1997-05-20 – EPA – West Lake Landfill – Settlement Negotiation Consultant Consent Request

1997-05-20-epa-west-lake-landfill-settlement-negotiation-consultant-consent-request

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Redacted
FOIA Exemption 4
TECHNICAL SERVICES AGREEMENT — CONSULTANT
JAMS/Endispute
Consultant
222 S. Riverside Plaza, Suite 1850
Address
Chicago,
City
(800)445-4650
Telephone
IL
State
FAX:
Tax Identification Number
60606
Zip
312-655-9197
DYNA MAC
Cc:JRPCJRATICIN
The Dynamac Building
2275 Research Boulevard
Rockville, MD 20850-3268
Telephone: 301-417-9800
FAX: 301-417-9801
AGREEMENT
NUMBER
1. Parties to this Agreement. This agreement is made this_ day of , 19_, between
Dynamac Corporation, a Delaware corporation hereinafter called DYNAMAC, with its
headquarters located at 2275 Research Blvd., Rockville, Maryland, 20850-3268, and __
JAMS/Endispute hereinafter called Consultant, with offices at222 s. Riverside Plaza, Suite lf:!50,
Chicago, nDYNAMAC desires to procure and Consultant desires to provide certain technical services.
This Agreement between the parties shall constitute a basic Agreement, the terms and
conditions of which shall apply to each Purchase Order issued by DYNAMAC and accepted
by Consultant.
2. Term. The term of this Agreement shall commence on the date of execution of this
Agreement and shall continue until terminated by the provisions of Article 16.
3. Scope of Services. Under the terms of this Agreement, Consultant shall provide the technical
services listed in Addendum A which shall specify:
a. Contract number and nature of work to be performed;
b. Category of staffing of each individual required;
c. Estimated start date and estimated completion date;
d. Total not-to-exceed cost;
e. Individual who will coordinate for DYNAMAC;
f. Other information which is necessary to clarify the work.
Consultant shall provide the technical services according to the fees listed in Addendum A.
DYNAMAC shall request such services in writing in a Purchase Order. Consultant shall
provide the services requested and shall reply in writing to DYNAMAC’s request within a
reasonable time following receipt by Consultant of DYNAMAC’s request. The Consultant
is not authorized to start work until he receives a Purchase Order signed by DYNAMAC. ,· ·
I
4. Modification of Scope of Services. DYNAMAC may at any time modify the scope of services
upon written notice to Consultant specifying the desired modifications on the Purchase
Order and, if required, Addendum A Consultant shall at its discretion, agree to perform
such services according to mutually-agreed-to-changes. A copy of the revised Purchase
Order and modified Addendum A Form accepted and executed by Consultant shall be
returned to DYNAMAC.
5. Cancellation of Technical Services. DYNAMAC may at any time cancel the performance of
any technical services upon ten (10) days prior written notice to Consultant stating its
intention to cancel and specifying the Purchase Order number and Addendum A Form to
be canceled and the date upon which such cancellation shall be effective. In the event of
such cancellation, DYNAMAC shall pay for reasonable and authorized services rendered
and expenses incurred prior to the effective date of cancellation.
6. Billing of Services. Consultant shall invoice DYNAMAC “monthly” for the services rendered
during the preceding “monthly” period using the form Addendum B. Payment shall be made
by DYNAMAC approximately thirtY (30) days following DYNAMAC receipt and approval
of the invoice.
7. Payment. In consideration of the services rendered to DYNAMAC by Consultant under this
agreement, DYNAMAC shall pay Consultant in accordance with the signed Purchase Order.
The fees listed in Attachment A are considered fixed and shall not be amended unless
mutually agreed to in writing by both parties. Any estimates made by Consultant for the
cost of services to DYNAMAC shall be made in good faith but shall in no event be higher
than those charged to Consultant’s most favored client or customer.
8. Travel. Consultant may be required to furnish services on DYNAMAC or other premises.
DYNAMAC shall reimburse the Consultant for travel expenses (as authorized in Joint
Travel Regulations) that have been authorized in writing including living expenses incident
to such travel; however, travel time shall not be considered as time spent in furnishing
services. All payments for such authorized expenses shall be made upon submission of
Addendum C by the Consultant, including all receipts .
9. Independent Consultant. In furnishing services pursuant to this Agreement, the Consultant
shall at all times be acting as an independent Consultant and shall be responsible for all
income and other payroll-associated taxes. As such, the Consultant shall not be an
employee of DYNAMAC and shall not by reason of this Agreement or services hereunder
be entitled to participate in or to receive any benefit or right under any of the DYNAMAC
employee benefit or insurance plans.
10. Reassignment of Personnel. Consultant shall not reassign any personnel without prior
notification to DYNAMAC. All proposed substitutes shall have qualifications equal to or
higher than the qualifications of the person to be replaced. DYNAMAC shall be notified
of any proposed substitution at least thirty (30) days in advance of the substitution. Such
notification shall include: (a) an explanation of the circumstances necessitating the
substitution, (b) a complete resume of the proposed substitute, and (c) any other
information requested by DYNAMAC in order to determine that the Consultant is
maintaining the same high quality of personnel. H approved, such person shall be billed at
a rate no higher than that of the person for whom the substitution was made.

11. Non-Competing. This Agreement is intended to secure Consultant’s help and cooperation
and Consultant agrees that during the term of this Agreement, Consultant shall not accept
any employment or engage in work or business adverse to the interest of DYNAMAC
insofar as such employment, work or business may involve or be closely related to matters
referred to Consultant under this Agreement, or where any third party which competes with
DYNAMAC in the field of this Agreement might be benefitted by the services rendered or
information gained by the Consultant under this Agreement.
12. Proprietary Rights. In view of the confidential relations which are contemplated under this
·Agreement, the Consultant shall promptly disclose and assign to DYNAMAC any inventions
or discoveries . made or conceived resulting from the work done by Consultant for
DYNAMAC during the term of this Agreement. Any such inventions or discoveries shall
become and remain the property of DYNAMAC whether or not patent or other applications
are filed thereon. From time to time, at DYNAMAC’s request and at its expense, the
Consultant shall make applications upon any such inventions or discoveries through
attorneys or representatives designated by DYNA.MAC for Letters Patent in the United
States and in all other countries, and shall assign such applications to DYNA.MAC or its
order forthwith. The Consultant shall give DYNA.MAC, its attm:neys and representatives,
all reasonable assistance in preparing such applications, and from time to time, upon
request, shall executed all papers and do all things that may reasonably be required to
protect the rights of DYNA.MAC and vest in it or its nominees the inventions and Letters
Patent herein provided for.
