58:10B-16. Access to property to conduct remediation

40. 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.

(2) Such relief may include, singly or in combination:

(a) A temporary or permanent injunction;

(b) Assessment of the person undertaking the remediation for costs associated with any disruption in operations on the property;

(c) Assessment of the person undertaking the remediation for any costs to return the property to its condition before the commencement of the remediation;

(d) A requirement that the person undertaking the remediation indemnify the owner of the property for any damages, penalties or liabilities resulting from the remediation;

(e) A requirement that the person undertaking the remediation indemnify the owner of the property for any liability resulting from the entry of persons onto the property to perform the remediation.

b. The court shall promptly issue any access order sought pursuant to this section upon a showing that (1) a reasonable possibility exists that contamination from another site has migrated onto the owner's property, or (2) access to the property is reasonable and necessary to remediate contamination. The presence of an applicable department oversight document or a remediation obligation pursuant to law involving the property for which access is sought shall constitute prima facie evidence sufficient to support the issuance of an order.

Unless the court otherwise orders for notice and for good cause shown, an action for an access order shall not be joined with non-germane issues against the owner of the property for which access is sought or other person who may be liable for the contamination. Non-germane issues shall include, but not be limited to, issues concerning contribution, treble damages, or other damages involving either the contamination or the remediation.

The court may impose reasonable conditions as part of the access order, including without limitation, that the person undertaking the remediation take all reasonable measures to minimize the disruption to the property and the activities conducted there and return the property to its condition prior to the commencement of remediation.

c. The department may not impose or seek to impose any civil or civil administrative penalties upon any person for failure to perform a remediation on property not owned by that person within the time schedule required by regulation on property not owned by that person if (1) the failure to perform the remediation was the result of an inability of that person to enter upon real or personal property owned by another person, and (2) the person took all appropriate action pursuant to this section to obtain access to the property.

d. Nothing herein shall be construed as limiting the rights of the owner of the property against which the access order is issued to initiate a civil action to seek any damages available under law.

e. Nothing herein shall be construed as limiting the rights of the person conducting the remediation from initiating any subsequent civil action against the owner of the property upon which access was ordered.

L.1993,c.139,s.40.