SUPERFUND
DESIGN
and
CONSTRUCTION
From: Hazardous She Control Division
To: EPA Regional Offices
Update
June 1988 -
Vol. 2, No. 3
THE IMPACT OF LAND DISPOSAL RESTRICTIONS
ON SUPERFUND RESPONSE ACTIONS
The Hazardous and Solid Waste
Amendments (HSWA) of 1984
place new requirements on dis-
posal of hazardous wastes. Sec-
tion 3004 generally prohibits land
disposal of hazardous wastes,
unless the waste or its residue has
been treated to the level or by a
method developed under Section
3004(m).
Land Disposal Restrictions are
being developed by the Office of
Solid Waste to implement the
requirements of Section 3004. In
particular, treatment standards
have been developed for solvents
and dioxin-containing wastes under
Section 3004(d) and for the Califor-
nia-list wastes under Sectipn. £ •*
3004(e). Further standards are
being developed for the scheduled
wastes under Section 3004(g),
which have been divided into
"thirds" for development of regula-
tions. These standards are being
developed under the concept of the
"framework rule" contained in the
regulations on the solvents and
dioxin wastes on November 7,
1986. The standards represent
treatment by the "best demon-
strated available technology"
(BOAT) for the respective waste
categories.
Superfund actions which involve
land disposal of restricted hazard-
ous wastes may occur only after
treatment to BOAT treatment
standards after the standards go
into effect between 1986 and 1990.
However, Sections 3004(d) and (e)
exempt contaminated soil and
debris from the lan<} disposal
prohibitions until November 8,1988.
The Office of Solid Waste antici-
pates developing treatment stan-
dards for contaminated soil and
debris as a separate waste cate-
gory on the basis that contaminated
soil and debris are different from
bulk hazardous wastes. Until
treatment standards for contami-
nated soil and debris are devel-
oped, treatability variances from
BOAT standards may be available
for contaminated soil and debris
which cannot be treated to BOAT
levels. These treatability variances
will specify interim treatment goals
for contaminated soil and debris.
DO THE LAND DISPOSAL RE-
STRICTIONS APPLY TO YOU?
Under the Superfund Amendments
and Reauthorization Act (SARA),
Superfund response actions must
comply with other regulations which
are "applicable or relevant and
appropriate" (ARAR). In order to
determine whether the Land"1 -
Disposal Restrictions are ARAR for
a particular site, the two main
questions are: Are you placing the
waste? Is the waste you are
placing a restricted hazardous
waste?
Placement does not occur when:
(1) treatment occurs in situ, (2) the
waste is capped in place, (3) the
waste is moved within the area of
contamination, or (4) the waste is
removed for processing to improve
its stability and returned to the
same area of contamination.
Placement does occur when: (1)
wastes are consolidated from
different areas of contamination
into one area of contamination, (2)
wastes are moved outside of an
area of contamination for treatment
and either returned to or deposited
outside of the original area of con-
tamination, or (3) wastes are moved
within an area of contamination for
treatment and redeposited into the
original* area~of contarrtinatidnr"
(Continued on page 4)
Reaching the '175' RA Start Goal
"Oct. 16,1989
-175
-100
•Status as of
June 1988
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MIXED FUNDING AT MOTCO
In June 1987, a consent decree
was signed by EPA and 20 PRPs
for a mixed funding settlement to
cover the costs of remediation at
the MOTCO site in La Marque,
Texas. This is the first case settled
using the mixed funding policy.
The 11-acre MOTCO site is an old
styrene tar reclamation facility and
waste disposal site. The onsite
wastes include 22 million gallons of
contaminated water and organic
liquids and 63,000 cubic yards of
soil and sludges containing PCBs,
vinyl chloride, mercury, and lead.
Onsite incineration is the remedy
selected for the site.
Under the terms of the mixed
funding settlement, the PRPs will
be responsible for implementing the
remedy. They will be reimbursed
by EPA for 21 percent of the costs
of the remedy provided that the
cost of reimbursement does not
exceed $9.324 million. The
Agency’s liability for the remedy is
capped at $9324 million. The
Agency is still able to pursue cost
recovery against the responsible
parties not included in the settle-
ment for the Government’s share of
the mixed funding settlement.
The policy for mixed funding
settlements is summarized in an
October 20, 1987, memorandum
from J. Winston Porter and Thomas
Adams to the EPA Regional
Administrators. Under this policy,
EPA has defined three types of
settlements:
1. Preauthorization—The PRPs
conduct the response action,
and the Agency agrees to allow
a claim against the Fund for a
portion of the response costs.
This is the type of settlement
reached for the MOTCO site.
2. Cash-outs—The PRPs pay for a
portion of the response costs
upfront, and the Agency con-
ducts the response action.
3. Mixed Work—The PRPs and the
Agency each agree to conduct
discrete portions of the response
activity.
In evaluating a site for a mixed
funding settlement, the two criteria
to consider are the amount of
responsibility the settling PRPs are
willing to accept and the strength of
the Government’s case against
financially viable, nonsettling PRP5.
