Environmental Professional Work in the D.C. Metro Area During the COVID-19 Pandemic

Jurisdictions across the United States are responding to the coronavirus (COVID-19) pandemic at the federal, state and local levels by issuing emergency stay-at-home and shelter-in-place orders (Orders) that generally prohibit onsite business activity except for work that is deemed "critical" or "essential" (hereinafter, "Essential Work" or "Essential Workers"). However, these key terms are currently defined, interpreted and enforced differently, or not at all, by each jurisdiction.

This Holland & Knight alert outlines the Orders and agency guidance that have been issued in Virginia, Maryland and Washington, D.C. (collectively, the D.C. Metro Area) relating to the exemptions for Essential Workers, and briefly discusses the implications for the work activities of environmental professionals, including Phase I Environmental Site Assessments and Phase II sampling for due diligence, remediation, compliance inspections, and ongoing monitoring and sampling obligations, etc. (collectively, Environmental Work), in each jurisdiction.

Maryland, Virginia and Washington, D.C., have issued temporary Essential Work Orders and, in the case of Virginia and Washington, D.C., their environmental agencies have released guidance or policies about compliance with environmental laws. It is imperative for environmental professionals that perform Environmental Work, and the developers and businesses that engage them, to review these Orders and agency guidance to determine if the Environmental Work is essential, and to comply with the restrictions in place in each jurisdiction. In sum:

• Maryland and Washington, D.C., have temporarily suspended all nonessential business activities. Virginia has temporarily suspended all nonessential retail activities, but is permitting professional businesses to remain open provided that the work cannot be conducted remotely and in compliance with social distancing practices.
• All three jurisdictions have released guidance that identifies essential businesses, but Virginia's list only pertains to the retail industry.
• Virginia's Department of Environmental Quality (DEQ) and Washington, D.C.'s Department of Energy and Environment (DOEE) have released guidance on compliance with environmental laws and permitting. Virginia's DEQ has also released a temporary enforcement discretion policy. Maryland's Department of the Environment (MDE) has yet to issue any guidance, but has committed to providing additional details at a later time.

This Holland & Knight alert also summarizes the federal Cybersecurity and Infrastructure Security Agency's guidance (CISA Guidance) that identifies essential critical infrastructure workers that will "need to be able to operate resiliently during the COVID-19 pandemic." The list is advisory in nature, and recommends that individual jurisdictions modify their essential workforce categories as needed. Some jurisdictions have wholly adopted the CISA's guidance, while others, including Maryland and Washington, D.C., have adopted only portions of the CISA Guidance list or amended the list to suit the jurisdiction's needs. Some jurisdictions, including Virginia, have yet to adopt the CISA Guidance. The CISA Guidance does not include a specific section pertaining to environmental professionals; however, as discussed below, the CISA Guidance lists several essential worker types that may pertain to certain Environmental Work.

This alert also briefly summarizes the U.S. Environmental Protection Agency's (EPA) and Virginia's guidance on enforcement discretion with respect to issuing civil penalties for noncompliance during the COVID-19 pandemic in light of Orders and agency guidance. When Orders permit Environmental Work that is necessary for an entity's compliance with environmental laws, then the Environmental Work should proceed to avoid civil or criminal enforcement. On the other hand, if such Environmental Work is not considered essential under a jurisdiction's Order, then the regulated entity must fully document that noncompliance was unavoidable because of these restrictions in order to qualify for enforcement discretion.

It is recommended that Environmental Workers and regulated entities follow these Orders and temporary policies to avoid facing potential penalties that are set forth in each jurisdiction for violation of applicable COVID-19 restrictions, and to comply with federal and local guidance on enforcement discretion. It should also be noted that COVID-19-related polices are constantly evolving, and therefore should be reviewed regularly and prior to engaging in any Environmental Work. Holland & Knight is issuing state agency-specific updates, which can be accessed on our COVID-19 Response Team webpage.

Details of the Essential Worker Exemption by Jurisdiction as it Relates to Environmental Work

Federal Agency Guidance and Enforcement Discretion Policy

A. Cybersecurity and Infrastructure Security Agency Guidance on Critical Infrastructure Workers

CISA released a document (updated on March 28, 2020) titled Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response (CISA Guidance), which identifies essential critical infrastructure workers that will "need to be able to operate resiliently during the COVID-19 pandemic." The list is advisory in nature, and recommends that individual jurisdictions "add or subtract essential workforce categories based on their own requirements and discretion." Some jurisdictions have wholly adopted the CISA Guidance list, while others, such as Maryland and Washington, D.C., have adopted portions of the CISA Guidance list and/or amended the list to suit the needs of the jurisdiction. Some jurisdictions, such as Virginia, have yet to adopt the CISA Guidance at all.

