April 10, 2020
John F. Gullace
On April 10, 2020, EPA issued its Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 (the Guidance), concerning the potential impacts of COVID-19 on work at Superfund and RCRA corrective action sites (Sites). Although the Guidance did not contain any surprises and is consistent with what practitioners were expecting, it did provide some details and examples everyone involved with Superfund and RCRA corrective action sites should be aware of.
First, there are no automatic or blanket modifications to responsible party obligations. Any modifications will be assessed on site-specific circumstances.
Second, non-field work at Sites, such as drafting reports, running models, providing financial assurance, negotiations, etc., should proceed as normal under the controlling documents and schedules for the Site.
Third, responsible parties should, in the first instance, be guided by the language of their Consent Decrees and the remedial project managers for the Sites where a COVID-19 related delay may arise. COVID-19 may or may not be a force majeure depending upon Site specific issues. If you think COVID-19 may require a slow down or “pause” in activities at a Site for which you have responsibility, you should immediately consult your Consent Decree for options.
Fourth, EPA has made clear that human health and the environment must be protected at Sites, but also recognizes that in light of the COVID-19 emergency in many parts of the United States, a site-specific balancing must be conducted of worker safety against the immediacy of the threat posed by “slowing” or “pausing” work at the Site in the short and medium term (six months). As part of the balancing, EPA will consider various factors including CDC recommendations, local travel bans, infection rates among Site workers, as well as the potential impact on EPA preparedness. At Sites where delaying or pausing field work will have minimal or no immediate or medium-term impact on human health or the environment, and COVID-19 related restrictions or infections are a barrier to proceeding to work, it may be more appropriate to slow down or pause field work. The Guidance provides several examples.
Finally, if EPA approves slowing or pausing work at a Site, EPA and the responsible party must immediately begin planning for the resumption of normal work when conditions warrant. The EPA News Release for the Guidance reports that “[a]s of the beginning of April, EPA has reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions, due to the evolving situation with COVID-19.”