DEMATTEO CONSTRUCTION CO INC v. MBTA MBTA (2012)

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

FINDINGS OF FACT

The subject of the contract at issue here is referred to as either “the work”, “the site”, “the project”, or “the Silverline project”.   I accept, and incorporate by reference, the facts stated in the parties' agreed-upon statement of facts.   This project started as a Massachusetts Highway Department (“MHD”) project and URS Corp (“URS”) was MHD's designer.   The Massachusetts Bay Transportation Authority (“MBTA”) contracted with M. DeMatteo Construction Co., Inc (“DeMatteo”) for the Silverline project and the MBTA was responsible for making all payments to DeMatteo under this contract.   The Inter–Agency Agreement, Exhibit 18, which describes the respective roles of the MBTA and MHD to one another during the design and construction of the project, was unknown to DeMatteo until after its bid was successful, although the plaintiff always knew that MHD's construction standards were required.

Under the Inter–Agency Agreement, MHD was obligated to reimburse the MBTA for the costs the MBTA incurred relating to the Roadway Elements of the Work and for MHD's share of the Shared Elements of the Work. The evidence indicated that MHD made reimbursements to the MBTA pursuant to the Inter–Agency Agreement.   No evidence was submitted at trial confirming the total amount of reimbursements made by MHD to the MBTA pursuant to the Inter–Agency Agreement.

Before the MBTA began accepting bids on the contract, URS had done limited environmental work for MHD on this site.   The scope of work that URS had been asked to do pre-bid did not include any actual testing of any of the subsoils, just the visual observation of whatever areas of the site into which URS gained access.   URS was able to get into some, but not all, of the areaways, which are a kind of basement in some of the buildings.   MHD and the MBTA, or at least URS, had tried to gain access to all of the areaways but had not been able to before the bid form was made available to bidders.

Mr. Gallagher's testimony was that this project included work on the oldest street in Boston.   I accept that the work was on some of the oldest streets in Boston.   The area of the construction involved major thoroughfares, Washington Street, Melnea Cass Boulevard and Massachusetts Avenue, in a very busy urban area of Boston.

URS provided estimates of quantities of excavated soil which were changed as expectations changed or as tests required.   Initially all parties had expected that much of the excavated soil would have to be removed from the site, but that changed as it was expected that most of the soil would be able to be reused on the site.   Prior to this project going out to bid, the only borings that had been done were structural, not environmental, borings.   However, structural borings later done of the soil revealed that the urban fill that was excavated was, in large part, not structurally suitable to be reused on site.   These test results of the structural borings required a full depth excavation, i.e. building to building, across the entire width of the roadway.   The excavated soils were tested for structural suitability, which test results revealed that, in large measure, full depth excavation was necessary simply because of the structural unsuitability of that soil.   That is the reason why URS' estimated quantities of soil in the bid form were vastly exceeded.

Neither URS nor any other entity had been asked by MHD or the defendant to do any type of environmental assessment of this site on which the Silverline project was to be built.   Before the plaintiff submitted a bid for this unit price contract, and both sides knew it was a unit price contract, DeMatteo obtained a proposal from at least one environmental consultant, GeoTek.   The plaintiff then submitted its bid prices per the unit based upon what it then knew of both the site and GeoTek's price estimates to remove and dispose the various types of contaminated soil.

Both parties, plaintiff and defendant, were well aware at the time of the bidding that bidding on construction work that involves contaminated soil can be a risky bid for contractors, especially where the contract is a unit price contract and where the subsurface is largely unknown.   At least since 1999, owners and builders were aware that contaminated soil poses a serious financial risk to those in construction;  the greater the nature and extent of the contamination, the greater the financial risk.   That is why, since this was a unit price bid and the contractor was required to bid one amount to remove and dispose of contamination, the plaintiff acted reasonably and sought bids from a qualified environmental consultant, GeoTek.   But all bidders, including the plaintiff, were on notice that a change in the amount of excavated soil could result depending on the structural analysis of the soil.   Everyone was aware of that contingency at the time of the bid.   Neither party is entitled to a changed condition for which a price change can be imposed pursuant to M.G.L. c. 30, § 39G.¹ No evidence was offered that any written request, the predicate required under this statute, was even sent by a party.

I accept that both parties were on notice, and any reasonable contractor and owner would know at the time that the bid went out, that contaminated soils are regulated by statutes and regulations.   These statues and regulations require that contaminated soils must be handled according to strict legal requirements.   But it is never required, or even expected, that any contaminated material will be dealt with in ways that exceed, are more burdensome or more expensive than, what is legally required.

At the time that the bid went out as well as at the time plaintiff bid, nothing in the soil's appearance, color, smell or texture, indicated that the bulk of the soil to be excavated was contaminated.   Anyone looking at it, experts in environmental science or not, would not believe it was contaminated by appearance, by how it looked, by discoloration because there wasn't any, by how it smelled because there wasn't any smell, or by its content or any other characteristic that could be ascertained visually or by touching the soil.   This was true even to trained environmental people who looked at it.   I accept that when URS did its work pre-bid, URS specifically looked at the site for contamination but saw absolutely no evidence of contaminated soil.

So the final quantities that were put in defendant's plans/specs were based on the defendant's reasonable belief that much of the excavated soil would be reused on the site so long as the structural borings indicated that the excavated soils were suitable for reuse.

The plans and specs on which the pre-qualified bidders, including the plaintiff, bid included a series of structural borings which specifically indicated that the project subsurface was “urban fill” and that it was up to 10 feet in depth.   Though no research revealed any obvious contamination, the potential for contamination was known to defendant and all bidders, including the plaintiff, because it was known that the subsurface was composed of urban fill.   I accept that all bidders, including the plaintiff, knew that urban fill was to be excavated which could possibly include contaminants.

Because of the possibility of contamination, at least in the inaccessible areaways, URS recommended, and MHD agreed, to add MHD's written specifications 180.41 ² and 181.11.³  The reason why those two provisions were in the bid specs was not revealed to the bidders, but is of no consequence.   At the time of bidding, defendant and MHD did not know of any actual contamination but both defendant and plaintiff knew that the soil to be excavated could be contaminated.

The defendant awarded the contract to the plaintiff and at some point in October 2000 the plaintiff then began to work on the project.   During the course of construction, progress meetings were held by the parties, mostly including MHD, on a fairly routine basis where discussions concerned both older, unresolved or unfinished items as well as new items.   The minutes were kept by DeMatteo and circulated to all who participated in the meetings for their review and comment.   Although DeMatteo intended for those minutes to be edited by any of those who received the minutes, not everybody outside of DeMatteo was able to, or did, edit those minutes.

By the time of the November 22, 2000 project meeting, plaintiff, defendant and MHD, all knew that not all of the excavated soils were able to be reused on site.   Structural soil samples taken during construction revealed that quantities of soil, larger than anticipated during the design phase, were not structurally suitable for reuse on site and would have to be excavated and removed.   The parties then knew that at least some, if not most, of the excavated soils would likely not be able to be reused on site.   So the plaintiff then proposed to the defendant that the plaintiff would stockpile, test and dispose of all structurally unsuitable materials.   At this November 22, 2000 meeting, plaintiff claimed to be entitled to be paid for this work only under 180.41 in addition to the payment for excavation under 120.1.⁴

By the February 8, 2001 project meeting, the plaintiff had not yet brought in GeoTek but indicates that it would.   The plaintiff's minutes of that meeting incorrectly state that, per the prior meeting of November 22, 2000, the plaintiff understood that it would be paid under both 180.41 and 181.11.   That is inaccurate because, even according to DeMatteo's minutes of the November 22, 2000 meeting, the plaintiff had only been asking to be paid under 180.41 and had not yet even mentioned seeking payment under 181.11.   I accept that by the February 8, 2001 meeting, plaintiff and defendant understood that these excavated soils were mostly structurally unsuitable that may be contaminated and which could not be reused on site due to structural unsuitability.   But by appearance, both visual and by its smell, the soil still did not appear to be contaminated.⁵

I accept that although DeMatteo had received a proposal from GeoTek before it bid on the project, DeMatteo did not sign a contract with GeoTek until February 22, 2001.   That contract only included GeoTek's work in reuse, recycling, and disposing at lined and unlined landfills.   That was because nobody, certainly not DeMatteo, had any expectation at the time it signed a contract with GeoTek, that the excavated soil already stockpiled or which would, in all likelihood, be stockpiled would require any disposal other than according to Comm–97 ⁶ in a lined or unlined landfill.

