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NJDEP Proposes Significant Changes to Remediation Standards for Cleanup of Contaminated Sites Banner Image

NJDEP Proposes Significant Changes to Remediation Standards for Cleanup of Contaminated Sites

Month: April 2020

NJDEP Proposes Significant Changes to Remediation Standards for Cleanup of Contaminated Sites

Posted on by rd_admin

On April 6th, the New Jersey Department of Environmental Protection (“NJDEP”) proposed major revisions to the existing Remediation Standards codified at N.J.A.C. 7:26D that may impact current, future and even closed site remediation cases.  While the amendments are extensive, below is a summary of the most significant changes:

  • Addition and Deletion of Contaminants with Standards – The NJDEP has proposed to add standards for a number of contaminants and to remove others for which NJDEP has determined it did not have supportive toxicology information or that are rarely found in New Jersey.  For example, the NJDEP has proposed new soil remediation standards for 15 contaminants that do not have existing standards, including extractable petroleum hydrocarbons (EPH) and 1, 4-dioxane, and removed standards for more than 10 others, including benzo(ghi)perylene and acrolein.  Similar additions and deletions are proposed for standards related to certain  other contaminant pathways and media. 
  • Changes in Standards for Existing Contaminants – The NJDEP also has proposed to increase or decrease the existing standards for numerous contaminants.  For example, of the 113 contaminants for which there are existing nonresidential soil remediation standards for the ingestion-dermal exposure pathway, as compared to the existing standards, the proposed standards for 13 contaminants are more stringent, 3 are the same, and 90 are less stringent.  Notably, the NJDEP has proposed to make standards for some contaminants more stringent by at least an order of magnitude, which would require a re-evaluation, and possibly additional remediation, of those contaminants at certain sites that have received a final remediation document (i.e. NFA or RAO).
  • Codification of Impact to Groundwater (IGW) Soil Remediation Standards – Site-specific IGW soil remediation standards are currently established on a case-by-case basis in accordance with NJDEP guidance.  The NJDEP has proposed to replace this protocol by codifying soil and soil leachate remediation standards for the migration to groundwater exposure pathway by using the levels contained in the guidance (subject to certain revisions) as the new IGW soil remediation standards.
  • Changes to Direct Contact Soil Remediation Standards – The current residential and nonresidential direct contact soil remediation standards take into account both the ingestion-dermal human health criterion and the inhalation human health criterion and set the standard at the more stringent of the two.  The proposed amendments would bifurcate the direct contact soil remediation standards into separate soil remediation standards for the ingestion-dermal exposure pathway and the inhalation exposure pathway, which will require remediating parties to individually take into account and address the standards for both of these pathways.
  • Codification of Indoor Air Standards – Certain contaminants have the potential to volatilize, migrate through the subsurface as soil gas and infiltrate buildings, which can expose humans to harmful levels of indoor air contamination.  Indoor air screening levels are currently set forth in the NJDEP’s vapor intrusion guidance.  In order to improve enforceability, the NJDEP has proposed to codify the existing indoor air screening levels list as indoor air remediation standards, subject to a few revisions.  Specifically, 1,4-dioxane and 1,2,4-trimethylbenzene will be added to the list and 7 contaminants will be removed because the NJDEP has determined that the methodology it used to establish screening levels for these particular contaminants is no longer valid.
  • Expansion of Alternative Remediation Standards Process – While the current rules allow for remediating parties to establish site-specific alternative remediation standards for residential and non-residential soil exposures, the proposal expands the alternative remediation standards process to the soil and soil leachate migration to groundwater (which is the new term for IGW) and vapor intrusion exposure pathways.  Accordingly, remediating parties would be able to use this process to establish standards that are less stringent than the default standards for these pathways as well.  
  • Amendments to Definition of “Residential” and “Nonresidential” – The NJDEP has proposed to amend the existing definitions for “residential use” and “non-residential use” that were used to derive numerical remediation standards based on certain exposure assumptions.  The proposed new definitions of “residential” and “nonresidential” as they relate to the remediation standards are based solely on property use – “residential” refers to properties used for residences, private and public schools, charter schools and licensed childcare centers; “nonresidential” refers to properties used for commercial or industrial purposes.  This change is intended to help remediating parties more easily identify which set of standards apply to a property.

Stakeholders have criticized the timing of the NJDEP’s rule proposal in the midst of the COVID-19 crisis, citing the difficulty in preparing and submitting public comments.  In response, the NJDEP has extended the public comment period by an additional 60 days to August 5, 2020.  The NJDEP also noted  that if it holds a public hearing on the proposal (the timing of which is uncertain given the COVID-19 situation), it will extend the public comment period until after the hearing. 

When the changes to the Remediation Standards are ultimately adopted, a phase-in period will apply to certain ongoing cases.  Specifically, those remediating parties that have submitted a remedial action workplan or remedial action report prior to, or less than 6 months after, the operative date of the amendments, may remediate their site using the existing remediation standards.  This phase-in period, however, does not apply to remediation of contaminants for which the standard has become more stringent by an order of magnitude as compared to the prior standard.

Given the magnitude of the proposed changes, remediating parties and other stakeholders should review this proposal closely to determine if and how it may impact their current site remediation cases as well as those cases and properties that have already received a final remediation document.  Some remediating parties may want to speed up the timing of their investigation and/or remediation to take advantage of the phase-in period (for remediation standards that are proposed to become more stringent), while others may want to delay making final remedial design decisions if standards for certain contaminants at their sites will become less stringent or no longer regulated.  In addition, parties conducting pre-purchase due diligence should consider how these changes may affect both legal and contractual liabilities and obligations, including any potential for re-opener issues at formerly remediated sites.

