Section 2: Authorities
Anchor: #i1005963Overview
This section presents information on the federal and state laws governing environmental considerations related to all projects that TxDOT has oversight responsibilities. The information is organized by subject matter, with the authorities grouped under the following headings:
- comprehensive environmental laws, regulations and policies
- natural resources
- cultural/socio-economic resources
- air quality
- hazardous materials.
Comprehensive Environmental Laws, Regulations and Policies
The following subsections discuss:
- National Environmental Policy Act (NEPA) of 1969
- Council of Environmental Quality (CEQ) Regulations
- 23 Code of Federal Regulations (CFR) Part 771
- 49 USC, Subtitle III, Chapter 53, Transportation, General and Intermodal Programs - Mass Transportation
- Federal Aviation Administration Order 5050.4A, Airport Environmental Handbook
- 49 CFR Part 24 - Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and Advisory Circular 150/5100-17
- 43 Texas Administrative Code (TAC) Chapter 2, Subchapter C
- FHWA Technical Advisory (T-6640.8A)
- memoranda of understanding (MOUs).
National Environmental Policy Act (NEPA) of 1969
The U.S. Congress approved NEPA in 1969 (42 United States Code [USC] 4321-4347) to establish a national policy to protect the environment. NEPA also set up the Council on Environmental Quality, which set out regulations for implementing NEPA, including the types of actions and the analyses required.
NEPA requires federal agencies to consider environmental issues in full view of the public prior to making any major decisions on federally funded projects. Federally-funded transportation projects fall under the provisions of NEPA. NEPA directs the federal government to make decisions based on an understanding of the environmental consequences of the proposed project. To achieve this understanding, NEPA requires an assessment of environmental impacts of proposed projects on the environment and a consideration of alternatives. Where impacts cannot be avoided, minimization or mitigation of impacts is required.
For more information on NEPA, see the TxDOT Project Development Policy Manual. For a copy of the statute, see NEPA.
Anchor: #i1006089Council of Environmental Quality (CEQ) Regulations
The Council of Environmental Quality (CEQ) Regulations set forth the procedures for complying with NEPA. These regulations also require that each federal agency develop their own regulations to detail how they will comply with NEPA. See NEPA regulations.
Anchor: #i100610423 Code of Federal Regulations (CFR) Part 771
23 CFR Part 771 comprises the environmental regulations of the U.S. Department of Transportation (USDOT), the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA). In accordance with CEQ requirements, these regulations were adopted to implement NEPA requirements for surface transportation projects. 23 CFR Part 771 comprises the basis for TxDOT’s federally funded project development process. For a copy, see Federal Aid Policy Guide.
Under 23 CFR Part 771, federally funded transportation activities must:
- Comply with all applicable environmental requirements.
- Document compliance at a level appropriate to the activity's potential to cause significant environmental impact.
- Evaluate alternatives (including the “no action” alternative). Make decisions in the overall public interest based on a balanced consideration of the need for the project and the social, economic, and environmental impacts of the project.
- Inform the public and other governmental entities and involve them in making decisions.
- Perform sufficient interdisciplinary studies on which to make decisions.
- Implement measures to avoid, minimize or mitigate environmental impacts.
For more information on 23 CFR Part 771, see Federal Aid Policy Guide.
Anchor: #i100616049 USC, Subtitle III, Chapter 53, Transportation, General and Intermodal Programs - Mass Transportation
These statutes pertain to mass transit projects and programs implemented under the authority of the Federal Transit Administration.
Anchor: #i1006170Federal Aviation Administration Order 5050.4B, Airport Environmental Handbook
FAA Order 5050.4B provides instructions and guidance for preparing and processing environmental assessments (EAs), findings of no significant impact (FONSIs), and environmental impact statements (EISs) for airport development proposals and other airport actions required by various laws and regulations. This order provides the procedures for conducting environmental studies and NEPA compliance for the Federal Transit Administration (FTA) and the Federal Aviation Administration (FAA) federal-aid projects. TxDOT provides environmental reviews of aviation projects in accordance FAA procedures.
