Defense Federal Acquisition Regulation Supplement: Storage, Treatment, and Disposal of Toxic or Hazardous Materials-Statutory Update (DFARS Case 2013-D013), 58697-58699 [2014-22847]
Download as PDF
<![CDATA[
Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Rules and Regulations
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 223 and 252
RIN 0750–AI07
Defense Federal Acquisition
Regulation Supplement: Storage,
Treatment, and Disposal of Toxic or
Hazardous Materials—Statutory
Update (DFARS Case 2013–D013)
IV. Regulatory Flexibility Act
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to conform with statute,
amend the clause prescriptions, and
update the basic and alternate clause for
the prohibition on storage, treatment,
and disposal of toxic or hazardous
materials.
SUMMARY:
Effective September 30, 2014.
Ms.
Lee Renna, telephone 571–372–6095.
SUPPLEMENTARY INFORMATION:
DATES:
FOR FURTHER INFORMATION CONTACT:
I. Background
DoD published a proposed rule in the
Federal Register at 79 FR 4648 on
January 29, 2014, to amend DFARS
subpart 223.71 and the associated clause
252.223–7006, Prohibition on Storage,
Treatment, and Disposal of Toxic or
Hazardous Materials. No public
comments were submitted in response
to the proposed rule.
II. Discussion and Analysis
This final rule amends DFARS
subpart 223.71 to better align the
DFARS with the current provisions set
forth in 10 U.S.C. 2692 concerning
storage, treatment, and disposal of
nondefense toxic and hazardous
materials. Additionally, the contract
clause at 252.223–7006 is reformatted to
facilitate the use of automated contract
writing systems for clauses with
alternates.
tkelley on DSK3SPTVN1PROD with RULES
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
VerDate Sep<11>2014
16:10 Sep 29, 2014
Jkt 232001
A final regulatory flexibility analysis
has been prepared consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq., and is summarized as follows:
This final rule amends the Defense
Federal Acquisition Regulation
Supplement (DFARS) to conform the
DFARS with the statute (10 U.S.C. 2692)
regarding the storage, treatment, or
disposal of toxic or hazardous materials
not owned by DoD on DoD installations.
The rule also applies the new paradigm
for clauses with alternates to facilitate
the use of automated contract writing
systems.
No comments were received from the
public in response to the initial
regulatory flexibility analysis.
This rule affects contractors and
subcontractors performing contracts that
involve the storage, treatment, or
disposal of toxic or hazardous materials
not owned by DoD on a DoD
installation. The Federal Procurement
Data System does not provide
identification of how many contractors
and subcontractors (whether large or
small) may be affected.
This rule does not add any new
information collection, reporting, or
record keeping requirements. No
alternatives were identified that will
accomplish the objectives of the rule.
V. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 223 and
252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 223 and 252
are amended as follows:
■ 1. The authority citation for parts 223
and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PO 00000
Frm 00043
Fmt 4700
Sfmt 4700
58697
PART 223—ENVIRONMENT, ENERGY
AND WATER EFFICIENCY,
RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL
SAFETY, AND DRUG-FREE
WORKPLACE
2. Revise subpart 223.71 to read as
follows:
■
Subpart 223.71—Storage, Treatment, and
Disposal of Toxic or Hazardous Materials
Sec.
223.7101 Definitions.
223.7102 Policy.
223.7103 Procedures.
223.7104 Exceptions.
223.7105 Reimbursement.
223.7106 Contract clause.
Subpart 223.71—Storage, Treatment,
and Disposal of Toxic or Hazardous
Materials
223.7101
Definitions.
As used in this subpart, the terms
storage and toxic or hazardous
materials are defined in the clause at
252.223–7006, Prohibition on Storage,
Treatment, and Disposal of Toxic or
Hazardous Materials.
223.7102
Policy.
(a) 10 U.S.C. 2692 prohibits storage,
treatment, or disposal on DoD
installations of toxic or hazardous
materials that are not owned either by
DoD or by a member of the armed forces
(or a dependent of the member) assigned
to or provided military housing on the
installation, unless an exception in
223.7104 applies.