Our attorneys will be closely monitoring the public comment process and ultimate rule adoption to determine how to best assist our clients.

For more information, please contact the author Jaan Haus at jhaus@riker.com or any attorney in our Environmental Practice Group.

HHS Issued $20 Billion in Grants Subject to Application Requirements and CMS Suspends Accelerated and Advance Payment Program

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For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

$20 Billion in Grant Money

In our previous update, we noted that CMS issued $30 billion out of the $100 billion in grant money under the CARES Act (the “Provider Relief Fund”).  As of April 24, 2020, CMS issued the $30 billion, and providers were not required to engage in any activity or application to get those funds, with the exception of attesting to the terms and conditions within thirty (30) days of receiving the funds through the Provider Attestation Portal.

The Department of Health and Human Services (“HHS”) recently announced that it will start distributing another $20 billion.  Providers that have already received a payment from the Provider Relief Fund and attested to receipt of such payment are now eligible to apply for additional general distribution funds.  However, providers have to submit data about their annual revenues and estimated COVID‑19 related losses if HHS does not have certain cost reports on file already.  Additional funds are only available to those who have received a general distribution payment as of April 24, 2020.

To apply, providers must submit an application via the CARES Provider Relief Fund Payment Portal (also referred to as the “General Distribution Portal”).  Providers should have the following information on hand before starting the application for additional funds:

  • Taxpayer Identification Number (“TIN”) that has received prior Provider Relief Fund payments;
  • TINs of subsidiary organizations that have received prior Provider Relief Funds but do not file separate tax forms (i.e., subsidiary organizations that are accounted for in the parent organization’s tax filing);
  • An estimate of the organization’s lost revenue for March 2020 and April 2020, which can be estimated by comparing year‑over‑year revenue, or by comparing budgeted revenue to actual revenue;
  • Amount of payments received;
  • Relief Fund payment transaction numbers/check numbers; and
  • A copy of your most recently filed tax forms.

Funds will not be disbursed on a first-come-first-served basis, which is to say that an applicant will be given equal consideration regardless of when they apply.  Applications will be processed in batches every Wednesday at 12:00 noon EST.  HHS estimates that funds should be disbursed within 10 days of the submission of your application.

For more information on the process of requesting and/or confirming additional funds, visit the CARES Act Provider Relief Application Guide.

Suspension of Accelerated and Advance Payment Program

In our March 31, 2020 update, we noted that CMS expanded its Accelerated and Advance Payment Program in light of COVID-19 to Part A and Part B providers.  Although many providers submitted their applications, on April 26, 2020, CMS announced that it was suspending the Program for Part B suppliers, including physicians, other medical professionals and durable medical equipment suppliers, and is reevaluating accelerated payments to hospitals.

CMS explained that it suspended the Program because Congress appropriated $175 billion to providers in the CARES Act, and that HHS is distributing this money through the Provider Relief Fund.  As a result, CMS stopped accepting new applications from Part B suppliers for the Program on April 26 and is reevaluating all pending and new applications for accelerated payments.

Third Circuit Reverses Course, Holds Debt Collection Letters Do Not Need to State That Challenges to the Debt Under 1692g(a)(3) Need to Be in Writing

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In a decision approve for publication, the United States Court of Appeals for the Third Circuit, sitting en banc, recently reversed its prior holding and held that a debt collection letter does not need to expressly state that the debtor must dispute the validity of the debt in writing under Section 1692g(a)(3) of the Fair Debt Collection Practices Act (“FDCPA”).  See Riccio v. Sentry Credit, Inc., 954 F.3d 582 (3d Cir. 2020).  The defendant debt collector sent the plaintiff a collection letter that stated:

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

Plaintiff then brought this lawsuit, arguing that the letter violated the FDCPA by “fail[ing] to properly inform the least sophisticated consumer that to effectively dispute the alleged debt, such dispute must be in writing” under Third Circuit precedent.  The complaint specifically challenged the first sentence of the above-quoted notice, which did not say that the dispute notification be in writing.  Defendant filed a motion to dismiss, and the District Court granted the motion, finding that “[n]o additional language appears on the Collection Letter asking or suggesting to consumers a dispute of the debt may be made via telephone call.”  Plaintiff appealed this decision.

On appeal, however, the Third Circuit addressed the larger question about whether a debt collection letter is required to say that any challenges must be in writing, a requirement it previously mandated in Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).  Section 1692g(a) of the FDCPA states that a debt collection letter must include 5 things:

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

In Graziano, the Third Circuit had held that the letter’s statement required under 1692g(a)(3) must say that the dispute be in writing, despite the fact that this provision does not mention any writing, unlike 1692g(a)(4) and 1692g(a)(5).

In this case, however, the Court reversed that prior holding based on the plain text of the statute.  It further found that “if the debtor disputes the debt, the collector must verify it at some point down the road. But (a)(4) and (b) [unlike (a)(3)] demand that if the debtor disputes the debt in writing, the collector must prove its validity immediately. . . . Put differently, inserting a writing requirement into (a)(3) means that every dispute triggers (a)(4) and (b). That simply can’t be right. If every dispute triggers (a)(4) and (b), then (a)(3) has no independent effect.”  In making this decision, the Third Circuit joined the Second, Fourth, and Ninth Circuits in their similar holdings.  “By expressing our view today, we put an end to a circuit split and restore national uniformity to the meaning of § 1692g.”

