ENVIRONMENTAL
Hackensack River Receives Superfund Designation : Now What ?
The Hunt For Responsible Parties to Fund Cleanup Begins
By Larry Feld Contributing Editor
It should be no surprise to anyone that the lower portion of the Hackensack River is polluted . The waterway has endured nearly two centuries of industrial chemical spillage from manufacturing processes — including contaminants like mercury , arsenic , chromium , lead , polychlorinated biphenyls ( PCBs ), among other toxins — which were stored , leached , drained or dumped onto its banks . While hundreds of properties along the river have contributed to poisoning the river , many owners may not be aware of their potential responsibility for the Hackensack ’ s eventual cleanup . To complicate the matter , much of this pollution occurred decades ago , prior to laws restricting such practices .
In 2015 , Hackensack Riverkeeper , Inc ., a nonprofit advocate for the waterway , petitioned the Environmental Protection Agency ( EPA ) requesting a Superfund designation be established to help organize and fund the cleanup of the river .
After many years of discussion , testing , and information-gathering , a formal request was made in 2021 from the State of New Jersey to the EPA asking that the Hackensack River be formally added as a Superfund site . The EPA , using a complex algorithm of data they call the Hazard Ranking System , determined that this lower portion of the river should indeed be placed onto the National Priorities List ( NPL ).
On September 7 , 2022 , the federal government determined that approximately 23 miles of the southern-most part of the Hackensack River — essentially from the Oradell Dam down to where the river meets the Newark Bay — are now added to the EPA ’ s NPL .
Why put the Hackensack River on the Superfund list ?
“ By putting the lower Hackensack River on the national priorities list , it will unlock a series of federal tools and resources necessary to accomplish a task as big as this to recover this natural resource for the communities around it ,” notes Walter E . Mugdan , the EPA Regional Administrator .
Mugdan credits Captain Bill Sheehan , executive director of the Hackensack Riverkeeper , for convincing the federal government to add the Hackensack River to the national priorities list .
Daniel T . McKillop , Esq . of Scarinci Hollenbeck
“ It ’ s not just sites along the river ,” ... It is far more complex . The EPA ’ s map includes sites within the entire watershed .”
“ Without his ( Sheehan ’ s ) tireless efforts we probably would not have been able to make this announcement ,” Walter admits .
Speaking at a recent event produced by CIANJ , Mugdan , who is New Jersey ’ s point person at the EPA regarding Superfund issues and who currently oversees Superfund activities for the EPA in our region , provided a basic primer on the Superfund clean-up law and how businesses owners may be called upon to participate in the restoration of this waterway .
What we refer to as the Superfund law is actually CERCLA , the Comprehensive Environment Response Compensation and Liability Act . Enacted in 1980 , the nickname Superfund was earned early on because the law initially established a large pool of federal funds to help clean up designated sites . The law has two fundamental objectives : To clean up sites with hazardous substances , and to have “ potentially responsible parties ” pay the cost and / or do the work of cleanup .
Walter E . Mugdan , EPA Regional Administrator .
Potential Responsible Parties
If the term “ potential responsible parties ” raised an eyebrow and your business is either on or near the river , take note . A PRP can be the current owner and operator of the facility from which a release or threat of hazardous substance is identified ; or it may be a prior owner / operator at the time of the hazardous release . Or , it may be a transporter who selected the disposal site . It may also be an arranger ( also called a generator ), someone who arranged for the disposal .
The EPA ’ s Mugdan notes that the law regarding liability has been honed by years of case law findings , resulting in an expansive standard of liability . “ In broad terms , Mugdan notes , “ A company or individual ’ s responsibility may be classified under the following areas : joint , several , strict , retroactive and perpetual liability ,” he said . For property owners past and present in the lower Hackensack , they may be notified as a potential PRP if the property is identified for :
◾ Contamination caused by actions taken in recent or distant past and / or
◾ Contamination caused by somebody else ’ s actions ( including predecessors and sometimes other third parties ).
In addition , Mugdan warned that a company may be liable even if the contamination action was completely legal at the time it happened . “ In
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