|
Introduction Increasingly, mission readiness in the Air Force exists in a cooperative partnership with competitive sourcing, performance-based contracting, and a strong focus on compliance assurance and pollution prevention. These circumstances require Air Force personnel who work with, oversee, and evaluate contracts and contractors to be aware of the many environmental issues that arise when products, technologies, and services are solicited and acquired. Environmental regulations impact virtually every activity throughout the Air Force, whether it is Air Force or contractor operated. It is important for contracting officer representatives (COR) and installation environmental personnel to understand the variety of environmental issues and concerns that may arise during the procurement and contracting process. This understanding will help to prevent potential administrative or legal actions against base commanders and will help contractors maintain compliance with environmental laws and regulations. The Air Force increasingly relies on contractors to perform a wide range of tasks and services. These contractors are expected to comply with all federal, state, and local environmental laws and regulations (or in overseas areas, with the laws and regulations of the particular country and requirements of any Status of Forces Agreements [SOFAs], treaties, etc., that may apply) in the same way as their Air Force customer. Air Force contracts may be specifically developed to perform environmental compliance activities such as asbestos and lead abatement, underground storage tank removal/replacement, and removal/retrofill of equipment containing polychlorinated biphenyls (PCBs). Other Air Force contracts may be for standard services and commodities. In either case, the contracting officer's representative and/or installation environmental personnel must verify that the contractor complies with a series of contract-specific environmental provisions and clauses. The added responsibility on the part of the involved Air Force personnel, as well as the contractor, can create potential discrepancies resulting in environmental regulatory action, cost overruns, delays in project completion, and possible mission impact. This fact sheet will outline applicable federal, Department of Defense, and Air Force acquisition and contracting policies and procedures in support of improving the quality of the environment through pollution control, waste minimization, energy conservation, identification of hazardous material, and the use of recovered materials. It will also describe some of the environmental issues to be considered that can affect, and must be addressed by, the acquisition and contracting process. Important Terms Acquisition Plan (AP) means a comprehensive plan for fulfilling agency needs in a timely manner and at a reasonable cost (price). The acquisition plan contains the overall strategy for managing the acquisition. (See FAR Part 7.) Affirmative Procurement is required by the Resource Conservation and Recovery Act (RCRA) and Executive Order (EO) 13101. Federal agencies must establish programs to encourage the purchase of products containing recycled materials. It establishes preferences for products containing recycled materials and promotes buying recycled materials. Base Comprehensive Plan is the primary document that contains environmental plans that guide development activities at the installation. Contracting Officer means an individual appointed by the Secretary of the Air Force or designee with the authority to enter into, administer, or terminate contracts and execute related determinations and findings within the limits of the authority delegated. Only a contracting officer has the authority to contractually bind the U.S. government on behalf of the Air Force. Contracting Officer Representative (COR) is an individual with sufficient technical ability nominated by the customer and appointed by the contracting officer to ensure that the operational provisions of the contract are conducted properly. Cost Factors are the expense and cost avoidance associated with hazardous materials that may be reduced to monetary terms. Cost factors refer to direct and indirect costs attributable to hazardous materials that are encountered in operations such as acquisition, manufacture, supply use, storage inventory control, treatment, recycling, emission control, training, work place safety, hazard assessments, engineering controls, personal protective equipment, medical monitoring, regulatory overhead, spill contingency, disposal, remedial actions, and liability. Cradle-to-Grave Management is a concept under RCRA and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Once a hazardous waste is generated, the generator is responsible for that waste until it is reclaimed, recycled, or declared no longer hazardous. Landfill or deep well injection does not relieve the generator of liability; as long as the waste exists in any form, so does the liability. Environmental compliance contracts are those contracts developed and awarded for the sole purpose of bringing the Air Force into compliance with one or more environmental requirements. Compliance contracts are normally low dollar, time sensitive, and have the potential for high dollar liabilities. Environmental Impact Analysis Process (EIAP) is designed to meet the requirements of the National Environmental Policy Act (NEPA). EIAP ensures that environmental factors are considered in the decision-making process. Environmental Impact Statement (EIS) is a report, prepared under EIAP, examining the environmental consequences of a proposed federal action that could significantly