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.

West Virginia Supreme Court Holds Title Insurer Has No Duty to Defend Action Regarding Shared Roadway Based on Survey and Parties in Possession Exceptions

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The Supreme Court of Appeals of West Virginia recently held that a title insurance company had no duty to defend or indemnify an insured property owner for an issue regarding a shared roadway because the roadway itself was not part of the insured property, and the claim was barred by the survey and parties in possession exceptions.  See Tritapoe v. Old Republic Nat’l Title Ins. Co., 2020 WL 1487813 (W. Va. Mar. 23, 2020).  In the case, plaintiff purchased a property in 2015 and defendant issued a title insurance policy.  Shortly after plaintiff’s purchase, a neighbor brought an action because plaintiff allegedly blocked the neighbor’s access to a common roadway.  Plaintiff submitted a claim to defendant, and defendant denied it.  Plaintiff then brought this action seeking a declaratory judgment that defendant is required to defend it in the underlying action with the neighbor.  Defendant moved to dismiss, arguing that the shared roadway was not part of the insured property and that two of the policy exceptions prohibited the claim.  The court agreed and dismissed the action.

On appeal, the Supreme Court affirmed the dismissal of the complaint.  The Court found that the roadway itself was not on the insured property:  “Petitioner asks this Court to impose upon his title company the obligation to defend his title to property that was never insured by [the title company] or owned by petitioner. We disagree . . .”  Additionally, the Court found that the policy excluded this claim.  First, the policy contained an exception “for such state of facts discoverable by an accurate survey and inspection of the premises.”  Second, it contained an exception for “rights or claims of parties in possession not shown by the public records.”  In this case, the Court found that plaintiff actually did conduct a survey that showed the common roadway and, “[i]nasmuch as the complete survey would, and in fact did, resolve the issues in the [underlying action], we find that the circuit court did not err.”

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.

The Federal Government and New Jersey Modify and Increase Previous Coronavirus Programs

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Today’s update focuses on modifications and/or additions to previous guidance, rules and regulations previously issued by the federal government.  In addition, there have been several statutes passed on the State level as well as some proposed regulations.

For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

Federal Level

Elective Surgeries: Centers for Medicare & Medicaid Services (CMS) and State authorities previously requested providers to delay non-emergent medical services and procedures to conserve on PPE and other medical equipment.  CMS recently provided a chart, in a tiered framework, with recommendations that providers can use to decide which medical services could be deferred.  Also, the federal government’s new guidelines allow for elective surgeries during Phase One.  In preparation for the re-starting of elective surgeries, the American College of Surgeons, American Society of Anesthesiologists, Association of periOperative Registered Nurses and American Hospital Association issued a roadmap for facility readiness.  The roadmap provides guidance on when and how to safely resume elective surgeries.

$30 Billion Grant:  As a follow up to our previous update regarding the $30 billion in COVID-19 grants to Medicare providers, the federal government revised their terms and conditions.  Under the initial terms, a provider must be "currently" serving individuals with “possible” or actual cases of COVID-19 to keep the grants.  In light of many complaints that providers have closed down their practices because of the virus, HHS removed the word “currently” from the  terms and conditions.  Importantly, HHS views every patient as “possibly” having COVID-19.  HHS updated the provider relief website to address these issues and added this statement:

If you ceased operation as a result of the COVID-19 pandemic, you are still eligible to receive funds so long as you provided diagnoses, testing or care for individuals with possible or actual cases of COVID-19. Care does not have to be specific to treating COVID-19.  HHS broadly views every patient as a possible case of COVID-19.

Reporting Requirements:  CMS extended the reporting requirements that we previously noted in our  update for clinicians, providers, hospitals and facilities participating in quality reporting programs in response to COVID-19.  CMS issued a supplemental memorandum to provide additional guidance and exceptions to healthcare providers with regard to these requirements.

Anti-Kickback Waiver:  OIG issued a Policy Statement that it will exercise its enforcement discretion not to impose administrative sanctions under the federal Anti-Kickback statute for certain remuneration related to COVID-19 covered by the Blanket Waivers of Section 1877(g) issued by the Secretary of HHS.  As stated in our previous update, CMS issued a Blanket Waiver with regard to the Stark Law as it pertains to certain financial arrangements in order to provide more flexibility in responding to COVID-19.  In many instances, however, financial relationships that implicate the Stark Law also implicate the federal Anti-Kickback statute.  Thus, CMS’ Blanket Waiver of the Stark Law would not be that effective without a waiver applying to the Anti-Kickback Statute.  OIG’s Policy Statement, therefore, is necessary in the event the financial relationship that CMS waived under the Stark Law also implicates the federal Anti-Kickback Statute.

$200 Million For Telemedicine:  We previously noted that the CARES Act allocated $200 million to support healthcare providers' use of telehealth services during the pandemic.   The FCC recently approved the program for the allocation of the funds.  The following healthcare providers are eligible: (1) post-secondary educational institutions offering healthcare instruction, teaching hospitals, and medical schools; (2) community health centers or health centers providing healthcare to migrants; (3) local health departments or agencies; (4) community mental health centers; (5) nonprofit hospitals; (6) rural health clinics; (7) skilled nursing facilities; or (8) consortia of healthcare providers consisting of one or more entities falling into the first seven categories.  The FCC’s website provides details on how to apply for the program.

