SUPERFUND DESIGN and CONSTRUCTION From: Hazardous Site Control Division To: EPA Regional Offices Update December 1988 Vol. 2, No. 5 ISSUES: ALTERNATE WATER SUPPLY GUIDANCE 'Guidance Document for Providing Alternative Water Supplies" (OSWER No 9355 3-03) has been finalized and is avail- able for use by Superfund contractors and Federal, State, and local officials to assist with the planning and implementation of al- ternate water supplies at uncontrolled hazardous waste sites The document provides guidance for those sites that require provision of an alternate water supply as either a non-time-cntical removal action or a remedial action before implementation of a final remedy can be achieved This guidance does not provide direction for situations requiring an emer- gency or tome-critical response Such activities should be performed in accor- dance with Superfund Removal Procedures (EPA 1987) guidance DELEGATION OF AUTHORITY TO SIGN FINAL DELETION NOTICES On October 6, 1988. Lee Thomas signed a revision to the Delegation of Authority 14- 17-A, allowing Regional Administrators to sign both proposed and final Federal Register notices for deletion of sites from the National Priorities List (NPL) The previous delegation language, signed Sep- tember 13. 1987, required the concurrence of the Assistant Administrator for Solid Waste and Emergency Response (AA/ OSWER) on the Intent to Delete and the Final Notice of Deletion Under the revision, the AA/OSWER still retains his/her authority to add sites to the NPL The guidance document, "Procedures for Completion and Deletion of National Priorities List Site' (OSWER No 9320 2-3A), has been finalized and distnbuted to each RA The guidance reflects the revision to EPA Delegation 14-17-A For copies or information call Doug Samo at 202-475-6704 SUPERFUND TREAT ABILITY TESTS The "Treatability Studies Sample Exemp- tion" final rule, which amended 40 CFR Parts 260 and 261, was published in the Federal Register on July 19, 1988. The intended impact of this final rule was to promote the development of alternative studies The rule conditionally exempts small quantities of hazardous waste which are utilized in small-scale treatability studies from the RCRA hazardous waste regula- tions including the collection, transport, storage, and testing of such samples By exempting such studies from the normal permitting requirements, it is expected that a greater number of off-site studies will be undertaken involving a wider variety of waste streams and innovative technologies. (Note. The treatability study exemption" is different from the "treatability variance" from BDAT standards contained in 40 CFR 26844) The new rule became effective immediately in the 12 states and temtones lacking base RCRA authorization All states with RCRA authorization must incorporate this rule into their state program before the exemption can take effect Various coping strategies have emerged while the states move forward with their rule adoption activities States may authonze treatability studies in the interim, based upon the existence of the federal rule, or they may issue permit waivers where their existing rules have such a provision Where approvals cannot be obtained, project managers may design on- site treatability tests (which may be more limited in scope) or they may forego such tests all together and resort to proven technologies which may be more costly In order to prevent the necessity of the latter, EPA is calling upon both its Regional staff and its state partners to work diligently toward a timely state adoption of the equivalent of the new exemption rule. POST ROD SIGNIFICANT CHANGES During the past several months, there have been a number of inquiries on how to address significant changes that anse after the ROD is signed The Regions and States should refer to Chapter 8 of the "Guidance on Preparing Superfund Decision Docu- ments The Proposed Plan and Record of Decision" (OSWER No 9355 3-02), for the (continued on page 4) Reaching the '175* RA Start Goal rl75 -100 Status as of December 1988 Deadline: October 16,1989 ------- RESPONSIVENESS AND RESPONSIBILITY IN SEALED BIDDING By Jack Taylor Design and Construction Management Branch Hazardous Site Control Division Two concepts that are the source ot some confusion in sealed bidding procurement are responsiveness and responsibility Some of this confusion, no doubt, results from the similarity of the woids They both come from the same root, response, which means an answer Both concepts do involve answers The first concept, responsiveness, refers to the bid itself as an answer or a response to an Invitation for