April 16, 2020 Practice Points

EPA’s Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19

New EPA guidance provides additional criteria to be considered when determining whether site field work should continue or be suspended.

By Karen Aldridge Crawford

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On April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued its interim guidance applicable to response field activities underway at sites across the country due to impacts of COVID-19. These activities are being conducted under a range of EPA authorities including, but not limited to, the Superfund program, Resource Conservation and Recovery Act (RCRA) corrective action, Toxic Substances Control Act (TSCA) polychlorinated biphenyls (PCB) cleanup provisions, the Oil Pollution Act, the Underground Storage Tank (UST) program , and the EPA ’s emergency response authority for releases or substantial threats of releases into the environment of chemicals, oil, and other hazardous materials/substances, as well as pollutants or contaminants that may present an imminent and substantial danger to the public health or welfare. This interim guidance is being issued for response actions related to cleanup and emergency response sites where the EPA is the lead agency or has direct oversight of or responsibility for the work being performed, but the work may actually be conducted by the EPA, states, tribes, other agencies of the federal government, and by other parties, including potentially responsible parties (PRPs).

This memorandum/interim guidance supplements the “Office of Land and Emergency Management Considerations and Posture for COVID-19 Pandemic” document dated March 19, 2020, and provides additional criteria to be considered for emergency response, Superfund removal/remedial/federal facilities, RCRA corrective action, and leaking underground storage tank (LUST) cleanups when determining whether site field work should continue or be suspended.

The EPA also indicates in the memorandum that it continues to evaluate and make decisions about continuing on-site activities on a case-by-case basis consistent with the following priorities:

  • Protecting the health and safety of the public, as well as maintaining the health and safety of EPA staff and cleanup partners, is the Agency’s highest priority. Integral to the protection of health and safety is the adherence to any federal, state, tribal, or local health declarations and restrictions, to the extent possible.
  • Maintaining EPA’s ability to prevent and respond to environmental emergencies, or in any situation necessary to protect public health and welfare and the environment, is also a critical priority for the Agency.

As with the enforcement interim guidance, protection of drinking water is a priority in these decisions as well.

Decisions to be made on continuing, reducing, or pausing field work are to be made on a case-by-case basis and in consultation with other EPA offices, as appropriate. This same approach will apply to decisions based on requests from outside parties (e.g., states, tribes, local governments, other federal agencies, PRPs, property owners, etc.) for extensions or delays in performance.

Karen Aldridge Crawford is a partner at Nelson Mullins in Columbia, South Carolina.


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