Disclosure of the purposes of site assessments and investigations for hazardous material contamination should be incorporated into right-of-entry agreements. Any right-of-entry agreements required by the property owner other than the approved TxDOT form agreements should be reviewed by TxDOT’s General Counsel Division.

Due to potential hazardous materials liability and enforcement actions, right of entry may be denied or difficult to obtain from property owners. Under the Texas Public Information Act, any TxDOT information, assessment, file or environmental document must be available as a public record unless a related lawsuit is pending. Information may also be discussed with regulatory agencies during the early stages of project development. Therefore, confidentiality regarding any contamination found during site assessments and investigations cannot be guaranteed or implied. Other options to address property owner confidentiality concerns include allowing the property owner to review draft reports or oral reports prior to the preparation of final reports, and separating recommendations from the assessment, or investigation report findings. These alternate options should be considered on a case-by-case basis.

If a property owner denies access, then portions of the site assessments and investigations may have to be postponed until right of entry can be obtained in later stages of project development during the right-of-way negotiation, acquisition or eminent domain process.