Projects that include purchase of new right-of-way, excavation, or demolition or modification of existing structures should be evaluated to determine whether there is any known or potential hazardous waste within the proposed project limits. Where hazardous substances are involved, adequate protection must be provided to employees, workers, and the community prior to, during, and after construction. Typical materials that may constitute hazardous waste include pesticides, organic compounds, heavy metals, industrial waste, or other compounds injurious to human health and the environment.
Assessment of the potential presence of hazardous materials is conducted in two stages referred to as phases I and II. Phase I investigations are based on documentary research and visual observation to identify concerns and evaluate the likelihood that hazardous substances have affected the property. Phase II includes the on-site collection of soil or water samples and completion of laboratory analysis to confirm that contamination is present. Phase I generally consists of historical research to evaluate current and past land uses and operations with a focus on what hazardous substances may have been introduced into the soil or water (including groundwater at the site); a search of regulatory records to evaluate whether the site or adjacent properties are listed in files as having violations, recorded hazardous substances releases or incidents, or a history of storing, handling, using, transporting, or disposing of hazardous substances; physical description of the soil geology and of surface water and groundwater, in order to evaluate the potential for migration of contaminants from the source to another property; and a site walk to observe the site conditions and operations as well as those of the neighboring properties. Phase II is a specifically designed sampling and analysis program that effectively addresses the concerns raised in the Phase I study. Phase II should be designed to collect sufficient data to establish that a valid concern exists and to indicate what level of remediation may be required to address the concern. The American Society for Testing and Materials (ASTM) has developed a standard for completion of Phase I and Phase II investigations.
Resource Conservation and Recovery Act (RCRA). The Resource Conservation and Recovery Act was enacted in 1974, and amended in 1984, to address growing concerns related to disposal of hazardous and nonhazardous waste. RCRA requires states to develop EPA-approved hazardous waste management plans and encourages options other than landfill disposal for final disposition of hazardous waste. A major objective of RCRA is to conserve and protect environmental resources, including the land resource that is lost to other uses when it is filled with solid waste. RCRA established
• A system for defining hazardous waste
• A method to determine whether hazardous waste has been generated
• Guidelines on how to store, handle, or treat hazardous waste
• Standards for proper disposal of waste
• Methods to track hazardous waste to its ultimate disposition
Resource recovery is an important area mandated by RCRA, and covers several materials used in highway construction, such as recycled glass, scrap tires, and recycled construction materials. Some hazardous materials can also be treated and recycled for use in highway construction. RCRA also covers issues of “use constituting disposal” for projects that seek to use embankments or road subbase as disposal areas for hazardous waste, if suitability can be demonstrated. Some of the research and demonstration projects in the area of resource recovery that are applicable to highways are discussed later in this chapter.
Toxic Substances Control Act (TSCA). The Toxic Substances Control Act sets the policy for testing suspected toxic substances to evaluate persistence in the environment and their effect on humans (acute toxicity levels and/or carcinogenic effects). TSCA also regulates toxic substances not regulated by RCRA such as asbestos-containing materials (ACM) and polychlorinated biphenyls (PCBs), both of which may be found in existing highway facilities.
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The Comprehensive Environmental Response, Compensation, and Liability Act was passed in 1980. It established national policy and procedures for identifying and remediating sites that are found to be contaminated with hazardous substances, and identified procedures for containing and removing releases of hazardous substances. CERCLA was amended and expanded by the Superfund Amendments and Reauthorization Act of 1986 (SARA). CERCLA established a hazard ranking system sites. The highest ranked sites have been placed on the National Priorities List (NPL) and are eligible for funding for environmental cleanup under CERCLA.
CERCLA provides for “joint and several liability,” which means that any party identified as responsible for contamination of a site is considered equally responsible for cleanup costs with all other parties identified, and can be held 100 percent financially responsible in the event that other parties do not pay. Recovering costs from nonpaying parties is then the burden of the paying party and is pursued through the judicial system. Potentially responsible parties (PRPs) may be current or past owners and/or operators of a site where hazardous substances have been released, or persons who arranged for disposal or treatment of hazardous substances at the site. In addition, any person who knowingly accepted hazardous substances for transport to the site may be considered a PRP. Liability under CERCLA may also be retroactive to an era when the practices leading to the contamination were accepted industry standards. Petroleum is excluded from CERCLA unless mixed with other hazardous substances, in which case the entire mixture is considered hazardous. Provisions have been established under SARA for an Underground Storage Tank Trust Fund that will address petroleum releases.
A key concept mandated by CERCLA is “cradle-to-grave” responsibility for hazardous substances. Liability for a hazardous substance begins when it is accepted on the site or formulated at the site and continues after it is disposed off-site at a legally permitted facility.
CERCLA is important to the highway planning process primarily in the acquisition of right-of-way. Accepting financial liability for contaminated property may affect the financial feasibility of a project. In addition, if significant cleanup must take place before highway construction can begin, substantial delays to the project may result. The presence of contaminated materials along the alignment of a proposed highway alignment may be a crucial element in determining whether it is viable route. Careful evaluation of the nature and extent of the contamination as well as the cleanup alternatives, costs, schedule, and ongoing liability is warranted on all sites within a planned right-of-way purchase. Title III of SARA established mandatory federal standards for community right-to-know programs, and for reporting toxic chemical release by manufacturers.
