Common use of Hazardous Substances Management Clause in Contracts

Hazardous Substances Management. (a) Not later than 150 days prior to the projected Service Commencement Date, the Concessionaire shall prepare and submit to the Department for its approval, not to be unreasonably withheld or delayed, a Hazardous Substances management plan describing a cost- effective approach to Hazardous Substances management in connection with the operations, maintenance and management of the HOT Lanes Project, and any construction activity relating to Concessionaire Project Enhancements during the Operating Period. Such management plans shall comply with applicable Law, Regulatory Approvals, Technical Requirements, and any multi-agency agreements the Department may have related to hazardous material incident response, each as in effect from time to time. (b) The Concessionaire shall review the Hazardous Substances management plans annually with the Department and make changes, subject to the Department’s prior approval, not to be unreasonably withheld or delayed, as necessary to respond to changes in Law, Regulatory Approvals, industry practices and standards, and circumstances affecting the Project, as the case may be. The Hazardous Substances management plans shall address contamination encountered, impacted, caused by or occurring in connection with any work or activity of or on behalf of the Concessionaire, as well as the investigation and remediation of such contamination. The Concessionaire shall comply with the procedures and requirements set forth in the approved Hazardous Substances management plan and as required by the Technical Requirements. (c) If during the Operating Period, the Concessionaire encounters Hazardous Substances within the Project Right of Way or the HOT Lanes Right of Way that under applicable Law or requirement of a regulatory agency must be handled, stored, monitored, treated, disposed of, removed, remediated or transported (collectively “Remedial Action”), the Concessionaire shall promptly notify the Department and shall proceed and act in accordance with the appropriate Hazardous Substances management plan. Such actions shall include, but not be limited to, (i) conducting such further investigations as may be necessary or appropriate to determine the nature and extent of the Hazardous Substances, (ii) taking reasonable steps, including in the case of excavation, construction, reconstruction or rehabilitation, modifications and/or construction techniques, to avoid or minimize excavation or dewatering in areas with Hazardous Substances, (iii) preparing and obtaining necessary Regulatory Approvals for remedial action plans, including Department approval, and (iv) carrying out the remedial action plan, including, as necessary, off-site disposal of the Hazardous Substances. (d) Before any remedial action is taken that would inhibit the Department’s ability to ascertain the nature and extent of the contamination, the Concessionaire shall afford the Department the opportunity to inspect areas and locations containing Hazardous Substances that must be remediated; provided, that in the case of a sudden release of Hazardous Substances the Concessionaire may take the minimum action necessary to stabilize and contain the release without prior notice or inspection, but shall immediately notify the Department of the sudden release and its location. (e) The Concessionaire shall obtain all Regulatory Approvals relating to remedial work, including federal and State surface water and groundwater discharge permits and permits for recycling or reuse of Hazardous Substances. The Concessionaire shall be solely responsible for compliance with such Regulatory Approvals and applicable Environmental Laws concerning or relating to Hazardous Substances. In carrying out remedial action to be paid by the Department, the Concessionaire shall take such steps and actions as are required to protect and preserve the Department’s potential claims of contribution and indemnity, statutory or otherwise, against potentially responsible parties. (f) The Concessionaire shall bear all costs and expenses of preparing and complying with the Hazardous Substances management plans and remedial action plans, of complying with Law and obtaining and complying with Regulatory Approvals pertaining to Hazardous Substances, and otherwise of carrying out remedial action, except as otherwise provided by Section 8.11(h). (g) Except for any Hazardous Substances that are the subject of the Concessionaire’s indemnity in Section 14.03, the Concessionaire shall not be considered the generator of Hazardous Substances located within the Project Right of Way owned by the Department as of the Agreement Date. The Concessionaire shall be considered the generator of any Hazardous Substances that are the subject of the Concessionaire’s indemnity in Section 14.03. Except with respect to Hazardous