The list in the CISA Guidance focuses on industries that provide essential services such as medical and health-related services, social services and community-based functions, public safety and first responders, water and wastewater, transportation, energy infrastructure, public works and infrastructure support, communications, critical manufacturing and other industries that generally support these essential services. There is no express section pertaining to the environmental industry in the CISA Guidance document. However, depending on the Environmental Work being performed, the CISA Guidance lists some worker types that may apply to allow Environmental Work to be performed, such as:

• environmental remediation/monitoring, limited to critical needs technicians
• workers supporting the energy sector
• workers who manage hazardous materials associated with any other essential activity
• residential and commercial real estate services, or
• workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, and supply chain and COVID 19 relief efforts

The CISA Guidance does not define or provide any interpretation of what specifically each of these worker types includes, nor does it define any of the terms contained in the list. Parties should, even if a jurisdiction has adopted the CISA Guidance, review the applicable Orders and guidance before determining if Environmental Work is an essential activity that is permissible in that jurisdiction. The state, district or commonwealth is the ultimate decision-maker for identifying Essential Workers that are able to continue working under its restrictions. The Orders that have been issued by the jurisdictions in the D.C. Metro Area are discussed below.

B. U.S. EPA Temporary Enforcement Guidance and Essential Work

On March 26, 2020, the U.S. EPA issued a temporary policy memorandum titled COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program (Enforcement Discretion Policy). EPA has indicated that it expects all facilities to comply with federal environmental permits, regulations and statutes during this global health emergency; however, if regulated entities cannot comply with environmental laws because of COVID-19 restrictions, then regulated entities must take the steps outlined in EPA's Enforcement Discretion Policy in order to qualify for enforcement discretion. These steps include an ability to show that noncompliance was an unavoidable result of issues arising from the pandemic and not intentional to avoid criminal enforcement. (For an in-depth summary of EPA's Enforcement Discretion Policy, please see Holland & Knight's previous alert, "EPA's Enforcement Guidance for Noncompliance During the COVID-19 Pandemic," March 30, 2020.)

Close review of the state-issued Orders is imperative to determine if Environmental Work is permissible in each jurisdiction for facilities. If Environmental Work that is necessary for an entity's compliance with environmental laws is permissible under a state's Order, then the permissible Environmental Work should proceed to avoid civil or criminal enforcement. On the other hand, if such Environmental Work is not permissible under a jurisdiction's COVID-19 restrictions, then the regulated entity must document that the noncompliance was an unavoidable result because of the Orders in order to qualify for enforcement discretion.

EPA's Enforcement Discretion Policy also indicates that states and tribes that have been authorized to administer environmental regulations may take a different approach to enforcement under their own authorities, and may maintain their discretion to be more stringent. Therefore, facilities should also monitor COVID-19-related requirements and guidance issued by state environmental agencies.

The remainder of this alert will focus specifically on Maryland, Virginia and Washington D.C.'s COVID-19 restrictions, agency guidance relating to Essential Work under these restrictions, and any guidance specifically pertaining to environmental laws and environmental enforcement during the COVID-19 pandemic.

Maryland

A. Governor's Executive Order

On March 23, 2020, the governor of Maryland issued an Executive Order closing "all businesses, organizations, establishments, and facilities that are not part of the critical infrastructure sectors identified by the U.S. Department of Homeland Security. For a complete summary, please see Holland & Knight's Summary of Executive Order Number 20-03-23-01.

B. State Guidance on Essential Workers

On the same day as the governor issued Executive Order 20-03-23-01, the Maryland Office of Legal Counsel (MOLC) released Interpretive Guidance recommending that the governor's Order should be interpreted such that a non-exhaustive list of additional businesses not specifically mentioned in the governor's Order are not required to close. That list includes "engineering, surveying, architectural, and interior design firms." MOLC's rationale for allowing these businesses to remain open was that they are "included in the federal critical infrastructure sectors," thereby confirming that Maryland adopted the CISA Guidance summarized above.

The MOLC's guidance notes that it may be revised or rescinded at any time and explains that "[c]itizens are urged to consult with their own legal counsel for advice about the application of the Order and this Interpretative Guidance to their particular facts and circumstances."

C. State Guidance on Environmental Laws

The governor of Maryland issued an earlier Executive Order 20-03-12-01 on March 12, 2020, that provided a grace period for any state licenses, permits and/or registrations that may be expiring or up for renewal during the duration of the state of emergency. The Executive Order extended applicable renewal deadlines to the 30th day after the date by which the state of emergency is terminated. MDE has yet to issue any guidance specific to environmental laws and permits, but has committed to providing additional details at a later time.