Additional Telemedicine Flexibilities:  CMS issued a letter to clinicians and a fact sheet outlining more changes to the Medicare program including coding data for testing patients for COVID-19, additional telehealth changes, and additional workforce flexibilities.  The workforce flexibilities add to the flexibilities previously implemented on March 30, 2020, and these additional flexibilities reduce supervision and certification requirements so that practitioners, such as nurse practitioners and occupational therapists, can perform certain tasks without the need for supervision by a physician.  To formalize these waivers, on April 6, 2020, CMS issued 85 FR 19230, an interim final rule that formalizes these changes and makes them effective March 31, 2020.

HIPAA Enforcement Discretion:   We previously noted that the Office of Civil Rights issued guidance on when healthcare providers can share the protected data of patients who have been exposed to COVID-19 without violating HIPAA.  Just recently, OCR issued 85 FR 19392, Notification of Enforcement Discretion, that further protects certain disclosures.  The Notification informs providers and business associates that the OCR will exercise its enforcement discretion and will not impose potential penalties for violations of certain provisions of the HIPAA Privacy Rule for uses and disclosures of protected health information (PHI) by business associates for public health and health oversight activities during the COVID-19 nationwide public health emergency.  The OCR will exercise its discretion as long as the business associate makes a good faith use or disclosure of the covered entity's PHI for public health activities consistent with 45 CFR 164.512(b), or health oversight activities consistent with 45 CFR 164.512(d) and the business associate informs the covered entity within ten (10) calendar days after the use or disclosure occurs.

Infection Control:   CMS updated its guidance documents focused on infection control, with a particular focus on nursing homes, where the majority of COVID-19 deaths have occurred.  The guidance documents, based on CDC guidelines, are intended to help infection control in the context of patient triage, screening and treatment, the use of alternate testing and treatment sites and telehealth, drive-through screenings, limiting visitations, and cleaning and disinfection guidelines.

Employee Exposure to COVID-19:  CDC issued new guidelines for monitoring employees who may have been exposed to COVID-19.   Any potentially exposed employee will be allowed to continue to work as long as they are routinely monitored and symptom free.

Cost-Sharing Waivers:   CMS issued guidance regarding new COVID-19 coverage requirements for private health plans. This  guidance implements the Families First Coronavirus Response Act and the CARES Act. These federal statutes require private health plans and employer group health plans to cover COVID-19 testing with no out-of-pocket expenses.  In addition, as explained by the guidance, these federal statutes also require no cost-sharing for "certain related items and services" provided during a medical visit for COVID-19 testing.  As a result, insurers must cover urgent care visits, emergency room visits and in-person or telehealth visits that result in an order for a COVID-19 test.  The guidance also ensures coverage of COVID-19 antibody testing.  These requirements are retroactive for testing and related services provided on or after March 18.

Delay in Emergency Model:  In light of COVID-19, CMS delayed the start date of its Emergency Triage, Treat and Transport model from May 1 until this fall. The new model was to provide ambulance care teams more flexibility in how they triage emergencies. Medicare now pays for emergency ambulance services when beneficiaries are transported to hospitals, skilled nursing facilities and dialysis centers. Under the model, Medicare will also reimburse for transport to an urgent care clinic or primary care office, or for providing care in place or using telehealth.

State Level

Approved Statutes:

S-2333:  This bill provides civil and criminal immunity to certain healthcare professionals and healthcare facilities during a public health emergency and state of emergency.  The bill reinforces earlier directives from the New Jersey Department of Health (NJDOH) and New Jersey Attorney General’s Office (AG), specifically NJDOH Executive Directive 2020-006 and AG Enforcement Directive No. 2020-03, as discussed in our previous update.

Under S-2333, healthcare professionals will not be liable for civil damages for injury or death related to the provision of medical services in support of the State’s response to COVID-19 during New Jersey’s state of emergency.  The bill’s immunity provision also applies to all good faith actions by healthcare professionals to support efforts to treat COVID-19 patients and prevent the spread of the coronavirus during the state of emergency.  Those good faith actions include the practice of telemedicine or telehealth as well as the necessary treatment of patients outside the normal scope of a healthcare worker’s professional license.

The bill also extends to healthcare facilities, granting immunity for imputed acts or omissions of employees and volunteers who would otherwise qualify for individual immunity under the bill.  With critical medical resources in short supply, the bill also provides that healthcare professionals and facilities shall be immune from criminal liability related to the allocation of mechanical ventilators or other scarce medical resources so long as the professional or facility adheres to core principles identified by the Commissioner of Health.

Immunity granted under this bill is not without limitation, however.  Immunity will not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct of any healthcare professional or facility.  It also will not apply to medical care rendered in the ordinary course of medical practice, unrelated to COVID-19 or the state of emergency.

A-3901: This bill permits professional and occupational licensing boards to reactivate licensure of certain individuals during a state of emergency or public health emergency.  Importantly, the bill also includes a provision waiving compliance for licensees with liability insurance required by statute or regulation for acts or omissions undertaken in the course of providing healthcare services in support of the State’s response to a declared emergency.

Proposed Regulations:

52 N.J.R. 666(a) – The New Jersey Department of Health is proposing a new N.J.A.C. 8:53 to implement the requirements N.J.S.A. 45:1-61 et seq, which requires each telemedicine or telehealth organization operating in New Jersey to register with the Department prior to commencing services. In addition to the registration requirements, the Act sets forth an annual reporting requirement for registered telemedicine and telehealth organizations.  This proposed rule does not address the reporting requirements, but the Department intends to draft a separate notice of proposal for this requirement.  Comments are due by June 5, 2020.

52 N.J.R. 676(a) – In light of the continued abuse of opioids, the BME proposes to amend N.J.A.C. 13:35-7.6 to require prescribers to co-prescribe an opioid antidote under certain circumstances when prescribing opioids.  In addition, the Board proposes to amend N.J.A.C. 13:35-7.6 to implement N.J.S.A. 24:21-15.2, which concerns limitations on prescribing, administering, or dispensing of controlled dangerous substances, with specific limitations for opioid drugs, and establishes special requirements for the management of acute and chronic pain. These limitations shall apply to physicians, podiatrists, physician assistants, and certified nurse midwives. Among others, the revised regulations clarify the timing of the requirement to enter into a pain management agreement, amend the definition of "initial prescription," and revise the definition of "chronic pain" in the rule consistent with the amended statute.  Comments are due by June 5, 2020.

Governor Murphy Signs Temporary Remote Notarization Law in Response to COVID-19

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On April 14, 2020, New Jersey Governor Phil Murphy signed into law A-3903/S-2336, which, subject to certain requirements, temporarily allows remote notarizations during the Public Health Emergency and State of Emergency declared by Governor Murphy in Executive Order 103 on March 9, 2020.  The law takes effect immediately.

More specifically, A-3903/S-2336 authorizes either: (1) a notary public (“Notary”); or (2) an officer authorized to take oaths, affirmations and affidavits under R.S.41:2-1 or to take acknowledgements under R.S.46:14-6.1 (“Officer”), to perform notarial acts using “communication technology”1 for a remotely located individual if the notary public or officer:

(1) has personal knowledge of the identity of the individual appearing before the notary public or officer, which is based upon dealings with the individual sufficient to provide reasonable certainty that the individual has the identity claimed; (2) has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public or officer; or (3) has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing.

Additionally, the Notary or Officer must be reasonably able to confirm that a record before the Notary or Officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature, and must create an audio-visual recording of the performance of the notarial act, a copy of which must be retained for a minimum of ten (10) years.

For individuals remotely located outside of the United States, A-3903/S-2336 specifies that:

(1)  the record (i) is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or (ii) involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and

(2)  the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.

However, remote notarizations under A-3903/S-2336 are not authorized for the following records:

(1) the Uniform Commercial Code, N.J.S.12A:1-101 et seq., other
than N.J.S.12A:1-107, N.J.S.12A:1-206, the provisions of the “Uniform
Commercial Code – Sales,” chapter 2 of Title 12A of the New Jersey Statutes,
and the provisions of the “Uniform Commercial Code – Leases,” chapter 2A of
Title 12A of the New Jersey Statutes; or

(2) a statute, regulation or other rule of law governing adoption,
divorce or other matters of family law.

Further, A-3903/S-2336 authorizes the New Jersey State Treasurer to adopt rules necessary to implement  the provisions of this law, which may include: (1) the means of performing a notarial act involving a remotely located individual using communication technology; (2) standards for communication technology and identity proofing; and (3) standards for the retention of an audio-visual recording created.  However, before adopting, amending, or repealing any rule, the State Treasurer must consider remote notarization standards promulgated by national standard-setting organizations such as the Mortgage Industry Standards Maintenance Organization and the recommendations of the National Association of Secretaries of State.

As such, while remote notarizations are temporarily available under New Jersey law during the COVID-19 emergency, practitioners must be aware of specific requirements under the law before performing remote notarial acts.

For a copy of A-3903/S-2336, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.

1 “Communication technology” is defined as an electronic device or process that allows a Notary or Officer and a remotely located individual to communicate with each other simultaneously by sight and sound.

Connecticut Appellate Court Finds Lender’s Actual Loss Under Title Policy Is Limited to Amount Paid in Tax Foreclosure Sale Minus Tax Lien Amount

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The Appellate Court of Connecticut recently held that a lender’s loss under a title insurance policy is limited to the amount paid at a tax sale foreclosure minus the amount of taxes, regardless of what the court in the lender’s own foreclosure action found to be the fair market value.  See RCN Capital, LLC v. Chicago Title Insurance Company, 196 Conn. App. 528 (2020).  In 2012, plaintiff issued a loan in the amount of $600,000 to a borrower.  As security, plaintiff received a mortgage on a property, and defendant issued a title insurance policy to plaintiff.  The policy amount was later increased to $800,000.  The borrower later defaulted and plaintiff commenced a foreclosure action in 2015, in which the trial court determined that the fair market value of the property was $304,000.   During the action, however, plaintiff learned that there was a prior mortgage on the property in the amount of $1.4 million.  Later that year, the city commenced a tax sale foreclosure for $34,662.92 in unpaid property taxes on the property.  Plaintiff purchased the property at the tax sale for $150,000.  After the unpaid taxes and sale fees were paid, the remaining monies, about $108,000, were paid to the first mortgagee.  Plaintiff then brought this action against defendant seeking its damages caused by the prior mortgage.  Plaintiff argued that its damages were $269,337.08—the fair market value of the property as determined in plaintiff’s foreclosure action ($304,000) minus the amount of the tax lien ($34,662.92).  The trial court disagreed and found that plaintiff’s damages were only the $108,000 paid to the first mortgagee, and plaintiff appealed.

