November 04, 2019 Public Contract Law Journal

Closing the Loop: The Folly of Burn Pits and Achieving Sustainable Military Contingency Operations Through Life- Cycle Cost Analysis

by Christopher DelGiorno
Serving the Country

Serving the Country

Major Christopher T. DelGiorno serves in the U.S. Air Force Judge Advocate General’s Corps. Major DelGiorno earned a Bachelor of Science degree from Cornell University in May 2003. Major DelGiorno is also a 2006 graduate of University of Pennsylvania Law School. This paper was submitted in partial satisfaction of the requirements for the degree of Master of Laws in Government Procurement and Environmental Law at The George Washington University Law School. The thesis was directed by LeRoy C. Paddock, Associate Dean for Environmental Studies and Professorial Lecturer in Law.

Disclaimer: The views expressed in this paper are solely those of the author and do not reflect the official policy or position of the U.S. Air Force, the Department of Defense, or the U.S. Government.

I.   Introduction

Major Beau Biden’s Army National Guard unit was activated for deployment to Iraq in October 2008.1 Known in Delaware as Attorney General Biden, the son of the then vice president-elect easily passed his Army Physical Fitness Test and was found to be in good health before deploying in December 2008.2 Major Biden returned home in September 2009, but only eight months later, the forty-one-year old suffered a stroke.3 He was released from the hospital but soon began feeling fatigued, weak, and occasionally disoriented.4 His health continued to deteriorate until, in August 2013, he was diagnosed with brain cancer.5 He had a lesion removed from his brain, and radiation and chemotherapy treatment temporarily brought his cancer into remission; two years later it returned, and Beau Biden died on May 30, 2015, at the age of forty-six.6

Major Biden spent his deployment at Camp Victory and Joint Base Balad, both of which operated multiple open-air burn pits to dispose of waste with no environmental safeguards.7 Other deployed soldiers stated that jet fuel was used to ignite the burn pits, and waste burned by the service contractor “included animal carcasses, asbestos insulation, biohazard materials, cleaning supplies combustion by-products, human waste, a variety of chemicals” and seemingly anything else that a base might produce and need to dispose of.8 Although there is no clear causal link between exposure to the burn pits and Major Biden’s cancer, medical experts believe it is possible; on January 10, 2018, former Vice President Joseph Biden said in an interview that he believes exposure to the burn pits may “play a significant role” in causing veterans’ cancer.9

Beau Biden is one of thousands of service members who deployed to Iraq and/ or Afghanistan and were exposed to burn pits after September 11, 2001;10 these shallow excavations or natural surface features with berms for open-air burning were regularly used for waste disposal during contingency operations11 until at least 2010.12 The Department of Defense (DoD) had little oversight of waste management and relied on local deployed commanders to balance poorly-defined environmental concerns against more immediate security and mission considerations. DoD acquisition authorities viewed burn pits as the most cost-effective waste disposal method in deployed locations because they considered only the immediate costs of waste disposal and ignored the longer term costs of indiscriminate open-air burning and the maintenance and disposition costs of creating burn pits, resulting in false economy.13 The DoD was required to develop regulations restricting the use of burn pits in 2010, but their use persisted in some areas for several more years; over 170,000 veterans have already documented their exposures and reported health concerns on a Department of Veterans Affairs (VA) burn pit registry.14

Waste management is a growing problem for society at large and the DoD in particular, with significant healthcare and disability compensation costs related to waste disposal in contingency operations likely in the coming years. Advanced conversion technology (ACT), an umbrella term for clean waste-to- energy processes that use high temperatures to convert waste into synthetic gas that can be used to generate power, has shown highly-promising potential. So far, it has not taken hold commercially due in part to the relatively low cost of landfill and energy production (which does not currently capture the cost of negative externalities15 on human health and the environment).16 While these commercial barriers to ACT result in excess costs to society, the DoD may bear direct financial responsibility for much of the long-term damage caused in part by its short-term focus.

The Federal Acquisition Regulation (FAR) encourages consideration of life-cycle cost in procurement planning to ensure that the government receives the best overall value rather than merely the lowest up-front costs, and a thorough cost-benefit analysis would likely have prevented the DoD from employing burn pits in any but the most exigent circumstances.17 Having finally eliminated burn pit usage where possible, the DoD has largely shifted to conventional methods including incinerators and landfills for contingency operations.18 While certainly preferable to burn pits, incinerators also present logistical challenges and the DoD would be better served contracting for ACT systems – this would help solve environmental and logistical issues at remote operating bases, meet the FAR’s sustainability goals, and foster development of ACT for U.S. civilian applications.

Although conventional disposal and energy supply methods may have lower initial costs, I argue that documented life-cycle cost analysis (LCCA) should be a required component of procurement planning for contingency operations. Use of LCCA will likely result in deployment of ACT systems using streamlined procedures under existing supply and services contracts, presenting a potentially revolutionary opportunity to reduce health risks to

U.S. personnel and to provide greater self-sufficiency, to reduce environmental impact, and to encourage development of technology that can be adapted for commercial purposes. Part II of this paper reviews the legal framework for overseas contingency operations, including U.S. environmental and government procurement regulations and international law considerations. Part III examines current DoD practices and its impacts on the health of U.S. personnel and local populations, the environment, and the DoD mission giving rise to the contingency operation. Part IV considers the financial costs of the DoD’s expeditionary operations and its recent efforts to advance deployable ACT systems through research and development, trials, and prototypes. Finally, part V proposes a revised federal acquisition rule to mandate that DoD agencies perform substantive LCCA in acquisition planning for environmental management in contingency operations, which will allow ACT to receive full and fair consideration while preserving the DoD’s discretion to ensure maximum support for the warfighter.

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