Acquisition Regulation; Environmental Protection

DEPARTMENT OF ENERGY

48 CFR Part 970

Acquisition Regulation; Environmental Protection

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) issues a final rule which

amends the Department of Energy Acquisition Regulation (DEAR) to

provide coverage on environmental protection for contractors operating

DOE facilities.

EFFECTIVE DATE: The rule will be effective March 9, 1994.

FOR FURTHER INFORMATION CONTACT: P. Devers Weaver, Procurement Policy

Division (HR-521.1), U.S. Department of Energy, 1000 Independence

Avenue, SW., Washington, DC 20585; telephone 202-586-8250.

SUPPLEMENTARY INFORMATION:

I. Background

II. Section-by-Section Analysis

III. Public Comments

IV. Procedural Requirements

I. Background

In this rule the Department of Energy wishes to more clearly

communicate the importance of the protection of the environment, and it

wishes to enhance compliance with applicable environmental protection

laws, codes, ordinances, and regulations by contractors operating

facilities of the Department. To accomplish this, a new clause,

Environmental Protection, to be included in DOE contracts was proposed

in a notice of proposed rulemaking, published in the August 28, 1991,

Federal Register (56 FR 42584), and is now promulgated in this final

rule.

II. Section-by-Section Analysis

Section 970.5204-62 and 970.2303-2(e) provide a clause and clause

prescription for the use of the clause, Environmental Protection. To

the list of environmental laws and Executive Orders appearing in the

proposed rule have been added entries at 970.5204-62(a)(3), at (a)(15)

to (a)(19) and at (b)(12) and (b)(13). These refer to laws and

Executive Orders that have become effective since the time the proposed

rule was developed or that were overlooked at the time the proposed

rule was developed.

III. Public Comments

a. General

DOE invited interested persons to participate in this rulemaking by

submitting data, views, or arguments with respect to the DEAR

amendments set forth in the notice of proposed rulemaking. Comments

were received from 8 business firms and universities, many of which are

DOE management and operating contractors.

b. Safety and Permits

Comments were received regarding the proposed coverage on the

clause at proposed DEAR 970.5204-2, Safety and Health (Government-owned

or -leased facility), and the clause at proposed DEAR 970.5204-29,

Permits or Licenses. In part DOE agrees with some of the comments

offered and for these and other reasons has decided not to amend the

DEAR coverage on these two clauses at this time. Also, conforming

amendments, related to the two clauses, at proposed DEAR 970.2303-2(a)

and 970.7104-21 will not be made at this time. Should the Department

decide to revise these clauses in the future, a notice of proposed

rulemaking would be issued.

c. Environmental Protection

Comments were offered that the changes in the proposed rule were

burdensome, would have an adverse impact on operations, and would

require a significant increase in administrative and oversight effort

for no apparent effort. Another comment noted a tendency to formalize

good management practices into rigid contractual requirements that can

only have the long-run effect of limiting the ability of management and

operating contractors to respond innovatively and creatively to

changing conditions. Administration of clause requirements has been

substantially reduced by the deletion of requirements from the proposed

Environmental Protection clause in paragraphs, at proposed DEAR

970.5204-60(c) (1), (2) and (3). These involved the need for a

contractor to research laws on an ongoing basis, identify any

inconsistencies that would affect performance, and to include

consideration of environmental laws in planning.

d. Effects of Funding on Compliance

A comment was received stating that the rule did not recognize the

significant joint management relationship between DOE and its

management and operating contractors, that funding for compliance is

controlled by DOE, that pre-existing conditions preclude strict and

immediate or near-term compliance in most DOE facilities, and they

create ambiguity as to an established baseline for compliance. Another

comment stated that it was not clear how the provisions of the

avoidable cost rule, published in the Federal Register of June 19, 1991

(56 FR 28099), relate to the proposed rule; it did not appear that a

management and operating contractor would have sole and exclusive

control of the required compliance actions. Resolution of these

comments is outside the scope of this rule. It is appropriate for a

contract to provide for compliance with applicable laws for which DOE

has some enforcement responsibility role. It is also the case that a

management and operating contractor's obligation to perform under a

contract is contingent upon funds being obligated under the contract.