If the settling PRPs are willing to
undertake or finance a substantial
portion of the work and it is likely
that EPA will be able to recover its
contribution to the settlement from
nonsettling PRPs, the site may be a
good candidate for a mixed funding
settlement.
DEALING WITH CHANGES AT UNITED CHROME
A fast-track design has been
completed and construction is near
completion at the United Chrome
site (Region X), a former industrial
hard chrome electroplating shop.
An aggressive project schedule has
been successfully maintained
despite a number of major changes
in project scope during the con-
struction phase.
The remedial design included the
cleanup and demolition of contami-
nated structures; excavation and
offsite disposal of contaminated
soil; and construction of two infiltra-
tion basins, a shallow groundwater
extraction network, and a wastewa-
ter treatment system. The attached
table shows the bid tab for the
project.
The predesign report refined the
cleanup concept and characterized
the uncertainty of design assump-
tions. Identified early were the
possible deviations from design
assumptions and what the resulting
effects might be on performance.
The uncertainties in design have
played out as significant changes
during construction. The challenge
has been to maintain project control
and momentum under the on-
slaught of redesigns, negotiations,
change orders, and work plan
revisions.
For example, EPA reconsidered the
scope of building demobtion and
decided for complete demolition of
the 20,000-square-foot structure;
this required interior decontamina-
tion by spray washing and off site
disposal of 400 tons of contami-
nated debris. When the excavation
and removal of the plating tanks re-
vealed that adjacent soils and
groundwater were heavily contami-
nated with chromium, an additional
200 tons of heavily contaminated
soils were excavated for off site
disposal and the design was
modified to incorporate three addi-
tional extraction wells at this
concentrated source. Also, discov-
ery of different plume characteris-
tics led to the installation of 11
additional exploratory wells— 5 for
extraction and 6 for perimeter
monitoring.
It was possible to successfully
accommodate and manage such
scope changes by: (1) recognizing
uncertainties—assumptions and re-
sponsible deviations were identified
in the predesign report, and every-
one agreed to “buy into” these; (2)
building flexibility, or “robustness,”
into the design and construction
contract documents; (3) streamlin-
ing the change order and work plan
revision process, and using a
contingency in the work plan
budget; and (4) preparing and
following a construction man age-
ment plan for processing and docu-
menting changes.
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DIFFERING SITE CONDITIONS (AN INTRODUCTION)
On Superfund fixed price (lump
sum or unit price) construction
contracts, the contracting party
must include a “Differing Site Con-
ditions” clause in the contract. The
clause entitles the construction
contractor to an equitable adjust-
ment when it encounters unknown
and unanticipated physical condi-
tions delaying performance or
increasing the cost of performance.
The purpose of the clause is to shift
the risk of unknown conditions to
the contracting party and eliminate
the need for the bidder to inflate the
bid to cover the worst conditions
that might be encountered.
There are two types of changed
conditions that can form the
predicate for recovery under the
differing site conditions clause of a
construction contract. Type I
requires that subsurface or latent
physical conditions at the site differ
materially from those “indicated” in
the contract, and that these condi-
tions be reasonably unforeseeable
by the contractor. Examples of
Type I claims include encountering
unexpected quantities of under-
ground water not revealed in the
boring data and encountering more
rock, larger rock, or rock that is
harder to drill than indicated in the
contract documents. Foster
Construction Company vs. United
States, 193 Ct. Cl. 587, 594, 435
F.2d 873, 876 (1970).
To prevail on a Type I changed
condition, the construction contrac-
tor must prove that it encountered
subsurface or latent physical
conditions at the site materially
different from site conditions
“indicated” in the contract. The
“indications” need not be explicit.
They may be proven by inferences
and implications in the contract
documents. The contractor need
not prove a deliberate or negligent
misrepresentation made by the
contracting party in the contract
documents. The contractor’s
burden of proof would be carried if
it shows a material variation
between the subsurface conditions
stated in the contract and those
encountered at the job site.
Type II conditions consist of un-
known and unusual physical
conditions at the site, differing
materially from those ordinarily
encountered and generally recog-
nized as inhering in the work
provided for in the contract. A Type
II claim does not require the
existence of a contracting party
representation or indication. To
make a Type II claim the contractor
must establish the existence of
conditions of such an unusual
nature that they could not reasona-
bly have been anticipated by the
contractor. The contractor has a
rather heavy burden of proof to
show that (1) it did not expect the
encountered conditions and (2) the
conditions would have been
generally regarded as unexpected
by others in the same type of
operation.
An issue that sometimes arises is
whether the contractor performed
an adequate investigation of the
bidding documents, data, and site
prior to bidding. As a rule, contrac-
tors are not required to inspect
documents that are not a part of the
contract. For a Type I condition,
the contractor is held to what a
relatively simple viewing of the site
would have revealed. Warren
Beaves, DOTCAB 1160,84-1 BCA
¶1 7,198 (1984). Where a Type II
claim is made and the contracting
party provided no indication of site
conditions, the contractor may be
held to a requirement to perform a
more detailed site investigation.
In the next issue of this newsletter
we will discuss (1) variations (2)
exculpatory language, and (3)
notice requirements.
J. Kent Holland, Jr.
Wickwire, Gavin & Gibbs, P.C.
TABULATION OF BIDS FOR THE UNITED CHROME SITE
Riedel Loughney Crowley Rollins
Environmental Dewatenng Environmental Environmental
Desctiption Services’ Inc. Services Services
Bonds and Insurance $12,500 $ 68,095 $ 13,760 $ 32,032
Move.ln and Site Preparation 42,679 318,334 83,000 136,464
Asbestos Removal 7,594 6,960 10,000 65,035
Demolition and Structural Reinforcements 124,601 130,105 267,113 148.1 69
Deep Monitonng well Installation 27,594 18.647 17,923 37,817
Extraction Well System Installation 16,328 59,088 228,309 118,955
Infiltration Basin Construction 53.580 80,122 85,000 78,531
Wastewater Treatment Fadllty Construction 279,437 203,445 263,000 215,568
Packaged Treatment System Installation 14,345 7.807 11200 52,621
Contaminated Soil 86,450 135,550 95,850 119,633
Extraction Well, Wefl Footage,
Piezometer, Well Abandonment 68,382 45,991 44,205 44,047
Levels of Protection 6,100 16,947 35,000 24,000
Dust Control 12,000 12,000 0 0
TOTAL BID AMOUNT $751,590 $1,101,091 $1,154,380 $1,071,172
‘Contract award
Engineers Estimate for total amount (Sept 1987) $805,000.
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(Continued from page 1)
A waste is a hazardous waste: (1)
if it is listed in Subpart D of 40 CFR
261 as a waste from non-specific
source (F waste), waste from
specific source (K waste), acutely
hazardous commercial product (P
waste), or toxic commercial chemi-
cal product (U waste), or (2) if it
demonstrates one of the following
characteristics: ignitability, corro-
sivity, reactivity, or extraction
procedure toxicity.
Restrictions apply to a particular
Superfund site, including how to
obtain a treatability variance for soil
or debris. Contact your Regional
Coordinator or Carolyn K. Offutt
(FTS 8- or 202-475-9760) for
further information.
Carolyn K. Of futt
Site Policy and Guidance Branch
SITE DELETIONS
The Agency has recently issued
draft guidance for Regional review
on completion of Superfund sites
and deleting sites from the NPL.
As part of this process, EPA has
developed criteria and procedures
for determining the completion of a
Superfund site. Completion criteria
focus on site protectiveness and
compliance with the Record of
Decision. A Close-Out Report has
been developed to document the
satisfaction of technical require-
ments for site completion. This
report will be prepared by the
Regional Project Manager and
signed by the Regional Administra-
tor. Close-Out Reports will be
required of all Superfund sites
before a site gains completion status.
Deletion of sites will occur following
completion. A notice will be placed
in the Federal Register announcing
the Agency’s intent to delete the
site from the NPL and requesting
public comment on the deletion.
Responses to comments will be
prepared and a final notice of
deletion published. Administrative
steps have been started that will
delegate virtually all of the deletion
process directly to the Regions.
A new category of sites, known as
long-term response actions
(LTRAs), has also been created
and will be listed separately on the
NPL. LTRAs are sites where all
remedial facilities have been
implemented but continued activity
is required for a period of time
before the levels of protection
specified in the ROD can be
achieved for one or more pathways
of exposure.
Following achievement of protec-
tion, the site will be classified as a
completion. A Close-Out Report
will be required before a site gains
LTRA status and will be amended
to signify site completion. The site
can then be deleted from the NPL.
Douglas Sarno
Design & Construction
Management Branch
Training in 1988
Personnel Protection and Safety/EPA
Contact: Regional Superfund Training Coordinator
(513) 569-7539 or FTS 8-684-7537
July 11-15
July 18-22
July 25-29
August 1-5
August 8-12
August 22-26
Region VI
New York, NY
Region Ill
Region V
Region IV
Region IX
Requirements for Hazardous Waste Landfill Design,
Construction, and Closure
Contact: Orville Macomber/EPA
(513) 569-7347 or FIS 8-684-7347
Management of Construction in the Superfund Program
Contact: Jim Felix, Bureau of Reclamation
(303) 236-8330 or FTS 8-176-8330
July 19-21
July 12-13
July 14-15
August 23-24
August 25-26
August 30-31
September 1-2
September 13-14
September 15-16
San Francisco, CA
Dallas, TX
Chicago, IL
Denver, CO
Kansas City, KS
Philadelphia, PA
Atlanta, GA
New York, NY
Boston, MA
ABOUT THE UPDATE
As more sites move into the design and construction stage, many of you will face similar technical and management issues.
This Update is designed to assist you in managing these complex projects. Contact Karen Locke at EPA with comments,
FTS or (202) 382-7997. For copies, contact EPA’s Public Information Center, FTS or (202) 382-2080.
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