The Hackensack Superfund Site: What You Need To Know

Recently, GZA performed environmental due diligence for a prospective buyer of a parcel of land located along New Jersey’s Hackensack River. The parcel was attractive to them for numerous reasons. Apart from flood concerns, the river really wasn’t a factor in their consideration of the property. Until it was.

GZA advised them that the Hackensack River had recently been entered onto the United States Environmental Protection Agency’s (USEPA) National Priorities List (NPL). This designation added a great deal of uncertainty and potential risk to the transaction, which ultimately caused the prospective buyer to walk away from the deal.

In September 2022, the USEPA announced that it had added the Lower Hackensack River, in New Jersey’s Bergen and Hudson counties, to the Superfund program’s NPL. What’s not yet clear to many is what this might mean for companies, landowners, previous responsible parties, and even prospective purchasers of properties along the Hackensack, so GZA has developed answers to common questions we’ve received from clients.

What is the Superfund NPL?

The Superfund NPL is considered an information and management tool by the EPA. Sites may be added to it after they’re screened under the EPA’s Hazard Ranking System, and after all public comments to the EPA have been addressed. The NPL guides the EPA in deciding:

• Which sites should be further investigated for health and environmental risks;
• What remedial actions may be needed;
• and When to alert potentially responsible parties (PRPs) that the EPA may begin remediation funded under the Superfund law (officially, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)).

Why focus on the Lower Hackensack River?

With the lower Hackensack, the EPA’s concern is that the sediment on the river bottom is impacted from the runoff and discharges of former industrial operations. After sampling the river bottom in 2016 and 2021, EPA determined those sediments were contaminated with heavy metals, polycyclic aromatic hydrocarbons (PAHs) and polychlorinated biphenyls (PCBs). This is especially concerning because the Hackensack is home to over 30 species designated as endangered or threatened. As a result and based on the levels of contamination found in fish and crab throughout the Newark Bay Complex which includes the tidal Hackensack River, NJDEP has placed multiple advisories on the river’s recreational and fishing activities.

What does this designation mean for property owners?

To determine potential inclusion of any property into the new Hackensack River case, the EPA conducts detailed research on the property’s past and present uses, including sending out 104(e) letters to owners of certain properties along the river. Under section 104(e) of CERCLA, the EPA can request information from any entity who might have information about a site.

What if I receive a 104 (e) letter?

The EPA plans to send out 104(e) letters for the lower Hackensack later this year. If you get one:

• A 104(e) letter is not a designation of liability, simply a request for information.
• As these letters are technically private communications, the EPA website may not be updated to indicate that letters have been issued.
• As the research continues and the investigation process is clarified, more letters are expected to be issued over time. This is especially true for the lower Hackensack, which has seen nearly two centuries of historical industrial use.

Comprehensive due diligence is critical to any property transaction, and savvy buyers in New Jersey understand that the process includes an environmental element. For those looking to buy property along the Hackensack River, we recommend performing robust environmental due diligence with an experienced environmental practitioner.

For more information on the environmental due diligence process in general and along the Lower Hackensack, contact Licensed Site Remediation Professional (LSRP) Marc Hudock, a Senior Vice President at GZA at marc.hudock@gza.com.

The EPA website for the Lower Hackensack River Superfund Site is https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0201845