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.
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.
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.
II. Environmental & Procurement Regulatory Framework for Contingency Operations
A. Domestic Environmental Laws
Within the United States, the Resource Conservation and Recovery Act (RCRA) expressly prohibits using burn pits for waste disposal; RCRA also regulates solid and hazardous waste disposal.19 The Comprehensive Environ- mental Response, Compensation, and Liability Act (CERCLA)20 was enacted in response to environmental and health risks caused by industrial pollution and was designed for two primary purposes: “prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party.”21 In conjunction with 1986 CERCLA Amendments, Congress established the Defense Environmental Restoration Program (DERP)22 and directed the Secretary of Defense to “carry out a program of environmental restoration” including response actions for releasing of hazardous substances at DoD facilities.23 The National Environmental Policy Act of 1969 (NEPA)24 does not dictate policy or prescribe particular action, but mandates procedures to be followed by federal agencies before taking actions that significantly affect the environment. NEPA was intended to ensure that agency decision-makers have fully considered the environmental consequences of potential actions, and section 102(2)(C) requires federal agencies “to prepare a detailed environmental impact statement” (EIS) prior to taking actions which have the potential to significantly affect the quality of the human environment.25
The Clean Air Act26 sets forth a complex mechanism to protect public health and welfare from air pollution caused by sources of many types. Congress has singled out solid waste combustion for particular attention, adding section 129 in the 1990 Clean Air Act Amendments directing the EPA to adopt new source performance standards and emission guidelines for four categories of solid waste incineration units: (1) municipal solid waste; (2) commercial and industrial solid waste; (3) hospital, medical and infectious solid waste; and (4) other solid waste.27 In 1987, the EPA determined that solid waste combustion “contribute[s] significantly to air pollution that may reasonably be anticipated to endanger public health or welfare,” and Congress specifically added section 129 to address public concerns about solid waste combustion by requiring air pollution control equipment reflecting the most stringent maximum achievable control technology (MACT) standards developed for air toxics.28 Even solid waste combustion using 1990 industry standard pollution control technology produces harmful emissions containing organics (dioxins and furans), metals (cadmium, lead, mercury, and particulate matter), acid gases (hydrogen chloride and sulfur dioxide), and nitrogen oxide,29 so it would be difficult to claim that the risks to human health of open-air burn pits were not foreseeable.
Although federal statutes may apply outside the territorial jurisdiction of the United States, courts presume that legislation applies only within the United States absent “the affirmative intention of the Congress clearly expressed” that it apply abroad.30 In Foley Bros. v. Filardo, the Supreme Court considered whether Congress intended to make a labor law applicable to work performed in foreign countries.31 The Court held that “legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States”32 and considered the statutory language, its legislative history, and administrative interpretations of the law in determining that there was “no touchstone by which its geographic scope can be determined.”33 The presumption against extraterritoriality serves at least two purposes: (1) it protects “against unintended clashes between our laws and those of other nations which could result in international discord,” and (2) reflects the longstanding principle that when Congress legislates, it “is primarily concerned with domestic conditions.”34
The presumption against extraterritoriality was applied in the environ- mental context in Amlon Metals, Inc. v. FMC Corp.,35 in which the court held that “RCRA does not extend to waste located within the territory of another sovereign nation.”36 The Amlon case considered RCRA’s citizen suit provisions and found that they “reflect a domestic focus,” and that RCRA contained several provisions designed to limit encroachment on state sovereignty but “no parallel provisions protecting the sovereignty of other nations.”37 In Arc Ecology v. United States Department of the Air Force,38 the court considered a similar citizen suit claim under CERCLA, and adopted the Amlon court’s analysis, finding that “[a]lthough CERCLA, like RCRA, contains provisions limiting the statute’s encroachment on state sovereignty, CERCLA, too, contains no parallel provisions protecting the sovereignty of foreign countries.”39
While RCRA and CERCLA more clearly reflect legislative intent to apply domestically, NEPA is more ambiguous and references concern for the global environment. NEPA section 102(2)(F) provides that to the fullest extent possible, federal agencies shall “recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.”40 While the requirement is subject to foreign policy concerns, NEPA could at least arguably apply extraterritorially when it would not implicate foreign policy objectives.41
In Environmental Defense Fund, Inc. v. Massey, the District of Columbia Circuit considered whether the National Science Foundation violated NEPA by failing to prepare an EIS before executing plans to incinerate food waste in Antarctica.42 The Massey court found Antarctica to be a unique location – a “global common” without a sovereign where the United States had a measure of legislative control and where the presumption against extraterritoriality did not apply.43 The D.C. District Court distinguished Antarctica from U.S. military installations in Japan; the court in NEPA Coalition of Japan v. Aspin stated that “D[o]D operations in Japan are governed by complex and long standing treaty arrangements” and the presumption against extraterritorial application applies.44 The Aspin court in fact went even further, declaring that “even if NEPA did apply in this case, as an initial proposition, no EISs would be required because U.S. foreign policy interests outweigh the benefits from preparing an EIS.”45 Although contingency operations can exist in austere environments in the absence of host-nation treaties or stable leadership where the United States exercises a measure of control (as in Iraq during the 2000s), after the emphatic holding in Aspin foreign policy considerations will likely prevent NEPA from applying to U.S. military operations abroad.