Problems related to insufficient funding to comply with the law are

best resolved on a case-by-case basis.

e. Paperwork Burden

Several commenters perceived that an additional paperwork burden

would be imposed by the proposed rule. The Department does not believe

that this rulemaking imposes material additional paperwork burden. The

primary basis for this conclusion is as follows: to the extent that any

paperwork burden exists, such requirements are already contained in

state and Federal environmental laws and their implementing

regulations, and thus do not result from this rule. Since current

management and operating contracts state that work under the contract

must be performed in compliance with applicable laws, and since the

effect of the rule is simply to clarify that the requirements of all

applicable environmental laws and regulations are not waived for

contractors (by virtue of the fact that work is being performed for the

Government under contract), the rule contains no material ``new''

requirements and therefore, no additional paperwork is required. The

Department believes that the public comments on additional paperwork

burden may reflect a new awareness on the part of some contractors that

DOE has undergone a shift in its emphasis on environmental protection.

To the extent that the rulemaking does impose information collection or

recordkeeping requirements, they have been provided for under Office of

Management and Budget paperwork clearance package No. 1910-0300.

f. Environmental Protection

Several commenters expressed concern over the identification of

laws, codes, ordinances, regulations, and directives by which DOE

intends to monitor compliance. It was said that the proposed rulemaking

appeared to shift the burden of identifying and complying with

environmental laws and regulations from the contractor to the

Government. If the Government failed to list a specific law or

regulation, it could call into question whether or not the contractor

is obligated to comply. In response to these comments the Environmental

Protection clause at paragraph (a)(21) has been revised to state,

``errors in or omissions from the list of laws above, or failure to

identify a requirement having the force and effect of law, shall not be

construed as waiving a requirement for the contractor to comply with

such law or requirement nor shall they form the basis for a defense by

the contractor in an administrative, civil, or criminal proceeding. * *

*''

Comments were offered that the Environmental Protection clause, now

at paragraphs (a)(20) and (a)(21), is open-ended and permits DOE to

unilaterally modify a contract by incorporating as-yet unpublished

directives into the contract. Because of the special nature of

environmental protection Directives, it is appropriate that DOE have

the right to require compliance with them by its management and

operating contractors. This provision is not unlike that in the Safety

and Health (Government Owned or Leased Facility) clause (DEAR 970.5204-

2) and the Security clause (DEAR 952.204-2). If there is a persuasive

reason why a management and operating contractor should not comply with

a requirement in a Directive, this can be a topic of discussion during

the negotiation of a contract or at any time during the performance of

the contract.

IV. Procedural Requirements

a. Regulatory Review

b. Review Under the National Environmental Policy Act

c. Review Under the Paperwork Reduction Act

d. Review Under the Regulatory Flexibility Act

e. Review Under Executive Order 12612

f. Review Under Executive Order 12778

a. Regulatory Review

This regulatory action has been determined not to be a

``significant regulatory action'' under Executive Order 12866,

``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).

Accordingly, this action was not subject to review under the Executive

Order by the Office of Information and Regulatory Affairs.

b. Review Under the National Environmental Policy Act

Pursuant to the Council on Environmental Quality Regulations (40

CFR 1500-1508), the Department has established guidelines for its

compliance with the provisions of the National Environmental Policy Act

(NEPA) of 1969 (42 U.S.C. 4321 et seq.). Pursuant to Appendix A of

Subpart D of 10 CFR Part 1021, National Environmental Policy Act

Implementing Procedures, the Department of Energy has determined that

this rule is categorically excluded from the need to prepare an

environmental impact statement or environmental assessment.

c. Review Under the Paperwork Reduction Act

To the extent that new information collection or recordkeeping

requirements are imposed by this rulemaking they are provided for under

Office of Management and Budget paperwork clearance package No. 1910-

0300.

