JOIN THE CLUB: EPA Sizing Up Hackensack River for Superfund Listing
The Hackensack River may be joining the likes of the Passaic River, the Hudson River, Gowanus Canal, Newtown Creek, Fox River, the Eighteen Mile Creek, and other waterways that have been placed on the Superfund National Priorities List (NPL) by the United States Environmental Protection Agency (EPA) because of extensive contamination resulting from decades of industrial operations along their banks and tributaries. EPA recently announced that it will begin sampling the Hackensack River’s sediment in 2016 to determine if it is also polluted enough to be placed on the NPL.
In February of this year, the Hackensack Riverkeeper, a non-profit advocacy and conservation group, petitioned the EPA to study the river for inclusion on the NPL. In an uncharacteristically quick response, EPA agreed to and then commenced a Preliminary Assessment (PA) of the Lower Hackensack River, which is the 17-mile stretch of the river between the Oradell Dam and the mouth of the river in Newark Bay. This section runs through Bergen and Hudson counties in New Jersey and has several tributaries.
The PA was released earlier this fall. It comes as no surprise that contaminants including cadmium, lead, mercury, dioxin, benzo(a)pyrene, dibenzo(a,h)anthracene, PCBs and dieldrin were identified at unacceptable concentrations. Furthermore, because the tidal influence on the sediments causes both upstream and downstream migration of contaminants, it also comes as no surprise that EPA identified hundreds of facilities and sites as possible sources of the contamination, many of which could become potentially responsible parties (PRPs) as the investigation of the river unfolds. Most significantly though, EPA assigned a preliminary Hazard Ranking System score of 50, well above the minimum score of 28.5 needed to get on the NPL. EPA plans to sample the sediment next year as a next step in the process of determining whether to list the river on the NPL.
Given the long history of industrial activities on and near the Hackensack River, it is fully expected that the sediment sampling results will warrant listing on the NPL. And, given EPA’s increasing attention on surface water and sediments, it is fully expected that EPA will move forward with the listing. This would be just the start of years of studying the river to identify the most contaminated sections, develop remediation plans and, of course, identify the likely sources of the contamination and pursue claims against them as PRPs.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.
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