Chapter 3: Right of Way

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Section 1: Overview

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Goals

The following goals should be completed prior to or during the right-of-way stage of project development as it pertains to acquiring fee or easement rights for contaminated property or improvements:

  • initiation, completion or updating of environmental site assessments and/or investigations, as needed
  • coordination of decisions with district, affected divisions and FHWA staff to avoid or minimize involvement with previously unknown contamination that was not disclosed in the environmental document
  • determination if preventive and/or corrective action can be performed prior to construction (Preventive action refers to cleanup and other activities required to effect the construction of the highway project. Corrective action refers to activities required by state or federal regulations and performed by a responsible party to protect human health and the environment.)
  • negotiation and allocation of responsibility for any required corrective action, closure, post-closure care or future environmental liability among property owners, operators, jurisdictional regulatory agencies, local entities and TxDOT, as applicable
  • determination of whether cost recovery from responsible parties is appropriate, taking into account the FHWA Interim Guidance
  • coordination with the Right of Way Division (ROW) Legal Section, Office of General Counsel (OGC) and Texas Office of Attorney General, as appropriate, to determine if and how cost recovery should be pursued
  • arrangement of asbestos-containing material (ACM) inspections, abatement project design, notification, abatement, air monitoring, and demolition, as needed
  • monitoring of assessments, investigations, closure and corrective action, and communication of the status and findings to affected planning, environmental, design and construction staff
  • coordination and transfer of any required post-closure responsibility to TxDOT district maintenance sections.
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Procedure Overview

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. Information about right-of-way procedures is provided in the ROW Procedures Preliminary to Project Release.

Asbestos and leaking petroleum 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 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) Pollution Prevention and Abatement Branch (ENV-PPA).

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Complete Assessments/Investigations

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. Interviews with the property owners or operators concerning possible contamination may not have been practical during advanced planning stages. These interviews should be conducted 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.

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Advanced Acquisition of Right-of-way

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. In 1996, the TxDOT Corridor Preservation Task Force developed evaluation and acquisition policies specifically for abandoned railroad corridors. ENV-PPA should be contacted for site-specific guidance when the advanced acquisition of parcels with hazardous materials or contamination is considered. ENV and ROW can provide additional information regarding procedures for advanced acquisition and corridor preservation.

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Postponing Acquisition

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 becoming 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:

  • right-of-entry agreements
  • possession and use agreements
  • easements.
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Appraisals

Parcels are appraised "as if clean." Many appraisers are not qualified to detect the presence of contamination, so 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 witness services for estimating corrective action costs may be obtained through statewide environmental engineering contracts.

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Agreements

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:

  • delegation of responsibility for removal, disposal, corrective action, closure and/or post-closure care
  • provisions for contingencies if contamination is encountered
  • assurance that project-specific design requirements and construction worker safety are addressed in any risk assessment or corrective action plan
  • consideration of TxDOT’s input when making decisions related to corrective action, closure and post-closure care requirements
  • allowance of TxDOT to recover costs, where appropriate.

ROW has developed tank 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 tank removal and indemnity agreements can be obtained from the ROW Engineering Section. Agreements should be reviewed and edited to meet site specific needs.

For a site that is not subject to a TCEQ order or permit, or where agency enforcement action is pending, TxDOT should consider negotiating an agreement whereby other responsible parties pursue the Voluntary Cleanup Program (VCP) with TCEQ. The VCP, created under HB 2296, was established on September 1, 1995 to provide administrative, technical and legal incentives for cleanup of contaminated sites in Texas. Under this program, site cleanups follow a streamlined approach to reduce future human and environmental risks to safe levels (See Texas Solid Waste Disposal Act, Subchapter S, Texas Health and Safety Code Chapter 361 and 30 Texas Administrative Code [TAC] Chapter 333). After a site cleanup has been concluded, the parties will receive a certificate of completion from the TCEQ stating that all lenders and future landowners who are not responsible parties are released from any liability to the State for cleanup of areas covered by the certificate. A separate agreement between TxDOT and the responsible party, independent of the VCP agreement with TCEQ, may be needed to ensure that the transportation project and cost recovery issues mentioned above are addressed.