Anchor: #i100618349 CFR Part 24 - Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and Advisory Circular 150/5100-17
FAA Order 5100.37B provides guidance and procedures for FAA personnel and airport owners who apply for federal financial assistance for the acquisition of land or the displacement of persons, farm operations, or businesses under this act. This order is not regulatory, but is the implementing procedure to assist FAA personnel and airport owners in carrying out provisions of this act and 49 CFR Part 24.
Advisory Circular 150/5100-17 provides guidance to sponsors of airport projects developed under the Airport Improvement Program to meet the requirements of this act and the regulations of the Office of the Secretary of Transportation, 49 CFR Part 24.
Anchor: #i100620943 Texas Administrative Code (TAC) Chapter 2, Subchapter C
These sections of the TAC were adopted by TxDOT to provide comprehensive regulations for environmental analysis in project development, regardless of mode or funding source. The sections mirror the USDOT regulations found in 23 CFR Part 771, with additional sections for public transportation, aviation, maintenance operations, Gulf Intracoastal Waterway (GIWW), and the Coastal Coordination Council. Public involvement requirements and interagency coordination are critical components of the code that help TxDOT gain valuable citizen input on projects and keep the public and other agencies informed about TxDOT activities.
For more information on 43 TAC, see the TxDOT Project Development Policy Manual.
Anchor: #i1006236FHWA Technical Advisory (T-6640.8A)
FHWA provides this guidance material that contains information relative to document preparation, types of analyses, formats for environmental documents, and other aids in documenting NEPA compliance in accordance with 23 CFR Part 771.
For more information, see FHWA Technical Advisory.
Anchor: #i1006255Memoranda of Understanding (MOUs)
The Texas Transportation Code, §201.607 requires TxDOT to adopt MOUs with each state agency that has responsibility for protection of the natural environment or for preservation of historical or archeological resources. Environmental documents that meet the MOU criteria are sent to these agencies for review and comment. TxDOT has negotiated MOUs with the following resource agencies:
- Texas Parks and Wildlife Department (to view this MOU, click TPWD)
- Texas Historical Commission (to view this MOU, click THC)
- Texas Natural Resource Conservation Commission/Texas Commission on Environmental Quality (to view this MOU, click TNRCC/TCEQ)
- General Land Office (to view this MOU, click GLO)
For more information on the MOUs, see the TxDOT Project Development Policy Manual.
Anchor: #i1006310Natural Resources
This section includes the following:
- Endangered Species Act of 1973 (16 USC §§1531-1543)
- Executive Order 13112
- Farmland Protection Policy Act (FPPA)
- Coastal Barrier Resources Act (CBRA)
- Texas Coastal Management Program (TCMP)
- border issues: the 1944 Water Treaty
- The Rivers and Harbors Act of 1899
- Clean Water Act (CWA) of 1972
- National Pollutant Discharge Elimination Control System (NPDES) 1990
- National Flood Insurance Act (NFIA) of 1968
- Executive Order 11988
- Executive Memorandum of April 26, 1994
- Section 404 Regulatory Program
- Essential Fish Habitat
Endangered Species Act of 1973 as amended (16 USC §§1531-1543)
The Endangered Species Act (ESA) of 1973 ensures that any actions authorized, funded, or carried out by federal agencies do not jeopardize the continued existence of any listed endangered or threatened species or species proposed to be listed endangered or threatened species, or adversely modify or destroy critical habitat of such species. The act applies to TxDOT as an agent for FHWA when federal funds are used on a project or there is a federal permit required.
The purpose of the act is to conserve threatened and endangered species and the ecosystems that they depend on. The act provides for the protection of a species that is in danger of extinction throughout all or in a significant portion of its range and establishes a process for adding qualified species (and habitat critical to their continued existence) to the official list through a formal rulemaking procedure that includes public input and involvement.
ESA applies to any project that impacts endangered species or their habitat.
Any time an action (anything authorized, funded, or carried out) “may affect” a listed species, the agency, organization or individual taking the action should consult with the United States Fish and Wildlife Service (USFWS). The penalties for failure to comply with the act can be severe.
