EPA Issues Interim COVID-19 Guidance on Site Field Work Decisions

By Jeffrey B. Gracer and Allison Sloto

On April 10, 2020, the Environmental Protection Agency (EPA) released a memorandum providing interim guidance on site field work decisions due to the impacts of COVID-19 (Field  Guidance). The Field Guidance is applicable to cleanup and emergency responses  where EPA is the lead agency, or has direct oversight of or responsibility for the work being performed.  Building on an earlier Office of Land and Emergency Management (OLEM)  memorandum dated March 19, 2020, the Field  Guidance applies  to all response field activities, including but not limited to the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank program.

EPA emphasizes that all decisions about continuing on-site activities will  be made on a case-by-case basis consistent with protecting public health and safety, including  EPA staff and cleanup partners, who are needed to maintain EPA’s ability to prevent and respond to environmental emergencies.

The Field Guidance does not replace or supersede any individual site enforcement instruments.  Parties that believe COVID-19 may delay their performance of obligations   should request adjustment of compliance schedules and/or demonstrate that force majeure provisions have been triggered. Determinations whether COVID-19 related issues trigger a force majeure clause or require a schedule extension will be made on a case-by-case basis by the EPA project manager. The Field Guidance sets forth site-specific factors for each Regional Office of EPA to consider on a case-by-case basis regarding whether response actions will be permitted to continue or will be reduced or paused. Regional Offices may reduce or suspend response actions if site workers who have tested positive or exhibit symptoms of COVID-19; at sites where there is potential for close interaction with high-risk groups or those under quarantine, or where social distancing is not possible; and at sites where field personnel are unable to work due to governmental restrictions or quarantine. EPA also directs regional management to consider the following factors when making site-specific decisions about whether work may proceed:

  • 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.
  • Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months. This may include vapor intrusion investigations; residential site work with current exposures to residents; and 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 updates 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 or RCRA facility investigation work; and active remediation of otherwise stable conditions (e.g. active remediation of stable groundwater plumes).

Much of the work required to clean up a site does not actually need to take place at the site, i.e., investigation reports, modeling, negotiations between the parties, decision documents, cleanup documentation, work plans, and progress reports. EPA encourages parties’ project teams to continue with this work remotely.

SPR is continuing to monitor state and federal environmental agencies’ responses to COVID-19 as they develop, and the firm is actively assisting clients in navigating the EPA and OLEM guidance as it applies to their individual sites under EPA oversight.