EPA Issues Guidance For Cleanups During Coronavirus Crisis

By Juan Carlos Rodriguez
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Law360 (April 10, 2020, 3:43 PM EDT) -- Cleanups of polluted sites across the nation may be suspended if workers get sick with COVID-19, can't maintain proper social distancing or face a host of other coronavirus-related factors, the U.S. Environmental Protection Agency said Friday.

In an effort to create a nationally consistent decision-making process for regulators overseeing Superfund sites and other types of cleanups, the EPA issued guidance Friday to all its regional offices with instructions about when a cleanup effort should be shut down.

The EPA recently said that this type of cleanup work is considered "essential" and that it has continued to respond to environmental emergencies at Superfund sites, risk management program facilities, facility response plan facilities, or in situations where the agency "is called upon to protect human health and the environment from the releases of chemical, oil, radiological, biological and other hazardous materials."

The EPA said that work can be reduced or suspended at sites if:
• State, tribal or local health officials have requested a stoppage.
• Any workers have tested positive for or exhibited symptoms of COVID-19.
• Workers may closely interact with high-risk groups or those under quarantine.
• Contractors are not able to work due to state, tribal or local travel restrictions or medical quarantine.
• Workers can't maintain proper social distancing.

The EPA said that as of the beginning of April, on-site work has been reduced or stopped because of COVID-19 concerns at about 34 Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions.

"EPA remains committed to protecting human health and the environment as we continue to adjust to the evolving COVID-19 pandemic," EPA Administrator Andrew Wheeler said in a statement Friday. "This guidance will allow us to keep workers and the residents in these communities safe while also being able to respond to any emergency that may present an imminent danger to the public health or welfare."

The guidance may be used for cleanups taking place under the Superfund program, Resource Conservation and Recovery Act corrective actions, Toxic Substances Control Act cleanup provisions, the Oil Pollution Act, the Underground Storage Tank program and other programs, the EPA said.

When officials are deciding whether to reduce or suspend operations, the EPA said they should also consider the importance of the cleanup effort. For example, regulators should weigh the coronavirus factors with other considerations such as if failing 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."

The guidance follows other information released by the EPA last month notifying the public that it may temporarily suspend some compliance obligations for entities affected by the coronavirus crisis.

That policy generally divides compliance obligations into tiers and treats potential violations differently. Significant leeway will be given to businesses that show they can't meet routine compliance monitoring and reporting requirements, while those at risk of allowing discharges or emissions that could damage human health and the environment will be scrutinized more closely. Once the coronavirus crisis has passed, the EPA said, the policy will be rescinded.

--Editing by Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.

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