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Law360 (April 30, 2020, 5:34 PM EDT) --
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| Eric Moorman |
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| Stephanie Amaru |
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| Mark Elliott |
In response to the pandemic, California's state and local authorities have issued a cascade of stay-at-home orders prohibiting residents from leaving their homes, except to perform certain essential activities. While furthering important public health goals, the orders' brevity creates uncertainty as to which activities qualify as essential and are thus exempt.
Since these directives are likely to remain in place for the foreseeable future, it is imperative that California businesses understand how these restrictions affect their environmental compliance obligations. In particular, many businesses have raised questions regarding whether the restrictions include fieldwork performed by environmental contractors.
Specifically, do these orders allow environmental contractors to perform work required for compliance with administrative orders issued by state and federal environmental agencies? Are contractors allowed to perform voluntary work to support site remediation under development cleanup agreements with the state or private parties; to advance new construction projects; or to conduct environmental site assessments to support commercial real estate transactions?
The answers to these questions depend on the swiftly changing mandates of the various jurisdictions. Many California stay-at-home orders include exceptions for essential businesses that likely encompass most of the environmental contractor activities. However, because COVID-19 response directives — at the local, state and federal level — are evolving on a daily basis, it is imperative for businesses to stay up to date on local requirements applicable to their operations.
The following survey covers exceptions to the stay-at-home directives in several California jurisdictions that may apply to environmental contractors.
Statewide Executive Order
On March 19, Gov. Gavin Newsom issued Executive Order No. N-33-20, directing all California residents to stay at home, except as needed to perform certain essential services needed to maintain critical infrastructure. The state public health officer's list of "Essential Critical Infrastructure Workers" identifies essential service sectors and employees exempt from the statewide mandate.
While the list does not specifically mention environmental contractors, it identifies several categories of essential business sectors and services that potentially encompass their work, including:
- Chemical sector:
- Workers supporting the operation and maintenance of facilities (particularly those with high risk chemicals or sites that cannot be shut down) whose work cannot be done remotely, and requires the presence of highly trained personnel to ensure safe operations, including plant contract workers who provide inspections.
- Energy sector:
- Environmental remediation/monitoring technicians.
- Water and wastewater sector:
- Operational staff at water authorities and wastewater treatment facilities.
- Workers repairing water and wastewater conveyances and performing required sampling and monitoring.
- Operational staff for water distribution, testing and wastewater collection facilities.
- Hazardous materials sector:
- Workers who support hazardous materials response and cleanup.
- Community-based government operations and essential functions:
- Construction workers who support the construction, operation, inspection and maintenance of construction sites and construction projects.
- Service providers who provide services necessary to maintaining the safety, sanitation, construction, material sources and essential operation of construction sites and construction projects, including the removal, storage and disposal of solid waste and hazardous waste.
To the extent that fieldwork performed by environmental contractors supports the above activities, it may be considered essential and therefore exempt from the statewide order.
For example, environmental consultants or contractors may fall within the category of workers "who support hazardous materials response and cleanup," and/or who provide services necessary to maintaining safety sanitation, and essential operation of construction sites and construction projects, including those who "ensure the effective removal, storage and disposal of solid waste and hazardous waste."
Additionally, where fieldwork is necessary to support compliance with permit requirements or agency orders, it may fall within the executive order's broad exemption for professional services, including "legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services."
Local Stay-at-Home Orders
Many local jurisdictions in California have issued their own orders adopting additional or different categories of essential activities or essential businesses that may apply to environmental contractors. While there is overlap between the statewide and local requirements, the local requirements are generally more restrictive.
A review of several local orders suggests three broad categories of exempt activities that potentially include environmental contractor fieldwork.
Professional Services in Support of Legally Mandated Activities
Like the statewide order, most local California stay-at-home orders include exceptions for certain professional services to support legally mandated activities. For example, the nearly-identical updated shelter-in-place orders issued by the six most populous Bay Area counties on March 31 identify certain professional services as essential, including "legal, notary, or accounting services, when necessary to assist in compliance with non-elective, legally required activities."
The updated "Safer at Home" order issued by the Los Angeles County Department of Public Health on April 10 similarly defines essential businesses to include "[p]rofessional services, such as legal, payroll, or accounting services, when necessary to assist in compliance with legally mandated activities." These exceptions are likely broad enough to include environmental field work for the purposes of compliance with facility permits or administrative enforcement orders.
Supporting this conclusion, at least by inference, is recent state and federal guidance. On April 10, the U.S. Environmental Protection Agency issued interim guidance to its regional offices regarding new and ongoing site fieldwork during the COVID-19 pandemic.