B. DoD Environmental Requirements for Contingency Operations
Although domestic environmental laws generally do not apply directly to operations outside the United States, the DoD has issued a series of policy directives for overseas environmental management and compliance obligations depending upon whether or not the action occurs at a fixed, lasting setting known as an “enduring location.” Executive Order (E.O.) 12,114, Environmental Effects Abroad of Major Federal Actions, created “NEPA-like” rules requiring the DoD to analyze the environmental impact of major federal actions that may significantly affect the environment of a foreign nation or the global commons.46 However, E.O. 12,114 includes several major exceptions which essentially prevent its direct application in contingency operations, including actions taken by the President or a cabinet officer when national security or interests are involved or when the action occurs in the course of an armed conflict, intelligence activities, and disaster and emergency relief actions.47 DoD Directive (DoDD) 6050.7 was issued in 1979 to implement E.O. 12,114, but includes the same exemptions essentially rendering it inapplicable to contingency operations.48
For enduring locations49 under DoD control in foreign countries, DoD Instruction (DoDI) 4715.05 governs environmental compliance. It establishes environmental compliance standards in the Overseas Environmental Baseline Guidance Document (OEBGD), which sets forth objective criteria to protect human health and the environment.50 Remediation of contamination at enduring locations is governed by DoDI 4715.08,51 which provides only narrow authority to remediate overseas – remediation for DoD-caused contamination outside a DoD installation is not authorized unless specifically required by international agreement.52 DoDI 4715.05 does not apply to contingency locations, however, and as such the OEBGD and remediation standards are also inapplicable.53
Contingency locations are by definition “non-enduring location[s]” that “support and sustain operations during named and unnamed contingencies or other operations as directed by appropriate authority and [are] categorized by mission life-cycle requirements as initial, temporary, or semi-permanent.”54 The primary sources of requirements for contingency locations are DoD policy and combatant command directives. U.S. Central Command (USCENT-COM) is the geographic combatant command responsible for military operations in the “central” area of the globe, which covers twenty countries, including Afghanistan, Iraq, and Syria.55 It issued USCENTCOM Regulation 200-256 in 2009, which recognizes that burning waste in burns pits “gives off toxic fumes that can affect the life, health and safety” of coalition forces.57 It also acknowledges that “[b]urns pits are typically utilized as contingency operations bases are first stood up,” but when an FOB exceeds one hundred personnel for ninety days, its command must develop a plan to transition from use of burn pits to waste disposal technologies such as incinerators.58
Section 317 of the 2010 National Defense Authorization Act (NDAA) required the DoD to develop regulations prohibiting the disposal of covered waste (hazardous waste as defined in RCRA, medical waste, and other designated waste) in open-air burn pits for contingency operations except when the DoD determines that no alternatives are feasible.59 DoDI 4715.19, Use of Open-Air Burn Pits in Contingency Operations, was first issued in 2011 to respond to the NDAA requirement and prohibits the use of open-air burn pits except as a short-term solution when no other alternative is feasible. It requires operational commanders to develop and approve a solid waste management plan addressing the use of burn pits and disposal of covered waste, and if no alternative disposal method is feasible the combatant commander (a four-star general/ admiral) must make a written determination with justification, provide a health assessment for each burn pit used, and revisit the determination every 180 days.60 The most recent DoD regulation, DoDI 4715.22, Environmental Management Policy for Contingency Locations, was first issued in 2016 and establishes policy, assigns responsibilities, and provides direction for environmental management at contingency locations.61
C. International Law
Contingency operations may also be subject to international law and/ or host-nation law, which is the law of the nation in which the DoD is operating.62 The United States generally must respect the host nation’s environmental laws, but U.S. forces will be immune if: (1) the host nation confers immunity on U.S. forces by agreement; (2) U.S. forces enter the host nation by force; (3) U.S. forces are present under the auspices of a United Nations security-enforcement mission.63 Entering by force traditionally carried the intent of engaging in combat with the national forces of the host nation; it is not as clear whether the immunity would extend to circumstances where the United States enters by force for peacekeeping or to engage a non-state actor.64
International law encompasses both conventional and customary international law. Conventional law consists of treaties, which can be bilateral (such as status of forces agreements) or multilateral but generally apply only to nations that ratify the treaty.65 Customary international law evolves from the general practice of states until it becomes sufficiently widespread that it carries “a sense of legal obligation,” but does not bind states that have consistently rejected the custom.66 Customary international law does not have concrete requirements as to the level and content of state practice sufficient to bind it to states, but like conventional international law it relies on the consent of the nations involved.67
Although international law imposes obligations related to environmental impacts on U.S. contingency operations, they generally apply only to egregious acts not justified by military necessity. Hague Convention IV68 and its accompanying regulations marked the first codification of environmental principles into treaty law.69 Article 22 made clear that methods of warfare were not unlimited; Article 23 prohibits certain actions, including the use of poison, use of methods calculated to cause unnecessary suffering, or destroying or seizing the enemy’s property in the absence of military necessity.70 The 1925 Geneva Gas Protocol bans the combat use of “asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices,” which can be applied to persistent chemicals that can cause lasting environmental damage such as certain herbicides.71 The 1993 Chemical Weapons Convention complements the 1925 Geneva Gas Protocol; U.S. Executive Order 11,850 clarifies U.S. policy with regard to covered chemicals.72
The Fourth Geneva Convention includes article 53 prohibiting damage or destruction of property except for destruction that is “absolutely necessary by military operations,” and article 147 provides that “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is a “[g]rave breach” and war crime.73 Finally, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD)74 bans the manipulation of the environment itself as a weapon, but applies only to advanced technology applications changing the “dynamics, composition or structure of the Earth,”75 and not to low-technology activities such as using chemicals to destroy water supplies. In sum, current international law obligations place limitations on U.S. forces in combat but do not impact contingency operation logistics.
Although it is a U.S. law, the Foreign Claims Act (FCA)76 creates the possibility of future financial liabilities against the DoD and U.S. government to compensate foreign nationals for claims involving property losses, injury or death caused by U.S. military activities by applying host-nation laws.77 Intended “to promote and to maintain friendly relations” with the receiving state, claims under the FCA may be based on the negligent or wrongful acts or omissions of U.S. forces, whether or not within the scope of employment, but cannot be based on losses from combat activities, contractual matters, or claims either not in the best interest of the United States or contrary to public policy.78 FCA claims may be paid in an amount up to $100,000 and are adjudicated by designated U.S. claims decision authorities applying the law of the country in which the claim arose to determine both liability and damages, which may include losses for environmental impacts under host-nation environmental laws.79
D. Federal Acquisition Regulation and Procurement Policy
The Federal Acquisition Regulation (FAR), which codifies government procurement policies and procedures for most executive agencies,80 explicitly recognizes the value of “renewable energy,” which it defines to include biomass and municipal solid waste.81 FAR subpart 23.2, Energy and Water Efficiency and Renewable Energy, makes clear that the “[g]overnment’s policy is to acquire supplies and services that promote a clean energy economy that increases our [n]ation’s energy security, safeguards the health of our environment, and reduces greenhouse gas emissions from direct and indirect [f]ederal activities.”82 The FAR provides that “[t]o implement this policy, [f]ederal acquisitions will foster markets for sustainable technologies, products, and services.”83 While FAR subpart 23.2 applies only to acquisitions in the United States and its outlying areas, agencies still “must use their best efforts to comply” for acquisitions outside the United States.84 FAR subpart 23.1, Sustainable Acquisition Policy, mandates that ninety-five percent of new contracts and new actions on existing contracts for products and services within the United States require that products are energy- and water-efficient, biobased (as defined by the U.S. Department of Agriculture), environmentally preferable (e.g., Electronic Product Environmental Assessment Tool (EPEAT)-registered where available), non-ozone depleting, or made with recovered materials.85 However, FAR subpart 23.1 does not apply to contracts performed outside the United States unless the agency head proactively determines that application is in the U.S. interest.86
FAR subpart 23.7, Contracting for Environmentally Preferable Products and Services, requires government agencies to implement cost-effective programs which provide a contracting preference for energy efficiency and the “acquisition of environmentally preferable products and services.”87 To this end, the government must utilize acquisition strategies that “affirmatively implement” specific environmental objectives, including: (1) maximizing environmentally preferable products and services “(based on EPA-issued guidance);”88 (2) promoting energy efficiency and water conservation; (3) eliminating or reducing hazardous waste generation and the resulting need for special processing; (4) promoting cost-effective waste reduction and the use of non-hazardous and recovered materials; and (5) realizing life-cycle cost savings.89 FAR subpart 23.7 contains language (like subpart 23.2) limiting its applicability outside the United States to “best efforts,” but this limitation applies only to acquisitions of “electronic products to be used outside the United States.”90 Because the DoD has pursued waste management at contingency locations as a service rather than through acquisition of supplies or products to process the waste, the man- dates of FAR 23.703(b) should apply to the acquisition of waste management services at overseas deployed locations.
