Governor Tom Wolf ordered all “non-life-sustaining” businesses throughout Pennsylvania to physically close their operations by 8 p.m. on March 19, 2020 in response to the COVID-19 pandemic. Enforcement begins at 8:00 a.m., Monday, March 23. With the Order, the Commonwealth issued a list of life-sustaining and non-life-sustaining businesses. Residential and commercial construction were on the list of businesses that must close, absent a waiver from the Order. The Commonwealth’s list is intended to be consistent with the federal Cybersecurity and Infrastructure Security Agency (CISA) Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, also released March 19, 2020. For developers and builders who may be in critical stages of construction or who have environmental responsibilities under permits (such as the PAG-02 or individual permit for discharges of stormwater associated with construction activities), an immediate shutdown simply cannot be achieved. So what are you to do?
Batten Down the Hatches
One issue that the Governor’s Order raises is what constitutes “operating a place of business” under the Order? Your NPDES permit has very specific requirements for maintaining erosion and sedimentation (“E&S”) best management practices (“BMPs”), for weekly inspections, for inspections and repairs after certain precipitation events, etc. Does completing those tasks constitute “operating a place of business?” Are the permit conditions superseded by the Governor’s Order? In other words, are you required to, and can you, continue permit compliance measures during the time that businesses are ordered to close?
As it currently stands, the Governor’s Order does not relieve permit or regulatory requirements. Therefore, performing your permit and regulatory responsibilities should not be interpreted as operating a place of business in violation of the Order. This is confirmed in the newly issued FAQ on life-sustaining businesses that allows construction businesses to maintain limited, critical personnel for compliance with federal, state, and local regulatory requirements. As a practical matter, any efforts necessary to protect the environment and comply with permit conditions should not be met with enforcement. However, we believe that certain practical measures are necessary to ensure compliance with both the Order and regulatory/permitting obligations:
- For any project in a critical stage of development where ceasing operations is not possible, seek a waiver from the Order. DCED has set up an online waiver application for any business that would like to seek a waiver from the Order. It is impossible at this time to predict the likelihood of obtaining a waiver. The greater the impact (including particularly non-economic impacts like public safety and welfare) and the tighter the request (for instance, a narrow waiver to complete some stage of construction that minimizes the impact, versus an open request to continue business), the greater the chances of success in obtaining a waiver.
- Batten down the hatches now. Complete all temporary and, where appropriate, permanent stabilization; inspect and repair all E&S BMPs; complete all earthmoving truly necessary to complete environmental protection measures. Even if these measures involve earth disturbance that extends beyond the enforcement deadline, measures taken that are necessary to protect the environment should not be considered “operating a place of business.” Of course, any determination will be fact-dependent, but we recommend that the minimal amount of work needed to protect the environment is defensible (for instance, completing temporary stabilization, even with earthmoving, versus large-scale grading, top soil, and permanent stabilization).
- Communicate with PADEP and the Conservation District!! Any significant measures taken after the 8 a.m. March 23 deadline should be completed with written (e-mail) notice to PADEP and/or the Conservation District. Keeping the agencies informed of your activities provides the agencies with the opportunity to object in advance if they believe it violates the Order, allows them to inspect the measures taken, and may allow for temporary “sign off” on stabilized areas for purposes of ongoing inspections. If you receive a waiver from the Order from DCED, it will be critical to advise PADEP and the CCD of the waiver and right to continue.
- Document your inspections and work. Any work done to close up operations should be documented in writing and with photographs to the extent possible.
- Request approval of field order changes. Do not assume that, with the Order and need to cease construction immediately, that you can deviate from your E&S plan or PCSM plans. If changes are necessary to accommodate closing operations quickly, communicate them to PADEP and the CCD and request a field order change.
- Request waivers from PADEP and the CCD. PADEP has the authority to waive permit requirements, including temporary waivers. Requesting waivers via e-mail is appropriate in many instances, including: (1) waiver of the 45-day period for recording an instrument disclosing PCSM BMPs; (2) waiver of training requirements for certain activities given the lack of available training and prohibition on gathering; (3) waiver or extension of certain inspection requirements – examples may include (a) if the site is stabilized, extending weekly inspections to bi-weekly inspections, (b) different triggers and/or timing for post-storm inspections, and (c) utilizing personnel without formal training (but with requisite job experience) for E&S BMP work in light of the lack of available formal training during this period.
- Remove or protect materials that present a hazard (e.g., spills), and protect the site from vandalism to the extent practicable. It is unclear how long the Order will last, so sufficient measures should be taken to protect the site in terms of potential pollution and damage to the site and environment.
- For any work, maintain required social distancing among all employees.
McNees Environmental attorneys have been discussing these practical issues with PADEP representatives and urging clarification regarding what activities will not constitute “operating a place of business” for developers with active construction activities that require measures to comply with permit and regulatory requirements. We remain hopeful that PADEP will issue guidance to the regulated community and the conservation districts to ensure the opportunity and necessary time to effectively close your operations while meeting regulatory requirements. In the interim and even thereafter, we urge you to exercise open communication with PADEP and CCD representatives. While PADEP offices are closed, key personnel continue to work remotely. The McNees Environmental attorneys remain available to assist you through these trying times, 24/7 as the need arises: Scott Gould, email@example.com (mobile: 717-579-4572); Steve Matzura, firstname.lastname@example.org; Errin McCaulley, email@example.com. Also, the McNees Strategic Solutions group is available to assist with any waiver requests to the Governor’s Order to DCED – contact Kathy Bruder, firstname.lastname@example.org.