Section 2: Hazardous Material Concerns

Hazardous Materials/Waste

Hazardous materials/waste are defined in Item 1 Article 3.60 Hazardous Materials or Waste of
TxDOT’s Standards Specifications
 (November 2014). Hazardous materials/waste include, but are not limited to:
  • Explosives
  • Compressed gas
  • Flammable liquids
  • Flammable solids
  • Combustible liquids
  • Oxidizers
  • Poisons
  • Radioactive materials
  • Corrosives
  • Etiological agents
  • Other materials classified as hazardous by Title 40 Code of Federal Regulations (CFR) – Part 261 (
    40 CFR 261
    ) or applicable state and federal regulations.
The term “hazardous materials” refers to a broad category of hazardous wastes, hazardous substances and toxic chemicals that can negatively impact human health or the environment. The presence or suspected presence of hazardous material that may potentially influence a project creates a multitude or problems affecting right-of-way acquisition, project development and construction.
The definition of “hazardous materials” also includes “chemicals of concern” as defined in Title 30 of the Texas Administrative Code (TAC) (
30 TAC 350
) – Texas Risk Reduction Program (TRRP), as well as any media (such as soil and water) contaminated by those chemicals of concern.
A “chemical of concern” is any chemical with the potential to adversely affect ecological or human receptors due to its concentration, distribution, and mode or toxicity. Depending upon the program area, chemicals of concern may include the following:
  • Solid waste, industrial solid waste, municipal solid waste, and hazardous waste as defined in the Texas Health and Safety Code 361.003, as amended, and the Texas Water Code 26.263, as amended.
  • Hazardous constituents as listed in 40 CFR 261 – Appendix VIII, as amended
  • Constituents on the groundwater monitoring list in 40 CFR 264 – Appendix IX, as amended.
  • Constituents as list in
    40 CFR 258
    – Appendices I and II, as amended
  • Pollutant as defined in Texas Water Code 26.001, as amended
  • Regulated substance as defined in Texas Water Code 26.342, as amended, and 30 TAC 334.2 (related to Definitions), as amended
  • Petroleum product as defined in Texas Water Code 26.342, as amended, and 30 TAC 334.122(b)(12) (related to Definitions for ASTs), as amended
  • Other substances as defined in Texas Water Code 26.039(a), as amended, and daughter products of the aforementioned constituents

Why Address Hazardous Materials in Project Development?

Hazardous materials/waste sites can pose a myriad of legal, regulatory, financial, and technical problems to the department. TxDOT becomes exposed to substantial liability when it purchases a contaminated parcel of lands or if it owned property when wastes were placed there (either by past agency practices, by third-party illegal disposal practices, or by the activities of tenants). Under a number of federal and state statutes, claims can be made against the department for a variety of cleanup costs, as well as for personal or property damages. In addition to these costs, the additional time delay that results from cleaning up a contaminated site can add significantly to overall project costs. Department personal – unfamiliar with the signs and property of hazardous waste – can expose themselves to considerable safety and health risks.
For the above reason, and to address compliance with the National Environmental Policy Act (NEPA)
42 USC 4321
et seq. and the Federal Highway Administration’s (FHWA)
1988 Interim Guidance
, issues related to hazardous materials must be considered throughout project development.
If unavoidable, NEPA requires mitigation of adverse impacts to the environment. FHWA provides the following directives to meet the NEPA requirements:
  • Identify hazardous material concerns early in the planning process
  • Evaluate and document the feasibility of avoidance and minimization of hazardous materials involvement
  • Facilitate cost recovery from responsible parties
TxDOT’s interests include actions to:
  • Avoid or minimize liability for environmental remedial action
  • Avoid or minimize unnecessary costs, such as field changes and contractor downtime due to unanticipated encounters of hazardous materials
  • Protect the health and safety of the public, contractors, and TxDOT staff
The best engineering solutions are developed when issues are identified early. These solutions avoid or minimize concerns to meet communities’ transportation needs as effectively and efficiently as possible.
In the National Cooperative Highway Research Program (NCHRP) Report 351, “Hazardous Wastes in Highway Rights of Way,” the Committee on Hazardous Wastes in Highway Rights-of-Way of the Transportation Research Board, state that an effective way to deal with hazardous waste is early discovery and assessment. The report states:
Some of the alternatives that might flow from such a strategy of early discovery and assessment in descending order of the level of avoidance include:
  • Realignment to avoid the site completely
  • Realignment to minimize the contaminated property taken
  • Redesign to avoid disturbing the contaminated portion of the property
  • Redesign to minimize the disturbance of the hazardous waste
  • If disturbance is unavoidable, securing cleanup by the property owner prior to acquisition
  • If prior cleanup is unattainable, use of low-cost, but often time-consuming, remediation techniques
  • Use of fast, but often expensive, techniques to clean up the site
  • A decision not to build if the costs of all the alternatives exceed the project’s benefits
The earlier in the project development phase the problem is discovered, the more of these choices may be available.

Concerns for TxDOT Pertinent to Hazardous Materials Issues

The following are examples of the health and safety, environmental, project planning, liability, cost and public concerns of TxDOT related to hazardous materials management:
  • Health and safety concerns include the abilities to:
    • ensure the safety of public and TxDOT personnel
    • avoid worker exposure to contaminants and provide notification to contractors
    • develop construction health and safety plans
    • determine long-term or maintenance health and safety considerations
  • Environmental concerns include the abilities to:
    • avoid or minimize further hazardous material releases into the environment
    • determine appropriate re-use or disposal requirements
Project planning and development concerns include the abilities to facilitate:
  • preferred alignment selection
  • planning and scheduling
  • the incorporation of special measures into the project’s Plans, Specifications and Estimates (PS&E)
  • Liability concerns include the abilities to:
    • avoid or minimize cost of litigation against the FHWA and TxDOT
    • avoid or minimize potential for future liability and/or cleanup responsibilities
    • establish innocent landowner and eminent domain defenses
  • Minimizing costs concerns include the abilities to:
    • avoid or minimize project redesign
    • minimize corrective action and disposal costs
    • avoid or minimize construction delays or downtime costs
    • facilitate cost recovery or responsible party clean-up
  • Public image concerns include the abilities to:
    • avoid or minimize delay in completing projects
    • avoid adverse publicity