The New York State Department of Environmental Conservation (DEC) recently released guidance on what constitutes “essential” construction in support of remedial activities pursuant to Executive Order (EO) 202.6 signed by Gov. Cuomo on March 18. EO 202.6 was tightened to limit non-essential construction activities in EO 202.13, issued March 29.

Empire State Development (ESD) has published  stating that non-essential construction must be shut down, “except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).” Essential construction “includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters.” Further, “[e]ssential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including . . . emergency management and response” are considered essential businesses.

DEC announced its own interpretation of the ESD guidance as it pertains to DEC remedial and Brownfield projects on March 30, and updated by the agency on March 31, to make clear that it relates to activities overseen by DEC’s Division of Environmental Remediation:

• Remedial construction activities, including new construction starts, at sites that DEC 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,
• Investigation, including pre-design investigations, of petroleum and hazardous waste releases as determined by DEC on a case-by-case basis to be necessary to address potential human exposures and/or threat of significant contaminant migration.

This guidance, developed by DEC’s Division of Environmental Remediation is helpful for determining when remedial activities may go forward under the more stringent limits on construction activities. In follow-up correspondence, the agency confirmed that a site participating in the Brownfield Cleanup Program (BCP) and currently engaging in remedial measures that also serve to advance project development such as contaminated soil excavation, installation of support for such excavation and related sampling would be deemed “essential” because (i) the work would be “unsafe to allow to remain undone” per ESD guidance and (ii) the remedial construction was determined necessary by DEC when it accepted the site into the BCP and approved the remedial action work plan. The guidance that site investigation activities be postponed will likely delay many Brownfield investigations, although there may be an opportunity to obtain exceptions under ESD’s health and safety exception in cases where the applicant can demonstrate that there is a significant risk to public health and the environment.

Site owners, environmental consultants and contractors should closely track DEC guidance on what constitutes “essential” construction for cleanup activities, and consult DEC representatives if unclear on a particular site. Further, every business is strongly urged by DEC and the state to maintain social distance to the extent possible.

For more information and updates on the developing COVID-19 situation, visit GT’s Health Emergency Preparedness Task Force: Coronavirus Disease 2019.