By: Genevieve Essig
The Department of Defense has published proposed rule 79 FR 4648 (Jan. 29, 2014), [enhanced version available to lexis.com subscribers], which relates to DFARS regulations on the storage, treatment, and disposal of toxic or hazardous materials. The rule in essence seeks to catch up 48 CFR 223.71, which contains a prohibition on the storage and disposal of non-DoD-owned toxic or hazardous materials on DoD installations and exceptions to that prohibition, as well its associated contract clause at 48 CFR 252.223-7006, [enhanced version available to lexis.com subscribers], to the current version of the underlying statute 10 U.S.C. 2362 (Storage, Treatment, and Disposal of Nondefense Toxic and Hazardous Materials) [enhanced version available to lexis.com subscribers]. 10 U.S.C. 2362 has been revised and updated a number of times without corresponding changes being made in the regulations. The rule revises, reorganizes, and renumbers various existing provisions, as well as adds a handful of new provisions. Some examples of the more substantive updates are as follows:
1. The word “treatment” is added in several places to ensure that the prohibition applies not only to the storage and disposal of toxic/hazardous materials but also their treatment. The modifier “toxic and hazardous” is also updated to “toxic or hazardous.”
2. A number of changes are made to the enumerated list of exceptions to the prohibition provided in 223.7102 [enhanced version available to lexis.com subscribers] (redesignated 223.7104). E.g.:
• New subparagraph (a)(1) provides a new exception for the storage, treatment or disposal of materials “used in connection with an activity of DoD or in connection with a service performed on a DoD installation for the benefit of DoD.”
• New subparagraph (a)(11) provides a new exception for storage where the material is “required or generated in connection with the use of a space launch facility located on a DoD installation or on other land controlled by the United States.
• Existing (a)(2) (redesignated (a)(3)) is revised to expand the existing exception to situations involving State or local law enforcement (instead of just Federal law enforcement).
• Existing (a)(8) (redesignated (a)(9)) is revised to remove the reference to “by a private person,” expanding the existing exception to material “required or generated in connection with the authorized and compatible use of a facility of DoD.” Such uses include “testing material or training personnel."
• Existing (a)(9) (redesignated (a)(10)) is similarly revised to expand the existing exception to material “required or generated in connection with the authorized and compatible use of a facility of that military department.” Potential qualifiers “by private person” and “commercial use” are removed.
• Paragraph (b) is revised to add the requirement that the Secretary Defense, in granting exceptions to the prohibition “when essential to protect the health and safety of the public from imminent danger,” must find that the exception is essential and that the storage or disposal authorized “does not compete with private enterprise."
3. A new section 223.7105 adds that the Secretary may assess a charge for any storage or disposal provided under the subpart (to be identified in the contract).
4. Section 223.7103 [enhanced version available to lexis.com subscribers] (redesignated 223.7106) on the contract clause is revised to broaden the clause application to include all solicitations and contracts that “require, may require, or permit contractor access to a DoD installation.”
5. The basic contract clause at 252.223-7006 is revised to account for the storage/disposal charge authorized in 223.7105 and to require flowdown of the substance of the clause to “all subcontracts that require, may require, or permit a subcontractor access to a DoD installation” (any subcontract tier).
6. The flowdown provision of the alternate contact clause at 252.223-7006 is similarly expanded to “all subcontracts that require, may require, or permits a subcontractor access to a DoD installation” (any tier). It is also clarified that such flowdown does not relieve the contractor of liability to the Government.
By Genevieve Essig, Associate, Jenner & Block
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