13. Confidentiality. The Consultant shall keep such written records and make such reports upon
Consultants work under this Agreement as may be requested by DYNA.MAC, and shall not
disclose any DYNA.MAC proprietary or confidential information obtained or developed
during the term of this Agreement to any third person without the written consent of an
authorized representative of DYNA.MAC, either during the term of this Agreement or
thereafter. Consultant fully understands that the proprietary and/or confidential
information, while not being limited to, does include the identity of any DYNA.MAC clients,
data developed on any scientific studies, computer programs and associated data, and any
proprietary DYNA.MAC products. The Consultant shall deliver to DYNA.MAC, at its
request, all such records, together with any written material which may have been furnished
to Consultant by DYNA.MAC in connection with this Agreement, and thereafter Consultant
shall make no further use or utilization of any such material and information without the
prior written consent of DYNA.MAC.
14. Liability. Consultant shall be liable for any and all loss, destruction or damage to any
DYNAMAC-furnished materials when such loss, destruction or damage was due to the
negligence of Consultant, and to the extent of restoring the lost, destroyed, or damaged
materials, provided that such restoration can reasonably be performed by Consultant, and
DYNAMAC furnishes Consultant with all source data necessary for such restoration.
15. Indemnification. Consultant hereby releases and agrees to defend, indemnify and hold
harmless DYNA.MAC, DYNA.MA.C’s parent company, DYN.AMAC’s employees, directors,
officers, agents and subcontractors from and against any and all liabilities, claims, damages,
losses costs and expenses for all injuries to or death of any and all persons and for loss of
or damage to property, including but not limited to loss or use thereof, arising directly in
connections with the services described herein, where caused by the Consultant or his
employees or agents.

16. Tennination of Agreement. DYNAMAC may at any time terminate this Agreement upon
five (5) days prior written notice to Consultant stating its intention to terminate and
specifying the date upon which such termination shall be effective. All obligations of the
Consultant under Articles 12 and 13 above shall survive and not be affected by any
termination of this Agreement or its expiration.
Upon termination of this Agreement, the parties shall promptly return to each other all
written matter of any type provided by the other party, which contains confidential
information; the Consultant shall be paid for services rendered and reimbursable expenses
incurred up to the date of such termination and not thereafter. Payment upon termination
shall be accepted by the Consultant in full satisfaction of all claims and demands against
DYNAMAC based upon or arising out of or in connection with this Agreement.
17. Severability. In the event that any of the provisions contained in this Agreement shall, for
any reason, be held to be unenforceable in any respect under the laws of the State of
Maryland, such unenforceability shall not affect any other provisions of this Agreement, but
this Agreement sh~l be construed as if such unenforceable provisions had never been
contained herein.
18. Oral Representations. No employee, agent or representative of DYNAMAC has the
authority to bind DYNAMAC to any oral representation concerning these services.
19. Service of Notice. Any notice required or permitted to be sent under this Agr~ement shall
be delivered by hand or mailed by registered mail, return receipt requested, to the addresses
of the parties first set forth in this Agreement. Notice so sent shall be deemed effective on
the first day following the date of mail deposit.
20. Entire Agreement. This Agreement, including those provisions and conditions contained in
DYNAMAC’s purchase order, constitutes the entire Agreement of the parties. No waiver,
notice, alteration, or modification of any of the provisions shall be binding unless in writing
and signed by a duly authorized representative of DYNAMAC and of the Consultant. Tiris
Agreement shall be governed by the laws of the State of Maryland and there are no
understandings or representations expressed or implied, not specified herein.
DYNAMAC Acceptance: Consultant Acceptance:
Signature Signature Date
David A. Biver
Name Name (print)
Vice President
Title Title
Redacted
FOIA Exemption 4
The Conflict of Interest provisions set forth in the prime contract are hereby made apart of this
consultant agreement.
H-2 ORGANIZATIONAL CONFLICTS OF INTEREST (EPAAR 1552.209-71) (MAY 1994)
(a) The Subcontractor warrants that, to the best of the S.lbcontractor’ s knowledge and belief, there
are no relevant facts or circumstances which could give rise to an organization conflict of interest,
as defined in FAR Subpart 9.5, or thatthe Subcontractor has disclosed all such relevant information
(b) Prior to commencement of any work, the Subcontractor agrees to notify the Dynamac
Contracting Officer immediately that, to the bes: of its knowledge and belief, no actual or potential
conflict of interest exists or to identify to the Dynamac Contracting Officer any actual or potential
conflict of interest the firm may have. In emergency situations, however, work may begin but
notification shall be made within three (3) working days.
( c) Th~ Subcontractor agrees that if an actual or potential organizational conflict of interest is
identified during performance, the Subcontractorwill immediaely make a full disclosure in writing
to the Dynamac Contracting Officer. This disclosure shall include a description of actions which
the Subcontractor has taken or proposes to take, after consultation with Dynamac’ s Contracting
Officer, to avoid, mitigate, or neutralize the actual or potential conflict of interest. The
Subcontractor shall continue performance until notified by Dynamac’s Contracting Officer of any
contrary action to be taken.
(d) Remedies. Dynamac may terminate this Subcontract cr any work assignment issued hereunder
for convenience, in whole or in part, if it deems such termination necessary to avoid an
organizational conflict of interest. If the Subcontractor was aware of a potential organizational
conflict of interest prior to award or discovered an actual or potential conflict after award and did
not disclose it or misrepresented relevant infonrution to Dynamac ‘s Contracting Officer, Dynamac
may terminate the Subcontract fer default, debar the Subcontractor from Dynamac subcontracting,
or pursue other remedies as may be permitted by law or this Subcontract. .
(e) The Subcontractor agrees to insert in each subcontract or consultant agreement placed
hereunder, except for subcontracts or consultant agreements for well drilling, fence erecting,
plumbing, utility hookups, security guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including this paragraph (e).
H-3 NOTIFICATION OF CONFLICTS OF INTEREST REGARDING PERSONNEL (EPAAR
1552.209-73) (MAY 1994)
(a) In addition to the requirements of the subcontract clause entitled “Organizational Conflicts of
Interest,” the following provisions with regard to employee personnel performing under this
Subcontract shall apply until the earlier of the following two dates: the termination date of the
affected employee(s) or the expiration date of !he Sub~ontra~t. _ _
(b) The Subcontractor agrees to notify immediately the Dynamac Project Manager and the Dynama:
Contracting Officer of (1) any actual or potential personal conflict of interest with regard to any of
its employees working on or having access to information regarding this Subcontract, or (2) any such
conflicts concerning lower-tier subcontractor employees or consultants wcrking on or having access
to information regarding this subcontract, when such conflicts have been reported to the
Subcontractor. A personal conflict of interest is defined as a relationship of an employee,
subcontractor employee, or consultant with an entity that may impair the objectivity of the employee,
subcontractor employee, or consultant in performing the subcontract work.