(b) When storage of toxic or hazardous
materials is authorized based on an
imminent danger, the storage provided
shall be temporary and shall cease once
the imminent danger no longer exists. In
all other cases of storage or disposal, the
storage or disposal shall be terminated
as determined by the Secretary of
Defense.
223.7103
Procedures.
(a)(1) Storage, treatment, or disposal
of toxic or hazardous materials not
owned by DoD on a DoD installation is
prohibited unless—
(i) One or more of the exceptions set
forth in 223.7104(a) is met including
requisite approvals; or
(ii) Secretary of Defense authorization
is obtained under the conditions set
forth in 223.7104(b).
(2) When storage, treatment, or
disposal of toxic or hazardous materials
not owned by DoD is authorized in
accordance with this subpart, the
contract shall specify the types and
quantities of toxic or hazardous
materials that may be temporarily
stored, treated, or disposed of in
E:\FR\FM\30SER1.SGM
30SER1
58698
Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Rules and Regulations
connection with the contract or as a
result of the authorized use of a DoD
facility or space launch facility. All
solicitations and contracts shall specify
the conditions under which storage,
treatment, or disposal is authorized.
(b) If the contracting officer is
uncertain as to whether particular
activities are prohibited or fall under
one of the exceptions in 223.7104, the
contracting officer should seek advice
from the cognizant office of counsel.
tkelley on DSK3SPTVN1PROD with RULES
223.7104
Exceptions.
(a) The prohibition of 10 U.S.C. 2692
does not apply to any of the following:
(1) The storage, treatment, or disposal
of materials that will be or have been
used in connection with an activity of
DoD or in connection with a service to
be performed on a DoD installation for
the benefit of DoD.
(2) The storage of strategic and critical
materials in the National Defense
Stockpile under an agreement for such
storage with the Administrator of
General Services Administration.
(3) The temporary storage or disposal
of explosives in order to protect the
public or to assist agencies responsible
for Federal, State, or local law
enforcement in storing or disposing of
explosives when no alternative solution
is available, if such storage or disposal
is made in accordance with an
agreement between the Secretary of
Defense and the head of the Federal,
State, or local agency concerned.
(4) The temporary storage or disposal
of explosives in order to provide
emergency lifesaving assistance to civil
authorities.
(5) The disposal of excess explosives
produced under a DoD contract, if the
head of the military department
concerned determines, in each case, that
an alternative feasible means of disposal
is not available to the contractor, taking
into consideration public safety,
available resources of the contractor,
and national defense production
requirements.
(6) The temporary storage of nuclear
materials or nonnuclear classified
materials in accordance with an
agreement with the Secretary of Energy.
(7) The storage of materials that
constitute military resources intended to
be used during peacetime civil
emergencies in accordance with
applicable DoD regulations.
(8) The temporary storage of materials
of other Federal agencies in order to
provide assistance and refuge for
commercial carriers of such material
during a transportation emergency.
(9) The storage of any material that is
not owned by DoD, if the Secretary of
the military department concerned
VerDate Sep<11>2014
16:10 Sep 29, 2014
Jkt 232001
determines that the material is required
or generated in connection with the
authorized and compatible use of a
facility of DoD, including the use of
such a facility for testing material or
training personnel.
(10) The treatment and disposal of
any toxic or hazardous materials not
owned by DoD, if the Secretary of the
military department concerned
determines that the material is required
or generated in connection with the
authorized and compatible use of a
facility of that military department and
the Secretary enters into a contract or
agreement with the prospective user
that—
(i) Is consistent with the best interest
of national defense and environmental
security; and
(ii) Provides for the prospective user’s
continued financial and environmental
responsibility and liability with regard
to the material.
(11) The storage of any material that
is not owned by DoD if the Secretary of
the military department concerned
determines that 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.
