For Comprehensive Development Agreements (CDA), such as Design/Build projects, the hazardous materials process will be dictated by the contract terms. The developer’s and TxDOT’s responsibilities with regards to the identification and management of potential hazardous materials sites will be specifically addressed in the contract. The hazardous materials process can vary between CDAs, therefore, it is important to read the contract terms to fully understand the process and the entities’ responsibilities.

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.

As stated in , further investigation and/or coordination may be necessary to confirm the presence or absence of contamination and to determine the extent and severity, appropriate methodology, and preliminary costs of corrective or preventive action. Sites under investigation, corrective action, enforcement, permit plans and/or closure plans regulated by either EPA or TCEQ will require early coordination to determine site status, obtain approval for intrusive sampling and analysis plans, and determine design considerations that might be needed during construction. Coordination may occur with both the applicable regulatory agency(s) and the responsible property owner or operator of the site.

When appropriate, assistance from appropriate state and federal regulatory agencies should be sought to minimize involvement. Requests for assistance or coordination with federal, state and local agencies to assess the degree of contamination, scope of treatment and disposal measures should also be considered, initiated and documented during advanced planning and subsequent stages of project development. Coordination with regulatory agencies, property owners or local agencies may take place concurrently with project development.

Early project planning should include conducting ISAs prior to or in conjunction with the preliminary design and feasibility study stages of project development. The potential for encountering hazardous material contamination should be considered and incorporated into the following:

Preliminary Design Concept Conference

: The information gathered from site assessments and investigations should be discussed in design concept conference meetings for the project. The Preliminary Design Concept Conference (PDCC) form, developed by the TxDOT Task Force on Design Concepts, contains a section to include pertinent hazardous material information. Districts should contact the Design Division (DES) for more information about the PDCC form.

Environmental Permits, Issues, and Commitments Sheets:

An Environmental Permits, Issues and Commitments (EPIC) Sheet was developed to communicate information that should be considered in the PS&E. The EPIC sheet contains a section to include pertinent hazardous material information. Known, unresolved hazardous materials issues are also tracked in ENV division’s Environmental Compliance Oversight System (ECOS) through the use of Issues, Identifications, and Resolution (IIR) forms and assigned tracking tasks.

Preliminary Design Schematics and Right-of-Way Maps:

If not avoided, hazardous material contamination concerns will need to be further addressed during later stages of project development. Copies of the preliminary schematics should include references to known or suspected hazardous material contamination or regulated sites. Additional surveying of known or possible hazardous material contamination concerns can be incorporated with either the preliminary schematic or right-of-way maps. Whether surveyed or hand-drawn, examples of possible concerns to note on preliminary schematics or maps include, but are not limited to, monitoring or exploration wells, contaminated fill, underground storage tanks, fill pipes, pump islands and above-ground storage tanks.

U.S. Department of Transportation (USDOT) and EPA initiatives encouraging redevelopment of brownfields will likely support transportation-related brownfield redevelopment and may result in increased involvement with hazardous materials during construction. Due to the added costs and liability risks associated with hazardous materials involvement, known or possible hazardous material concerns should be integrated into the project coordination, alignment alternative, corridor/route selection and decision-making processes. The financial impact on transportation funds or budgets should be considered in the alternative analysis.

Experience and understanding of procedures in right-of-way negotiation and acquisition, property management as well as, design and construction will be required in the decision-making process. Consideration of other environmental issues, health and safety concerns, design feasibility, liability and costs must also be part of the decision to either avoid, minimize the involvement (redesign) or properly handle the concern prior to or during construction. Preliminary or required commitments should be identified or outlined during advanced planning and the project decision-making process. As appropriate, affected parties, local entities, and affected district functional areas must agree to commitments for further investigation, regulatory agency coordination, approvals and permits, corrective action and site closure as well as, preventive action and/or waste management.

Appropriate investigation levels for ISAs of each alternative should be comparable. In alternative analysis, known or possible hazardous material sites should be compared qualitatively rather than quantitatively. A comparison of the total number of regulated or registered sites for each alternative is not sufficient, because the costs and requirements for one type of regulated site or contamination problem cannot be compared directly with those of a different type of regulated site or contamination problem. However, similar sites with the same types of contamination, priority and status, with similar project involvement, could be compared.

As stated in the , a decision must be made as to whether the costs and delays of contamination involvement warrant the selection of an alternate route. Additional factors such as other environmental issues and right-of-way, utility, construction and maintenance costs should be considered. For example, engineering design and utility considerations are associated with constructing and maintaining a roadway built on a landfill. Those considerations include increased construction and maintenance costs due to possible bridge structures, post-closure requirements, health and safety monitoring, methane collection and monitoring, leachate filtration/monitoring systems and settling. Other factors include liability issues and responsibilities for possible groundwater contamination. The feasibility of avoiding the landfill entirely, minimizing involvement with minor alignment changes or constructing a bridge over the landfill requires evaluation of the costs and benefits.

Geotechnical Soil Borings/Soil Core Hole Drilling Considerations:

If hazardous material contamination is suspected, then any required soil core hole drilling for pavement, retaining walls, bridges and other structures can be combined with required environmental sampling and analysis to minimize costs.

