Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic.
EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19
EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs).
At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and whether social distancing at specific sites is possible. In making decisions to reduce or suspend site activity, Regions should also consider such factors as the whether the failure to continue a response action would likely pose an imminent and substantial threat to human health or the environment, and whether a response action would lead to a reduction in the risk of exposure in the next six months, such as through vapor intrusion or contaminated drinking water.
Parties that believe restrictions related to the pandemic may delay performance obligations are encouraged to consult any applicable enforcement instruments for discretionary schedule adjustment or force majeure provisions, which EPA intends to implement flexibly. Any schedule adjustments will be made on a case-by-case basis. Parties are further encouraged to be in regular communication with EPA project managers in this regard. EPA also notes that non-field site work may well be able to move forward, but recognizes that this too may be affected by COVID-19 restrictions.
The guidance asks Regions to collaborate with local and other federal authorities to continually evaluate the status of ongoing response work and the possible impact of COVID-19 on sites and surrounding communities. For a site where a decision is made to temporarily pause work, EPA directs the Region to continue to monitor site conditions and plan to resume work as soon as appropriate.
New York ESD Updated Guidance for Determining Whether a Business Is Essential
The April 9, 2020 update from ESD provides further guidance for determining whether a business is deemed essential under Governor Cuomo’s March 20, 2020 Executive Order 202.8, which directs all “non-essential” business to implement remote work policies. ESD’s initial guidance, published March 24, 2020, listed “construction” as a category of “essential business,” “including skilled trades such as electricians and plumber,” and “for essential infrastructure or for emergency repairs and safety purposes.” On March 27, ESD updated the initial guidance and directed, with certain limited exceptions, that “[a]ll non-essential construction must be shut down.”
Under the April 9 guidance, “emergency construction” continues to be defined as “a project necessary to protect health and safety of the occupants” or where “it would be unsafe to allow [the project] to remain undone.” The guidance provides additional considerations for “essential construction,” which may proceed to the extent that the construction is for or in support of (a) certain essential infrastructure; (b) hospitals and healthcare facilities; (c) homeless shelters; (d) schools; (e) affordable housing; (f) certain projects in the energy industry; or (g) existing (currently underway) projects of an “essential business.” In all instances, on-site personnel must maintain appropriate social distances, and enforcement may include fines of up to $10,000 per violation.
Gibbons has been monitoring, and will continue to monitor, the developments in this area in New York and New Jersey, where Governor Murphy has also halted non-essential construction projects, and is prepared to assist and advise clients with these and related issues.