By Anthony Drollas
Municipalities, as the owners and operators of potable water systems, have growing obligations to protect the public from the effects of per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals,” which have been recognized to pose a significant risk to public health and the environment. PFAS-type contaminants have been used in the manufacturing processes for everyday products for decades. Common sources of discharges of PFAS contaminants to land and water supplies include landfills, airports, military bases, water treatment facilities, and industrial sites. As more and more responsible parties are required to remediate contaminated sites for PFAS issues, local governments may receive “request for access” letters from remediating parties looking to test for and potentially remediate contaminants. Municipalities may also need to send similar “request for access” letters as they clean up their own properties and facilities.
Municipal officials should therefore be aware of the important role of amendments to the New Jersey Brownfields Law, found in the so-called Access Statute, N.J.S.A. 58:10B-16, and the implications of the important recent decision of the New Jersey Superior Court, Appellate Division in Solvay Specialty Polymers United States v. Paulsboro Refining Company, LLC, Docket No. A-3981-19 (September 23, 2022) (unpublished, LEXIS 1737, 2022 WL 4392064), which interpreted the requirements of the Access Statute and the rights and responsibilities of remediating parties and affected landowners.
The Access Statute
Soil and water contamination, often moving in underground plumes, knows no property boundaries, so remediating parties are frequently required to obtain access to adjoining properties in order to fully investigate the extent of contamination and to engage in remediation. The purpose of the Access Statute is to provide an avenue for remediating parties to request access to an off-site property in order to investigate, measure, and remediate contamination that may have migrated beyond legal property boundaries. The statute also sets limits on the extent to which remediating parties can obtain access to off-site properties and establishes a process by which remediating parties can obtain access, either through a negotiated agreement, or through a litigation process.
Regulatory Process for Requesting Access
The New Jersey DEP has also published regulations, at N.J.A.C. 7:26C-8.2, et seq., which follow and further refine the requirements of the Access Statute.
For example, if a remediating party requires access to private property, according to DEP rules, that party must initiate the process with a written request, sent by certified mail, which includes the following information:
- A description of the obligation that the remediating party has to remediate the site;
- A site map indicating each area for which access is needed;
- A description of the reason for and extent of access that is needed;
- A description of the remediation to be conducted, indicating the approximate time of initiation and completion of the remediation; and
- A request that the property owner respond in writing to the remediating party within 30 days after receipt of the written request.
If the owner of the off-site property fails to respond, the remediating party must send a second written request, also by certified mail.
If the owner of the off-site property does not agree to grant access, the remediating party must then initiate litigation in the Superior Court, on notice to the DEP. When a remediating party seeks an order from the Superior Court granting access, that party must show that either (1) a reasonable probability exists that contamination from the remediating party’s site has migrated onto the off-site landowner’s property, or that (2) access to the off-site property is reasonable and necessary to remediate contamination. In addition, the statute specifies that a DEP site remediation oversight document or other legal obligation to perform remediation involving the off-site property for which access is sought is prima facie evidence to support the issuance of an access order.
If a remediating party needs to apply for an extension of a regulatory, mandatory, or expedited site specific timeframe, the party must include all the information detailed in this section pursuant to N.J.A.C. 7:26C-3.
Appellate Division defines the reach of the Access Statute
In Solvay Specialty Polymers United States v. Paulsboro Refining Company, LLC, Docket No. A-3981-19 (September 23, 2022) (unpublished, LEXIS 1737, 2022 WL 4392064), the Appellate Division held that the reach of the access statute is limited where a remediating party cannot establish a reasonable probability that contamination from the original site has migrated to the off-site landowner’s property. The court made clear that the intent of the statute is to facilitate the remediation of contamination for the purpose of protecting the environment and public health, and it is not to be used to (1) identify other sources of PFAS or potentially responsible parties, or (2) as a discovery tool for litigation concerning the cost of remediation.
According to the decision in Solvay, where evidence of probable contamination is unavailable, or where the remediating party denies that contamination has migrated to an off-site property, the Superior Court is not authorized to grant an order permitting access. In Solvay, the off-site landowner’s property, owned by the Paulsboro Refining Co., was located in another municipality and approximately two miles away from the remediating party’s manufacturing facility, the focus of the remediation activity. The Court observed that the remediating party’s motivation to obtain access also appeared to be an effort to find other sources of PFAS contamination, for the purposes of attempting to apportion cleanup cost liability to other responsible parties.
In that regard, the Appellate Division in Solvay held that the remediating party can satisfy its obligation under the DEP cleanup directive by identifying the PFAS compounds that are traceable to its facility “without invading the private property of other potential sources of PFAS contamination for intrusive environmental sampling.” The Appellate Division similarly rejected far-reaching Access Statute requests for access, and subsequent Access Statute litigation, when used by remediating parties solely for discovery purposes in related litigation.
Other relevant Access Statute Litigation
In PSE&G v. Olivieri (Superior Court, Law Division, Essex County, Docket No. L-822-22), the parties resolved access statute litigation by way of a negotiated agreement, but not without first disputing the extent to which PSE&G complied with the pre-litigation access requirements of the statute, PSE&G’s right to engage in access statute litigation when a landowner disputes the utility’s compliance with ongoing regulatory responsibilities and time deadlines, the utility’s potential responsibility for damages to the property owner for business interruption, and the extent to which the parties could litigate access statute issues in Superior Court litigation, either by summary proceedings, or by plenary hearing, with pre-trial discovery. The case is a worthwhile example of the potential breadth of access statute litigation when resorting to litigation is required.
Takeaway
With the advent of new contaminated site cleanup obligations involving PFAS substances, and the extent to which PFAS contamination is so prevalent and widespread, both landowners and remediating parties should familiarize themselves with the Access Statute and recent litigation, where site investigation and remediation could become more commonplace. Malamut & Associates attorneys are ready to assist both landowners and remediating parties in complying with their regulatory obligations, and enforcing their rights to investigate and remediate contamination, and to protect their rights as landowners.
The content of this post should not be construed as legal advice. You should consult a lawyer concerning your specific situation and any specific legal question you may have.