(c) The Subcontractor agrees to notify the Dynamac Project Manager and Dynamac Contracting
Officer prior to incurring costs for that employee’s work when an employee may have a personal
conflict of interest. In the event that the personal conflict of interest does not become known until
after performance on the Subcontract begins, the Subcontractor shall immediately notify Dynamac’ s
Contracting Officer of the personal conflict of interest. The Subcontractor shall continue
performance of this subcontract until notified by Dynamac’ s Contracting Officer of the appropriate
action to be taken.
(d) The Subcontractor agrees to insert in each subcontract or consultant agreement placed
hereunder, except for subcontracts or consultant agreements for well drilling, fence erecting,
plumbing, utility hookups, security guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including this paragraph (d).
STATEMENT OF WORK
Site Background
West Lake Landfill (the “Site), Operable Unit No. 1, involves a remedial
investigation/feasibility study (RI/FS) being performed by Cotter Corporation (N.S.L.),
Laidlaw Waste Systems (Bridgeton), Inc., Rock Road Industries, Inc., and the U.S.
Departme~t of Energy.
In 1966, the Atomic Energy Commission (AEC) sold 8,700 tons of leached barium
sulfate, together with other radioactive residues, to Continental Mining and Milling
Company (Continental Mining). The radioactive residues were generated as byproducts
of uranium processing performed by the AEC’ s contractor. These processing
residues were stored at the ABC’s St. Louis Airport Storage Site. Continental Mining
moved the radioactive residues to its facility at 9200 Latty A venue in Hazelwood,
Missouri. Eventually, Cotter purchased the radioactive residues and shipped all but the
8,700 tons of leached barium sulfate to its processing facility in Colorado.
In 1973, approximately 8,700 tons of radioactively contaminated leached barium sulfate
residues were mixed with approximately 39,000 tons of soil, and the entire amount was
disposed of in two areas of the Site. This material resulted from decontamination
efforts undertaken by Cotter at 9200 Latty A venue where the residues had been stored.
Studies have indicated that these two areas of the landfill are contaminated with
uranium-238, uranium-235, thorium-230, and radium-226. In addition to the
radioactive materials in the landfill, groundwater at the Site is also contaminated with
radioactive materials as well as other hazardous substances.
In 1993, EPA entered into an Administrative Order on Consent (AOC) for the
performance of a Rl/FS at the Site. As indicated above, Cotter Corporation, Laidlaw
Waste Systems, Inc., Rock Road Industries, Inc., and the U.S. Department of Energy
were signatories to this AOC.
Mediation Support
To date, the four respondents to the AOC have shared the cost of work equally. While
this allocation bas worked for the Rl/FS phase of the work, the upcoming remedial
design/remedial action (RD/RA) will be substantially more costly, and some of the
parties may have difficulty paying a 25 % share. The Rl/FS is still underway, so no
Record of Decision (ROD) has been issued and it is not expected that a ROD will be
issued before this mediation process is complete. ·
Despite the absence of projected remedial costs, both the PRPs and DOE are willing to
proceed with a mediation effort. In particular, DOE seeks a greater degree of certainty
in its budget planning process, and along with the PRPs may see mediation as an
opportunity to adopt a more equitable basis for liability than the current per capita
scheme.
On December 5, 1996, a meeting of the St. Louis Site Task Force was conducted in St.
Louis, Missouri. Those attending included DOE Assistant Secretary Thomas
Grumbley, EPA Regional Administrator Dennis Gramms, as well as various other
representatives of DOE, EPA, the State of Missouri, the City and County of St. Louis
and staffer.s from interested Congressional offices in the state and affected district. At
this meeting, DOE Assistant Secretary Grumbley announced that with regard to West
Lake Landfill OU-1, EPA would “allocate the responsibility at the site as best as it can
over the next six months or so, so that they can tell us what percentage of the
responsibility that [DOE] needs to take …. ”
Any allocation of responsibility that EPA may prepare, such as a non-binding allocation
of responsibility, may expose EPA to charges of favoritism, since DOE is a sister
federal entity. Discussions were held among the four identified potentially responsible
parties (PRPs) regarding how best to conduct an allocation. It was agreed that using a
third-party neutral mediator would best serve the interests of the parties and satisfy
EPA’ s desire to maintain neutrality.
Additionally, the private party PRPs have requested that in any mediation performed,
that the mediator give consideration and possibly allocate some responsibility to an
“orphan”. The orphan is B&K Construction Company, which acted as the transporter
of the radioactive materials for Cotter Corporation. It has been alleged that B&K
actually chose the Site for disposal of the wastes, although there appears to be some
conflicting information on this.
Therefore, in order to accomplish the allocation, EPA would envision starting as soon
as pr~c~i~a~l~ in order to meet the six-month deadline mentioned above. While this
schedule is ambitious, EPA still envisions that the parties would be substantially
involved in the process or nearly complete in their efforts by that date.
The process would involve voluntary allocation of liability with the four PRPs, with
EPA as a party to represent the “orphan” share previously discussed. An initial
meeting is expected, with several additional one-day meetings with all parties in
attendance to follow until resolution.
Appropriate shares for costs may include consideration of PRP ability to pay issues, as
driven by a range of estimated costs for various likely, but as yet not selected, remedial
alternatives. Additional costs or liabilities considerations may include credit for past
contributions under the per capita allocation scheme, EPA’s orphan share contribution
in the form of forgiveness of oversight costs, or other mechanisms or sources that may
come forward as the allocation proceeds. EPA would expect that the convening phase
of the mediation would resolve many of these issues to further clarify what the parties
expect from the process.
Contract Reqyirements
Dynamac Corporation was tasked on March 10, 1997, to provide a professional
arbitrator/ allocator/mediator that can provide the services indicated in the previous
information and meet the specific requirements contained in the Scope of Work section
of this document. Toward that end, Dynamac is soliciting bids to conduct the following
work from professional mediators, persons and organizations.
Scope of Work
A. Convening Activities (PHASE I)
1. The mediator shall contact key parties for the PRPs as identified by Dynamac Project
Manager. The mediator shall discuss the goals and purpose of the proposed mediation
process, as well as the technical or substantive issues involved in the allocation process.
If initial contacts with the key parties reveal that a mediation process is not feasible, the
mediator shall notify Dynamac, explain the difficulties (lack of interest, unequivocal
opposition of a key party, disagreement about the definition of the problem, wrong
forum or process, etc.) and await the Dynamac Project Manager’s decision on whether
to proceed with the mediation process.
2. The mediator shall provide oral reports to the Dynamac Project Manager as needed
pertaining to the general progress of the convening effort.
3. The mediator shall provide one copy of a draft convening report to the Dynamac
Project Manager within five working days of the conclusion of the convening effort.
