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Last Updated: Thursday, October 16, 2014 11:45 AM

Chapter 10 - Hazardous Materials, Hazardous Waste, and Contamination

Please Note: Acronyms are defined at first occurrence. All acronyms are defined again for your convenience in the Acronym List which appears at the very end of the chapter.

WHAT DOES THIS TOPIC INCLUDE?

This chapter provides an overview of the procedures used to address hazardous materials, hazardous wastes, and contamination during the project planning and delivery process.

The California Health and Safety Code Section 25501(o) defines hazardous material as:

…any material that, because of its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or to the environment if released into the workplace or the environment. "Hazardous materials" include, but are not limited to, hazardous substances, hazardous waste, and any material that a handler or the administering agency has a reasonable basis for believing that it would be injurious to the health and safety of persons or harmful to the environment if released into the workplace or the environment.

A hazardous substance is a type of hazardous material specifically defined in California Health and Safety Code Section 25316. The definition of hazardous substance encompasses several federal environmental statutes that contain lists of hazardous substances. The definition is broad and far reaching and includes hazardous waste.

Hazardous waste is a hazardous material that is being discarded and is specifically defined by the California Department of Toxic Substances Control’s (DTSC) Glossary of Environmental Terms as:

Waste substances which can pose a substantial or potential hazard to human health or the environment when improperly managed. Hazardous waste possesses at least one of these four characteristics: ignitability, corrosivity, reactivity or toxicity; or appears on special United States Environmental Protection Agency (US EPA) lists.

Hazardous materials or wastes that have been released into soil, surface water, ground water, or air are contamination. Properties on which hazardous materials or wastes are currently handled, or were handled in the past, have the potential to be contaminated. Properties on which hazardous materials or wastes have been mismanaged are almost certain to be contaminated.

The presence of contamination can dramatically affect the cost, scope, and schedule of a project and create permanent liability for the Department through property ownership and hazardous waste disposal. Contaminated soil and/or water must either be cleaned up prior to construction of the transportation project or specially managed during construction. The necessary special handling, worker safety precautions, disposal of contaminated material, and regulatory agency oversight and approvals increase project costs and can adversely impact the project schedule. Contamination discovered during construction can greatly increase construction costs by temporarily stopping construction during excavation and disposal activities. As a result, contaminated properties shall be identified and avoided if at all possible. If avoidance is not possible, contamination must be carefully and thoroughly evaluated to identify and define its possible effect on the project and the potential future liability for the Department that it might create.

The identification and evaluation processes described in this chapter are commonly used throughout the environmental consulting community and are consistent with regulatory requirements for characterizing properties and sites. Properties and sites that may be included in the transportation project are first screened for current or past activities that involve(d) hazardous materials or generate(d) hazardous wastes, or properties with known contamination. Each potentially contaminated property identified is further evaluated through the preparation of an Initial Site Assessment (ISA) utilizing non-invasive investigative methods. ISA is Department terminology for the industry standard Phase I Environmental Site Assessment. Properties identified in the ISA as having recognized environmental conditions or activity use limitations related to contamination, are further scrutinized through a Preliminary Site Investigation (PSI) that includes actual sampling of media such as soil and water. Finally, a Detailed Site Investigation (DSI), which includes more comprehensive and/or directed sampling, may be prepared to adequately estimate cost, scope, and schedule impacts and the risk of long-term liability resulting from acquiring a contaminated property. This information is summarized in the environmental document/determination and project files (with associated technical reports) so that alternatives can be adequately evaluated.

CONTAMINATION DECISION TREE

LAWS, REGULATIONS, AND GUIDANCE

The regulatory framework for the management of hazardous materials, hazardous wastes, and contamination is complex. There are both federal and state components. Within the state there are several agencies and departments that may have overlapping jurisdiction over any given situation. This section provides an introduction to the laws, regulations, and the federal and state agencies and departments involved. Also see Standard Environmental Reference (SER) Volume 1, Chapter 1 - Federal Requirements and Chapter 2 - State Requirements.

Compliance costs associated with meeting federal and state mandated hazardous materials, hazardous waste, and contamination remediation requirements are eligible project costs so long as the appropriate processes and protocols, including their timing in the project development and delivery process, are adhered to.

Federal Laws and Regulations

The US EPA regulates federal hazardous waste and oversees the remediation of contaminated sites on the National Priorities List (NPL). These sites are commonly referred to as Superfund Sites. The two most important federal laws that address environmental contamination and the management of hazardous waste are known as the:

1) Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and

2) Resource Conservation and Recovery Act of 1976 (RCRA).

In addition, US EPA has the authority to protect the general public from exposure to airborne contaminants through the Clean Air Act (CAA) and restore and maintain the chemical, physical, and biological integrity of the nation's waters through the Clean Water Act (CWA).

CERCLA: Congress enacted CERCLA, commonly known as Superfund, on December 11, 1980. This law instituted a tax on the chemical and petroleum industries and provided broad federal authority to respond directly to releases or threatened releases of hazardous substances that might endanger public health or the environment. Specifically, CERCLA:

  • established prohibitions and requirements concerning closed and abandoned hazardous waste sites;
  • provided for liability of persons responsible for releases of hazardous waste at these sites; and
  • established a trust fund to provide for cleanup when no Responsible Party (RP) could be identified

Sites or properties regulated under CERCLA are placed on the NPL. The NPL is the list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States and its territories. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation.

Liability is of particular concern to the Department. Under CERCLA, a current or former property owner can be found responsible for remediation even if they did not contaminate the property. The remediation costs may make it impossible for a transportation project to proceed and the liability itself can make the Department vulnerable to future claims by adjacent property owners and others with access to the property. The costs and liability create a huge incentive to NOT acquire contaminated property and are the primary reasons for the Department’s policy to avoid acquiring contaminated property (see Right-Of-Way Acquisition under the Process and Procedures section for policy discussion). These issues need to be considered early and throughout the entire planning and project delivery process.

For additional information about CERCLA see US EPA’s Superfund website.

RCRA: RCRA authorizes US EPA to control hazardous waste from "cradle-to-grave." This control includes generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA defines certain wastes as hazardous under federal law (RCRA wastes) and also establishes a framework for the management of non-hazardous wastes. RCRA addresses only active and future facilities, not abandoned or historical sites. The State of California has RCRA authorization, meaning that the authority and responsibility for the enforcement of RCRA has been delegated from US EPA to the state, specifically DTSC.

The up front and long-term costs associated with the generation of RCRA wastes must be considered when planning transportation projects. During the project development process there are special management, transportation, and disposal process, costs, and fees to consider. RCRA waste generation can also create significant future liability for the Department. RCRA stipulates that the generator of hazardous waste is responsible for that waste even after proper disposal in an appropriately permitted landfill. Thus, if the landfill operator goes bankrupt, the original waste generators must take responsibility for the long-term maintenance of that landfill. This permanent liability creates a huge incentive to minimize hazardous waste generation on projects and to avoid acquiring contaminated properties because remediation of contaminated properties usually results in generating hazardous wastes.

For additional information about RCRA see US EPA’s Laws and Regulations website.

CAA: The Clean Air Act protects the general public from exposure to airborne contaminants that are known to be hazardous to human health. The requirements of the CAA must be considered when cleaning up soil or ground water contamination. Under the CAA, US EPA established National Emissions Standards for Hazardous Air Pollutants (NESHAPs) which are emissions standards for air pollutants that may cause an increase in fatalities or in serious, irreversible, or incapacitating illness. Asbestos was one of the first hazardous air pollutants regulated by NESHAP. Compliance with the asbestos NESHAP regulations protects the public by minimizing the release of asbestos fibers during activities involving the processing, handling, and disposal of asbestos-containing material. This is important because asbestos can be found in building products that may be encountered during structure demolition or retrofit and because naturally occurring asbestos (NOA) exists in many areas of California.