On appeal, the Court affirmed.  It found that the first mortgagee received $108,000 after the sale and “[b]ut for the . . . superior mortgage, the plaintiff, therefore, would have received $108,000. Thus, under the circumstances before us, the plaintiff sustained an actual loss of $108,000. An award in excess of that amount would provide the plaintiff with an impermissible windfall.”  In making this finding, the Court rejected plaintiff’s claim that the price at the tax sale was unreliable because there were only a small number of bidders, noting in a footnote that “[a]lthough not directly relevant to our resolution of this claim, it is not lost on this court that the plaintiff availed itself of the ‘unreliable’ valuation process in order to secure the property at a price well below the fair market valuation of its own expert witness.”  The Court also found that there was no evidence supporting plaintiff’s claim that, if it held the first mortgage, it simply would have paid the taxes on the property and avoided the tax sale entirely.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.

New Jersey Extends Criminal and Civil Immunity to Providers and CMS Issues $30 Billion in Grants to Providers

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For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

New Jersey Extends Criminal and Civil Immunity to Facilities:

On Saturday, April 11, the New Jersey Department of Health (“NJDOH”) extended civil immunity to healthcare facilities triaging COVID-19 patients, such as hospitals.  The State already extended civil immunity to practitioners pursuant to Executive Order No. 112 as we stated in our previous Update. Concerned with the scarcity of medical equipment, including ventilators, the NJDOH stated in Executive Directive 2020-006 that it is in the “public interest to implement measures that accomplish the goal of ensuring that all healthcare facilities that may face a shortage of ventilators or other scarce resources adopt and adhere to medically ethical and appropriate guidelines for the allocation of ventilators, ICU/critical care beds, and critical care staff, and develop a structure to effectuate those guidelines.”  In other words, the State is concerned with how hospitals will decide how to allocate medical equipment among patients should medical equipment, such as ventilators, become scarce, and the potential liability that may flow from those decisions.

NJDOH Executive Directive 2020-006 extends civil liability immunity to hospitals regarding such decision-making as long as hospitals follow the State’s Allocation of Critical Care Resources During a Public Health Emergency (the “Policy”).  The Policy sets forth criteria to assist hospitals in determining how to best use medical equipment if the equipment becomes scarce.  The Directive states that “A healthcare facility that adopts the Department of Health's model policy Allocation of Critical Care Resources During a Public Health Emergency, as well as the healthcare facility's agents, officers, employees, servants, representatives and volunteers, shall not be civilly liable for any damages arising from an injury to a patient caused by any act or omission pursuant to, and consistent with, such policy. Such immunity supplements any other immunities and defenses that may apply.”

On the same date, Attorney General Gurbir S. Grewal issued an AG Enforcement Directive No. 2020-03 extending criminal immunity to healthcare facilities, again, as long as they follow the Policy.

CMS Distributes $30 Billion in Grants to Providers Under the CARES Act

On March 27, 2020,  President Trump signed the CARES Act, which provides $100 billion in relief funds to hospitals and other healthcare providers to support healthcare-related expenses or lost revenue because of COVID-19.  The Trump Administration began distributing the first $30 billion in grants – not loans – on April 10, 2020.  This is different from the Accelerated and Advance Payment Program because this $30 billion is a grant and not a loan.

All facilities and providers that received Medicare fee-for-service (FFS) reimbursements in 2019 are eligible for this initial $30 billion grant distribution.  A provider’s portion of the initial $30 billion is calculated as follows:  Provider’s 2019 Medicare FFS divided by $484 billion and then multiply that ratio by $30 billion.  All payments will automatically show up in the accounts of providers based on their Taxpayer Identification Number with the “HHSPAYMENT" as the payment description.

As a condition to receiving these funds, you must execute an attestation within thirty days of receiving payment.  The attestation will be sent this week but it will state, among other things, that the provider will not seek collection of out-of-pocket payments from a COVID-19 patient that are greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network provider.  You must also accept the terms and conditions.  If you do not return the payment within 30 days, then CMS will view that as acceptance of the terms and conditions.  If you do not wish to comply with the terms and conditions, then you must do the following: contact HHS within 30 days of receipt of payment and then remit the full payment to CMS as instructed.

The Trump Administration is also determining how to disburse the remaining $70 billion.  It is believed that there will be targeted distributions that will focus on providers in areas particularly impacted by the COVID-19 outbreak and providers requesting reimbursement for the treatment of uninsured Americans, among others.

Many providers should have already received their grants under the CARES Act.  If you do not receive your payment this week, then immediately contact your MAC.

Remote Notarization Laws Amid COVID-19

Posted on by rd_admin

In
response to the growing COVID-19 pandemic, many state governors and legislators
have swiftly moved to pass laws—either by executive order (“EO”) or traditional
legislative processes—to allow notaries to remotely carry out their duties
while maintaining social distancing practices and abiding by stay-at-home
orders.

Moreover,
on March 19, 2020, United States Senators Mark R. Warner (D-VA) and Kevin
Cramer (R-ND) introduced S. 3533, the “Securing and Enabling Commerce Using
Remote and Electronic (SECURE) Notarization Act of 2020” which would permit
immediate nationwide use of remote notarizations on a federal level that would,
if enacted, preempt any and all of these state measures.

However,
until then, the following list illustrates the current landscape of remote
notarization laws among all 50 states as of April 13, 2020:

I.
State Laws Authorizing Remote Notarization

The
following states have laws that authorize, with varying requirements, remote
notarizations: Arizona, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma,
South Dakota, Tennessee, Texas, Utah, Virginia, Vermont, Washington, Wisconsin.1

II.
Pending State Legislation for Remote Notarization

Both
Alaska and New Jersey currently have remote notarization bills which have
passed both houses and are awaiting action by their respective Governors.

