BUILDING TRANSIT PROJECTS WITHOUT ENVIRONMENTAL DELAYS

PREPARED FOR:

FEDERAL TRANSIT ADMINISTRATION

PREPARED BY:

METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY

&

ARCADIS U.S., INC.

.

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Overview – METRO Light Rail Expansion – Houston, TX

In 2007, The Metropolitan Transit Authority of Harris County (METRO) embarked on the mission to add

15.18 miles to its light rail system in Houston, TX. This entailed the acquisition of over 450 properties in

former and current industrial areas of downtown Houston. One major challenge for METRO was to

proactively put in place an aggressive environmental program to deal with a significant number of

contaminated properties in such a way as to not delay this $1+ B construction project. Environmental

problems in transit projects are mostly associated with excavation and this project has 111 miles of

public and private utility relocation, an underpass structure, 55 miles of roadway work, and 24 miles of

track work.

Deep excavation work can mean managing not only contaminated soils but also large volumes of

shallow contaminated ground water. The challenge is to have a media (soil & water) management

strategy that can allow quick response by the Owner and Contractors while complying with

environmental regulations regarding segregation, storage, sampling, and disposal of contaminated

media. METRO accomplished this with a well-planned and well-implemented environmental

remediation program that stayed ahead of the critical path on the construction schedule.

In 2008, METRO selected ARCADIS-US, Inc. and its team of Small Business Enterprise (SBE)

subcontractors as its Environmental Oversight Contractor. Additionally, METRO has worked closely with

the Texas Commission on Environmental Quality in Austin, TX to deal with the complex regulatory

closure issues associated with the transit project. These parties (METRO, ARCADIS, and TCEQ) are

collectively referred to as the Environmental Team.

What Aspects of a Project do Environmental Regulations Impact?

The answer is that environmental issues can impact “all” aspects of a project from real estate acquisition

to bringing the project out of the ground. A solid proactive environmental program can assist with

adjustments to conceptual rail alignments, adjustments of appraisals for contaminated property

acquisition, avoidance of worker safety issues throughout construction, as well as keeping the project on

schedule and avoiding costly construction delays. While underground environmental problems can be

described as “unknown” or “differing site conditions” in contractual agreements, the proper evaluation

Building Transit Projects Without

Environmental Delays

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and use of upfront “Due Diligence” information allows the environmental professionals to anticipate far

in advance many probable environmental actions. Specifically, worker safety and public safety issues are

the primary concerns followed by actual construction schedule management.

Balancing Environmental Encumbrances in Real Estate Transactions

Early project environmental planning steps such as Final Environmental Impact Statements (FEIS) are for

recognizing global project issues but do not deal with the acquisition of specific properties. Once the

project is approved and a Record of Decision handed down (if applicable) there are many positive

environmental lessons to integrate into the process to have a successful real estate acquisition program.

Plan ahead and require Due Diligence in the form of Phase I and Phase II Environmental Site

Assessments to determine any environmental encumbrance on the properties being acquired.

Begin Due Diligence 6 months in advance to ensure meeting the acquisition schedule.

Real Estate and environmental professionals should work together to mitigate the Owner’s

environmental risks associated with becoming the fee simple owner for environmentally

encumbered properties, i.e. avoid your organization from buying existing environmental

liabilities.

Real Estate, environmental professionals, and the legal department should work together to

ensure environmental mitigation language is included in written communication with the

property owner(s).

Utilize environmental professionals in face to face meetings with property owners to assist with

mitigating potential “fears” associated with environmental contamination.

In the event of Eminent Domain (ED), include an environmental expert in the steps of the ED

process.

Develop clear interdepartmental policies and procedures for environmental involvement

throughout the real estate process.

