U.S. Department of Labor 
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210
MEMORANDUM NO. 155
TO: ALL CONTRACITNG AGENCIES OF THE FEDERAL
GOVERNME AND THE DISTRICT OF COLUMBIA
FROM: JOHN R. FRASER
Acting Administrator
SUBJECT: Application of the Davis-Bacon Act to Hazardous Waste
Cleanup Contracts
          To promote consistency throughout the federal contracting community, I am attaching a
copy of a letter concerning the application of the Davis-Bacon Act to hazardous waste
cleanup contracts that require elaborate landscaping activities or substantial excavation and reclamation work.
Please review your agency's procedures to ensure that they comport with Department of
Labor policy.
Attachment




































U.S. Department of Labor 
Employment Standards Administration
Wage and Hour Division
Washington D.C. 20210
MAY 3I 1990
Mr. Henry Longest II
Director, Office of Emergency
and Remedial Response
United States Environmental
Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Dear Mr. Longest:
The Department of Labor (DOL) has been requested to rule on the
applicability of the Davis-Bacon Act (DBA) to the removal of
hazardous waste at the Bunker Hill Superfund Site in Kellogg,
Idaho.
As we understand the facts in this case, on March 1, 1987, the
Environmental Protection Agency (EPA) entered into Contract
No. 68-01-7334 with Riedel Environmental Services, Inc. (Riedel)
to conduct the removal of oil, petroleum, and other hazardous
substance releases pursuant to section 311 of the Clean Water Act
and section 104 of the comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), as amended by
the Superfund Amendments and Reauthorization Act of 1986 (SARA),
in the 24 states and territories designated as EPA Zone Four.
This emergency removal contract is one year in length with a
Government option to extend the effective period three (3)
additional one-year periods. The McNamara-0'Hara service
Contract Act (SCA) labor standards provisions and SCA Wage
Determination No. 82-69 (Revision-3), which is updated with the
exercise of each option, are incorporated. Under the terms of
the contract, cleanup efforts for a hazardous waste site within
EPA Zone Four are undertaken only upon the issuance of a delivery
order authorizing the specific removal activity. Depending on
the location of the hazardous substance release and its proximity
to populated areas the contract requires Riedel to respond to a
release or threatened release within two to twenty-four hours of
the receipt of a written or oral delivery order unless otherwise
specified by the delivery order.
In the instant case, Delivery order No. 7334-10-014 was issued on
April 26, 1989 requiring Riedel to begin the orderly removal and
disposal of soils contaminated with lead and other heavy metals
from selected residences within the Bunker Hill site. The
contractor was obligated to be on the site by June 5, 1989, 40












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days from the date of the Delivery Order, and to complete the
cleanup activities by April 24, 1990, one year from the effective
date of the Delivery Order. At the time this Delivery Order was
issued, SCA Wage Determination No. 82-69 (Revision-5) was
included in Contract No. 68-01-7334 and applied to the work
performed.
We have been advised that under Delivery Order No. 7334-10-014
Riedel was required to excavate and remove contaminated soils a
maximum of 12 inches in depth over an area covering some 60
residences. The excavated soils were loaded into dump trucks and
transported to a temporary storage area pending identification of
a permanent disposal site. Riedel was also required to replace
the excavated soils with non-contaminated dirt, resod the area
and replace shrubbery. We understand that approximately
$2,000,000 was obligated from the Superfund for this delivery
order.
As you know, DBA applies to "every contract in excess of $2,000,
to which the United States or the District of Columbia is a
party, for the construction, alteration, and/or repair, including
painting and decorating, of public buildings or public works.”
Section 5.2(j) of Regulations, 29 CFR Part 5, defines the
terms "construction, alteration or repair" to "mean all types
of work done on a particular building or work at the site thereof
. . . ." Section 5.2(i) of Regulations, Part 5, defines
"building" and "work", in pertinent part, as follows:
The terms "building" or "work" generally include
construction activity as distinguished from
manufacturing, furnishing of materials, or servicing
and maintenance work.' The terms include without
limitation, buildings, structures, and improvements of
all types such as bridges, dams, . . . , drilling,
blasting, excavating clearing and landscaping
(emphasis added). * * *
The term "landscaping* as used in these regulations includes not
only such activities as planting trees, shrubs or lawns when
performed in conjunction with other construction work (e.g., the
erection of a building or other structure), but also includes
elaborate landscaping activities such as substantial earth moving
and the rearrangement or reclamation of the terrain that,
standing alone, are properly characterized as the construction,
Substantially equivalent definitions of "construction"
and "building* or "work* have been incorporated into
the government-wide Federal Acquisition Regulations at
48 CFR 22.401.