III.
Executive Orders/Actions in Response to COVID-19

a.
Alabama

On March
26, 2020, Alabama Governor Kay Ivey issued an executive order (Proclamation of
Governor) permitting Alabama notaries who are licensed attorneys, and Alabama
notaries who work under the supervision of licensed attorneys, to notarize
using videoconferencing in lieu of personal appearance.  Further, any
individual who witnesses a document through videoconference technology is
considered an “in person” witness, if the identity of the individual is
validated by the remote notary.  The executive order expires at the
termination of the public health emergency.

b.
Arkansas

On March
30, 2020, Arkansas Governor Asa Hutchinson signed EO 20-12 permitting, among
other things, certain remote notaries—i.e.,
only notaries who are (1) attorneys licensed to practice law in
Arkansas, or (2) licensed Arkansas title agents, or (3) supervised by such an
attorney or title agent, or (4) employed by a financial institution registered
with the Arkansas State Bank Department—to notarize documents through remote
“real-time audio and visual means.”  Further, both the notary and
the signer must be physically located in Arkansas.  EO 20-12 expires at
the termination of the public health emergency.

c.
Arizona

In April
of 2019, Arizona enacted SB Bill 1030 which allows remote notarizations subject
to certain requirements starting on June 30, 2020.  However, due to
COVID-19, on April 8, 2020, Arizona Governor Doug Ducey signed EO 2020-26 which
accelerates the SB 1030 timeline to start on April 10, 2020.

d.
Colorado

On March
27, 2020, Colorado Governor Jared Polis signed EO D 2020 019 permitting
notarial officers to perform remote notarizations using real-time audio-visual
communication technology.  Further, the EO authorized Colorado’s Secretary
of State to establish rules in furtherance of this temporary remote
authorization.  On March 30, 2020, the Colorado Secretary of State issued
detailed implementation rules which stated, among other things, that the notary
and signer must be physically located in Colorado and the process must be
recorded and stored for 10 years.  EO D 2020 019 expires on April 27, 2020
unless extended by further executive order.

e.
Connecticut

On March
23, 2020, Connecticut Governor Ned Lamont signed EO No. 7K authorizing, among
other things, notarial officials (or Commissioners of the Superior Court of
Connecticut) to perform remote notarizations using “an electronic device or
process” to communicate with a remotely located signer if the following
conditions are met: (1) if not personally known to the notary, the signer must
present valid photo ID during the remote session; (2) the “communicative
technology” used must be capable of recording the session and storing it for 10
years; (3) the signer must be physically situated in Connecticut; and (4)
signer must transit an electronic version of the signed document to notary on
same day it was signed.  Further, EO No. 7K contains additional requirements
related to remote notarizations for wills and real estate closings.  EO
No. 7K expires on June 23, 2020 unless extended by executive order.

f.
Illinois

On March
26, 2020, Illinois Governor JB Pritzker signed EO 2020-14 which permits, among
other things, Illinois notaries to perform remote notarizations “via two-way
audio-video communication technology” provided that (i) the notary is
physically within the state while performing the act; and (2) the notarial act
follows the guidance posted by the Illinois Secretary of State.  The
Secretary of State’s guidance requires, among other things, that both the
signer and notary be located in Illinois and that the recording of the notarial
session be stored for at least three (3) years.  EO 2020-14 expires when
the Governor’s proclamation is rescinded.

g.
Iowa

In April
of 2019, Iowa enacted Senate File 475 which allows remote notarizations subject
to certain requirements starting on July 1, 2020.  However, due to
COVID-19, on March 22, 2020, Iowa Governor Kimberly K. Reynolds issued a
Proclamation which temporarily authorizes remote notarizations until April 16,
2020, unless terminated or extended by the Governor.  As such, unless
further action is taken by the Governor, after April 16, 2020, remote notarizations
will not be allowed in Iowa until July 1, 2020.

h.
Maryland

In May of
2019, Maryland enacted Senate Bill 678 enabling remote notarizations subject to
certain requirements starting on October 1, 2020.  In response to
COVID-19, on March 30, 2020, Maryland Governor Larry Hogan signed EO
20-03-30-04 which, among other things, authorizes remote notarizations during
the emergency.  Governor Hogan did not accelerate the timeline of Senate
Bill 678 and, therefore, EO 20-03-30-04 is only a temporary measure allowing
remote notarization in Maryland until the end of the state of emergency.
At the conclusion of EO 20-03-30-04, remote notarization will not be available
in Maryland until October 1, 2020.

i.
Michigan

In 2018,
Michigan enacted HB 511 authorizing remote notarizations subject to certain
requirements.  However, in response to COVID-19, on April 8, 2020,
Michigan Governor signed EO 2020-41 which, among other things, temporarily
relaxes strict compliance with certain requirements under Michigan law as they
relate to in-person notarial acts and witnessing.  EO 2020-41 expires on
May 6, 2020.

j.
Nebraska

On May 30,
2019, Nebraska enacted LB186 (Online Notary Public Act) which authorizes remote
notarizations subject to certain requirements starting on July 1, 2020.
However, in response to COVID-19, Nebraska Governor Pete Ricketts signed EO
20-13 which, among other things, waived the July 1, 2020 effective date and
allowed the Nebraska Secretary of State to immediately implement the remote
notarization act.