In many cases, METRO acquired “partial takes” or portions of properties wherein the “source” of a

contaminant release remained on the primary Owner’s property. In cases of active or inactive gas

stations, METRO would acquire a portion of the property containing only part of the fuel system. More

importantly, in the cases involving leaking petroleum storage tanks (LPSTs), a contaminated ground

water plume was often discovered beneath both the partial take and the primary property. Under the

Texas Administrative Code, the ownership of a tank system can default to the fee simple owner of the

property and, in many cases, could have defaulted to METRO through the acquisition process. METRO

sought clarification from the Texas Commission on Environmental Quality (TCEQ) on how the state laws

divide liability between two parties for a single ground water plume beneath two adjacent properties

created by METRO’s partial acquisition of a PST site. The basics of the resulting mutually agreeable

decision were:

Where METRO was acquiring properties containing portions or all of a fuel system, Real Estate

offers or Eminent Domain notices stated that METRO was not taking title to any aboveground or

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below ground [fuel] systems that could be a source of contamination. As a follow-up step,

METRO recorded this same language into the deeds.

METRO, through Due Diligence, provided the property owner an estimate of any environmental

encumbrance associated with previous releases that required remediation under Texas law.

METRO would voluntarily clean up contamination only within its acquisition in accordance with

applicable environmental statutes.

In most cases where METRO acquired all or portions of a PST system, METRO was not identified

as the owner/operator and, therefore, did not assume responsibility for previous releases and

ground water impacts.

At Petroleum Storage Tank (PST) sites, the application of these measures prevented METRO from

“chasing” and remediating contamination and systems on (or beyond) the original “source” properties,

as well as not assuming liabilities for contaminated ground water plumes that resulted from previous

releases on the “source” properties.

How to Avoid Costly Physical Remediation

To avoid unnecessary remediation, your environmental team must first understand that “One Size, Does

Not Fit All” and that the ultimate goal is to protect both human health and ecological receptors from

critical exposure. The use of science, engineering, and regulations to fully understand the effects of

chemicals of concern (COCs) and their exposure to both humans and ecological receptors is imperative

to define critical exposure. The key to avoiding unnecessary remediation is to engineer a plan to

eliminate exposure or use site-specific characteristics to evaluate the risks of actual exposure. Careful

consideration of the pathways for exposure and chemical identification will result in understanding the

concentrations of published generic risk or cleanup levels [known as Protective Concentration Levels

(PCLs) in Texas] which initially trigger “One Size, Fits All” remediation. However, one needs to look

beyond the published PCLs. Published PCLs for each COC are carefully categorized and calculated by

using toxicology to set the concentration limits for different

exposure pathways (i.e. residential, commercial, ingestion,

contact, inhalation, and ecological). The PCLs for each

exposure pathway are calculated using constants that are

based on average environmental characteristics, i.e. length

of exposure time, pH, groundwater permeability, average

human body weight, etc…. Upon understanding the

scientific criteria used to set a published PCL for each COC,

one can either perform remediation to remove the chemical

or reduce the chemical concentrations so that they are equal

to or less than the PCL in order to mitigate the exposure risk.

However, factors that determine actual exposures are not constant and are more complex than what

are available through published concentrations for PCLs. In Texas, there are various ways to use site-

specific data to re-calculate the published PCLs prior to submission to the state agency for review and

approval. A few common factors that influence the published PCL are soil pH, groundwater productivity,

thickness of affected media, and distance from affected soil to groundwater and surface water.

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Regulations between states differ in the way they approve changes to the PCLs. However, the scientific

basis for any changes is the same. Specific to Texas and to the Light Rail Expansion Project in Houston,

METRO’s environmental consultant was able to use data along each section of light rail to statistically

adjust the State background concentrations for certain heavy metals for individual corridors. Thus,

adjusting PCLs for certain metals upward therein reduced the number of sites that required physical

removal by the state agency. Adjusting the PCLs to anthropogenic (man-made) background

concentrations proved valuable in saving money and remediation efforts along with unnecessary

disposal of excess construction soil. It is worthy to note that even where the reported concentrations

of COCs are above background concentrations and/or an adjusted PCL, the environmental professional

could offer an opinion that the individual property lacked evidence of a known source or historical

releases allowing METRO to avoid the regulatory closure process. Professional opinions provide

sensible ways of documenting anomalous data that are either not reproducible or were part of a

historical release. Institutional / engineering controls can be used to mitigate remediation but can limit

the use of the property. However, often times, these limitations do not restrict the intended property

use. In Houston, a few examples of these controls used on the Light Rail Expansion Project are:

1.) Use of an impervious cap as an engineering control to eliminate contact with the

contaminants (i.e. parking lots)

2.) Use of an institutional control, known as a Municipal Settings Designation, to restrict the use

of groundwater as “potable” to eliminate the ingestion pathway.

