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EPA May Add Contaminated New Jersey & New York Sites to Superfund List

On December 11, 2013, the United States Environmental Protection Agency (EPA) added nine contaminated sites to the National Priorities List (NPL) and proposed that an additional eight sites also be added, including sites in New Jersey and New York. 

The NPL is a list of contaminated sites throughout the United States managed by the EPA under to the regulatory scheme created by the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), otherwise known as Superfund.  42 U.S.C. § 9601, et seq.  Under the Superfund program, sites contaminated with hazardous materials may be eligible for one of two types of clean-up actions: short-terms activities (known as “removal actions”), or long-term clean-ups (dubbed “remedial actions”).  Superfund prescribes different time-restrictions and funding opportunities for removal and remedial actions based on the specific needs of the contaminated site. These restrictions include time limitations for contribution actions, which parties liable for clean-up costs may bring against other potentially responsible parties. 

Generally, a removal action addresses contamination at sites at which a rapid response is necessary.  Remedial actions, by contrast, involve more complicated, prolonged clean-up activities at a site.  Only contaminated sites added to the NPL are eligible for long-term remedial action funding for clean-up activities. According to the EPA, 1,694 sites have been listed on the NPL since 1983.

In announcing the additions, the EPA touts the benefits of listing on the NPL to property values.  According to a study published in the Journal of Environmental Economics and Management, the property values of sites surrounding those added to the NPL increase substantially once all clean-up remedies are in place. 

While there are scores of Superfund sites in New York and New Jersey, many of which are listed on the NPL, the sites recently added to the NPL are in Indiana, North Carolina, New Hampshire, New Mexico, Oklahoma, and Washington.  However, while announcing the addition of the nine sites, the EPA also noted that it has proposed that eight additional sites be added, two of which are in New Jersey and one in New York.

The proposed sites in New Jersey are the Troy Chem Corp, Inc. site in Newark and the Unimatic Manufacturing Corporation in Fairfield.  Both sites contain contamination associated with chemical manufacturing.  The proposed New York site is the Wolff-Alport Chemical Company site in Ridgewood, which operated as a former metal extraction facility.  If the sites are added to the NPL, they will be qualified for long-term remedial action funding for clean-up work.

Interestingly, CERCLA is based in large part on the New Jersey Spill Compensation and Control Act (the “Spill Act”) and was spearheaded by then-New Jersey Congressman, and later Governor, Jim Florio.  The Spill Act was recently interpreted to be subject to a six-year statute of limitations despite the fact it has no such internal time restriction.  The court’s reasoning in applying the six-year limitation was in part due to the time limitations found in CERCLA.  This decision could have far-reaching impacts on environmental clean-ups in New Jersey and highlights the significance of the interaction of state and federal law in the field of environmental remediation.   

The attorneys at Lieberman & Blecher, P.C. regularly assist clients with environmental issues that arise in the context of site remediation and claims involving both CERCLA and the Spill Act.  They will be closely monitoring the addition of local sites to the NPL and the outcome in the recent Spill Act decision. In addition , our attorneys are highly experienced in areas of land use, real estate, redevelopment, and regulatory permitting, compliance, and enforcement. We have assisted many property owners (both plaintiffs and defendants) in contribution actions under the Spill Act and our attorneys are poised to address the impact of this recent decision in present and future cases.

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