Access Agreements. Revisited.

Written By Quin Potter

October 17, 2024

Contamination doesn’t know property boundaries.

Our last blog regarding Access Agreements (AA) was written more than 4 years ago, in April, 2020. We strongly recommend you read/re-read that primer to lay a foundation for the additive AA information below. 

A link to that blog is here: https://www.eikonplanning.com/blog/access-agreements. 

A ‘clean neighbor’ perspective on AAs.

Please note that this blog is written from the perspective of a non-contaminated neighbor being asked for access to undertake environmental testing by a contaminated adjoining/proximate property owner. It does not reflect the 'asking' parties position, which in many ways is contrary to the positions posited herein; that contrary position will be the subject of a future blog. So we are wearing the 'clean neighbor' hat here, not the 'contaminated neighbor' hat.

As of 2024, there are estimated to be just under 15,000 contaminated sites in New Jersey undergoing investigation, delineation and/or remediation.  As we have stated in the past, contamination does not know, nor recognize, property boundaries, and one man's contamination commonly seeps onto/under a neighbor's parcel. It happens frequently.

The good news is that any third-party contamination emanating onto your property is not your legal responsibility to address. However, that does not mean there is no risk to you, as an innocent, proximate neighbor.

You could incur significant liability and costs if any of the following scenarios play out.

  1. If the Responsible Party (RP) comes onto your site and 'over-samples', finding contamination that is not legitimately from their operations, in that situation you could inadvertently, and unwittingly, be subject to your own cleanup — that is a very real risk that was discussed in length in our last blog — that risk still very much exists.

  2. If the RP is sophisticated, they may try and saddle you with unreasonable AA terms and conditions, favorable to their position, by using their 'standard AA'.  These RP-centric agreements tend to fall into two camps:  overly onerous, and written one-sided in favor of the RP, or, purposely vague and light on terms/conditions, to allow the RP flexibility to work outside of detailed constraints you may impose upon them in the AA.  

Neither option is good, from your perspective.

The New Jersey Department of Environmental Protection (NJDEP) requires a RP by statute to delineate any contamination they are responsible for, even if it extends offsite to one or more neighboring parcels. But even though the NJDEP requires said neighbor(s) to provide 'reasonable access' to a RP, the NJDEP does not get involved in the AA negotiation process between neighboring property owners — that is a private matter, with disputes settled in Superior Court, not by the NJDEP. The NJDEP statutes also state that you can be 'reimbursed for costs associated with a disruption in your operations', but the terms and definitions are loose and qualitative, without any real guide rails, meaning the issue again is subject to negotiation between parties, or settled in Superior Court. To that end, it is better to broach those issues upfront, in the AA, versus expending the time, cost and uncertainty of a legal determination by the courts.

We have seen deep-pocketed and sophisticated RPs (especially if the RPs have multiple sites, such as public utility providers and large energy companies, by way of example) many times use the same playbook to try and grind/bully less sophisticated or less financially secure neighbors into lopsided RP-centric AAs.  

And although many AAs are for a single sampling event (i.e., to determine if the neighboring property is impacted at all), if the contamination does extend to the adjoining parcel, and the contamination is significant, the access arrangements for both remediation and long-term monitoring (e.g., a large groundwater contaminant plume or an extensive soil gas vapor intrusion area) may last for months, or even years. We have client's that are subject to AAs that have been in place for more than a decade — it is not uncommon. And that becomes a potential burden on your parcel when you opt to sell, refinance or expand your site.

If the RP is responsible for costly remediation that extends to an adjoining parcel that is extensive/long-term, or would materially affect the neighbors daily operations, a full or partial buyout of the neighboring property may become a viable option for the RP, in which case the AA would be replaced by a Purchase and Sales Agreement (PSA), which has its own set of potential legal/liabilty pitfall clauses, and is the subject of a separate blog. There are no statutory obligations for you to sell to the RP, but it may, in the end, be the most pragmatic/prudent course of action.

In summary:

  1. Do not allow a neighbor to come onto your property without first executing a tight AA, preferably drafted by your counsel/professional team with your interests and objectives in mind; and

  2. If you have an existing AA, or an arrangement whereby no AA is in place, but RP sampling is occurring on your site, you  need to revisit that situation and enter into a viable AA as soon as possible, addressing all the terms detailed in this and our April, 2020 blog.

If you have any questions or comments on the AA-related issues detailed above, feel free to contact our office to discuss same.

eikonplanning@gmail.com | 908-813-2323, x 136

Please note, the information provided in this newsletter relating to PFAS and associated compounds is strictly for informational purposes only and should not be construed as recommendations or advice on how to treat, remediate or handle PFAS in any manner; our firm assumes no liability of any kind regarding same.

Quin Potter
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PFAS Remedial Methods: Potable Water, Groundwater & Soils.