March 25, 2020
Garrett D. Trego
MGKF Special Alert
As state governments and the federal government issue new guidance, advisories, and orders regarding economic shutdowns and exemptions on a daily basis in response to the COVID-19 outbreak, many responsible parties and their environmental consultants and contractors are left wondering how these actions impact their obligations at remediation sites. While most orders allow environmental consulting firms to continue practicing, at least through a telework arrangement, many may limit a firm’s ability to practice in-office or in the field. To varying degrees, and with varying levels of ambiguity, states’ orders provide exemptions from Stay-at-Home and similar orders that may allow firms’ on-site work at remediation sites to continue.
In the chart available through the link below, we briefly summarize the application of each state Stay-at-Home order on business operations within the state and identify the most basic exemptions that may apply to responsible parties’ environmental remediation activities and consultants’ and contractors’ in-office and on-site practices. This summary chart is not intended to be an exhaustive list or to be relied upon as a complete and nuanced statement of the law in any given jurisdiction; rather, we hope that it will provide a starting point for interested parties to analyze their obligations in these states where orders have been issued. We are monitoring daily events as states revise their orders and new states issue similar orders. We are doing our best to keep this summary up to date. Because of the rapidly changing nature of this national crisis, however, keep in mind that there may be times when current events outpace our ability to update the summary. Consultation with your legal counsel concerning specific factual scenarios is always recommended.
As further described in the chart available through the link below, it is important to reference that on March 19, 2020, the Cybersecurity & Infrastructure Security Agency (CISA) within the U.S. Department of Homeland Security issued guidance on identifying essential critical infrastructure workers and activities that it advised should be exempted from Stay-at-Home and similar orders. This non-binding guidance includes recommendations regarding activities that should be exempt. The most obviously applicable recommended exemption is the exemption for “workers who support hazardous materials response and cleanup,” though no additional explanation is provided regarding the recommended scope of this exemption. Many but not all states refer to this federal guidance in their orders. As indicated in the chart, some states provide more specific exemptions for “environmental remediation,” while others are more ambiguous with regard to defining the scope of “essential” business activities. Questions about the chart may be directed to Kate Campbell (484-430-2316) or Garrett Trego (484-430-2321).