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.

Clean Water Act (33 USC §1251 et seq. CWA). The CWA was enacted in 1977 as amend­ments to the Federal Water Pollution Control Act of 1972. Its stated goal is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The CWA gave EPA the authority to implement pollution control programs such as setting wastewater standards for industry. The CWA also contained requirements to set water quality standards

for all contaminants in surface waters, and provided funding for the construction of sewage treatment plants under the construction grants program. It also recognized the need for planning to address the critical problems posed by nonpoint source pollution.

One of the mechanisms to achieve the objectives of the CWA is the prohibition of dis­charges, including dredge and fill material, into navigable waters. The CWA made it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit was obtained under its provisions. Sections 402 and 404 of the CWA establish two complementary permit programs through which appropriate federal or state officials may authorize the discharge of pollutants.

Section 402 of the CWA has led to development of the National Pollutant Discharge Elimination System (NPDES) under which permits are issued for the discharge of material that is other than dredge or fill, including storm water runoff from highway facilities into navigable waters.

Under subsections 402(p)(2)(C) and (D) of the CWA, storm water permits are neces­sary for discharges from a municipal separate storm sewer system serving an incorporated or unincorporated area with a population over 100,000. The EPA definition of municipal separate storm sewer is “a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade chan­nels, or storm drains).” The definition goes on to specify that the system of conveyances may be owned by any of a number of types of municipal governing bodies and specifically includes states, that the conveyances must be specifically designed for the purpose of collecting or conveying storm water, and that they are not to be part of a combined sewer or part of a publicly owned treatment works (POTW).

Section 404 of the CWA has led to the development of a permit program adminis­tered by the USACOE for the deposition of dredged or fill materials into navigable waters. The definition of navigable waters has been contested in several recent Supreme Court decisions that have begun to limit the reach of the CWA permit authority in wet­lands to areas that have a significant nexus with navigable waters. In June 2007, the EPA and USACOE issued agency guidance regarding CWA jurisdiction following two of these recent decisions the consolidated cases Rapanos v. United States and Carabell v. United States [126 S. Ct. 2208 (2006)].

States often have overlapping jurisdiction with the USACOE regarding permitting of actions within navigable waters. State permits related to navigation and wetland encroach­ment are common and need to be taken into account when developing a project. State pro­grams are usually more restrictive, with a more expanded definition of wetland boundaries or a regulated buffer zone. In two states—Michigan and New Jersey—some permitting authority has been ceded to the state, simplifying the process.

The CWA prohibits storm waters from being used to transport or collect wastes and requires that standards for water pollution be established that do not diminish the uses of the water. EPA has the authority to develop a framework of regulation that can be fully del­egated to states once the EPA has approved their regulatory program. The CWA requires states to establish a policy of nondegradation that protects and preserves water (J. T. Dufour, California Environmental Compliance Handbook, California Chamber of Commerce, Sacramento, 1993, pp. 72-74).

In the preamble of the November 1990 amendments to the CWA, EPA explains its deci­sion to include state-owned highways as municipal separate storm sewers. EPA identifies dis­charges from state highways as a significant source of runoff and pollutants and as one of the “issues and concerns of greatest importance to the public” (Federal Register, Part II, Environmental Protection Agency 40 CFR 122, 123, and 124, November 16, 1990, p. 48039).

To avoid the problems associated with multiple permittees for systemwide discharges, the CWA regulations include a method whereby interconnected systems owned and oper­ated by local agencies and state-owned highways in areas of medium to high population may be combined into a single permit. The regulations allow the state transportation agency to be named as a copermittee in a systemwide permit, or to be named in a separate municipal permit. (E. M. Jennings, “Coverage of State Highways under Municipal Storm Water Permits,” Memorandum, Office of Chief Counsel, California State Water Resources Control Board, Sacramento, November 2, 1992, p. 31.)

Storm water systems owned by state highway departments in low-population areas (under 100,000) are not required to be permitted. Appendixes to Part 122 indicate the incor­porated areas and unincorporated counties in the United States with sufficient population to require municipal storm water permits. This information is shown in Table 1.10.

Application requirements for a group permit for discharges from large and medium municipal storm sewers fall into two parts. Also, an annual report must be submitted, as dis­cussed later.