For a non-federal project, the following summarizes prohibited activities. Once a species is listed or proposed for listing it is given full legal protection of the ESA and this makes the following illegal:
- import, export, interstate transport or sale of protected animals and plants without a permit
- killing, harming, harassing, possessing, or removing protected animals from the wild without a permit or without consulting with USFWS
- Removing listed plants from federal lands without a permit.
Executive Order 13112
Executive Order 13112 was signed on February 3, 1999. It established the National Invasive Species Council. The council provides direction to federal agencies in the tasks of identifying and controlling plant and animal invasive species.
Anchor: #i1006459Fish and Wildlife Coordination Act of 1958 (16 USC §§661-667e)
The Fish and Wildlife Coordination Act (FWCA) of 1958 requires that federal agencies obtain comments from USFWS and TPWD. This coordination is required whenever a project involves impounding, diverting, or deepening a stream channel or other body of water.
Anchor: #i1006472Farmland Protection Policy Act (FPPA)
The Farmland Protection Policy Act (7 USC §§4201 et seq.) is implemented by federal regulations published in 7 CFR Part 658. The purpose of the act is to minimize the contribution of federal programs to unnecessary conversion of farmland (including prime farmland) to non-agricultural uses.
FPPA applies to all projects that require new right of way and that are planned for federal funding, except those which are specifically planned for national defense. The environmental documentation for all federally funded projects with new right of way must provide evidence of compliance with FPPA.
For more information on FPPA, see the TxDOT Project Development Policy Manual.
Anchor: #i1006501Coastal Barrier Resources Act (CBRA) (16 USC §3501, et seq.)
CBRA outlines requirements to minimize the loss of life, wasteful expenditures of federal money, and damage to the natural and other resources of coastal barrier systems along the Atlantic and Gulf coasts.
CBRA identifies coastal areas that are protected by placing restrictions on the use of federal funds for developmental activities, including federally- funded highway projects.
Each TxDOT coastal district has maps on file identifying areas applicable to CBRA.
For more information on CBRA, see the TxDOT Project Development Policy Manual.
Anchor: #i1006528Texas Coastal Management Program (TCMP)
TCMP is based primarily on the Coastal Coordination Act of 1991 (Texas Natural. Resources Code, §33.201 et seq.) TCMP established a Coastal Coordination Council (CCC) headed by the Texas Land Commissioner. CCC (a multi-agency panel) reviews projects and proposed rules to determine whether or not projects or actions in coastal counties conform with TCMP.
The CCC review determines if the proposed action is consistent with the goals and policies of TCMP. CCC's decision is referred to as a consistency determination. Federal permits may not be issued until CCC determines that the action is consistent.
Anchor: #i1006545Border Issues: The 1944 Water Treaty
The 1944 water treaty expanded the jurisdiction of the International Boundary Commission that was formed through two treaties ratified in 1853 and 1884. One of the changes was to add water to the commission’s responsibilities, thus renaming the commission as the International Boundary Water Commission (IBWC). This treaty assigns IBWC the power to carry out all boundary and water agreements.
For more information on the 1944 Water Treaty, see the TxDOT Bridge Project Development Manual.
Anchor: #i1006562Rivers and Harbors Act of 1899 (33 USC '403)
The U.S. Army Corps of Engineers (USACE) began regulating activities in navigable waters with the Rivers and Harbors Act of 1899. The act includes waters defined as navigable by the U.S. Coast Guard (USCG) but may also include rivers that were historically navigable or those which, with modification, may be available for future use to transport interstate commerce.
- Section 9 empowers USCG to regulate the construction of bridges and causeways within or across navigable waterways as determined by that agency through navigable waterway permits. The General Bridge Act of 1946 has more recent rules and regulations that direct TxDOT staff through the bridge application process for Section 9 permits.
- Section 10 empowers USACE to regulate all work on structures in or affecting the course, condition, or capacity of navigable waters of the U.S. through navigable waterway permits.
For more information on the Rivers and Harbor Act, see the TxDOT Project Development Policy Manual.
Anchor: #i1006593Clean Water Act (CWA) of 1972
CWA (33 USC §§1251-1387) was enacted to maintain and restore the chemical, physical, and biological integrity of the waters of the U.S. The broader jurisdiction under this law includes not only navigable waters, but also most waters of the country and adjacent wetlands. Provisions of CWA are currently enforced by the Environmental Protection Agency (EPA), but will be delegated to the Texas Natural Resource Conservation Commission/Texas Commission on Environmental Quality (TNRCC/TCEQ) beginning in 2003.