Understanding “One Size, Does not Fit All” and the use of science, engineering, and the intent of the

regulations on your project will limit or avoid remediation altogether while remaining protective of both

human health and the environment.

Planning and Implementing a Successful Environmental Program

As discussed earlier, environmental involvement begins at the project planning phase (Environmental

Impact Statements). Once the Final Environmental Impact Statement (FEIS) is in place, it is time to

structure the environmental program for the project beginning with real estate acquisitions. Real estate

acquisitions for transit projects will have a myriad of stakeholders such as the Federal Transit

Administration, local city/county governmental agencies, the Department of Transportation, railroads,

public and private utility companies, as well as the public community organizations. The environmental

program must be structured and communicated, i.e. procedures and processes (flow charts) to guide

multiple agency departments to maintain environmental risk management throughout the project. This

may include an environmental education process for certain interagency departments that do not deal

with these issues in their day to day functions.

Another key strategic action by METRO and its environmental owner’s representative was to meet with

the state agency early in the project and request that a senior team at the TCEQ be assigned to the

project for manpower commitment and consistencies across the regulatory landscape. The TCEQ agreed

and constant communication has resulted in a very successful and compliant environmental program.

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Stakeholder Management

In most transit projects, a major stakeholder will be taking ownership of newly dedicated Right-of-Way

and public utilities. In METRO’s case, this stakeholder was the City of Houston. Therefore, this scenario

dictated a complex interagency agreement and a tremendous coordination effort beginning during the

planning phase that continues through work acceptance after construction, which equates to years of

collaboration. Therefore, METRO’s environmental mission was to consider the environmental risks that

the City of Houston would scrutinize prior to acceptance of right-of-ways, easements, and public

utilities.

Other agency stakeholders are the Federal Transit Administration, the state regulatory agency (TCEQ),

the regional department of transportation

(TXDoT), flood control districts, incorporated

cities within the construction footprint,

university systems, railroads, and others.

Because many operate independent of each

other, your environmental team must

understand the guidelines under which each

operate regarding environmental requirements

and expectations in order to avoid

administrative delays. METRO accomplished this

by engaging its Owner’s Representative and putting together communication processes to understand

what each stakeholder needed ahead of deliverables.

Last, but certainly not the least, are the public community organizations. A strong public relations

program with consistent communications was developed by METRO to avoid misunderstandings at City

Hall. This included an environmental education program and involvement by environmental

professionals at public meetings, requisite public hearings, and even individual property owners when

necessary. Environmental representation in many of these public and private forums assisted with the

“fears” and misunderstandings that may be perceived by the public regarding environmental issues.

Environmental Staying Ahead of Construction

The first priority for the assigned environmental professionals is that construction is driving the project

and not the other way around, as often mistakenly occurs on some projects. Key attributes of the

Environmental Team that drive avoidance of environmental delays during construction are anticipation

and flexibility. METRO’s transit project was a design/build approach. Therefore, the project received

incremental approvals by the FTA through various Letters of No Prejudice (LONPs). Because of this

approach, the overall project baseline schedule was

subject to almost constant revisions early in the

project. The environmental team had to be

knowledgeable about and react to these schedule

revisions in order to re-prioritize the contaminated

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areas that were on the latest critical path. METRO also requested and received this same flexibility and

re-prioritization from the TCEQ, the state regulatory agency that reviewed and approved regulatory

closures for the contaminated properties.

Evaluating Due Diligence data and anticipating future construction in known contaminated areas played

a key role in the environmental team staying ahead of the construction. An example of this was to

identify deep excavations in contaminated ground water areas ahead of the construction in order to

have the manpower and equipment available to manage contaminated soils and water in lieu of “stop

work” scenarios until the environmental team could react.

