Structuring Environmental Site Access Agreements: Avoiding Costly Pitfalls

Because environmental contaminants are often mobile, investigating parties often need access to neighboring properties in order to investigate the extent of contamination. In the context of site investigations involving land purchase or ground lease transactions, site access agreements play an important role when investigating parties need access to a neighboring property, or when buyers or ground lessees want to conduct an environmental site assessment as part of pre-acquisition/pre-lease due diligence or performing a compliance audit, or when considering pre or post-closing remediation.

While these agreements are often thought of as minor sideshows to the main event, counsel to buyers, sellers, remediators, and owners must keep in mind key considerations when negotiating the terms of access, including the scope of the work that will be performed, the locations of the work, the timing and duration of the work, insurance and indemnification, and any required notices or reporting obligations.

If a municipality requires permitting for restoration work, whose responsibility is it to comply? Should the results of environmental testing done by others always be provided to the landowner? When must the discovery of contamination be reported to regulatory authorities? When do you need pollution liability insurance? These are all questions that frequently arise and often cannot be answered by reference to a boilerplate access agreement.

Listen as this experienced panel discusses site access agreements used in the transaction and remediation contexts and examines the key provisions that should be addressed. The panel will also outline the potential pitfalls that the agreement may not account for or could create as a result of drafting issues. The panel will offer best practices for negotiating and implementing the agreement.

1. Negotiating the essential provisions
   1. Importance of understanding your deal
   2. Scope
   3. Duration
   4. Location
   5. Notice
2. Negotiating "the weeds"
   1. The "applicable law"
   2. Business interruption and accommodation of ongoing operations/tenants
   3. Payment of costs
   4. Handling of generated wastes and disposition of materials removed
   5. Reporting obligations
   6. Unique access issues
   7. Repair and restoration
   8. Work plans, sampling results, and reporting
   9. Indemnification
3. Insurance
   1. Types of coverage required
   2. Additional named insureds
   3. Primacy of policies and subrogation
   4. Policy limits
   5. Evidence of insurance
   6. Claims procedures

The panel will review these and other key questions:

• When is an environmental indemnity agreement necessary?
• What are the key considerations that counsel should keep in mind when negotiating site access agreements for pre- and post-closing access?
• What are the best practices for structuring site access agreements to protect buyers, sellers, owners, and investigating parties?