On Friday, April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued interim guidance regarding when cleanup activities should be continued, reduced, or suspended in light of the COVID-19 pandemic. The Guidance, issued to the EPA’s regional offices, is applicable to cleanup sites where the EPA is the lead agency or has direct oversight or responsibility, including Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substance Control Act (TSCA) PCB cleanups, and Oil Pollution Act and Underground Storage Tank actions. The Guidance is not operative at state-led RCRA cleanup sites, but the EPA urged states to consider the Guidance as they encounter similar issues.
While emphasizing the consideration of site-specific factors, including, among others, whether the failure to continue cleanup would pose an imminent and substantial danger to human health and the environment, as well as the availability of work crews, the Guidance states that cleanup work may be reduced or suspended at sites where:
- State, tribal or local health officials have requested a stoppage;
- Any workers have tested positive for or exhibited symptoms of COVID-19;
- Workers may closely interact with high-risk groups or those under quarantine;
- Contractors are not able to work due to state, tribal or local travel restrictions or medical quarantine; and,
- Workers cannot maintain proper social distancing.
If a party believes that state or county-imposed COVID-19 restrictions may delay the performance of obligations set forth in an enforcement instrument (e.g., a consent agreement), the Guidance recommends communicating quickly with EPA project managers about anticipated challenges. However, the Guidance stipulates that “decisions to extend obligations or pause work obligations do not operate to supersede or amend enforcement instruments.” Rather, any adjustment to obligations or schedules will be made at the discretion of the EPA project manager, on a case-by-case basis, and in accordance with the terms of the applicable enforcement instrument; “the formal determination as to whether a particular situation constitutes force majeure or requires additional response depends on site-specific circumstances.”
The Guidance also notes that, to the extent rendered practicable by remote working, non-field site work should continue. Such non-field work includes, among other activities, modeling, negotiations between parties, drafting and revising decision documents and work plans, and progress reports. However, if a party believes that non-field work will be impacted or delayed because supporting operations (e.g., laboratories) are unavailable due to COVID-19 restrictions, they should consult the governing enforcement instrument and confer with the EPA project manager.
A copy of the Guidance can be found here.
This information is intended to inform our clients and other friends about legal developments, including recent decisions of various municipalities, legislative, and administrative bodies. Because of the rapidly changing landscape related to COVID-19, we intend to send out regular updates. The information we provide is not intended as legal advice and viewers/readers should not rely on information contained in these materials to make business or legal decisions. Before making any legal decisions, consult your lawyer. Please do not hesitate to contact us should you need assistance responding to the many issues which have arisen, and will continue to arise, out of this situation.