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Both California Governor Gavin Newsom’s March 20, 2020, executive order [1] and Washington Governor Jay Inslee’s March 23 proclamation [2] require residents in those states to stay at home to help thwart the spread of the Novel Coronavirus (COVID-19). The orders are substantially similar, restricting business as usual. Both states supplemented their orders with identical lists of “Essential Critical Infrastructure Workers” (“ECIW”), [3] identifying workers that may leave home to perform their jobs. The broad description of workers included within the definition of ECIW allows a reasonable conclusion that any labor needed for the investigation and cleanup of contaminated properties is exempt from the stay at home orders.
Although identified within the “Electrical Industry” sector, both states identify “Environmental remediation/monitoring technicians” as “essential workforce” within the scope of ECIW. Notwithstanding the industry sector placement, the inclusions suggest that work-related site investigations and cleanups should be exempted from the stay at home orders. This conclusion is bolstered by the inclusion of similar workers from other sectors, such as hazardous materials response and cleanup, within the definition of ECIW. Accordingly, the stay at home orders should not prevent work to investigate and clean up historical contamination.
Any understanding of what work may proceed under the states’ stay at home orders must be harmonized with a myriad of stay at home and shelter-in-place orders issued locally, by counties or cities, that may further restrict who may leave home and for what reason. Generally, a local government may not make law that conflicts with a state law but it is generally within the municipality’s powers to enact more restrictive rules. For example, six counties [4] in the San Francisco Bay Area and the City of Berkeley took the extraordinary measure of issuing identical, stringent, shelter-in-place orders. [5] The shelter-in-place orders, on their face, are more restrictive than the Governors’ orders. The class of workers allowed to leave home is limited to those associated with “Essential Infrastructure” a definition that results in a much smaller labor force than allowed by the definition of ECIW. Further, there is no specific exception for work involving environmental remediation or investigation. “Essential Infrastructure” is generally defined to limit construction to public works, residential, utilities, and transportation, and does not identify a group into which site investigations and cleanup might be easily slotted.
It would not be unreasonable to interpret the Bay Area shelter-in-place orders to exclude work associated with the investigation and remediation of environmental contamination. At least one county in California, San Mateo, has taken this position. San Mateo County Health’s “COVID-19 FAQ” page lists “drilling of borings and environmental/monitoring wells” and “underground storage tank removal or installation” as impermissible activities under the shelter-in-place order. [6] While not an extensive discussion, San Mateo County’s list of temporarily suspended work suggests that work often central to environmental investigations and remediation are on hold through at least April 7, 2020, the tentative end date of the shelter-in-place order. San Mateo’s Groundwater Protection Program, the department tasked with overseeing groundwater cleanups in the County, is advising stakeholders at sites under its jurisdiction that some work, including regular monitoring, is on hold unless there is an imminent threat to the environment or human health. [7]
Generally, municipalities in the State of Washington, such as King County, that issued early Coronavirus health orders limited businesses such as bars, restaurants, and entertainment venues. These limitations do not appear to apply to construction work or environmental projects.
Responsible parties that are planning or currently have projects under the oversight of local agencies, including those in the San Francisco Bay Area, would be well served to do the following before initiating or canceling any work: (1) review the applicable shelter-in-place order and stay at home order; (2) review any Coronavirus guidance offered by the local health department; and (3) simply check in with the case manager for the agency that has oversight of a particular site and request guidance on the effect of the shelter-in-place order in connection with any anticipated work. Responsible parties should consult with counsel to alleviate any uncertainty.
The earliest and most robust response to the stay at home and shelter-in-place orders came from California’s State Water Resources Control Board and the State’s Nine Regional Board (collectively “Water Board”) who issued a joint advisory. The joint advisory states that neither local shelter-in-place orders nor the Governor’s EO would excuse compliance or allow for delayed compliance with Water Board permits, orders, or directives such as site cleanup requirements (“Directives”). [8] As stated in the advisory, the Water Board considers regulatory compliance within any “essential activities” exceptions under the local orders or EO.
The Water Board also established a process whereby a responsible party can “petition” for relief if it believes that compliance or timely compliance is impossible due to a coronavirus-related order or issue. The party responsible for compliance with the Directive must immediately advise the Water Board, by e-mail, of the following:
The guidance document then identifies specific e-mail addresses, depending on the type of Water Board directive at issue, for a responsible party to send the above information regarding delayed compliance. But it is also recommended that the applicable case manager be included in the communication.