The FAR does not define “cost-effective,” but the FAR and other acquisition principles allow flexible, value-based cost analysis and tradeoffs. First, FAR part 15 acquisition principles allow for selections based upon “best value,” which necessarily involve a tradeoff of higher cost in exchange for features offering greater value.91 Second, many laws bearing upon federal acquisition require that the government expend acquisition funds in ways that further economic, socio-economic, or other domestic policy objectives, not directly related to the price or quality of goods or services being purchased.
One example is the Small Business Act (SBA),92 which mandates setting aside certain acquisitions for small or disadvantaged businesses.93 The SBA sets a statutory goal that twenty-three percent of the total value of prime contracts should be awarded to small business concerns, irrespective of whether these awards result in increased costs to the government.94 Other examples include the Buy American Act,95 which requires certain supplies to be “domestic end products,”96 and wage rate requirements for construction requiring contractors to pay no less than the “prevailing wage rates” for the area as determined by the Secretary of Labor.97 The government routinely uses its market power to attempt to achieve desirable social or economic outcomes.98
Government acquisition of new technology that is fundamentally different from existing solutions is complicated by the difficulty in making accurate cost comparisons. To more realistically compare the true overall costs of an acquisition, the government may consider not just the purchase price but its anticipated “life-cycle cost:” the “total cost to the [g]overnment of acquiring, operating, supporting, and (if applicable) disposing of the items being acquired.”99 The FAR does not provide guidance on assessing life-cycle cost, but the analysis generally attempts to identify solutions that are likely to result in the best value to the government over the total period of use, taking into account maintenance, spare parts and eventual disposal costs (or salvage/ resale value).100 The lack of specificity has allowed the government significant leeway in determining how, and whether, it evaluates life-cycle costs in making contract awards and defending against bid protests by disappointed offerors; potential liability due to environmental and health risks would appear to fit squarely within this broad agency discretion.101
LCCA can be especially useful for evaluating the relative merit of novel projects involving energy and water conservation and/ or renewable energy. For construction projects, the National Institute of Standards and Technology (NIST) developed Building Life Cycle Cost programs to facilitate analysis of the relative cost effectiveness of alternative designs that may have high initial costs, but low operating costs based on reduced energy costs and other cost implications over the project’s life. NIST Handbook 135, Life-Cycle Costing Manual for the Federal Energy Management Program (FEMP), is a guide to applying life-cycle cost methodology “for the economic evaluation of energy and water conservation projects and renewable energy projects in all federal buildings.”102 LCCA is a “powerful tool of economic analysis” in contrast to the simpler “payback” method (which focuses on how quickly the initial investment can be recovered rather than the long-term economic performance of an alternative design), and as such it requires significant data to be used effectively.103 NIST Handbook 135 was designed for federal buildings that would require compliance with all EPA regulations so it does not anticipate costs related to human health and the environment, but does note that water, energy, and maintenance costs should be based on actual prices at the building site with anticipated annual price escalation.104 It also notes that for project related benefits and costs, which cannot be objectively assigned a dollar value, an “order-of-magnitude” dollar value may be possible which can then be compared against the alternatives – in this way, even unquantifiable costs to human health and the environment can be estimated for purposes of LCCA.105
The DoD’s Unified Facilities Criteria (UFC) system provides requirements intended to result in high performance and sustainable buildings, and the UFC directs compliance with NIST Handbook 135 for all DoD projects, including construction outside the United States “to the greatest extent practical.”106 In fact, construction outside the United States must ensure compliance with the most stringent of the UFC and applicable Status of Forces Agreements (SOFA), Host Nation Funded Construction Agreements (HNFA), and Bilateral Infrastructure Agreements (BIA).107 While the DoD does not define “practical,” it goes further than NIST Handbook 135 to require at least three energy efficient alternatives to the baseline standard and to provide on-site renewable energy, protection and conservation of water, the use of materials and supplies that have a lesser effect on human health and the environment, and materials and products with low or no pollutant emissions when life-cycle cost effective.108 The UFC also defines “life-cycle cost effectiveness” broadly as “[a] documented statement of costs to be incurred to complete all stages of a project from planning through acquisition, maintenance, operation, remediation, disposition, long-term stewardship, and disposal.”109 This definition appears to anticipate the potential costs related to environmental impacts which may not be realized until after the DoD has disposed of the property, including liability for cleanup and/ or adverse health impacts.
Outside the construction context, use of LCCA has been directed only for projects above specified threshold amounts. In theory, LCCA may be used broadly. For example, the DoD’s Contract Pricing Reference Guide states that “[s]ource selection consideration can be appropriate for an item as simple as an automobile tire or as complex as a major weapon system.”110 The FAR tasks executive agency heads with establishing the criteria and thresholds at which life-cycle cost review will be used.111 The Defense Federal Acquisition Regulation Supplement (DFARS) permits LCCA whenever appropriate, but only requires formal acquisition plans for production or services with total costs estimated at fifty million dollars or more, or twenty-five million dollars for a single year.112
III. Impacts on Human Health, Environment, and Military Mission
The Army Environmental Policy Institute (AEPI) analyzed the DoD’s efforts to address sustainability policy for contingency operations, finding that each service has made ad hoc efforts but that they were not coordinated or mandatory. Sustainability in the context of contingency operations incorporates environmental considerations but is broader in scope to include enhancement of self-sufficient military capabilities. The AEPI found that sustainability in contingency operations becomes a force multiplier through reduced life-cycle costs, reduced casualties associated with supply movements, increased operational efficiencies and effectiveness, and reduced logistical burdens, in addition to the longer-term benefits of avoiding health hazards and improving the military’s relationship with host-nation communities.113
A. DoD Practice in Contingency Operations
U.S. military contingency operations generate approximately ten pounds of solid waste per servicemember per day.114 While this and other waste must be disposed of, military officials note that “during wartime, environmental planning, including the management of waste, is not always a high-priority because of the operational and logistical pressures, safety and security risks, and the overall lack of resources available initially to manage waste.”115 Because regulatory compliance and installation-level environmental management are not directly applicable to contingency operations, environmental issues are often not seen as a strategic consideration impacting the desired end-state of the contingency.116 While local commanders in combat situations are understandably more concerned about force protection and threats to the immediate safety of troops than long-term risks117 of exposure to pollutants, base camps are often maintained far longer than initially anticipated and after active hostilities have ceased.
