Essential Construction Projects, Covid-19 and Site Remediation in New Jersey
In these unprecedented and difficult times with Covid-19 the changing Executive Orders has left many businesses and individuals with questions about what activities are still permitted and under what conditions. For those businesses and individuals that have ongoing environmental site remediation projects or were about to begin environmental projects before the onset of this pandemic, questions have now turned to whether the work can be considered “essential” vs. “non-essential” to determine if activities can continue.
While there is still much uncertainty for environmental projects, Governor Murphy’s Executive Order 122, dated April 8, 2020 (“EO 122”) offers some guidance for environmental site remediation projects. EO 122 required all “non-essential construction projects” to stop at 8:00 pm, Friday April 10, 2020, but “essential construction projects” can continue. There are two definitions within the list of “essential construction projects,” that suggest environmental site remediation projects may be deemed to be essential:
- Paragraph 2(m): “Any work on a non-essential construction project that is required to . . . remediate a site . . .”
- Paragraph 2(l): “Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government.”
The Order does not expressly state that environmental remediation projects can move forward, but it does allow work to “remediate a site” even if it would otherwise be a non-essential construction project. There remains uncertainty as to the meaning or interpretation of “remediate a site” and we understand the Licensed Site Remediation Professionals Association is seeking clarification from the State on the implications of EO 122 on environmental remediation projects. We will continue to monitor information from the State and the New Jersey Department of Environmental Protection for clarification on the questions. Under the current language, there is an indication that environmental site remediation projects may fall under the definition of “essential.”
Additionally, many environmental site remediation projects throughout the state are subject to governmental orders or Federal deadlines to complete the work. For those sites, the second definition referenced above seems to indicate the State may be allowing the work to proceed.
Even in circumstances where essential construction projects can move forward, the Order establishes strict health and safety protocols to protect workers throughout the pandemic. For instance, there are requirements to maintain social distancing policies at the job site, provide Covid related personal protective equipment (e.g. face masks and gloves), restrict the size of the work force, and implement infection control and disinfection control practices, to name a few. The full order can be found on the State’s official pages.
If you have any environmental project and are considering whether or not it can move forward, we are here to assist you. This writing is specific to environmental site remediation projects, but the Order has provisions that could be interpreted to allow other environmental projects to move forward and addresses more than “essential construction projects.”
Any specific decision as to whether or not to continue work in any manner must be carefully considered after evaluating the applicability of all Covid related Executive Orders in New Jersey and applying to the specific facts of your business or activities. Legal Counsel should be consulted before making such a decision. The above is not intended to be nor should it be considered to be legal advice to any individual or business as a fact specific determination would be necessary before rendering any legal advice.