A water discharge permit or coordination is required whenever a project directly or indirectly impacts water resources. For more information on CWA, see the TxDOT Project Development Policy Manual.
Anchor: #i1006610National Pollutant Discharge Elimination Control System (NPDES) 1990
In 1990, the Environmental Protection Agency (EPA) published final regulations for the NPDES storm water discharge permits (40 CFR Part 122). The purpose of this legislation is to improve the quality of the nation's rivers, lakes, and streams by reducing pollution from non-point sources. These regulations are administered by EPA and TNRCC/TCEQ.
Construction activities disturbing more than five acres require a permit for storm water run-off.
For more information on NPDES, see the TxDOT Project Development Policy Manual.
Anchor: #i1006632National Flood Insurance Act (NFIA) of 1968
The purpose of NFIA is to provide flood insurance protection to property owners in flood-prone areas.
The National Flood Insurance Program (NFIP) was established to reduce future flood losses through local floodplain management. NFIP requires participating cities, counties, or states, to adopt floodplain management ordinances containing certain minimum requirements intended to reduce future flood losses. The local jurisdiction is responsible for coordinating with the Federal Emergency Management Agency (FEMA) any alterations or relocation of a waterway and proposals for amendments to NFIP maps should it be necessary.
For more information on NFIP, see the TxDOT Project Development Policy Manual.
Anchor: #i1006654Executive Order 11988
Executive Order 11988 requires all federal agencies to comply with NFIP criteria. It is the basis for assessment of flood hazards that may be related to highway improvements encroaching on or affecting base flood level.
Consistency with NFIP is required by FHWA for all federal-aid highway funding. FHWA recognizes the NFIP standard that provides for up to a one-foot increase in flood stages when designating a floodway or when evaluating an encroachment where no floodway is designated. A highway encroachment cannot increase the water surface elevation of the 100-year flood more than one foot at any point in the community.
For more information on Executive Order 11988, see the TxDOT Project Development Policy Manual.
Anchor: #i1006676Executive Memorandum of April 26, 1994
Landscaping on federal projects is the subject of the executive memorandum signed by President Clinton. In addition, TxDOT issued “Guidance on Environmentally Beneficial Landscaping Practices and NEPA Compliance,” dated July 5, 1996.
The guidance requires that federal projects be designed to:
- use regionally native plants for landscaping
- design, use, or promote construction practices that minimize adverse effects on the natural habitat
- seek to prevent pollution by, among other things, reducing fertilizer and pesticide
- implement water-efficient and runoff reduction practices.
See the Landscape and Aesthetics Manual for more information.
Anchor: #i1006718Section 404 Regulatory Program
Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged and fill material into waters of the U.S., including wetlands. Section 404 makes it unlawful to discharge dredged or fill material into waters of the U.S. without first receiving authorization from USACE.
The Section 404 Program can issue the following permits:
- nationwide permits
- individual 404 permit
- general permits.
Essential Fish Habitat (EFH)
In 1996, amendments to the Magnuson-Stevens Fishery Management and Conservation Act (MSFMCA) - 16 USC §§1801-1882) set forth a mandate for the National Marine Fisheries Service (NMFS), regional fishery management councils (FMC), and other federal agencies to identify and protect important marine and anadromous fish habitat. EFH provisions of MSFMCA support one of the nation's marine resource management goals - maintaining sustainable fisheries. FMCs, with assistance from NMFS, have delineated "essential fish habitat" (EFH) for managed species. Federal agencies that fund, permit, or carry out activities that may adversely impact EFH are required to consult with NMFS regarding the potential effects of their actions on EFH, and respond in writing to NMFS or FMC recommendations. In addition, NMFS and FMCs may comment on and make recommendations to any state agency on their activities that may effect EFH.