The report shall:
a. Summarize the results of the convening contacts, including such items as:
(1) Who was contacted, representing what organization, during this period;
and
(2) Identification and discussion of the issues which the parties agree will be
considered as part of the allocation process, and the issues which the
parties choose not to have addressed in the allocation process.
b. A discussion of the chances of a successful allocation process and the goals and
purpose of the process from the viewpoints of the affected parties.
c. Recommendation of potential additional parties that should also participate in the
mediation process.
d. If the mediation process appears to be feasible, the report shall include a design
for the process including such things as:
(1) The structure and type of meetings between/among the mediator and the
affected parties;
Q.) The expected number, length, location and frequency of meetings;
(3) The research, data or information necessary prior to or during the
process;
(4) The estimated budget for the process as designed and proposed by the
mediator; and
(5) Whether an orientation session is recommended prior to the first
meeting.
(6) Commitments from the effected parties to fully participate in the
mediation process.
e. If a consultative process in not recommended, the mediator may suggest other
processes that could accomplish the goals of achieving a voluntary allocation
agreement.
The Dynamac Project Manager will review the draft convening report and provide
comments and revisions as necessary. The mediator will prepare the final report
incorporating the Dynamac Project Manager’s comments and revisions as appropriate.
The mediator shall distribute three copies of the final report to the Dynamac Project
Manager, and one copy to each of the parties interviewed for the report.
4. If Dynamac decides to proceed, the mediator shall submit an initial draft of operational
ground rules, for approval by Dynamac.
5. As a part of the convening effort, the mediator may arrange for and facilitate an initial
organizational meeting of the parties to discuss the form of the process and the parties
to be involved, to get commitments to go forward from each of the parties, discuss the
issues involved, and/or the ground rules for the process. ·
B. Mediation Activities
This phase will implement the design of the mediation process as accepted by the Dynamac
Project Manager based upon the final convening report reconunendations.
1. At the initial meetings, the mediator shall assist the group in further developing and
refining the ground rules or operating procedures of the process.
2. The mediator shall provide a draft agenda to the Dynamac Project Manager for each
meeting. The mediator shall distribute the final agenda to the Dynamac Project
Manager and to participants in the mediation process.
3. The mediator shall facilitate all plenary, subcommittee and work group sessions. As
facilitator, the mediator shall assist participants in articulating their interests,
identifying areas of agreement, and developing consensus solutions to the problems that
divide them. As facilitator, s/he shall keep the parties talking, listening, and moving
(as much as possible) towards the goal of the process.
4. The mediator shall communicate in person, by phone or in writing with process
participants to ensure that issues and concerns have been conununicated accurately and
that all participants are adequately prepared for the next meeting.
5. The mediator will be required to provide draft meeting sununaries to the Dynamac
Project Officer and the participants. The necessity for and the extent of the sununary
will be decided between the mediator and the Dynamac Project Manager during an oral
briefing following each meetings. The facilitator shall distribute final meeting
summaries to the Dynamac Project Officer and participants.
6. The mediator shall provide meeting facilities and support for all meetings. If
arrangements must be made for meetings to be held outside of the mediator’s facility,
Dynamac staff will provide logistical support in obtaining appropriate meeting
facilities.
7. The mediator shall furnish a draft report of the mediation process to the Dynamac
Project Officer within 15 working days of process completion. The report shall
include:
a. An executive sununary of the process including a brief background, an overview
of the issues discussed, and the resolutions of the issues;
b. Final meeting sununaries with relevant and necessary attachments;
c. Relevant substantive correspondence between the mediator and the participants
and between the participants (if available to the mediator); -and
d. A process evaluation by the mediator summarizing the ·results of the process,
analysis of the issues, procedural lessons learned, and reconunendations for
improvement.
The Dynamac Project Officer will review the draft final report and provide comments
and revisions as necessary and appropriate. The mediator shall prepare the final report
incorporating the comments and revisions as appropriate to maintaining the third-party
neutral status of the mediator. The mediator shall provide three copies of the final
report to the Dynamac Project Manager and one copy to each party involved in the
process.
The Conflict of Interest provisions set forth in the prime contract are hereby made apart of this
consultant agreement.
H-2 ORGANIZATIONAL CONFLICTS OF INTEREST (EPAAR 1552.209-71) (MAY 1994)
(a) The Subcontractor warrants that, to the best of the SJbcontractor’s knowledge and belief, there
are no relevant facts or circumstances which could give rise to an organization conflict of interest,
as defined in FAR Subpart 9. 5, or that the Subcontractor has disclosed all such relevant information
(b) Prior to commencement of any work, the Subcontractor agrees to notify the Dynamac
Contracting Officer immediately that, to the belt of its knowledge and belief, no actual or potential
conflict of interest exists or to identify to the Dynamac Contracting Officer any actual or potential
conflict of interest the firm may have. In emergency situations, however, work may begin but
notification shall be made within three (3) working days.
(c) The Subcontractor agrees that if an actual or potential organizational conflict of interest is
identified during performance, the Subcontractor will immedia~ly make a full disclosure in writing
to the Dynamac Contracting Officer. This disclosure shall include a description of actions which
the Subcontractor has taken or proposes to take, after consultation with Dynamac’s Contracting
Officer, to avoid, mitigate, or neutralize the actual or potential conflict of interest. The
Subcontractor shall continue performance until notified by Dynamac’ s Contracting Officer of any
contrary action to be taken.
(d) Remedies. Dynamac may terminate this Subcontract a any work assignment issued hereunder
for convenience, in whole or in part, if it deems such termination necessary to avoid an
organizational conflict of interest. If the Subcontractor was aware of a potential organizational
conflict of interest prior to award or discovered an actual or potential conflict after award and did
not disclose it or misrepresented relevant informa:ion to Dynamac’ s Contracting Officer, Dynamac
may terminate the Subcontract fer default, debar the Subcontractor from Dynamac subcontracting,
or pursue other remedies as may be permitted by law or this Subcontract.
( e) The Subcontractor agrees to insert in each subcontract or consultant agreement placed
hereunder, except for subcontracts or consultant agreements for well drilling, fence erecting,
plumbing, utility hookups, security guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including this paragraph (e).
H-3 NOTIFICATION OF CONFLICTS OF INTEREST REGARDING PERSONNEL (EPAAR
1552.209-73) (MAY 1994)
(a) In addition to the requirements of the subcontract clause entitled “Organizational Conflicts of
Interest,” the following provisions with regard to employee personnel performing under this
Subcontract shall apply until the earlier of the following two dates: the termination date of the
affected employee(s) or the expiration date of the Subcontract.
(b) The Subcontractor agrees to notify immediately the Dynamac Project Manager and the Dynama:
Contracting Officer of (1) any actual or potential personal conflict of interest with regard to any of
its employees working on or having access to information regarding this Subcontract, or (2) any such
conflicts concerning lower-tier subcontractor employees or consultants wcrking on or having access
to information regarding this subcontract, when such conflicts have been reported to the
Subcontractor. A personal conflict of interest is defined as a relationship of an employee,
subcontractor employee, or consultant with an entity that may impair the objectivity of the employee,
subcontractor employee, or consultant in performing the subcontract work.
