by ERIS STAFF
April 6, 2020
Parties that conduct multistate business operations in the U.S. are accustomed to navigating various regulatory frameworks on federal, state, and local levels. In the wake of the COVID-19 pandemic we see the same trend, as 41 states as well as numerous counties and cities, have issued individual “stay at home” orders significantly impacting businesses and commerce.
Flattening the Curve
Under these orders, individuals must stay at home unless conducting essential activities, such as grocery shopping, seeking medical attention, and engaging in allowed recreational activities, or if they are engaged in essential business operations as defined by the state, city, or county. Therefore, nonessential businesses must close their physical buildings and workspaces.
Working from home is permitted across the board. In the absence of mandatory nationwide stay at home restrictions in the U.S., the executive orders issued by individual jurisdictions related to the coronavirus have resulted in a patchwork approach through which businesses must navigate to determine if their operations are essential, or tied to essential, business.
Critical Infrastructure Needs
Some baseline uniformity does exist among the various COVID-19 executive orders (EOs) that define essential business operations, as they are generally tied to the federally-identified 16 critical infrastructure needs as defined by the Department of Homeland Security. Some of those critical needs include water and wastewater, hazardous materials response and cleanup, as well as financial services.
Though only advisory in nature, DHS also has issued detailed guidance that more specifically identifies essential workers.
Activities to protect public health and safety are generally included as essential. There is no specific, standalone category for environmental service providers or workers.
Many state EOs reference or integrate the federally identified critical infrastructure needs into their own directives. Therefore, workers including environmental professionals, supporting these critical needs have relative clarity that such services are considered essential under the various EOs.
State Executive Orders Patchwork
The conundrum for many environmental service providers is the inconsistency and lack of clarity outside these specifically defined critical needs. Some EOs have taken a broad approach to tying essential services to these critical needs, while others have construed things more narrowly. Nuances exist for some services related to engineering, construction, and real estate where they may not directly tie in to critical infrastructure needs or protect health and safety.
California’s Executive Order N-33-20, among the first issued, specifically references the 16 critical infrastructure needs. To help clarify what work is essential in the environmental space, California’s state water board issued guidance deeming compliance with regulations, permits, contractual obligations, primacy delegations, and funding conditions, as essential during the COVID-19 response. The California Department of Toxic Substances Control has not issued formal guidance but has stated that it believes all of its field activities fall within essential operations.
Some consultants in California have indicated they are confident that work supporting general environmental compliance obligations, fieldwork, and remediation are essential business activities. However, they say it’s less clear if work in support of transactions, such as Phase I and Phase II site investigations, similarly fall within that scope.
One area that widely varies among the different states relates to construction. For example, California’s EO directly references the federal critical risk needs, and in related guidance, categorizes as essential all workers who support the construction, operation, inspection and maintenance of construction sites and construction projects (including housing construction). If construction activities in California are essential, related services for engineers and environmental professionals tied to those activities could be as well.
New York also has issued a stay at home order (EO 202.6). Following the order, both the Empire State Development Commission (ESDC) and the New York State Department of Environmental Conservation issued guidance on qualifying essential business activities. Differing from California’s approach, per the ESDC guidance, all non-essential construction must shut down, except emergency construction. A New York City Department of Buildings directive indicates the construction ban specifically applies projects in the voluntary cleanup program where the public health is not at risk. Sites in the investigation and sampling phases also must suspend work.
DEC guidance also provides clarifications as to what it considers essential activities at brownfield program sites. They include remediation activities including new construction where there is a significant threat to public health or environment, completion of construction at sites where remediation is underway and is needed to ensure site safety and prevent exposure, operation and maintenance activities for remedial systems and other remedial measures necessary to protect human health and the environment, and spill response actions.
Texas has issued an Executive Order (GA-14) implementing essential services and activities protocols that again closely mirrors the federal advisory guidelines. In addition, many individual cities and counties in the state have imposed stay at home restrictions. The city of Austin has issued its own executive order that has very narrowly construed some essential businesses and activities. Most commercial and residential construction is prohibited. Legal, accounting, insurance, and real estate services are allowed only when necessary to assist with legally mandated activities or to further an essential business, essential government function, or critical infrastructure.
However, where conflicts now exist with the state EO, it is possible that some of these more restricted activities could be allowed if the state order has categorized these essential services more broadly.
Florida’s recently issued Executive Order (EO 20-91) closely follows by reference and inclusion of the DHS list of critical infrastructure needs and essential services. Prior to the state order, many local jurisdictions and counties throughout Florida had enacted their own stay at home orders defining essential services. Florida’s state EO adds to the list of essential services anything that was included in Miami-Dade’s order (EO 20-89). Notably, the Miami-Dade order specifically allows for continued work on open construction sites, irrespective of the type of construction. The Florida Department of Environmental Protection has not yet provided any specific guidance on essential activities but issued an order stating other than limited 30-day extensions of regulatory deadlines, it expects parties to meet all regulatory, compliance, and enforcement obligations. As such, environmental professionals engaged in activities that support such obligations would appear to be essential during the COVID-19 pandemic.
Practical Considerations During COVID-19
Considering the variety of approaches at the state and local levels, practitioners must be diligent and familiarize themselves with individual EOs and look to state agencies for guidance, understanding that environmental compliance obligations, remedial activity, and emergency response actions remain essential. Supporting critical infrastructure needs, including financial services, similarly are considered essential. However, for essential lending and real estate transactions, understand that even if work can continue, there may be issues related to site access, as well as possible closure of local recording offices and research libraries.
It is also worth noting that environmental agencies are evaluating how to respond to COVID-19–related compliance issues. EPA recently issued guidance on its enforcement discretion policy related to coronavirus, as have some state agencies (including Texas, California and Florida) but there is not yet a uniform approach. As this situation is fluid, parties with environmental compliance obligations should assume compliance is mandatory but would be wise to communicate with regulators if they are unable to meet their regulatory obligations due to COVID-19.