This chapter focuses on hazardous materials issues encountered prior to, or during the right-of-way negotiation and acquisition process. Once the negotiation and acquisition process is complete, some of the following guidance may not apply. More information about right-of-way procedures is provided in the Right of Way Manuals Volumes 1 through 8 which can be found using the Online Manual search tool at

Asbestos and petroleum releases from leaking underground storage tanks are the most common hazardous material concerns addressed during the right-of-way negotiation and acquisition process. The following sections provide guidance for asbestos-containing materials (ACM), petroleum storage tanks, and other contaminated sites; each is distinctly different with regard to cleanup procedures and governing regulations. For more information, contact the Environmental Affairs Division (ENV) Environmental Resources Management (ERM) Section.

One of the first steps during the right-of-way negotiation and acquisition process is to determine if the initial site assessment (ISA) for hazardous materials should be updated or supplemented. New site conditions may exist or previous conditions may have become apparent since the ISA was performed during earlier planning stages of project development. TxDOT is not authorized to enter property without expressed written consent from the property owner through a right-of-entry agreement, easement or deed. In cases where right-of-entry was denied during earlier stages of project development, additional attempts to obtain right-of-entry should be considered. Similarly, interviews with the property owners or operators concerning possible contamination may not have been feasible or practical during advanced planning stages. These interviews should be conducted, if possible, and documented during the right-of-way negotiation and acquisition process.

As environmental site assessments and investigations are completed, the findings should be communicated to the appropriate district planning, environmental, design and construction staff, and affected divisions. If preventive or corrective action cannot be performed prior to construction, then the scope of any environmental site investigation should include providing data to prepare for any necessary preventive action during construction activities.

Advanced acquisition may allow preventive or corrective action activities to be completed prior to construction in a more cost-effective manner. The advanced acquisition of a hazardous material site does not necessarily mean that TxDOT will assume responsibilities for corrective action or cleanup. ENV should be contacted for site-specific guidance when the advanced acquisition of parcels with hazardous materials or contamination is considered. ROW can provide additional information regarding procedures for advanced acquisition and corridor preservation.

The acquisition of right of way or transfer of title may need to be postponed on a case-by-case basis, depending upon the potential for TxDOT to become liable for corrective action. Eventually, either acquisition or easements must be acquired prior to letting. The following agreements or instruments allow preliminary engineering and the project to proceed while postponing acquisition:

Parcels are appraised "as if clean." Many appraisers are not qualified to detect the presence of contamination, therefore, some sites may be appraised "as if clean" even though they are impacted by contamination. The value of contaminated real estate may not be accurately estimated by simply deducting the estimated remediation or compliance cost from the unaffected value. Other factors may influence value, including a positive or negative perceived impact on marketability (stigma) and the possibility of change in the highest and best uses. After the original "as if clean" appraisal is obtained, an appraiser with contamination expertise should be considered for some parcels. Districts should contact ROW for information on obtaining appraisal experts. Additionally, expert technical services for estimating corrective action costs may be obtained through ENV statewide environmental contracts.

Where possible, TxDOT should avoid or limit its liability for corrective action by negotiating agreements with responsible parties. Agreements should be negotiated when petroleum storage tank systems, permitted facilities, waste management units and contaminated soil or groundwater exist within the existing or proposed right-of-way or easement. The agreements with owners, operators, or other responsible parties should address, but are not limited to, the following:

ROW has developed underground storage tank (UST) removal and indemnity agreements to address responsible party corrective action, including provisions for cost recovery if the party does not fulfill its responsibilities under the agreement. Standard UST removal and indemnity agreements can be obtained from the ROW Engineering Section. Agreements should be reviewed and edited to meet site specific needs by the ROW Legal Section.

ENV can assist district and ROW personnel in deciding if hazardous materials issues and potential TxDOT liability might be handled through agreements or possibly through regulatory programs designed to limit future landowner liabilities. Refer to the online ROW manuals for additional information on types of agreements that might be utilized for hazardous materials issues.

Deed certifications and recordations regarding “Notice of [type of substance] Contaminated Site” are required under certain regulatory program regulations.

Deed recordation is generally required in the following circumstances on a case-by case basis based on a combination of the remaining contaminant concentrations and the future anticipated use(s) of the site:

If deed recordation is needed on a property considered for acquisition, it is preferable that the owner perform the deed recordation prior to acquisition. TxDOT’s policy is to not allow restrictive covenants to be placed by others on property owned by the Department. Refer to the online ROW Manual, Volume 6 for specific deed recordation procedures.

Districts should be cautious of leasing right-of-way back to owners or operators with permitted or regulated operations involving hazardous substances, waste or materials. TxDOT may be held liable if hazardous materials or wastes are not managed properly. To reduce liability to TxDOT, some operations may need to be discontinued or closed prior to or upon acquiring the property.

A local public agency may acquire right-of-way and easements. Before transferring a title to the State, TxDOT should obtain confirmation that hazardous material concerns have been addressed from the acquiring agency. TxDOT should review documentation of appropriate inquiry, reports or checklists. The transfer of the title may need to be postponed until corrective action, closure and/or post-closure care issues are resolved. TxDOT may need to enter agreements with the local public agency and other parties regarding acquisition of right-of-way and easements. Additional information about local public agency acquisition should be obtained from ROW.

Issues related to the acquisition of contaminated property and cost recovery have become more complicated in recent years due to the promulgation of risk-based corrective action regulations. A risk-based closure of a site allows contamination to be left in place as long as the contaminants do not constitute environmental or health hazards to on-site or off-site receptors given the property uses. As a result, TxDOT is increasingly confronted with the acquisition of contaminated properties that may have already been, or are eligible to be, closed by the jurisdictional regulatory agency.

Cost recovery and the allocation of corrective action responsibilities depend upon the purpose of the cleanup. If the purpose of the cleanup is solely to meet the transportation project's construction requirements, and otherwise would not have been required by regulation, then the cleanup costs should not be borne by the responsible party. On the other hand, if contaminated property constitutes a health risk to the general public above and beyond those incurred during the transportation project's construction activities, then cleanup costs should be borne by the responsible party. Cost recovery issues are complicated, especially when related to disposal. Negotiation with the property owner and/or responsible party may be necessary on a case-by-case basis. The ROW Legal Section should be consulted for assistance.

The decision to recover costs through legal action should be coordinated with ROW Legal Section, GCD and Texas’ Office of the Attorney General, as appropriate.