Guidance and procedures for implementation of the 1996 amendments of the MSFMCA were provided through regulations published in 1997 (50 CFR Part 600). These rules specified that Fishery Management Plan (FMP) assessments be prepared to describe and identify EFH and identify appropriate actions to conserve and enhance those habitats. In addition, the rules established procedures to promote the protection of EFH through interagency coordination and consultation on proposed federal and state actions.
Anchor: #i1006769Cultural/Socio-Economic Resources
This section includes the following:
- Texas Antiquities Code
- National Historic Preservation Act (NHPA) of 1966
- U.S. Department of Transportation (DOT) Act of 1966
- Transportation Equity Act for the 21st Century (TEA-21)
- Title VI of the Civil Rights Act of 1964
- Uniform Relocation Assistance and Real Properties Acquisitions Act
- Executive Order 12989.
Texas Antiquities Code
The Texas Antiquities Code and its implementing rules require that TxDOT notify the state historic preservation officer at the Texas Historical Commission (THC/SHPO) on all proposed projects that have the potential to affect cultural resources that may qualify as State Archeological Landmarks. This requirement exists independently of NEPA or any other environmental law. TxDOT is further required to seek THC/SHPO's concurrence on measures to avoid, minimize or mitigate impacts to cultural resources that qualify as State Archeological Landmarks.
For more information on the Texas Antiquities Code, see the TxDOT Project Development Policy Manual.
Anchor: #i1006831National Historic Preservation Act of 1966 (NHPA)
Section 106 of NHPA (see Section 106 regulations) requires FHWA to take into account the effects of federally-funded and permitted projects on historic properties, to coordinate these effects with the staff of THC/SHPO, and to avoid, minimize, or mitigate any adverse effects on historic properties. Historic properties are any buildings, structures, objects, archeological sites or traditional cultural properties listed on or eligible for listing on the National Register of Historic Place (National Register). 36 CFR Part 800 comprises the regulations implementing Section 106 of NHPA.
TxDOT's and FHWA's obligations under NHPA and 36 CFR Part 800 exist independently of NEPA or any other environmental law. State-funded projects require coordination with THC/SHPO whenever the project is under the regulatory or permitting jurisdiction of any federal agency. For example, NHPA requires USACE to ensure that projects issued Section 404 permits comply with NHPA. As a result, NHPA requires THC/SHPO coordination for all projects with FHWA funding or regulatory involvement of any federal agency.
In addition to consulting with THC/SHPO, TxDOT and FHWA must make an active effort to identify and involve Indian tribes, consulting parties and members of the public who may have an interest in a project's effect on historic properties. TxDOT's and FHWA's obligations for public involvement under NHPA and 36 CFR Part 800 exist independently of public involvement requirements under NEPA. Public involvement requirements under 36 CFR Part 800 can be combined with public involvement requirements under NEPA, provided that it satisfies the requirements of 36 CFR Part 800.
TxDOT's and FHWA's obligations under NHPA and 36 CFR Part 800 are the same regardless of whether the project is developed under a categorical exclusion (CE), an environmental assessment (EA), or an environmental impact statement (EIS).
Section 106 coordination with THC/SHPO, Indian tribes, consulting parties and members of the interested public must be completed before FHWA can legally approve the expenditure of federal monies on proposed transportation projects. FHWA has executed a Programmatic Agreement (PA) with THC/SHPO, the Advisory Council on Historic Preservation, and TxDOT, streamlining TxDOT’s and FHWA's Section 106 responsibilities.
FHWA has executed a separate PA with THC/SHPO, the Advisory Council on Historic Preservation and TxDOT for enhancement projects. Each PA requires that TxDOT complete the Section 106 coordination on behalf of FHWA.
For more information on Section 106, see the TxDOT Project Development Policy Manual. Also, see the text of the PA.
Anchor: #i1006877U.S. Department of Transportation Act of 1966
Section 4(f) of the USDOT Act requires documentation when right of way will be taken from publicly owned parks, recreation areas, wildlife or waterfowl refuges, publicly or privately owned historic properties and archeological sites that merit preservation in place. For federally funded projects, the documentation must prove that there is no prudent or feasible alternative to the proposed action and that the project includes all possible planning to minimize harm to the resource.