Sometime after that February 8, 2001 meeting, testing began to be done on the stockpiled soils.   A sample, though not a representative sample, was taken of each of the four stockpiles.   The first stockpile was by far the largest and it equaled or exceeded the combination of stockpiles two, three and four.   I accept Mr. Wilder's testimony that one should mix the soil in the sampling area to get a representative sample of the soil in that stockpile.   That was not done for the initial samples, notwithstanding that they were taken by GeoTek which then sent them to ComTest for testing.

The results came back that stockpile one was contaminated but not above any reportable concentration.   However, stockpiles two, three and four had some contaminants which were above the reportable contamination levels for TPH. When the plaintiff communicated this to the defendant, the MBTA met with URS' Licensed Site Professional (“LSP”), Mr. Wilder, and MHD. Mr. Wilder recommended that the soils be retested by way of a “representative” sample.   It was perfectly appropriate and legal for URS to take a second sample to be positive that a representative sample was tested.   It was also appropriate for the second test to be done because a subtest of TPH could reveal EPH. There was nothing improper in doing that second sampling.   Even before the second sampling was done, all parties, plaintiff, defendant and MHD, understood that stockpile one was a nonregulated soil.   Stockpile one did not need to be disposed of even in a landfill;  that was not legally required.   The results of the second tests for stockpiles 2, 3 and 4 came back contaminated as defined under Comm. 97 but was not considered of reportable concentrations.

By April 2001, the parties knew that all four stockpiles had such a low level of contamination that they were not of reportable concentrations nor were they required to be deposited in a landfill.   These stockpiles did not even have to go to an unlined landfill.   However, the plaintiff continued to seek payment from defendant not only under 180.41, but also under 181.11.

I accept the testimony of several witnesses, including Mr. Wilder, that all four stockpiles (i.e. contaminated but not of reportable concentrations), could have legally been deposited at a fill site location so long as the Massachusetts anti-degradation policy was not violated.   That means that the entire stockpiles, one, two, three and four, according to both Mass. Comm–97 ⁷ and the Mass. Contingency Plan, (“MCP”) ⁸ , could legally have been deposited at a golf course, at a pond, or at any other location, so long as the contaminants in those stockpiles were not greater than the contaminants in the soil of the fill site area, i.e. did not violate Massachusetts' Anti–Degradation Policy.

Notwithstanding the fact that both plaintiff and GeoTek made efforts to find such fill sites, their efforts were unsuccessful, primarily because of the large amount (41,000 cubic meters) of excavated soil that had to be removed from the site.   In some instances to the extent plaintiff and/or GeoTek were able to find a fill site that could take any of the excavated soil, the fill site's contaminant level was lower than the contaminant level of whatever excavated soil was ready to be removed.

As a result, the defendant agreed with GeoTek's recommendation that the excavated soil be disposed of at the Woburn unlined landfill as daily cover.   While the Woburn unlined landfill was an appropriate place to put, reuse, recycle, dispose of the 41,000 cubic meters of the excavated soil, albeit with the low contamination levels which did not require reporting under either the MCP or Comm–97, this was not legally necessary.   There was some questioning at trial concerning of the certification that Mr. Malbranche, defendant's Resident Engineer, made on the Material Shipping Records (“MSR's”).⁹  Bills of Lading (“BOL”) were not required for the removal of the excavated soils because the levels of contamination did not exceed those listed in the MCP. Thus, the MSR's were perfectly appropriate, perfectly legal, to use when removing these excavated soils.   There was also nothing inaccurate in Mr. Malbranche's certification on the MSR's. With the MSR's ¹⁰ completed, Geotek began in May 2001 to dispose of the stockpiles.

The issue of defendant's payment to plaintiff came up again in June of 2001.   The plaintiff continued to press that it should be paid under both 180.41 and 181.11.   Mr. Covert, on behalf of the plaintiff, went to the site and talked to Harry Thompson, MHD's Resident Engineer on the site.   By June 2001, plaintiff, defendant and MHD had known for some time that most of the excavated soils could not be reused on-site because of the soils' structural deficiencies, so that the estimated soil quantities would be vastly exceeded.   They also knew that all of the excavated soil at issue could legally be disposed of at a fill site but if none were found, could also legally go to the Woburn landfill as daily cover.   In response to Mr. Covert's request that plaintiff be paid under both 180.41 and 181.11, Mr. Thompson complained to Mr. Covert at their meeting in June of 2001 about the payments being sought by plaintiff under any section other than 120.1, which was what Mr. Thompson felt was appropriate.

But Mr. Thompson also complained about the vast soil quantities not being renegotiated as they vastly exceeded the bid estimate.   Since Mr. Thompson had only worked at MHD, he was familiar with MHD's policy (a policy that does not apply to this contract) to renegotiate prices if the quantity exceeded 125 percent of the estimated quantity.   Mr. Thompson was not only MHD's Resident Engineer but he was also MHD's Management Contact for this project.   He was on site virtually daily.   By the time of the June 2001 meeting, Mr. Thompson as well as Mr. Covert were both on notice that the estimated soil quantities were being vastly exceeded.   Mr. Thompson not only told Mr. Covert that he felt the plaintiff was only entitled to payment under 120.1, but he also told Mr. Covert that if plaintiff wanted to be paid under § 180.41 and 181.11, MHD wanted the plaintiff to renegotiate under both provisions.   Mr. Covert advised that the plaintiff was willing to negotiate new prices for these two categories, and at least initially, the plaintiff was so willing.

This meeting occurred in June 2001, approximately one month after the first disposal to the Woburn landfill, in May 2001.   Prior to removal, the excavated soils were tested about every 750 yards or at least on every 75 tons.   By July 2001, the plaintiff DeMatteo is still questioning why it has not received pay it believes it is owed under both 180.41 and 181.11.

I accept that the defendant and MHD always made clear to the plaintiff that they did not believe plaintiff was entitled to be paid under either 180.41 or 181.11.   The MBTA did not agree with Dematteo's request to be paid under Item 180.41 and Item 181.11 because the soils were not “contaminated soils”, as defined in the MCP, and the soils were not disposed of under any of the Disposal Options in Item 181.11.   While it is unfortunate that none of the public employees reduced their opinions to writing to the plaintiff, these employees nonetheless repeatedly made their positions clear to the plaintiff.   The plaintiff always understood the defendant's position ¹¹ that the plaintiff was not entitled to be paid under either 180.41 or 181.11.

By July 2001, DeMatteo was upset and questioning why it was not receiving payment under both sections.   Beginning in July and August 2001, various DeMatteo employees told the MBTA's employees that, unless the defendant agreed to pay them under both 180.41 and 181.11, the plaintiff would stop working on the project.   The plaintiff's employees were telling the defendant that unless it was paid under both 180.41 and 181.11, DeMatteo would not just stop removing the soil from the site, but would stop work on the project.   I do not credit the testimony of Mr. DeMatteo that he only told the defendant's general manager that the plaintiff could not continue to work without receiving any payment.   The plaintiff's correspondence to defendant in Ex. 24 concerning the record of defendant's payments to plaintiff indicates that the plaintiff does not complain to defendant about delays in payment until Jan–Feb 2002, after the first two interim payments had been paid pursuant to Mr. DeMatteo's agreement with Mr. Ryan. The defendant's interim payments to plaintiff were made pursuant to Defendant's Requisition Reports 10, 12 and 14, dated respectively September 17, 2001 and approved October 5, 2001, dated November 19, 2001 and approved November 20, 2001, dated and approved March 20, 2002.   See Ex. 21a-c.   The basis for these three payments was the agreement reached between Mr. DeMatteo and defendant's Mr. Ryan which was reached prior to the first interim payment even being submitted on September 17, 2001.   The basis for these interim payments was plaintiff's threats to walk off the job if defendant did not pay under 180.41 and 181.41.

