The pandemic caused by the novel coronavirus, or COVID-19, has slowed business—and activity in general in many areas of the United States—to a crawl. New York State is one of the places hit hardest by this pandemic. Indeed, at the time of this writing, New York has the highest number of confirmed COVID-19 cases in the country. Unfortunately, the spread of the virus shows no signs of relenting.
Nonetheless, manufacturing, the real estate industry, and other regulated businesses continue to face environmental reporting obligations, regulatory deadlines, and potential penalties for non-compliance. Businesses and other property owners are dealing with remediation deadlines, as well as operation and maintenance obligations of environmental controls.
Businesses are also rightly concerned about reporting requirements under various permits, including under such federal permitting programs as the Resource Conservation and Recovery Act and others. Meeting these obligations has become significantly complicated by the pandemic and the ancillary issues it has brought on, such as the illness of key personnel, inaccessible facilities, and other impediments.
On March 20, 2020, Governor Andrew Cuomo signed Executive Order 202.8, which directs that all “non-essential” businesses implement remote work policies for 100 percent of their respective workforces, effective March 22 through April 19, 2020. The Executive Order further states that businesses that provide “essential services or functions whether to an essential business or a non-essential business … may operate at the level necessary to provide such service or function.”
The Empire State Development Corporation has issued guidance as to which businesses are deemed to provide “essential services or functions.” Among others, “construction” and “essential services” are two categories included on the list of essential businesses not subject to the stay-at-home order.
Per additional guidance sent out from the Division of Remediation (DER) of the New York State Department of Environmental Conservation (NYSDEC), “essential services” are deemed to include “any service related to emergency (spill) response and remedial activities at inactive hazardous waste sites, including the operation and maintenance of remedial systems put in place for the protection of public health.” We understand that NYSDEC is currently considering whether environmental-related work under the New York State Brownfield Cleanup Program will be deemed “essential” and will likely be providing guidance on that issue in the near future.
Parties faced with environmental obligations during this pandemic should take all precautions to keep employees and the public safe and to protect themselves from potential environmental liabilities and regulatory penalties. In its guidance, the DER asks for any Responsible Party to check with its Project Manager, either itself or through counsel, for guidance applicable to a specific site or spill. It would also be prudent for any party with these sorts of obligations to review insurance policies and check supply contracts and any applicable environmental orders or permits for relevant provisions, such as force majeure notice requirements. In all cases, parties should document all disruptions and operational issues that occur, as well as all steps taken to address them.
The Gibbons Environmental Department continues to monitor this situation as it progresses in New York and in New Jersey and is prepared to assist and advise clients with these issues. For more information about New York matters, please contact David Freeman.
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