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ROY F. WESTON, INC. v. HALLIBURTON NUS ENVTL. CORP

March 16, 1993

ROY F. WESTON, INC.
v.
HALLIBURTON NUS ENVIRONMENTAL CORP. v. ROY F. WESTON, INC., and INDIANA LUMBERMEN'S MUTUAL INSURANCE CO.



The opinion of the court was delivered by: BY THE COURT; HERBERT J. HUTTON

HUTTON, J.

 March 16, 1993

 Presently before the Court is defendant/counterclaim plaintiff Halliburton NUS Environmental Corporation's ("Halli-burton NUS") Motion for Summary Judgment, and plaintiff/counterclaim defendant Roy F. Weston, Inc. ("Weston") and counterclaim/defendant Indiana Lumbermens' Mutual Insurance Co.'s ("Indiana Lumbermens") reply.

 BACKGROUND

 Plaintiff/counterclaim defendant, Roy F. Weston, Inc., is a Texas corporation involved in the business of providing demolition, dismantling and disposal services. On January 26, 1990, Weston entered into a subcontracting agreement with defendant Halliburton NUS to provide its services at the Douglassville Disposal Site located in Berks County, Pennsylvania. Douglassville is a federal Superfund site on the National Priorities List. *fn1" The site is the location of a former oil reprocessing facility. The hazardous waste of concern in the present subcontracting agreement was composed of oils, sludges, solvents, asbestos and contaminated solids such as building materials and tanks.

 Pursuant to the subcontracting agreement, Weston was to dismantle the facility and to dispose of the hazardous liquids and sludges located in the above ground tanks on the site. The specific requirements of the contract included the following: site preparation and maintenance; removal of asbestos materials; pumping of liquids and sludges from the tanks to tanker trucks and the draining of free liquids from the site; dismantling and removal of all buildings, tanks, equipment, piping, drums and miscellaneous materials; waste hauling and disposal; and related services, such as health and safety, sampling and analysis, and decontamination of equipment materials and personnel. The total contract price was not to exceed $ 3,256,731.00.

 During execution of the contract, Weston experienced difficulty with the pumpability of the contents of the tanks. Weston encountered solid material which could not be removed via pumping. Relations between the two parties broke down and Halliburton NUS eventually terminated Weston's rights under the contract. Weston subsequently brought the instant suit.

 Weston's complaint contains three counts against Halliburton NUS arising out of their contractual relationship for the dismantling and disposal services involving the Douglassville Disposal Site located in Berks County, Pennsylvania. *fn2"

 In count I of the complaint, Weston alleges that Halliburton NUS breached the contract. The complaint alleges in pertinent part:

 
38. The Site conditions materially differ from those indicated in the contract such that an equitable adjustment to the contract must be made.
 
39. [Weston] is entitled to a modification of the contract to reflect actual site conditions and to allow it to properly handle and dispose of the nonpumpable tank solids in the quantities at which they are present at the site. The modification should include an equitable adjustment to the contract price and completion date.
 
40. The failure and refusal of NUS to address the defective specifications and/or differing site conditions caused by the presence of substantial quantities of nonpumpable solid materials in the sumps and aboveground tanks by authorizing and approving a change order specifying the manner in which the work may proceed and making an equitable adjustment to the contract constitutes a willful and material breach of the contract.
 
41. The aforesaid breach and continuing interference by NUS has rendered performance of the contract by [Weston] impossible.

 Count III of the complaint alleges negligent and willful misconduct. The complaint alleges in pertinent part:

 
50. NUS has a duty and obligation to administer the contract in good faith and so not to interfere with, delay or hinder [Weston's] performance thereunder.
 
51. NUS has acted unreasonably and in bad faith in administering the contract by failing and refusing to investigate or recognize conditions which differ materially from those indicated in the contract and to make an equitable adjustment to the contract.
 
52. NUS has failed and refused to approve any reasonable proposal for the handling and disposal of the solid material in the aboveground tanks at the site, thereby ...

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