Numerous people from the MBTA testified that plaintiff's employees told them that plaintiff was threatening to stop working on this job unless it was paid under both 180.41 and 181.11.   At trial I allowed the testimony of Mr. Hines, the defendant's Project Manager for this Project with respect to what Mr. Ryan, the T's General Manager, conversation was with Mr. DeMatteo.   Upon reconsideration, I believe this should not have come in for the truth of the matter asserted.   These statements were not hearsay, however, because they were admissible to show the state of mind of Mr. Ryan. Mr. DeMatteo was also permitted to testify regarding his conversation with Mr. Ryan. I accept Mr. Thompson's testimony concerning plaintiff's threat to “walk off the job” unless paid under 180.41 and 181.11.   I also credit Mr. Buckman's testimony that he was told directly by Dan Herlihy to stop removing the soil.

The plaintiff, through its employees, threatened to stop all the work on the project unless the defendant agreed to pay DeMatteo under both 180.41 and 181.11.¹²  I rely on Mr. Hines' testimony and also on Mr. Thompson's testimony that Mr. Fantoni and Mr. Ferrara told him that if the MBTA did not agree to pay under both those items, 180.41 and 181.11, DeMatteo would stop all work.   Plaintiff's personnel made numerous statements that they would stop all work unless the MBTA agreed to make those payments under both 180.41 and 181.11.

I accept that at the time this threat was made the defendant had a legal obligation to replace the Orange line.   The defendant was about ten years behind in replacing the Orange line and the neighborhood was upset about the length of time it had taken to be replaced.   The MBTA justifiably felt some pressure from the community, residents and businesses in the area to complete the Silverline project.

I accept that Mr. Hines thought that the plaintiff's threat to stop all work on this project was a real threat.   As a result of the defendant's reasonable belief that plaintiff had threatened to stop all work on this project, an agreement was reached between the plaintiff's owner and the general manager of the MBTA that, so long as the parties agreed to continue to renegotiate prices under those two provisions, 180.41 and 181.11, the plaintiff would continue to work and defendant would make interim payments under those provisions.

With that understanding, the defendant made three interim payments under both 180.41 and 181.11.   The defendant made those three interim payments while price negotiations occurred between the plaintiff and defendant.   When the negotiations were unsuccessful and ceased, the defendant stopped making the interim payments under 180.14 and 181.11.   The only reason the defendant made any interim payments under 180.41 and 181.11 was due to the unreasonable pressure and threat by the plaintiff to stop work and walk off the job.   The only reason those three interim payments were made was to keep the plaintiff working to finish this project.   The interim payments for the disputed cost items stopped for several reasons, including:  (1) there had been no progress with DeMatteo on negotiating a price for disposal of the unsuitable soils that were disposed of at the Woburn landfill;  (2) the MBTA had reached the limits of available funding for the disputed items of work, due to the magnitude of the interim payments that had been made for the disputed items;  and (3) DeMatteo and the MBTA had reached an impasse in their negotiations.

Notwithstanding Malbranche's certification ¹³ on each of the three interim payments, I accept that the defendant still has the right, per the specific contract language, Article 5.24 ¹⁴ in Exhibit 52, to contest the plaintiff ‘s entitlement to those three interim payments under both 180.41 and 181.11.   Once the plaintiff and defendant stopped negotiating to try to reach different prices for those contract sections, the defendant stopped making interim payments under 180.41 and 181.11.   The defendant called these “interim” payments as its way of indicating that it did not believe the plaintiff was entitled to these interim payments and reserved the right to seek repayment of these monies.

When the interim payments ceased, the plaintiff stopped removing the excavated soil in approximately January or February of 2002.   Thereafter, the plaintiff continued to do all the work except for removing the excavated soil, at least until the stockpiles got in the way of the work.   The stockpiles then remained present for months.   During the entire period that the stockpiles were on-site, the defendant received many complaints from neighbors of dust and dirt.   In response of those complaints, the defendant had to repeatedly contact and instruct DeMatteo to either cover the stockpiles or make the stockpile coverings more secure.   This means, in some measure, the plaintiff was not properly or sufficiently covering or securing the covers for those stockpiles while they remained dormant on the site.   I have some real concerns as to how much managing and handling of the stockpiles the plaintiff actually did on site.   Pursuant to 180.41, the plaintiff “Shall obtain at least three bids for the handling and disposing of any contaminated material.”   No evidence of such bids was offered.   However, to the extent the plaintiff did not satisfactorily complete the work required under 180.41, the defendant has the burden of proof to show that noncompliance.   That burden has not been satisfied;  the defendant failed to satisfy its burden of showing that any work done under 180.41 was noncompliant or insufficient.

Notwithstanding testimony that all plaintiff did to manage the contaminated soil was to cover it, I also accept that the plaintiff attended meetings with its Environmental Consultant Geo–Tek, learned how to properly deal with these contaminated soils, made phone calls to find fill sites, attended meetings with its environmental consultant and defendant concerning how to properly deal with these contaminated soils, and eventually caused Geo–Tek to remove all the soils to the Woburn landfill.   It is clear that the plaintiff did at least some work required under 180.41;  it caused the excavated soils to be tested, attended meetings to discuss those test results, and managed and handled the removal of the excavated soils from the site.

The purpose of the Contract Quantity Estimate between MHD and the MBTA was to allow them to track the quantities of work that had been performed on Roadway Elements or on Shared Elements of the contract, for the purposes of determining the appropriate quantities of work done including determining the amounts that the MHD would be obliged to reimburse the MBTA under the Inter–Agency Agreement.

Mr. Thompson and Mr. Hines' testimony both indicate that the Contract Quantity Estimate 17 Revised (Exhibit 19C) used the “999” designation for items 999.180 and 999.181 in order to highlight the fact that there was a dispute with DeMatteo as to whether the quantities for the related items 180.41 and 181.11 would be considered payable to DeMatteo.   No evidence was offered as to the total amount of reimbursements, pursuant to the Inter–Agency Agreement, that MHD made to the MBTA on this project, No evidence was offered that MHD reimbursed the MBTA for all the quantities of work shown on Contract Quantity Estimate No. 17 Revised, Exhibit 19C. Contract Quantity Estimate # 17R was signed off between the MBTA and MHD in 2005, long after the work was complete.

DeMatteo also claims that by statute defendant was required to pay DeMatteo within 30 days of DeMatteo submitting its periodic payment requests to the defendant.   Though plaintiff's submissions are often referred to as “pen reqs,” DeMatteo's initial requests for payment were very professional.   The contract is silent on how soon after plaintiff initially submits its periodic payment request to defendant that defendant is required to pay plaintiff.   As support for its claim, plaintiff allowed seven days for defendant to agree or disagree with its proposal for payment and then make that payment within the next thirty days, i.e. plaintiff claims defendant's payment to plaintiff is to be made within thirty-seven days of defendant's receipt of plaintiff's initial “pen req”.  G.L. c. 30, § 39G requires that, in public construction projects such as the one at issue here, “periodic payments” must be paid within thirty days.   However, that statute does not define “periodic payments” or “periodic estimate requesting payment”, and does not provide any time period, let alone seven days, by which the owner must review and finalize the contractor's initial submission for payment.   As authority for the seven-day time period, plaintiff relies on a different statute, G.L. c.30, § 39K.¹⁵

I turn now to the three issues ¹⁶ presented in this case:  1) whether defendant is entitled to interest on payments made more than 37 days after plaintiff submits its initial payment request;  2) whether plaintiff is entitled to any payments for delays caused by defendant's representations concerning Traffic Management Plans;  and finally 3) whether plaintiff is entitled to be paid under sections 180.41 and/or 181.11.

