Access Agreements.

Avoid your neighbor’s environmental issues.

Simple statement of fact: soil, soil gas and groundwater contamination plumes do not understand, nor honor, property lines.  This becomes especially problematic in urban, and even some suburban settings, where properties tend to be smaller and more densely packed.

The Result?

You, and your clean property, are now being impacted by some neighbor's contamination.

The Ask?

Your neighbor (or their counsel or consultant) may knock on your door and ask permission to: (a) drill a monitoring well; (b) take some soil samples; (c) collect an indoor air sample; (d) sample your potable/drinking well; or (e) some combination of the above. No worries, they tell you, it is their responsibility, but their work 'extends' onto your site.

Your Response?

Not-so-fast; a conditional okay may be in order, but you need to ensure any work they do on your property does NOT unnecessarily create problems for you.

How?

Be sure your neighbor signs a detailed Access Agreement (AA) which clearly spells out the rights and responsibilities of the neighbor, and their environmental consultant, before they do any on your site. If you find yourself already in such a situation, and you have previously let people work on your site without an AA, or an AA-lite, then you should, to the extent allowable (check with your counsel) reset that arrangement with a new, or modified/bulked-up AA and not allow future work until same is in place that affords you ample protections.

Why?

Because in doing their work on your property, if you don't understand and control exactly what your neighbor and their professional team can and cannot do, they can (knowingly or unknowingly) sample for and analyze compounds they are not specifically looking for, and then dump that damning data on your lap, advising you that 'it's not their contamination, but they found different/new contamination on your property, and you now have an affirmative obligation to report it to the appropriate authorities and deal with it.' This situation unfortunately happens all-to-frequently, and once this data is generated, and shared with you, you cannot put that bullet back in the gun – so you are now spending time and money investigating an environmental issue you had no legal obligation to uncover in the first place.  You never want that bullet fired to begin with. Other common items captured in a typical AA:  (a) limiting the disruption to your/your tenant's operations; (b) limiting/outlawing the staging of equipment and/or soil and liquid waste materials they generate (usually staged in 55-gallon drums) on your site; (c) tasking them with properly securing and maintaining monitoring wells drilled on your property and restoring your property post-work; (d) sharing their data with you if/as you ask for it and limiting, to the extent allowable, whom else sees that data; (e) being named as an additional insured on their consultant's and their insurance policies; (f) reimbursing you for your responsible professional fees; and (g) the like - these items should all be spelled out in detail in the AA Neighbors, or their consultants/counsel, will commonly tell you that you have to allow them on your property if they are conducting environmental delineatory or remedial work that extends onto your parcel – or they will get a court order to force you to provide access – and that statement – stand alone, is usually accurate. However, that does not mean you cannot impose reasonable limitations and protections for yourself regarding their work on your parcel. It simply becomes a matter of negotiation.    

And if you are the 'clean’ neighbor, you want strict AA limitations on what can and cannot be done on your property. Conversely, if you are the ‘dirty’ neighbor, you want a relatively loose AA regarding all the issues detailed herein. Competing AA goals, depending on which side of the fence you are standing.

If you find yourself in an AA situation (on either the clean or dirty side of the line), we can discuss some standard/typical AA clauses and strategies that you can use in working with your counsel when drafting such an agreement.