(b) The Secretary of Defense may
grant an exception to the prohibition in
10 U.S.C. 2692 when essential to protect
the health and safety of the public from
imminent danger if the Secretary
otherwise determines the exception is
essential and if the storage or disposal
authorized does not compete with
private enterprise.
223.7105
Reimbursement.
The Secretary of Defense may assess
a charge for any storage or disposal
provided under this subpart. If a charge
is to be assessed, then such assessment
shall be identified in the contract with
payment to the Government on a
reimbursable cost basis.
223.7106
Contract clause.
Use the basic or the alternate of the
clause at 252.223–7006, Prohibition on
Storage, Treatment, and Disposal of
Toxic or Hazardous Materials, in all
solicitations and contracts which
require, may require, or permit
contractor access to a DoD installation.
(a) Use the basic clause, unless a
determination is made under
223.7104(a)(10).
(b) Use the alternate I clause when the
Secretary of the military department
issues a determination under the
exception at 223.7104(a)(10).
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
3. Section 252.223–7006 is revised to
read as follows:
■
252.223–7006 Prohibition on Storage,
Treatment, and Disposal of Toxic or
Hazardous Materials.
As prescribed in 223.7106, use the
basic clause or its alternate:
Basic. As prescribed at 223.7106(a),
use the following clause.
PROHIBITION ON STORAGE,
TREATMENT, AND DISPOSAL OF
TOXIC OR HAZARDOUS
MATERIALS—BASIC (SEP 2014)
(a) Definitions. As used in this clause—
Storage means a non-transitory, semipermanent or permanent holding, placement,
or leaving of material. It does not include a
temporary accumulation of a limited quantity
of a material used in or a waste generated or
resulting from authorized activities, such as
servicing, maintenance, or repair of
Department of Defense (DoD) items,
equipment, or facilities.
Toxic or hazardous materials means—
(i) Materials referred to in section 101(14)
of the Comprehensive Environmental
Response, Compensation, and Liability Act
(CERCLA) of 1980 (42 U.S.C. 9601(14)) and
materials designated under section 102 of
CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
(ii) Materials that are of an explosive,
flammable, or pyrotechnic nature; or
(iii) Materials otherwise identified by the
Secretary of Defense as specified in DoD
regulations.
(b) In accordance with 10 U.S.C. 2692, the
Contractor is prohibited from storing,
treating, or disposing of toxic or hazardous
materials not owned by DoD on a DoD
installation, except to the extent authorized
by a statutory exception to 10 U.S.C. 2692 or
as authorized by the Secretary of Defense. A
charge may be assessed for any storage or
disposal authorized under any of the
exceptions to 10 U.S.C. 2692. If a charge is
to be assessed, then such assessment shall be
identified elsewhere in the contract with
payment to the Government on a
reimbursable cost basis.
(c) The Contractor shall include the
substance of this clause, including this
paragraph (c), in all subcontracts that require,
may require, or permit a subcontractor access
to a DoD installation, at any subcontract tier.
(End of clause)
Alternate I. As prescribed in
223.7106(b), use the following clause,
which adds a new paragraph (c) and
revises and redesignates paragraph (c) of
the basic clause as paragraph (d).
PROHIBITION ON STORAGE,
TREATMENT, AND DISPOSAL OF
TOXIC OR HAZARDOUS
MATERIALS—ALTERNATE I (SEP
2014)
(a) Definitions. As used in this clause—
E:\FR\FM\30SER1.SGM
30SER1
Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Rules and Regulations
Storage means a non-transitory, semipermanent or permanent holding, placement,
or leaving of material. It does not include a
temporary accumulation of a limited quantity
of a material used in or a waste generated or
resulting from authorized activities, such as
servicing, maintenance, or repair of
Department of Defense (DoD) items,
equipment, or facilities.
Toxic or hazardous materials means—
(i) Materials referred to in section 101(14)
of the Comprehensive Environmental
Response, Compensation, and Liability Act
(CERCLA) of 1980 (42 U.S.C. 9601(14)) and
materials designated under section 102 of
CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
(ii) Materials that are of an explosive,
flammable, or pyrotechnic nature; or
(iii) Materials otherwise identified by the
Secretary of Defense as specified in DoD
regulations.
