The New York State Department of Environmental Conservation (DEC) has issued clarifications as to what constitutes “essential construction” for remediation projects and related compliance. This serves to clarify and determine which necessary and critical remediation efforts should continue for both State-funded and privately funded projects.
The Department has determined:
… Construction of remedies, implementation of interim remedial measures, and the operation and management of remedial systems that are/have been implemented for the protection of human health and the environment are considered emergency construction being performed by essential businesses.
Investigation work and sampling activities should be postponed.
Emerging contaminant sampling involving private drinking water wells will be evaluated by the DEC Project Manager in consultation with their Supervisor on a case by case basis.
Emergency Spill Response continues to be deemed essential.
Issues for you to consider include the need to formally notify DEC or other appropriate regulatory agencies of a force majeure event under any order, agreement, permit or Site Management Plan. Requests to DEC should be addressed to the Department-assigned legal counsel or project manager. In certain cases, where safety, priority of operations, or other issues are present, projects under schedule should not commence or continue.
Contracting parties, to avoid improper activities or financial obligations, need to confirm their respective contractual obligations and monitor continuously any changes in circumstances that warrant commencing, changing, or ceasing work. Language in authorizations, obligations and contracts must be carefully reviewed to determine whether non-performance is warranted. Access agreements for remedy implementation or necessary sampling will require heightened and updated notifications which include confirmation of compliance with other Executive Directives, such as distancing. In some cases, formal modifications to agreements and permits may need to be requested. It is important that all possible steps be addressed now to increase your chances of protection from post-virus liabilities.
Any related COVID-19 environmental non-performance and proper confirming communications with the Department should be fully recorded and distributed. In addition, documentation should be retained consistent with regulatory requirements and your own document retention policies. This will be critical for required annual reports.
If you have questions or would like more information on the issues discussed in this communication, please contact any member of our Environmental Practice Area, who are standing by to provide legal advice and help you formulate policies and procedures to address environmental compliance during these troubling times when many of our clients are continuing critical operations for our country.