Type: Law Bulletins
Date: 04/13/2020

EPA Issues Guidance on When to Pause CERCLA/RCRA Fieldwork Given COVID-19 Pandemic

On Friday, April 10, 2020, the United States Environmental Protection Agency (EPA) issued additional interim guidance to its regional administrators (the Regions) on whether to continue with or postpone response field activities given the continued challenges posed by the COVID-19 pandemic.

Response field activities include those underway at sites across the country 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 program, as well as all other EPA-lead emergency responses to the release or threatened release of substances or contaminants that may pose an imminent and substantial danger to the public health or welfare. The response work may be conducted by EPA, states, other federal agencies or by other parties, including potentially responsible parties (PRPs).

General Guidance for Response Field Work Decisions

EPA recommends that Regions evaluate, and periodically reevaluate, the status of ongoing response work at sites and the possible impact of COVID-19, and consider whether to continue that work or secure the site (using mechanisms in the applicable enforcement instrument) until the public health threat has subsided.

As part of that decision, Regions should consider factors such as the safety and availability of work crews, the critical nature of the work and logistical challenges for the crews, responding parties and the Region’s representatives (e.g. transportation, lodging, availability of meals, access to personal protective equipment, etc.). Additionally, the following site-specific factors should be taken into consideration:

  • 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: emergency responses under Superfund or to oil spills; providing alternative water supplies to those who would otherwise be exposed to or consume contaminated drinking water; addressing ongoing on-site exposures, such as to lead, arsenic, heavy metals, PCBs, asbestos, vapor intrusion; response actions to prevent a catastrophic event like a mine blowout or breach of a gyp stack; preventing a contaminated groundwater plume from adversely affecting drinking water sources; on-site security; assessing potential or actual vapor intrusion and completing, continuing or taking measures to stabilize in-process response actions to ensure unacceptable releases to the environment do not occur.
  • Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months.
    • This may include, but is not limited to, vapor intrusion investigations, residential site work with current exposures to residents and drinking water work.
  • If the work would not provide a near-term reduction in human health risk, it could be more strongly considered for delay, suspension or rescheduling.
    • 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 or active remediation of otherwise stable conditions (e.g. active remediation of stable groundwater plumes).

However, these factors should not be considered in a manner that would override protection against unnecessary potential exposure to COVID-19. For example, situations in which Regions have decided and may continue to decide to reduce or suspend response actions at particular sites include:

  • Whether 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.

Where a Region decides to start or continue work, it must review and modify as appropriate the response action’s health and safety plan (HASP) to ensure it accounts for the Centers for Disease Control and Prevention (CDC) and other organizations' guidelines regarding COVID-19.

To the extent it can, remote work should also continue. Important work can be conducted virtually and represent opportunities to make progress on primary activities like investigation reports (including pre-NPL work), modeling, negotiations between the parties, decision documents, cleanup documentation, work plans, progress reports and maintaining compliance with obligations such as financial assurance.

If a party believes their performance of obligations may be delayed by COVID-19, the party should consult the applicable enforcement instrument. More on EPA’s handling of COVID-19 impacts to obligations can be found here.

For more information on how EPA’s interim guidance may affect your site, please contact Kimberly DalSanto or another member of Taft’s Environmental team.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.

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