Bids (IFB) A sealed bid, which is an offer to do the work, is considered responsive if it is a complete, unqualified bid (not modified by restrictions) that conforms with all the conditions of the solicitation Basically, this means that all the blanks are filled in, all conditions are complied with, all signature lines are signed, all requested information is pro- vided, and no qualifications to performance are added by the bidder A bid that conforms exactly with all the literal requirements of the IFB would bs. a responsive bid Not all nonconforming bids are considered nonresponsive, however Nonconforrnities can be either material or immaterial An example of a material noncnnformity that could render a bid nonresponsive would be the failure of the bidder to give requested prices for all items in the bid schedule By not providing these prices, the bidder has failed to offer to do this work The informa- tion cannot be added after the bid opening. since at the time the prices given by the other bidders would be public knowledge In this case, the nonconforming bid would be dismissed as nonresponsive This determi- nation of nonresponsiveness is a relatively objective process, minimal discretion is exercised by the contracting officer An immatenal nonconformity that does not affect the fairness of the competitive bidding, and will not affect the performance of the work, will not render the bid nonre- sponsive Failure to provide the requested number of copies of specific certificates would be considered an immaterial noncon- formity Failure to sign the bid could be considered immatenal if there is other evidence of the intent of the bidder to be bound, such as a signed letter from the bidder attached to the bid package The second concept, responsibility, refers not to the bid but rather to the bidder himself A determination of responsibility answers the question, Can the bidder actu- ally do the work 7 To determine whether a bidder is responsible, the contracting officer will look at such things as the bidder’s financial resources, facilities and equipment, management and technical capabilities, licenses and permits, ability to comply with the schedule, and record of performance Deiermining responsibility is a more subjective process than determining responsiveness, and the contracting officer exercises much discretion In the area of financial resources, for example, the contracting officer can look at working capital, the ratio of assets to liabilities, and the liquidity of assets to determine if the bidder can meet the cash flow requirements of the project In looking at the ability of the bidder to meet the schedule, the contracting officer can look at current commitments and past performance Some projects will re- quire special equipment and technical skills For these projects, the ability of the bidder to provide the special skills and equipment becomes a matter of responsibility Jennifer Haley 475-6705 Victona van Roden 475-9839 Caroline Roe 475-9754 Robin Anderson 382-2446 Lisa Carson 475-9758 Steve Golian 475-9757 Tish Zimmerman 382-2461 Eydie Pines 475-9759 Eydie Pines 475-9759 Unlike a determination of responsiveness, a determination of responsibility is not a closed subject after the bid opening A bid is deemed responsive or nonresponsive on the basis of the bid itself at the time of the bid opening No fl6W information or addition to the Did will be allowed after the opening The responsibility of the bidder, however, can be changed between the time of ti’e bid opening and the time of award The bidder has the opportunity to cure his deficiencies For example, he can obtain financing to remedy a cash flow problem or hire special expertise to meet special IFB requirements Regardless of the method of procurement, the bidder or offeror must be determined responsible before the contract is awarded On the other hand, responsiveness is un.que to sealed bidding The concept is used to maintain the fairness of the competitive bidding environment It ensures that all bidders are bidding on exactly the same specifications, and it requires each bidder to put all of his cards on the table at precisely the same time as everyone else RD/RA Ed Hanlon 475-6706 Jack Taylor 475-8246 Ken Ayers 382-2348 Ken Ayers 382-2348 Doug Sarrio 475-6704 Doug Sarno 475-6704 Doug Sarno 475-6704 Ben Hamm 382-7998 Karen Locke 382-7997 Karen Locke 382-7997 HAZARDOUS SITE CONTROL DIVISION REGIONAL COORDINATORS Rl/FS Region I Region II Region It! Region IV Region V Region VI Region VII Region VIII Region IX Region X Eydie Pines/lish Zimmerman 475-9759 1L - 5 2 ------- NYANZA SITE BID TABULATION The Nyanza Chemical