For additional information about the CAA see US EPA’s Clean Air Act website.

CWA: As defined by US EPA, the Clean Water Act (CWA) is the cornerstone of surface water quality protection in the United States. The statute employs a variety of regulatory and nonregulatory tools to sharply reduce direct pollutant discharges into waterways, finance municipal wastewater treatment facilities, and manage polluted runoff. These tools are employed to achieve the broader goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters. The National Pollutant Discharge Elimination System (NPDES) program is authorized under the Clean Water Act and controls water discharges. Direct discharges or "point source" discharges are from sources such as pipes and sewers. NPDES permits, issued in California by the Regional Water Quality Control Boards (RWQCBs), contain industry-specific, technology-based and/or water-quality-based limits for pollutants, and establish pollutant monitoring and reporting requirements.

For additional information about the CWA see US EPA’s Clean Water Act website.

State Laws and Regulations

Within the California Environmental Protection Agency (Cal/EPA) are the DTSC, State Water Resources Control Board (SWRCB), RWQCBs, California Air Resources Board (CARB), and the California Integrated Waste Management Board (CIWMB). These departments and boards provide regulatory oversight of hazardous materials, hazardous substances, hazardous waste, contamination, and non-hazardous waste. The California Occupational Health and Safety Administration (Cal/OSHA) is responsible for enforcing California laws and regulations pertaining to workplace safety and health at contaminated sites. A brief introduction to the laws and regulations enforced by these departments and boards follows.

State Laws:

Health & Safety Code

  • Division 20. Chapters 6.5. Hazardous Waste Control through 6.98. Environmental Quality Assessment
  • These sections of the Health and Safety Code provide authority for DTSC and include laws regarding hazardous waste management and state Superfund. These laws create a framework similar to federal CERCLA and RCRA. Laws governing underground storage tanks (UST) are also found within these sections.

  • Division 26. Air Resources
  • Division 26 provides authority for CARB. CARB is designated as the air pollution control agency for all purposes set forth in federal law. The CARB is designated as the state agency responsible for meeting the requirements of the CAA.

Water Code

  • Division 7. Water Quality
  • This division of the Water Code is known as the Porter-Cologne Water Quality Control Act. It created the SWRCB and the RWQCBs and gave them principal responsibility for surface and ground water quality.

State Regulations:

Title 8

  • Division 1. Department of Industrial Relations, Chapter 3.2. Cal/OSHA Regulations
  • Title 8 includes requirements for worker and public protection. This includes regulation of construction related activities to ensure worker and public health and safety. Regulations include exposure limits, equipment, protective clothing, and procedures required to prevent exposures to hazardous materials (including hazardous waste and contamination). Specific sections cover lead in construction safety standards and asbestos exposure, as well as accident prevention measures.

Title 17

  • Air Resources, Division 3
  • Title 17, enforced by CARB, regulates the disturbance and use of material containing NOA. Section 93105, “Airborne Toxic Control Measures (ATCM) for Construction, Grading, Quarrying and Surface Mining Operations,” minimizes the emissions of asbestos by requiring the use of dust control and other safe management practices in areas containing NOA. This regulation defines construction as any activity that disturbs soil or rock containing asbestos in concentrations of 0.25% or greater. Section 93106 of Title 17, “ATCM for Surfacing Applications,” mandates reduction of asbestos emissions by prohibiting the use of material containing NOA in concentrations greater than 0.25% for surfacing applications, such as unpaved roads, driveways, pathways, decorative uses, and landscaping.

Title 22

  • Social Security, Division 4.5. Environmental Health Standards for the Management of Hazardous Waste
  • Title 22 defines hazardous and special waste, identifies federal and state hazardous waste criteria, and regulates the storage, transportation, and disposal of waste. Title 22 was created to regulate the hazardous wastes generated by factories or similar sources, but soil excavated during construction may also be regulated. If contaminated soil meets Title 22 waste criteria and will be excavated during construction, the soil must be handled in a manner consistent with these regulations. These regulations are also found in Title 26.

Title 23

  • Waters, Division 3. State Water Resources Control Board and Regional Water Quality Control Boards
  • Title 23 contains the authority establishing the SWRCB and RWQCBs. These regulations govern both placement of waste to land and USTs. The primary goal of these regulations is to protect surface and ground water. Regulation of the placement of waste to land can impact transportation projects because it controls the re-use and management of soil and water containing contaminants below hazardous waste thresholds. Transportation projects are also affected by these regulations when USTs will be removed as part of right of way clearance. If the Department removes an UST, or buys property with an UST, then the Department assumes responsibility and liability for the UST and any associated contamination, whether or not the Department has operated the UST. The authority to regulate USTs is often delegated to local county or city environmental health offices, known as Certified Unified Program Agencies (CUPAs).

Title 26

  • Toxics
  • Title 26 is a compilation of all environmental and hazardous waste regulations issued by state regulatory agencies published in a single title of the California Administrative Code. (NOTE: These toxics regulations are also found in the original titles assigned to each agency.) Title 26 is organized with the agencies listed in numerical sequence according to their original title assignments. The regulatory sections within each division of this title also reflect the original section number assignments and are arranged in numerical sequence. The DTSC hazardous waste management regulations found in Title 22 and the SWRCB and RWQCB land disposal restrictions and underground tank regulations found in Title 23 are all repeated in Title 26.

Title 27

  • Environmental Protection, Division 2. Solid Waste
  • Title 27 contains a compilation of landfill regulations that govern the construction of landfills and restrict what wastes the different classes of landfills can accept. Wastes are divided into inert (e.g., concrete, wood), household, special, and hazardous. Each of these waste types must be disposed of at the class of landfill that is constructed to contain it. Class III landfills can accept household and inert wastes, Class II landfills can accept special wastes, and Class I landfills accept hazardous waste. The regulations in Title 27 define what class of landfill can accept the material excavated from a project.

Policy Memos

  • Deputy Directive 71 (DD-71) Management of Naturally Occurring Asbestos (NOA)
  • Deputy Directive 16 (DD-16) Hazardous Material

Interagency Coordination

Regulatory agencies may have information about a site or property that is critical for determining the viability of project alternatives. Businesses that handle hazardous materials are inspected for compliance with regulations. A regulatory agency generally becomes actively involved with a property if there are, or have been, regulated activities at the site (e.g., underground tanks and/or waste generation, treatment, storage, or disposal of hazardous waste), if there is a potential threat to human health and safety and/or to the environment, or if there is potential for degradation of the waters of the state. Site investigations performed for the project may also trigger regulatory oversight.

Several regulatory agencies in California may have oversight on a particular site. At the local level these may include local cities, counties, and fire departments. At the state level these may include one or more Cal/EPA departments or boards such as the RWQCB, DTSC, or (in the case of landfills) the CIWMB. In some cases there may be oversight at the federal level by US EPA.

CUPAs (local cities, counties, and, in certain situations, fire departments) have authority delegated by Cal/EPA including the enforcement of USTs, hazardous materials management, and hazardous waste generation laws. These local entities perform inspections of regulated businesses and often order and oversee cleanup of minor releases of hazardous materials and hazardous wastes. Complex sites, especially those with ground water contamination, are referred to the departments and boards of Cal/EPA.

In general, larger and more highly contaminated sites are more likely to be actively regulated than smaller sites with low levels of contamination. In some cases, however, small sites containing low concentrations of contamination may be regulated if the contamination at the site is considered part of a widespread regional ground water plume. Examples of contaminants found in regional ground water plumes in California include methyl tertiary butyl ether (MTBE), solvents, and hexavalent chrome.

Regulatory Agencies

The following are federal, state, and local agencies that have regulatory authority over water quality, air quality, hazardous materials, hazardous waste, and contaminated sites.