(c) The Subcontractor agrees to notify the Dynamac Project Manager and Dynamac Contracting
Officer prior to incurring costs for that employee’s work when an employee may have a personal
conflict of interest. In the event that the personal conflict of interest does not become known until
after performance on the Subcontract begins, the Subcontractor shall immediately notify Dynamac ‘s
Contracting Officer of the personal conflict of interest. The Subcontractor shall continue
performance of this subcontract until notified by Dynamac’ s Contracting Officer of the appropriate
action to be taken.
(d) The Subcontractor agrees to insert in each subcontract or consultant agreement placed
hereunder, except for subcontracts or consultant agreements for well drilling, fence erecting,
plumbing, utility hookups, security guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including this paragraph (d).
STATEMENT OF WORK
Site Back~round
West Lake Landfill (the “Site), Operable Unit No. 1, involves a remedial
investigation/feasibility study (RI/FS) being performed by Cotter Corporation (N.S.L.),
Laidlaw Waste Systems (Bridgeton), Inc., Rock Road Industries, Inc., and the U.S.
Department of Energy.
In 1966, the Atomic Energy Commission (AEC) sold 8,700 tons of leached barium
sulfate, together with other radioactive residues, to Continental Mining and Milling
Company (Continental Mining). The radioactive residues were generated as byproducts
of uranium processing performed by the AEC’ s contractor. These processing
residues were stored at the AEC’s St. Louis Airport Storage Site. Continental Mining
moved the radioactive residues to its facility at 9200 Latty A venue in Hazelwood,
Missouri. Eventually, Cotter purchased the radioactive residues and shipped all but the
8,700 tons of leached barium sulfate to its processing facility in Colorado.
In 1973, approximately 8,700 tons of radioactively contaminated leached barium sulfate
residues were mixed with approximately 39,000 tons of soil, and the entire amount was
disposed of in two areas of the Site. This material resulted from decontamination
efforts undertaken by Cotter at 9200 Latty A venue where the residues had been stored.
Studies have indicated that these two areas of the landfill are contaminated with
ur.anium-238, uranium-235, thorium-230, and radium-226. In addition to the
radioactive materials in the landfill, groundwater at the Site is also contaminated with
radioactive materials as well as other hazardous substances.
In 1993, EPA entered into an Administrative Order on Consent (AOC) for the
performance of a Rl/FS at the Site. As indicated above, Cotter Corporation, Laidlaw
Waste Systems, Inc., Rock Road Industries, Inc., and the U.S. Department of Energy
were signatories to this AOC.
Mediation Support
To date, the four respondents to the AOC have shared the cost of work equally. While
this allocation has worked for the Rl/FS phase of the work, the upcoming remedial
design/remedial action (RD/RA) will be substantially more costly, and some of the
parties may have difficulty paying a 25 % share. The RI/FS is still underway, so no
Record of Decision (ROD) has been issued and it is not expected that a ROD will be
issued before this mediation process is complete.
Despite the absence of projected remedial costs, both the PRPs and DOE are willing to
proceed with a mediation effort. In particular, DOE seeks a greater degree of certainty
in its budget planning process, and along with the PRPs may see mediation as an
opportunity to adopt a more equitable basis for liability than the current per capita
scheme.
On December 5, 1996, a meeting of the St. Louis Site Task Force was conducted in St.
Louis, Missouri. Those attending included DOE Assistant Secretary Thomas
Grumbley, EPA Regional Administrator Dennis Gramms, as well as various other
representatives of DOE, EPA, the State of Missouri, the City and County of St. Louis
and staffers from interested Congressional offices in the state and affected district. At
this meeting, DOE Assistant Secretary Grumbley announced that with regard to West
Lake Landfill OU-1, EPA would “allocate the responsibility at the site as best as it can
over the next six months or so, so that they can tell us what percentage of the
responsibility that [DOE] needs to take …. ”
Any allocation of responsibility that EPA may prepare, such as a non-binding allocation
of responsibility, may expose EPA to charges of favoritism, since DOE is a sister
federal entity. Discussions were held among the four identified potentially responsible
parties (PRPs) regarding how best to conduct an allocation. It was agreed that using a
third-party neutral mediator would best serve the interests of the parties and satisfy
EPA’ s desire to maintain neutrality.
Additionally, the private party PRPs have requested that in any mediation performed,
that the mediator give consideration and possibly allocate some responsibility to an
“orphan”. The orphan is B&K Construction Company, which acted as the transporter
of the radioactive materials for Cotter Corporation. It has been alleged that B&K
actually chose the Site for disposal of the wastes, although there appears to be some
conflicting information on this.
Therefore, in order to accomplish the allocation, EPA would envision starting as soon
as practicable in order to meet the six-month deadline mentioned above. While this
schedule is ambitious, EPA still envisions that the parties would be substantially
involved in the process or nearly complete in their efforts by that date.
The process would involve voluntary allocation of liability with the four PRPs, with
EPA as a party to represent the “orphan” share previously discussed. An initial
meeting is expected, with several additional one-day meetings with all parties in
attendance to follow until resolution.
Appropriate shares for costs may include consideration of PRP ability to pay issues, as
driven by a range of estimated costs for various likely, but as yet not selected, remedial
alternatives. Additional costs or liabilities considerations may include credit for past
contributions under the per capita allocation scheme, EPA’s orphan share contribution
in the form of forgiveness of oversight costs, or other mechanisms or sources that may
come forward as the allocation proceeds. EPA would expect that the convening phase
of the mediation would resolve many of these issues to further clarify what the parties
expect from the process.
Contract Req.uirements
Dynamac Corporation was tasked on March 10, 1997, to provide a professional
arbitrator/ allocator/mediator that can provide the services indicated in the previous
information and meet the specific requirements contained in the Scope of Work section
of this document. Toward that end, Dynamac is soliciting bids to conduct the following
work from professional mediators, persons and organizations.
Scope of Work
A. Convening Activities (PHASE I)
1. The mediator shall contact key parties for the PRPs as identified by Dynamac Project
Manager. The mediator shall discuss the goals and purpose of the proposed mediation
process, as well as the technical or substantive issues involved in the allocation process.
If initial contacts with the key parties reveal that a mediation process is not feasible, the
mediator shall notify Dynamac, explain the difficulties (lack of interest, unequivocal
opposition of a key party, disagreement about the definition of the problem, wrong
forum or process, etc.) and await the Dynamac Project Manager’s decision on whether
to proceed with the mediation process.
2. The mediator shall provide oral reports to the Dynamac Project Manager as needed
pertaining to the general progress of the convening effort.
3. The mediator shall provide one copy of a draft convening report to the Dynamac
Project Manager within five working days of the conclusion of the convening effort.