The guidance applies to sites where the EPA is lead agency or has direct oversight over the cleanup work, including actions under Superfund, the Resource Conservation and Recovery Act and others. The guidance states that decisions regarding continuing, reducing or pausing fieldwork during the COVID-19 pandemic should be made on a case-by-case basis according to several site-specific factors.
For example, EPA regional offices should consider whether to continue site operations or secure the site pending resolution of the public health threat, "[e]specially in areas where federal, state, tribal, or local health declarations are in effect due to COVID-19." Reading between the lines, it is clear that the EPA considers the environmental consulting industry open for business.
The California Environmental Protection Agency, or CalEPA, has not issued comparable statewide guidance regarding environmental fieldwork during the COVID-19 pandemic. However, on April 15, CalEPA released a brief statement noting that the agency "will continue to respond, investigate, and — when necessary — take action on complaints related to environmental noncompliance," and that "ongoing clean-up of contaminated sites will be prioritized to abate or prevent an imminent threat to public health or the environment."
The statement also notes that extensions of regulatory deadlines, "may be warranted under clearly articulated circumstances," but regulated entities that cannot meet a specific requirement due to COVID-19 must contact the appropriate CalEPA agency before falling out of compliance.
The various oversight agencies in California have generally not tapped the brakes on environmental obligations, including site investigation and remediation. For example, on March 20, the State Water Resources Control Board issued a notice indicating that it considers compliance with agency orders and other requirements to be "within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials."
On March 20, the Chair of the California Air Resources Board, or CARB, issued a similar bulletin stating that the agency will "ensure business continuity," including "proposing new and implementing existing regulations [and] enforcement." The bulletin also notes: "CARB's regulations continue to be in effect and deadlines apply." The CARB notice does not mention the effect of local orders on environmental fieldwork, but suggests that relief generally will not be provided for noncompliance.
Most recently, on April 15, the South Coast Air Quality Management District issued a notice that the agency will exercise limited enforcement discretion on a temporary basis, by extending certain administrative permitting, testing, reporting and certification deadlines. However, the district cautions that regulated entities "should make every effort to comply with all applicable air pollution control requirements," including agency rules, permits and orders.
These agency notices suggest that, while relief from permitting requirements may be available in limited circumstances, environmental fieldwork in California should generally continue.
Construction and Construction-Related Activities
Many categories of work performed by environmental contractors may qualify as essential because the work supports construction activities. For example, the statewide executive order deems essential construction workers "who support the construction, operation, inspection, and maintenance of construction sites and construction projects."
Such activities should include environmental activities necessary to advance construction projects. However, local jurisdictions differ widely as to what types of construction are permitted.
The L.A. County order defines essential construction activities broadly to include "the operation, inspection, and maintenance of construction sites and construction projects for construction of commercial, office and institutional buildings, residential and housing construction." By contrast, the Bay Area shelter-in-place orders define construction more narrowly, prohibiting most residential and commercial construction., with limited exceptions.
Therefore, businesses should consult the local orders applicable to the project site to determine which specific types of construction, and related environmental support, may be permitted.
Services Necessary to Maintain Safety, Sanitation and Operation of Essential Businesses and Essential Infrastructure
Many California stay-at-home orders include exemptions for broad categories of services aimed at maintaining the safety or sanitation of the state's essential businesses and infrastructure.
For example, the statewide executive order identifies as essential certain service providers whose services are "necessary to maintaining the safety, sanitation, construction, material sources, and essential operation of construction sites and construction projects," including those that provide support "to ensure the effective removal, storage, and disposal of solid waste and hazardous waste."
The Bay Area and L.A. County orders include similar lists. While environmental contractors are not expressly included, they arguably fall within the broader category of "other service providers" who help maintain the safety and sanitation of other essential businesses.
Several orders also include exceptions for activities related to critical infrastructure. For example, L.A. County allows residents to "perform any work necessary or provide any services to or obtain services from" certain essential infrastructure operations, broadly defined to include public works construction, water, sewer, gas, electrical, oil extraction and refining, solid waste collection, removal and processing, and flood control and watershed protection.
Similarly, the Bay Area shelter-in-place orders deem essential those businesses that operate, maintain or repair essential infrastructure, including oil refining and solid waste facilities. Because environmental contractors provide services related to many of the types of essential infrastructure listed above, their work may arguably be exempt from many jurisdictions' stay-at-home mandates.
Eric Moorman and Stephanie Amaru are associates, and Mark Elliott is a partner, at Pillsbury Winthrop Shaw Pittman LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc. or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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