With the deepening of the COVID-19 crisis, the NYS Department of Environmental Conservation (“DEC”) has issued guidance addressing “numerous” questions it has received concerning the potential impact of Executive Order 202.6 on activities overseen by DEC's Division of Environmental Remediation. Guidance posted on the DEC website clarifies that it considers the following activities to be essential:
- 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 underway 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 DEC on a case-by-case basis) to be necessary to address potential human exposures and/or threat of significant contaminant migration
DEC indicates that these criteria are subject to change and refinement “as the response to the Covid-19 pandemic is fluid.“ Essential work must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health and every business, even if essential, must maintain social distance to the extent possible.
Though DEC’s guidance does not reference the most recently issued Executive Order of Governor Cuomo, there is no reason to believe that its treatment of the scope of exempted activities under more recent Orders will be any different. The intent is clear: to prevent the potential for exposure at sites at which conditions are considered a significant threat to human health and the environment.