New Jersey and many other states continue to issue directives outlining which businesses may continue to operate during the COVID-19 pandemic. The swiftly changing landscape is uncharted and difficult to navigate; this is especially true for parties involved in site remediation, either as a remediating party or as the environmental consultant or Licensed Site Remediation Professional performing the remedial work. While each site has unique issues that should be vetted among the remediating party, the consultant/LSRP and counsel, as appropriate, in this blog entry we outline the applicable New Jersey directives and offer some best practices to consider.
Framework for Operations Under Relevant Executive Orders
Under Executive Order 107, which Governor Phil Murphy 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 because this activity does not qualify as a retail, entertainment or recreational business. Under Executive Order 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.
In the wake of Executive Order 107, the New Jersey Department of Environmental Protection was asked to clarify that “essential services” include site remediation. The inquiry was made by regulated entities and environmental service providers, including laboratories, environmental consultants, LSRPs, subcontractors and staff persons whose primary functions are to conduct, monitor, maintain, or support activities for the protection of public health, safety and the environment, including the provision of supplies necessary for these protective purposes. In response, the Department advised correctly that businesses not specifically directed to close “may continue operating at this time consistent with the requirements of E[xecutive] O[rder] 107 for ensuring social distancing, reducing on-site staff to the minimum persons necessary, and accommodating as much remote work as practicable.” NJDEP Listserv Email, “[SRRA] – COVID-19 Update,” March 26, 2020. Accordingly, NJDEP stated that “no formal designation as essential of any of the sectors or organizations that have contacted DEP is necessary or expected at this time.” Rather, NJDEP observed that “essential on-site staffing determinations will differ by sector and operational circumstances” and left it to the professional judgment of each organization to determine how to meet the objectives of Executive Order 107 to the maximum extent practicable. Thus, the Department’s approach appeared to acknowledge that Executive Order 107 was not directed to site remediation activities.
On April 8th, Governor Murphy issued Executive Order 122, effective on Friday, April 10th at 8 p.m. Among other things, Executive Order 122 requires non-essential construction projects to cease. The Executive Order lists various types of projects that are considered “essential construction projects,” including the following activities that may apply to site remediation cases 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)).
Executive Order 122 has now injected uncertainty as to whether site remediation work may continue. Fundamentally, is site remediation considered “construction”? For many tasks (e.g., preliminary assessment review, groundwater and soil sampling), site remediation does not resemble and likely should not be considered to be construction activity that would be impacted by Executive Order 122 and thus may continue under Executive Order 107. For other tasks (e.g., construction of a groundwater pump and treat system, construction of a soil cap), site remediation and construction activity seems to overlap. Then there are activities that are not as clear (e.g., installation of monitoring wells, installation of a sub-slab depressurization system).
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 as being performed pursuant to a government “order.” Some site remediation cases are being performed under an Administrative Consent Order (“ACO”) with 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. To interpret Executive Order 122 to allow 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 contemplate 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 of art “site remediation”?
At this point, NJDEP should, and has indicated it will, step in to provide guidance on how Executive Order 122 should be interpreted in connection with NJDEP program requirements, which should include the site remediation program. Until that time, however, regulated entities and their professionals should navigate the Executive Orders based upon their specific circumstances.
Best Practices for Site Remediation
We understand anecdotally from the environmental consulting firms that we and our clients work with that field and lab work is proceeding, while project management functions are also being conducted, albeit remotely. As of this writing, there is no express prohibition on a business allowing remediation work to be conducted at its premises, even if the premises are closed to the public. However, to the extent companies anticipate site remediation work taking place at facilities or properties, it is a best practice to confirm that the environmental engineering firm is engaging in proper precautions to comply with Executive Order 107.
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 contemplated 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 accommodation 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 all of us to adapt to ever-changing conditions. Accordingly, communicating frequently, keeping apprised of developments, and consulting with legal advisors can assist regulated entities and their environmental consultants in complying with the competing demands that exist at this time.