COVID-19 Alert – NYSDEC Guidance on “Essential” Remediation and Brownfields Cleanup Activities

The regulated community received some clarity from the New York State Department of Environmental Conservation (NYSDEC) this week on whether activities to respond to, investigate, and remediate contamination are “essential” in the wake of recent Executive Orders restricting the operation of non-essential businesses and construction work in New York State.

In the guidance, NYSDEC declares as “essential” the following cleanup activities:

  • Remedial construction activities, including new construction starts, at sites that NYSDEC has determined pose a significant threat to public health and/or the environment, including Class 2 sites on the Registry of Inactive Hazardous Waste Disposal Sites and significant threat sites in the Brownfield Cleanup Program;
  • Completion of remedial construction already under way at non-significant threat sites as necessary to ensure site safety and prevent exposure to site contaminants, including completion of site cover systems;
  • Operation and maintenance activities for active remedial systems that are necessary for the continued protection of human health and the environment;
  • Interim remedial measures to address imminent human exposures and/or threat of significant contaminant migration;
  • Spill response actions; and,
  • Investigation, including pre-design investigations, of petroleum and hazardous waste releases as determined by NYSDEC on a case-by-case basis to be necessary to address potential human exposures and/or threat of significant contaminant migration.

In all cases, social distancing practices must be followed to the extent possible, and all activities must be performed in compliance with Department of Health guidance and directives.

In addition to this guidance, NYSDEC has also provided that it will grant extensions, on a case-by-case basis, to the execution of brownfields agreements and amendments, and is accepting electronically-signed agreements and amendments at this time.  NYSDEC will determine at a later time whether it will require originals to be issued thereafter.

Cole Schotz, P.C.’s Environmental Attorneys are available to discuss any questions you may have about the NYSDEC guidance and any potential impacts on your business.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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