Due to the public health crisis presented by COVID-19, new guidance, advisories, orders, and exemptions are issued by state and local governments on a daily basis. The wide variety of responses has left many businesses, including responsible parties and their environmental consultants, wondering how these actions impact their obligation to conduct environmental remediation and related activities.

On March 28, 2020, the Cybersecurity & Infrastructure Security Agency (CISA) within the U.S. Department of Homeland Security issued non-binding guidance on identifying essential critical infrastructure workers and activities that it advised should be exempted from Stay-at-Home and similar orders. The guidance recommends an exemption for “workers who support hazardous materials response and cleanup,” though the scope of this recommended exemption is unclear. Many states refer to this guidance in their orders, with some providing specific exemptions for “environmental remediation,” and others providing only ambiguous definitions of “essential” business activities, which may or may not include environmental consulting firms’ practice in-office or in the field.

Some states have already begun to issue enforcement discretion policies to provide flexibility, but these will vary from state to state. Therefore, regulated parties should monitor responses by regulators in the states in which they operate and act accordingly. KMCL attorneys are actively monitoring impacts on the environmental and litigation issues that concern our clients. We are tracking developments that pertain to environmental compliance, enforcement, and permitting around the country.  We encourage you to reach out should you have questions about how these changes may impact you.