d. Review Under the Regulatory Flexibility Act

This rule was reviewed under the Regulatory Flexibility Act of

1980, Public Law 96-354, which requires preparation of a regulatory

flexibility analysis for any rule which is likely to have significant

economic impact on a substantial number of small entities. This rule

will have no impact on interest rates, tax policies or liabilities, the

cost of goods or services, or other direct economic factors. It will

also not have any indirect economic consequences, such as changed

construction rates. DOE certifies that this rule will not have a

significant economic impact on a substantial number of small entities

and, therefore, no regulatory flexibility analysis has been prepared.

e. Review Under Executive Order 12612

Executive Order 12612, entitled ``Federalism,'' 52 FR 41685

(October 30, 1987), requires that regulations, rules, legislation, and

any other policy actions be reviewed for any substantial direct effects

on States, on the relationship between the Federal Government and the

States, or in the distribution of power and responsibilities among

various levels of government. If there are sufficient substantial

direct effects, then the Executive Order requires preparation of a

federalism assessment to be used in all decisions involved in

promulgating and implementing a policy action. This rule will not

affect States substantially.

f. Review Under Executive Order 12778

Section 2 of Executive Order 12778 instructs each agency subject to

Executive Order 12291 to adhere to certain requirements in promulgating

new regulations and reviewing existing regulations. These requirements,

set forth in sections 2(a) and (b)(2), include eliminating drafting

errors and needless ambiguity, drafting the regulations to minimize

litigation, providing clear and certain legal standards for affected

legal conduct, and promoting simplification and burden reduction.

Agencies are also instructed to make every reasonable effort to ensure

that the regulation: Specifies clearly any preemptive effect, effect on

existing Federal law or regulation, and retroactive effect; describes

any administrative proceedings to be available prior to judicial review

and any provisions for the exhaustion of such administrative

proceedings; and defines key terms. DOE certifies that this rule meets

the requirements of sections 2(a) and 2(b) of Executive Order 12778.

List of Subjects in 48 CFR Part 970

Government procurement.

Issued in Washington, D.C. on February 1, 1994.

G. L. Allen,

Acting Deputy Assistant Secretary for Procurement and Assistance

Management.

For the reasons set forth in the preamble, chapter 9 of title 48 of

the Code of Federal Regulations is amended as set forth below.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

1. The authority citation for Part 970 continues to read as

follows:

Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.

2201), sec. 644 of the Department of Energy Organization Act, Public

Law 95-91 (42 U.S.C. 7254), sec. 201 of the Federal Civilian

Employee and Contractor Travel Expenses Act of 1985 (41 U.S.C. 420)

and sec. 1534 of the Department of Defense Authorization Act, 1986,

Public Law 99-145 (42 U.S.C. 7256a), as amended.

2. Section 970.2303-2 is amended by adding paragraph (e) as

follows:

970.2303-2 Clauses.

* * * * *

(e) The clause at 970.5204-62 shall be included in management and

operating contracts.

3. To subpart 970.52 add section 970.5204-62 as follows:

970.5204-62 Environmental protection.

Environmental Protection (Mar 1994)

(a) In addition to complying with the requirements set forth in

the ``Clean Air and Water'' clause, in the performance of this

contract the contractor shall comply, as applicable, with the

following, which list is not represented to be free of omissions:

(1) The Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et

seq.);

(2) The Department of Energy Organization Act (42 U.S.C. 7101 et

seq.);

(3) The Energy Reorganization Act of 1974 (42 U.S.C. 5801 et

seq.);

(4) The Resource Conservation and Recovery Act of 1976, as

amended (42 U.S.C. 6901 et seq.);

(5) The Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.);

(6) The Safe Drinking Water Act, as amended (42 U.S.C. 300 et

seq.);

(7) The Toxic Substances Control Act, as amended (15 U.S.C. 2601

et seq.);

(8) The Federal Insecticide, Fungicide, and Rodenticide Act, as

amended

(7 U.S.C. 136 et seq.);

(9) The Marine Protection, Research, and Sanctuaries Act of

1972, as amended (33 U.S.C. 1401 et seq.);

(10) The Coastal Zone Management Act of 1972, as amended (16

U.S.C. 1451 et seq.);

(11) The Coastal Barrier Resource Act of 1982 (16 U.S.C. 3501 et

seq.);

(12) The Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.