Storm Water Permits for Construction. EPA in 1990 established final regulations for controlling storm water runoff from specific categories of industries and activities (40 CFR 122, 123, and 124). Any discharger of, or person who proposes to discharge, a waste other than to a sewer system, or changes the character of a current discharge, is required to report this activity to the local enforcement agency (Dufour, op. cit., p. 75). Once reported, the agency will evaluate the discharge and may

• Issue waste discharge requirements.

• Waive discharge requirements for insignificant discharges such as well testing or con­struction dewatering (no waiver is permitted if the discharge is to surface waters).

• Prohibit the discharge if sufficiently protective discharge requirements cannot be met by the discharger.

Discharge requirements are issued through an NPDES permit that specifies conditions the discharger must meet. The conditions are based on the established water quality objec­tives and the capacity of the existing storm water drainage system or receiving waters to assimilate the discharge. Discharge limitations are usually expressed as a combination of quantitative and procedural specifications. CWA provides for three types of NPDES per­mits: individual, group, and general. Issuance of waste discharge requirements must be noticed for public comment and approved at a hearing of the local authority (Ibid., p. 74).

The primary industrial category in the regulation relevant to building and maintaining highways is “construction activities.” Construction activities, in this context, include clearing, grading, and excavating that result in the disturbance of 5 acres or more of land that is not part of a larger (nonhighway) construction project. Construction sites were tar­geted because studies showed that the runoff from construction sites has high potential for serious water quality impacts. Sediment runoff from construction sites may be 10 to 20 times that from agricultural lands. Non-point-source pollutants from construction sites include sediment, metals, oil and grease, nitrates, phosphates, and pesticides.

To obtain an NPDES construction permit, a notice of intent must first be filed request­ing permit coverage at least 48 hours before construction begins. The NOI contains the following information:

1. Owner of the site (legal name and address) and contact person’s name, title, and tele­phone number. This entity must have control over construction plans and specifications, the ability to make changes, and day-to-day operational control.

2. Construction site information—whether the construction is part of a larger project or the portion of the site that is impervious both before and after construction activities. Site location must be provided as latitude and longitude. Indicate whether endangered or threatened species or designated critical habitats are present, as well as whether the project is on Indian Country Lands.

3. Scheduled beginning and ending dates of construction.

4. Identification of the receiving body of water, and storm water drainage information including a site map.

5. Type of construction activity: transportation should be indicated if the project is a road­way; utilities should be indicated for the installations of sewer, electric, and telephone systems.

6. Material handling and management practices indicating the type of material to be stored and handled on site and the management practices to be used to control storm water pollution.

7. Regulatory status of the site, including approval status of the erosion or sediment control plan.

8. Signature of the owner of the site certifying that the information is accurate.

Most statewide NPDES permits for general construction activities require the permit holder to develop and implement a storm water pollution prevention plan (SWPPP) using either best available technology economically achievable (BAT), best conventional tech­nology (BCT), or best management practices (BMPs) to control pollutant discharge both during and after construction activities. Once prepared, the SWPPP will be maintained at the construction site by the highway department representative and made available on request by the local enforcement agency. All contractors and subcontractors working at the site are responsible for implementing the SWPPP. The SWPPP will generally include the following components:

1. Location, including a 1/4-mi vicinity map that shows nearby surface water bodies, drainage systems, wells, general topography, and location where storm water from the construction activities will be discharged, including MS4s.

2. A site map that indicates the total site area and total area to be disturbed. This map should indicate the location of the control practices to be implemented, areas where wastes and soils will be stored, drainage patterns for the site both before and after con­struction activity, areas of soil disturbance, areas of surface water, potential soil ero­sion areas, existing and planned paved areas, vehicle storage areas, areas of existing vegetation, and areas of postconstruction controls.

3. A narrative description of the construction site, project, and activities. This should include a description of the fill material and native soils at the construction site and the percentage of site surface area that is impervious both before and after construction activities.

4. A narrative description of toxic material used, treated, or disposed of at the construction site.

5. Identification of potential sources of storm water pollution, and name of receiving water.

6. Proposed controls and best management practices during construction, including description of

• State and local erosion sediment control requirements

• Source control practices intended to minimize contact between the construction equipment and materials and the storm water being discharged

• Erosion and sediment control procedures to be implemented

• Plan to eliminate or reduce discharge of other materials into the storm water

7. Proposed postconstruction waste management and disposal activities and planned controls, including a description of state and local erosion and sediment postclosure control requirements.

