On April 10, the U.S. Environmental Protection Agency (EPA) issued interim guidance to determine when, and how, to suspend field work under certain EPA programs during the ongoing COVID-19 crisis. The guidance covers response actions under the Comprehensive Environmental Response, Compensation, and Liability Act (or Superfund), and field work under the Resource Conservation and Recovery Act and the Underground Storage Tank program, among other EPA programs.
The guidance is fact-specific, without any generally applicable statement for when field work can be suspended. Parties should look to schedule-adjustment and/or force majeure provisions in any administrative orders or oversight documents for the procedures to notify EPA under those provisions and the standards that must be met to justify a delay. EPA will then decide on a case-by-case basis whether the COVID-19 pandemic warrants modifying a party’s obligations.
EPA recognizes in the guidance that compliance with state and local emergency orders and restrictions, whether site workers have or may have COVID-19, and the impossibility of social distancing are all of primary importance. It also lists several factors, and examples of work that may fulfill each factor, that regional staff should consider in deciding whether to suspend or alter performance obligations during the COVID-19 crisis. Those factors are:
- Whether suspending the work would likely pose an imminent and substantial endangerment to human health and the environment
This work may include: Emergency Responses or Time Critical Removal Actions; work to prevent individual, ongoing exposures to hazardous substances or harm to drinking-water supplies; and off-site disposal of materials that create imminent safety issues if not promptly removed
- Whether continuing the work would reduce human health risk or exposure within the next six months
This work may include: Vapor-intrusion investigations and drinking-water work
- Whether work that would not reduce human health risk in the near term can be delayed or suspended
This work may include: Routine monitoring and sampling, and remediation of otherwise stable conditions (e.g., stable groundwater plumes)
The guidance makes clear that EPA expects non–field work (e.g., drafting of reports, negotiations, work relating to financial assurance, and other desk work) to proceed by parties working remotely. EPA will not grant extensions for that work unless supporting operations (e.g., laboratories and equipment) and materials are unavailable due to COVID-19.
In all events, the guidance encourages parties to regularly communicate with EPA project managers about the status of their field work and any expected challenges due to COVID-19. After pausing any work, regions will continue to monitor site conditions to plan for resuming that work when appropriate.