Additional provisions or contingency language may be needed in the scope of services or proposals for geotechnical soil boring/soil core hole contracts on a project-specific basis if contaminated soil and/or groundwater might be encountered. For example, special considerations for health and safety monitoring, personal protective equipment, proper handling and disposal of soil cuttings, alternative drilling techniques to prevent migration and plugging may be required for soil core hole drilling.

Right-of-Way Considerations:

Regardless of the potential for encountering contamination during construction, special considerations for hazardous material concerns during the right-of-way negotiation and acquisition process may be necessary. Regulatory agency and property owner coordination may still be required, depending upon the regulatory status of a site. For example, plugging of groundwater monitoring or exploration wells may be required by applicable regulations. Other concerns can include asbestos, underground storage tank removal, permit status notifications, and site closure.

Land use restrictions or post-closure care requirements may be recorded in the deeds of parcels to be acquired. Corrective action cases may need to be re-opened for sites or facilities due to proposed land use changes. The terminology and requirements for corrective action cases differ from those of a risk-based assessment for a facility according to the federal or state regulatory status. For example, requirements for a permitted landfill will differ from those for a petroleum storage tank facility. Additional information on asbestos-containing materials, petroleum storage tanks, leaking petroleum storage tank facilities and other permitted or regulated sites is provided in Chapter 3, “Right of Way.”

Utility or Pipeline Agreement and Adjustment Considerations:

Abandoned utilities or pipe-lines containing crude oil, polychlorinated biphenyls (PCB) or asbestos-containing materials (ACM) may have to be removed during construction. TxDOT utility installation notices, joint use and standard utility agreements typically include general statements about following applicable federal, state, and local regulations. The responsibilities for handling or disposing of hazardous materials must be determined. On a case-by-case basis, specific hazardous material or spill reporting requirements should be considered in the agreements. If unknown or unanticipated contamination is encountered during utility maintenance, adjustments or installation, the utility company should be required by the agreement to notify the district so that possible involvement during any proposed construction can be determined.

The potential for encountering contamination should be addressed early in project development to prevent or minimize delays in completing utility adjustments. Adjustments to utilities or pipelines that involve hazardous materials may impact construction projects. A district may decide that a particular project requires joint bids with the municipalities to handle utility adjustments during construction. Whether the utilities are adjusted prior to or during construction, the extra time needed to arrange for special handling of contamination may delay construction, or impact construction scheduling. For example, installation or adjustment of telephone fiber optic cable within contaminated soil may require special protection, such as trench lining and/or soil disposal.

Hydraulic and Storm Sewer Design Considerations:

If handled improperly, de-watering and storm sewer installation in contaminated soil or groundwater are at the greatest risk of worker exposure and further releases into the environment. If unanticipated contamination is encountered and special provisions or arrangements have not been made, then construction delays and/or contractor disputes or claims are likely. Areas needing significant excavation, trenching, tunneling and/or de-watering typically require more assessment and/or further investigation to determine if contamination will be encountered during construction. If de-watering of contaminated groundwater is necessary, then specialty contractors, engineering controls, monitoring and testing, temporary collection, filtration, approval from regulatory agencies and/or discharge permits may be required.

Design Changes and Re-Evaluations:

The following steps should be performed for design changes and re-evaluations:

Plans, Specifications and Estimates (PS&E) Considerations

: If site remediation cannot meet regulatory closure requirements prior to construction or during the right-of-way acquisition process, then monitoring of remediation systems and their access may need to be integrated into the design of the proposed project. Coordination with regulatory agencies and the property owner/responsible parties may be necessary to ensure that the roadway construction does not adversely affect remediation, site closure and/or post-closure care of the site.

The management and disposal of contaminated soil, groundwater and waste must be conducted in accordance with applicable federal and state requirements and in a manner that will not adversely affect human health and/or the environment. If a hazardous material concern cannot be avoided prior to construction, a preventive action plan, such as a Soil and Groundwater Management Plan, will serve to reduce the impact of contamination encountered during construction. A preventive action plan may include, but is not limited to, the following:

Special specifications, provisions or contingencies can be incorporated into the PS&E to reduce the potential for construction delays, claims, forced accounts, or field change orders. Employed by the local entity, TxDOT or the prime highway contractor, specialty contractors, or subcontractors can be used to implement the preventive action plan during construction. Incorporating special specifications, provisions or considerations into the development of the PS&E is further discussed in Chapter 4, “Design.”

Property Management or Maintenance Considerations:

If a site cannot meet regulatory closure requirements prior to construction or during the right-of-way acquisition process, then closure may need to be obtained after project construction. Additionally, a site may have post-closure requirements for maintaining vegetation, caps or drainage after construction. Any post-closure responsibility must be communicated to the district maintenance staff.

District and division project files are consulted at various stages of project development. A completed copy of the ISA checklist or report should be kept in the district project files. Due to possible cost recovery and right-of-way documentation requirements, incorporating or developing central hazardous material files or electronic databases for tracking information by project and/or parcel should be considered.

Supplemental documentation should be organized and catalogued in the project files. Supple-mental documentation includes, but is not limited to, the following: