SUPERFUND
DESIGN
and
CONSTRUCTION
From: Hazardous Site Control Division
To: EPA Regional Offices
Update
October 1988
Vol. 2. No. 4
RECENT CHANGES TO THE LAND DISPOSAL RESTRICTIONS
AND EFFECTS ON SUPERFUND RESPONSE ArTTONS
Carolyn K. Offutt
Site Policy and Guidance Branch
On August 17,1988, the Office of Solid
Waste promulgated new Land Disposal
Restrictions (LDRs) to further imple-
ment the requirements of Section 3004
of the Hazardous and Solid Waste
Amendments of 1984 (HSWA) on
disposal of hazardous wastes. Section
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).
Under the Superfund Amendments and
Reauthorization Act (SARA), Superfund
response actions must comply with all
regulations that are "applicable or
relevant and appropriate restrictions"
(ARAR) for a particular site. Depending
on the nature of the response action
and the type of contamination at a
Superfund site, the Land Disposal
Restrictions may be ARAR. For further
information on whether LDRs are
ARAR at a site refer to the front page of
Superfund Design and Construction
Update, June 1988. Vol. 2. No. 3.
The recent regulations establish
treatment standards for the "first third"
of the list of Scheduled Wastes under
Section 3004(g). Standards for the
"second third" and "third third" of the
Scheduled Wastes are due in June
1989 and May 1990, respectively.
Treatment standards were promulgated
for certain solvents and dioxin-contain-
ing wastes under Section 3004(d) on
November 7,1986, and for the Califor-
nia-list wastes under Section 3004(e)
on July 8, 1987. The standards
represent treatment by the "best
demonstrated available technology"
(BOAT) for the respective waste
categories.
The August 1988 regulations also
change some of the effective dates for
the Land Disposal Restrictions,
particularly for contaminated soil and
debris that contain RCRA hazardous
wastes. Sections 3004(d) and (e)
exempt contaminated soil and debris
from the land disposal prohibitions until
November 8,1988. However, in
August, the Office of Solid Waste
granted a two-year national capacity
variance (until November 8,1990) for
soil and debris contaminated with
solvents and dioxins and with the
California-list wastes. This extension
was based on an analysis of the
treatment capacity available for con-
taminated soil and debris. In addition, a
national capacity variance (until August
8,1990) has been granted for soil and
debris contaminated with "first-third"
wastes for which the treatment stan-
dards are based on incineration.
There are several important items to
note about the August regulations:
- the extension until November
1990 applies only to soil and
debris contaminated with certain
solvents or dioxin-containing
wastes from Superfund and
RCRA actions.
- the August 1990 extension applies
to all soil and debris contami-
nated with"first-third" waste for
which treatment standards are
based on incineration and to some
"first-third" wastes that are not soil
and debris.
- the August 1990 extension does
not apply to soil and debris
contaminated with "first-third"
wastes for which treatment
standards are based on technolo-
gies other than incineration (e.g.,
solidification).
When LDRs are ARAR, Superfund
actions involving land disposal of
restricted hazardous wastes may occur
only after treatment to BDAT treatment
standards, by receiving a treatability
variance, or through a successful no-
migration petition.
The Site Policy and Guidance Branch is
developing guidance materials for
determining when Land Disposal
Restrictions apply to a particular
Superfund site, including how to obtain
a treatability variance for soil or debris.
Each Region has identified at least one
workgroup member to assist the
development of the guidance for both
remedial and removal issues. Contact
your Regional Coordinator or Carolyn
K. Offutt (FTS-8-475-9760) for further
information."
Reaching the '175' RA Start Goal
r175
-100
Status as of
October 1988
Deadline: October 16,1989
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DIFFERING SITE CONDITIONS (PART IIJ
J. Kent Holland. Jr.
Wckwire Gavin & Gibbs. P.C.
The last issue of Design & Construction
Update briefly described Type I and Type II
duffenng site conditions under which a
contractor may be entitled to an equitable
adjustment in the contract price In this
issue, three items will be discussed that
may affect claims under Superfund
contracts These items are exculpatory
clauses, variation in estimated quantity, and
notice requirements Owners and contrac-
tore should be familiar with these items
EXCULPATORY CLAUSES
In general, exculpatory language serves to
free a specified party from blame However.
when an owner uses broad exculpatory
clauses attempting to deny liability for
express or implied representations of site
conditions, the diftenng site condition clause
generally ovemdes such language Types
of clauses that are typically ovemdden
include’
1 clauses denying responsibility for the
accuracy of subsurface data furnished
and stating that bidders are required to
satisfy themselves as to the character,
quantity, and quality of the subsurface
matenals,
2. clauses stating that the owner does not
guarantee data accurately depict
subsurface conditions and stating that
bidders must perform their own
investigations as they deem necessary;
and
3 clauses stating that the owner will not
provide data and that the contractor is
expected to make his own determina-
tion of subsurface conditions
Clauses like the above have been a factor
in numerous contractor claims and should
not be used in an attempt to circumvent the
diffenng site conditions clause
VARIATION IN ESTIMATED
QUANTITY
On Superfund construction contracts, items
of work based on estimated quantities may
be pnced by unit rather than by lump sum
This relieves the contractor of much of the
risk of inaccurate quantity estimates. Gener-
ally the contract will include a clause
providing for adjustment of the unit prices if
the actual quantities vary significantly from
the estimates In addition, the contractor
may be entitled to a price adjustment under
the diffenng site conditions clause if the
quantity variation occurred because of a
diffenng condition This is because not only
the numbered units may change but the
method of doing the work may change as
well For example, different equipment may
be required to dig a trench deeper than
onginally planned.
NOTICE REQUIREMENTS
Before continuing work at a site
where a changed condition has been dis-
covered, the contractor is required to give
prompt wntten notice of the condition to the
contracting officer. This allows the owner to
investigate the condition and exercise a
degree of control over the effort involved in
addressing the problem No particular
format is required for the notice, provided
that it adequately informs the owner of the
nature of the changed condition Wntten
notice is generally given Oral notice may
be acceptable when it is given to the
contracting officer or an authorized
representative of the contracting officer.
However, the contractor has the burden of
proving that the oral notice was actually
given and it is consequently advisable to
promptly confirm an oral notice with a
wntten notice
If a contractor does not give notice before
disturbing a site condition, but the owner
has received actual or constructive notice of
the changed condition and has not been
prejudiced (harmed) by the failure of the
contractor to provide independent notice,
the notice requirement shall be waived and
the contractor may recover its costs The
owner can deny relief to the contractor only
if it can prove that the contractors failure to
provide independent notice prejudiced the
owner.
After a contractor encounters a diffenng site
condition, gives notice to the contracting
officer, and receives necessary instructions,
the contractor must diligently proceed with
performance pending resolution of any
claim for equitable adjustment. Failure to do
so could result in a termination for default
CONCLUSION
On a Superfund project, the owner should
be familiar with the rules applicable to
differing site condition claims Familiarity
with the rules enables the owner to promptly
review the condition, determine whether it is
a legitimate diffenng site condition (either
Type I or Type II). and advise the contractor
how to proceed Moreover, public policy
strongly supports compensating contractors
for diffenng site conditions, and owners
should be wary of thinking they can use ex-
culpatory language to shift investigation
requirements and nsks to the contractor
When the owner agrees that the condition
qualifies as a diffenng site condition,
equitable adjustment should be processed
as soon as possible. While awaiting the
equitable adjustment, the contractor should
proceed with the work as directed by the
owner in order to avoid being terminated for
default•
Region I
NUS (9/16/88)
ARCS/AWARD UPDATE (FY 1988)
Region lii
Arthur D Little (9/30/88)
RegIon II
The Alternative Remedial Contracts Strategy (ARCS) was implemented late in 1986 to provide regionally managed contracts Firms
awarded ARCS contracts are listed below, according to the region in which the award occurred
NUS (12/31/87)
Ebasco (9/7/88)
ICF (9/30/88)
E&E (5/6/88)
CH2M HILL (6/3/88)
RegIon V
Tetratech (6/22188)
Black and Veatch (6/29/88)
RegIons VI, VII, VIII
CH2M HILL (9/13/88)
CH2M HILL (2/1/88)
Black and Veatch (3/1/88)
Williams and Works (3/31/88)
PRC (4/28/88)
E&E (5/6/88)
Weston (6/1/88)
Donohue (6/29/88)
Jacobs Engineenng (9/30/88)
Cost proposals are currently being reviewed for Regions IV, IX, and X Cost negotiations are ongoing in Regions I, II, VI, VII, and VIII
This list will be updated in future issues to show new contract awards.
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LANG PROPERTY SITE BID TABULATION
The work consists of removing debris from
the site (including tanker trucks, vehicles
and equipment, metal parts, and tires), ex-
cavating approximately 8,600 cubic yards of
contaminated soil, backfllling with clean soil,
compacting, regrading, adding top soil, and
seeding
ACES, irs
King of Pnjssa,
PA
Temporary Faculties $ 45,600 $ 47,800
Health and Safety 69,800 39,600
Matenal and Labor 244,668 209,456
60,362
1,887,000
57. 190
362.972
45,200
Total $4,125,450 $2,105,580 $2,946,234
$ 349,460
63,710
314,959
139,576
2,259,648
69,041
158,656
135,856
Sealed bids were solicited by U S. Army
Corps of Engineers on May 2, 1988 Six bids
were received and opened on June 7, 1988
Upon evaluation, the contract was awarded
to Sevenson Environmental Services, Inc.,
Niagara Falls. NY. the lowest responsive and
responsible bidder.
$ 137,593
181,807
448,412
170,563
2,637.484
143,945
79,316
188,008
$ 426,970
316,270
352,181
521.345
2,378,226
183.581
412,936
89,251
METALTEC/AEROSYSTEM BID TABULATION
The Metaltec/Aerosystem Site is an active
hazardous waste site approximately 16
acres in size located in Sussex County.
New Jersey A metal plating facility was
located at the site and residual metal
wastes, solvents, and organic chemical con-
taminants have been identified in subsur-
face soils and groundwater
The work consists pnmanly of excavating
and disposing of approximately 4.700 cubic
yards of contaminated soul, and treatment or
disposal of approximately 20 55-gallon
drums containing residuals from the Rl/FS
In addition, the project undudes transporting
drummed solids, outerwear, and contami-
nated soul to an approved offsite facility and
subsequent disposal The groundwater cal-
lected dunng dewatenng activities will be
treated at an onsite facility
Sealed bids were solicited on May 2. 1988
Five bids were received and opened on
June 7, 1988. Upon evaluation, the contract
was awarded to Sevenson Environmental
Services, Inc, Niagara Falls, NY, the lowest
responsive and responsible bidder..
The Lang Properly us a 40-acre site located
in Burlington County, New Jersey. Approxi-
mately 1,500 drums of chemical waste
apparently were dumped at the site pnor to
June 1975 The area where disposal took
place covers approximately 2 acres A wide
range of organic and inorganic (metals)
chemicals has been identified in the surface
soil, subsurface soil, and groundwater
LANG PROPERTY SITE, BURLINGTON CITY, NEW JERSEY
Waste
Government Conversion
Estimate Colmar, PA
ENSO
Environmental
Services, bit
Edison, NJ
Severson
Environmental
Services, Inc
Niagara Falle, NY
Site Preparation
Waste Handling and Daposal
Matenal Handling
Mobe/Demobe
Analytical Sampling
Chemical Waste
Management
Newaik, NJ
160,100
3,006,806
473,776
44,200
80,500
Rolhim
Environmental
Services, Inc
Wdmington, DE
$ 191,900
96,100
223,357
112,360
1,860,255
205,245
196,067
60,950
$ 200,000
150,000
223,431
505,000
1.908,582
168,537
350,000
101,
$3,480,906
$3,606,550
$3,987,128
$4,680,760
METALTEC/AEROSYSTEM SITE, SUSSEX COUNTY, NEW JERSEY
ENSO Sevenson Rollins
Environmental Environmental Metcalf & Environmental
Government Waste Conversion Services, bit Services, Inc Eddy, Inc Services, tic
Estimate Colmar, PA Amherst, NY Niagara Falle, NY Somerville, NJ Wilmington, DE
General Conditana $ 347,214 $ 413,300 $ 324,800 $ 200,000 $ 612,750 $1,136,000
Temporary Facilities 75,208 61,000 134.600 235,000 300,000 113,000
Health and Safely 603,877 30.600 79.800 200,000 50,000 331,000
Site Preparation 85,683 76,446 139,389 297,230 248,780 240,373
Waste Handling 2,265,315 1,711,834 1,859,868 2,331,232 3,123,810 5,358,060
Site Restoration 113,424 105,056 203,345 113,625 156,660 339,600
Total $3,490,721 $2,401,235 $2,741,801 $3,377,087 $4,498,000 $7,515,033
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STATES’ ABILITY TO COST-SHARE:
As part of EPA ’s ongoing efforts to track
progress toward meeting the 175 remedIal
action (RA) starts mandated by the
Superfund Amendments and Reauthoriza-
tion Act (SARA). EPA has conducted a
“desktop analysis of the 114 fund-financed
candidate RA sites in order to determine
whether states will be able to meet their
cost-share responsibilities at these sites.