The first issue concerns plaintiff's claim that it is entitled to interest on defendant's payments that were not made within thirty (30) days of plaintiff's initial invoice.   The terms “periodic estimate requesting payment” and “periodic payment” are undefined in the statute, Chapter 30, § 39K. I accept that the “pen req”, the initial request for payment that DeMatteo submitted, is a very professional “pen requisition”;  it is not in pencil and is not a draft;  rather, it is DeMatteo's initial request for payment.   But what is understood in G.L. c.30, § 39K is a request for payment that has been approved in writing by both the owner and contractor.   I do not read into G.L. c.30, § 39 K, the seven-day provision in § 39G. If the legislature had intended to give the owner a week to respond, it would have included that language.   I find that what is required under the periodic estimate requesting payment is that it be one that is signed off on as approved by both owner and contractor.   Until a written estimate approved by both sides is submitted, the 30 days referenced in G.L. c.30, § 39K does not begin to run.

I find support for my decision regarding what is meant by “periodic estimate requesting payment” in large measure on undisputed testimony that that has been what has been meant for the past several decades.   Anyone in the construction business knows that is what is meant.   I accept that, pursuant to G.L. c. 30, § 39G, plaintiff was entitled to be paid within 30 days of when plaintiff and defendant have both signed off on, i.e.. approved, plaintiff's written payment estimate.   The only late payments that the plaintiff is entitled to interest on are payment requests number 2, 24, 25, 28 and 29.¹⁷  Interest has not been paid on any of these five payments which were paid late and which defendant conceded were paid late.   The plaintiff is entitled to interest for the period between 30 days from when a written request signed by both plaintiff and defendant was submitted, and when the payment was actually received or made.

Now I address the second issue concerning the Traffic Management Plan (“TMP”).  In Exhibit 53, T. 120–137, the notes do not actually say that the TMP attached to the bid specs had already been approved.   No TMP had been approved because none had actually been submitted to the Boston Traffic Department (“BTD”) for approval.   Any reasonable contractor, including the plaintiff, would know that the attached TMP could not have been approved because it had to be submitted by the contractor.   This could not happen until after the bid was awarded.

However, the language the MBTA used their Notes certainly suggests that the attached TMP. 120–137, had been reviewed by BTD and that approval would be obtained fairly readily.   I rely on language in the MBTA's Notes, which calls that plan an outline of one way of progressing.   At the time it wrote that, the MBTA knew that BTD had only reviewed a plan and found numerous deficiencies in it.   BTD's deficiencies had been provided to URS by the defendant and MHD. Those deficiencies had been reviewed and corrected by URS. In fairness I fault the MBTA for not being more forthcoming.   Since the defendant was aware of BTD's writing memorializing its review of TMP and of BTD's findings of deficiencies, it was appropriate for defendant to give the project bidders notice of that fact.

There also is a misleading reference in paragraph three of the Maintenance of Traffic Notes, Exhibit 53, which states, “The contractor shall bear all costs associated with the submission and review of alternative traffic management plans.”   That suggests that the contractor would have to bear the cost of only some alternative to TMP. 120–137.   However, the MBTA well knew that any bidder would also have to bear the cost of getting any TMP, including T.120–137, approved.

But overall it is abundantly clear throughout the documents, and DeMatteo would have known this, that the contractor has to obtain the TMP permit from the Boston Traffic Department.   Any reasonable contractor would know at the time it was bidding on this work that Washington Street, Mass. Avenue, and Melnea Cass Boulevard are major thoroughfares.   No reasonable contractor would expect to be given carte blanche, in terms of traffic management on a construction site, for a two and a half mile open roadway of such major thoroughfares in urban Boston.   It was entirely clear from the Notes that both vehicular and pedestrian access had to be permitted throughout those roads.   The plaintiff's reliance on TMP. 120–137 already being permitted, or even being easier to get permitted, is unreasonable where it is entirely clear that the contractor has to apply for and obtain the permit.

Thus if the plaintiff came away with the impression that the TMP. 120–137 had been approved, that is unreasonable.   The plaintiff certainly could not have reasonably understood that TMP. 120–137 was approved because the plaintiff would know that only the contractor can obtain the permit.   But even if the plaintiff understood that approval would be easier to get for TMP. 120–137, all it had to do was, in whatever reasonable investigation it does before bidding, talk to BTD which would have revealed that TMP.120–137 was not approved and had deficiencies.   To the extent that a reasonable reader of the notes attached to Exhibit 53 would be under the impression that TMP. 120–137 would likely be approved by the BTD, that is a question that the plaintiff could have asked during the question period.   When one bidder did ask a question, the defendant's answer was that the contractor is responsible for obtaining the permits which would include getting approval from the BTD.

The plaintiff's claim that its workload was impacted because it had to obtain a TMP is unreasonable.   The plaintiff incorrectly relied on an inference, which was unreasonable for plaintiff to draw, that TMP. 120–137 had already been approved by the BTD.

The damages that the plaintiff is claiming as a result of having to obtain approval of a TMP, which required more time than the plaintiff had expected, are really delay damages.   The contract at Exhibit 52, paragraph 6.07 of the contract, page 44 of the General Conditions of the contract specifically states, “The contractor shall have no claim for damages of any kind due to any delay in commencement of the work, or any delay or suspension of any portion thereof except as hereinafter provided.”   No evidence was offered that either of the two exceptions applies to plaintiff's claim.

Now, c. 30, § 39N needs to be addressed both as to traffic management and payment under 180.41 and payment under 181.11.   None of the contingencies in G.L. c. 30, § 39N have been satisfied.   This statute does not apply unless whoever is seeking it gives a request for such an adjustment in writing and that party delivers the writing to the other party as soon as possible after such conditions are discovered.   No such evidence of a writing was offered by either side, so the predicate for the application of § 39N has not been satisfied.   Accordingly, c. 30, § 39N does not apply.

I do not accept Mr. Covert's testimony concerning the critical path schedule.   The numbers to which he testified were not reliable when overnight, and after several years of review since this case has been pending for five years, the numbers changed by $80,000.00.   These numbers are derived from a computer program for a critical path schedule, the reliability and accuracy of which I do not accept.   No credible evidence was offered regarding the actual costs incurred.   Even if such evidence were available, the plaintiff is not entitled to recover actual costs because they are really nothing more than delay damages.

As to the winter asphalt claim, the defendant never directed the plaintiff to do the work with winter asphalt.   Winter asphalt is a special, more expensive, asphalt that can be applied to a road surface during the cold winter weather.   Although plaintiff incurred an additional cost from performing this asphalt work, the defendant is not required to pay that additional cost.   Because the plaintiff was behind in its scheduled work, the plaintiff chose to pave the road surfaces using winter asphalt.   I credit the testimony that it wanted to finish the job on time.   However since the project was to be completed by October of 2001, and since the plaintiff incurred the additional expense because it was late in finishing the job, plaintiff is not entitled to reimbursement from the defendant for the additional expense for winter asphalt.

I do not accept much of what Mr. Benavides had to say.   In forming his opinion, Mr. Benavides first relied on Exhibit 42 which does not apply, as there never was any significant risk to the public health and safety or to the environment from the excavated soils removed from the site only because they could not be reused there only because of structural deficiencies.   I do not credit Benavides' testimony that the removal of the contaminated soil is a “release” under section 40.0370 of both oil and/or hazardous material.  (Ex. 42).

Mr. Benavides' second rationale for why the plaintiff was entitled to payment under 181.11 is that he believes since one should be more careful than one is legally required to be.   I do not credit this testimony.   The soil was appropriately deposited at the Woburn site, even though that disposal was not legally required.   It is like saying if you owe $100 in taxes you should pay $500 to be sure that you pay what you owe.

So since the plaintiff “recycled” ¹⁸ the soils in compliance with Comm–97 at an unlined landfill as daily cover even though such a disposal option was not legally required and there is no payment provision for disposal under 180.41, the plaintiff gets paid under both 180.41 for handling, monitoring and stockpiling and under 120.1 for excavation and disposal but not under 181.11.