(b) In accordance with 10 U.S.C. 2692, the
Contractor is prohibited from storing,
treating, or disposing of toxic or hazardous
materials not owned by DoD on a DoD
installation, except to the extent authorized
by a statutory exception to 10 U.S.C. 2692 or
as authorized by the Secretary of Defense. A
charge may be assessed for any storage or
disposal authorized under any of the
exceptions to 10 U.S.C. 2692. If a charge is
to be assessed, then such assessment shall be
identified elsewhere in the contract with
payment to the Government on a
reimbursable cost basis.
(c) With respect to treatment or disposal
authorized pursuant to DFARS 223.7104(10)
(10 U.S.C. 2692(b)(10), and notwithstanding
any other provision of the contract, the
Contractor assumes all financial and
environmental responsibility and liability
resulting from any treatment or disposal of
toxic or hazardous materials not owned by
DoD on a military installation. The
Contractor shall indemnify, defend, and hold
the Government harmless for all costs,
liability, or penalties resulting from the
Contractor’s treatment or disposal of toxic or
hazardous materials not owned by DoD on a
military installation.
(d) The Contractor shall include the
substance of this clause, including this
paragraph (d), in all subcontracts that
require, may require, or permit a
subcontractor access to a DoD installation, at
any tier. Inclusion of the substance of this
clause in subcontracts does not relieve the
prime Contractor of liability to the
Government under paragraph (c) of this
clause.
(End of clause)
tkelley on DSK3SPTVN1PROD with RULES
[FR Doc. 2014–22847 Filed 9–29–14; 8:45 am]
BILLING CODE 5001–06–P
VerDate Sep<11>2014
16:10 Sep 29, 2014
Jkt 232001
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 229 and 252
RIN 0750–AI19
Defense Federal Acquisition
Regulation Supplement: Clauses With
Alternates—Taxes (DFARS Case 2013–
D025)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to create an overarching
prescription for a tax-related clause with
an alternate and add a separate
prescription for the basic clause. The
rule also includes in the regulation the
full text of the alternate clause.
DATES: Effective September 30, 2014.
FOR FURTHER INFORMATION CONTACT: Ms.
Jennifer Hawes, telephone 571–372–
6115.
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 79 FR 11381 on
February 28, 2014, to revise the
presentation of the DFARS part 229
clause with an alternate. No public
comments were submitted in response
to the proposed rule.
II. Discussion
This final rule revises the single
DFARS part 229 clause, 252.229–7001,
Tax Relief, which has an alternate. The
naming convention results in proposed
new clause titles, i.e., Tax Relief—Basic
and Tax Relief—Alternate I. An
umbrella prescription contains the
elements common to the basic clause
and the alternate. The specific
prescriptions for the basic clause and
the alternate address only the
requirements for their use that enable
the selection of the basic or the
alternate.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
58699
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Regulatory Flexibility Act
A final regulatory flexibility analysis
has been prepared consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq., and is summarized as follows:
This final rule amends the Defense
Federal Acquisition Regulation
Supplement (DFARS) to (1) create an
umbrella prescription for the elements
common to the basic clause and the
alternate of DFARS clause 252.229–
7001, Tax Relief, (2) create a specific
prescription for the basic clause and
alternate clause that address only the
requirements for their use, and (3)
include the full text of the alternate
clause.
No comments were received from the
public in response to the initial
regulatory flexibility analysis.
There will be no impact on small
business entities since DFARS clause
252.229–7001 is used only in
solicitations and contracts when award
is made to a foreign concern and
performance is in a foreign country.
This rule does not add any new
information collection, reporting, or
record keeping requirements. No
alternatives were identified that will
accomplish the objectives of the rule.
V. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 229 and
252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 229 and 252
are amended as follows:
1. The authority citation for 48 CFR
parts 229 and 252 continues to read as
follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
E:\FR\FM\30SER1.SGM
30SER1
]]>Agencies
[Federal Register Volume 79, Number 189 (Tuesday, September 30, 2014)]
[Rules and Regulations]
[Pages 58697-58699]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22847]
[[Page 58697]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 223 and 252
RIN 0750-AI07
Defense Federal Acquisition Regulation Supplement: Storage,
Treatment, and Disposal of Toxic or Hazardous Materials--Statutory
Update (DFARS Case 2013-D013)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to conform with statute,
amend the clause prescriptions, and update the basic and alternate
clause for the prohibition on storage, treatment, and disposal of toxic
or hazardous materials.
DATES: Effective September 30, 2014.
FOR FURTHER INFORMATION CONTACT: Ms. Lee Renna, telephone 571-372-6095.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 79 FR 4648
on January 29, 2014, to amend DFARS subpart 223.71 and the associated
clause 252.223-7006, Prohibition on Storage, Treatment, and Disposal of
Toxic or Hazardous Materials. No public comments were submitted in
response to the proposed rule.
II. Discussion and Analysis
This final rule amends DFARS subpart 223.71 to better align the
DFARS with the current provisions set forth in 10 U.S.C. 2692
concerning storage, treatment, and disposal of nondefense toxic and
hazardous materials. Additionally, the contract clause at 252.223-7006
is reformatted to facilitate the use of automated contract writing
systems for clauses with alternates.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
and is summarized as follows:
This final rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to conform the DFARS with the statute (10 U.S.C.
2692) regarding the storage, treatment, or disposal of toxic or
hazardous materials not owned by DoD on DoD installations. The rule
also applies the new paradigm for clauses with alternates to facilitate
the use of automated contract writing systems.
No comments were received from the public in response to the
initial regulatory flexibility analysis.
This rule affects contractors and subcontractors performing
contracts that involve the storage, treatment, or disposal of toxic or
hazardous materials not owned by DoD on a DoD installation. The Federal
Procurement Data System does not provide identification of how many
contractors and subcontractors (whether large or small) may be
affected.
This rule does not add any new information collection, reporting,
or record keeping requirements. No alternatives were identified that
will accomplish the objectives of the rule.
V. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 223 and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 223 and 252 are amended as follows:
0
1. The authority citation for parts 223 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
0
2. Revise subpart 223.71 to read as follows:
Subpart 223.71--Storage, Treatment, and Disposal of Toxic or Hazardous
Materials
Sec.
223.7101 Definitions.
223.7102 Policy.
223.7103 Procedures.
223.7104 Exceptions.
223.7105 Reimbursement.
223.7106 Contract clause.
Subpart 223.71--Storage, Treatment, and Disposal of Toxic or
Hazardous Materials
223.7101 Definitions.
As used in this subpart, the terms storage and toxic or hazardous
materials are defined in the clause at 252.223-7006, Prohibition on
Storage, Treatment, and Disposal of Toxic or Hazardous Materials.
223.7102 Policy.
(a) 10 U.S.C. 2692 prohibits storage, treatment, or disposal on DoD
installations of toxic or hazardous materials that are not owned either
by DoD or by a member of the armed forces (or a dependent of the
member) assigned to or provided military housing on the installation,
unless an exception in 223.7104 applies.
(b) When storage of toxic or hazardous materials is authorized
based on an imminent danger, the storage provided shall be temporary
and shall cease once the imminent danger no longer exists. In all other
cases of storage or disposal, the storage or disposal shall be
terminated as determined by the Secretary of Defense.
223.7103 Procedures.
(a)(1) Storage, treatment, or disposal of toxic or hazardous
materials not owned by DoD on a DoD installation is prohibited unless--
(i) One or more of the exceptions set forth in 223.7104(a) is met
including requisite approvals; or
(ii) Secretary of Defense authorization is obtained under the
conditions set forth in 223.7104(b).