10101 et seq.);

(13) The Low-Level Radioactive Waste Policy Act, as amended (42

U.S.C. 2021 et seq.);

(14) The Uranium Mill Tailings Radiation Control Act of 1978, as

amended (42 U.S.C. 7901 et seq.);

(15) Pollution Prevention Act of 1990, as amended (42 U.S.C.

13101 et seq.);

(16) Emergency Planning and Community Right-to-Know Act, as

amended (42 U.S.C. 11001 et seq.);

(17) Motor Vehicle Information and Cost Savings Act, as amended

(15 U.S.C. 1901 et seq.);

(18) Energy Policy Act of 1992 (Public Law 102-486 and 3 U.S.C.

301);

(19) Energy Policy and Conservation Act (42 U.S.C. 6201 et

seq.);

(20) Code of Federal Regulations, Title 10 (Energy), parts

involving environmental protection and related requirements for

contractors;

(21) DOE Directives (i.e., Orders and Notices) numbered in the

series between 1540 and 1541 (Materiels), between 5000.2 and 5000.4

(Unusual Occurrence Reporting), in the series between 5400 and 5500

(Environmental Quality and Impact), and between 5820.1 and 5820.3

(Radioactive Waste Management), and involving requirements for

contractors; and

(22) Other, Federal and non-Federal, environmental protection

laws, codes, ordinances, Executive Orders, regulations, and

requirements in DOE Directives, as identified in writing by the

contracting officer. Errors in or omissions from the list of laws

above, or failure to identify a requirement having the force and

effect of law, shall not be construed as waiving a requirement for

the contractor to comply with such law or requirement nor shall they

form the basis for a defense by the contractor in an administrative,

civil, or criminal proceeding, including providing a basis for a

claim for the allowability of a fine, penalty, or other cost

associated with failure to comply with such law or requirement.

(b) The contractor shall assist the Department of Energy in

complying, as applicable, with the following:

(1) The National Environmental Policy Act of 1969, as amended

(42 U.S.C. 4321 et seq.);

(2) The Endangered Species Act of 1973, as amended (16 U.S.C.

1531 et seq.);

(3) The Fish and Wildlife Coordination Act, as amended (16

U.S.C. 661 et seq.);

(4) The Noise Control Act of 1972, as amended (42 U.S.C. 4901 et

seq.);

(5) The National Historic Preservation Act of 1966, as amended

(16 U.S.C. 470 et seq.);

(6) The Wild and Scenic Rivers Act, as amended (16 U.S.C. 1273

et seq.);

(7) Farmland Protection Policy Act of 1981 (7 U.S.C. 4201 et

seq.);

(8) Executive Order 11988 of May 24, 1977, Floodplain

Management;

(9) Executive Order 11990, of May 24, 1977, Protection of

Wetlands;

(10) Executive Order 12088 of October 13, 1978, Federal

Compliance with Pollution Control Standards;

(11) Executive Order 12580 of January 23, 1987, Superfund

Implementation;

(12) Executive Order 12843 of April 23, 1993, Procurement

Requirements and Policies for Ozone-Depleting Substances;

(13) Executive Order 12845 of April 23, 1993, Requiring Agencies

to Purchase Energy Efficient Computer Equipment;

(14) Office of Management and Budget (OMB) Circular No. A-106 of

December 31, 1974, Reporting Requirements in Connection with the

Prevention, Control, and Abatement of Environmental Pollution of

Existing Federal Facilities; and

(15) Other, Federal and non-Federal, environmental protection

laws, codes, ordinances, regulations, and DOE Directives, as

identified in writing by the contracting officer.

(c) The contractor shall, with regard to the environmental

protection laws, codes, ordinances, Executive Orders, regulations

and directives included in or covered by paragraphs (a) and (b) of

this clause, set forth appropriate environmental protection

requirements in subcontracts with respect to work to be performed

on-site at a DOE-owned or -leased facility.

(End of Clause)