New York City and State Close Down All “Non-Essential” Construction

As noted in our blog published on March 24, Governor Andrew Cuomo’s March 20, 2020 Executive Order 202.8 directed all “non-essential” businesses to implement remote work policies for 100% of their workforces, effective March 22 through April 19, 2020. The Empire State Development Corporation (ESDC) issued initial guidance on March 24, 2020, whereby it interpreted the Order to allow, as a category of “essential business,” “construction,” “including skilled trades such as electricians and plumbers,” and “for essential infrastructure or for emergency repairs and safety purposes.”

ESDC updated and clarified its guidance on March 27, stating that “[a]ll non-essential construction must be shut down, except for emergency construction” and certain types of “essential construction.” Per the updated guidance, “emergency construction” includes “a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site.” “Essential construction” includes “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing and homeless shelters.” Even at emergency or essential construction sites, social distancing must be able to be maintained, or the site must shut down. Violations are punishable by fines of up to $10,000.

On March 30, the New York City Office of Environmental Remediation (OER) and the New York City Department of Buildings (DOB) issued statements on how these offices will implement the Governor’s Order, consistent with the ESDC’s guidance relating to permissible and prohibited construction activities. Both OER and DOB confirm that affordable housing projects are deemed “essential” and may continue with construction activities. Additionally, homeless shelters and transitional facilities are “essential” and may continue construction.

The OER statement makes clear that projects that are not “essential” must cease construction if they can do so without compromising public health, even if a project has broken ground. Projects that have not broken ground or that are currently in the investigation and sampling phase, and are not “essential,” may not commence construction until the Governor’s ban is lifted. OER has asked that all sites that intend to continue operations submit a statement to the OER Project Manager for that site, by close of business on April 1, explaining the basis for continued operations.

The DOB statement confirms that “emergency construction,” defined as a project necessary to protect the health and safety of the occupants such as emergency work ordered by DOB, restoration of essential services, and work necessary for public safety, may continue. It also allows continuation of “essential construction,” such as that involving utilities, hospitals or healthcare facilities. Lastly, construction may continue at a site where only a single worker is present. “Non-essential” projects currently underway can continue “only until it is safe to shut down the site.” All other construction work at sites under DOB’s jurisdiction must cease.

On April 1, the Department of Environmental Conservation’s (DEC) Division of Environmental Remediation (DER) released its guidance regarding Executive Order 202.6. The DEC provides that “remedial construction activities, including new construction starts,” at sites that pose a significant threat to public health or the environment are “essential.” This specifically includes Class 2 sites of the Registry of Inactive Hazardous Waste Disposal, and sites in the Brownfield Cleanup Program deemed “significant threat sites.” Essential activities also include remedial construction that has begun at non-significant threat sites “as necessary to ensure site safety,” operation, and maintenance of active remedial systems as necessary for the protection of human health and the environment, and interim remedial measures for “imminent human exposures” or “threat of significant contaminant migration.” Lastly, DEC deems spill response activities and investigation of releases as determined by DEC on a case-by-case basis to be “essential.”

These guidances and directives are generally consistent with each other, but there are a number of differences. Perhaps the most significant is the divergence between the DOB and DEC regarding work at sites which are being remediated to remove hazardous materials that are a potential threat to public health or the environment. Both on paper and in the field, DOB takes a narrower view as to what continuing activities at hazardous waste sites are permissible. At several sites, OER has offered to try to resolve these differences by working with the New York City Mayor’s Office and DOB to facilitate continued activities at such sites. Site owners who are experiencing difficulties in this area should consider availing themselves of OER’s assistance in resolving these issues.

Despite these restrictions imposed in New York, in New Jersey Governor Murphy has essentially allowed all construction to continue in a more or less unencumbered fashion to date.

The Gibbons Environmental Department continues to monitor developments in this area in both New York and New Jersey and is prepared to assist and advise clients with these and related issues.

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