COVID-19: NJDEP Issues Gloss on Executive Order 107 for Regulated Entities – Update from Manko Gold

March 27, 2020

Bruce S. Katcher

COVID-19 Update

On March 26, 2020, the New Jersey Department of Environmental Protection issued an e-mail through its SRRA List Serv in apparent response to inquiries from various non-retail businesses (regulated entities and environmental service providers) as to how Governor Murphy’s Executive Order 107 applies to them. 

While EO 107 orders the closure of all retail businesses (with enumerated exceptions), it allows the continued operation of non-retail businesses, subject to certain constraints, and permits exceptions to the stay-at-home portion of EO 107 to allow individuals to go to their jobs.  Operating businesses must accommodate telework or work at home arrangements and “make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.”

A non-exclusive list of examples of those who need to be physically present at their work site in order to perform their duties is provided and includes “law enforcement officers, fire fighters, and other first responders, cashiers or store clerks, construction workers, utility workers, repair workers, warehouse workers, lab researchers, information technology maintenance workers, janitorial and custodial staff, and certain administrative staff.”

In sum, non-retail businesses are subject to “at home” work requirements for those who can, and social distancing, and use of “best efforts” to reduce on-site staff to the minimal number necessary “to ensure that essential operations can continue.”  There’s no definition of essential operations in the Order and the examples given in the Order are not very helpful to many regulated entities or environmental service providers.  

NJDEP’s response to inquiries from regulated entities  and environmental service providers restates the essential provisions of EO 107, acknowledges that many of the inquiries have come from businesses “that perform critical functions that support public health and safety, and that some of their functions cannot be achieved remotely” and then goes on to list “sectors” that have made inquiry of NJDEP, including the following:

  • Public works and infrastructure, including energy-generating facilities
  • Drinking water, wastewater, and distribution/conveyance systems
  • Managers of solid waste, regulated medical waste, hazardous waste, and recyclables
  • Providers of environmental services, including licensed professionals (e.g., 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
  • Laboratories
  • Pesticide applicators
  • Recreational and commercial fisherman

The e-mail concludes by indicating that “no formal designation as essential of any” of these sectors “is necessary or expected at this time”, leaving each business to make its own determination as to how to comply with EO 107.  While the communication seems to reflect an acknowledgement that functions that “support public health and safety” are the kinds of businesses that could qualify for continued on-site operation, it does little beyond that.  Perhaps the coming days will yield more helpful guidance from either NJDEP or the Office of Emergency Management.   Questions about the above may be directed to Bruce Katcher at 484-430-2320.