SARA requires the state to share 10
percent (or 50 percent if state-operated) of
the costs of the RA The fund-financed
candidate sites are located in 33 states and
the OERR analysis indicates that fully one-
third of the 33 states may be unable to meet
their cost-share requirements, thereby
jeopardizing the Agency’s ability to meet the
175 mandate.
The analysis was based upon survey data
provided by the Association of State and
Temtonal Solid Waste Management
Officials CASTS WMO) published in June
1988 [ State Funding Mechanisms for
Cleanup of Non-NPL and NPL Hazardous
Waste Sitesi. The ASTSWMO survey
provided information on the balances of
state funds as of Januwy 1 • 1988 The state
fund balance was then compared against
the estimated state cost-share requirements
derived from the projected RA cost
estimates in the Records of Decision.
In an August 10, 1988 memorandum to all
Regional Administrators from Assistant
Administrator J.Winston Porter, the
Regional Offices were encouraged to bring
this desktop analysis to the attention of
states within their regions. For further
information, contact Cathy CYConnell, State
and Local Coordination Branch
(FTS-8-382-2350).
Hazardous Materials Incident Response
(FTS 8-684-7537)
SCHEDULED TRAINING
November 14-18,1988
November 14-18, t988
Cincinnati, OH
Edison, NJ
November 28-December 2, 1988
November 28-December 2, 1988
December 12-16. 1988
December 12-16, 1988
January 9-13, 1989
Hazardous Materials Treatment TechnologIes
November 29-December 2, 1988
January 24-27, 1989
Cincinnati, OH
Edison, NJ
Cincinnati, OH
January 9-13. 1989
January 23-27, 1989
Region ill
Region IV
Edison, NJ
Cincinnati, OH
Introduction to Groundwater Investigations
January 10-12, 1989 Region IV
January 23-27, 1989
Environmental Risk Assessment
Edison, NJ
Cincinnati, OH
December 6-9, 1988
Advanced Treatment Technology Seminar
(FTS 8-257-2216)
Edison, NJ
November 14-18, 1988
January 31-February 3, 1989
Personnel Protection & Safety
AIr Surveillance for Hazardous Materials
Region IX
Region V
Region IV
November 14-18, 1988
Januaryg-13, 1989
November 28-December 2, 1988
December 5-9, 1988
January 9-13, 1989
January 23-27, 1989
Region IV
Region IX
Region V
Region V
Region X
Region IV
Sampling for Hazardous Materials
(FTS 8.255-2270)
December 13-15, 1988
If no FTS number is listed for the course you want, contact your Regional Superfund Training Coordinator
Region Vi
ABOUT THE UPDATE
For comments, ideas, submissions, or questions about Update, please contact Karen Locke at FTS 8-382-7997 or commercially at
(202) 382-7997 For copies, contact EPA’s Public information Center at FTS 8-382-2080 or commercially at (202) 382-2080. This issue
of Update is the first one published since June 1988, due to a lapse in support contract availability because of recompetition of the
contract
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