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DOD Finalizes Amendments to DFARS Regarding the Storage, Treatment, and Disposal of Non-DOD Toxic and Hazardous Materials on DOD Sites

Bandza_Alexander_COLORBy Alexander J. Bandza

 

On September 30, 2014, the Department of Defense (DOD) published a final rule that amends Defense Federal Acquisition Regulation Supplement (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.  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 proposed rule was issued earlier this year and received no public comments. 

Some of the larger changes are as follows:

  • Under section 223.7102 (“Policy”), subsection (b) was added, which states that when storage of toxic or hazardous materials is authorized based on imminent danger, the storage provided is required to be temporary and must cease once the imminent danger no longer exists.
  • Several new exemptions under section 223.7104 (“Exceptions”) were added, including:
    • (a)(1), which added an exception to the prohibition 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;
    • (a)(9), which expanded the exception for the storage of toxic or hazardous materials not owned by DOD but 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; and
    • (a)(11), which added an exception for the storage of material not owned by DOD when the Secretary of the military department concerned determines the material is required or generated in connection with the use of a space launch facility on a DOD installation or other land controlled by the United States.
  • Section 223.7105 (“Reimbursement”) was added, which provides that the Secretary of Defense may assess a charge for any storage or disposal provided under the subpart.
  • Under section 223.7106 (“Contract clause”), subsection (a) was revised to broaden the clause application to include solicitations and contracts that may require access to a DOD installation.

The final rule can be found here.