(2) When storage, treatment, or disposal of toxic or hazardous
materials not owned by DoD is authorized in accordance with this
subpart, the contract shall specify the types and quantities of toxic
or hazardous materials that may be temporarily stored, treated, or
disposed of in
[[Page 58698]]
connection with the contract or as a result of the authorized use of a
DoD facility or space launch facility. All solicitations and contracts
shall specify the conditions under which storage, treatment, or
disposal is authorized.
(b) If the contracting officer is uncertain as to whether
particular activities are prohibited or fall under one of the
exceptions in 223.7104, the contracting officer should seek advice from
the cognizant office of counsel.
223.7104 Exceptions.
(a) The prohibition of 10 U.S.C. 2692 does not apply to any of the
following:
(1) The storage, treatment, or disposal of materials that will be
or have been used in connection with an activity of DoD or in
connection with a service to be performed on a DoD installation for the
benefit of DoD.
(2) The storage of strategic and critical materials in the National
Defense Stockpile under an agreement for such storage with the
Administrator of General Services Administration.
(3) The temporary storage or disposal of explosives in order to
protect the public or to assist agencies responsible for Federal,
State, or local law enforcement in storing or disposing of explosives
when no alternative solution is available, if such storage or disposal
is made in accordance with an agreement between the Secretary of
Defense and the head of the Federal, State, or local agency concerned.
(4) The temporary storage or disposal of explosives in order to
provide emergency lifesaving assistance to civil authorities.
(5) The disposal of excess explosives produced under a DoD
contract, if the head of the military department concerned determines,
in each case, that an alternative feasible means of disposal is not
available to the contractor, taking into consideration public safety,
available resources of the contractor, and national defense production
requirements.
(6) The temporary storage of nuclear materials or nonnuclear
classified materials in accordance with an agreement with the Secretary
of Energy.
(7) The storage of materials that constitute military resources
intended to be used during peacetime civil emergencies in accordance
with applicable DoD regulations.
(8) The temporary storage of materials of other Federal agencies in
order to provide assistance and refuge for commercial carriers of such
material during a transportation emergency.
(9) The storage of any material that is not owned by DoD, if the
Secretary of the military department concerned determines that the
material is required or generated in connection with the authorized and
compatible use of a facility of DoD, including the use of such a
facility for testing material or training personnel.
(10) The treatment and disposal of any toxic or hazardous materials
not owned by DoD, if the Secretary of the military department concerned
determines that the material is required or generated in connection
with the authorized and compatible use of a facility of that military
department and the Secretary enters into a contract or agreement with
the prospective user that--
(i) Is consistent with the best interest of national defense and
environmental security; and
(ii) Provides for the prospective user's continued financial and
environmental responsibility and liability with regard to the material.
(11) The storage of any material that is not owned by DoD if the
Secretary of the military department concerned determines that 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.
(b) The Secretary of Defense may grant an exception to the
prohibition in 10 U.S.C. 2692 when essential to protect the health and
safety of the public from imminent danger if the Secretary otherwise
determines the exception is essential and if the storage or disposal
authorized does not compete with private enterprise.
223.7105 Reimbursement.
The Secretary of Defense may assess a charge for any storage or
disposal provided under this subpart. If a charge is to be assessed,
then such assessment shall be identified in the contract with payment
to the Government on a reimbursable cost basis.
223.7106 Contract clause.
Use the basic or the alternate of the clause at 252.223-7006,
Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous
Materials, in all solicitations and contracts which require, may
require, or permit contractor access to a DoD installation.
(a) Use the basic clause, unless a determination is made under
223.7104(a)(10).
(b) Use the alternate I clause when the Secretary of the military
department issues a determination under the exception at
223.7104(a)(10).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Section 252.223-7006 is revised to read as follows:
252.223-7006 Prohibition on Storage, Treatment, and Disposal of Toxic
or Hazardous Materials.
As prescribed in 223.7106, use the basic clause or its alternate:
Basic. As prescribed at 223.7106(a), use the following clause.