Section 4(f) evaluations require TxDOT to prepare documentation that describes a wide range of project alternatives that would avoid taking the resource and includes a plan to minimize harm to any affected historic properties. These evaluations must be completed early in the project development process to insure that costly delays and design changes are avoided.
For more information on Section 4(f), see 23 CFR Part 771.
Anchor: #i1006899Transportation Equity Act for the 21st Century (TEA-21)
The Intermodal Surface Transportation Equity Act of 1991 (ISTEA) had a strong focus on transportation planning and the environment. TEA-21 continues that focus, requiring the integration of certain aspects of transportation planning into the environmental process.
TEA-21 calls for a proactive public involvement process that provides complete information, timely public notice, full public access to key decisions, and early and continuing public involvement in the development of an intermodal transportation system.
For more information on TEA-21, see the TxDOT Project Development Policy Manual.
Anchor: #i1006925Title VI of the Civil Rights Act of 1964
Title VI of the Civil Rights Act of 1964 assures that individuals are not excluded from participation in, denied the benefit of, or subjected to discrimination under federally assisted programs on the basis of race, color, or national origin. TxDOT certifies all project-related public hearings for compliance with Title VI.
For more information, see Title VI.
Anchor: #i1006940Uniform Relocation Assistance and Real Properties Acquisitions Act (URARPAA)
URARPAA of 1970 and amended in 1987 mandates that property owners receive compensation for properties acquired for transportation projects and requires non-discriminatory right of way policies with regard to appraisals and acquisitions of homes and businesses and residential relocations.
For more information on URARPPA, see the TxDOT Project Development Policy Manual.
Anchor: #i1006957Executive Order 12898
Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (1994) requires that federally funded projects identify and address disproportionately high and adverse health and environmental impacts on minority populations and low-income populations. For a copy of the text, see Executive Order 12898.
Anchor: #i1006969Executive Order 13166
Executive Order 13166: Improving Access to Services for Persons with Limited English Proficiency (LEP), requires federal agencies to examine the services they provide and identify any need for those with limited English proficiency. The executive order further states that recipients of federal financial assistance must provide meaningful access to their LEP applicants and beneficiaries.
Anchor: #i1006979Native American Graves Protection and Repatriation Act (NAGPRA)
NAGPRA requires that agencies and museums receiving federal funds must identify tribal affiliations for Native American human remains and repatriate those human remains to affiliated federally recognized tribes. NAGPRA establishes how the remains are excavated. Because TxDOT receives federal funds, it must comply with NAGPRA. If human remains are anticipated during archeological excavations or are discovered inadvertently during construction, TxDOT must try to avoid these burials. If the burials cannot be avoided, TxDOT must consult with the appropriate federally recognized tribes about the methods of excavation, analyses, reporting and repatriation.
Anchor: #i1006989Air Quality
This section includes the Clean Air Act (CAA) (42 USC 7401-7626).
Anchor: #i1006999Clean Air Act (CAA) (42 USC 7401-7626)
CAA, passed in 1963, established permanent federal support for air pollution research and provided federal assistance to states for development of pollution control agencies. The act has been amended several times. These amendments are discussed below.
- The Clean Air Act Amendment (CAAA) of 1970 established National Ambient Air Quality Standards (NAAQS) for six mobile source pollutants.
- The CAAA of 1977 strengthened the original act and established deadlines for reaching air quality attainment status. The 1977 amendment also required the development and implementation of State Implementation Plans (SIPs) to bring air quality non-attainment areas into compliance with NAAQS.
- The 1990 CAAA established specific criteria that must be met for air quality non-attainment areas. These criteria are based on the severity of the air pollution problem and include specific timetables for implementing mobile source control strategies and meeting emission reduction targets.
The 1990 amendments also require EPA to sanction all or part of a state for failing to develop and submit SIPs, and for failing to meet any of the air quality progress or attainment deadlines. These latest amendments to CAA placed much of the responsibility on the transportation community.
For more information on the Clean Air Act, see the TxDOT Project Development Policy Manual or TxDOT’s Air Quality Guidelines, available from ENV.
