Late last night, the New Jersey Department of Environmental Protection (NJDEP) released guidance confirming that site remediation work may continue under Governor Murphy’s Executive Order 122 (EO-122), which shut down all non-essential construction projects as of Friday, April 10 to help prevent community spread of COVID-19.

As anticipated in our blog last week, NJDEP clarifies and specifically states that “construction related to site remediation projects are allowed to continue under EO 122.”  In doing so, NJDEP points to language in Section 2 of EO-122, which defines “essential construction projects” to include “(l) 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;” and “(m) Any work on a non-essential construction project that is required to…remediate a site…”

All site remediation work must, however, comply with the social distancing requirements in EO-107 and EO-122.  NJDEP states that “all efforts should be made to minimize site activities and to protect staff, contractors, and the general public.”  NJDEP acknowledges that on-site staffing decisions will depend on each project’s circumstances but does provide the examples of staggering on-site construction activities and identifying activities that can be postponed.

The guidance also advises LSRPs and others to document all remedial activities conducted during the COVID-19 emergency period.  The documentation should especially include explanations for any variations from rules or guidance, including scientific and technical rationales, that detail how the remediation continues to be protective of public health and safety and of the environment.

Lastly, the guidance recommends taking into consideration the United States Environmental Protection Agency’s (EPA’s) recent Interim Guidance on Site Field Work Decisions.  Click here for more details on EPA’s guidance for conducting remediation work during the COVID-19 emergency period.

Cole Schotz, P.C.’s Environmental Attorneys are available to discuss any questions you may have about EO-122 or this NJDEP guidance and any potential impact on your business, operations, transactions, or ongoing construction or remediation projects.

 


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

Just this morning, the Murphy Administration, along with the New Jersey Department of Environmental Protection (DEP), Board of Public Utilities (BPU) and Economic Development Authority (EDA), released the Regional Greenhouse Gas Initiative (RGGI) Strategic Funding Plan (SFP)for 2020 through 2022 which calls for investment of an estimated $80 million of New Jersey’s RGGI auction proceeds each year to qualified programs focused on reduction of greenhouse gas emissions, environmental justice, clean energy and coastal community resiliency, just to name a few.

As detailed here, New Jersey began negotiations to rejoin the RGGI in 2018 culminating this year in New Jersey formally rejoining the RGGI and allowing the state to begin participation in quarterly carbon dioxide allowance auctions. During the March auction, New Jersey realized more than $20 million in proceeds which, per the Global Warming Response Act, will be allocated to the EDA, DEP and BPU for investment into qualified programs under the RGGI.

The SFP specifically details how the proceeds from the March auction and future auctions over the period of the SFP will be used to further the following four main initiatives: Catalyzing Clean, Equitable Transportation, Promoting Blue Carbon in Coastal Areas, Enhancing Forests and Urban Forests, and Establishing a New Jersey Green Bank. Even with four initiatives, the release this morning highlighted that one of the main emphases of the SFP will be a focus on electrifying new Jersey’s transportation. Specifically, the focus will be electrification in areas impacted by severe air pollution. This also goes hand in hand with Governor Murphy’s goal of achieving 100% clean energy by 2050 which is starting to be realized with the increase in wind energy coming to the state as described here.

However, the main catalyst for releasing the SFP today relates directly to the state’s response to COVID-19. Governor Murphy stated that the hope is for the investments made under the SFP will “promote health, equity, and environmental protection, helping us build a stronger and fairer New Jersey.” DEP Commissioner McCabe furthered that sentiment by stating that in addition to changing the state’s clean energy and transportation systems, “At the same time, the projects spurred by this plan will create opportunities and job growth in green technologies that will help New Jersey emerge stronger from the economic impacts of the current COVID-19 crisis.”

 


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

On Friday, April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued interim guidance to its regional offices on when to conduct, reduce, or pause field work at remediation and emergency response sites.  The Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 applies to response sites where EPA is the lead agency or has direct oversight of or responsibility for the work being performed, including sites subject to federal Superfund, Resource Conservation and Recovery Act (RCRA) corrective action, Toxic Substance and Control Act, Underground Storage Tank, and Oil Pollution Act programs, among others.

This guidance follows EPA’s March 26, 2020 enforcement guidance that explicitly excluded Superfund and RCRA sites, which we wrote about here.

EPA emphasizes that all decisions will be made on a case-by-case basis.  The agency will prioritize the protection of public health and safety, including that of EPA staff and other cleanup workers, by adhering to public health declarations and restrictions to the extent possible.  However, EPA provides that maintaining its ability to prevent and respond to emergencies or other situations requiring the protection of public health and the environment is also a critical priority.

General Guidance on whether to Start or Continue Cleanup Work

EPA guides regions to evaluate whether site work should continue in areas where COVID-19 health declarations are in effect, and to consider suspending work and securing sites in those areas until the public health threat in that location is resolved.  In all cases, including where cleanups are taking place in areas where there is no public health declaration restricting or prohibiting such work, regions should consider factors such as:

  • availability and safety of work crews and agency staff
  • the critical nature of the work
  • transportation, travel restrictions, and other logistical challenges
  • pre-construction, construction, and post-construction activities
  • other site-specific factors

For any work that will commence or continue, health and safety plans (HASPs) must be reviewed and modified to ensure they meet CDC and other COVID-19 guidelines.