US EPA

The US EPA’s mission is to protect human health and to safeguard the natural environment. The authority for many of the laws that US EPA enforces is delegated in California to the RWQCBs and to DTSC. However, US EPA remains the lead regulatory agency on sites that are included on the NPL or in the event of a federal emergency response action.

Cal/EPA

There are two departments, three boards, and one office within the Cal/EPA "umbrella", thus creating a cabinet level voice for the protection of human health and the environment in California and assuring the coordinated deployment of state resources. Cal/EPA includes the SWRCB and the individual RWQCBs, DTSC, CIWMB, and CARB which are discussed below, as well as the Department of Pesticide Regulation and the Office of Environmental Health Hazard Assessment.

SWRCB

The SWRCB allocates water rights, adjudicates water rights disputes, develops statewide water protection plans, establishes water quality standards, and guides the nine RWQCBs located in the major watersheds of the state.

RWQCBs

According to the SWRCB, “The mission of the Regional Boards is to develop and enforce water quality objectives and implementation plans that will best protect the State's waters, recognizing local differences in climate, topography, geology and hydrology.” The RWQCBs regulate sites that impact, or have the potential to impact, the quality of both surface and ground water. USTs are specifically regulated, but this authority is often delegated to local authorities such as cities, counties, and fire departments. The RWQCBs also issue NPDES permits under the federal CWA.

DTSC

DTSC is responsible for regulating hazardous waste facilities (facilities that generate, treat, store, or dispose of hazardous waste) and overseeing the cleanup of hazardous waste sites in California. In many cases the jurisdiction of the RWQCBs and DTSC overlap. In such circumstances either agency may be the lead regulatory agency, although DTSC generally has primary authority if the contaminants are defined as hazardous waste.

CalRecycle

CalRecycle has authority to regulate landfills (including gas emissions and closure) and may delegate some authority to local enforcement agencies (cities and counties).

CARB

CARB oversees all air pollution control efforts in California, including the activities of 35 independent local air districts. CARB works in cooperation with the local air districts and US EPA on strategies to attain federal and state ambient air quality standards and reduce air toxics emissions.

California Local Air Districts

The California Local Air Districts provide information on air quality, handle local air quality permits, and ensure compliance with permit conditions and air quality rules and regulations. They are either called Air Pollution Control Districts (APCDs) or Air Quality Management Districts (AQMDs).

CUPAs - The Unified Program

The Unified Program consolidates, coordinates, and makes consistent the administrative requirements, permits, inspections, and enforcement activities of six environmental and emergency response programs. The state agencies responsible for these programs set the standards for their programs while local governments implement the standards. Cal/EPA oversees the implementation of the program as a whole. The Unified Program is implemented at the local level by CUPAs, 84 government agencies certified by the Agency Secretary of Cal/EPA. These CUPAs have typically been established as a part of a local environmental health or fire department. Some CUPAs also have contractual agreements with one or more other local “participating agencies” (PAs) which implement one or more program elements under the oversight of the CUPA. To find a specific local CUPA visit the CUPA Directory Search website.

When to Talk to Your Regulators

Speak with your regulators:

  • Early in the various stages of project planning and delivery when there is a regulated site within the project footprint;
  • When contaminated sites or properties are identified on a project alternative; Upon discovery of a previously unknown contaminated site or property;
  • When regulatory oversight may impact project feasibility, cost, or schedule;
  • When an alignment crosses a high risk site or property such as a landfill;
  • When it is necessary to coordinate the project schedule with the schedule of potential regulatory activities; and
  • Before acquiring (purchase or easement) contaminated property.

When meeting with regulatory agencies it is important to bring all relevant and available information about the transportation project to the meeting as well as information about the contaminated site(s) or property(ies) of concern, if the agency does not already have this information in their own files. The level of detail available will depend on the phase of the project. Examples of information to bring are:

  • Site location - including map(s);
  • Current land uses;
  • All available site investigation reports (if not on file with the agency);
  • Depth to ground water and proximity to surface water;
  • Project design - indicate whether cut or fill, or both, and include drainage plans, utility relocations, and the likelihood of encountering and impacting ground water; and
  • Project timeline.

FURTHER REFERENCES

Listed below are additional information sources.

District Hazardous Waste Technical Specialists (DHWTS) are familiar with laws and regulations, Department policy and procedures, and with local regulatory agency personnel and policies. They are also a useful resource for background and/or historical information in many project areas. A list of Department District Hazardous Waste Technical Specialists can be found on the Division of Environmental Analysis internal website.

Division of Environmental Analysis, Hazardous Waste, Air, and Noise, Office:

Department staff can access the internal website. Non-Departmental staff can visit the external website.

The headquarters Hazardous Waste, Air and Noise, Office maintains internal and external websites with information specifically related to hazardous waste laws, regulations, policy, and procedures.

National Council for Science and the Environment (NCSE):

The National Council for Science and the Environment is a not-for-profit organization dedicated to improving the scientific basis for environmental decision-making. The Council specializes in programs that foster collaboration between diverse institutions, communities, and individuals. The Council works closely with those creating and using environmental knowledge, including research, education, environmental, and business organizations, as well as governmental bodies at all levels.

Underground Storage Tanks:

USTs are a very common concern for transportation projects. For convenience links to the specific laws and regulations pertaining to them are included here:

PROCESS AND PROCEDURES

The process of compiling accurate information regarding hazardous materials, hazardous wastes, and contamination for any transportation project includes performing:

  • Project screening, including scheduling of subsequent studies;
  • A full ISA to screen the project area, and specific alternatives if already defined, for possible contamination, if necessary;
  • A PSI if the ISA identifies potentially contaminated sites or properties; and
  • A DSI to estimate the impact of a contaminated site or property on the cost, scope, and schedule of the transportation project, when necessary.

The above activities must be integrated with the project delivery process for the project. If the project is on the State Highway System (SHS), project screening and the ISA are performed in order to complete the Preliminary Environmental Analysis Report (PEAR). For projects off the SHS, project screening is performed in order to complete the Preliminary Environmental Scoping (PES) form and the ISA is scheduled as a separate activity. In either case, all ISA work must be completed early enough to supply adequate information for the environmental document/determination. For additional details regarding the environmental component of the project delivery process, as well as associated forms and templates, refer to the Standard Environmental Reference Home Page.

Project Screening and Scheduling of Subsequent Studies

During the Project Initiation Document (PID; K) phase, the DHWTS and environmental generalists screen the project for the potential to encounter hazardous materials, hazardous waste, and contamination and assess the need for subsequent studies. For projects off the SHS, local agencies, or their consultants perform the screening and document it on the PES form. Project screening activities generally include the following:

  • Project evaluation;
  • Department record review;
  • Regulatory agency record review; and
  • Field visit.

Project Evaluation

Determine what activities the project will include, such as excavation, acquisition of new right of way, structure demolition or modification, etc. The nature of the project will control how extensive activities to identify hazardous materials, hazardous waste, and contamination need to be and what they will include. For example, a project not involving acquisition of new right of way, structure demolition or modification, or excavation of any kind may not require extensive evaluation; however even in this case, the DHWTS must still be consulted in order to evaluate the potential for hazardous materials and hazardous waste issues (e.g., lead based paints, asbestos containing materials, etc.). When a project is very limited in scope, such as repainting of a structure, a full ISA may not be needed, but specific focused site investigations may be necessary. All projects that include acquisition of new right of way, structure demolition or modification, or excavation require a full ISA. When one of these conditions exists for a local agency project, document the need for a full ISA under Section B of the PES form. The timing of the ISA depends on the level of risk (see Scheduling Subsequent Studies - Risk Table below) that potentially contaminated properties may pose to the project.