The report shall:
a. Summarize the results of the convening contacts, including such items as:
(1) Who was contacted, representing what organization, during this period;
and
(2) Identification and discussion of the issues which the parties agree will be
considered as part of the allocation process, and the issues which the
parties choose not to have addressed in the allocation process.
b. A discussion of the chances of a successful allocation process and the goals and
purpose of the process from the viewpoints of the affected parties.
c. Recommendation of potential additional parties that should also participate in the
mediation process.
d. If the mediation process appears to be feasible, the report shall include a design
for the process including such things as:
(1) The structure and type of meetings between/among the mediator and the
affected parties;
(2) The expected number, length, location and frequency of meetings;
(3) The research, data or information necessary prior to or during the
process;
( 4) The estimated budget for the process as designed and proposed by the
mediator; and
(5) Whether an orientation session is recommended prior to the first
meeting.
(6) Commitments from the effected parties to fully participate in the
mediation process.
e. If a consultative process in not recommended, the mediator may suggest other
processes that could accomplish the goals of achieving a voluntary allocation
agreement.
The Dynamac Project Manager will review the draft convening report and provide
comments and revisions as necessary. The mediator will prepare the final report
incorporating the Dynamac Project Manager’s comments and revisions as appropriate.
The mediator shall distribute three copies of the final report to the Dynamac Project
Manager, and one copy to each of the parties interviewed for the report.
4. If Dynamac decides to proceed, the mediator shall submit an initial draft of operational
ground rules, for approval by Dynamac.
5. As a part of the convening effort, the mediator may arrange for and facilitate an initial
organizational meeting of the parties to discuss the form of the process and the parties
to be involved, to get commitments to go forward from each of the parties, discuss the
issues involved, and/or the ground rules for the process.
B. Mediation Activities
This phase will implement the design of the mediation process as accepted by the Dynamac
Project Manager based upon the final convening report recommendations.
1. At the initial meetings, the mediator shall assist the group in further developing and
refining the ground rules or operating procedures of the process.
2. The mediator shall provide a draft agenda to the Dynamac Project Manager for each
meeting. The mediator shall distribute the final agenda to the Dynamac Project
Manager and to participants in the mediation process.
3. The mediator shall facilitate all plenary, subcommittee and work group sessions. As
facilitator, the mediator shall assist participants in articulating their interests,
identifying areas of agreement, and developing consensus solutions to the problems that
divide them. As facilitator, s/he shall keep the parties talking, listening, and moving
(as much as possible) towards the goal of the process.
4. The mediator shall communicate in person, by phone or in writing with process
participants to ensure that issues and concerns have been communicated accurately and
that all participants are adequately prepared for the next meeting.
5. The mediator will be required to provide draft meeting summaries to the Dy~amac
Project Officer and the participants. The necessity for and the extent of the summary
will be decided between the mediator and the Dynamac Project Manager during an oral
briefing following each meetings. The facilitator shall distribute final meeting
summaries to the Dynamac Project Officer and participants.
6. The mediator shall provide meeting facilities and support for all meetings. If
arrangements must be made for meetings to be held outside of the mediator’s facility,
Dynamac staff will provide logistical support in obtaining appropriate meeting
facilities.
7. The mediator shall furnish a draft report of the mediation process to the Dynamac
Project Officer within 15 working days of process completion. The report shall
include:
a. An executive summary of the process including a brief background, an overview
of the issues discussed, and the resolutions of the issues;
b. Final meeting summaries with relevant and necessary attachments;
c. Relevant substantive correspondence between the mediator and the participants
and between the participants (if available to the mediator); and
d. A process evaluation by the mediator summarizing the results of the process,
analysis of the issues, procedural lessons learned, and recommendations for
improvement.
The Dynamac Project Officer will review the draft final report and provide comments
and revisions as necessary and appropriate. The mediator shall prepare the final report
incorporating the comments and revisions as appropriate to maintaining the third-party
neutral status of the mediator. The mediator shall provide three copies of the final
report to the Dynamac Project Manager and one copy to each party involved in the
process.
DVNAMAC
CORPORATION
Environmental Services Page 1of3
PRICE NEGOTIATION MEMORANDUM
PRIME CONTRACT NUMBER: 68-W4-0039
PROJECT NAME: Alternative Dispute Resolution for the West Lake Landfill
EPA WORK ASSIGNMENT MANAGER: Mr. Steve Kinser
DESCRIPTION OF REQUIREMENT:
A. Convening Activities (PHASE I)
1. The allocator shall contact key parties for the PRPs as identified by Dynamac Project
Manager. The allocator shall discuss the goals and purpose of the proposed allocation
process, as well as the technical or substantive issues involved in the allocatipn process.
If initial contacts with the key parties reveal that an allocation process is not feasible, the
allocator shall notify Dynamac, explain the difficulties (lack of interest, unequivocal
opposition of a key party, disagreement about the definition of the problem, wrong forum
or process, etc.) and await the Oynamac Project Manager’s decision on whether to
proceed with the allocation process.
2. The allocator shall provide oral reports as needed to the Dynamac Project Manager as
needed pertaining to the general progress of the convening effort.
3. The allocator shall provide one copy of a draft convening report to the Dynamac Project
Manager within five working days of the conclusion of the convening effort. The report
shall:
a. Summarize the results of the convening contacts, including such items as:
(1) Who was contacted, representing what organization, during this
period; and
(2) Identification and discussion of the issues which the parties agree
will be considered as part of the allocation process, and the issues which
the parties choose not to have addressed in the allocation process.
b. A discussion of the chances of a successful allocation process and the goals and
purpose of the process from the viewpoints of the affected parties.
c. Recommendation of potential additional parties that should also participate in the
consultative process.
The Dynamac Building, 2275 Research Boulevard, Rockville, f\:ID 20850-3268 Telephone: (301) 417-9800, Fax: (301) 417-9801
DVNAMAC
CORPORATION
Environmental Services Page 2of3
PRICE NEGOTIATION MEMORANDUM
PRIME CONTRACT NUMBER: 68-W4-0039
PROJECT NAME: Alternative Dispute Resolution for the West Lake Landfill
EPA WORK ASSIGNMENT MANAGER: Mr. Steve Kinser
d. If the allocation process appears to be feasible, the report shall include a design
for the process including such things as:
(1) The structure and type of meetings between/among the allocator
and the affected parties;
(2) The expected number, length, location and frequency of meetings;
(3) The research, data or information necessary prior to or .during the
process;
(4) The estimated budget for the process as designed and proposed
by the allocator; and
(5) Whether an orientation session is recommended prior to the first
meeting.
(6) Commitments from the effected parties to fully participate in the
allocation process.
e. If a consultative process in not recommended, the allocator may suggest other
processes that could accomplish the goals of achieving a voluntary allocation
agreement.
The Dynamac Project Manager will review the draft convening report and provide
comments and revisions as necessary. The allocator will prepare the final report
incorporating the Dynamac Project Manager’s comments and revisions as appropriate.
