Section 8: Petroleum or Hazardous Substance Investigation and/or Remediation Agreements

Policy

The department may allow access to highway rights of way for an investigation to determine the presence of or for the remediation of petroleum or hazardous substances. The types of agreements are State Lead and Private Party.
The Maintenance Division acts as a liaison and provides detailed support services to TCEQ, the Railroad Commission of Texas (RRC), various remediation contractors, and TxDOT district offices that are involved in each case of leaking underground storage tank investigation and removal, as well as subsequent remediation and soil cleanup activities.

State Lead Investigation or Remediation

In some instances, TCEQ assumes the responsibility to investigate and remediate hazardous material on the rights of way. TxDOT has executed a "State Lead Master Agreement" with the Texas Commission on Environmental Quality (TCEQ) for temporary use of right of way during petroleum substance investigation and/or remediation which contains terms and conditions that must be followed. When TCEQ assumes the responsibility to investigate and/or remediate petroleum or hazardous substances, TCEQ issues a written project authorization. The TCEQ contractor submits a request to access TxDOT right of way (Form
2035
).

State Lead Agreement

In a "state lead" investigation/remediation, TxDOT determines when such entry is in the public interest and will not damage the highway facility, impair safety, impede maintenance, or in any way restrict the operation of the highway facility.
In order to request access to state highway rights of way, TCEQ contractors need to furnish the appropriate district office with:
  • a completed "Request For Access to TxDOT Right of Way For State Lead Petroleum or Hazardous Substance Investigation and/or Remediation" (Form
    2034
    )
  • a written project authorization from the TCEQ (work order form)
  • a completed Certificate of Insurance (Form
    1560
    )
  • a completed TxDOT Right-of-Entry Agreement (Form
    2035
    )
  • a site plan
  • a traffic control plan.
The "State Lead Master Agreement" with the TCEQ along with the following documents will constitute the project agreement:
  • Exhibit A, "Request For Access to TxDOT Right of Way For State Lead Petroleum or Hazardous Substance Investigation and/or Remediation" (Form 2034)
  • Exhibit B, "Right of Entry" (Form 2035) (The Right-of-Entry form is executed by and between TxDOT and TCEQ's contractor.)
  • Certificate of Insurance (Form 1560) (The policy should remain in effect for the duration of the investigation and/or remediation.)
  • site plan (specifically identifying the location) and proposed activity
  • traffic control plan.

Investigation and/or Remediation by a Private Party

A private party may obtain an agreement for the investigation and/or remediation of potential contamination caused by leaking petroleum storage tanks, spills or other hazardous materials that may have migrated onto the right of way.
Investigation and remediation should normally involve drilling and monitoring wells on the right of way. Well locations should be limited to areas that provide safe access without interfering with the normal operation of the highway system. Wells should not be allowed in travel lanes, shoulders or medians (not even grassy medians).

Agreement for Access

When a private party is directed by RRC or TCEQ to conduct an investigation and/or remediation of petroleum or hazardous substances, use the “Agreement for Access to TxDOT Property Concerning Petroleum or Hazardous Substance in Soils or Groundwater” (Form
2036
). This type of agreement can be completed at the district level.
TxDOT determines when such entry is in the public interest and will not damage the highway facility, impair safety, impede maintenance, or in any way restrict the operation of the highway facility.
To access state right of way, the private party needs to furnish:
  • a completed request for “Agreement for Access to TxDOT Property Concerning Petroleum or Hazardous Substances in Soils or Groundwater” (Form 2036)
  • completed Certificate of Insurance (Form 1560).
Separate agreements should be used for investigation and/or remediation.
Form 2036 includes an option in Article 1 Regulatory Authority to clarify whether the governing agency is the Railroad Commission of Texas (RRC) or the Texas Commission on Environmental Quality (TCEQ). The RRC will govern on investigations or remediation of petroleum substances (unrefined products), while the TCEQ will govern on any investigation of other hazardous substances (including refined petroleum products).