Department Records Review

Utilize all available Department records (and local agency records when appropriate) and confer with knowledgeable staff. For example, Right of Way records may have information about past land uses. Maintenance may have records of chemical spills along the SHS within the project study area. As-builts may show structures of concern such as underground storage tanks or the proximity of the highway to nearby suspect properties such as mining and mill sites. As of July 2009, the Department began maintaining a database of locations where soils containing aerially deposited lead (ADL) have been placed in accordance with the variance issued by DTSC. This database must be checked to determine whether proposed projects have the potential to disturb these soils. The DHWTS may have specific knowledge about property conditions as a result of work on other projects.

Regulatory Agency Records Review

Research regulatory agency records for the properties that are within the project alternatives. Typically this is done through a private vendor who generates a report for the study area from regulatory information they have compiled in a geographical information system (GIS). The report generated includes, but is not limited to, sites with reported leaking underground storage tank (LUST) sites, registered tanks, waste generators, and sites on the Cortese List. It is important to obtain this information early in the process. It is particularly important because when a site or property within the project boundaries is on the Cortese List, California law prohibits the use of a Categorical Exemption (CE). The regulatory records report will be incorporated into the ISA, if one is necessary.

Field Visit

The field visit for project screening may be as minimal as a windshield survey if the property is uniform and featureless or as extensive as walking through the area and making visual observations of all accessible properties. In all cases, all observations must be well documented in field notes.

Scheduling of Subsequent Studies

If there is the potential for contamination within the project footprint, the risk posed to the project is evaluated during the screening process so that input can be provided to the Project Delivery Team (PDT) and the project schedule can be adjusted to accommodate the required subsequent studies. Different types of land uses have differing levels of risk for site contamination and related impacts to a transportation project. Additionally, certain types of non hazardous materials found on a property may impact the project because there are special handling requirements necessary as part of project delivery activities (e.g., NOA is not a hazardous waste, but requires special handling). The timing of the ISA, PSI, and DSI must be based upon the level of risk a property or site may pose to the cost, scope, and schedule of the transportation project. The higher the risk, the earlier the investigation steps should be taken in the project delivery process. For example, since high-risk properties or sites can make a project alternative nonviable, information detailed enough to support realistic cost estimates, risk assessments, and resulting adjustments to the transportation project schedule must be developed during the PID Phase (or, in the case of local assistance projects, by the time the Request for Authorization to Proceed Package is completed). In addition, if there are multiple properties or sites of any risk level located within the project footprint, the cumulative risk to the project may be elevated necessitating earlier assessment and investigation.

After project screening, at each subsequent step of the process (ISA, PSI, DSI) the risk posed to the project by any individual property, site, or combination of properties and sites must be reassessed and the schedule of subsequent studies and the schedule of the entire project adjusted accordingly.

As stated in Chapter 6 of the Local Assistance Procedures Manual, "Local agency(ies) shall not commence with any required technical study until after the PES Form has been fully signed by all signatories." Therefore, for local agency off-SHS projects, work on an ISA shall not begin until the Department signs the PES form. The local agency may request an early coordination meeting through the District Local Assistance Engineer (DLAE), prior to developing a consultant contract for the ISA. The following information (needed to conduct an ISA) should be assembled prior to the meeting:

  • Site location - provide maps;
  • Current land uses;
  • Project design - indicate whether cut or fill, or both, and whether or not ground water is expected to be impacted if known;
  • Project timeline; and
  • Initial Site Assessment Request Form.

SCHEDULING SUBSEQUENT STUDIES - RISK TABLE

The following lists contain examples of land uses and conditions that have the potential to produce or cause site contamination and materials that require special handling. This list is grouped into high, medium, and low risk categories. Frequently, high-risk sites and properties eliminate alignment alternatives from consideration due to the high likelihood of hazardous materials, hazardous waste, or contamination and the insurmountable impacts they may have on the project cost, scope, and schedule, and the associated risk of future liability to the state.

Examples of Land Uses/Conditions Posing a High Risk to Project Cost, Scope, and Schedule:

  • Airports
  • Automotive Maintenance Facilities
  • Bulk Fuel Facilities
  • Chemical Manufacturing Plants
  • Chemical Storage and Blending Facilities
  • Computer Manufacturers
  • Department of Defense Facilities
  • Dry Cleaning Facilities
  • Electrical Utility Generation/Transfer Facilities
  • Geothermal Plants
  • Industrial Property (>20 years of use or with apparent poor best management practices)
  • Junk Yards
  • Landfills
  • Metal Plating Shops
  • Paint Manufacture/Application Facilities (automotive or other)
  • Railroad Yards
  • Recycling Centers
  • Refineries
  • Sandblasting/Leaded Glass Assembly or Repair Facilities
  • Ship Yards
  • Underground Storage Tanks

Examples of Land Uses/Conditions Posing a Medium Risk to Project Cost, Scope, and Schedule:

  • Above Ground Storage Tanks
  • Aerially Deposited Lead (ADL)
  • Agricultural Fields
  • Asbestos in buildings
  • Crop Dusting Operations
  • Debris Laden Fill
  • Gas Stations
  • Industrial Property (<20 years of use and with apparent good best management practices)
  • Lead based paint on buildings
  • Lumber Mills
  • Mines/Quarries
  • Naturally Occurring Asbestos
  • Non-Chapter 15 Surface Impoundments (Discharges of wastewater to land are commonly called "Non-Chapter 15" or "Non-15" discharges, in reference to the group of wastes excluded from the full containment, prescriptive requirements of Chapter 15/Title 27 that apply to hazardous, designated and other wastes.)
  • Railroad Lines

Examples of Land Uses/Conditions Posing a Low Risk to Project Cost, Scope, and Schedule:

Asbestos in bridges, retaining walls, etc. Lead based paint and other lead containing materials on bridges, retaining walls, etc.

 

Initial Site Assessment

If a project requires acquisition of new right of way, structure modification or demolition, or includes excavation, an ISA is necessary. A summary of the information in the ISA is included in the PEAR prepared as part of the PID for projects on the SHS.

The ISA identifies potential or known hazardous materials, hazardous waste, and contamination in the project area as well as the party(ies) responsible, or potentially responsible, for hazardous waste and contamination. This information is used to evaluate alternatives, make decisions about project design, cost, scope and schedule, and used as a baseline against future claims. An ISA includes a record search, field visit, and historical research on past project area land uses to identify potential sources of contamination. The field visit may be as minimal as a windshield survey if the property is uniform and featureless or as extensive as touring the property with the owner, but it is always non-invasive. Based upon the research and field observations, the ISA includes a recommendation regarding whether or not a PSI should be performed and makes specific investigation recommendations. In general, if the ISA identifies a potentially contaminated property or site, then a PSI is necessary unless adequate site investigation has already been completed by another party such as a property owner, RP, or regulatory agency, and the collected data is publicly available.

The industry standard for preparing an ISA is found in the American Society for Testing and Materials (ASTM) Standard E1527-05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” (NOTE: ASTM standards are only available by purchase through ASTM ). Local agencies managing projects on the SHS follow the ASTM E1527-05 standard. It is also strongly recommended that local agencies managing projects off the SHS follow ASTM E1527-05. Local agencies will use the information gathered in the ISA to answer questions pertaining to hazardous materials on the PES form. Requirements for ISA’s performed or managed by Department DHWTS are outlined in the Caltrans Initial Site Assessment Guidance Document” found on the Department's internal website. (NOTE: Since this guidance is only for projects prepared by Department staff, the indicated link is only accessible inside the Department’s firewall. Others should follow the ASTM E1527-05 standard).