RULINGS OF LAW

The plaintiff's words in threatening to walk off the job are sufficient to constitute economic duress pursuant to Cabot Corporation vs.   EVX Corporation, 448 Mass. 629 (2007).

The only damages that the plaintiff seeks for the deficiencies, some inaccuracies in the MBTA's Notes, Exhibit 53, concerning traffic management, are delay damages to which the plaintiff is not entitled.   I did review the Spirin case on which plaintiff relies, but it is inapplicable.   The plaintiff in that case was required to build per the defendant's specs and plans, and that is not the case here.   Certainly the plaintiff had to build to the specifications, but no specifications concerning traffic management were required.   The plaintiff could have used an alternative traffic management plan.

Now I reach the heart of this case, whether the plaintiff is entitled to payment under either or both sections 180.41 or 181.11 of the contract.

Basic statutory construction requires that the contract be read as a whole so as to give meaning to all of its sections.   It seems to me that to read it the way the plaintiff urges me to read it would eliminate an important provision, the third paragraph of section 120.1, which says “Also included shall be the removal and disposal of bituminous pavements, ․ and all other materials not classified and paid for under other items.”

Under Item 180.41 of the contract, DeMatteo's On–Site Safety Officer or Environmental Consultant was “responsible for evaluating soil with non-natural discoloration, petroleum or chemical odor, the presence of petroleum liquid or sheening on the groundwater surface or any abnormal gas or materials in the ground and otherwise encountered which are known or suspected to be contaminated with oil or hazardous materials.”   DeMatteo was then required to “monitor[ ], handl[e], and stockpil[e] soils and other materials” that the On–Site Safety Officer or Environmental Consultant deemed contaminated.

The contract further states that “[s]oils and all other materials suspected of contamination shall be sampled and managed according to [the MCR and Comm–97] ․ “ (emphasis added).

The MCR defines the word “manage” to mean “any direction or control over the management of Redmediation Waste, Remedial Wastewater, Remedial Additives, or Containerized Waste at or from a disposal site.”  310 CMR 40.0006 (effective 10/29/99).   The MCR also defines the word “management.”   According to the MCR “management' is:

the act, manner or practice of managing and handling or controlling Remediation Waste, Remedial Wastewater, Remedial Additives, Remedial Additives By-products, and/or Containerized Waste at or from a disposal site, including, but not limited to, any excavation, pumping, pouring, emission, containment, dumping, emptying, discarding, injection, discharge, displacement, collection, transportation, withdrawal, storage, treatment, detoxification, reuse, immobilization, solidification, incineration, encapsulation, removal, recycling, or disposal of such additives, waste, or wastewater.

I find that, implicit in Item 180.41's mandate to sample, monitor, handle, stockpile, control, treat and manage the soil, is a further requirement to test the soil.   Without conducting tests of the soil, the parties would be unable to determine whether the soil was contaminated and, if it was, how the soil should be disposed of consistent with Item 180.41.   The parties recognized the necessity of testing the soil;  this is why the plaintiff twice (and defendants once) conducted tests on the soil to determine its level of contamination.

I turn next to the issue of which contract provision governed the plaintiff's work when the plaintiff directed the disposal of certain soil to an unlined landfill in Woburn.   Both parties agree that when Geotek retested the soil piles at the defendant's request, the soil did not contain enough contaminants to qualify as “contaminated soil” as defined by the MCP. The soil did, however, contain enough contaminants to qualify as “contaminated soil” as defined by

Comm–97. According to the defendant, Item 120.1 governs plaintiff's work in directing the disposal of the soil, even to an unlined landfill.   Meanwhile, the plaintiff urges this court to find that the defendant was required to compensate the plaintiff pursuant to Item 181.11 for directing the disposal of the soil to an unlined landfill.

Item 181.11 is entitled, “Disposal Options for Contaminated Soils.”   This provision includes a list of the accepted ways to dispose of highly contaminated soils: ¹⁹

The following are disposal options for contaminated soils.   The MHD prefers methods involving recycling options.

• DIRECTLY LANDFILLED HAZARDOUS WASTE

• TREATED AND LANDFILLED HAZARDOUS WASTE

• INCINERATED HAZARDOUS WASTE

• SPECIAL WASTE SOIL

• PETROLEUM CONTAMINATED SOIL RECYCLED AT ASPHALT BATCH FACILITY (emphasis supplied)

I find that this list is an exhaustive and exclusive list detailing how the parties could dispose of highly contaminated soil.   I also find that the sentence stating the MHD's preference for recycling options was included to urge the entities disposing of highly contaminated soil to consider using a method on the list that recycled the contaminated soil before using a method on the list that did not.   In addition, I credit Ms. Darby and Mr. Wilder's testimony that Item 181.11 only applies to highly contaminated soils as further support that the list in Item 181.11 is exhaustive.

Furthermore, I find that the contaminated soil at issue here did not constitute the type of highly contaminated soil governed by Item 181.11.   There are three factors that led me to this conclusion.

First, in this case, the plaintiff deposited the soil in an unlined landfill.   Pursuant to Item 181.11 (and Massachusetts and federal law), the plaintiff could never have disposed of highly contaminated soil in an unlined landfill;  such soil could only have been legally disposed using one of the ways listed in Item 181.11.   In fact, the plaintiff was not even legally required to dispose of the excavated soil in a landfill at all;  indeed, as previously mentioned, the soil could have been re-used to fill in a pond or a golf course.   Clearly this soil was not the type of highly contaminated soil that required a specialized disposal under Item 181.11.

Second, my findings are consistent with the plaintiff's initial expectations.   Based on Exhibit 101 which memorializes a March 21, 2001 meeting between DeMatteo and Geotek, the plaintiff recognized that there were only five ways (“five options”) that plaintiffs could dispose of contaminated soil and receive payment under Item 181.11.

Third, although the plaintiff relies on the fact that the soil disposed of was considered “contaminated soil” for purposes of Comm–97, I find this to be irrelevant because Comm–97 was not incorporated by reference in Item 181.11.   Comm–97 is, however, incorporated by reference in Item 180.41.   This further suggests to me that Item 181.11 does not contemplate removal of just any contaminated soil, but applies to only certain, highly contaminated soil, and not the type of soil that was removed in this case.

Since Comm–97 deals with nothing but disposal, since the MCP defines the word “manage” as “direction or control over the management of [waste] ․ at or from a disposal site,” and since Item 180.41 specifies that “materials suspected of contamination shall be sampled and managed according to the [MCP and Comm–97],” I therefore find that the removal of soil in this case was governed by Item 180.41.   When DeMatteo directed the transport and disposal of the soil in unlined landfills, it was “manag[ing]” the contaminated soil.   See 310 CMR 40.0006.

In sum, I find that the contaminated soil at issue here was not a highly contaminated soil subject to one of Item 181.11's enumerated disposal methods;  that the disposal of the soil at issue in this case was within the “monitoring” and “handling” specifications of Item 180.41which includes “sampled” and “managed”;  and that the plaintiff was entitled to payment for the disposal of the soil at issue in this case pursuant to Item 120.1 as 180.41 contains no payment provision for disposal.

The plaintiff was required to comply with all environmental statutes, regulations and policies but was not required to exceed them.

Pursuant to section 120.1, the defendant owes the plaintiff $2,662,125.00, which is for the excavation of 53,242.50 cubic meters of soil at $50 a ton.

Pursuant to section 180.41, the defendant owes the plaintiff $692,763.50 for the handling, monitoring and stockpiling of 27,710.54 cubic meters of soil at $25 each.

The defendant does not owe the plaintiff any monies under section 181.11.²⁰  The defendant owes the plaintiff a total of $3,354,888.50.   The defendant has already paid the plaintiff $6,737,849.14.   Subtracting what the defendant owes the plaintiff from what it has already paid, the plaintiff has been overpaid by $3,382,960.64.   Applying the findings of Kaplan, J. on the plaintiff's summary judgment motion, the plaintiff is entitled to also be paid $2,339,021.86.