Waste Site is a 63- acre indusinal complex located in Ashland, Massachusetts The major contaminants are heavy metals, pnncipally mercury and organ cs This remedial action includes excavating alt outlying sludge deposits and contaminated soils and sediments to background levels, capping, onsite, this matenal and other sludge deposits, building a groundwater and surface water diversion system, backfdling excavated areas to onginat grade and revegetating wetlands, and constructing a groundwater monitonrig network to evaluate the effectiveness of the cap Bids were opened on March 23, 1988 by the U S Army Corps of Engineers (USACE), with an apparent low bid of $8 3 million, the Government estimate was $129 million Two pre-award protests were re- ceived from a firm on April 1 and May 17 After receiving EPA’s Input regarding the applicability of the land ban toward this project, Omaha District’s Office of Counsel contacted the firm and requested their protest be withdrawn The firm dedined, therefore, the protests were submitted to USAGE Headquarters for resolution USAGE Headquarters denied both protests on August 3, 1988 A third pre-award protest based on unacceptable bid guarantees was filed on May 23 by the apparent low bidder through the General Accounting Office (GAO) in Washington, 0 C A July 7 preliminary hearing was held at GAO’s office with representatives from the firm and Omaha Distnct’s Office of Counsel The firm declined to dismiss their protest which GAO decided against on August 16 On Auguct 18, the firm with protests previously denied by USACE Headquarters protested the Corps’ decision to GAO Region I asked for an expedited GAO decision, which normally requires 90 days (an express option requires 45 days from the protest filing date) On September 1, word was received that the express option was not granted On October 3 the firm withdrew their protest from GAO Four pro-award protests delayed the award of the contract for 6 months Upon evalu- ation, the contract was awarded on October 13, 1988, to Tncil Environmental Response, Inc , Houston, as the lowest responsive and responsible bidder Table I shows the range of bid totals from lowest to highest, for all bidders The government estimate is included Table 2 shows a bid breakdown of the government estimate and the three lowest responsive and responsible bidders Table 1 RANGE OF BID TOTALS, NYANZA SITE (Apparent Low Bid)* Tricil Environmental Response Rollins Environmental Service Sevenson Environmental Services Site Preparation Contractors Geo-Con 0 H Materials Government Estimate Ebasco Constructors J H Reid, General Contractor Metcalf & Eddy Haztech $ 8,282,893 60 $ 8,566,034 00 $ 10,332,724 65 $11,239,181 50 $12,146,408 00 $12,379,240 65 $12,481,290 00 $12,884,658 00 $13,112,411 92 $13,551,375 00 $13,998,156 00 $14,199,738 00 $14,478,253 84 Chemical Waste Management * Eiiminated as Nonresponsive Table 2 BID BREAKDOWN: GOV’T ESTIMATE VS THREE BIDDERS Mobilization, Permits Health and Safety Government TrIcIl, Estimate Houston, TX Temp/Perm Facilities Excavation $ 929,897 Rollins, WilmIngton, DE 1,073,659 $1,775,000 Drai’tage Piping,Trenching, and Manholes Sevenson, Niagara Falls, NY 408,157 Fence and Erosion Control 654,000 $ 1,354,900 6,431,220 Solidification of Wet Soils 252,000 222,943 799,593 Cap and Capping Materials $ 1,345,000 3,208,858 Site Restoration 124,295 339,585 353,230 870,000 Monitonng Wells 539,750 167,030 1,306,940 3,969,620 200,775 193,595 176,000 Miscellaneous Work and Close-out 1,321,667 920,000 2,940,108 314,400 312,600 1,153,343 Total 541,750 56,850 570,840 1,087,345 469,280 66,600 825,000 1,486,374 189,133 1,186,760 $12,884,658 99,600 2,202,914 259,588 $8,566,034 92,400 230,000 $10,332,725 $11,239,182 3 ------- (continued from page 1) Agency’s policy on addressing post-ROD significant changes The proposed revisions to the National Contingency Plan (NCP), 40 CFR 300, pro- vide guidance on this subject as well After signature of the ROD, changes may be made dunng the remedial action, enforce- ment action, settlement, or consent decree that differ significantly from the remedy selected in the ROD The determination as to whether the change constitutes a minor or significant change is a discretionary call by the lead agency The site-specific factors relating to that decision and the documenta- tion of the remedy in the ROD should be utilized in making this determination In general, there are three types of changes that can occur dunng the RD/RA process (1)nort-significant or minor changes, (2) significant changes to a component of the remedy, and (3 significant changes that fundamentally alter