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alteration, or repair of a public work. Substantial excavation
of contaminated soils followed by restoration of the environment,
such as required for the cleanup of the Bunker Hill site,
constitutes "construction work" within the meaning of the DBA and
the implementing Regulations, Part 5.
SCA, which was incorporated into Contract No. 68-01-7334 and
applied to the work performed at Bunker Hill, is applicable to
federal contracts, the principal purpose of which is to furnish
services through the use of service employees. Pursuant to
section 4.116(c)(2) of Regulations, 29 CFR Part 4, the provisions
of both SCA and DBA are applicable to contracts involving
construction and service work where such contracts are
principally for services and where:
(1) The contract contains specific requirements for
substantial amounts of construction work, or it is
ascertainable at the contract date that a
substantial amount of construction work will be
necessary for the performance of the contract.
(2) Such construction work is physically and
functionally separate from and, as a practical
matter, is capable of being performed on a
segregated basis from the other work required by
the contract.
While Contract No. 68-01-7334 may be determined to be principally
for services within the meaning of SCA, the excavation and
restoration work required by Delivery Order No. 7334-10-014
constitutes a substantial and segregable amount of construction
work to which the Davis-Bacon (DB) labor standards provisions and
DB wage determination are applicable. We understand that the
work performed under Delivery Order No. 7334-10-014 has been
completed, but that an additional 70 sites in the Bunker Hill
area are targeted by EPA for removal actions similar to that
undertaken pursuant to Delivery Order 7334-10-014. In this
regard, please take the necessary steps pursuant to section
1.6(f) of Regulations, 29 CFR Part 1, to ensure that the DB
stipulations and the applicable DB wage determination are
incorporated into Contract No. 68-01-7334 and applied to any
subsequent delivery, orders where those delivery orders require
substantial and segregable construction work.
The issue of the construction work performed at Bunker Hill has
raised additional questions regarding application of the federal
labor standards statutes to emergency removal contracts for other
EPA zones, nationwide. We understand that your agency determines
the applicability of SCA or DBA to a Superfund project based on
whether the response activity constitutes "emergency removal" or











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"remedial action" as defined by CERCLA. In meetings held in 1981
and 1985 to discuss application of the labor standards statutes
to Superfund projects, EPA and DOL reached an agreement that SCA,
DBA, and the Contract Work Hours and Safety Standards Act
(CWHSSA) were applicable to hazardous waste cleanup contracts
that were "remedial" in nature because, as represented to DOL,
those contracts were principally for services and involved
substantial and segregable construction work. At those meetings,
EPA and DOL also agreed that SCA and CWHSSA applied to "emergency
removal" contracts. However, its agreement was predicated on EPA
assurances that emergency removal contracts did not require
construction work within the meaning of the DBA, or that any
construction work performed during the cleanup was so closely
related to the service work that it could not be performed
separately. Contrary to this understanding, we have become aware
that individual delivery orders, such as the Bunker Hill delivery
order, are being issued where those delivery orders require
construction activity that is clearly substantial and segregable
from any service activity performed by the contractor pursuant to
its contractual obligation to provide emergency removal services
within hours of a hazardous substance release. As previously
stated, the construction work performed under such a delivery
order is subject to the DBA provisions by virtue of the language
of the statute and the implementing regulations. The nature of
the work is the determinative factor in deciding DBA or SCA
coverage and not whether such work is accomplished pursuant to an
"emergency response" contract or a contract for "remedial
action."
In addition to the foregoing, a question has been raised
regarding the propriety of ,applying a "regional" rather than
"locally prevailing" SCA wage determination to a delivery order
issued under an emergency removal contract where the cleanup work
was planned and where the place of performance was known at the
execution of the contract or option period. In view of the
numerous concerns raised and the national economic and
environmental impact of these Superfund contracts, we are
requesting a meeting with your agency and other agencies who
contract for hazardous waste cleanup under CERCLA to discuss the
current procurement policies and procedures and the application
of the various labor standards statutes and wage determinations
to those contracts. In addition, we are requesting your agency
to review the current hazardous substance removal contracts to
ensure that the DB labor standards stipulations and wage
determination are incorporated and applied to any substantial and
segregable construction work being performed under the contracts.
Please provide us with a report of your actions in this matter,
including your actions in the Bunker Hill operation, as soon as
possible.








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If you have additional questions or require assistance in this
matter, please do not hesitate to contact us.
Sincerely,
Samuel D. Walker
Acting Administrator