EPA Steps in to Bring Cleaner Waters to the Hackensack River
On September 7, 2022, EPA Deputy Regional Administrator Walter Mugdan, Representative Donald Payne, Jr., and Representative Josh Gottheimer, in conjunction with New Jersey Department of Environmental Protection (NJDEP) Commissioner Shawn M. LaTourette, the Hackensack Riverkeeper Captain Bill Sheehan, and other officials, joined together to announce that EPA is adding the Lower Hackensack River in Bergen and Hudson counties to the Superfund National Priorities List (NPL). The site was originally proposed for the list by EPA on March 17, 2022.
In light of the designation on the NPL, current or past owners and operators of properties located in or around the Hackensack River watershed may receive a Notice Letter demanding information regarding the generation, use, storage or disposal of certain hazardous substances detected in the Lower Hackensack River as a step in cleanup and enforcement.
Contamination of the Hackensack River
The Hackensack River is part of the New York-New Jersey Harbor Estuary, has over 8,400 acres of wetlands, and is habitat to more than 30 designated endangered or threatened species. The Lower Hackensack portion of the larger Hackensack River listed on the NPL, and its associated wetlands, stretches about 18.75 river miles and has been the center of industrial activities for more than 200 years. Investigations conducted by EPA and others revealed that the river contains sediment contaminated with arsenic, lead, chromium, mercury, polycyclic aromatic hydrocarbon compounds, and polychlorinated biphenyls, resulting from decades of sewage and industrial discharges into the river.
River Remediation and Cleanup
According to the EPA Regional Administrator Lisa F. Garcia, “[t]he inclusion of the Lower Hackensack River on the [NPL] will unlock the federal tools and resources needed to return this precious waterway to the community.”
For those unfamiliar with the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq, (“CERCLA”), the NPL is a list of hazardous waste sites identified throughout the country that warrant further investigation by EPA to determine whether the site will be cleaned up under EPA’s Superfund Remedial program. To determine eligibility for the NPL, EPA conducts a preliminary assessment and site inspection with limited environmental sampling. Based on the information obtained, EPA then evaluates the site using a numerically based screening tool, called the Hazard Ranking System (HRS), to assess the relative threat to human health and the environment posed by an actual or potential release of hazardous substances from a site.
Once a site is added to the NPL, steps are taken by EPA to investigate, identify and implement cleanup remedies that remove, reduce or control the risks posed by the contamination at the site. A remedial investigation is typically conducted to characterize site conditions, determine the nature of the contamination on site and assess risk to human health and the environment. A feasibility study is also conducted to develop and analyze alternative remedial actions. A record of Decision is then issued by EPA describing which remedial remedies have been chosen for the site, followed by implementation of the actual cleanup. According to EPA combined Remedial Investigation/ Feasibility Study was initiated in July 2022 and is estimated to be completed in September – November 2026.
Potentially Responsible Parties for Hackensack River Cleanup
Importantly, CERCLA imposes strict and joint and several liability for the costs of the investigation and remediation on parties responsible for the contamination, referred to as “Potentially Responsible Parties” (PRPs). PRPs may include current owners of the property; previous owners and operators of the property; generators, transporters and disposers of hazardous waste; and those that have otherwise arranged for the transport or disposal of hazardous waste. Additionally, as part of EPA’s investigation and remediation of a site added to the NPL, EPA identifies and investigates PRPs responsible for the contamination and may initiate enforcement action to recoup any costs incurred by the EPA in investigating and remediating the property, and/or to require the PRP conduct the remediation.
To identify PRPs for the contamination in the Hackensack River, EPA confirmed that it has been evaluating 652 facilities and 268 New Jersey Site Remediation program sites identified as part of the preliminary assessment process, and that are either directly adjacent to or in immediate proximity of the Hackensack River, its tributaries (within 1 mile of the confluence of the River), or the Hackensack Meadowlands District. The sites under review include historically contaminated properties; businesses that have used, generated, transported and/or disposed of hazardous wastes; active contaminated sites; sites that have active process discharge and/or stormwater discharge permits, and active and abandoned landfills.
Given the wide net of liability imposed by CERCLA, and the very limited defenses to liability afforded by the law, those that own and/or operate properties within the Hackensack River Watershed should begin preparing now by reviewing whether past and current operations at the property involved the use of hazardous substances detected in the River, historic insurance policies that may offset the costs of liability, and contracts of sale which may limit liability depending on the terms of the contract. There may also be contract implications for sellers and prospective purchasers of properties in and around the watershed that should be considered.
Working with the Right Environmental Attorney
Our sophisticated team of environmental attorneys is available to answer questions and to provide additional information regarding the implications that the Lower Hackensack River’s NPL designation may pose on properties in and around the Hackensack River Watershed. Our team is well-versed in property remediation under Federal and New Jersey State law, and the overlapping and complex environmental regulatory structures and compliance obligations that often confront owners of contaminated properties. Contact us to see whether we can assist in navigating environmental legal issues at all stages of the cleanup.