EPA Decisions to Delay Field Work at Environmental Clean Up Sites Due to COVID-19 Will Be Made on a Case-by-Case Basis

On April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19, which applies to response action related to cleanup and emergency response sites where EPA is the lead agency or has direct oversight of or responsibility for the work being performed. The interim guidance is available here. The interim guidance outlines certain factors EPA Regional Offices should consider when evaluating whether to pause, continue, or reduce on-site response actions in light of challenges posed by the COVID-19 situation. It provides, however, that none of the factors should be “considered in a manner that would override protection against unnecessary potential exposure to COVID-19.” The interim guidance makes clear that EPA has made and will continue to make decisions regarding pausing, continuing, or delaying response actions on a case-by case basis. Regional Offices will balance the health of workers and the risk of COVID-19 exposure against the imminent and substantial endangerment to human health or the environment that may be caused if the response action is slowed or paused. Regional Offices are unlikely to delay or suspend a response action where doing so would pose an imminent and substantial endangerment to human health and the environment and it is practical to continue the response action. In addition, the interim guidance provides that Regional Offices will decide whether to delay on-site work in accordance with the terms of the applicable enforcement instrument and will determine whether COVID-19 constitutes a force majeure based on site-specific circumstances. 

The interim guidance directs parties who believe COVID-19 will impact their ability to perform response actions to communicate with EPA project managers about the status of their field work and any anticipated challenges and mitigation measures. The interim guidance also advises parties to consult the applicable enforcement instrument, including provisions allowing schedule adjustments at the discretion of EPA’s project manager and/or force majeure provisions, for directions on providing the requisite notice and for other information described in the provisions.

Read more about the interim guidance here.