The plaintiff has been overpaid and owes the defendant $1,043,938.78.   The defendant is entitled to the repayment of that with interest.

ORDER OF JUDGMENT

Judgment is to enter for the defendant in the amount of $1,043,938.78 less interest on the five delayed payments (to be determined) plus prejudgment interest (to be determined).   The parties are given 20 days to submit their proposals as to the 1) the interest due on the five delayed payments;  2) the date from which prejudgment interest on this $1,043,938.78 amount shall be computed.

FOOTNOTES

FN1. The pertinent language of M.G.L. c.30, § 39G, included in the contract at General Conditions, Section 2.09 (Ex.52), states:“If, during the progress of the work, the contractor or the awarding authority discovers that the actual subsurface or latent physical conditions encountered at the site differ substantially or materially form (sic) those shown on the plans or indicated in the contract documents either the contractor or the contracting authority may request an equitable adjustment on the contract price of the contract applying to work affected by the differing site conditions.   A request for such an adjustment shall be in writing and shall be delivered by the party making such claim to the other party as soon as possible after such conditions are discovered.   Upon receipt of such a claim from a contractor, or upon its own initiative, the contracting authority shall make an investigation of such physical conditions, and, if they differ substantially or materially from those shown on the plans or indicated in the contract documents or from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the plans and contract documents and are of such a nature as to cause an increase or decrease in the cost of performance of the work or a change in the construction methods required for the performance of the work which results in an increase or decrease in the cost of the work, the contracting authority shall make an equitable adjustment in the contract price and the contract shall be modified in writing accordingly.” (emphasis supplied).  FN1. The pertinent language of M.G.L. c.30, § 39G, included in the contract at General Conditions, Section 2.09 (Ex.52), states:“If, during the progress of the work, the contractor or the awarding authority discovers that the actual subsurface or latent physical conditions encountered at the site differ substantially or materially form (sic) those shown on the plans or indicated in the contract documents either the contractor or the contracting authority may request an equitable adjustment on the contract price of the contract applying to work affected by the differing site conditions.   A request for such an adjustment shall be in writing and shall be delivered by the party making such claim to the other party as soon as possible after such conditions are discovered.   Upon receipt of such a claim from a contractor, or upon its own initiative, the contracting authority shall make an investigation of such physical conditions, and, if they differ substantially or materially from those shown on the plans or indicated in the contract documents or from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the plans and contract documents and are of such a nature as to cause an increase or decrease in the cost of performance of the work or a change in the construction methods required for the performance of the work which results in an increase or decrease in the cost of the work, the contracting authority shall make an equitable adjustment in the contract price and the contract shall be modified in writing accordingly.” (emphasis supplied)

FN2. Contract Section 180.41 states:.  FN2. Contract Section 180.41 states:

FOOTNOTE.  FNMONITORING, HANDLING AND STOCKPILING

FOOTNOTE.  FNOF CONTAMINATED SOILS AND OTHER MATERIALS (CUBIC METER)“The Work performed under this item consists of monitoring, handling and stockpiling soils and other materials identified as contaminated by the On–Site Safety Officer or Environmental Consultant.The On–Site Safety Officer or Environmental Consultant shall be responsible for evaluating soil with non-natural discoloration, petroleum or chemical odor, the presence of petroleum liquid or sheening on the groundwater surface or any abnormal gas or materials in the ground and otherwise encountered which are known or suspected to be contaminated with oil or hazardous materials.   Soil and all other materials suspected of contamination shall be field tested using the jar headspace procedures according to Department of Environmental Protection Bureau of Waste Site Cleanup Interim Policy # WSC–94–400.   Soils and all other material suspected of contamination shall be sampled and managed according to the Massachusetts Contingency Plan, 310 CMR 40.000 and the Bureau of Waste Prevention Policy # COMM–97–001 titled ‘Reuse and Disposal of Contaminated Soils at Landfills'.   The Engineer shall be contacted immediately when any results indicate contamination requiring soil removal or when contamination not detectable by on-site instrumentation is suspected.The Contractor shall be required to supply all personnel and materials necessary to comply with this section and to support the anticipated levels of protection and monitoring described above.Within limited areas of the project site, it is likely that excavated soils may be contaminated.   Where possible, all soils originally in contact with groundwater will be replaced in the same trench up to the existing groundwater level.   All soils determined to be contaminated by metals or petroleum products, through the monitoring/evaluation program will be stockpiled for disposal in accordance with all Massachusetts Department of Environmental Protection statutes, policies, and regulations.The Environmental Consultant/Contractor shall be responsible for identifying a disposal/recycling facility and obtaining all permits, approvals, Bill of lading, etc. prior to the removal of the contaminated soil form (sic) the site.   Any soils contaminated with hazardous materials that are not of petroleum origin shall be handled on a case-by-case basis.   The Contractor shall obtain at least three (3) bids for the handling and disposal of any contaminated material.   All manifest, bills of lading, etc. will be the responsibility of the Contractor with copies provided to the Department.   The Contractor is also responsible for hiring a Licensed Site Professional (LSP), as needed, for oversight and Bills of lading, etc. as required by the Massachusetts Contingency Plan, 310 CMR 40.000.Method of MeasurementMeasurement of Monitoring, Handling and Stockpiling of Contaminated Soils and Other Materials shall be made by volume, in cubic maters, or contaminated material monitored, handled and/or stockpiled as described under Item 180.41.Basis of PaymentWork under this Item shall be paid at the Contractor bid price, per cubic meter for, Monitoring, Handling and Stockpiling of Contaminated Soils and Other Materials which payment shall be considered compensation for all labor, tools, equipment and materials needed to complete the work as described above.”

FN3. Contract Section 181.11 states:.  FN3. Contract Section 181.11 states:

FOOTNOTE.  FNDISPOSAL OPTIONS FOR CONTAMINATED SOILS (METRIC TON)“The Work performed under this item consists of the proper and legal disposal or recycling of contaminated soils encountered at the site.The Contractor shall be responsible for the proper disposal or recycling of contaminated soils.   The proper methods of disposal and recycling of contaminated soils shall comply with the methods described under Item 180.41 and in accordance with all Massachusetts Department of Environmental Protection and Environmental Protection Agency statutes, policies and regulations.   The following are disposal options for contaminated soils.   The MHD prefers methods involving recycling options.● DIRECTLY LANDFILLED HAZARDOUS WASTE● TREATED AND LANDFILLED HAZARDOUS WASTE● INCINERATED HAZARDOUS WASTE● SPECIAL WASTE SOIL● PETROLEUM CONTAMINATED SOIL RECYCLED AT ASPHALT BATCH FACILITYMethod of MeasurementMethod of Disposal Options For Contaminated Soils shall be made by the weight, in metric tons of contaminated material removed from the site and delivered to an approved landfill, disposal facility, or recycling facility, and includes any costs for approvals, permits, testing, transportation and disposal.Basis of PaymentThe work under this Item shall be paid at the Contractor bid price, per metric ton, for Disposal Options For Contaminated Soils which payment shall be considered as full compensation for all labor, tools, equipment, permits, shipping papers and materials required to complete the work as described above.”

FN4. Contract Section 120.1 states:.  FN4. Contract Section 120.1 states:

FOOTNOTE.  FNUNCLASSIFIED EXCAVATION (CUBIC METER)“The work performed under this Item shall conform to Section 120 of the Standard Specifications and the following:The work shall include the excavation of all materials obstructing the execution of the required work as shown on the plans as directed except materials for which payment is made under the Items of Class A Trench Excavation, Class B Trench Excavation and Class B Rock Excavation of this Contract, and except those materials for which payment is made inclusive with complete work specified to be performed under other items of this contract.Also included shall be the removal and disposal of bituminous pavements, cobblestones, sidewalks, curb, edging, trees, tree stumps, shrubs, guard rail and fencing and three pit grates as determined by the Engineer, and all other materials not classified and paid for under other items.   Excavation of bituminous concrete between MBTA tracks and rails is also included under this item.The work shall also include the removal of any temporary pavements placed for the maintenance and protection of vehicular and pedestrian traffic.The work shall also include the disposal of existing materials shown on the drawings to be removed and reset, but which in the judgment of the Engineer are unsuitable for reuse in the proposed work.Method of MeasurementUnclassified Excavation will be measured by the cubic meter to the lines and grades shown on the plans or as directed by the Engineer.Basis of PaymentThe work will be paid for at the contract unit price per cubic meter for unclassified excavation which price shall include all labor, materials, equipment, transportation and incidental costs required to complete the work.No separate payment will be made for the off site disposal of all existing material unsuitable for reuse in the proposed work, but all costs in connection therewith shall be included in the price bid for unclassified excavation.”