Data Management

Horizontal projects involving hundreds of properties to be acquired generate a tremendous amount of

environmental data, reports, and Agency communications. This is not to mention the amount of

construction information and communications generated over a period of 5 years. METRO recognized

the need to have a web-based data base to effectively manage, search for, and retrieve data over the

life of the project. The web-based tool, ORION¹ was selected by METRO and contains a digital library by

corridor and by individual parcels, as well as Geographic Information System (GIS) maps by corridor

which contain thousands of chemical data points for soils and groundwater and that link the data points

back to the respective and applicable investigative documents in the digital library. This database also

holds thousands of daily construction inspection reports catalogued by station along the corridors.

Presently, the database contains over 85 GB of data and over 16,000 documents that detail the

chronology of the project.

ORION Website GIS Excerpts

What is the Experience Profile Needed when Selecting an Owner’s Environmental Representative?

As discussed above, environmental expertise is essential for mega projects beginning at the planning

phase. A well rounded environmental team is needed with experience beyond conventional

environmental consulting and remediation for your Owner’s Representative to be effective and to avoid

delays along the way. Some of these experience profiles include:

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Expertise Involvement by Environmental Professionals

Real Estate Acquisition Process 1. Phase I and Phase II due diligence 2. Identify and defend Categorical Exclusions 3. Provide cost estimates for environmental

encumbrances against market value 4. Work with legal group to develop language

in offer letters and eminent domain filings to avoid taking title to underground systems and contaminant releases

5. Expert witnessing at eminent domain hearings and trials

6. Prepare presentations for public meetings and public hearings

7. Meet with individual property owners to help secure the negotiated sale

Regulatory Compliance 1. Solid relationship with state regulators 2. Expertise in state regulatory programs 3. Statistical modeling and evaluation of

exposure pathway analysis 4. Municipal Setting Designations (TX

Specific) 5. Oversight of contractor’s field reporting

and documentation to meet regulatory requirements

Risk Management 1. Long and short term environmental risk management evaluation support for the Owner

Construction 1. Knowledge of construction methodologies 2. Material compatibility in contaminated

areas 3. Schedule and critical path analyses 4. Field inspection 5. Remedial design and oversight 6. Health & Safety documents 7. Contaminated soil and ground water

management and oversight 8. Transportation and disposal

Contracts 1. Assist with “differing site conditions” analyses by contractors

2. Assist in contractual correspondence with contractor regarding environmental scope of work and contract requirements

3. Contractor compliance with federal cost reimbursable guidelines

4. Contractor compliance with federal timekeeping guidelines

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Expertise Involvement by Environmental Professionals

Contracts (Cont’d) 5. Compliance of environmental related insurance requirements

Professional Licenses and Certificates (TX specific) 1. Professional Engineers 2. Professional Geologists/Geoscientists 3. Corrective Action Project Managers 4. Professional Geologist/Geoscience

Certifications (state specific) 5. Construction/Remediation Managers 6. Certified Asbestos Inspectors 7. Certified Asbestos Supervisors

Summary

Because of the solid, proactive environmental program, METRO estimates that over $30 M in

environmentally related costs have been saved under their cost reimbursable environmental

remediation contract. Also and while not quantifiable, the absence of environmentally related

construction delays over five (5) years could also be recorded as a huge cost savings number in itself. To

date, the environmental team has achieved closure status on over 96% of the regulated properties that

were acquired and do not anticipate any problems or issues in closing the remaining balance. For

information regarding this paper, feel free to contact one of the following senior personnel:

METRO Contact ARCADIS Contact TCEQ Contact

Mr. Darrell Burtner Mr. Shannon Rives Mr. Mark Riggle

Senior Program Director Principle-in-Charge Senior Project Manager

METRO Rail Expansion ARCADIS U.S., Inc. TCEQ Remediation Division

Ph: 817.773.3714 Ph: 281.727.9100 Ph: 512.239.3044

Email: darrell.burtner@ridemetro.org Email: shannon.rives@arcadis-us.com Email: mark.riggle@tceq.texas.gov

¹ ORION is a web-based management tool developed and owned by ARCADIS U.S., Inc.