To date, California’s Department of Toxic Substances Control (“DTSC”) and the United States Environmental Protection Agency for Region 9, the EPA division overseeing California, Washington, and Oregon, have not publicly issued general guidance regarding the impact of either the Coronavirus or the stay at home orders. However, DTSC has already communicated to stakeholders at one cleanup site DTSC’s position that ongoing work is deemed excepted from the stay at home orders as ECIW. Similarly, Region 9 has informed PRPs at one site that investigation and remediation work fall within the ECIW exception of the stay at home orders. [9]
As noted above, there only appears to be one California-Local Oversight Program (“LOP”), San Mateo County of Health Groundwater Protection Program, that has taken a contrary position: that the shelter-in-place order puts work on hold. As of this writing, no other LOP has issued a general guidance document.
On March 26, The State of Washington Department of Ecology (“Ecology”) issued its public guidance on the impact of the Coronavirus. [10] Notably, Ecology’s guidance document does not directly address the Governor’s stay at home order but acknowledges that the “public health crisis and economic disruptions” related to the Coronavirus may “temporarily” affect some of the regulated community’s ability to “comply with all state requirements.” In acknowledging likely Coronavirus impacts, Ecology stresses “regulatory flexibility.” Ecology is not suspending any applicable requirements but states in the event of non-compliance, “Ecology will exercise reasonable discretion within [its] authority when deciding to pursue potential violations…” Taken as a whole, the guidance should be interpreted to mean that the stay at home order does not suspend work in connection with site investigations or cleanups but that Ecology will not ignore legitimate disruptions caused by the pandemic.
Ecology also stresses the need for the regulated community to document Coronavirus disruptions and timely communicate, with specific information, the nature of the impact. This guidance, documentation and timely communications, is good advice for any potentially liable party delayed or otherwise impacted by coronavirus issues.
On the same day that Governor Inslee issued Washington’s stay at home order, Oregon Governor Kate Brown issued her own executive order limiting Oregonians’ ability to leave home for recreational reasons and closing non-essential businesses. [11] Against this background, Oregon’s Department of Environmental Quality (“DEQ”) has already stated that “All applicable DEQ requirements remain in effect. However, DEQ will continue to exercise reasonable enforcement discretion within its authority when deciding whether to pursue potential violations caused by pandemic-related disruptions.” Similar to Ecology’s guidance, for any regulated entity seeing relief from DEQ requirements must: (1) document the Coronavirus-related disruption; and (2) justify how disruption caused or may cause non-compliance.
It is not uncommon for an investigation or cleanup to occur pursuant to a unilateral document such as a Water Board order or USEPA administrative order or a negotiated agreement such as an Ecology Agreed Order or a USEPA consent decree. Generally, these documents all contain provisions for delayed performance or a “Force Majeure” provision. Regarding provisions for delayed compliance or schedule extensions, responsible parties should pay close attention to language that often requires notice to the agency as soon as possible. In the case of a USEPA administrative order, the model language requires notice by e-mail and telephone within 48 hours of knowledge of a potential delay with a written follow-up within seven days. Despite these provisions, schedule extensions are generally discretionary at the pleasure of the agency. A USEPA consent decree will often contain a “Force Majeure” provision. This provision may also provide relief from causes beyond the control of the responsible party but, again, is at the discretion of the agency.
Based on current guidance, the shelter-in-place or stay at home orders, alone, are unlikely to serve as the basis for a successful extension request. An actual virus-related impact may be valid grounds for delayed compliance.
Parties performing work under an agreement or order now would be best served to be familiar with following: (1) when does notice need to be provided and in what manner; (2) what is required to be in the substance of notice; and (3) where does the notice need to be directed. The information required under the operative agreement or order should be supplied in addition to any additional information identified in any agency issued guidance document. Finally, in the event that a request for schedule modification is rejected, if the request occurs under a negotiated agreement, such agreements generally contain dispute resolution mechanisms that may be deployed to help resolve delays.
Project managers should review their operative health and safety plans to ensure that adequate protections are made to limit coronavirus spread. Incorporation of additional precautions identified in many of the shelter-in-place orders are likely a good start: (1) workers maintaining social distancing (i.e., remaining six-feet apart); (2) regular washing of hands with soap and water as frequently as possible or using hand sanitizer; (3) hygiene practices such as covering coughs; (4) regular cleaning high-touch services; and (4) not shaking hands. Once the plans are updated, those responsible for health and safety plans should take inventory to confirm that plans can be faithfully executed by ensuring that required equipment, such as handwashing stations, and personal protective equipment (PPE) is available amidst growing demand.
Additionally, contractors should consult with local health authorities to determine if there are any new or additional requirements related to the coronavirus. For example, Los Angeles County requires an exempt business to conspicuously post signage that, if an individual is experiencing symptoms of respiratory illness, including cough or fever, the individual is not allowed to enter. [12]
Contractors should also review work plans to assess the ingress and egress of staff and subcontractors. To allow for the safety of workers, extra coordination among staff and subcontractors may be required, specifically, project managers may need to revise start and end times for various crews to as to limit the number of people on-site or to ensure that social distancing can take place. This becomes even more complicated where work is required to take place adjacent to active businesses that remain open such as dry cleaners or gas stations.