In both Iraq and Afghanistan, open-air burn pit sites were geographically dispersed and used at forward operating bases (FOBs)118 of all sizes; the DoD estimated in 2011 that “between 65,000 and 85,000 pounds of solid waste [were] burned each day at large bases” alone.119 The Special Inspector General for Afghanistan Reconstruction (SIGAR) found that despite DoD guidance dating to 1978 about the risks associated with open-air burn pits, the U.S. military relied on open-air burn pits exclusively to dispose of its solid waste for the first four years of contingency operations beginning in 2001.120 In 2004, the DoD began to introduce alternative waste disposal methods including incineration and landfill, but USCENTCOM did not develop policies and procedures including requirements for minimizing the use of open-air burn pits until 2009121 despite earlier reports that “the known carcinogens and respiratory sensitizers released into the atmosphere by the burn pit present both an acute and a chronic health hazard to our troops and the local population.”122 Further, as of 2015, no U.S. installation in Afghanistan had ever been in compliance with USCENTCOM Regulation 200-2, and coalition personnel were continuously exposed to the dangers of open-air burn pits even after Congress and the DoD acted to restrict their use.123 The SIGAR concluded that the “DoD did not adequately plan for and manage disposal of solid waste,” and exacerbated the problem through “[i]nadequate [p]lanning for [o]peration and [m]aintenance [c]ontracts;” thus going forward, “[p]lanning for [c]ost-[e]ffective and [s]afe [s]olid [w]aste [d]isposal [s]hould be [d]one [p]rior to the [n]ext [c]ontingency [o]peration.”124
B. Servicemembers’ Health
The foregoing discussion addresses indiscriminate burning of waste during Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) with a focus on burning of hazardous materials. It is important to note, however, that burning of nonhazardous solid waste is also harmful, as it produces emissions including particulate matter (PM), volatile organic compounds (VOCs), metals, polycyclic aromatic hydrocarbons (PAHs), and polychlorodibenzodioxins/ furans (PCDDs/ PDCFs).125 In the United States, the EPA warns that backyard burning of waste is “particularly dangerous because it releases pollutants at ground level where they are more readily inhaled or incorporated into the food chain,”126 and can produce harmful quantities of dioxins and other pollutants including PM, VOCs, and hexachlorobenzene (HCB), all of which can lead to serious health effects, including cancer.127 EPA regulations beginning in the 1970s resulted in a seventy-five percent decrease in dioxin emissions in the United States between 1987 and 1995, primarily due to emission controls in municipal and medical waste incinerators; backyard burning is the largest remaining source of dioxin emissions in the United States.128
Dioxins and “dioxin-like” compounds include thirty highly toxic chlorinated organic chemicals129 and are classified as persistent, bioaccumulative, and toxic pollutants (PBTs) that can lead to the suppression of the immune system, disruption of hormonal systems, adverse impacts on reproduction and development, and cancer.130 The EPA’s attempts at dioxin risk assessment note that certain adverse responses require different periods of exposure, but for those requiring prolonged exposure, such as cancer, a period of months rather than years may be sufficient.131 Among groups of particular concern, the EPA identified U.S. Air Force personnel exposed to the dioxin-contaminated herbicide Agent Orange in Vietnam as being associated with adverse health effects.132
Dioxin is the chemical contaminant in Agent Orange that has been linked to cancer, birth defects, and other adverse health effects; the United States made its first major effort to address its environmental effects in Vietnam in 2012, a forty-three-million-dollar program that began more than forty years after U.S. forces began test spraying it there.133 The United States sprayed about twenty million gallons of Agent Orange and other herbicides during the Vietnam conflict, stopping after scientists issued a report expressing concerns that dioxin showed a “significant potential to increase birth defects.”134 The Institute of Medicine of the National Academy of Sciences (IOM) determined “there is an ‘association’ between exposure to Agent Orange and some diseases,” but found inadequate evidence for such association with most other diseases including many types of cancer and birth defects.135
The IOM has also studied the effects of burn pits on servicemembers; its 2011 report, Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan,136 (IOM Report) focused on air-sampling data from Joint Base Balad in Iraq (which burned up to 200 tons of waste per day in 2007) to determine pollutant levels due to the burn pits relative to the ambient air.137 The IOM found that its data and the dearth of existing studies rendered it unable to determine the presence or absence of an association between exposure to combustion products and long-term health effects in humans.138 The IOM’s limited data suggested that there was no evidence of an association, but it recommended further research including a suggested methodology for an epidemiologic study – a study of the distribution and determinants of diseases and injuries in the veteran populations.139
In 2013, Congress directed the VA to establish and maintain a health registry for servicemembers who may have been exposed to toxic emissions from open burn pits and other airborne hazards while deployed to the Southwest Asia theater of operations since 1990, or Afghanistan or Djibouti beginning September 11, 2001.140 As of April 29, 2019, 175,375 servicemembers and veterans have completed the Airborne Hazards and Open Burn Pit Registry (Registry) questionnaire.141 The National Academies of Science, Engineering, and Medicine reviewed the Registry in 2017 and noted in its preface that “there is perhaps no more worrisome issue in [the area of environmental exposures] than the potential health consequences from exposure to emissions from open burn pits,” and “disposal of all waste materials through uncontrolled incineration led to the exposure of large numbers of service personnel to particulate matter and other health hazards, which in turn created a high probability of both acute and chronic health consequences” in deployed servicemembers.142
Oddly, the National Academies Report does not refer to its acknowledgments of the “high probability” of health consequences in its ensuing 236 pages, and instead finds that the evidence from studies completed since the 2011 IOM Report “does not show that service members are at an increased risk of health effects associated with burn pits in particular.”143 The National Academies reviewed the initial 46,400 entries and found the registry an “intrinsically poor source of information on exposures, health outcomes, and possible associations” due to potential biases in the collected data and perceived flaws in the Registry’s structure, operation, and the questions asked.144 It recommended studies implementing the IOM’s epidemiological criteria, but also reviewed the twenty-three studies since the IOM Report, focusing on the five publications, which reported on epidemiologic studies of long-term health consequences of burn pit exposure on U.S. servicemembers.145 These epidemiologic studies identified increased risk for chronic multi-symptom illness, lupus, and respiratory conditions under certain circumstances, but the National Academies Report found that while they “contribute pieces to the overall picture of the evidence base,” they “[a]ll suffer[ed] from various limitations” and “[t]here are still many gaps in that picture.”146 A VA-commissioned study, which the National Academies did not consider, was the first to investigate respiratory exposures and correlations with respiratory diseases among OEF/ OIF veterans and nondeployed veterans, and concluded that “[r]espiratory exposures are highly prevalent and are associated with increased odds of respiratory diseases among the OEF/ OIF era population.”147
C. Mission Impacts
In addition to human health and the environment, ineffective waste management can expose military personnel to unnecessary risks through over-reliance on supply convoys and an excessive expeditionary footprint to defend. The U.S. Marine Corps (USMC) identified transforming the way it uses energy as a top priority beginning in 2009,148 and in 2011 its Commandant recognized the importance of waste management in meeting his vision to be “the premier self-sufficient expeditionary force, instilled with a warrior ethos that equates the efficient use of vital resources with increased combat effectiveness.”149 Waste disposal in austere environments using burn pits can be extremely inefficient, requiring in excess of a pound of fuel for every two pounds of nonhaz ardous solid waste.150 For a base camp of 4,000 or more personnel, the U.S. Army’s initial minimum planning factor for a solid waste management facility is twelve acres, including a 90,000 square foot incineration area and additional 90,000 square foot ash pit.151 In comparison, a football field including the end zones is approximately 57,600 square feet.152 Even a much smaller company-size element of around 175 personnel requires a 40,000 square foot incineration area and 40,000 square foot ash pit,153 creating a large expeditionary footprint for a relatively small unit.
