Remediation Deadline Leads To Surge In Access Requests

June 21, 2013 | No Comments
Posted by Steven M. Dalton

 In an effort to meet the statutory requirement to complete “remedial investigations” by May 7, 2014, many responsible parties are aggressively seeking off-site access to adjacent and nearby properties to undertake remediation activities such as soil, groundwater and vapor sampling.  The Brownfield and Contaminated Site Remediation Act provides persons undertaking remediation with a statutory basis to seek and obtain a court order granting off-site access rights if after good-faith efforts they are unable to obtain an agreement for access.  Land owners who receive such requests should give careful consideration to how the undertaking of, or failure to undertake, remediation activities will affect the value and use, or potential use, of their property.  The person who receives a request for access should obtain the data and materials collected by the party seeking access to determine whether the request is supported by the data.  If a valid basis exists for the request for access, property owners should seek to impose conditions on access that will protect their interests. The statutory provision which provides persons undertaking remediation with the right to seek a court order to force access also protects third-party landowners by expressly providing that a court may impose reasonable conditions as part of the access order.  Parties involved in these matters can often save considerable time and expense, and can avoid the uncertainty of having a court determine what constitutes reasonable access, by negotiating a written access agreement with reasonable conditions that address the interests of each party.

Giordano Halleran & Cielsa, P.C. represents parties undertaking remediation and third-party property owners in connection with site remediation and redevelopment issues, including the negotiation and drafting of access agreements to facilitate remediation.

Leave a Reply