As a follow-up to our recent alert regarding the U.S. Environmental Protection Agency’s (EPA) enforcement discretion memo, last Friday EPA published further interim guidance specifically relating to field work at cleanup and emergency response sites impacted by COVID-19 where EPA is the lead agency or has direct oversight of or responsibility for the work being performed. The guidance, which is targeted at sites involving EPA project managers who will decide the status of field work, applies to response actions taken at sites under a variety of federal environmental programs, including the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act and the Underground Storage Tank program. Under the guidance, decisions on whether to continue, reduce or pause field work, including requests for extensions or delays in performance, will be made on a case-by-case basis. The guidance directs EPA regional offices to continuously 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, especially in areas where federal, state, tribal or local health declarations are in effect due to COVID-19.

The guidance outlines factors that EPA regional offices should consider when deciding whether to reduce or suspend response actions, including:

• Whether state, tribal or local health officials have requested particular site operations or types of operations that would pertain to particular sites be suspended.
• Whether any site workers have tested positive for or exhibited symptoms of COVID-19.
• Whether the site may involve close interaction with high-risk groups or those under quarantine, such as work inside homes.
• Whether a site involves contractor field personnel who are not able to work due to state, tribal or local travel restrictions or medical quarantine.
• Whether a site involves a situation where social distancing is not possible.

The guidance further lists additional factors to consider when making site-specific determinations on field work, including (1) 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; (2) whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months; and (3) 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.

The guidance directs parties who believe that COVID-19 restrictions may delay their performance of obligations to consult the applicable enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions, for directions on providing the requisite notice and other information described in the provisions. Modifications to a party’s performance obligations will be made on a case-by case basis in accordance with the terms of the applicable enforcement instrument.