New Jersey commercial property owners- Beware! It’s likely that (at some point) in the next few years, you will receive a request from an environmental consultant (representing an adjacent property owner) to access your property to take soil samples or install a groundwater monitoring well. I caution my clients to never casually agree to permit this type of access. (See Part 1 of this article.) Instead, you must negotiate and execute an Access Agreement to protect your property and to limit the testing and other site activities that will be conducted on your property.
But what if you can’t come to terms with the requesting party? Well, you might find yourself in court.
N.J.S.A. 58:10B-16 provides for judicial relief to a party who “undertakes the remediation of suspected or actual contamination and who requires access to conduct such remediation.” The filing of an Order to Show Cause is not common. Typically, these matters are amicably resolved by the parties. In fact, NJDEP’s regulatory scheme requires the requesting party to demonstrate a “good faith” attempt to secure access before seeking judicial relief.
But granting such relief should not be absolute or granted by the Court without the consultant establishing the need for such access. N.J.S.A. 58:10B-16 provides that the Court should not grant an access order unless the moving party demonstrates “a reasonable possibility” that contamination from another site had migrated onto an off-site property and/or that “access to the property is reasonable and necessary to remediate contamination.”
Should you be in this situation, you should review NJDEP’s excellent “Guide to Obtaining Off-site Access” (http://www.nj.gov/dep/srp/offsite/) to ensure that all of the regulatory requirements have been satisfied; and, of course, consult with your environmental counsel.
58:10B-16. Access to property to conduct remediation
a. (1) Any person who undertakes the remediation of suspected or actual contamination and who requires access to conduct such remediation on real or personal property that is not owned by that person, may enter upon the property to conduct the necessary remediation if there is an agreement, in writing, between the person conducting the remediation and the owner of the property authorizing the entry onto the property. If, after good faith efforts, the person undertaking the remediation and the property owner fail to reach an agreement concerning access to the property, the person undertaking the remediation shall seek an order from the Superior Court directing the property owner to grant reasonable access to the property and the court may proceed in the action in a summary manner.