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Deed Recordation and Title Searches

Deed certifications and recordations regarding “Notice of [type of substance] Contaminated Site” are required in the following regulatory program regulations:

  • Municipal Solid Waste - 30 TAC §330.7 Deed Recordation
  • Voluntary Cleanup Program - 30 TAC §333.9 Deed Certification
  • Underground and Aboveground Storage Tanks - 30 TAC §334.205 Institutional Control Requirements
  • Industrial Solid Waste and Municipal Hazardous Waste - 30 TAC §335.5 Deed Recordation of Waste Disposal
  • Industrial Solid Waste and Municipal Hazardous Waste, Subchapter S, Risk Reduction Standards - 30 TAC §335.551 thru §335.569 Risk Reduction Standards
  • Texas Risk Reduction Program - 30 TAC §350.111 Institutional Controls.

Deed recordation is generally required when future land use is likely to become more environmentally sensitive. Deed recordation is also generally required when engineering or institutional control is necessary to prevent current or future exposure. Deed recordations are made on a case-by-case basis and are generally based on a combination of the remaining contaminant concentrations and the future anticipated use(s) of the site. For example, deed recordation may be needed when the site is to be closed under a commercial/industrial land use assumption. Typically, the site is not zoned as commercial/industrial, and is located in a predominantly residential setting. Deed recordation may also be required to eliminate a potential exposure pathway. For example, if groundwater is contaminated above health-protective levels, deed recordation may be used to ensure that the affected groundwater is not used. Deed recordation may also be used when an engineering control, such as a cap, must be maintained to prevent exposure to subsurface contamination. Finally, deed recordation is necessary for land formerly used as a municipal solid waste landfill or dump.

During the appraisal stage, a preliminary title search may be performed. Preliminary and final title searches should be reviewed before closing for deed recordation or certification language related to contamination and closure requirements. If not previously addressed, an agreement may be amended to include responsibilities identified in the deed prior to acquisition.

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Temporary Leases (Lease Backs)

The district should be cautious if the right-of-way will be leased 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.

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Local Public Agency Acquisition

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 ROW and easements. Additional information about local public agency acquisition should be obtained from ROW.

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Cost Recovery

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.

Even if the regulatory status of a site is closed, the remaining contamination may impact proposed construction, resulting in costs above and beyond those of normal project development. For example, additional costs may be associated with the use of hazardous material specialty contractors, air monitoring and management of the contaminated soil and groundwater encountered during construction.

The distinction between preventive action and corrective action should be considered when determining if cost recovery is appropriate. Corrective action refers to activities that state or federal regulations require to be performed by a responsible party to protect human health and the environment. Corrective action addresses the entire contaminated area without regard to property lines. Preventive action refers to cleanup and related activities that are required to affect the construction of the highway project. Preventive action activities may only include the excavation of contaminated soils or control of contaminated groundwater within project limits during construction.

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.

In contrast, the demolition of the building due to the transportation project triggers the requirement for abatement. Cost recovery from the facility or building owner, for asbestos inspections or surveys, abatement or other activities, is generally not appropriate. For ACM, the purpose of the preventive action or abatement is to meet the transportation project requirements for removal of the improvement rather than a remedial action related to environmental impacts.

For cost recovery, the following can be considered on a case-by-case basis:

  • negotiating removal and/or creating indemnity agreements to provide reimbursement from responsible parties and protect TxDOT against future claims
  • negotiating escrow accounts
  • acquiring contaminated value appraisal after obtaining the original "as if clean" appraisal for consideration during condemnation
  • initiating legal action.

Negotiated agreements are the preferred option to recover costs while minimizing the State's potential for liability. It may be difficult to accurately estimate the costs of corrective action without detailed subsurface investigation. If the costs of corrective action are not accurately estimated, the amount of the escrow account or reduction of the offer may not be sufficient for TxDOT to recover all associated corrective action costs. Additionally, by reducing the offer or value, TxDOT may be held jointly responsible for the corrective action. However, legal action is costly, so it may not be feasible or practical to recover corrective action costs through legal action. The decision to recover costs through legal action should be coordinated with ROW Legal Section, OGC and Texas’ Office of the Attorney General, as appropriate.

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