April 10, 2020
Bruce S. Katcher, Diana A. Silva and Garrett D. Trego
On April 8, Governor Murphy issued Executive Order No. 122 (EO 122) suspending all non-essential construction in the State of New Jersey, effective Friday, April 10 at 8:00 p.m., with no end date. The Governor’s previous Stay-at-Home Order (EO 107) required most non-retail employers who could not limit their workforce to telework arrangements, like those in the construction industry, to make best efforts to reduce on-site work to a level that would ensure “essential operations” could continue. EO 122 expands upon that restriction for non-retail businesses and also expands on social distancing and worker interaction requirements, worksite sanitization requirements, protective gear requirements, and worker notification requirements for businesses continuing to operate. This alert examines the general applicability of EO 122 and its implication for environmental regulatory compliance.
Section 2 of EO 122 defines “essential construction projects” (those that may continue uninterrupted), to include the following: (1) projects necessary for the delivery of health care services (e.g., hospitals, pharmaceutical manufacturing), (2) transportation projects, (3) utility projects, (4) schools (K-12 and higher education), (5) certain residential projects (e.g., affordable housing and certain in-progress residential projects with small crews (five or less) or with firm closing/occupancy dates), (6) facilities that manufacture, distribute, store or serve goods or products sold online or by essential retail businesses covered by EO 107, (7) data centers or facilities critical to a business’s ability to function, (8) projects necessary for social services, (9) COVID-19 law enforcement or first responder projects, (10) projects under government order or federal government deadline, and (11) emergency repairs to ensure public health and safety of residents. The EO 122 should be consulted for further specifics on each category.
Further, in Section 2.m, the Order also includes as essential any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project.
In the context of environmental remediation as referenced in Section 2.m, Order 122 primarily leaves undisturbed the existing balance established by EO 107; however, it may provide additional clarity regarding certain remediation work that may continue. First, Section 2.m. allows on-site environmental remediation work to continue at a worksite that is otherwise deemed non-essential. Second, the exception in the same paragraph may allow environmental remediation construction, where the construction of an environmental remedy is itself the construction project, to continue as well. Importantly, EO 122 does not appear to impose any additional restrictions on environmental remediation work like most forms of investigation, sampling, or monitoring that would not be characterized as “construction,” meaning that such environmental remediation work would still be allowed to proceed.
Also, persons responsible for conducting remediation should keep in mind that throughout the COVID-19 emergency, the New Jersey Department of Environmental Protection (NJDEP) has remained open for business, albeit with employees working remotely and certain temporary work-arounds for certain document submissions. NJDEP’s web-based platform for filing documents is well-suited to the current working environment. Environmental consultants are also providing essential services at this time. Accordingly, New Jersey has not found it necessary to automatically extend any of its environmental remediation timeframes. If you anticipate needing more time to meet a deadline in light of current circumstances, the first step is likely to apply for an extension using NJDEP’s Remedial Timeframe Notification Form.
Other Environmental Implications
The Order could have a variety of other implications for the environmental regulatory aspects of construction projects, and businesses involved in construction activity should closely review the terms of existing permits to ensure compliance is maintained during the period of construction suspension. For example, periodic inspection and ongoing maintenance of erosion and sedimentation controls at non-essential construction projects that are required under construction-related NJPDES stormwater management permits could be characterized as work to abate hazards at a construction site, suggesting that these activities will be allowed to continue under the Order.
For questions regarding Executive Order 122 and the environmental impact on active construction projects, please contact Bruce Katcher (484-430-2320), Diana Silva (484-430-2347), or Garrett Trego (484-430- 2321).