8. Estimated runoff coefficient for the site, estimated increase in impervious area follow­ing the construction, nature of fill, soil data, and quality of discharge.

9. List of the contractors and their subcontractors who will be working at the construction site.

10. Employee training.

11. Maintenance, inspection, and repair activities.

Control measures for sediment include grading restrictions, runoff diversion, application of straw bales and filter fabric, revegetation requirements, and retention basins. Control measures for other pollutants include roof drains, infiltration trenches, grassy swales to detain storm water to allow sediments to settle out, oil/grit separa­tors, detention basins, and proper management practices such as the proper applica­tion of fertilizers and pesticides.

Another approach used to implement the NPDES program for state highway agencies is to issue comprehensive permits for all relevant highway construction, maintenance, and operations activities in areas meeting the population requirements outlined in 40 CFR 122.26. The benefit of a comprehensive permit is the management efficiency of adminis­tering the permit from both the regulatory agency and highway department perspectives.

In California, for instance, the California Regional Water Quality Control Board (RWQCB) is responsible for issuing storm water discharge permits. The RWQCB in the San Francisco Bay area has issued a comprehensive NPDES permit for storm water dis­charged directly or through municipal storm drain systems to lakes, water supply reser­voirs, groundwaters, the Pacific Ocean, San Francisco Bay, San Pablo Bay, Suisun Bay, the Sacramento River Delta, or tributary streams or watercourses and contiguous water bodies in the San Francisco Bay region (District 4 and portions of District 10 of the California Department of Transportation, or Caltrans).

Provisions of the permit cover maintenance operations and include requirements to submit plans for maintenance activities that affect storm water discharges and to improve practices that will result in reduction of pollutants in discharges. Road sweeping plans, storm drains, catch basins, inlet and channel maintenance, and vegetation control plans are required. Caltrans must prepare storm water pollution prevention plans for maintenance facilities that cover such activities as vehicle and equipment maintenance, cleaning, fuel­ing practices, and storage and handling of construction materials, fertilizers, pesticides, paints, solvents, and other chemicals.

Under the provisions of the permit, Caltrans must rank construction activities on the basis of their potential impacts on receiving waters from pollutants in storm water dis­charges. Plans must be developed for erosion control, chemical and waste management, and postconstruction permanent features. Training is a key component of these plans.

The permit also encompasses permanent control measures for the management of storm water draining from Caltrans rights-of-way in areas meeting the population criteria. Consideration must be given to high-risk areas where spills may occur and must include a plan to reduce the pollutants discharged into the system over time. This portion of the permit requires Caltrans to develop mechanisms to control illegal dumping, to respond to accidental discharges, and to identify and control procedures for discharge in a category not expressly prohibited by the permit.

The RWQCB included specific provisions to assist in meeting water quality goals. For example, requirements of the permit include specific measures to reduce the mass load of copper in storm water discharges.

Monitoring plans and annual reports are also required in the NPDES permit and are gen­erally consistent with these provisions in standard construction and/or municipal storm water permits.

Sustainable storm water management practices have been evolving over the last 20 years, but it has been only during the last decade that the movement has gained momentum and designers are looking toward best management practice and low impact design solutions to storm water issues. These design concepts use the natural capacity of the environment to detain, filter, and reduce (through evaporation and transpiration) the runoff from a roadway facility. Relying on these natural systems, rather than engineered water conveyance and discharge infrastructure, can

• Reduce regulatory burden and time in gaining approval for the project.

• Improve the function of treatment plant—reduce combine sewer outfills.

• Improve the environment—using design measures to create wetlands and other habitat.

• Gain community buy-in.

• Reduce costs.

Wetlands Involvement (Executive Order 11990). Under Executive Order 11990, the fol­lowing procedures must be followed for any federal action that involves wetlands:

• An opportunity for early public involvement must be provided for actions involving wetlands. For those actions requiring either a FONSI or an EIS, any notices for a public hearing, or an opportunity for a hearing, must indicate if any alternatives are located in wetlands. At any hearing, the location of wetlands must be identified. A newspaper notice inviting written comments must be published prior to issuance of a categorical exclusion.