EPA is clear that any decision to pause or extend work does not amend or supersede an enforcement instrument, and any notice or extension procedure under such instrument should be followed, including notices under force majeure clauses or provisions permitting schedule adjustments.  EPA provides that it intends to be flexible with respect to timing of notices made pursuant to such provisions.

Site-Specific Considerations for Proceeding with Cleanup Work

EPA offers several site-specific factors for regions to consider when determining whether site work should continue, be reduced, or put on hold, including:

  • Whether failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is practical to continue such actions. This may include sites with an ongoing threat of imminent acute/direct human exposures, or pose an imminent threat to public health, welfare, and the environment (e.g., exposure to lead, arsenic, PCBs, asbestos, or contaminated drinking water; vapor intrusion risks; and disposal of waste materials that may create an imminent safety issue if not removed).
  • Whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months. Examples include vapor intrusion investigations, work to reduce exposure at residential sites, and addressing drinking water impacts.
  • Whether work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling of site work, in coordination with state, tribal, and local officials and with updated HASPs as appropriate. This work may include routine sampling events, periodic monitoring, active remediation of stable groundwater plumes, and field sampling for remedial investigation/feasibility study or RCRA facility investigation work.

EPA expects that any work to advance cleanups that can be done remotely, such as preparing reports and workplans, modeling, negotiating among parties, and complying with financial assurance requirements, to continue as usual.  EPA also acknowledges that non field-work activities may be delayed due to reduced capacity of supporting operations (e.g. laboratories, access to equipment).  If such a delay will impact a responsible party’s ability to meet cleanup obligations, the party should consult its enforcement instrument for applicable notice procedures.

It appears that COVID-19 restrictions have already impacted site work.  In its April 10, 2020 press release, EPA reported that as of the beginning of April, it has “reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions,” due to COVID-19.

Cole Schotz P.C. Environmental Attorneys are available to address any questions you may have on EPA’s interim policy, or any environmental impacts to your business as a result of COVID-19.  We will continue to provide updates as the situation evolves.


 

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

On April 8, 2020, New Jersey Governor Murphy issued Executive Order 122 (EO-122) mandating, among other things, that all “non-essential” construction projects cease by 8:00 PM on Friday, April 10.  Details on the types of projects that are considered “essential” and can therefore continue, subject to social distancing and other precautions to help avoid the spread of COVID-19, are available here.

With respect to environmental cleanups, New Jersey is following New York’s lead, where remediation projects are allowed to continue notwithstanding the state’s restrictions on construction work.  All such remediation work in New Jersey is subject to the safety requirements described more here.

More specifically, EO-122’s definition of “essential construction projects” includes “[a]ny work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project…”

With this as the only reference to remediation work in EO-122, it appears “remediation” is not being considered “construction” and the intent here is to simply clarify that work required to “remediate a site” can continue, even at “non-essential” construction projects.

The New Jersey Department of Environmental Protection (NJDEP) is expected to issue guidance on EO-122 shortly, as well as announce extensions to certain remediation deadlines in response to COVID-19.  We will continue to provide updates as new developments occur.

Cole Schotz, P.C.’s Environmental Attorneys are available to discuss any questions you may have about EO-122 or any subsequent NJDEP guidance and any potential impact on your business, operations, transactions, or ongoing construction or remediation projects.


 

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

The regulated community received some clarity from the New York State Department of Environmental Conservation (NYSDEC) this week on whether activities to respond to, investigate, and remediate contamination are “essential” in the wake of recent Executive Orders restricting the operation of non-essential businesses and construction work in New York State.

In the guidance, NYSDEC declares as “essential” the following cleanup activities:

  • Remedial construction activities, including new construction starts, at sites that NYSDEC has determined pose a significant threat to public health and/or the environment, including Class 2 sites on the Registry of Inactive Hazardous Waste Disposal Sites and significant threat sites in the Brownfield Cleanup Program;
  • Completion of remedial construction already under way at non-significant threat sites as necessary to ensure site safety and prevent exposure to site contaminants, including completion of site cover systems;
  • Operation and maintenance activities for active remedial systems that are necessary for the continued protection of human health and the environment;
  • Interim remedial measures to address imminent human exposures and/or threat of significant contaminant migration;
  • Spill response actions; and,
  • Investigation, including pre-design investigations, of petroleum and hazardous waste releases as determined by NYSDEC on a case-by-case basis to be necessary to address potential human exposures and/or threat of significant contaminant migration.

In all cases, social distancing practices must be followed to the extent possible, and all activities must be performed in compliance with Department of Health guidance and directives.

In addition to this guidance, NYSDEC has also provided that it will grant extensions, on a case-by-case basis, to the execution of brownfields agreements and amendments, and is accepting electronically-signed agreements and amendments at this time.  NYSDEC will determine at a later time whether it will require originals to be issued thereafter.

Cole Schotz, P.C.’s Environmental Attorneys are available to discuss any questions you may have about the NYSDEC guidance and any potential impacts on your business.