affect the quality of the environment. Environmentally Preferable means products or services that have a lesser negative effect on human health or the environment when compared with competing products or services that serve the same purpose. This comparison should use principles recommended in guidance issued by the Environmental Protection Agency (EPA), and may consider raw materials acquisition, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product or service. Federal Acquisition Regulation (FAR) means the Federal Acquisition Regulation issued pursuant to Section 25(c)(1) of the Office of Federal Procurement Policy Act (41 United States Code [U.S.C.] 421[c][1]). Pollution Prevention Program (PPP) is any program or practice that reduces the quantity of substances, pollutants or contaminants in the waste stream. Recovered Materials are waste materials and by-products recovered or diverted from solid waste. Recycled Material is a material that can be utilized in place of raw or virgin material in manufacturing. Suitable Substitute means an alternative to ozone depleting substance (ODS) use that is determined to be technically, economically, and legally feasible through elimination, process modification, or material substitution. Waste Prevention also known as source reduction, means any change in the design, manufacturing, purchase, or use of materials or products (including packaging) to reduce their amount of toxicity before they become municipal solid waste. Waste prevention also refers to the reuse of products or materials. Waste Reduction means preventing or decreasing the amount of waste being generated through waste prevention, recycling, or purchasing recycled and environmentally preferable products. Regulatory Overview Organizations and workers under contract to the Air Force are subject to the same environmental laws, regulations, and Executive Orders (EOs) as the Air Force. Some of these laws and regulations specifically mandate the consideration of "environmentally friendly" choices when Air Force activities and/or Air Force contractors acquire or deliver services and items. Installation environmental professionals, Contracting Officers, and CORs have a responsibility to ensure that all necessary environmental requirements are included in contracts issued for products and services. Much of the remainder of this fact sheet is devoted to brief summaries of the primary environmental and acquisition regulatory drivers applicable to most Air Force contracting activities. The environmental regulatory drivers are presented below:
Executive Orders
DoD Regulations
Subpart 23.2 - Energy Conservation
Subpart 23.3 - Hazardous Material Identification and Material Safety Data
Subpart 23.4 - Use of Recovered Materials
Subpart 23.6 - Notice of Radioactive Material
Subpart 23.7 - Contracting for Environmentally Preferable and Energy-Efficient Products and Services
Subpart 23.8 - Ozone Depleting Substances
Subpart 23.9 - Toxic Chemical Release Reporting
Subpart 23.10 - Federal Compliance with Right-to-Know Laws and P2 Requirements In addition to the provisions contained in Part 23 of the FAR, Part 11 of the FAR, Describing Agency Needs, requires the federal agency (i.e., Air Force) to define its needs with consideration given to affirmative procurement, pollution prevention, and environmental compliance. Also, Subpart 36.212, Preconstruction Orientation, requires the contracting officer to inform the contractor who has authority to decide administrative matters involving security, safety, and fire/environmental protection.
Defense Federal Acquisition Regulation Supplement (DFARS)
Subpart 223.3 - Hazardous Material Identification and Material Safety Data
Subpart 223.8 - Ozone-Depleting Substances
Subpart 223.71 - Storage and Disposal of Toxic and Hazardous Materials
In addition to the provisions contained in Part 223 of the DFARS, Subpart 207.105, Contents of Written Acquisition Plans, requires a discussion of environmental and energy conservation objectives as well as ensuring compliance with DoDD 4210.15, Hazardous Material Pollution Prevention. Subpart 211.271, Elimination of use of Class I ODSs, states that, except in certain instances, no DoD contract may require the use of Class I ODSs.
Air Force Federal Acquisition Regulation Supplement (AFFARS)
Subpart 5323.3 - Hazardous Material Identification and Material Safety Data
Subpart 5323.890 - Elimination of Class I Ozone Depleting Substances (ODS)
Subpart 5323.90 - Safety and Accident Prevention on Government Installations
In addition to the provisions of Part 5323 of the AFFARS, Subpart 5301.601-94 of the AFFARS recommends that legal assistance be sought in contracting situations involving environmental services and contractor adherence with contract provisions requiring compliance with environmental laws. Subpart 5337.190 addresses safety precautions for hazardous materials used in service contracts.
Appendix DD of the AFFARS provides policies, procedures, and guidelines for implementing the Simplified Acquisition of Base Engineer Requirements (SABER) program as described in AFFARS Subpart 5336.293. DD-205, Request for Proposal (RFP), recommends that when developing the elements of a RFP, any required permits or certifications are identified for activities such as asbestos removal or environmental work.
Some Air Force Major Commands (MAJCOMs) such as Air Force Materiel Command (AFMC) and Air Education and Training Command (AETC), have developed command-specific supplemental provisions to the AFFARs. As mentioned above, up-to-date information about all of the various FAR supplements is available at the Air Force FARSite, http://farsite.hill.af.mil/.