Shrinking the battlefield logistics tail is an important consideration recognized by each military service in recent years. The USMC Initial Capabilities Document for Expeditionary Energy, Water and Waste (E2W2) identified operational energy, water, and waste logistics demand as limiting maneuver and increasing vulnerability to attacks on critical supply lines, and identified three primary objectives for E2W2 capabilities: (1) achieving “resource self-sufficiency on the battlefield;” (2) reducing energy demand; and (3) reducing the overall footprint in expeditionary operations.154 One servicemember or contractor was wounded or killed for every twenty-four fuel resupply convoys in Afghanistan during fiscal year (FY) 2007, so any reduction in fuel demand would have a material effect on casualties incurred.155 The E2W2 document recognized the crucial links between waste management, energy efficiency, and combat effectiveness and formalized the need to consider waste in USMC expeditionary planning.156 The 2012 Army Sustainability Report, the 2013 Air Force Energy Strategic Plan, and the 2010 Navy Energy Vision for the Twenty-First Century, all similarly realize the need to reduce operational vulnerability and improve effectiveness by limiting the need for convoy resupply.157 Reducing reliance on convoys can save material and lives while allowing troops otherwise detailed to convoy operations to proactively engage enemy forces.
IV. Economic Drivers & the Path to Advanced Conversion Technology
In 2010, DoD leaders reported to Congress that open-air burn pits remained the “safest, most effective, and expedient manner of solid waste reduction” available as well as the most cost-effective waste management practice.158 However, the Government Accountability Office (GAO) found that the DoD had not evaluated the benefits and costs of open-air burning relative to the alternatives or “taken into account all the relevant cost variables, including the environmental and long-term health impacts that burn pits could have on servicemembers, civilians, and host country nationals.”159 Because contractor burn pit and incinerator costs are combined with other waste management costs by site and are not centrally managed or tracked, the DoD did “not have a sufficient basis to conclude that burn pits are the most cost-effective waste management practice or that incinerators are the best alternative to the use of burn pits” even excluding the long-term health impacts.160
A. DoD Expeditionary Costs
Costs for military overseas contingency operations in Iraq and Afghanistan peaked in FY 2008 at $187 billion;161 the cost per deployed servicemember averaged $1.3 million from FY 2008 to FY 2013, then rose to $2.1 million in FY 2014 as a reduction of deployed forces did not lead to corresponding overall cost savings.162 Due to the difficulty and danger of delivering fuel to remote contingency bases, the total cost of delivering one gallon of fuel approached $400 in 2009.163 Supply convoys are particularly vulnerable to improvised explosive devices; for example, “44 trucks and 220,000 gallons of fuel were lost due to attacks or other events while delivering fuel” to a single location, Bagram Air Field in Afghanistan, during the month of June 2008 alone.164 The AEPI calculated a resupply casualty factor based on FY 2007 casualty rates, then applied it to the Stryker Brigade Combat Team’s (SBCT)165 needs and estimated seven casualties avoided for each ten percent reduction in fuel consumption by twenty SBCTs; for example, a thirty percent reduction in fuel consumption would lead to a reduction of 105 casualties over a five-year period.166
A 2001 report found that fuel accounted for over seventy percent of the tonnage required to position the U.S. Army into battle, and by 2009 there had been a 175% increase in fuel consumed per servicemember per day since the Vietnam conflict despite significant increases in aircraft and ground vehicle fuel efficiency.167 In 2004, former Secretary of Defense and then-USMC General James Mattis, who led initial campaigns in Iran and Afghanistan, called on the DoD to “unleash us from the tether of fuel.”168 In 2006, USMC Major General Richard Zilmer submitted a “Priority 1” request to the Pentagon for a self-sustainable energy solution including solar panels and wind turbines, stating that, without renewable power, U.S. forces “will remain unnecessarily exposed” and will “continue to accrue preventable . . . serious and grave casualties.”169 Former Secretary of Defense Ash Carter also commented that “protecting large fuel convoys imposes a huge burden on combat forces.”170 Given the high cost of contingency operations generally, and the value of energy efficiency and alternative fuel sources, any solution that can produce fuel in addition to meeting waste management needs should be highly valued in a deployed setting.
In 2010, the AEPI attempted to demonstrate a method for calculating the fully-burdened cost of managing waste in contingency operations in an effort to understand life-cycle costs that have not been internalized or quantified in operational planning.171 It considered infrastructure, personnel, transport and equipment, and base closure and transfer costs, but noted the difficulty of monetizing “health and safety risks to the [s]oldiers and civilians, risks to the environment, and long-term liabilities after base closure,” which must be incorporated into decision-making.172 The study was hindered by a lack of data, heterogeneity in the FOB population, purpose and length of operation, and the proprietary nature of contractor information. The AEPI used Bagram Airfield for its analysis due to its readily-available data, and estimated the fully-burdened cost of waste only for infrastructure, personnel, and transport and equipment at $19.7 million per year.173 Given Bagram’s 2010 population of approximately 27,000 people, this cost represents only $732 per person per year, or less than one-tenth of one percent of the $1.3 million annual cost per deployed servicemember,174 but does not include potential long-term environmental risks, which may cost much more than the initial fully-burdened estimate.
B. Current Costs of Doing Business
1. Logistics Civil Augmentation Program and Contractor Litigation Expenses
The DoD relies on private civilian contractors to augment the force through the Logistics Civil Augmentation Program (LOGCAP). Civilian contractors provide logistics services to support worldwide contingency operations. The LOGCAP provides for base indefinite-delivery, indefinite-quantity (ID/ IQ) “umbrella” contracts covering many functional areas in multiple locations for up to a ten-year period.175 LOGCAP contracts may be used to purchase services but not supplies, so they cannot be used to purchase items or products.176 The contractor may, however, purchase items necessary to perform the services required under the contract. LOGCAP contractors typically provide services under task orders pursuant to the umbrella contract when the DoD identifies a need, documents the need in a statement of work, and obtains a cost estimate from the available contractors.177
Kellogg, Brown, and Root (KBR) provided services under the third LOG- CAP contract (LOGCAP III), including disposing of waste at the FOBs in Iraq and Afghanistan using burn pits.178 KBR was a subsidiary of Halliburton Company until April 2007, when it completed an exchange offer transaction to separate it from Halliburton.179 KBR provided support for overseas contingency operations under the LOGCAP III contract from 2002 to 2011 and continues to provide similar support under LOGCAP IV.180 The scope of the LOGCAP III services were so complex that KBR anticipated the closeout process for the contract would continue through at least 2019.181
American servicemembers, veterans, and former contractor employees filed sixty-three separate complaints, including at least forty-three nationwide class action suits in forty-two states, alleging that they suffered injuries relating to KBR’s use of open-air burn pits while stationed at military bases in Iraq and Afghanistan.182 Due to the volume of litigation, the Judicial Panel on Multi-District Litigation consolidated the cases and transferred them to the United States District Court for the District of Maryland for pretrial hearings.183 The court found that “‘military judgments governed the planning and execution of virtually every aspect’ of KBR’s waste and water treatment activities,” and that it was the military’s “critical decision to use burn pits in the first place, the location of the pits, and various details regarding their operation.”184 The court held that “the use of open burn pits was a quintessential military decision made by the military, not KBR, and was a decision driven by the exigencies of war,” and dismissed the complaints as nonjusticiable under the political question doctrine and preempted by the “combatant activities” exception in the Federal Tort Claims Act (FTCA).185
KBR’s cost of defending this complex and costly litigation may ultimately be borne by U.S. taxpayers. Part 31 of the FAR, Contract Cost Principles and Procedures, governs the accounting standards which determine whether a government contractor’s costs are payable under its contract.186 FAR 31.205 includes fifty-two subsections detailing the allowability of specific selected costs, including FAR 31.205-33, Professional and Consultant Service Costs, and FAR 31.205-47, Costs Related to Legal and Other Proceedings.187 Although FAR 31.205 does not address legal costs incurred in actions between private parties, the Federal Circuit held in Boeing North American, Inc. v. Roche188 that a shareholder derivative suit is allowable as “similar or related”189 to a False Claims Act qui tam suit under FAR 31.205-47.
