non-Field Work

EPA recognizes that much of the work for cleanup sites is conducted away from the sites. EPA indicates that this work should continue, especially as it can be conducted remotely. EPA provides examples that include making progress on primary activities like investigation reports (including pre-NPL work), modeling, negotiations between the parties, decision documents, cleanup documentation, workplans, progress reports, and maintaining compliance with obligations such as financial assurance. Interim Guidance at page 5. The memo recognizes that because COVID-19 has a national impact, some supporting operations (e.g. laboratories, equipment) and materials may be unavailable or be diverted to other uses in consideration of the national interests. Again, parties are instructed to consult the procedures for requesting relief set forth in the applicable enforcement instrument.

Next Steps When Pausing Site Work

EPA emphasizes that vigilance and communication are vital. At sites where work is temporarily reduced or suspended, the site should continue to be monitored and plans should be in place to resume field work when appropriate. Regions are instructed to utilize the internal EPA 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. Interim Guidance at page 5.

For additional information on COVID-19 related issues, please visit the Nelson Mullins COVID-19 resource page or contact a Nelson Mullins attorney.