While the Access Statute is a powerful tool in an environmental attorney’s toolbox, a recent court ruling by the New Jersey Appellate Division has restricted when that tool can be wielded.
The New Jersey Appellate Division, in Solvay Specialty Polymers USA LLC v. Paulsboro Refining Company LLC “(Solvay v. PRC”), has confirmed that a party must establish that access is “reasonable and necessary “before a court should grant access to another’s property. The access statute, N.J.S.A. 58:10B-16 (the “Access Statute”), authorizes a remediating party to seek an order from the Superior Court in a summary action for access to another’s property to undertake the necessary remediation of suspected or actual contamination if, after making a good faith effort, it is unable to reach an agreement with the owner. The Court will issue an order for access if it determines that either (1) a reasonable possibility exists that contamination has migrated to the offsite property, or (2) access to the property is reasonable and necessary to remediate the contamination.
In Solvay v. PRC, Solvay Specialty Polymers USA LLC (“SSP”) is under a NJDEP Directive to remediate PFAS compounds that have migrated off-site and contaminated groundwater and drinking water over a wide area. However, the Directive does not require SSP to sample PRC’s property, nor is there data indicating that PRC is a contributing source of the contamination. As such, the Court held that SSP did not satisfy the second prong of the test, in that they had not demonstrated that access was “reasonable and necessary to remediate the contamination.” Consistent with NJDEP guidance that a party remediating a site does not have to identify the specific source of a co-mingled plume, the Appellate Division found that Solvay had satisfied its obligations by documenting the possibility of PFAS contamination from a source other than the Solvay facility. The Court noted that SSP had filed a contribution action under the Spill Act against PRC, which demonstrated that SSP could obtain information necessary to prove that it is not the only source of contamination without resorting to the remedies provided by the Access Statute.
The takeaway from Solvay is that a remediating party must demonstrate the necessity to access another’s property to complete its remediation and cannot use the Access Statute as a fishing expedition or discovery tool. However, the Access Statute remains a powerful tool to facilitate sampling of properties owned by others in order to complete the remediation.