Because KBR’s burn pit litigation costs were incurred for the defense of private party suits in which KBR was found not liable, they do not fall under any of the provisions designating these costs as expressly unallowable under FAR 31.205, including a general rule limiting contractors to only eighty percent of their litigation costs even when they prevail.190 As a result, the government is likely responsible for all of KBR’s reasonable litigation costs. KBR stated in its 2016 Annual Report that it believes all costs of litigation and any damages that may be awarded in the burn pit litigation would be billable under the LOGCAP III contract or covered by its insurance.191 KBR also stated that as of January 31, 2017, it believed “the likelihood that [it] would incur a loss related to [the burn pit litigation] is remote.”192
2. Likelihood of Long-Term Financial Exposure for Medical and Disability Costs
The U.S. government’s costs related to Vietnam-era Agent Orange exposure may be instructive in considering its ultimate liability related to burn pits. In order to receive service-connected disability compensation and medical care, the VA generally requires veterans to demonstrate that their military service directly caused their disability or disease.193 Often called the “nexus” requirement, this can prove a difficult burden due to limited scientific knowledge and a high bar to establishing causation from exposure to environmental hazards, as well as challenges in documenting an individual veteran’s exposure often many years after the exposure takes place.194 Congress has directed the VA to determine, based on medical and scientific evidence, whether certain diseases have a nexus to a particular environmental exposure; when a nexus is demonstrated, the disease is given “presumptive” causation and veterans can bypass the VA’s typical case-pecific review.195 In 1984, seven chemical companies settled a class-action suit by U.S. Vietnam veterans for various health impacts for $180 million in payments to a total of 291,000 people.196 After the VA initially denied the majority of exposure related claims, in 1984 Congress passed the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act197 to ensure that health effects would be deemed serviced-connected “when there is a statistically significant association between the occurrence of the disease and exposure to Agent Orange.”198 The VA continued to reject most claims until Nehmer v. United States Veterans’ Administration invalidated a restrictive VA rule; 199 since Nehmer, the VA has granted presumptive service connection for a variety of diseases if the veteran served in certain geographical locations where Agent Orange was actively used.200 More than fifty years after discontinuing the use of Agent Orange, the VA continues to identify veterans eligible for disability benefits due to exposure, and one of every six VA disability checks is related to Agent Orange exposure.201
The VA has also granted a presumptive service connection for illnesses arising from exposure to harmful environmental conditions continued during Operations Desert Storm and Desert Shield in 1990 to 1991; illness-related medical research alone has cost over $160 million.202 Of the nearly 700,000 servicemembers who served in the Persian Gulf War, the VA estimates that forty-four percent now have what is known as “Gulf War Illness” (GWI) – a collection of medical issues unique to their service in Southwest Asia with varied symptoms that may include joint pain, neurological problems, gastrointestinal problems, and fatigue.203 The precise causes of GWI are not always known, but exposure to a variety of substances, such as smoke from oil well fires, depleted uranium, and pesticides were common and may have contributed.204 The VA presumes a connection to service in the Southwest Asia theater of operations for illnesses that fall into three categories: (1) “undiagnosed illness;” which includes a broad range of symptoms from neurological issues to muscle pain;205 (2) “medically unexplained chronic multisymptom illness,” which includes chronic fatigue syndrome, fibromyalgia, and gastrointestinal disorders;206 and (3) nine specific infectious diseases.207 The GAO reported that despite the presumptive service connection, the VA approval rate for GWI claims from 2010 to 2015 was only seventeen percent, less than a third of the fifty-seven percent rate for other medical issues, due in part to the complexity of GWI issues and to inadequate training at VA.208 GWI is not limited to service during the war from 1990 to 1991; claims due to burn pit exposure may be processed as GWI depending on the symptoms and illnesses, but Afghanistan service is not uniformly included and the unreliable nature of GWI claims make it an imperfect solution.
While the VA has not established a presumption of service connection based on burn pit exposure, it has noted that burn pits, “some nearly as large as 20 acres, are or have been located at every [FOB],” and acknowledged indiscriminate burning including hazardous wastes with jet fuel used as the accelerant.209 The VA recognized exposure to PM and numerous types of Polycyclic Aromatic Hydrocarbons (PAHs), VOCs, and dioxins, which negatively affect the respiratory system, skin, eyes, liver, kidneys, central nervous system, cardiovascular system, reproductive system, and gastrointestinal tract.210 VA examiners are advised to “consider the synergistic effect of all combined toxins, primarily through inhalation and dermal exposure, but also through ingestion.”211 Veterans exposed to burn pits in Iraq and Afghanistan may be able to take advantage of the VA’s definition of “herbicide agent,” originally intended for Agent Orange exposure. One commentator212 posits that, because “herbicide agent” is defined as a chemical component of herbicides used in Vietnam including the dioxin TCDD and the VA has recognized that TCDD is a component of burn pit emissions, a veteran exposed to burn pits should be considered exposed to an “herbicide agent” and entitled to the presumption of service connection.213
The comparison between servicemembers’ exposure to burn pits and Vietnam-era Agent Orange exposure is not merely academic and, whether or not the “herbicide agent” presumption will prove effective in VA disability cases, the similarities may drive an expedited resolution and possible finding of service connection to long-term health effects. Senators Thom Tillis (R-NC) and Amy Klobuchar (D-MN) have sponsored bipartisan legislation to create a VA center of excellence for the prevention, diagnosis, mitigation, treatment, and rehabilitation of burn pit-related health conditions;214 while the VA center of excellence funding was not included in the 2018 NDAA, section 738 does require the VA to “coordinate efforts related to furthering understanding of burn pits, the effect of burn pits on veterans, and effective treatments relating to such effects, including with respect to research efforts and training of clinical staff on related matters.”215 Senator Klobuchar has made the government’s slow recognition of the health impacts of Agent Orange a primary focus of the burn pit legislative effort, stating that “[i]t took the government years after the Vietnam War to recognize that there was a link between Agent Orange and the devastating health effects on our soldiers. We can’t let history repeat itself – burn pits can’t become today’s Agent Orange.”216
3. FOB Incinerator Fuel and Manpower Requirements
After USCENTCOM regulations went into effect, incineration became a widely selected waste disposal method at larger FOBs.217 In many cases, however, the incinerators were installed without the DoD first conducting adequate planning of the design, construction and operational requirements, or the costs to operate and maintain the incinerators once installed. For example, a $5.4 million incinerator contract at FOB Sharana was plagued by inadequate design planning, failure to correct under the contract (which would have been the contractor’s responsibility), and unwillingness to spend one million dollars to complete repairs resulted in two forty-ton capacity incinerators never being used and continued use of burn pits.218 Even where incinerators are installed and operated effectively, they have high operational costs and require significant amounts of fuel,219 which increases reliance on supply convoys.