The allocator shall distribute three copies of the final report to the Dynamac Project
Manager, and one copy to each of the parties interviewed for the report.
4. If Dynamac decides to proceed, the allocator shall submit an initial draft of operational
ground rules, for approval by Dynamac.
The Dynamac Building, 2275 Research Boulevard, Rockville, MD 20850-3268 Telephone: (301) 417-9800, Fax: (301) 417-9801
Redacted
Redacted
Redacted
Redacted
FOIA Exemption 4
DYNAMAC CORPORATION INTERNAL MEMORANDUM
DATE:
TO:
FROM:
SUBJECT:
May 16, 1997
Dave Biver, Vice-President, Contracts
Alan Cummings
Mediator Selection Recommendations
Work Assignment, C07023
On May 9, 1997, at 1335 Hours CDT, the mediator selection committee convened via conference
telephone call to select a mediator to conduct the voluntary allocation process defined in the
Statement of Work for Work Assignment C07023. The selection committee consisted of:
Alan Cummings, Dynamac, work assignment project manager;
Ron Harris, Dynamac, attorney with ADR experience; and
Dave Dekkar, Arent Fox Kintner Plotkin & Kahn ,consulting attorney with extensive ADR
experience.
The selection committee reviewed two proposals that were received by Dynamac on April 24, 1997,
in response to a solicitation issued by Dynamac and forwarded to members of the selection
committee on April 25, 1997. Proposals were submitted by:
J.A.M.S/Endispute, naming William Hartgering as the mediator candidate; and
Clean Sites, naming Kathleen Whitby as the mediator candidate.
The selection committee evaluated each proposal in three areas:
Technical qualifications;
Convening plan content and specificity; and
Proposed budgets for the convening process.
Technical Qualifications
In the areas of education, training, and certifications, both proposed mediators met the evaluation
criteria in that both are attorneys with litigation experience, both are bar members, both are
recognized as mediators and arbitrators by professional organizations.
Although information contained in the proposals indicated that the Clean Sites candidate had more
experience in dealing with Superfund issues, the Endispute candidate clearly had more ADR
experience in successfully dealing with complex mediation/arbitration issues, many of which involved
May 16, 1997 Page 1
Superfund allocations. This experience includes a past and current landfill mediation effort. In the
Committee’s view, a basic knowledge of Superfund issues is critical, but the success of the mediation
will ultimately depend more upon the selected individual’s skill and experience as a mediator, than
upon the depth of the individual’s knowledge of Superfund Issues.
Clean Sites proposed a team approach to mediation, while Endispute proposed a single mediator
with logistic support provided by Endispute. The selection committee agreed that a team approach
would likely be less effective than a single mediator. Slight delays that may be caused by scheduling
problems with a single mediator will likely be more favorable than having the parties in the
mediation process deal with more than one mediator at different stages in the process. For reasons
of consistencyr and maintenance of the trust developed by the mediator in the early mediation stages,
the selection committee favored the single mediator approach.
In the areas of Conflict of Interest and availability, the selection committee agreed that both
proposals were acceptable.
Summary: In the area of Technical Qualifications, the selection committee slightly favored the
Endispute proposal based primarily on the overall ADR experience of the proposed
mediator and the single mediator approach.
Convening Plan
The selection committee compared the proposed convening plans with the requirements for the
convening process contained in the Statement of Work (SOW) in the mediation solicitation.
The convening plan proposed by Endispute precisely followed the solicitation SOW. The plan
clearly proposed three parts to completing the convening phase:
1. Introductory telephone conferences;
2. Joint preliminary meeting; and
3. Follow-up individual PRP meetings.
The plan contained specific objectives for each part and an estimated effort to complete each part.
The proposal specified that at the end of this process the PRPs would have a process in place for
mediation efforts or would have decided that the matter is not yet ready to mediate. The proposed
procedure clearly recognizes that this mediation process may not proceed past the convening stage
at this time.
The convening plan proposed by Clean Sites contained an overview of the convening process, but
did not tie the objectives into an action plan. Although there are usually several consecutive and
concurrent activities associated with this activity, Clean Sites proposed project approach was not
clear to the selection committee. It contemplated many possible scenarios that are beyond the
Convening Stage and did not contain any milestones to evaluate progress and likelihood of success
that were clear to the selection committee. The plan did indicate that parties involved in the process
might decide that this process may not be desirable at all or not desirable at this time.
Summary:
May 16, 1997
The selection committee favored the convening plan submitted by Endispute. The
plan was divided into easily understandable phases, contained clear and specific
objectives for each phase, and an estimated effort for each phase.
Page 2
Proposed Budget
The selection committee reviewed the proposed budgets from two perspectives; 1) As compared to
the effort estimated in the proposed convening plan, and 2) as compared to the other proposal.
The En dispute proposal contained hourly rate information for the number of PRPs identified in the
Background Section of the solicitation. Utilizing the effort estimates contained in the convening
plan, an estimated cost range was easily determined. Support for the mediation efforts was provided
as a fixed percentage of the fee for services. The proposal did not contain an estimate of direct
charges for travel associated with the St. Louis meeting. The top range of effort specified in the cost
estimate was 28 hours professional LOE.
The Clean Site proposal contained a matrix indicating tasks and professional category, and the
estimated effort for each. The selection committee could not clearly identify the tasks in the matrix
based on the proposed convening plan. Although one task was identified as Convening, the overall
cost estimate for the convening process was based on the total effort identified in the matrix. The
selection committee could not break out level of effort to phases of the convening process. The total
professional LOE estimatec.l in the Clean Sites budget was 164 hours, with 32 hours of clerical
support.
Comparatively, the En dispute budget was substantially less for a “worst-case scenario” than the Clean
Sites budget.
Summary: The selection committee favored the budget submitted by Endispute. The budget
was clearly linked to specific action plan phases. The Endispute budget was
substantially less than that submitted by Clean Sites. The selection committee
conclude.d, based on plan specificity, that the costs proposed by Endispute for the
convening process were reasonable for the proposed plan (not artificially low when
compared to the plan).
Conclusions and Recommendations
Based on the conclusions contained in the summaries for each evaluation section, the selection
committee recommends the selection of the mediator proposed in the Endispute proposal. The
committee favored the Endispute proposal in each of the three evaluation areas for the reasons
specified.
May 16, 1997 Page 3
ADR Associates
1630 S. 8th St.
Rogers, AR
72756
Telephone: (501) 621-5455
American Arbitration Association
13455 Noel Road, S.te. 1750
Dallas, TX
75240
Telephone: ( 405) 235-4443
Clean Sites, Inc.
53 W. Jackson Boulevard
Chicago, IL
60604
Telephone: (312) 554-0900
Endispute, Inc.
70 W. Madison Street
Chicago, IL
60602
Telephone: (312) 739-0900
Indiana Environmental Institute, Inc.
