For more than 200 years, the Lower Hackensack River (“River”) has been a hub for industrial operations in and around Bergen and Hudson Counties. More recently, concentrations of various contaminants in excess of EPA cleanup standards have been found in the sediment lying on the riverbed. According to EPA, concentrations of polyaromatic hydrocarbons (“PAHs”), polychlorinated biphenyl compounds (“PCBs”), and various metals – including arsenic, chromium, lead, and mercury – are present in surface and subsurface sediments stretching from the Oradell Reservoir all the way to Newark Bay. For reference, that is effectively the entire length of the Lower Hackensack River. In March 2022, the EPA announced that it would propose adding the River to the National Priorities List (“NPL”) and, as of September 7, 2022, the River has been added to the NPL. The identification of the Lower Hackensack River on the NPL is an important moment for environmental law in New Jersey: this the first time that a New Jersey river has been identified in its own right as an NPL site. Further, as discussed below, the River’s NPL listing triggers a complex investigatory process that will eventually lead to a CERCLA cleanup at the River and the identification of – and, almost certainly, litigation between – potentially responsible parties.
What is the NPL?
The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) requires the EPA to create a prioritized list of sites having a known or threatened discharge of hazardous substances into the environment. CERCLA and its implementing regulations set forth an array of factors that EPA must consider when determining whether a site should be added to the NPL (Hazard Ranking System), and any additions to the NPL must go through similar public-notice-and-comment processes to regulations issued by the EPA. The NPL’s identification of sites serves primarily to create a centralized listing at the agency level of contaminated sites that require or may require remedial action to be performed in conformity with the CERCLA rules. Identification of a site on the NPL acts as an important informational tool for EPA, which relies on the NPL to prioritize use of Superfund monies and determine sites needing further evaluation and investigation. Additionally, a site’s listing on the NPL provides public notice to former owners and operators in and around the site that a CERCLA investigation and cleanup is likely to be initiated. Identification on the NPL does not, by itself, guarantee that a site will receive Superfund monies, nor does identification of a site on the NPL assign liability for a discharge or set forth the requirements for a particular site’s investigation or cleanup.
What does this mean for the River?
Now that EPA has identified the River on the NPL, a years-long – and more likely decades-long process – will begin. Over the next several years, EPA’s Region II office will investigate the site and design a proposed remedy to address the sediment contamination present in the River. Going forward, EPA will begin the process of performing a remedial investigation/feasibility study (“RI/FS”), which will pull together objective data about site conditions. The results of the RI/FS, which will be distilled into a publicly available document, will inform remedy selection. Once EPA has made a final determination as to a proposed remedy, it will be set forth in a detailed document called a Record of Decision (“ROD”), which will undergo a notice-and-comment period. Notably, participation by stakeholders and the public is encouraged throughout the process. Once EPA has formally issued the ROD, the site enters the remedial action phase, during which the selected remedy is implemented.
During this process, EPA will seek to bring potentially responsible parties (“PRPs”) to the table to participate in (and pay for) site investigation and remedial implementation. Relatedly, it should be noted that the River’s identification on the NPL comes at the request of the New Jersey Department of Environmental Protection (“NJDEP”), which has long sought to address the contamination present in the roughly 23-mile-long stretch of River. Thus, now that the River has been identified on the NPL, current and former landowners and operators along the River should anticipate that EPA and NJDEP will begin an aggressive search for PRPs. As that process unfolds, it is highly likely that litigation under CERCLA will be initiated to assign liability to PRPs and to allocate that liability among and between them.
The investigation at the Lower Hackensack River has only just begun, and we are likely years away from the issuance of a ROD. But the River’s listing on the NPL represents an important early step in the process that signals to stakeholders that EPA and NJDEP are serious about initiating the remedial process.