Environmental Access Agreements: Enter at Your Own Risk

November 1, 2011
by SUZANNE ILENE SCHILLER
Association of Corporate Counsel's "Green-house Counsel"

If there is one truism about contamination, it is that you can never trust it to stay put. Surface water, groundwater and air can naturally and continuously move potentially hazardous pollutants from property to property, sometimes for great distances. As a result, owners of contaminated realty often seek to conduct environmental sampling on neighboring properties to assist in determining the source, the level and the spread of the contamination. Similarly, in industrial and other areas, property purchasers will almost always conduct environmental due diligence during the contract period which may include assessment and analysis of the soil and groundwater. Whether one is in the position of needing the sampling, or of responding to a request, it is vitally important that a Site Access Agreement is put into place and before any sampling takes place. In negotiating such agreements, there are several key topics that every counsel needs to pay close attention to.

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