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April 3, 2020

COVID-19: NYSDEC DER Hits Play on Limited Essential Environmental Remediation, New York State Remains on PAUSE

Effective March 22, Governor Cuomo’s New York State on PAUSE Executive Order 202.6 requires all non-essential businesses to reduce their on-site workforce by 100 percent to slow the spread of COVID-19. However, the order exempts “essential” organizations and entities. Governor Cuomo’s Executive Order 202.13 has extended the restriction through April 15.

George Heitzman, New York State Department of Environmental Conservation (NYSDEC) Division of Environmental Remediation (DER) assistant director, released limited guidance outlining four remedial activities DER considers essential, which are bolded, with Barclay Damon’s commentary and interpretation below:

  1. “Remedial construction activities” at significant threat sites under either the state Superfund or Brownfield Cleanup Programs
    • Remedial construction activities would likely cover:
      • Any activity implemented under a remedial action work plan
      • An interim remedial action work plan
      • A remedial design work plan at a significant threat site (thereby, being deemed essential)
    • This designation extends to new construction starts.
  2. “Completion of remedial construction” already underway at non-significant threat sites as necessary to ensure site safety and prevent exposure to site contaminants
    • Remedial construction already underway likely covers:
      • Remedial construction under RCRA corrective actions
      • Navigation Law cleanups under stipulations or consent orders
      • Remedial action work plans, interim remedial action work plans, or remedial design work plans at non-significant threat sites under the Brownfield Cleanup Program
  3. “Operations and maintenance (O&M) activities” at any DER site for which an engineering control has been installed under any of its remedial programs as part of the remedy
    • These O&M activities likely include any required maintenance of a cover system.
  4. Work to address an “imminent human exposure and/or threat of significant contaminant migration”
    • This work would likely include emergency work, spill response and containment, and other necessary abatement to address imminent human exposure, threats of significant migration, or both.

The DER also intends to make determinations regarding whether certain “investigations,” including pre-design investigations, of petroleum or hazardous waste releases are essential on a case-by-case basis. Essential investigations likely include those conducted with evidence of potential imminent human exposure or threat to the environment as well as those that support essential businesses.

Pursuant to the order, DER staff are working from home—at times without access to work or home computers—so communications may be delayed and should be adapted so staff can communicate via phone. Additionally, creative solutions may be required to provide access to previously electronically submitted work plans or reports, including mailing hard copies to project managers.

If you have any questions regarding the content in this alert, please contact Tom Walsh, partner, at twalsh@barclaydamon.com or another member of the firm’s Environmental Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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