At FOB Salerno, two eight-ton capacity incinerators were constructed properly at a cost of five million dollars and would have met the FOB’s needs if operated twenty-four hours per day; unfortunately, FOB Salerno was a “black out” base due to security concerns and the incinerators could not run at night, so they could only process fifty-seven percent of the FOB’s waste.220 As a result, FOB Salerno continued its burn pit operations in violation of the USCENTCOM regulation; given the expected one million dollar annual cost to operate and maintain the incinerators, the base commander decided to use the burn pits exclusively and the incinerators were never used.221 The DoD spent eighteen million dollars to construct four incinerators at Camp Leatherneck, but the two larger incinerators were not operational because the contract to operate and maintain them had not been awarded and the excess waste was disposed of using burn pits.222 At both FOB Salerno and Camp Leatherneck, unbudgeted costs for operation and maintenance of the incinerators (which was expensive but only a fraction of the amount invested in the construction) caused base leadership to decide not to use the incinerators,223 ultimately wasting taxpayer funds, violating USCENTCOM regulations, and needlessly exposing servicemembers to toxic emissions.
C. DoD Research and Development Efforts
Deployed forces have varying waste disposal and energy requirements depending on the size, type, and function of the expeditionary location. This leads to a wide variance in the “average” range, as each deployed servicemember produces between four and a half and twenty pounds of nonhazardous solid waste and consumes between three and half and twenty-two gallons of fuel per day;224 a brigade-size unit with a population of 5,000 personnel can generate up to fifty tons of solid waste and 500,000 gallons of wastewater per day where full shower, laundry, and dining facilities are available.225 Alternatives to open burn pits include locally contracted hauling, base-maintained landfills, burying, incineration, and waste-to-energy (W2E) systems.226 Security concerns and austere expeditionary environments constrain options for contracted hauling and make landfills and burying infeasible, often leaving incineration as the only viable option as W2E has not been utilized in the field.
W2E “is the process of generating energy in the form of electricity and/ or heat” by exposing waste to high temperatures, typically through incineration.227 W2E offers a potential solution to the DoD’s twin challenges of providing a safer alternative to burn pits and reducing dependency on conventional fuels in contingency environments, potentially turning a logistical burden into an energy resource.228 Although commercial large scale W2E systems have been deployed successfully in civilian urban areas, existing commercial W2E technology is designed to operate with consistent feedstock in a controlled environment.229 DoD base camps operate in a dynamic environment with variable physical size and personnel, climate, and composition and consistency of waste streams, but the defining characteristic that separates them from other austere environments is the threat of hostilities with an enemy that is continually adapting to exploit perceived weaknesses.230 As a result, system complexity is a key consideration and excessive processing requirements and/ or complicated processes should be avoided in designing a modular, dependable solution for deployed forces.231
Modern commercial W2E facilities generate a net of 600 kWh of electricity per metric ton of solid waste combusted,232 the energy equivalent of just over one third of a barrel of oil or about fifteen gallons.233 After the EPA implemented maximum available control technology (MACT) regulations for W2E facilities in the 1990s,234 mercury, cadmium, lead, particulate matter and hydrogen chloride emissions all decreased by at least ninety-four percent, sulfur dioxide emissions decreased by eighty-eight percent, and dioxin and furan emissions declined more than ninety percent;235 W2E is now considered a clean source of renewable energy with low pollutant emissions.236 In addition, the EPA determined through life-cycle emission analysis that W2E facilities generate fewer greenhouse gas emissions (GHGs) per unit of electricity produced than coal, oil, or natural gas,237 and W2E actually reduces GHGs when compared to landfilling.238
Several new technologies have shown the potential to convert waste to energy more efficiently while further reducing toxic emissions. Advanced conversion technology (ACT) is an umbrella term for technologies using high-temperature treatments such as gasification, pyrolysis, and plasma gasification to convert waste into electricity and other useful products, such as fuel.239 The primary difference between ACT and traditional incineration-based W2E is that the ACT process is highly controlled and does not use combustion (burning with oxygen), instead heating solid waste with very high temperatures in an essentially oxygen-free and flame-free environment, limiting harmful byproducts and emissions while greatly reducing waste volume.240 This process also allows for the “immediate recovery of metals and slag so less residue goes to landfills,” and what does remain for landfilling is less toxic.241 Gasification, the most common ACT, is a process consisting of four key steps: (1) waste collection; (2) waste conditioning (removing recyclable metal, glass, and other materials and drying the waste to a moisture content at or below twenty percent); (3) gas creation (high temperatures without oxygen for combustion turn the waste into gaseous form, which is converted into a usable synthetic gas called syngas); and (4) power generation (the syngas is used to produce electricity or for other fuels).242
The DoD has been researching alternatives to landfill and incineration at the FOBs for several years,243 and in fact had explored advanced waste disposal methods since the mid-1990s.244 In 2010, the DoD Strategic Environmental Research and Development Program (SERDP) issued a Statement of Need to “develop innovative approaches to decrease the size and increase the efficiency of . . . [W2E] systems based only on gasification or pyrolysis processes.”245 A 2015 SERDP report notes that “[c]onverting waste to energy cleanly and efficiently through gasification has long been desired to address waste disposal incineration limitations and exposures while providing an energy source;”246 each fifty pounds of typical FOB waste contains enough energy to potentially recover and offset one and a half gallons of diesel (at an achievable fifty percent conversion efficiency) for electricity or heating, and a single FOB with 600 servicemembers can produce three tons of waste per day, which could displace roughly 180 gallons of diesel.247 The FOBs face acute challenges which make W2E more challenging than commercial applications, and the DoD’s primary requirements include: (1) significantly reducing the logistical burden and physical footprint associated with waste management; (2) generating electricity from co-mingled waste at high efficiency to reduce FOB fuel needs; (3) ensuring the system is deployable and compact to minimize field setup and transportation burdens; (4) and requiring minimal maintenance and on-site supervision.248
1. Joint Deployable Waste to Energy Initiative
The DoD established the multi-service Joint Deployable Waste to Energy initiative (JDW2E) to “develop, evaluate, and field a containerized, deployable, and semi-autonomous system that significantly reduces the volume of waste produced in austere or hostile contingency operations.”249 JDW2E conducted the first DoD study evaluating the life-cycle costs of employing W2E technology in expeditionary environments that accounted for the value of the energy generated and reduced reliance on fuel convoys.
