MOTCO HAZMAT SITE, WAB No. 91-01 (WAB Aug. 13, 1991)
CCASE:
DECISION OF THE WAGE APPEALS BOARD
DDATE
19910813
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
MOTCO HAZMAT SITE WAB Case No. 91-01
Galveston County, Texas
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: August 13, 1991
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of the Laborers' International Union of North America ("Laborers"
or "Petitioner") from a ruling of the Acting Administrator of the
Wage and Hour Division dated August 27, 1990. In that ruling
Acting Administrator Samuel D. Walker held that remedial
environmental projects conducted pursuant to Section 122 of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), as amended (42 U.S.C. 9601 et seq.), are
not subject to the prevailing wage and other requirements of the
Davis-Bacon Act (40 U.S.C. 276a et seq.). An oral argument on this
issue was held before the Board on July 10, 1991.
For the reasons contained herein, the ruling of Acting
Administrator Walker is affirmed.
I. BACKGROUND
Congress enacted CERCLA in 1980 in order to directly fund
environmental cleanup projects. Section 104(g)(1) of that statute
contains an explicit Davis-Bacon requirement: [1]
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All laborers and mechanics employed by
contractors or subcontractors in the
performance of construction, repair, or
alteration work funded in whole or in part
under this section shall be paid wages at
rates not less than those prevailing on
projects of a character similar in the
locality as determined by the Secretary
of Labor in accordance with the Davis-Bacon Act. . . .
42 U.S.C. 9604(g)(1).
Section 104 governs governmental response to environmental
crises and authorizes the Environmental Protection Agency ("EPA")
to conduct necessary cleanups using "Superfund" monies. See Exxon
Corp. v. Hunt, 475 U.S. 355 (1986); and Executive Order 12580, 52
Fed. Reg. 2923 (January 23, 1987). The federal government is also
authorized under Section 104 to enter into cooperative remedial
programs with state and local entities.
In 1986, following numerous expressions of Congressional
discontent with the nature and extent (or lack thereof) of
environmental cleanups under CERCLA, the Superfund Amendments and
Reauthorization Act ("SARA") was enacted. SARA amended CERCLA by
adding two new sections of particular significance to this matter.
New Section 111 (42 U.S.C. 9611), authorized the appropriation
of up to $8.5 billion from the Superfund for certain specifically
enumerated purposes:
(1) Payment of governmental response
costs incurred under section 9604 of this
title [i.e., Section 104, supra]. . . . and
(3) Payment of any claim . . . finally
decided pursuant to section 9622 of this title
[i.e., Section 122, infra]...
New Section 122, 42 U.S.C. 9622, authorizes the President
(i.e., the EPA) to enter into settlements of environmental disputes
with "Potentially Responsible Persons":
. . . the President shall act to
facilitate agreements under this
section that are in the public
interest .... in order to expedite
effective remedial actions and
minimize litigation . . . .
42 U.S.C. 9622(a). Section 122(d) requires the use of a federal
district court consent decree to enforce a cleanup agreement. In
order to encourage these settlements, Section 122(b)(1) states:
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An agreement under this section may provide
that the President will reimburse the parties
to the agreement from the [Super]fund . . .
for certain costs of actions under the agreement
that the parties have agreed to perform but
which the President has agreed to finance . . . .
42 U.S.C. 9622(b)(1). In short, the SARA amendments provided for
an optional procedure that allows the government to "sweeten" a
private party settlement as an alternative to either litigation or
a federally financed cleanup.
In 1987, twenty-four individual and corporate defendants
entered into a consent decree with the EPA to clean up the MOTCO
site near Galveston, Texas. Under this settlement, executed
pursuant to Section 122(a), supra, the defendants agreed to design,
implement and complete a hazardous waste abatement project in a
manner approved by EPA. In order to compensate the contractors
engaged in the work, to reimburse the government for oversight
costs, and pay for other necessary costs, the consent decree
established the "MOTCO Site Trust Fund" (the "MOTCO Trust"). The
MOTCO trustee is authorized by the terms of the consent decree to
submit claims for reimbursement to the Superfund in an amount not
to exceed the lesser of $9,324,000 or 21% of certain cleanup costs.
In 1987, EPA preauthorized the submission of these claims in
accordance with Section 122 and Executive Order 12580.
Sometime thereafter the Petitioner wrote to the Secretary,
seeking a determination regarding the applicability of the
Davis-Bacon Act to the MOTCO project specifically and to Section
122 mixed funding agreements in general. The Wage and Hour
Division ruled that the Act did not apply, as the MOTCO project was
not funded in whole or in part under Section 104(g)(1) of CERCLA.
Wage and Hour relied on the distinction drawn by Congress in
amending CERCLA to add other remedial options to the statutory
scheme, and on language in the legislative history stating that
Section 122 was added to CERCLA "to clarify and confirm that the
President has the discretion to decide when responsible parties are
authorized to conduct cleanup [*] in lieu of Fund-financed
response [*]." H. Rep. No. 253 (I), 99th Cong., 2d Sess. at 67,
reprinted in 1986 U.S. Code Cong. & Admin. News 2835, 2849
[*](emphasis added)[*].
The petition for review of Acting Administrator Walker's
ruling was filed on January 2, 1991.
II. DISCUSSION
After enactment of the Davis-Bacon Act, Congress has
repeatedly passed statutes with prevailing wage requirements.
There are now over fifty "Davis-Bacon Related Acts." It is clear
that when Congress intends to enact prevailing [3]
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wage legislation, it tends to make that intent clear on the face of
the statute. The Board finds it highly significant, if not
determinative, that Congress did not elect to explicitly provide
for Davis-Bacon coverage in Section 122.
Examination of CERCLA and the SARA amendments leads to the
same conclusion. It is clear from the face of the statute that
Congress intended a number of responses to environmental crises,
including government cleanups under Section 104 (with attendant
Davis-Bacon requirements) and private-party cleanups under Section
122 (without Davis-Bacon coverage despite optional federal
financial participation). In light of the clarity of the statutory
scheme, the Department of Labor would be usurping the function of
Congress were it to agree with the Laborers that Davis-Bacon
coverage extends to cleanups under Section 122.
Were it necessary to go beyond the face of the statute to
determine the Congressional intent, examination of the legislative
history would reveal that the lawmakers continuously distinguished
between governmental cleanups under Section 104 and private party
cleanups under Section 122. See, e.g., H. Rep. 99-253 (V), 99th
Cong., 2d Sess. at 58, reprinted in 1986 U.S. Code Cong. & Admin.
News 3181 ("dual enforcement"); and H. Conf. Rep. 99-253, 99th
Cong., 2d Sess., reprinted in 1986 U.S. Code Cong. and Admin. News
3345 ("reimburse[ment of] private parties"); and the House Report
(quoted supra) by Acting Administrator Walker.
Accordingly, the determination of the Wage and Hour Division
is affirmed and the petition for review is dismissed.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
____________________________
Gerald F. Krizan, Esq.
Executive Secretary [4]
