Section 4: Other Permitted or Regulated Sites

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Other permitted or regulated sites include, but are not limited to:

  • federal and state Superfund sites
  • industrial and hazardous waste generators, transporters, and treatment, storage and disposal facilities
  • municipal solid waste landfills
  • abandoned hazardous substance or waste sites
  • voluntary cleanup
  • oil and gas exploration sites.

To a much greater extent than LPST sites, the acquisition of permitted, hazardous substances or waste-contaminated property requires special consideration during the right-of-way negotiation and acquisition process on a case-by-case basis. Depending upon the regulatory status of a site, additional regulatory agency coordination, permit modifications, closure and post-closure care may be need. For example, the plugging of groundwater monitoring or exploration wells may be required according to applicable regulations.

The names and contacts of the potentially responsible parties must be determined. The Texas Health and Safety Code, §361.751- §361.754, provides for Innocent Owner Operator Certificates from the TCEQ in certain situations. If a landowner meets the requirements and provides proof of these certificates, TxDOT should identify other potentially responsible parties, previous owners and former operators. TxDOT should consider negotiating agreements with parties other than the current landowner.

To minimize or avoid liability for corrective action, TxDOT may need to exercise the power of eminent domain through condemnation for state-regulated sites or through purchase or condemnation for federal-regulated sites. For federal Superfund sites, Protective Purchaser Agreements with EPA should be pursued.

The terminology and requirements associated with corrective action and risk-based assessments for a facility differ according the federal or state regulatory status. Further discussion is outside the scope of this guidance. For more information, districts should contact ENV-PPA.

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