Manufacturing entities in New Jersey are subject to a myriad of environmental reporting obligations, with associated regulatory deadlines and penalties for compliance failures. In addition, New Jersey businesses face remediation deadlines, sampling requirements, maintenance of environmental controls, and the ramifications of missed deadlines and malfunctioning systems. In the face of the coronavirus pandemic, compliance can be complicated by illness of key personnel or contractors, closed or inaccessible facilities, and malfunctioning communications systems.
Gibbons has been and will continue to be in contact with key officials at the New Jersey Department of Environmental Protection (NJDEP) to provide input and guidance on the Department’s response and convey the issues that impact our clients and the regulated community as a whole. We understand that NJDEP is currently working on a potential Administrative Order to address reporting and monitoring deadlines and is also considering a compliance advisory or Frequently Asked Questions-type document to address many of these concerns.
On March 2, 2020, Governor Murphy signed Executive Order 102 establishing the Coronavirus Task Force, chaired by the Commissioner of the Department of Health (DOH). The following day, the governor signed Executive Order 103, declaring a Public Health Emergency and State of Emergency. Executive Order 103 authorizes and empowers the executive head of any agency to promulgate rules to waive, suspend, or modify any existing rule, subject to the governor’s prior approval, in consultation with the State Director of Emergency Management and the Commissioner of DOH. EO 103, par. 6. This EO gives NJDEP the tools to deal with environmental issues that arise in the regulated community.
Among concerns is the upcoming mandatory deadline for completion of remediation, which triggers direct oversight by NJDEP if missed. Under the Site Remediation Reform Act 2.0, enacted in August last year, NJDEP can modify the impact in individual cases with an Administrative Order when a state of emergency has been declared.
Persons Responsible for Conducting the Remediation, or PRCRs, are concerned about steps to take if components of an ongoing remediation, such as a groundwater treatment system, malfunction and circumstances prevent the PRCR from rapidly repairing it. There could be supply chain disruptions, access issues, contractor issues, personnel illnesses, and closed down facilities adding to the problem.
Additional concerns relate to reporting requirements under various permits, including waste water treatment, air, and such regulations as the Resource Conservation and Recovery Act and Community Right to Know. While many reporting obligations now provide for electronic filing, the illness of a key responsible employee, the closure of the facility, or the failure of electronic communications equipment could jeopardize timely filing.
Companies and PRCRs would be prudent to review their insurance policies for potential coverage and check their supply contracts, as well as any environmental oversight orders and permits, for force majeure notice requirements. In addition, they should carefully document all disruptions, upsets, shut downs, and other operational issues.
We expect that NJDEP will be providing advice on these issues and others in the near future. The Gibbons Environmental Department is prepared to assist and advise clients through these unique and difficult times. Please contact Department Chair Camille V. Otero with any questions or concerns.
To view all client alerts in Gibbons “The Coronavirus Pandemic and Your Business: How We Can Help” Series, click here.