• Alternatives that would avoid wetlands must be considered, and if avoidance is not possible, measures to minimize harm to wetlands must be included in the action. Documentation of these avoidance requirements must be included in an EA or EIS.

• A wetlands-only-practicable-alternative finding must be prepared for actions requiring a FONSI or an EIS (FHWA Technical Advisory T6640.8A).

Floodplain Involvement (Executive Order 11988). Executive Order 11988 require addi­tional steps in the environmental review process for actions that encroach on floodplains. Specifically, the public must be given the opportunity for early review and comment, and notices must reference potential encroachments on the base floodplain. In addition, floodplain-only-practicable-alternative finding must be prepared for actions involving a significant encroachment (see FHWA Technical Advisory T6640.8A). This finding must be included in the final environmental document.

A floodplain evaluation must be prepared and summarized in the environmental docu­ment in accordance with federal regulation (23 CFR 650, Subpart A). This floodplain eval­uation should contain a project description, including a map of the project showing the base floodplain and all project encroachments, as well as alternatives to encroachment. A dis­cussion should be provided of the practicality of alternatives that would avoid longitudinal or significant encroachments.

The floodplain evaluation should be summarized in the EA or EIS. The portions of the evaluation pertaining to fish and wildlife, vegetation, wetlands, growth inducement, etc., are to be included in the respective sections of the EA or EIS. Summaries involving flood­plains in general, as well as hydraulics and risk, are to be included in a section entitled Floodplains.

Safe Drinking Water Act. The Safe Drinking Water Act (SDWA) was enacted in 1974 to protect the nation’s drinking water supply and protect public health through appropriate water treatment technologies. The SDWA applies to all of the more than 160,000 public water sys­tems in the United States. SDWA establishes maximum contaminant levels (MCLs), or stan­dards for the maximum safe levels of specific constituents in potable water. Important to highway engineers is the provision of SWDA that mandates protection of sources of drinking water. The SDWA requires the protection of drinking water and its sources: rivers, lakes, reservoirs, springs, and groundwater wells. The location of these resources, therefore, becomes an early consideration in the siteing and design phases of a project.

Federal Endangered Species Act. The Federal Endangered Species Act of 1973 (16 USC §§1531-1543) provides a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved. It also provides a program for the con­servation of such endangered and threatened species. Section 7 of the act requires each fed­eral agency, in consultation with the Secretary of the Department of the Interior, to ensure that actions authorized, funded, or carried out by a federal agency do not jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species unless such agency has been granted an exemption for such action.

For federal highway projects, a request is made to the U. S. Fish and Wildlife Service (FWS) regarding whether any species listed or proposed as endangered are present in the project area. If so, a biological assessment must be completed and reviewed by the FWS. The FWS will make a determination as to the impacts on critical habitat or on the species itself and whether the impacts can be mitigated or avoided. An exemption from the Endangered Species Act must be obtained where a project would result in impacts to endangered species.

The level of involvement with the endangered species process can vary widely from project to project, but will generally involve the following steps:

• Establish an area of potential environmental impact (APEI) and potential for conflict with endangered species.

• Once preliminary alternatives are selected, determine whether a request for a species list from the FWS is required and then request a list, through FHWA, if required.

• Perform and document a biological assessment.

• If there are no species present or there will be no effect, obtain FWS concurrence through FHWA before circulating the draft environmental document under NEPA.

• If the preferred alternative affects species, request conference or consultation with the FWS through FHWA, which must be completed before the final environmental docu­ment under NEPA can be approved.

Rivers and Harbors Act. The Rivers and Harbors Act of 1899 (33 USC 401 et seq. RHA) was enacted to protect navigation and the navigable capacity of the nation’s waters. Two provisions of the act have to potential to significantly affect highway projects proposed in or around U. S. harbors or rivers are

• Section 9 of the RHA, which requires a permit for the construction of bridges or cause­ways across navigable waters of the United States

• Section 10 of the RHA, which requires a permit for various types of work performed in navigable waters, including stream channelization, excavation, and filling

The permit jurisdiction is divided between two agencies. The Section 9 bridge permit is the responsibility of the USGS. Section 10 for construction activities performed in the water is within the jurisdiction of the USACOE. Although often issued together, this permit has independence from a permit issued under Section 404 of the Clean Water Act.