Specific assistance with environmental contracting is available from the 311th Human Systems Wing's Environmental Contracting Division (311 HSW/PKV), and Research and Development's Environmental Contracting Branch (311 HSW/PKRE). HSW/PKV and HSW/PKRE maintain staff to provide contracting services worldwide for environmental studies, assessments, remediation, base closure, and base restoration. These two contracting organizations directly support Headquarters Air Force Center for Environmental Excellence (HQ AFCEE) and the Institute for Environment, Safety, and Occupational Health Risk Analysis (IERA) in soliciting, awarding, and administering environmental contracts and delivery orders. They also act as business advisors to AFCEE and IERA Directors on environmental contracting practices. 311 HSW/PKV may be contacted at DSN 240-6306 or by visiting their WWW site at http://www.afcee.brooks.af.mil/pkv/pkvhome.asp. 311 HSW/PKRE may be contacted at DSN 240-6392. Additional assistance with environmental contracting is available from the Environmental Contract Law Division (311 HSW/JAV), DSN 240-4511.
Scopes of Work (SOW) for Environmental Projects
States may include additional requirements beyond those called for in federal regulations, such as special permits to dispose of hazardous materials/substances such as PCBs. Bases may be subject to special fees and charges in connection with state hazardous waste programs. The Federal Facilities Compliance Act subjects installations to all state sanctions, including civil or administrative fines and penalties.
Polychlorinated Biphenyls (PCBs)
PCB-containing equipment has special inspection, markings, record keeping, and restrictive requirements. Transformer servicing requires special procedures for repair, filling and retrofilling. Replaced PCB equipment must be stored in specially designed storage areas. Storage of PCBs on site is limited to one year. They also require a waste manifest system to track the movement of PCB waste from the point of generation to the point of disposal. PCB fluids are disposed by incineration in specially licensed incinerators, and PCB equipment must be disposed of in specially licensed landfills. Cleanup of PCB contaminated sites requires special handling and disposal of contaminated media.
The Base Civil Engineer, Bioenvironmental Engineer, or appropriate designee is responsible for identifying, inspecting, marking (labeling), and properly servicing PCB electrical equipment (transformers and capacitors). Out of service items must be placed in a technically adequate PCB storage facility. Normally, such facilities are located at the servicing Defense Reutilization and Marketing Office (DRMO) and the DRMO is responsible for storage, disposal, transportation, and contracting for disposal.
Only responsible, qualified, financially viable PCB removal companies should be awarded PCB contracts. The chosen contractor must have all applicable federal, state, and local identification numbers, licenses, and permits related to transportation, storage, cleanup, or disposal of PCBs. The contractor should be required contractually to reimburse the Air Force for any fines or penalties assessed against the Air Force due to the improper handling or disposal of PCBs. Clear standards should be identified for determining satisfactory contractor performance. Further information on PCBs is contained in PRO-ACT's March 1999 Fact Sheet: Polychlorinated Biphenyls (PCBs).
Lead Hazards
The Residential Lead Based Paint (LBP) Hazard Reduction Act of 1992 (Title X) provides for LBP hazard reduction, worker protection, reports, and research and development. Subtitle A of Title X requires inspections, abatement, and/or risk assessments of LBP hazards in all federally-owned target housing constructed before 1978, including military family housing. The Air Force policy on lead based paint is to comply with the requirements of Title X, Subtitle A: Identify, evaluate, control, and eliminate existing lead based paint hazards.
Significant liability issues exist for the removal of LBPs, and personnel working on LBP projects must be properly certified. Subtitle B of Title X defines specific responsibilities that include identifying, evaluating, and remediating past lead based paint hazards. Personnel and contractors who work on lead based paint projects, including risk assessments, inspections, and abatement activities, must be properly trained and certified. Other federal regulations applicable to LBP include the waste identification and disposal requirements contained in RCRA, the reportable hazard and remediation requirements in CERCLA, and toxic substance control requirements in TSCA.
The Base Civil Engineer, Bioenvironmental Engineer, or an appropriate designee is responsible for the development and implementation of an installation lead abatement and management plan, as well as being responsible for ensuring certification and training requirements for AF and contract personnel are met.
Contractors performing LBP-related activities are responsible for meeting all federal, state, and local requirements, and should have all applicable licenses, and permits related to LBP removal, transportation, storage, or disposal activities. Further information on lead based paint is contained in PRO-ACT's April 1997 Fact Sheet: Lead Based Paint (LBP).