Virginia

A. Governor's Executive Orders

The governor of Virginia has issued two executive orders, Nos. 53 and 55, which require all individuals to remain at home unless they are undertaking certain essential activities because of COVID-19. For a complete summary, please see Holland & Knight's Summary of Executive Order No. 53.

With respect to business closures, Executive Order 53 indicates that all recreational and entertainment businesses must close, as well as nonessential retail businesses. With respect to professional businesses, Executive Order 53 emphasizes that professional businesses can remain open but must utilize teleworking wherever feasible and adhere to all practices recommended by the U.S. Center for Disease Control (CDC). Executive Order 55 allows residents to leave their homes if they are traveling to and from work.

Based upon the text of Executive Orders 53 and 55, nonretail work activities, including Environmental Work, may continue as long as the work cannot be conducted at home, will not cause a gathering of 10 or more people, and COVID-19-related protection measures such as social distancing and sanitizing practices can be adhered to.

B. State Guidance on Essential Workers

Virginia has not limited all business activities to only essential businesses to the extent that other jurisdictions have, which likely explains why Virginia has yet to adopt the federal CISA Guidance for identifying Essential Workers. Virginia's list of essential versus nonessential businesses only covers the retail industry, requiring all nonessential, brick-and-mortar establishments to close. Virginia has not provided Essential Work guidance for other industries. Therefore, Environmental Work has not been expressly prohibited or permitted in Virginia under the Orders.

C. State Guidance on Environmental Laws

The Virginia Department of Environmental Quality (DEQ) has issued guidance, policy updates and agency updates with respect to DEQ's ongoing operations during the COVID-19 pandemic, as well as how DEQ will apply its enforcement discretion for noncompliance with environmental laws.

With respect to its own activities, DEQ staff have resumed limited monitoring activity and field work such as air monitoring, surface water investigations, pipeline investigations and groundwater monitoring investigations. DEQ's response team has also continued to respond to environmental emergencies and significant pollution incidents. All other field work performed by DEQ staff remains suspended at present.

Mirroring EPA's Enforcement Discretion Policy, DEQ stated that regulated entities must "do everything possible to maintain the safe and environmentally protective operation of their facilities." Furthermore, on March 31, 2020, Virginia DEQ's director stressed that all regulated entities "are expected to make every effort to comply with environmental compliance obligations, adhere to permit limits, and maintain the safe and environmentally protective operation of their facilities." Therefore, regulated entities must continue to perform Environmental Work to comply with federal and state environmental laws and permitting requirements to the extent that such work cannot be performed remotely, will not result in a gathering of 10 or more persons, and social distancing can be maintained. DEQ identified the following operations to be prioritized at regulated facilities:

• fully operate all installed pollution control equipment and treatment measures to reduce pollution
• assure proper facility operation or delivery of service
• monitor, test and report to demonstrate compliance with specific limits in your permit including effluent limits, withdrawal volume, emission limits and disposal volumes
• monitor, test and report to demonstrate compliance with all other requirements, and
• implement best management practices

DEQ also specified that current restrictions should not affect compliance at wastewater treatment facilities, but if such facilities cannot comply with the staffing requirements in their discharge permits then they should notify DEQ.

DEQ has indicated that it would consider noncompliance issues resulting from COVID-19 on a case-by-case basis and exercise enforcement discretion "as appropriate." Specifically, DEQ does not anticipate imposing penalties for the following noncompliance issues caused by COVID-19: "routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and related reporting and certification obligations."

If noncompliance does result from COVID-19, DEQ asked that regulated entities take the following steps:

• communicate regularly with DEQ
• act responsibly to minimize the effects and duration of any COVID-19-caused noncompliance
• identify the specific nature and dates of noncompliance, and how the noncompliance was caused by COVID-19
• provide DEQ with an explanation of the response, including best efforts taken to come into compliance
• return to compliance as soon as possible, and
• document and maintain all related documentation onsite for at least three years

Avoiding enforcement in the event of noncompliance is not automatic. DEQ must find that the noncompliance was caused by COVID-19 in order for the entity to qualify for enforcement discretion. It is therefore imperative that entities thoroughly document every COVID-19-related impact and have procedures in place to implement the recommended steps listed above, in order to avoid being assessed civil penalties or undergoing criminal enforcement for noncompliance resulting from COVID-19.

Washington D.C.