Elements of an ISA

ISA activities generally include the following:

  • Interviews with past and present owners, operators, and occupants;
  • Review of historical sources of information, such as aerial photographs, fire insurance maps, building department records, chain of title documents, and land use records;
  • Review of government records, including regulatory reports for both the subject properties and nearby or adjoining properties;
  • Visual inspection of the subject properties and of adjoining properties; and
  • Documentation of research, observations and results of the environmental inquiry in a written report that specifically identifies any properties that will require invasive site investigations.

Regulatory Reports Reviewed for the ISA

When there is regulatory oversight of a contaminated property or site, RPs (property owners and/or the entities responsible for possible contamination) are required to prepare several types of documents. Also, facilities that store and use hazardous materials and those that generate, treat, store, or dispose of hazardous waste are periodically inspected and the regulatory agencies prepare inspection reports. These documents are found in the public files of the regulatory agencies and provide critical information for a project's development and delivery process. Individual regulatory agencies have their own protocols for accessing their files. Some data are available online while others can only be accessed by making an appointment to visit a file room. Some examples of regulatory documents to review are:

  • Preliminary Endangerment Assessments (PEA);
  • Facility Inspections;
  • RCRA Facility Inspections (RFI);
  • RCRA Facility Plans (RFP);
  • Site Investigation Reports;
  • Remedial Investigation/Feasibility Studies (RI/FS);
  • Quarterly Ground Water Monitoring Reports;
  • Human Health and/or Ecological Risk Assessments;
  • Sensitive Receptor Surveys;
  • Remedial Action Plans (RAP);
  • Remedial Action Workplans (RAW); and
  • Corrective Action Plans

ISA Report

The ISA report must contain a description of the work performed, any deviations from normal ISA procedures, a summary of findings, the opinions of the preparer regarding the property or site, data gaps, additional investigation and services recommended, conclusions, and recommendations. Sources of information must be clearly referenced.

ISA Preparer Qualifications

Department DHWTS are qualified to and may prepare simple ISAs, but generally contract with environmental consulting firms through on-call contracts for large projects.

Local agencies should refer to the qualification requirements in ASTM E1527-05 when selecting an environmental professional to perform the ISA. These requirements are:

  • A Professional Engineer’s or Professional Geologist’s license and three years of full-time relevant experience; or
  • A license or certification to perform environmental inquiries and three years of full-time relevant experience; or
  • A Baccalaureate or higher degree from an accredited institution of higher education in a relevant discipline of engineering, environmental science, or earth science and five years of full-time relevant experience; or
  • A Baccalaureate or higher degree from an accredited institution of higher education and 10 years of full-time relevant experience.

Timing of the ISA

The ISA should be performed during the PID phase of the project development process (K Phase; for projects off the SHS the ISA is performed after completion of the PES form.) The greater the potential risks are to the project and the Department the earlier the ISA should be performed. If the only potential hazardous waste or contamination issues identified during project screening are clearly low risk to the Department and to the scope, cost, and schedule of the project, the ISA may be performed later in the process. However, remember that all activities must be scheduled to ensure that adequate information is available to provide remediation cost estimates and project impacts at the time of the preparation of the environmental document.

ISA Updates

Remember that property conditions can change quickly. Underground storage tanks that were intact a year ago can begin to leak. An industrial facility can have a chemical spill at any time. Previously unused properties can be sold or rented. Unused properties can attract squatters or dumping. As a result, any ISA over one (1) year old is considered out of date and must be re-evaluated and updated as needed.

Site Investigations – PSI and DSI

If the ISA identifies potentially contaminated sites or properties, the available information must be evaluated to determine whether it is adequate to estimate risk to the Department and impacts to the project cost, scope, and schedule. Specifically, determine whether there is enough information to adequately estimate remediation (clean up) costs to support the evaluation of alternatives in an environmental document. If the available information is not adequate to meet all of these needs, perform site investigation(s) (PSI and DSI as needed). The results of these investigations will be used to prepare the hazardous waste section of the environmental document. The PSI and DSI reports are technical studies that provide the information for and support the conclusions of the environmental document.

The PSI typically consists of a confirmatory investigation to determine whether suspected contamination is actually present on the property. The PSI may include activities such as geophysical surveys, drilling, trenching, soil sampling, soil gas sampling, ground water sampling, and surface water sampling. The media sampled, the sampling methods, sampling locations, and laboratory analyses performed are based upon the information collected in the ISA. The work is performed by qualified and registered consultants (i.e., California Professional Geologist and/or California Professional Civil Engineer depending on the work to be done) with experience in contaminated site investigation overseen by the DHWTS, or in the case of a local assistance project, the local agency. All laboratory analyses performed to support the PSI must be done by facilities certified under the California Department of Public Health's Environmental Laboratory Accreditation Program. The laboratories must be certified for the specific analyses run and the certification must be current (all appropriate inspections and tests passed, not pending).

The qualified consultants who perform the PSI must be familiar with industry standard site investigation methodologies. Procedures followed in the field and in the lab must ensure data quality and provide defensible reports. Information about field procedures acceptable to regulatory agencies can be found in DTSC publications and in guidance on the Department's Hazardous Waste Guidance internal website. A corresponding external website for use by non-Departmental staff is under development. The local CUPA and RWQCB may also have specific guidance. Laboratories qualified to perform appropriate analyses for an investigation must have a current Environmental Laboratory Accreditation Program (ELAP) certificate from the California Department of Public Health on file. Analytical test methods for suspected hazardous wastes are listed in US EPA’s “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods” (commonly referred to by its document number, “SW-846”).

If the PSI indicates the presence of contamination that may impact the project, but does not adequately delineate it, then a DSI is necessary. A DSI is conducted to determine the full nature and extent of contamination so that remediation costs, impacts to project scope and schedule, and future liability to the state can be realistically estimated. Remember that this information is necessary to support the analysis of alternatives in the environmental document. As part of the DSI, determine whether contamination extends beyond property lines. Determine whether adjacent properties are potential sources or recipients of contamination. As with the PSI, the DSI work is performed by qualified and registered consultants (i.e., California Professional Geologist and/or California Professional Civil Engineer depending on the work to be done) with experience in contaminated site investigation overseen by the DHWTS, or in the case of a local assistance project, the local agency. All laboratory analyses performed to support the DSI must be done by facilities certified under the California Department of Public Health's Environmental Laboratory Accreditation Program. The laboratories must be certified for the specific analyses run and the certification must be current (all appropriate inspections and tests passed, not pending).

Be aware that, depending on the type and concentration of a contaminant, soil contamination discovered may simply require special handling and/or disposal during construction or may require an extensive remediation with regulatory oversight. If ground water is contaminated, regulatory agencies will require either a cleanup plan or long-term monitoring, depending on the severity of contamination. In the case of fuels, the presence of free product, such as gasoline, is cause for a cleanup (remediation) plan while the presence of low concentrations of some of the constituents (e.g., benzene, toluene, ethylbenzene, or xylene) may only require long-term quarterly monitoring. The proximity of sensitive receptors to the site requiring remediation can also complicate remediation methods and increase cost or impact schedule. For example, a school or hospital adjacent to the site may necessitate special precautions or alternative remediation methods. The impact that soil and ground water remediation and/or long-term monitoring would have on the cost, scope, and schedule of the transportation project and the Department’s liability must be evaluated in the environmental document so that alternatives can be fairly compared.

In the case of building remodeling or demolition, there are special considerations. The location and extent of materials, such as asbestos and lead based paints, can significantly impact the cost, scope, and schedule of the project.

Permits

A Permit to Enter will be required when performing investigations on private property. Similarly, special authorizations are generally required when operating on lands administered by federal (e.g., United States Department of the Interior, Bureau of Land Management; United States Department of Agriculture, Forest Service; and United States Department of Defense, Army Corps of Engineers) and state (e.g., California Department of Parks and Recreation) land managing agencies. Note that permits from these agencies may also be required in cases where the existing roadway is an easement or prescriptive right-of-way (i.e., the Department has anything less than fee simple title).