k.
New Hampshire

On March
23, 2020, New Hampshire Governor signed EO 2020-04 #11 permitting remote
notarizations subject to certain requirements, including, but not limited to:
(1) the notary and the signer can communicate simultaneously by sight and sound
through an electronic device or process; (2) if the signer is out of the state,
the document to be signed must relate to New Hampshire; (3) the remote
recording must be kept for the duration of the notary’s commission; and (4)
upon signature, the document must be mailed by the signer to the notary.
EO 2020-04 #11 expires at the end of the state of emergency.

l.
New Mexico

On March
30, 2020, New Mexico Governor Michelle Grisham signed EO 2020-015 permitting
remote notarizations subject to certain requirements, including, but not
limited to: (1) technology used must allow for the direct interaction between
the notary, the signer, and any required witnesses; (2) each party must represent
that they are presently in New Mexico; (3) if unknown to notary, signer and/or
witness must present valid identification; and (4) the signer must transmit the
signed document to any witnesses and then to the notary on the same day.
EO 2020-015 expires at the end of the state of emergency.

m.
New York

On March
19, 2020, New York Governor Andrew Cuomo signed EO No. 202.7 permitting, among
other things, remote notarizations using audio-visual technology if the
following conditions are met: (i) the person seeking the notary's services, if
unknown to notary, presents valid photo ID during video conference; (ii) video
conference must allow for direct interaction between the signer and notary;
(iii) the signer must be located in New York;  (iv) the person must send
an electronic version of the signed document to the notary on same day it was
signed; (v) notary may notarize the transmitted copy of the document and
transmit the same back to the person; and (vi) the notary may repeat the
notarization of the original signed document as of the date of execution
provided the notary receives such original signed document together with the
electronically notarized copy within thirty days after the date of
execution.  EO 202.7 expires on April 18, 2020 unless extended by further
executive order.

n.
Pennsylvania

On March
25, 2020, the Pennsylvania Department of State requested and received a
temporary suspension of the Pennsylvania statute regarding the in-person
requirement for notarizations related to real estate transactions.
Specifically, the March 25, 2020 notice suspended the personal appearance
notary requirement for: (1) personal
real estate transactions that were in process when the emergency was declared;
and (2) all commercial real estate transactions, including new
transactions.  The Pennsylvania Department of State followed up with a
second notice on April 2, 2020 with additional specifications for remote
notarizations on other records, such as wills and power of attorneys.  The
notices did not specify an expiration date.

o.
Rhode Island

On April
3, 2020, the Rhode Island Department of State, in collaboration with Rhode
Island Governor Gina Raimondo, temporarily authorized remote notarizations
subject to Standards of Conduct promulgated by the Governor and Secretary of
State.  Remote notarization authorization expires at the end of the state
of emergency.

p.
Vermont

In 2018,
Vermont enacted the Revised Uniform Law on Notarial Acts, which includes a
provision enabling a notary to perform remote notarial acts, but deferred the
effective date of the provision to when the Vermont Secretary of State was able
to adopt rules to implement it.  In response to COVID-19, on March 25,
2020, the Vermont Secretary of State promulgated emergency rules allowing
remote notarizations subject to certain conditions.  The emergency rules
expire 180 days from the effective date.

q.
Washington

In April
2019, Washington enacted SB 564 authorizing remote notarizations subject to
certain requirements starting on October 1, 2020.  However, in response to
COVID-19, on March 24, 2020, Washington Governor Jay Inslee signed EO 20-27
which, among other things, accelerated SB 564’s effective date to take effect
immediately and will expire, unless further action is taken, on April 26,
2020.  As such, unless further action is taken by the Governor, after
April 26, 2020, remote notarizations will not be allowed in Washington
until October 1, 2020.

r.
Wisconsin

On March
3, 2020, Wisconsin enacted AB 293 authorizing remote notarizations subject to
certain requirements starting on May 1, 2020.  However, in response to
COVID-19, on March 18, 2020 and March 20, 2020, the Wisconsin Department of
Financial Institution issued an Emergency Guidance stating that, among other
things, the Department will construe certain statutory language in existing
Wisconsin statutes to allow remote notarizations.  The Emergency Guidance
applies until the end of the state of emergency.

s.
Wyoming

On March
24, 2020, the Wyoming Secretary of State promulgated Guidance on Temporary
Remote Notarization which allows, among other things, remote notarizations in
light of COVID-19.  The Secretary of State offers the following
recommendations: (1) remote Wyoming notaries should complete the training
provided by an approved remote online notarization; (2) remote notaries should
use that provider’s technology standards and security features; (3) remote
notaries should notify the Wyoming Secretary of State and provide documentation
of completed training; and (4) remote notaries should complete an intent to
perform remote notary form.  The Guidance does not specifically list an
expiration date.

IV.
Conclusion

Remote
notarization laws are rapidly changing in the United States as a result of
COVID-19.  As such, practitioners must be familiar with evolving remote
notarization laws in their respective states.  This list is merely a
summary of the landscape of remote notarizations as of April 13, 2020.

For more
information about remote notarization laws during COVID-19, please contact Michael
O’Donnell at modonnell@riker.com or
Anthony
Lombardo at alombardo@riker.com.

_________________________________

1Many of
these listed states have temporarily modified their remote notarization laws by
executive order/action in light of COVID-19 (See Section III).

COVID-19 and Environmental Remediation: Guidance and Practical Tips on Whether Remediation is “Essential”

Posted on by rd_admin

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.

For your convenience, Executive Order 107 can be found here and Executive Order 122 can be found here.

For more information, please contact the author Alexa Richman-LaLonde at alalonde@riker.com or any attorney in our Environmental Practice Group.

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