Legal Blogs and Updates

The U.S. Environmental Protection Agency (EPA) issued interim guidance late last week to its regional offices regarding environmental cleanups being conducted during the COVID-19 crisis. The EPA has indicated that this cleanup work is considered "essential" and must be continued in order to respond to environmental emergencies at Superfund sites, risk management program facilities, response plan facilities, or in situations where human health or the environment must be protected from the releases of chemical, oil, radiological, biological or other hazardous materials.

However, since the beginning of April, on-site work has been reduced or stopped at approximately 34 Superfund sites identified on the National Priority List (approximately 12% of EPA sites with ongoing remedial actions) due to COVID-19 concerns. Accordingly, the EPA has now issued guidance that decisions regarding on-site activities should be considered on a case-by-case basis with 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.
• Maintaining EPA’s ability to prevent and respond to environmental emergencies.

The guidance also includes directions to regional offices on the following issues:

• Considering site-specific factors when deciding on whether response actions will continue or be reduced, paused or resumed – Consideration of these factors will help the Agency make nationally consistent decisions in addressing factually similar situations.
• Applying applicable enforcement instruments – Decisions to extend obligations or pause work obligations will be made in accordance with applicable enforcement instruments.
• Conducting non-field site work – Work conducted virtually is to continue, including investigative reports, modeling, negotiations, decision documents, cleanup documentation, etc.
• Planning for next steps after pausing site work – Regions will continue to monitor site conditions and plan the logistics for resuming field work as soon as possible.

Superfund site teams are also asked to cancel or postpone in-person public meetings, door-to-door visits, and other site-related face-to-face interactions.

The interim guidance focuses on decision making at emergency response and longer term cleanup sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. This includes cleanups under the Superfund program, Resource Conservation and Recovery Act corrective actions, Toxic Substances Control Act cleanups, Oil Pollution Act spill responses, and the Underground Storage Tank actions.

Thus far, regions have decided to reduce or suspend response actions at particular sites where:

• 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.

Click to read the EPA's Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19. We will continue to keep you apprised of developments impacting environmental projects as a result of the novel coronavirus outbreak.