FN5. The few areas of this project that appeared to be and were clearly contaminated are not at issue in this lawsuit..  FN5. The few areas of this project that appeared to be and were clearly contaminated are not at issue in this lawsuit.

FN6. As defendant stated on page 5 of its Statement of the Legal Basis of the its Defense and Counter Claims filed on November 28, 2011:“DEP Policy 97–001 addresses the disposal of contaminated soils in Massachusetts landfills.   It contains provisions relating to the disposal of soils with various levels of contamination above the MCP levels and below the MCP levels.   The Policy provides guidance as to the different types of landfills that may receive soils with different levels of ‘contaminants'.   When soils contain contamination below the MCP levels, they may be disposed of in a ‘lined’ landfill in Massachusetts pursuant to DEP Policy 97–001.   Where levels of contaminants in soils are even lower than the levels for disposing of soils in a lined landfill, they may be disposed of in an ‘unlined’ landfill in Massachusetts.”.  FN6. As defendant stated on page 5 of its Statement of the Legal Basis of the its Defense and Counter Claims filed on November 28, 2011:“DEP Policy 97–001 addresses the disposal of contaminated soils in Massachusetts landfills.   It contains provisions relating to the disposal of soils with various levels of contamination above the MCP levels and below the MCP levels.   The Policy provides guidance as to the different types of landfills that may receive soils with different levels of ‘contaminants'.   When soils contain contamination below the MCP levels, they may be disposed of in a ‘lined’ landfill in Massachusetts pursuant to DEP Policy 97–001.   Where levels of contaminants in soils are even lower than the levels for disposing of soils in a lined landfill, they may be disposed of in an ‘unlined’ landfill in Massachusetts.”

FN7. The MCP regulations at 310 CMR 40.0006 includes the following definition:“Reportable Concentration and RC each means the concentration of oil or hazardous material in soil or groundwater which requires notification to the Department under M.G.L. c.21E, § 7, and/or 310 CMR 40.0360 through 310 CMR 40.0362.”.  FN7. The MCP regulations at 310 CMR 40.0006 includes the following definition:“Reportable Concentration and RC each means the concentration of oil or hazardous material in soil or groundwater which requires notification to the Department under M.G.L. c.21E, § 7, and/or 310 CMR 40.0360 through 310 CMR 40.0362.”

FN8. DEP Comm–97–001 includes the following definition:“Contaminated Soil means soil that contains oil and/or hazardous materials as a result of a release to the environment.   This includes anthropogenic contaminants, regardless of whether the contaminant levels exceed the applicable Reportable Concentration (RC) under section 310 CMR 40.1600 of the MCP. This definition of Contaminated Soil is broader than that in 310 CMR 40.0006 since it includes soil contaminated at less than the RCs.”.  FN8. DEP Comm–97–001 includes the following definition:“Contaminated Soil means soil that contains oil and/or hazardous materials as a result of a release to the environment.   This includes anthropogenic contaminants, regardless of whether the contaminant levels exceed the applicable Reportable Concentration (RC) under section 310 CMR 40.1600 of the MCP. This definition of Contaminated Soil is broader than that in 310 CMR 40.0006 since it includes soil contaminated at less than the RCs.”

FN9. It was undisputed at trial that MSR's, not BOL's, were necessary and appropriate per Comm–97 and MCP for the removal of contaminated soil from the site.   The contract required plaintiff's Licensed Site Professional (“LSP”) to prepare the MSR's. The MSR's were appropriately signed by Geo–Tek's LSP and by Mr. Malbranche for the owner.   Mr. Malbranche, in his Certification of Generator (in two colors), stated:“I certify under penalties of law that I have personally examined and am familiar with the information contained in this submittal, including any and all documents accompanying this certification, and that, based on my inquiry of those individuals immediately responsible for obtaining the information contained herein is, to the best of my knowledge and belief, true, accurate, and complete.   I am aware that there are significant penalties, including, but not limited to, possible fines and imprisonment, for willfully submitting false, inaccurate, or incomplete information.”   (Ex. 26).  FN9. It was undisputed at trial that MSR's, not BOL's, were necessary and appropriate per Comm–97 and MCP for the removal of contaminated soil from the site.   The contract required plaintiff's Licensed Site Professional (“LSP”) to prepare the MSR's. The MSR's were appropriately signed by Geo–Tek's LSP and by Mr. Malbranche for the owner.   Mr. Malbranche, in his Certification of Generator (in two colors), stated:“I certify under penalties of law that I have personally examined and am familiar with the information contained in this submittal, including any and all documents accompanying this certification, and that, based on my inquiry of those individuals immediately responsible for obtaining the information contained herein is, to the best of my knowledge and belief, true, accurate, and complete.   I am aware that there are significant penalties, including, but not limited to, possible fines and imprisonment, for willfully submitting false, inaccurate, or incomplete information.”   (Ex. 26)

FN10. Because the soils did not contain contaminants above reportable concentrations (“RC's”)in the MCP, Geo–Tek prepared a document called a Material Shipping Record (“MSR”), pursuant to DEP Policy Comm–97–001, in order to document the tracking of the soils from the site to the Woburn landfill.  (Covert Testimony, Buckman Testimony).   Materials with reportable contaminants above RC's are to be disposed of under Comm–97 if legally permitted by Comm–97.   The language of 180.41, which references Comm–97 which only deals with disposal in a landfill, implicitly indicates that Sec. 181.11 is only reached if the materials cannot legally be disposed of pursuant to Comm–97..  FN10. Because the soils did not contain contaminants above reportable concentrations (“RC's”)in the MCP, Geo–Tek prepared a document called a Material Shipping Record (“MSR”), pursuant to DEP Policy Comm–97–001, in order to document the tracking of the soils from the site to the Woburn landfill.  (Covert Testimony, Buckman Testimony).   Materials with reportable contaminants above RC's are to be disposed of under Comm–97 if legally permitted by Comm–97.   The language of 180.41, which references Comm–97 which only deals with disposal in a landfill, implicitly indicates that Sec. 181.11 is only reached if the materials cannot legally be disposed of pursuant to Comm–97.

FN11. I accept that this basis was explained to the plaintiff even though Mr. Hines' White Paper was not shared with plaintiff..  FN11. I accept that this basis was explained to the plaintiff even though Mr. Hines' White Paper was not shared with plaintiff.

FN12. Having now heard from Mr. DeMatteo, I do not draw the inference I drew when I dictated my Findings on 23 December 2011.   His testimony confirms that at the very least, Mr. DeMatteo told MBTA management that it could not continue to do this job without getting paid.   I decline to accept his version..  FN12. Having now heard from Mr. DeMatteo, I do not draw the inference I drew when I dictated my Findings on 23 December 2011.   His testimony confirms that at the very least, Mr. DeMatteo told MBTA management that it could not continue to do this job without getting paid.   I decline to accept his version.

