In this new world of the ongoing pandemic, how can we address on-site environmental health and safety when “in person” has become anathema for at least the next month or two?
For business transactions to proceed, Phase I and (in some instances) Phase II environmental site assessments are needed by lenders, borrowers, purchasers, and/or sellers. But does such work qualify as “essential”? How can we keep transactions on track with the necessary environmental due diligence work?
It is imperative that businesses involved in transactions involving properties and facilities work with attorneys and consultants who understand how to get the deal done—now, more than ever—and keep everyone safe and healthy in the process. Legal and technical questions have different answers in different states, because there are currently no federal mandates or executive orders forcing business shutdowns or mandatory quarantines.
Understanding ‘Essential’ Is Key
Rather, the scope of what is allowable or “essential” work is now determined by state and local executive orders or guidance. And those undertaking environmental investigations (Phase I or Phase II), remediation, operation and maintenance activities, testing, monitoring, and activities related to construction and demolition must understand and comply.
Guidance from the Department of Homeland Security Cybersecurity & Infrastructure Security Agency (CISA), offers a list of Essential Critical Infrastructure Workers that includes those who conduct a range of operations and services essential to supporting various critical infrastructure sectors, including ones where environmental support is critical and deemed essential, such as Energy (Environmental remediation/monitoring technicians) and Hazardous Materials (Workers who support hazardous materials response and cleanup).
Quite notably, construction remains an essential business in nearly every jurisdiction we have canvassed. Moreover, environmental work—especially in the area of on-site investigation and remediation—generally qualifies because it provides for the health, safety, and welfare of the general public.
Banks are often the driving force requiring that environmental due diligence be conducted; and banks qualify as essential businesses. Given the current circumstances, including the fact that most of your lending staff may be working from home, banks are open to more flexible solutions. Older site assessments may be updated from online records, or what is called a “desktop review” may become acceptable, in lieu of a full-blown Phase I. Because that Phase I may not be deemed essential work in every case, a site visit could be legally impossible while an executive order is in effect.
Ways to Keep Things Moving
Conducting investigations at off hours in an empty facility, using drones to view property conditions, allowing a consultant to undertake remote viewing via the use of online video streamed by essential personnel, or otherwise exercising creative solutions, are ways to keep things moving.
And the best attorneys and consultants can finalize the majority of a report in order to be fully prepared to devise a plan of action that is ready to go when a de-escalation plan is put into effect by state and local authorities. Innovation, not hibernation, is the key term.
Keeping workers safe is, of course, always essential. Doing so requires legal and technical expertise and knowledge, excellent communications among all stakeholders, and consensus on objectives and best practices. Familiarity and experience can help with potential supply chain disruptions, overloaded testing laboratories, availability of necessary tools and equipment, and assurances of compliance thanks to good lines of communication with governing agencies.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Andrew Cooper is a partner with Van Ness Feldman LLP and has well over 25 years of experience with environmental law. He currently focuses much of his practice on shepherding clients around environmental challenges to an advantageous closing.
Robert Conrad is an associate with Van Ness Feldman LLP. He provides strategic advice to clients in a variety of regulatory law matters in the energy, environmental, tribal, and natural resources spaces.
Monica Meyer is the health & safety service line leader for EHS Support. She has been providing strategic assessment and business safety solution experience for 22 years.