Remedial Construction May Proceed. Governor Murphy’s Executive Order 122 related to COVID-19 was not clear regarding whether certain environmental remedial construction projects could continue, as we discussed in a prior alert. As promised, on April 21, 2020, DEP issued clarifying guidance in an email which interpreted the executive order to mean that “construction related to site remediation projects are allowed to continue”.
DEP cautioned contractors to make appropriate on-site staffing determinations for essential personnel and to follow other applicable guidance, such as social distancing, consideration of potentially staggering on-site activities and determining which construction must be accomplished immediately and which can be postponed to a later date.
Extension of Remedial Timelines. On April 24, 2020, on an emergency basis, DEP adopted a Temporary Rule Modification which extends by 90 days the timeframes established under the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS, N.J.A.C. 7:26C) and the Technical Requirements for Site Remediation (Technical Requirements, N.J.A.C. 7:26E) for many remedial activities. The extensions are broad and will apply to many remedial investigations and actions, including those which otherwise are mandatory by statute or permit. The Temporary Rule Modification also allows for additional time extensions on a site- and situation-specific basis.
The Temporary Rule Modification also allows DEP to waive, suspend, modify or otherwise relax any other provision of the ARRCS or the Technical Requirements on a case-by-case and site-specific basis if (a) necessary to support the continued management of remedial activities and the services supporting them; (b) the variance is narrowly tailored to address circumstances created by or related to the COVID-19 pandemic; and (c) DEP’s action is applied consistently to similarly situated entities and individuals.
The Temporary Rule Modification is retroactive to March 9, 2020 and is in effect for the duration of Executive Order 103, which declared a state of emergency in New Jersey as a result of Coronavirus disease.
DEP has issued an Environmental Compliance and Enforcement Alert providing for a measure of regulatory flexibility given the COVID-19 pandemic. While stating that nothing in the April 21, 2020 advisory is an indication that DEP will not require full compliance with applicable statutory or regulatory standards, the alert allows for DEP to exercise its discretion in enforcing any violations that are attributable to the current emergency situation.
DEP first encourages outreach to program contacts for specific guidance, although cautioning that absent specific approval or direction the regulated entity must comply with all existing requirements.
Where non-compliance cannot be avoided due to circumstances created or directly related to COVID-19, DEP must be contacted within two business days of discovery through the DEP Hotline, unless a shorter time frame is required by applicable law (such as for a spill). If compliance can be reestablished within seven days, DEP must be provided written confirmation establishing the date of non-compliance discovery and duration of non-compliance; a description of the decisions and corrective action taken; and a description of how the non-compliance was created by or directly related to the COVID-19 pandemic. If compliance cannot be achieved within seven days, the regulated entity must contact DEP enforcement immediately after calling the DEP Hotline to develop appropriate methods to achieve compliance as quickly as possible, which must be detailed in a compliance plan approved by DEP in writing.
Compliance with the requirements set forth in the preceding paragraph and steps to prevent recurrence may result in a reduction of any civil penalties that might otherwise apply.
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.