PROHIBITION ON STORAGE, TREATMENT, AND DISPOSAL OF TOXIC OR HAZARDOUS
MATERIALS--BASIC (SEP 2014)
(a) Definitions. As used in this clause--
Storage means a non-transitory, semi-permanent or permanent
holding, placement, or leaving of material. It does not include a
temporary accumulation of a limited quantity of a material used in
or a waste generated or resulting from authorized activities, such
as servicing, maintenance, or repair of Department of Defense (DoD)
items, equipment, or facilities.
Toxic or hazardous materials means--
(i) Materials referred to in section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) of 1980 (42 U.S.C. 9601(14)) and materials designated
under section 102 of CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
(ii) Materials that are of an explosive, flammable, or
pyrotechnic nature; or
(iii) Materials otherwise identified by the Secretary of Defense
as specified in DoD regulations.
(b) In accordance with 10 U.S.C. 2692, the Contractor is
prohibited from storing, treating, or disposing of toxic or
hazardous materials not owned by DoD on a DoD installation, except
to the extent authorized by a statutory exception to 10 U.S.C. 2692
or as authorized by the Secretary of Defense. A charge may be
assessed for any storage or disposal authorized under any of the
exceptions to 10 U.S.C. 2692. If a charge is to be assessed, then
such assessment shall be identified elsewhere in the contract with
payment to the Government on a reimbursable cost basis.
(c) The Contractor shall include the substance of this clause,
including this paragraph (c), in all subcontracts that require, may
require, or permit a subcontractor access to a DoD installation, at
any subcontract tier.
(End of clause)
Alternate I. As prescribed in 223.7106(b), use the following
clause, which adds a new paragraph (c) and revises and redesignates
paragraph (c) of the basic clause as paragraph (d).
PROHIBITION ON STORAGE, TREATMENT, AND DISPOSAL OF TOXIC OR HAZARDOUS
MATERIALS--ALTERNATE I (SEP 2014)
(a) Definitions. As used in this clause--
[[Page 58699]]
Storage means a non-transitory, semi-permanent or permanent
holding, placement, or leaving of material. It does not include a
temporary accumulation of a limited quantity of a material used in
or a waste generated or resulting from authorized activities, such
as servicing, maintenance, or repair of Department of Defense (DoD)
items, equipment, or facilities.
Toxic or hazardous materials means--
(i) Materials referred to in section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) of 1980 (42 U.S.C. 9601(14)) and materials designated
under section 102 of CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
(ii) Materials that are of an explosive, flammable, or
pyrotechnic nature; or
(iii) Materials otherwise identified by the Secretary of Defense
as specified in DoD regulations.
(b) In accordance with 10 U.S.C. 2692, the Contractor is
prohibited from storing, treating, or disposing of toxic or
hazardous materials not owned by DoD on a DoD installation, except
to the extent authorized by a statutory exception to 10 U.S.C. 2692
or as authorized by the Secretary of Defense. A charge may be
assessed for any storage or disposal authorized under any of the
exceptions to 10 U.S.C. 2692. If a charge is to be assessed, then
such assessment shall be identified elsewhere in the contract with
payment to the Government on a reimbursable cost basis.
(c) With respect to treatment or disposal authorized pursuant to
DFARS 223.7104(10) (10 U.S.C. 2692(b)(10), and notwithstanding any
other provision of the contract, the Contractor assumes all
financial and environmental responsibility and liability resulting
from any treatment or disposal of toxic or hazardous materials not
owned by DoD on a military installation. The Contractor shall
indemnify, defend, and hold the Government harmless for all costs,
liability, or penalties resulting from the Contractor's treatment or
disposal of toxic or hazardous materials not owned by DoD on a
military installation.
(d) The Contractor shall include the substance of this clause,
including this paragraph (d), in all subcontracts that require, may
require, or permit a subcontractor access to a DoD installation, at
any tier. Inclusion of the substance of this clause in subcontracts
does not relieve the prime Contractor of liability to the Government
under paragraph (c) of this clause.
(End of clause)
[FR Doc. 2014-22847 Filed 9-29-14; 8:45 am]
BILLING CODE 5001-06-P