Substances that are the subject of the Concessionaire’s indemnity in Section 14.03, if the Concessionaire disposes of Hazardous Substances, the Concessionaire (i) shall use an EPA identification number or other appropriate legal device obtained by, and carried in the name of, the Department or another Person designated by the Department, and (ii) shall not be required to execute any Hazardous Substance manifests as a “generator”. (h) The Department shall reimburse Concessionaire for its Allocable Costs incurred by the Concessionaire for the management, treatment, handling, storage, remediation and removal of Pre-Existing Hazardous Substances discovered on VDOT Existing ROW, during the Operating Period, subject to the Concessionaire’s compliance with the terms of this Section 8.11 and, specifically, the following terms: (i) the Concessionaire shall obtain all environmental site assessments of the affected property and submit copies of such assessments to the Department for its review and approval; (ii) the Concessionaire shall develop the plans, subject to the review and approval of the Department, for the management, treatment, handling, storage, remediation and removal of the Hazardous Substances, and shall obtain all necessary Regulatory Approvals to implement such plans; and (iii) the Concessionaire shall provide cost estimates with respect to such Work which is to be reimbursed by the Department, for the Department’s review and approval prior to proceeding with any such Work. If the Department has not responded to a request for such approval pursuant to this subsection (h) within 21 days after the Department’s acknowledgement of receipt (or in the case of an emergency a reasonably appropriate shorter period), the request shall be deemed to be approved, except to the extent matters deviate from applicable Technical Requirements, Regulatory Approvals or Law. In addition, the Concessionaire shall seek pre-approval and pursue reimbursement from the Virginia Petroleum Underground Storage Tank Fund (“VPSTF”) for qualifying expense incurred during the course of investigation and/or containment, management, mitigation, remediation activities on underground storage tank sites. The Concessionaire shall promptly pay over to the Department all monies the Concessionaire receives from the VPSTF with respect to activities subject to reimbursement by the Department pursuant to this Section 8.11(h).

Hazardous Substances Management. (a) Not later than 150 days prior to the projected Initial Service Commencement Date, the Concessionaire shall prepare and submit to the Department for its approval, not to be unreasonably withheld or delayed, a Hazardous Substances management plan describing a cost- cost-effective approach to Hazardous Substances management in connection with the operations, maintenance and management of the HOT Lanes Project, and any construction activity relating to Concessionaire Project Enhancements during the Operating Period. Such management plans shall comply with applicable Law, Regulatory Approvals, Technical Requirements, and any multi-agency agreements the Department may have related to hazardous material incident response, each as in effect from time to time. (b) The Concessionaire shall review the Hazardous Substances management plans annually with the Department and make changes, subject to the Department’s prior approval, not to be unreasonably withheld or delayed, as necessary to respond to changes in Law, Regulatory Approvals, industry practices and standards, and circumstances affecting the Project, as the case may be. The Hazardous Substances management plans shall address contamination encountered, impacted, caused by or occurring in connection with any work or activity of or on behalf of the Concessionaire, as well as the investigation and remediation of such contamination. The Concessionaire shall comply with the procedures and requirements set forth in the approved Hazardous Substances management plan and as required by the Technical Requirements. (c) If during the Operating Period, the Concessionaire encounters Hazardous Substances within the Project Right of Way or the HOT Lanes Right of Way that under applicable Law or requirement of a regulatory agency must be handled, stored, monitored, treated, disposed of, removed, remediated or transported (collectively “Remedial Action”), the Concessionaire shall promptly notify the Department and shall proceed and act in accordance with the appropriate Hazardous Substances management plan. Such actions shall include, but not be limited to, (i) conducting such further investigations as may be necessary or appropriate to determine the nature and extent of the Hazardous Substances, (ii) taking reasonable steps, including in the case of excavation, construction, reconstruction or rehabilitation, modifications and/or construction techniques, to avoid or minimize excavation or