the overall remedy Typically, significant changes will affect the performance, scope, and/or cost of the remedy These changes and the procedures for documenting them are descnbed below Non-Significant or Minor Changes Non-significant changes fall within the normal scope of changes occurnng dunng the RD/RA engineenng process Changes to the type of matenals, equipment, facilities, services, and supplies that do not signifi- cantly alter the scope, performance, or cost of the remedy would generally be consid- ered minor These changes should be documented in the post-decision document file (i e , case file for RD/RA) and not the ad- ministrative record file Significant Changes to a Component of the Remedy During RD/RA, new information may arise that could cause the lead agency to determine that a significant change should be made to a component of the ROD These changes could result from treatability testing done dunng RD or negotiations conducted with the PRPs The lead agency could determine, for example, that 30 percent more soil would need to be treated, raising the cost of the remedy from $5 to $7 million dollars The lead agency is responsible for prepanng a document, typically in the form of a fact sheet, called an Explanation of Significant Differences (ESD) (This is a statutory requirement of Section 117(c) of CERCIA) This document should identify the changes and the reasons they are being made A newspaper notice must be published in a local newspaper notifying the public of the availability of this document The ESDs should be placed in the administrative record file, along with the supporting information, any comments received, and the lead agency’s response to the com- ments It should be noted that ESDs require neither a formal public comment penod, a public meeting, nor a response summary Significant Changes that Fundamentally Alter the Remedy The lead agency may determine that the significant change fundamentally alters the overall remedy in the ROD, and thus requires an amendment to the ROD This type of alteration would represent a complete change in the hazardous waste management approach documented in the ROD For example, the lead agency decides, based on pilot-scale tests, that bio- remediation is no longer a feasible technology for this site Instead, the lead agency determines that thermal destruction and partial containment should be selected. The lead agency will have to amend the ROD by undertaking the public participation and documentation procedures specified in Section 117 of CERCLA. it should be noted that pro-SARA RODs that are amended will be subject to the statutory requirements of Section 121 of CERCLA (i.e , the clean-up standards). Significant Changes in the Enforcement Process After signature of the ROD, the lead agency may undertake negotiations with the PRPs that could result in significant changes to the ROD. Where the lead agency is proposing to make a significant change to a component of the ROD, an ESD should be issued concurrently with the consent decree In the event that the negotiations result in a proposal to fundamentally alter the overall remedy in the ROD (o g ,from incineration to in situ vitnfication), the lead agency should prepare an amendment to the ROD prior to filing or lodging the consent decree The public comment periods for the ROD and consent decree should be conducted concurrently Hazardous Materials Treatment Technologies SCHEDULED TRAINING January24 to January27 February 14 to February 17 March14 to March17 Environmental Risk Assessment Region IV Region VII Region IX January31 to February 3 March 7 to March 10 Hazardous Materla s Incident Response Operations (FTc 8-684-7537) Region V Region VIII Sampling for Hazardous Materials (FTS 8-255-2270) January30 to February 3 January30 to February 3 February 6 to February 10 February 27 to March 3 February 2710 March 3 February 710 February 9 Cincinnati, OH Edison, NJ Edison. NJ Cincinnati, OH Edison, NJ Region IX Introduction to Ground-Water investigation Personal Protection and Safety (FTS 8-684-7537) February 28 to March 2 Region V Air Surveillance for Hazardous Materials January 30 to February 3 February 610 February 10 February 13 to February 17 February 27 to March 3 March 6 to March 10 March 2010 March24 March2010 March24 Region IX Region III Region VIII Region II Region VII Region VII Region VII If no FTS nunther s bsted for the couise you want, contant your Regional SLpedund Training Coordinator ABOUT THE UPDATE For comments, ideas, submissions, or questions about Update, please contact Karen Locke at FIS 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 4 ------- |