by Martin Milita, Esq.
New Jersey, like many other states, continues to issue directives outlining which businesses may continue to operate during the COVID-19 pandemic. This constantly changing landscape can be difficult to navigate and this is especially true for parties involved in site-remediation, whether as a remediating party, as the environmental consultant, or Licensed Site Remediation Professional performing the remedial work. However, here is some practical advice.
Relevant Executive Orders
Under Governor Murphy’s Executive Order (EO) 107 issued on March 21st, all non-essential retail places of business are required to close to the public, allowing only essential retail businesses to remain open. These essential retail businesses include grocery stores, pet stores, and pharmacies, among others. In addition, all entertainment and recreational businesses are required to close. Thus, on its face, Executive Order 107 does not prohibit environmental remediation as this activity does not qualify as a retail, entertainment, or recreational business. Under EO 107, however, all businesses in New Jersey are to reduce on-site staff to the minimum number necessary to perform essential operations and to accommodate the remainder of their workforce through work-from-home or similar arrangements. In addition, when in public everyone is to practice social distancing. So these are considerations that site-remediation businesses must adhere to.
On April 8th, Governor Murphy issued Executive Order 122, effective on Friday, April 10th at 8 p.m. Part of Executive Order 122 requires non-essential construction projects to cease. This EO lists various types of projects that are considered “essential construction projects,” which includes the following activities applying to site-remediation cases as found in paragraph 2 of the Order: any project that is ordered or contracted for by federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the federal government (subsection (l)); and, any work on a non-essential construction project that is required to “remediate a site” (subsection (m)).
Thus, Executive Order 122 introduced new uncertainty as to whether site remediation work may continue.
The applicability of Executive Order 122 to these latter categories, if they are to be considered construction activities, seems to turn on the interpretation of subsections (l) and (m). Subsection (l) would apply if the site remediation work is considered performed pursuant to a government “order.”
- Some site remediation cases are being performed under an Administrative Consent Order (“ACO”) with New Jersey Department of Environmental Protection (NJDEP); however, the majority of site remediation cases are conducted under the LSRP program in which there is no “order” but a legal obligation to remediate pursuant to NJDEP requirements.
The interpretation of Executive Order 122 allowing site remediation to proceed if conducted pursuant to an ACO, but not under the LSRP program, is not a sensible distinction. Subsection (m) allows non-essential construction necessary “to remediate a site” to proceed, but does this consider the NJDEP site remediation program? The other activities listed in this subsection all relate to activities necessary to secure a construction site so that it does not pose a threat during the moratorium. Does “remediate a site” refer to fixing damage caused by construction activity or does it refer to the activities required by the term “site remediation”?
Best Practices for Site Remediation
In the absence of further guidance on the above questions from the NJDEP, we suggest that environmental professionals and regulated entities consider implementing the following practices for any site remediation work performed during this time:
- Alerting the local police department about the work to be performed, so that if a neighbor or passer-by calls to report alleged non-compliance with the Executive Orders, the police are already aware of the work and its purpose;
- Providing employees who will be performing work in the field with “essential employee” letters to document they are performing an “essential” service that cannot be performed remotely, as indicated by Executive Order 107;
- Respecting the concerns of neighbors, employees, and others who may be impacted by the work. For example, requesting access for an off-site vapor intrusion investigation requires special consideration at this time, especially if it involves a request to access a residence.
- Discussing site specific issues with NJDEP. We have had success in recent weeks discussing site specific concerns with the Department, which at times has granted extensions or other accommodations to address the specific concern.
- Preparing a plan for de-mobilization in the event the remedial work at the site is required to cease as a result of COVID-19.
The COVID-19 pandemic requires adaptation to changing conditions. Keeping apprised of developments and consistently consulting with your advisers can assist regulated entities endeavoring to accommodate often competing demands.