FN13. Mr. Malbranche, in his Certifications (MBTA) (in two colors), stated:“I HEREBY CERTIFY UNDER THE PENALTIES OF PERJURY, THAT THIS ACCOUNTING REPRESENTS A TRUE AND COMPLETE STATEMENT OF WORK PERFORMED AND THAT THE WORK HAS BEEN INSPECTED, IS ACCEPTABLE AND IS IN CONFORMITY WITH THE TERMS OF THE CONTRACT, TO AND INCLUDING THE DATE INDICATED TO THE BEST OF MY KNOWLEDGE AND BELIEF.  (Ex. 21a).  FN13. Mr. Malbranche, in his Certifications (MBTA) (in two colors), stated:“I HEREBY CERTIFY UNDER THE PENALTIES OF PERJURY, THAT THIS ACCOUNTING REPRESENTS A TRUE AND COMPLETE STATEMENT OF WORK PERFORMED AND THAT THE WORK HAS BEEN INSPECTED, IS ACCEPTABLE AND IS IN CONFORMITY WITH THE TERMS OF THE CONTRACT, TO AND INCLUDING THE DATE INDICATED TO THE BEST OF MY KNOWLEDGE AND BELIEF.  (Ex. 21a)

FN14. Article 5.24 states:“No Waiver Of Legal RightsAuthority shall not be precluded or stopped by any measurement, estimate, or certificate made either before of (sic) after the completion and acceptance of the Work and payment therefor from showing the true amount and character of the Work provided and materials furnished by the Contractor, nor from showing that any such measurement, estimate or certificate is untrue or is incorrectly made, nor that the Work or materials do not in fact conform to the contract.   The Authority shall not be precluded or estopped, notwithstanding any such measurement, estimate or certificate any payment in accordance therewith from recovering from the Contractor or the Contractor's sureties, or both, such damage as it may sustain by reason of the Contractor's failure to comply with the terms of the contract.   Neither the acceptance by the Authority, or any representative of the Authority, nor any payment for or acceptance of the whole or part of the Work, nor any extension of time, nor any possession taken by the Authority, shall operate as a waiver of any portion of the Contract or of any power herein reserved, or any right to damages.” (emphasis added.).  FN14. Article 5.24 states:“No Waiver Of Legal RightsAuthority shall not be precluded or stopped by any measurement, estimate, or certificate made either before of (sic) after the completion and acceptance of the Work and payment therefor from showing the true amount and character of the Work provided and materials furnished by the Contractor, nor from showing that any such measurement, estimate or certificate is untrue or is incorrectly made, nor that the Work or materials do not in fact conform to the contract.   The Authority shall not be precluded or estopped, notwithstanding any such measurement, estimate or certificate any payment in accordance therewith from recovering from the Contractor or the Contractor's sureties, or both, such damage as it may sustain by reason of the Contractor's failure to comply with the terms of the contract.   Neither the acceptance by the Authority, or any representative of the Authority, nor any payment for or acceptance of the whole or part of the Work, nor any extension of time, nor any possession taken by the Authority, shall operate as a waiver of any portion of the Contract or of any power herein reserved, or any right to damages.” (emphasis added.)

FN15. “ § 39K. Public building construction contracts;  paymentsEvery contract for the construction, reconstruction, alteration, remodeling, repair or demolition of any public building by the commonwealth, or by any county, city, town, district, board, commission or other public body, when the amount is more than five thousand dollars in the case of the commonwealth and more than two thousand dollars in the case of any county, city, town, district, board, commission or other public body, shall contain the following paragraph:—within  fifteen days (30 days in the case of the commonwealth, including local housing authorities) after receipt from the contractor, at the place designated by the awarding authority if such a place is so designated, of a period estimate requesting payment of the amount due for the preceding month, the awarding authority will make a periodic payment to the contractor for the work performed during the preceding month and for the materials not incorporated in the work but delivered and suitably stored at the site (or at some location agreed upon in writing) to which the contractor has title or to which a subcontractor has title and has authorized the contractor to transfer title to the awarding authority, upon certification by the contractor that he is the lawful owner and that the materials are free from all encumbrances, ․ If the awarding authority fails to make payment as herein provided, there shall be added to each such payment daily interest at the rate of three percentage points above the rediscount rate than charged by the Federal Reserve Bank of Boston commencing on the first day after said payment is due and continuing until the payment is delivered or mailed to the contractor;  provided, that no interest shall be due, in any event, on the amount due on a period estimate for final payment until fifteen days (twenty-four days in the case of the commonwealth) after receipt of such a periodic estimate from the contractor, at the place designated by the awarding authority if such a place is so designated.   The contractor agrees to pay to each subcontractor a portion of any such interest paid in accordance with the amount due each subcontractor.”.  FN15. “ § 39K. Public building construction contracts;  paymentsEvery contract for the construction, reconstruction, alteration, remodeling, repair or demolition of any public building by the commonwealth, or by any county, city, town, district, board, commission or other public body, when the amount is more than five thousand dollars in the case of the commonwealth and more than two thousand dollars in the case of any county, city, town, district, board, commission or other public body, shall contain the following paragraph:—within  fifteen days (30 days in the case of the commonwealth, including local housing authorities) after receipt from the contractor, at the place designated by the awarding authority if such a place is so designated, of a period estimate requesting payment of the amount due for the preceding month, the awarding authority will make a periodic payment to the contractor for the work performed during the preceding month and for the materials not incorporated in the work but delivered and suitably stored at the site (or at some location agreed upon in writing) to which the contractor has title or to which a subcontractor has title and has authorized the contractor to transfer title to the awarding authority, upon certification by the contractor that he is the lawful owner and that the materials are free from all encumbrances, ․ If the awarding authority fails to make payment as herein provided, there shall be added to each such payment daily interest at the rate of three percentage points above the rediscount rate than charged by the Federal Reserve Bank of Boston commencing on the first day after said payment is due and continuing until the payment is delivered or mailed to the contractor;  provided, that no interest shall be due, in any event, on the amount due on a period estimate for final payment until fifteen days (twenty-four days in the case of the commonwealth) after receipt of such a periodic estimate from the contractor, at the place designated by the awarding authority if such a place is so designated.   The contractor agrees to pay to each subcontractor a portion of any such interest paid in accordance with the amount due each subcontractor.”

FN16. Plaintiff seeks payment for “Currently Due on Unpaid Quantities.”   However, that is denied as no such claim or evidence was presented during the trial.   See Plaintiff's (Proposed) Revised Findings # 19 and MBTA's Response to DeMatteo's Proposed Changes and Additions to the Court's Draft Findings of Fact and Rulings of Law..  FN16. Plaintiff seeks payment for “Currently Due on Unpaid Quantities.”   However, that is denied as no such claim or evidence was presented during the trial.   See Plaintiff's (Proposed) Revised Findings # 19 and MBTA's Response to DeMatteo's Proposed Changes and Additions to the Court's Draft Findings of Fact and Rulings of Law.

FN17. The parties are required to submit their proposals as to the total computation of interest for these five delayed payments..  FN17. The parties are required to submit their proposals as to the total computation of interest for these five delayed payments.

FN18. Even Mr. Covert referred to this disposal as recycling..  FN18. Even Mr. Covert referred to this disposal as recycling.

FN19. I include the excerpt in the same format as it appears in the contact because I find that this format, unique in the contract for its use of bolded all-capitalized letters, offers further support that Item 181.11 is an exhaustive list of compensable ways to dispose of highly contaminated materials..  FN19. I include the excerpt in the same format as it appears in the contact because I find that this format, unique in the contract for its use of bolded all-capitalized letters, offers further support that Item 181.11 is an exhaustive list of compensable ways to dispose of highly contaminated materials.

FN20. DeMatteo contends that it is entitled to be paid by the MBTA $9,057,261 under Item 181.11, based on disposing 41,547 metric tons of soils at the Woburn landfill multiplied by DeMatteo's unit price bid of $218/metric ton.  (Exhibit 51, para. 26), even though its actual costs were $1,282,337..  FN20. DeMatteo contends that it is entitled to be paid by the MBTA $9,057,261 under Item 181.11, based on disposing 41,547 metric tons of soils at the Woburn landfill multiplied by DeMatteo's unit price bid of $218/metric ton.  (Exhibit 51, para. 26), even though its actual costs were $1,282,337.

Elizabeth M. Fahey Justice of the Superior Court