Counties generally require permits to drill during site investigations, especially when ground water may be encountered. The state is not required to obtain county permits; however, counties generally use the permit process to collect subsurface data and other information that can be used to protect ground water. As a result, it is constructive to support these county efforts by obtaining drilling permits.

Site Investigation (PSI and DSI) Reports

For Departmental staff, detailed discussion of the format and content of investigation reports is provided in the “Environmental Reporting” guidance document on the Department’s Hazardous Waste Guidance internal website. A corresponding external website for use by non-Departmental staff is under development.

All site investigation reports should, at a minimum, include the following information:

  • Site Investigation Project Description - A description of the objectives and activities of the investigation, all contacts with regulatory agency personnel and regulatory agency input on work plans, and a summary of previous investigative and remediation site work;
  • Site Background - A thorough discussion of the site geology, hydrogeologic conditions observed during the investigation, and extent of soil and ground water contamination known prior to the current investigation;
  • Data Evaluation and Discussion - Compilation and discussion of the site investigation results including impacts to the environment, potential impacts to human health, potential liability, and health and safety concerns. The data to be presented includes, but is not limited to:
    • Maps illustrating the site, physical features, boring locations, well locations, and contaminant distribution(s);
    • Cross sections of subsurface geology and hydrologic conditions, including chemical results exceeding detection limits;
    • Tabulated chemical data in all media sampled; and
    • Summary of laboratory results.
  • Conclusions and Recommendations - Documentation of the findings of the investigation, the potential impacts of the contamination to the planned transportation project, any further steps necessary to adequately assess the contamination, and mitigation issues to be considered if the contaminated property or site is included in the transportation project; and
  • Appendices - Compilation of all data collected or used to support the report.

In most cases, site investigation reports of properties not owned by the Department do not require regulatory agency approval. However, report review by a regulatory agency may aid the Department in getting property owners to clean up their property or site prior to acquisition.

For some sites, other related specialty studies may be needed to support the environmental document or may be required by a regulatory agency. Examples of these additional studies are:

  • Remedial Actions Options Reports - A review of all potentially feasible remedial actions and their costs;
  • Sensitive Receptor Surveys - Identifies domestic wells likely to receive contaminated water;
  • Quarterly Monitoring Reports - An evaluation of ground water quality generally performed every three months; and
  • Human Health and/or Ecological Risk Assessments or Risk Based Correction Action (RBCA) - Assessment of contamination impacts on human health and risk to local plant and animal life.

PSI and DSI Preparer Qualifications

Depending upon the details of the work to be done, PSI and DSI efforts must be conducted by a California Professional Geologist (PGs) and/or California Professional Civil Engineer (PEs), with experience in contaminated site investigation. Lead based paint issues must be evaluated by Certified Lead Assessors. Asbestos inspectors must be Asbestos Hazard Emergency Response Act of 1986 (15 USC) (AHERA) certified and be Cal/OSHA Certified Asbestos Consultants. Regulatory agencies may have additional requirements specific to an individual regulated site. Site investigations are performed for the Department by on-call consultants at the direction of the DHWTS and with approval of the Project Manager.

Timing of Site Investigations (PSI and DSI)

Conduct both PSI and DSI of properties with high risk land uses or conditions as early as possible. Identifying high-risk contaminated properties and sites early in the process will allow better alternative evaluations and time for innovative solutions. In most cases this will be early in the PA&ED phase of the project, although the information may be needed even earlier. Keep in mind that a high-risk property or site such as a landfill or a state or federal Superfund site can cause an alternative to be infeasible. As a result, detailed information sufficient to develop realistic project schedules, cost estimates, and risk assessments may even need to be developed during the PID Phase. Subsurface information will be required to develop these estimates and assessments, which will necessitate that a Department (or local agency, if appropriate) initiated PSI be conducted unless the information is already available from prior studies performed by landowners, RPs, or regulators.

During the PA&ED phase, perform both PSIs (if they have not already been completed) and DSIs for high-risk sites and properties. Complete these investigations as early as possible. Also complete PSIs and DSIs for medium-risk sites and properties during PA&ED. Completing these investigations during PA&ED is necessary to ensure that the environmental document includes full public disclosure as well as allowing management to make fully informed (and thus legally defensible) decisions as a part of the project delivery process. Additionally, it provides the requisite basis for accurate project cost and schedule input for the project. The latter also helps prevent repeated requests to the California Transportation Commission (CTC) for supplemental votes of funds.

Site investigations for low-risk sites and properties can be performed when convenient and may be delayed until PS&E if, and only if, adequate information to estimate impacts to cost, scope and schedule is already available to include in the environmental document and there will be sufficient time to complete the investigations.

The length of time that site investigations take to complete must also be considered when scheduling the work for PSI and DSI and the project as a whole. Site characterization can take anywhere from a month to a year or more. The time involved in collecting and interpreting data for a site will vary depending on the size, history, geology, source and type of contamination, and regulatory oversight of the site. For example, sites that involve a small area (e.g., about two acres) with the probability of lead in the soil may take a couple of days to sample, two weeks to get analytical results, and a few weeks to generate a report, for a total of six weeks of project time. However, a site, that is complicated and involves regulatory oversight, can take years to evaluate. Regulatory oversight typically happens at sites that have releases that threaten ground water or human health. These sites require drilling activities and usually the construction of monitoring wells. Sites may also require multiple investigations to fully delineate the extent of contamination. Since sites with regulatory oversight must have workplans, health and safety plans, and reports reviewed by the regulatory agency, significant amounts of time are added to the amount of elapsed time for final characterization. The amount of time needed for review will depend upon the staffing and work load of the regulatory agency. Contact the regulatory agency to get estimates of the amount of time they will require for document reviews.

Structure Investigations: When structures, such as buildings or bridges, will be repainted, repaired, modified, or demolished, investigation for lead based paint, asbestos, and other hazards is required. Investigation for mold may also be necessary in buildings when there is a history of leakage (roof, windows, plumbing, etc.). As with all site investigations this work is overseen by the DHWTS or in the case of a local assistance project, the local agency.

Conditions, such as lead based paint and asbestos in buildings, usually pose a medium risk to project cost, scope, and schedule because the information collected in the investigation of the structure may be needed to determine whether a building can be renovated or must be demolished. As a result, the site investigations for buildings should be done as a part of PA&ED so that alternatives can be properly evaluated. This also allows for appropriate design consideration and funding. The information collected in the site investigation is also vital for both waste management and health and safety concerns and therefore must be available before beginning the PS&E process. This will ensure that all required information is readily available for preparation of appropriate specifications. Specification development for buildings is often complex, especially when modification work will be performed in an occupied building and lead, asbestos, or other hazards are present.

Conditions such as lead based paint and asbestos on bridges usually pose a low risk to project cost, scope, and schedule because their presence or absence is unlikely to cause dramatic alteration of the project. As a result, site investigations of bridges can often be delayed until the beginning of PS&E. However, the information is vital for both waste management and health and safety concerns and therefore must be available early enough in the PS&E process to prepare appropriate plans and specifications.

Using the PSI and DSI Reports

The DHWTS uses the information collected in the PSI and DSI to determine mitigation options, cost estimates, estimates of the schedule and duration for remediation and mitigation, and an estimate of regulatory involvement. Keep in mind that regulatory involvement in a remediation effort will add significant amounts of time and add regulatory oversight costs to the overall cost of the project, as well as reduce the Department’s (or local agency’s) control over the project schedule. When evaluating site investigation information, also estimate the Department’s (or local agency’s) future liability resulting from ownership of the contaminated property. This liability may include responsibility for remediation derived hazardous waste that must be disposed of at a Class I landfill. The generator of this waste (either the Department or local agency), will become responsible for it in perpetuity, which means that if the Class I landfill operator can no longer maintain the landfill, the Department or local agency will be one of the RPs required to do so.

