WE ARE JUST GETTING STARTED: EPA Issues Much Anticipated Cleanup Plan for the Lower 8.3 Miles of the Lower Passaic River
The United States Environmental Protection Agency (“EPA”) recently issued the Record of Decision (“ROD”) for the lower 8.3 miles of the Lower Passaic River, which sets forth EPA’s $1.38 billion remedy. Potentially Responsible Parties (“PRPs”) will be interested to know that the $1.38 billion price tag only addresses one of the operable units that comprise the Diamond Alkali Superfund Site, which includes the 17-mile tidal stretch of the Lower Passaic River.
Sediment Mega Sites
In recent years, EPA has increasingly shifted more of its focus towards contaminated waterways, as opposed to the traditional single site Superfund site. Of all the Superfund sites throughout the United States, “sediment mega sites” like the Gowanus Canal, Fox River, Portland Harbor and the Hudson River (just to name a few) are among the most complex to investigate, the largest in areal extent, and the most challenging and expensive to remediate.
Remediating sediment mega sites is a massive undertaking because of the persistent nature of the contaminants, the hundreds of potential sources and the migration and mixing of the contamination from tidal influences. It comes as no surprise that the remediation costs for these sediment mega sites can exceed $1 billion.
As is common for these waterways, the sediments in the Passaic River consist of a chemical soup of hazardous substances, including dioxin, PCBs, mercury, pesticides (including DDT) and heavy metals, created from generations of industrial operations along the waterways. According to EPA, the remedy released in this ROD is the final action for the sediments in the lower 8.3 miles and an interim action for the water column in this section of the river. Meanwhile, EPA and some of the PRPs are still studying the sediments in the upper 9 miles, the water column of the entire 17 miles of the river and the entire Newark Bay Study Area. The scope and cost of those remedies are unknown. We have a long road ahead of us.
The Proposed Remedy
The scope of the proposed remedy is extensive. It includes:
- Bank to bank dredging of approximately 3.5 million cubic yards of sediments;
- Installing an engineered cap over the river bottom for the entire 8.3 miles;
- Transporting the dredged materials to be dewatered, treated and disposed;
- Long-term monitoring and maintenance of the engineered cap; and
- Long-term monitoring of fish, crabs and sediment.
If EPA is following its Superfund playbook for traditional sites, its next move is to issue “Special Notice Letters” to some or all of the PRPs inviting them to perform or fund the proposed remedy. Given the complexity of sediment mega sites, however, EPA has reserved the right to depart from the playbook. EPA may therefore take a different approach enforcing this ROD, which is certainly possible in light of the overwhelming number of PRPs involved. The next step is to see if EPA issues any Special Notice Letters, or takes an alternative approach.
Also, keep in mind the $1.38 billion remedy does not address natural resource damages (“NRDs”). The Natural Resource Trustees (which have jurisdiction over NRDs) have yet to publish an NRD Assessment.
Stay tuned to the Cole Schotz blog as we continue to monitor this landmark cleanup.
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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