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.