Project Managers should also re-examine project timelines with an emphasis on delays around permitting and regulatory approvals. A survey of most agencies, the Water Board and Ecology included, reveals that most offices are now closed to the public and most employees are working at home. Offices that perform construction permitting have discontinued walk-in services in favor of limited service appointment. Stated another way, regular administrative tasks are likely to take longer than usual.
Project managers also need to reassess whether or not certain off-site work can occur. Garden variety work such as indoor air sampling, sub-slab sampling, and receptor surveys (that involve door-to-door work) should be reassessed balancing the environmental risk being investigated against the risk posed by virus contamination. And if such work does proceed, as noted below, a good communication plan is essential.
Environmental professionals, understandably, should be prepared for adjacent property owners to be less receptive to invasive work – especially where that work takes place in personal residences. Contractors should be particularly sensitive with work such as indoor air sampling or sub-slab sampling which may exacerbate a homeowner’s anxieties. Accordingly, a communication plan, clearly explaining the work to be performed, the duration of the event, and specific virus mitigation measures to be taken needs to be at the ready. This information should be conveyed well in advance of any proposed sampling date so as to allow sufficient time to address any occupant concerns and work out any access issues. In the event that access is refused, contractors should take care to document the same and seek relief from the appropriate regulatory agency.
In this light, this is a good time for contractors to review their access agreements and reassess what sort of liability is retained for off-site work. This is particularly true where a subcontractor may be retained to perform off-property work. Further, and especially where subcontractors will be relied on, contractors should evaluate subcontracts to confirm that they will be defended and indemnified in the case that subcontractor is negligent in the performance of its work – as relevant here, failing to follow health and safety considerations that might result in the spread of coronavirus could have further liability implications. Finally, contractors should request update proof of insurance for any subcontractor being used on site.
With limited exceptions, most environmental investigations and cleanups are exempted from the various stay at home orders. Environmental contractors that work in close proximity to active business or inside residential spaces, should reevaluate their projects, to ensure that projects are still on schedule and appropriate health and safety precautions are in place mitigate against the Coronavirus threat. Contractors and their clients should not hesitate to seek counsel as they attempt to navigate new regulations in an already complex ecosystem.
[1] https://www.gov.ca.gov/wp-content/uploads/2020/03/EO-N-33-20-COVID-19-HEALTH-ORDER-03.19.2020-002.pdf
[2] https://www.governor.wa.gov/sites/default/files/proclamations/20-25%20Coronovirus%20Stay%20Safe-Stay%20Healthy%20%28tmp%29%20%28002%29.pdf
[3] On March 22 the California State Public Health Officer released a list of included ECIW. The list may be found here: https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf . Governor Inslee’s March 23 Proclamation included an Appendix, listing ECIW, which can be found here: https://www.governor.wa.gov/sites/default/files/WA%20Essential%20Critical%20Infrastructure%20Workers%20%28Final%29.pdf .
[4] The six counties are San Francisco, San Mateo, Santa Clara, Alameda, Contra Costa, and Marin.
[5] E.g., https://coronavirus.marinhhs.org/sites/default/files/Files/Shelter%20in%20Place/Shelter%20in%20Place%20Order%2016%20March%202020.pdf
[6] https://www.smchealth.org/coronavirus (last visited 3/26/2020).
[7] California’s Santa Clara County Department of Health’s “COVID-19 FAQ” page, does not specifically address environmental projects but reaffirms that construction that does not support “essential infrastructure” is on hold and new projects need to be delayed (https://www.sccgov.org/sites/phd/DiseaseInformation/novel-coronavirus/Pages/frequently-asked-questions.aspx (last viewed 3/26/20)).
[8] https://www.waterboards.ca.gov/resources/covid-19_updates/
[9] On March 26, 2020, the USEPA issued its own Coronavirus advisory addressing enforcement for noncompliance during the Coronavirus pandemic. The USEPA’s guidance did not address investigation and cleanup obligations under CERCLA and RCRA orders but suggested that those might be addressed at a later date.
[10] https://ecology.wa.gov/About-us/Get-to-know-us/Coronavirus-Updates/Regulatory-flexibility
[11] https://govsite-assets.s3.amazonaws.com/jkAULYKcSh6DoDF8wBM0_EO%2020-12.pdf
[12] http://publichealth.lacounty.gov/media/Coronavirus/COVID-19_March%2021-HOOrder-7_00_FINAL2.pdf.