dewatering in areas with Hazardous Substances, (iii) preparing and obtaining necessary Regulatory Approvals for remedial action Remedial Action plans, including Department approval, and (iv) carrying out the remedial action Remedial Action plan, including, as necessary, off-site disposal of the Hazardous Substances. (d) Before any remedial action Remedial Action is taken that would inhibit the Department’s ability to ascertain the nature and extent of the contamination, the Concessionaire shall afford the Department the opportunity to inspect areas and locations containing Hazardous Substances that must be remediated; provided, that in the case of a sudden release of Hazardous Substances the Concessionaire may take the minimum action necessary to stabilize and contain the release without prior notice or inspection, but shall immediately notify the Department of the sudden release and its location. (e) The Concessionaire shall obtain all Regulatory Approvals relating to remedial work, including federal and State surface water and groundwater discharge permits and permits for recycling or reuse of Hazardous Substances. The Concessionaire shall be solely responsible for compliance with such Regulatory Approvals and applicable Environmental Laws concerning or relating to Hazardous Substances. In carrying out remedial action Remedial Action to be paid by the Department, the Concessionaire shall take such steps and actions as are required to protect and preserve the Department’s potential claims of contribution and indemnity, statutory or otherwise, against potentially responsible parties. (f) The Concessionaire shall bear all costs and expenses of preparing and complying with the Hazardous Substances management plans and remedial action Remedial Action plans, of complying with Law and obtaining and complying with Regulatory Approvals pertaining to Hazardous Substances, and otherwise of carrying out remedial actionRemedial Action, except as otherwise provided by Section 8.11(h). (g) Except for any Hazardous Substances that are the subject of the Concessionaire’s indemnity in Section 14.03, the Concessionaire shall not be considered the generator of Hazardous Substances located within the Project Right of Way owned by the Department as of the Agreement DateVDOT Existing ROW. The Concessionaire shall be considered the generator of any Hazardous Substances that are the subject of the Concessionaire’s indemnity in Section 14.03. Except with respect to Hazardous Substances that are the subject of the Concessionaire’s indemnity in Section 14.03, if the Concessionaire disposes of Hazardous Substances, the Concessionaire (i) shall use an EPA identification number or other appropriate legal device obtained by, and carried in the name of, the Department or another Person designated by the Department, and (ii) shall not be required to execute any Hazardous Substance manifests as a “generator”.in (h) The Department shall reimburse Concessionaire for its Allocable Costs incurred by the Concessionaire for the management, treatment, handling, storage, remediation and removal of Pre-Pre- Existing Hazardous Substances discovered on VDOT Existing ROW, during the Operating Period, subject to the Concessionaire’s compliance with the terms of this Section 8.11 and, specifically, the following terms: (i) the Concessionaire shall obtain all environmental site assessments of the affected property and submit copies of such assessments to the Department for its review and approval; (ii) the Concessionaire shall develop the plans, subject to the review and approval of the Department, for the management, treatment, handling, storage, remediation and removal of the Hazardous Substances, and shall obtain all necessary Regulatory Approvals to implement such plans; and (iii) the Concessionaire shall provide cost estimates with respect to such Work which is to be reimbursed by the Department, for the Department’s review and approval prior to proceeding with any such Work. If the Department has not responded to a request for such approval pursuant to this subsection (h) within 21 days after the Department’s acknowledgement of receipt (or in the case of an emergency a reasonably appropriate shorter period), the request shall be deemed to be approved, except to the extent matters deviate from applicable Technical Requirements, Regulatory Approvals or Law. In addition, the Concessionaire shall seek pre-approval and pursue reimbursement from the Virginia Petroleum Underground Storage Tank Fund (“VPSTF”) for qualifying expense incurred during the course of investigation and/or containment, management, mitigation, remediation activities on underground storage tank sites. The Concessionaire shall promptly pay over to the Department all monies the Concessionaire receives from the VPSTF with respect to activities subject to reimbursement by the Department pursuant to this Section 8.11(h).