Anchor: #i1007038Hazardous Materials
The next subsections cover these topics relating to hazardous materials:
- Resource Conservation and Recovery Act (RCRA)
- Comprehensive Environmental Response, Compensation Liability Act (CERCLA)
- Texas Water Code
- FHWA, Hazardous Waste Sites Affecting Highway Project Development
Resource Conservation and Recovery Act (RCRA) (42 USC §6901 et seq.)
RCRA of 1976 (as amended) governs the management of non-hazardous solid waste, hazardous waste, and underground storage tanks (USTs). Specifically, the RCRA program regulates:
- solid waste recycling and disposal
- federal procurement of products containing recycled materials
- waste minimization
- hazardous waste generators and transporters
- hazardous waste treatment, storage and disposal facilities (TSDFs)
The Hazardous and Solid Waste (HSWA) Amendments of 1984 broadened the scope of RCRA, authorizing EPA to regulate USTs containing petroleum products and hazardous substances.
Appropriate inquiry may help to avoid liability by identifying known or possible hazardous waste contamination and regulated facilities. Once identified, the closure of hazardous waste disposal units within any proposed right of way will need to be coordinated with owners and operators of RCRA facilities and the applicable state and federal regulatory agencies (TNRCC and EPA). Any hazardous wastes generated will need to be handled according to applicable regulations either prior to or during construction.
For more information on RCRA, see the TxDOT Project Development Policy Manual.
Anchor: #i1007122Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
CERCLA. (42 USC Chapter 103) approved in 1980, is best known for its “Superfund,” program and provides EPA with the authority to respond to releases or threatened releases of hazardous substances, pollutants, or contaminants that may endanger human health or the environment. Superfund was primarily designed to remedy the mistakes in hazardous waste management made in the past at sites that have been abandoned or where a sole responsible party cannot be identified. CERCLA requires reporting of releases, establishes the liability of persons responsible for releases of hazardous substances, and established a trust fund to provide for cleanup when no responsible party can be identified. The term "hazardous substance" excludes petroleum products, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel.
Under the Superfund Amendments and Reauthorization Act (SARA) of 1986, defenses to liability were created. There shall be no liability for a person who can establish by a preponderance of evidence that the release or threat of release of a hazardous substance and damages resulting therefrom were caused solely by an act or omission of a third party.
For more information on CERCLA, see the TxDOT Project Development Policy Manual.
Anchor: #i1007144Texas Water Code
Under Chapter 26 of the Texas Water Code, Texas Hazardous Substances Spill Prevention and Control Act, a "responsible person" for discharges or spills of hazardous substances includes: owner or operator of a vessel or a facility from which a spill emanates, and any other person who causes, suffers, allows, or permits a spill or discharge.
The current property owner is ultimately responsible for contamination leaving the property or affecting groundwater. Similar to RCRA and CERCLA, appropriate inquiry is needed for existing and proposed right of way to determine if special considerations are needed to avoid unauthorized discharges.
For more information on the Texas Water Code, see the TxDOT Project Development Policy Manual.
Anchor: #i1007166Hazardous Waste Sites Affecting Highway Project Development
FHWA developed interim guidance for hazardous waste sites affecting highway project development in August 1988 and supplemental guidance in January 1997. The interim guidance provides information on purpose; background (laws and legal interpretations); planning/project development/construction; right of way procedure; and general eligibility and participation policy that includes questions and answers regarding hazardous materials. For additional information, please see FHWA's Environmental Guidebook.
Anchor: #i1007178Public Involvement
Public involvement for projects that TxDOT has oversight authority must comply with the procedures set forth in TAC Title 43 Transportation, Part 1, Texas Department of Transportation, Chapter 2, Environmental Policy, Subchapter C, Environmental Review and Public Involvement for Transportation Projects. Public involvement for highway improvement projects that use federal aid highway funds will be consistent with applicable state and federal law and §2.43(b) of TAC 43 (relating to Highway Construction Projects - State Funds), which states that public involvement shall be encouraged as an important element of project planning. It shall be initiated by the pertinent district office and will depend on and be consistent with the type and complexity of each state project. District staff shall also maintain a list of individuals and groups interested in state project development, and shall provide notification of public hearing activities to these individuals and groups.
Public involvement practices should be in compliance with Executive Order 13166: Improving Access to Service for Persons with Limited English Proficiency.