On April 10, 2020, the U.S. EPA published an interim memorandum titled “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19,” available here, intended as guidance to EPA's regional field offices amid growing concerns regarding the impact of COVID-19 on-site cleanup activities. Specifically, the memorandum provides guidance regarding decisions to continue, reduce, or halt on site cleanup activities amid the challenges posed by the COVID-19 outbreak.

Such decisions will be made by EPA on a case-by-case basis while taking into consideration the Agency’s essential priorities, which are: (1) protecting the health and safety of the public, as well as maintaining the health and safety of EPA staff and cleanup partners, and (2) maintaining EPA’s ability to prevent and respond to environmental emergencies, or any situation necessary to protect public health, welfare, and the environment.

This approach will apply to EPA determinations related to requests from outside parties engaged in cleanup and response sites for extensions or delays in performance and in a manner consistent with any preexisting agreements or enforcement instruments providing for adjustments of schedules.

The interim memorandum also includes specific instructions to EPA regional field offices on the following matters:

1. Taking into account site-specific factors in determining whether response actions should continue, be reduced, paused, or resumed. For example, regional administrations should consider whether the failure to continue response actions would pose an imminent threat to human health or that of the environment, and the feasibility of continuing such actions.
2. Applying relevant enforcement instruments in deciding whether to extend or pause work obligations. For example, such instruments may contain provisions allowing for adjustments to responsible parties in providing requisite notice and/or other information to EPA related to a requested extension.
3. Conducting and continuing non-field-site work to further cleanup initiatives. This includes work that can be performed virtually or remotely, such as investigation reports, modeling, party negotiations, decision documents, clean up documentation, work plans, progress reports, and maintaining compliance with obligations such as financial assurance.
4. Planning the next steps after pausing site work. If, and when, the determination is made to temporarily reduce or suspend response-action work, regions should continue to monitor site conditions and develop a plan of action for resuming work when safe and appropriate to do so. Regions should utilize the internal EPA document and CERCLA Interim Guidance on Public Engagement During COVID-19 in order to continue the involvement of Superfund communities at all sites, regardless of whether work has been paused or remains ongoing.

In addition, parties are expected to maintain frequent communication with EPA project managers regarding the status of their respective sites and associated field work, anticipated challenges or delays, as well as current or prospective mitigation measures. Moreover, and consistent with EPA's primary concern for public health and safety, none of the factors outlined in the Interim Guidance should be applied in any manner that would override or frustrate protection against unnecessary potential exposure to COVID-19.

If you have any questions about environmental law during the COVID-19 outbreak, or environmental law in general, please reach out to one of Hanson Bridgett's Environmental Lawyers.