NYSDEC Determines Remedial Activities Are “Essential Services” Under Governor’s Executive Order

On Saturday, March 21, 2020, New York Governor Andrew Cuomo issued a new Executive Order No. 202.8 (EO 202.8) “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency ” requiring all businesses and not-for-profit entities to require 100%  of  workers to work from home effective at 8 p.m. Sunday, March 22, 2020.Businesses or entities providing essential services or functions are not be subject to the in-person workplace restrictions

The New York State Department of Economic Development (Development d/b/a Empire State Development)  has issued guidance on what constitutes “Essential Services”. Businesses engaging in Essential Services must comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health

Paragraph 11 of the guidance covers “Services and agencies that exist to maintain the safety, sanitation and essential operations of residences or other essential businesses”. Among the type of services listed are:

  • Emergency management and response
  • other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes

The New York State Department of Environmental Conservation (NYSDEC) has advised DER Staff and Standby Consultants and Contractors  that these services are being interpreted to apply 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.” While the email was sent to Standby Contractors, the rationale presumably would also apply to active remedial work at BCP sites  and Spill Program corrective action projects .

There have been anecdotal reports of delays in field work because of limited personnel availability and obtaining approvals for off-site disposal of contaminated soil. If remedial parties are encountering delays that could impact compliance with approved deliverable schedules, they should advise the NYSDEC project managers to request extensions. Other actions should include documenting the reasons for the delays and efforts taken to avoid or mitigate the delays.

What might this documentation look like? The NYSDEC has not offered any guidance. However, the Texas Commission on Environmental Quality (TCEQ) issued guidance that might serve as a useful guide. The TCEQ encouraged regulated entities “to take all available actions necessary to ensure compliance with environmental regulations and permit requirements” during the pandemic. However, TCEQ said requests for enforcement discretion could be submitted where noncompliance was made unavoidable directly due to impact from the coronavirus. TCEQ indicated that such enforcement discretion requests must include the following elements:

  • a concise statement supporting the request;
  • anticipated duration of the need for the TCEQ’s exercise of enforcement discretion; and
  • citation of applicable rules and/or permit provisions.

In addition, regulated entities are expected to maintain records adequate to document activities related to the noncompliance under enforcement discretion, including details of the requestor’s best efforts to comply.

The Governors Executive Order also identifies  “trash and recycling collection, processing and disposal services” as Essential Services. NYSDEC has explained that this exclusion includes “collection, transportation, processing and disposal activities for any solid wastes, regulated medical waste, hazardous wastes, radioactive wastes and other associated waste categories”. It also extends to all recyclables including redemption of bottle bill containers. However, these business or entities should implement other appropriate social distancing practices whenever and wherever possible. Regulations associated with these activities continue to be in effect and any related questions should be directed to appropriate DEC program staff.

 

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