United States: How Will Lower Hackensack River Superfund Designation Impact New Jersey Businesses?

On September 7, 2022, the Environmental Protection Agency (EPA) announced that it is adding the Lower Hackensack River in Bergen and Hudson counties to the Superfund National Priorities List (NPL).?The "Superfund" designation is reserved for sites with the most severe environmental contamination. With the addition of the Lower Hackensack River, New Jersey now has a nation-leading 115 Superfund sites.

Designating the Hackensack River as a Superfund site will prompt additional testing to determine the extent of the contamination, as well as the parts of the river most in need of remedial cleanup. The EPA will also begin the process of identifying entities who may be liable for the presence of hazardous substances at?the site.

Contamination of Lower Hackensack River

The Hackensack Riverkeepers, a non-profit organization, first petitioned the EPA to consider assigning the Hackensack River Superfund status in February 2015. Subsequent EPA studies and investigations found that the river contains sediments contaminated with arsenic, lead, chromium, mercury, polycyclic aromatic hydrocarbon compounds (PAHs) and polychlorinated biphenyls (PCBs).

The Lower Hackensack River site spans approximately 18.75 river miles from the Oradell Dam to near the river mouth at Newark Bay, along with its associated wetlands and the surrounding area. The area has been the center of industrial activities for more than 200 years, with decades of sewage and industrial discharges into the river resulting in significant contamination.

"The inclusion of the Lower Hackensack River on the National Priorities List will unlock the federal tools and resources needed to return this precious waterway to the community," Regional Administrator Lisa F. Garcia said in a press statement.?"New Jersey's industrial past helped build this country, but the weight of that legacy has been unequally carried by overburdened and underserved communities. We are committed to restoring this natural resource and working with our state, local and community leaders to get the job done."

Potential Superfund Liability for New Jersey Businesses

Now that the Lower Hackensack River has been officially included in the federal government's Superfund clean-up program, wide-scale remediation efforts are on the horizon. Remediating superfund sites is multi-phase process that typically takes several years. Prior to any cleanup taking place, the EPA must perform a remedial investigation/feasibility study, issue a record of decision, and implement a?remedial design/remedial action.

Once a site is identified, the EPA attempts to identify the likely sources of the pollution and the owners/operators of the sites. The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site. The EPA's initial research has already flagged more than 900 sites "that may be sources of contamination."

The companies or people responsible for contamination will be designated as "potentially responsible parties" (PRPs) and will be asked to contribute to the remediation costs. PRPs may include: current owners and operators of a facility; past owners and operators of a facility at the time hazardous wastes were disposed; generators and parties that arranged for the disposal or transport of the hazardous substances; and transporters of hazardous waste that selected the site where the hazardous substances were brought.

The EPA often uses "information request letters" to gather information. CERCLA authorizes the agency to issue information request letters to any entity who may have information about a site, not just to persons who may be PRPs. Once the PRPs have been identified, the EPA typically sends a Superfund "notice of liability letter," which notifies the recipient that it has been identified as a PRP at a Superfund site and may be liable for cleanup costs at the site. The letter also explains the process for negotiating the cleanup with EPA.

When the EPA is ready to negotiate with PRPs to remediate a site, it will send a special notice letter. It provides information on the basis for liability and the EPA's remediation plans. The letter also requests the recipient to participate in negotiations with EPA to conduct future cleanup work and pay EPA for any site-related costs already incurred.

Under the EPA's Enforcement First for Remedial Actions at Superfund Sites?policy, the?polluter always pays first. The agency first requests that PRPs conduct the investigation and perform the cleanup before using Superfund money, with the goal of conserving the resources of the Hazardous Substance Trust?Fund for site remediation where viable responsible parties do not exist. Should PRPs refuse to contribute to the cleanup costs, the EPA will often file suit.

Next Steps for Impacted Entities

Given the potential legal liability, we encourage businesses that may have contributed to contamination in the areas of the Lower Hackensack River to continue to monitor the status of the EPA's investigation and consult with experienced counsel regarding the proper responses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.