Following on the March 19 internal memorandum from the Office of Land and Emergency Management (available here), and the March 26 COVID-19 Enforcement Discretion Policy from the Office of Enforcement and Compliance Assurance (see here for the Policy and Spencer Fane’s earlier alert), EPA today (April 10) issued guidance on field decisions for parties managing cleanups under CERCLA, RCRA, and other remediation programs. EPA’s interim guidance is available here.
In general, the guidance reinforces EPA’s prior policy statements and confirms that EPA expects to make case-by-case decisions regarding on-site cleanup activities. As with its earlier guidance, this policy applies to sites where EPA is the lead agency or has direct oversight. EPA will continue to defer to states or tribes for projects where they are the lead regulators.
EPA’s new guidance indicates that its decision-making will focus on 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.
In making these evaluations, EPA leadership expects the Regional offices to consider the status of ongoing work and impact on sites, surrounding communities, EPA personnel, and response/cleanup partners, while taking into account any applicable health declarations in effect due to COVID-19.
When a Region decides to start or continue on-site work, it is to review and modify the site’s health and safety plans as needed to account for CDC or other applicable COVID-19 guidelines.
EPA personnel’s travel may be restricted in compliance with regional and local restrictions related to COVID-19, as well as directives on federal travel and guidance from the U.S. Office of Management and Budget.
EPA expects parties concerned that COVID-19 restrictions will delay their performance of obligations, or otherwise limit their ability to comply with requirements under enforceable agreements and orders, will seek relief on a case-by-case basis. Schedule adjustments and relief from enforceable requirements will be made at the discretion of EPA’s project managers or as available under the force majeure provisions of any settlement agreements, decrees, orders or directives.
To ensure continuity of cleanup as much as possible, EPA expects that work not requiring physical access to sites will continue during this time.
EPA may issue additional policies as needed during the COVID-19 response and will make those available here.
This post was drafted by Spencer Fane LLP attorneys, Jessica Merrigan (Kansas City) and Kathleen Whitby (St. Louis). For more information, visit spencerfane.com.