All of the cost, scope, schedule, and liability concerns listed above are considered and used in the environmental document so that alternatives can be properly evaluated. The DHWTS prepares a memo that summarizes all of the findings of the site investigations (PSI and DSI). The memo explains the surface and subsurface conditions and includes mitigation options, an estimate for cleanup costs and duration, a resource estimate for additional investigations, an estimate of the liability that the Department (or local agency) would accept by acquiring the property, and a recommendation on the viability of any project alternatives that include the high-risk site(s) and property(ies). Summaries of site investigation results, including needed clean-up measures and monitoring requirements, are included in the appropriate environmental document (for additional guidance on environmental document types and their preparation, refer to the Standard Environmental Reference Home Page). Required mitigation and monitoring activities are documented in the Environmental Commitments Record (ECR). The DHWTS overseeing the work may write both the environmental document and ECR summaries, but if the environmental generalist or other personnel prepare them, the DHWTS must review the text for accuracy.

Project Design (PS&E)

Investigation of Low-Risk Sites and Properties

During PS&E (1 Phase) conduct site investigations for low-risk sites and properties that have not previously been addressed. For these sites and properties, adequate information to estimate impacts to cost, scope and schedule had to already be available from other sources at PA&ED to include in the environmental document. The site investigations conducted during PS&E should only be for the collection of additional information necessary to support the design work. Also prepare additional specialty reports as needed to fine-tune the remediation cost and schedule estimates for sites within the chosen alternative that cannot feasibly be avoided. Use the information that has been gathered to determine if remediation is necessary and who will remediate: the Department (or local agency, if applicable), property owner, or another RP.

PS&E Support

If it is determined that it is in the best interest of the state to perform remediation activities so that a transportation project can move forward, it will be necessary to make the remediation a project, obtain funding, and complete the remediation prior to construction of the transportation project. If this approach is not possible or reasonable in a given situation, remediation will occur as part of construction of the transportation project and standard special provisions (SSPs) or non-standard special provisions (NSSPs) must be prepared for the PS&E package. For Department and locally sponsored projects on the SHS, these are usually prepared by the DHWTS with assistance from the District Office Engineer and other technical specialists as needed. For local assistance projects off the SHS these are prepared by the local agency or their consultants. When preparing special provisions for remediation and the management of contamination and hazardous waste, review and verify information from site investigation documents and consider the following:

  • Project design and staging;
  • Media in which contamination exists (soil, water, soil gas);
  • Type of contaminants;
  • Extent of contamination (dimensional limits) and its relationship to the construction work that will occur;
  • Environmental pathways for migration of contamination;
  • Control of contaminated ground water and dust;
  • Waste management and disposal;
  • Regulatory approvals or permits;
  • Worker health and safety; and
  • Feasibility analysis of remediation strategies.

SSPs and NSSPs for the management of ADL in soil are required on a large percentage of projects. Design staff must work closely with their DHWTS to determine the most cost effective way to manage this soil considering the construction activities that are planned for the project. Districts that hold a DTSC variance for the management of hazardous waste levels of lead in soil can use this tool to reuse soil that would otherwise have to be disposed of in a Class I landfill. Local agencies can utilize the variances only if the project is on the SHS on a roadway listed in the original variance document issued by DTSC and the Department invokes the variance on the local agencies behalf. Additional information about ADL and the variances are found on the Department’s “Contaminants and Waste” internal website. This information is also available to non-Departmental staff at the Contaminants and Waste external website.

Chapter 18, of the Department Project Development Procedures Manual (PDPM), contains additional information regarding addressing contamination during project development and specifically during the design phase.

Right-Of-Way Acquisition

Property acquisition activities (2 Phase) occur concurrently with the Design phase. Department policy states that proposed new right of way for a project must be free of hazardous material before title to such property is transferred to the Department. Acquiring contaminated property creates permanent liability for the Department. The Department policy requires that ISAs and SIs be performed and are thorough enough to ensure that contaminated properties are identified and risks to the Department and the transportation project are quantified. The policy is documented in Project Delivery Directive 02 (PD-02) and can be found at the Department’s Contaminated Properties internal website. This information is also available to non-Departmental staff at the Contaminated Properties external website. The DHWTS documents the condition of properties that need to be acquired on the Hazardous Materials Disclosure Document - Acquisition (HMDD-A, Form ENV-0001-A). If avoidance of contaminated property is not possible, acquisition of easements rather than fee simple title may provide some legal protection from liability and is recommended. Easements should be considered whenever contamination is known or suspected unless rights to the subsurface estate are required.

The presence of contamination may greatly decrease the fair market value of any property being acquired and the nature and extent of contamination, remediation costs, and long-term liability must be taken into account when assessing property value. Contaminated property is acquired only when there is no other viable alternative for the project and all available measures to reduce liability are taken. Once the district decides to recommend acquisition of a contaminated property, the DHWTS documents the property condition and status on the HMDD-A, performs a risk analysis, and determines whether acquisition requires approval by the Department’s Chief Engineer. The Chief Engineer must approve acquisition of contaminated property when certain risk criteria are exceeded. When the risk criteria are not exceeded the acquisition decision is made at the district level. The criteria and a full explanation of the procedures for obtaining the Chief Engineer's approval are found on the Department’s Contaminated Properties internal website. This information is also available to non-Departmental staff at the Contaminated Properties external website. If the Chief Engineer’s approval is required, a Request for Approval of Acquisition of Contaminated Property (RACP, Form ENV-0002) must be prepared and submitted to the Chief, Division of Environmental Analysis. This document summarizes all that is known about the property condition such as contamination present, effect on property value, cost to the Department for cleanup of contamination, and potential liability due to the presence of contamination. The RACP form is completed by the Project Engineer with direct assistance from the DHWTS, Right of Way Agent, and Legal. When the Chief Engineer’s approval is not required for acquisition, the property condition and status must still be documented on the HMDD-A, and a risk analysis performed, but the decision to proceed or not is made at the district level. Complete instructions for complying with PD-02 are detailed in Appendix A: Contaminated Property Acquisition.

Information regarding responsibility for management and funding of hazardous material remediation activities for special funded and jointly funded projects is found on the Department’s Contaminated Properties internal website. This information is also available to non-Departmental staff at the Contaminated Properties external website.

Construction

Contamination issues to be addressed during construction will be documented in the Environmental Commitments Record (ECR). As these issues are addressed, the ECR must be updated accordingly.

Even when all appropriate procedures to identify and characterize contamination have been followed, it is still possible that the SSPs or NSSPs prepared for contamination management during construction are found to be inadequate once construction begins. This can occur because it is not always possible to predict what will be found in the subsurface based on limited sampling. In these cases, the Resident Engineer should consult with their Environmental Construction Liaison/Coordinators (ECL), the DHWTS, and the Division of Environmental Analysis, Hazardous Waste, Air, and Noise Office to develop a strategy and to prepare any needed contract change orders (CCOs).

Even when all appropriate procedures to identify and characterize contamination have been followed, it is still possible to discover previously unknown contamination and hazards during construction activities. Contamination that is unknown until exposure and discovery during construction will require sampling and testing prior to removal from the site and subsequent disposal. Health and Safety Code 25914.2 specifies that unanticipated hazardous substances (including hazardous waste) and/or asbestos encountered during construction cannot legally be tested and/or managed and removed by the prime contractor who discovered it. Hazardous substances and asbestos can only be managed by the prime contractor if this work was specifically included in the original contract documents. Therefore, a CCO cannot be used in these situations. The Department has an on-call Construction Emergency Response Contract (Department use only) managed by the Division of Environmental Analysis, Hazardous Waste, Air, and Noise Office that can be accessed to have appropriate testing and disposal performed for Department administered projects. Consult the "Unanticipated Hazardous Waste Decision Tree" below for the procedures to follow. Also see Section 7-1.06 Environmental Hazards and Safety Procedures of the Department's Construction Manual. Health and Safety Code 25914.2 also applies to all local agency projects. Therefore they need to have a mechanism similar to the Department’s Construction Emergency Contract available or be able to contract quickly on an emergency basis in order to avoid construction delays and their associated costs.