150 W. Market
Indianapolis, IN
46204
Telephone: (317) 635-6018
Institute for Environmental Assessment
7877 L Street
Omaha, NE
68127
Telephone: ( 402) 339-6240
Keystone Center
199 S. Herlong Avenue
Rock Hill, SC
29732
Telephone: (803) 324-1800
The Mediation Institute
7216 Walnut Cr. Dr.
Oklahoma City, OK
73142
Telephone: (405) 528-1121
Resolve
401 Ohio
Terre Haute, IN
47801
Telephone: (812) 231-1789
Resource Associates
P. 0. Box 1505
Arlington Heights, IL
Telephone: (847) 255-1400
Western Network
616 Don Gaspar A venue
SantaFe,NM
87501
Telephone: (505) 982-9805
‘i
J · A · M · S Innovative Solutions To Conflict
END IS PLJTE 222 S. Riverside Plaza • Suite 1850 • Chicago, IL 60606 • 312-655-0555 • Fax 312-655-0644
PROPOSAL FOR
COST ALLOCATION AND MEDIATION SERVICES
WILLIAM E. llARTGERING, MEDIATOR
WEST LAKE LANDFILL SITE
ST. LOUIS, MISSOURI
JAMS/ENDISPUTE
222 SOUTH RIVERSIDE PLAZA SUITE 1850
CHICAGO, ILLINOIS 60606
CONTACT: WILLIAM HARTGERING 312-655-9197
Introduction
On behalf of JAMS/ENDISPUTE, we appreciate the opportunity to respond to your request for
information. We propose William Hartgering, now an independent contractor from our
Chicago office, for your consideration. Included below are responses to the 6 areas outlined
in Dynamic Corporation’s April 14 letter (Dynamic RFI):
1-2. Qualifications, Experience & Training
3. Process Description (including estimated time for Phase I)
4. Proposed Hourly Rate
5. Three References, and
6. Conflict ofinterest/ Availability.
I & II. “Academic” Qualifications, Relevant Experience and Specialized Training
A. Relevant Experience. As reflected in the attached
• “Selected Environmental and Related Experience” (Ex. 1 ),
•”Representative Complex, Multiparty, Highstakes Matters” (Ex. 2),
• general vitae (Ex. 3), and his
• “Representative Commercial Mediation and Arbitration References” (Ex. 4),
Bill has been a full time mediator since 1981. Having established the Chicago
JAMS/ENDISPUTE office in 1982, his mediation experience includes hundreds of complex,
multi party matters in over 40 states and foreign countries involving hundreds of major
corporations and 8 different federal agencies.
Prior to 1981, he practiced with multicity law firms, concentrating on commercial,
employment, real estate and insurance related litigation, including clients with environmental
issues. He received his JD from Northwestern University School of Law, Chicago, Illinois,
where he was appointed to the Law Review.
The “Environmental and Related Experience” (Ex. 1) includes brief descriptions of
numerous representative matters. We would enjoy the opportunity to provide additional
information on any of them. A recent environmental mediation which might be of particular
interest to you in making your selection of a mediator here. It involv~d a:
• Cliemical/Pesticide Plant Superjund Site, 5 separate areas, $40-70M Allocation.
50+ year old Chemical and Pesticide Plant site, 5 separate areas involving different
combinations of 9 corporate parties (and the EPA as a participant) and an estimated $40-
70M clean up. After 6 years of bitter litigation, there were widely divergent views on key
William Hartgering: West Lake Landfill Site Mediation Proposal
issues including “Aceto,” alter ego and successor liability, relevancy of volumetric data,
substantial “orphan share” and toxicity issues.
Chosen as allocation consultant to work with a former judge, Bill ended up working as a
co-mediator. Each party submitted responsive memoranda and extensive exhibits and presented 4
days of argument. The mediators met with the parties separately on a site by site basis. The
matter was resolved within about 4 weeks of the start of the joint meetings with the parties.
PRPs with literally hundreds of complex Superfund site disputes described this as one of
the most complex matters they had seen.
Also potentially relevant to your selection process is a matter not described in the material:
• Pending Landfill Superfund Site Allocation. Bill was recently chosen as the
mediator/allocator for a site involving Superfund dollars in southern Wisconsin after a lengthy,
apparently nationwide search initiated by the federal court which suggested mediation. It will
be mediated later this spring. It involves the EPA and 5 PRPs.
The mediation schedule has not been confirmed, but I do not believe it will pose a
problem in your matter if Bill were to be chosen.
• Related Allocation Experience. Exhibits 2 and 3 also describe numerous complex,
multiparty, high stakes matters which similarly involved difficult allocations of liability and
damages among numerous parties. Due to focused preliminary meetings and managed, issue
related joint sessions, most of these matters were completed with a week of the opening of the
joint mediation sessions.
• Mediations involving Federal Agencies. Matters involving Federal agencies involve
unique issues, interests and procedural considerations. Bill has successfully mediated matters
involving 8 separate agencies, and has recently been chosen for a matter involving the DOE in
Louisiana after being proposed by the other side (see below). Many matters involved agencies
who were unfamiliar wjth mediation, particularly in large, multi issue matters. Each involved
2 to 12+ additional private parties, several of which were represented by counsel who had
mediated with Bill in previous complex matters.
B. Specialized Training.
•Co-Trainer for Basic and Advanced EnvironmentalADR Training. Bill recently
completed service as a co-trainer for both a basic and an advanced ADR (Alternative Dispute
Resolution) workshop for Region V of the EPA, having been invited by RESOLVE as part of
their contract to provide ADR training to the EPA regions.
2
William Hartgering: West Lake Landfill Site Mediation Proposal
• Co-Trainer for ADR and Advanced Negotiation for tlze Oregon Department of
Natural Resources and tlze Attorney General
•Advanced ADR Works/tops and Presentations. Bill has both lead and participated in
dozens of “Advanced Mediation” and Group Leadership Training, Advanced ADR workshops
and presentations. He has served as
– Adjunct Faculty of the Northwestern University Kellogg School of Business and the
School of Law (teaching negotiation and ADR)
– Faculty for the National Institute for Trial Advocacy (NITA-Negotiation Training), and
– Sole leader for Administrative Conference of the United States (ACUS) ADR
workshop for ADR liaisons for most of the major federal agencies.
III. Brief Description of Process
You have asked for a “brief’ description of how Bill might proceed as the mediator,
including an estimate of the hours for Phase I. Bill describes the Mediation in 3 Phases:
Convening, Completing the “Information Exchange,” and the Separate & Joint Meetings.
A. Phase I, the “Convening Phase.”
We have a limited amount of information at this point, particularly with reference to
the level of the parties’ interest in and experience with mediation. Based on an assumption
that the parties here may not be as far along on their decision to mediate as they generally are
in his cases, Bill would propose a simple 3 part