CBCA 3909

DENIED: November 23, 2015 CBCA 3909 DNT ENVIRONMENTAL SERVICES, INC., Appellant, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. John A. Christy and Michael J. Eshman of Schreeder, Wheeler & Flint, LLP, Atlanta, GA, counsel for Appellant. Kenneth R. Pakula and Sara E. McGraw, Office of General Counsel, Environmental Protection Agency, Washington, DC; and Kathleen K. Clever, Office of Regional Counsel, Environmental Protection Agency, Lenexa, KS, counsel for Respondent. Before Board Judges DANIELS (Chairman), SHERIDAN, and KULLBERG. SHERIDAN, Board Judge. The Environmental Protection Agency (EPA) awarded contract EP-S7-11-07 to DNT Environmental Services, Inc. (DNT or contractor) for the remediation of properties contaminated by lead tailings1 in St. Francois County, Missouri. In this appeal, the appellant, DNT, contends that the EPA failed to order the minimum quantities of two contract line item numbers (CLINs) required by the contract’s indefinite quantity (IQ) provision. DNT claims it is entitled to $411,853.19, the difference between the actual tonnage/cubic yardage ordered by the EPA, and the minimum tonnage/cubic yardage stated in the contract. DNT also contends that the EPA acted arbitrarily and capriciously when it 1 Tailings are the by-products left over from mining and extracting resources. CBCA 3909 2 denied payment for incentive #1. DNT claims it is entitled to an additional $57,792.60, the amount of the denied incentive payment. The parties elected to submit the case for decision on the written record pursuant to Rule 19 of the Board’s Rules of Procedure. 48 CFR 6101.19 (2014). The record considered by the Board in issuing this decision consists of the appeal file (Exhibits 1 through 677); the EPA’s appeal file supplement (Supplement, Exhibits 573-77);2 the joint statement of facts (JSF 1-54); DNT’s brief and reply brief, including the declarations of John Teague (May 18, 2015) and Zachary Waske (May 15, 2015); and the EPA’s brief. For the reasons set forth below, we deny the appeal. Background The Big River Mine Tailings Superfund Site encompasses parts of St. Francois County, Missouri. Exhibit 13; JSF 1. The soil within the county is contaminated by lead and other heavy metals from old mine tailing storage. Exhibit 1, Performance Work Statement (PWS) at 1; JSF 1. In 2010, the EPA released an action memo under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Pub. L. No. 96-510, 94 Stat. 2767) (1980) and Superfund Amendments and Reauthorization Act (SARA), Pub. L. 99-499, 100 Stat. 1613 (1986), to reduce the amount of human exposure to the lead-contaminated soil within the site. As part of the site clean-up, the EPA commenced a time-critical removal action for the county in 2011. Exhibit 1, PWS at 1. The EPA initiated the project to remediate the contaminated soil by issuing solicitation SOL-R7-11-00009. Exhibit 1; JSF 1-3. The solicitation contained a PWS4 describing what was required to perform the removal of contaminated materials at the site and indicated: There are 300 residential properties and portions of 5 school properties requiring remediation under this contract as provided in Enclosure A. Areas 2 Exhibits 573 through 577 in the appeal file supplement are not the same exhibits as Exhibits 573 through 577 in the appeal file. 3 All exhibits are found in the appeal file, unless otherwise noted. 4 The PWS was attachment 1 in the solicitation (Exhibit 1) and later the contract (Exhibit 6). In the contract the PWS is also referred to as the statement of work (SOW). For consistency and ease of reference, we will refer and cite to this document as the PWS. CBCA 3909 3 to be remediated will be less than one acre per property as described in the Superfund Lead-Contaminated Residential Sites Handbook. The maximum depth of excavation is 24 inches. PWS at 1; JSF 15. Enclosure A was the list of properties to be remediated. In pertinent part, enclosure A listed the location (address) and an identification number for each property. Enclosure A contained a list of five schools and 307 residential properties. The PWS indicated “the objective of the excavation work is to remove lead-contaminated soil greater than or equal to 800 mg/kg [milligrams/kilograms] in areas delineated by the EPA.” PWS at 11-12.