A. Mayor's Order

On March 24, 2020, the mayor of the District of Columbia issued an Order requiring the temporary closure of the on-site operations of all nonessential businesses. This Order, as explained below in more detail, provided guidance on which occupations qualify as Essential Businesses. On March 30, 2020, the mayor issued a stricter Stay-at-Home Order. The Stay-at-Home Order made clear, however, that the provisions of the mayor's March 24, 2020 Order "regarding which businesses are essential" remain in effect. For a complete summary of these Orders, please see Holland & Knight's Summary of Mayor's Executive Order and Summary of Mayor's Stay-at-Home Order.

B. District Guidance on Essential Workers

The mayor's March 24, 2020 Order claimed to be based on the March 19, 2020, CISA Memorandum on Identification of Essential Critical Infrastructure Workers. Despite incorporating the CISA Memorandum, the mayor's Order detailed at length which categories of work are deemed Essential Businesses. The mayor's March 24, 2020, Order clarifies that "professional services not devoted to assisting essential business operations" are nonessential businesses. The mayor's Order then defines the categories of Essential Businesses by sector.

Of the categories of Essential Businesses, several could conceivably – after an appropriate fact-specific analysis – encompass work that is routinely done by environmental professionals in support of clients that are now deemed Essential Businesses. Essential Infrastructure includes public works (such as roads, railways and government buildings) and utilities (electricity, gas, water, wastewater, drainage infrastructure, solid waste collection and removal). Energy and Automotive includes business that maintain or are involved in the electricity industry, the production or delivery of petroleum, natural gas or propane, gas stations, auto repair/mechanic shops and auto supply stores. Construction and Building Trades includes businesses that provide services that are necessary to maintain the safety, sanitation and operation of residences and Essential Businesses. Professional Services includes services that are "necessary to assist in compliance with legally mandated activities, Essential Businesses or Essential Government Activities."

C. District Guidance on Environmental Laws

On March 27, 2020, the Underground Storage Tank Branch of the Toxic Substance Division of the District Department of Energy and Environment (DOEE) released a public notice providing recommendations to all owners and operations of underground storage tanks (USTs). The Guidance recommends all UST owners and operators to "closely adhere to all federal and District public health and safety guidelines." To avoid a costly release from an unmanned UST, DOEE urges UST owners and operators to leave leak detection, overfill protection, monitoring and cathodic protection equipment operational even during facility shutdowns, ensure that the equipment is monitored, respond promptly to any leak detection alarms, and document that the systems were left operational and responded to promptly.

DOEE also urged all owners/operators to document the circumstances that lead to any required tests, maintenance or inspections not being conducted. These documents would include:

• communications with operators and service technicians
• cancellations and the associated reasons
• records of public closures and restrictions, and
• "Any other relevant information showing efforts made to maintain compliance to the extent possible."

DOEE assures that UST owners/operators who "provide clear documentation that they have acted in good faith to remain in compliance, but have been unable to maintain compliance due to COVID-19 restrictions, would be allowed a reasonable opportunity to return to compliance after the restrictions are lifted. DOEE will use enforcement discretion."

DOEE notes that DOEE UST and leaking underground storage tank (LUST) work is continuing as usual, so all required correspondence should be submitted to case managers or inspectors within the current deadlines. While DOEE may consider requests for extensions for cause, no automatic extensions are in place.

For any planned UST removals, closures in place or LUST activities, DOEE plans to continue to conduct limited field inspection audits and all regulatory procedures governing those activities continue to be in place. Therefore, UST owners and operators must continue to obtain applicable permits from the D.C. Department of Consumer and Regulatory Affairs (DCRA) for all UST activities, such as tank installations or modifications of the layouts of USTs and associated lines and dispensers. DOEE's Public Notice contains detailed instructions for obtaining those permits from DCRA through an online portal.

Conclusion

It is imperative for environmental professionals that perform Environmental Work, and the developers and businesses that engage them, to determine if the work is essential under the Orders and agency guidance of the jurisdiction, and to comply with the COVID-19-related restrictions in place in each jurisdiction. In the D.C. Metro Area, Maryland, Virginia and Washington, D.C., have issued temporary Essential Work Orders prohibiting business activities that are not deemed essential. Neither federal nor local guidance on "Essential Workers" specifically addresses the routine work of environmental professionals. Through careful job-by-job analysis, many of the tasks of environmental professionals may be considered as Essential Work. Virginia and Washington, D.C., environmental agencies have released guidance or policies about compliance with environmental laws while the Orders are in place. These restrictions and guidance should be assessed before engaging in Environmental Work in these jurisdictions in order to avoid potential civil or criminal penalties for violating a jurisdiction's restrictions or applicable environmental laws and regulations. COVID-19-related polices are constantly evolving. Environmental professionals and the businesses that retain them should review these policies regularly and prior to engaging in any environmental work.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.