Impact of Executive Orders/Remediation Work
Governor Phil Murphy has issued a number of executive orders regulating life in New Jersey in response to COVID-19. Two of them have been cited in connection with environmentally regulated work. Executive Order 107, issued on March 21, 2020, requires all “non-essential retail business”, and entertainment and recreational businesses, to close to the public. Environmental remediation, sampling, testing and consulting are not retail businesses and therefore are not required to be closed under the Order. However, the Order requires reduced staff on-site to the minimum necessary to perform essential operations and for all other employees to work remotely where practicable. Social distancing is to be used when in public.
Executive Order 122, which Governor Murphy issued on April 8, 2020, requires non-essential construction projects to cease. This Order has caused uncertainty in the regulated community because certain remedial work, such as building a cap, might be considered construction, as well. The Order does not clearly address physical on-site remedial work. It defines “essential construction projects” to include “[a]ny 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”. Projects which are subject to a State deadline but not subject to a governmental order, a significant part of remediation work in New Jersey, are not identified in this group of essential projects. The Order also permits “work on a non-essential construction project that is required to physically secure the site of the project, … abate any hazards that would exist on the site if the construction were to remain in its current condition, [or] remediate a site….” Although unclear, this language may be interpreted to refer only to work to secure a site, not all construction required to build a remedial project or components.
DEP has promised to address this lack of clarity in the near future. In any event, much environmental work—testing, sampling, doing risk analyses and other tasks that can be performed at a desk or on a computer, and likely also activities such as well drilling and groundwater pumping—is not considered construction and can continue, subject to social distancing and related requirements.
Public Water Systems
DEP devotes an entire webpage to public water systems and related operations, found here containing numerous links and guidance documents. This volume of material recognizes that the provision of clean water is an essential public service, especially given the increased focus on both health and personal hygiene, and the need for frequent and vigorous handwashing. DEP seeks to strike a balance between the need for frequent testing and effective monitoring of water supplies and the goals underlying Governor Murphy’s executive orders which call for remote working and social distancing. While requiring continued monitoring and vigilance, certain lower priority regulatory requirements are modified as appropriate under current circumstances, such as sampling locations and frequency for lower priority parameters.
Other Regulatory Issues Concerning Medical Wastes
DEP also has issued regulatory guidance concerning medical waste issues related to COVID-19. These topics relate to medical waste generation, transportation, handling, treatment and disposal, as well as certain air permitting issues.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Douglas F. Schleicher is the chair of the environmental practice group at Klehr Harrison.