Asbestos
Asbestos is a hazardous air pollutant under the Clean Air Act (CAA). Standards have been set that define asbestos emission limits, monitoring requirements, work practice standards, restrictions on material use, and reporting requirements. These CAA standards apply to a broad category of activities involving asbestos materials such as demolition/renovation, waste disposal, installing or removing insulating materials, and spraying or fabrication. TSCA includes regulations requiring school asbestos inspections, asbestos management plans, and response actions. The Hazardous Material Transportation Act regulates the transportation of asbestos materials, including standards for loading, handling, and unloading in a manner that will minimize occupational exposure to airborne asbestos. The Occupational Safety and Health Act (OSHA) sets standards for monitoring work areas and sets permissible limits for exposure. OSHA establishes requirements for personal protective equipment and requirements for containment areas. Other federal regulations applicable to LBP include the waste identification and disposal requirements contained in RCRA, and the reportable hazard and remediation requirements in CERCLA. Additionally, states have enacted a wide range of standards that apply to asbestos materials, many of which are more stringent than federal requirements.
Asbestos considerations must be built into the planning process for all AF C & D projects affecting pre-1978 structures. Asbestos cleanup methods are relatively simple, but can be very expensive and time consuming. Common asbestos abatement methods include removal, encapsulation, enclosure, and maintenance with monitoring. Asbestos must be stored and sealed in non-puncture-proof bags and labeled in accordance with RCRA and OSHA regulations. All surfaces that may have been contaminated by asbestos materials must be wiped or vacuumed with special filters. Some sites may require special decontamination and air monitoring equipment for worker safety. Finally, asbestos must be disposed of in approved landfills.
Only responsible, qualified, and financially sound asbestos removal companies should be awarded contracts. The Statement of Work (SOW) should clearly indicate that contract performance involves Asbestos Containing Material (ACM). The SOW should also contain an estimated amount of ACM, and require the contractor to have all applicable federal, state, and local asbestos licenses and permits. The contractor and installation responsibilities with regard to asbestos contracts are numerous and highly complex. Additional specific statements that should appear in the SOW for asbestos projects are detailed in Chapter 7 of the Environmental Contracting Reference Guide (see below). Further information on asbestos is contained in PRO-ACT's March 1999 Fact Sheet: Asbestos.
Underground Storage Tanks
The Resource Conservation and Recovery Act (RCRA) established a comprehensive regulatory program for underground storage tanks (USTs) that store petroleum, petroleum by-products, or substances defined as hazardous under CERCLA. Many state and local governments have active UST programs. State and local UST regulations should be reviewed by the installation and the contractor to ensure that all requirements are met. Federal facilities are required to comply with any state or local UST regulations that may be more stringent than the federal regulations. These regulatory requirements need to be identified in the contract specifications. The Air Force has developed a long-term management program for achieving compliance with UST regulations. Further information on underground storage tanks is contained in PRO-ACT's October 1998 Fact Sheet: Underground Storage Tank (UST) Systems Regulatory Compliance and Management.
Of primary importance is the overall objective of assuring that contracted activities will comply with all applicable environmental laws and regulations. It is important that installation contracting officials, as well as the contractors, have a full understanding of the applicable environmental regulations and their respective responsibilities for compliance. Failure to comply could subject contractors and installation personnel to fines and administrative penalties, contract suspension/cancellation, as well as civil and criminal liability.
Contracting plays an active and important role in the successful accomplishment of the pollution prevention program. Reducing hazardous waste, conserving energy and materials, and developing the incentives to recycle starts with the procurement of recyclable and reusable products and services that comply with all applicable environmental requirements.
Chapters 1-4 of the guide provide general background on Air Force environmental objectives, protocols, governing regulations/policies, and the installation environmental program. Chapters 5, 6, 7, and 8 of the guide address environmental issues encountered during different types of contracted projects, including pollution prevention, environmental cleanup, and construction contracting. Chapter 9 lists a variety of training, technical and information services to improve environmental knowledge and answer technical questions. The Guide is available from PRO-ACT or can be downloaded from the the AFCEE P2 Resource CD web site at http://www.afcee.brooks.af.mil/EQ/p2cd/handplan/handbook/048/abook.doc.
During the pre-award phase, it is important to assure that contracts involving hazardous waste and environmental compliance receive prompt legal review because Air Force liability exposure is not proportional to contract value. It is also important that contract language does not indemnify contractors without proper authority. Other topics that are important to discuss and review from a legal perspective during the pre-award phase are permits (usually the contractor is the "operator" and the AF is the "owner"), enforcement obligations (who is responsible for addressing Notices of Violation), and requirements for contractors to report all hazardous materials handled.
Post-award concerns focus on the capability and performance of the contracting officer in overseeing the contract and documenting inadequacies. The contracting officer should be aware of all interactions between the contractor and regulatory agency personnel.
|