NJDEP Proposes Guidance on How Executive Order 107 Impacts LSRPs

The COVID-19 pandemic is causing significant uncertainty for New Jersey businesses, including those that provide environmental remediation services…

The coronavirus (COVID-19) pandemic is causing significant uncertainty for New Jersey businesses, including those that provide environmental remediation services. As a member of the Board of Trustees of the New Jersey Licensed Site Remediation Professionals Association (LSRPA), I know firsthand that one of the major questions that followed Governor Murphy’s COVID-19 Executive Order No. 107 was the extent to which Licensed Site Remediation Professionals (LSRPs), and remediation consultants and contractors, could continue their environmental remediation activities during the crisis.

The LSRPA, along with the New Jersey Site Remediation Professional Licensing Board and other groups, brought this issue to the attention of the Governor’s Office and New Jersey Department of Environmental Protection (NJDEP). In response, the NJDEP has advised that managers of solid waste, regulated medical waste, hazardous waste, and recyclables, and providers of environmental services, including LSRPs, subcontractors and staff persons, may continue with their activities for the protection of public health, safety, and the environment.

Executive Order 107

As discussed in greater detail in prior articles, Executive Order No. 107 requires certain non-essential retail, recreation, entertainment and dining businesses to temporarily close as a means of curbing the spread of COVID-19. Under Executive Order 107, the following businesses may continue operations: manufacturing, industrial, logistics, ports, heavy construction, shipping, food production, food delivery, and other commercial operations, provided that such businesses should limit staff on-site to the minimum number of individuals necessary to ensure that essential operations can continue.

Executive Order No. 107 also provides that all businesses must accommodate their workforce for telework or work from home arrangements where practicable. To the extent a business has employees that can’t perform their functions via telework or work-from-home arrangements, it must make its best efforts to reduce staff on-site to the minimal number necessary to ensure that essential operations can continue.

NJDEP’s ListServ Guidance

On March 26, 2020, the NJDEP responded to questions from regulated entities and stakeholders questioning whether their operations are restricted by Executive Order No. 107 and whether their organizations should be designated as essential. According to the NJDEP’s Listserv guidance, sectors that have made inquiry of NJDEP seeking clarity on the applicability of the executive order include:

• Public works and infrastructure, including energy-generating facilities
• Drinking water, wastewater, and distribution/conveyance systems
• Managers of solid waste, regulated medical waste, hazardous waste, and recyclables
• Providers of environmental services, including licensed professionals (e.g., LSRPs), subcontractors and staff persons whose primary functions are to conduct, monitor, maintain, or support activities for the protection of public health, safety and the environment, including the provision of supplies necessary for these protective purposes
• Laboratories
• Pesticide applicators
• Recreational and commercial fisherman

As emphasized by the NJDEP, Executive Order No. 107 specifically restricts the physical (brick-and-mortar) operations of non-essential retail, recreation, entertainment and dining businesses. Accordingly, “other businesses and non-profit organizations, whether closed or open to the public, may continue operating at this time consistent with the requirements of EO 107 for ensuring social distancing, reducing on-site staff to the minimum persons necessary, and accommodating as much remote work as practicable.”

With regard to Executive Order No. 107’s requirements regarding the reduction of on-site staff and accommodating remote work requirements, the NJDEP acknowledges that “many regulated entities and environmental service providers perform critical functions that support public health and safety, and that some of their functions cannot be achieved remotely.”

“Insofar as businesses and non-profits not specifically restricted by EO 107 may continue operations, including regulated entities and environmental service providers who perform critical functions that support public health and safety, no formal designation as essential of any of the sectors or organizations that have contacted DEP is necessary or expected at this time,” NJDEP’s guidance states. “However, all organizations are directed by EO 107 to practice social distancing by reducing on-site staff and accommodating remote work to the maximum extent practicable.”

NJDEP’s ListServ provides further guidance regarding compliance. According to NJDEP: “The number of on-site staff necessary to ensure an organization’s essential operations is a matter of professional judgment on the part of every organization. DEP acknowledges that essential on-site staffing determinations will differ by sector and operational circumstances. In adapting operations during this time, every organization must consider arrangements that further the social distancing requirements and objectives of EO 107 to the greatest extent practicable.”

Scarinci Hollenbeck’s Environmental Law Group is closely monitoring the outbreak and its potential impact on our clients and the greater business community. Our dedicated attorneys are here to help navigate the numerous legal, regulatory, and commercial issues that may arise in the weeks and months ahead.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, John Scagnelli, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.