At the completion of construction, both the ECR and the Certificate of Environmental Compliance (CEC) should document completed actions, results, and any future/on-going reporting, monitoring, or remediation.

Unanticipated Contamination Decision Tree

Excess Parcel Disposal

After construction is completed there are often excess parcels remaining. For example, properties may have been needed as staging areas for construction, but are no longer necessary once the project is complete. Eventually these properties may be offered for sale. This cannot occur until hazardous materials clearance procedures have been conducted. The clearance procedures include evaluation by the DHWTS to determine whether there are hazardous materials, hazardous substances, hazardous wastes, or contamination on the property. This evaluation ensures that remediation for which the Department has responsibility is completed, full disclosure is provided to potential buyers, and that there is a baseline to protect against future claims based upon contamination. Contamination can result from a variety of sources such as the activities of the previous property owner, accidental spills, illegal dumping, or migration of contamination from neighboring properties. The DHWTS will perform an abbreviated ISA to review Department records and regulatory records if they exist. If warranted, a PSI will be performed to determine the actual property condition.

When enough information about the excess parcel has been collected to make a recommendation, or the property status needs to be documented, the DHWTS will complete a Hazardous Materials Disclosure Document-Disposal (HMDD-D) for the excess parcel. The property may not be offered for sale until a HMDD-D allowing sale is provided to Right of Way. The HMDD-D will certify one of the following three conditions:

  • The parcel is clear of hazardous materials and may be offered for sale; or
  • Hazardous materials exist on the property, but cleanup is not required pursuant to state or federal law and the property may be offered for sale with appropriate and full information disclosure regarding the nature and extent of the contamination; or
  • Hazardous materials exist/may exist on the property, further investigation or remediation is required, and the HMDD-D is an attachment to an Excess Land Hold Request. The Hold Request must show the Project Manager an estimated schedule for the investigation or remediation.

Sale is normally only recommended for contaminated excess parcels when the nature and extent of the contamination is well understood, the contamination is minimal and not a threat to public health and the environment, and remediation is not required by a regulatory agency.

When remediation is necessary before a property can be offered for sale, resources to complete the remediation including all support costs must be included in the right of way portion of the project work plan. In the event that work wasn’t properly resourced or the contaminated parcel is associated with a closed project, alternate resources will need to be acquired. It may be necessary to create a project for the sole purpose of designing and completing remediation before the parcel can be sold.

Maintenance and Owner-Operator Activities

Frequently, residual contamination remains on a property after the transportation project is complete. Contamination may be encapsulated or remediation systems may need to operate until cleanup goals are met, which could take years. After goals are reached, the regulatory agencies may require long-term monitoring of residual contaminants to ensure that they do not migrate to sensitive receptors. Department (or local agency) maintenance and owner-operator activities may be restricted at these locations. For example, monitoring wells must be protected from heavy equipment and engineered caps and encapsulated soils must not be excavated. Restrictions will remain in force until regulatory approval for removal of remediation systems and discontinuing monitoring is obtained. In the case of encapsulated soils or engineered caps, the restrictions are considered permanent. The purpose of these restrictions is to protect the remediation facilities as well as Department (or local agency) maintenance personnel, the public, and the environment. Examples of facilities that may require restrictions include:

  • Monitoring wells;
  • Engineered caps over contaminated soil;
  • Treatment systems; and
  • Encapsulated soils.

In these cases, measures must be taken to ensure that maintenance and owner-operator activities do not disrupt the remedial measures that have been put in place. Therefore, these conditions must be documented in the ECR and CEC. It is also recommended that these conditions be documented on as-builts, in the Uniform File System, and in the project history file.

CEQA CONSIDERATIONS FOR "NON-TRANSPORTATION PROJECT" ACTIVITIES

The Department may be required to perform site investigation and remediation activities which are not part of a transportation project (i.e., non-transportation project activities). In cases where these activities are required or ordered by a regulatory agency, the regulatory agency is responsible for preparation of the environmental document or determination. Since the required actions are only discretionary on the part of the regulatory agency, the regulatory agency determines the need for and accomplishes CEQA compliance, not the Department. In most instances regulatory agencies deem site investigation activities to not be subject to CEQA. However, they generally determine that remediation activities have a CEQA nexus. When the regulatory agency determines that there is such a nexus, they may prepare the necessary simple CEQA documents/determinations themselves. If a complex document is required they may require the Department, as the party responsible for the remediation, to prepare it.

APPENDIX A

Contaminated Property Acquisition (2.7MB) (3/2009)

ACRONYM LIST

Acronym
Definition
ADL
Aerially Deposited Lead
AHERA
Asbestos Hazard Emergency Response Act
APCD
Air Pollution Control District
AQMD
Air Quality Management District
ASTM
American Society for Testing and Materials
ATCM
Airborne Toxic Control Measures
CAA
Clean Air Act
CAL/OSHA
California Occupational Health and Safety Administration
CARB
California Air Resources Board
CCO
Contract Change Order
CCR
California Code of Regulations
CEC
Certificate of Environmental Compliance
CERCLA
Comprehensive Environmental Response, Compensation, & Liability Act
CIWMB
California Integrated Waste Management Board
CTC
California Transportation Commission
CUPA
Certified Unified Program Agency
CWA
Clean Water Act
DHWTS
District Hazardous Waste Technical Specialist
DLAE
District Local Assistance Engineer
DSI
Detailed Site Investigation
DTSC
Department of Toxic Substances Control
ECR
Environmental Commitments Record
ELAP
Environmental Laboratory Accreditation Program
FS
Feasibility Study
GIS
Geographical Information System
HMDD-A
Hazardous Materials Disclosure Document-Acquisition
HMDD-D
Hazardous Materials Disclosure Document-Disposal
ISA
Initial Site Assessment
LUST
Leaking Underground Storage Tank
MTBE
MethyL Tertiary Butyl Ether
NCSE
National Council for Science and the Environment
NESHAP
National Emissions Standards for Hazardous Air Pollutants
NOA
Naturally Occurring Asbestos
NPL
National Priority List
NPDES
National Pollution Discharge Elimination System
NPL
National Priorities List
NSSP
Non-Standard Special Provisions
PA
Participating Agency
PDPM
Project Development Procedures Manuel
PDS
Project Development Support
PDT
Project Delivery Team
PE
Professional Engineer
PEA
Preliminary Endangerment Assessment
PEAR
Preliminary Environmental Analysis Report
PES
Preliminary Environmental Scoping
PG
Professional Geologist
PID
Project Initiation Document
PSI
Preliminary Site Investigation
PSR
Project Study Report
RACP
Request for Approval of Acquisition of Contaminated Property
RAP
Remedial Action Plan
RAW
Remedial Action Workplan
RBCA
Risk Based Correction Action
RCRA
Resource Conservation Recovery Act
RFI
RCRA Facility Inspection
RFP
RCRA Facility Plan
RI
Remedial Investigation
RP
Responsible Party
RWQCB
Regional Water Quality Control Boards
SSP
Standard Special Provisions
SWRCB
State Water Resources Control Board
US EPA
United States Environmental Protection Agency
UST
Underground Storage Tank

 

(Last content update: 08/27/14, JH)