Are Environmental Cleanups "Essential" Under Gov. Inslee's Shelter-in-Place Order?

Across Washington State, businesses and individuals are working hard to comply with Gov. Jay Inslee's "Stay Home, Stay Healthy" Order, issued as Proclamation No. 20-25 and more commonly known as the "Shelter-in-Place Order" (the Order). As has been widely publicized, the Order’s general overarching rule is to prohibit all people in the state from leaving their home or place of residence, with only limited exceptions. The Order effectively halts most industrial work and commercial activity outside the home, except where the enterprise, activity, or individual falls under one of the limited exceptions.

The most notable of the Order's exceptions is for enterprises, activities, or individuals that public agencies have deemed "essential." According to a clarifying Appendix to the Order, "essential" generally means as required for "insuring continuity of functions critical to public health and safety, as well as economic and national security."

In the Appendix as well as several additional guidance memoranda and bulletins, officials have attempted to clarify which workers and activities are deemed essential. Although a multitude of gray areas persist, Gov. Inslee has been clear that some environmental remediation, and almost all hazardous materials response and cleanup operations, may continue.

More specifically, the Order does not suspend operations for: 

• Hazardous material responders and hazardous devices teams with government or from the private sector;
• Persons or enterprises that conduct or support hazardous or other solid waste removal, storage or disposal; or
• Those engaged in or supporting hazardous materials responses and cleanups.

Unfortunately, the Order and its implementing documents are not yet fully clear or consistent. For example, Guidance Bulletin – Proclamation 20-25 (updated March 25, 2020) implies that recreational camping is essential while stating that recreational fishing is not essential.

So far, the regulatory guidance has not clearly addressed non-emergency remediation of existing contamination. Some investigation and remediation may qualify as essential to protect public health and safety while other work, including some Brownfield remediation or redevelopment, may not. However, some guidance documents have suggested that non-emergency cleanup of existing contamination may be deemed "essential" when justified by community-wide benefits.

By way of analogy, Gov. Inslee's Construction Guidance Memorandum has specifically designated publicly supported affordable housing construction as essential, while market-rate development has been deemed non-essential in most cases. Where particular remediation projects have similar community benefit, regulators may be more inclined to allow them to continue.

We are working hard to help our clients effectively continue their projects in compliance with the Order – and fortunately, Gov. Inslee and his staff continue working to clarify the scope of essential work in industries ranging from renewable energy to geoduck farming. Please do not hesitate to contact us if we can help you navigate the Order's scope or its effects on your work.