JDW2E planners performed both qualitative and economic analyses to compare the costs and benefits of W2E alternatives to the existing incinerator (non-W2E) baseline. The overarching qualitative objectives were to maximize force protection (issues related to the health and safety of DoD personnel) and deployability. Force protection focused on minimization of enemy threat to resupply, escorted contractors, health impacts (specifically through air emissions and noise pollution), and disease vectors.250 Deployability focused on minimizing time requirements (training, setup, teardown, operation man-hours, and maintenance downtime) and minimizing logistic requirements (physical dimensions, capacity limitations, and shipping and handling requirements).251 The economic analysis considered capital investment, operating cost, and potential W2E savings over a projected ten-year operating life for both permissive and hostile environments within a range of potential fuel costs and operating climates (warmer climates would require less heat and may reduce overall savings from certain W2E technologies).252 The JDW2E study concluded that W2E presents significant stakeholder value and potential for life-cycle cost savings, and that DoD should “take a leading role in partnering with private enterprises to develop a DoD-specific, deployable [W2E] product based on contingency scenarios.”253
2. Demonstrated ACT Technologies
a. Steam Thermolysis
Lockheed Martin has recently partnered with Concord Blue Energy, a green W2E company that uses a technology that it calls steam thermolysis, on construction of ACT facilities in Owego, New York; Eagar, Arizona; Pune, Indiana; and Herten, Germany.254 Steam thermolysis uses heat transfer rather than direct heating or combustion to convert waste into syngas, and Lockheed Martin states that the “closed-loop, commercially-proven, environmentally-friendly process transforms waste into energy at virtually any scale” and meets “all international, EPA and European regulations for renewable energy and air emissions.”255 This process is self-sustaining in that it does not require additional fuel after startup, can utilize different mixes of feedstock,256 and is a modular system that is scalable up to municipal size.257 Lockheed Martin is a major defense contractor with $47.2 billion in 2016 net sales, of which only two percent were from U.S. commercial and other non-governmental customers;258 its willingness to partner with a small W2E company and boldly state its ACT capabilities may indicate Lockheed Martin’s recognition of the growth potential for this technology both in civilian and military applications.
b. Rotary Kiln Gasification
University researchers at SUNY Cobleskill designed a hybrid system using SERDP funding that combines properties of several gasification types into a single reactor and which can process up to 1.25 tons of dripping wet waste per day and generate a moderate amount of net usable electric power with minimal manning and sorting requirements.259 The Inclined Indirect Flaming Pyrolysis Rotary Gasifier (IIFPRG) was designed to fit in two portable twenty foot shipping containers and require minimal maintenance and supervision while producing net positive electric output via a syngas which was similar to conventional liquid fuels.260 The IIFPRG provided a full scale proof of concept with minor technical hurdles to field implementation; while it does not generate energy as efficiently or as cleanly as some other ACT designs, it is a proven system which would represent a great advancement over current DoD waste management practices.
c. Plasma Arc
The U.S. Navy has already employed a compact ACT system aboard its largest and most advanced vessel: the USS Gerald R. Ford (CVN-78) aircraft carrier, commissioned into service in July 2017.261 The Plasma Arc Waste Destruction System (PAWDS) had been in development since the 1990s and will use plasma energy at over 5,000 degrees Celsius to process 6,800 pounds per day of shipboard solid waste while at sea, and is estimated to save thirty-eight million dollars over the life of the carrier due to the reduced operation and maintenance workload as compared with the legacy waste system.262 The PAWDS system can be adapted for land-based use, and a demonstration of the larger plasma resource recovery systems system (PRRS) was installed and used at the Air Force Special Operations Command at Hurlburt Field, Florida in 2010. The PRRS demonstrated the capacity to process ten and a half tons of unsorted waste per day in a transportable unit and produced sufficient syngas to consistently power itself.263 Although plasma systems are the most complex ACT systems and have not been perfected for FOB use,264 they also may hold the greatest potential and have been trusted by the Navy for use in the world’s most advanced (and expensive) vessel.
While the DoD’s efforts to develop an ACT solution for contingency operations have not been tested on the battlefield, it has already contracted for operational land-based ACT systems in other contexts. The DoD provided Fulcrum Bioenergy, a transportation biofuel developer, with a total of $140 million in matching funds to construct ACT biofuel refineries in Nevada and Oregon, which enabled Fulcrum to raise $175 million in a private bond offering with diverse investment partners including BP, Waste Management, and United Airlines.265 The refineries will use a gasification system to convert municipal solid waste and waste timber into “drop-in” military grade jet fuel and diesel that is cost-competitive with conventional fuels and lowers net carbon emissions by fifty percent.266
3. Criticism of ACT Systems
Although next-generation W2E systems utilizing ACT show great promise as potentially reducing waste volume and net environmental impact while producing valuable energy, they are inherently complex and the DoDrequirements for deployability and scalability make the systems even more complicated.267 This has led to concerns about the practicality of ACT at a small, deployable scale and doubts about the wisdom of continued investment in ACT systems requiring net power generation. Technical hurdles include the prevalence of condensable organic compounds (tars) co-produced with the syngas, and gas cleanup requirements prior to utilization, which have “hindered utilization and reduced conversion efficiency.”268 Tars have complicated the gasification process and limited its implementation in part because incomplete conversion to gas results in efficient energy transfer from the waste feedstock. “Cracking” the tars and gas cleanup to enable utilization of the syngas adds to plant complexity and cost, and reduces efficiency; gas cleanup usually requires water treatment, and the contaminated water is at risk of environmental release.269 This technical complexity, coupled with low landfill disposal and energy production costs that do not currently reflect the negative externalities imposed on the environment and human health, have limited commercial ACT deployment and the resulting research and development cost savings that commercial experience would provide for DoD applications.270
The SERDP has completed several projects addressing the issues of syngas cleanup and co-produced tars, and demonstrated in prototype testing that using “countercurrent” or updraft gasification can produce a clean syngas with minimal maintenance and relatively automatic operation requiring only one hour of active operation per eight hours of waste processing.271 Countercurrent gasification is a more thermally efficient process and can result in a more compact system because it has fewer fuel pretreatment requirements than typical downdraft gasifiers; its drawback is that its resulting syngas contains a significant amount of tars that make the syngas ineffective.272 The SERDP project coupled a countercurrent gasification system with a syngas cleanup system called a “catalytic tar-reforming stage” to efficiently produce clean syngas within a deployable W2E system.273 Minor improvements to heat recovery to dry the waste could yield over sixty percent heat efficiency and would result in the W2E system generating roughly ten percent of an entire FOB’s power usage.274 Thus, while ACT is not yet a mature technology and technical obstacles remain, the obstacles are surmountable and its potential is such that major contractors including Lockheed Martin have lent their name and expertise to ACT system development without a clear DoD financial commitment.275
V. Mandating Life-Cycle Cost Analysis Will Ensure Effective Environmental Planning in Contingency Operations
A. FAR Rule Implementing Executive Order 13,693, Planning for Federal Sustainability in the Next Decade, Later Revoked by Executive Order 13,834
E.O. 13,693, Planning for Federal Sustainability in the Next Decade, built on government progress to reduce energy use, employ renewable energy, and procure sustainable products and services to further reduce greenhouse gas emissions and foster innovation while reducing spending.276 Notably, E.O. 13,693 specifically required consideration of life-cycle costs in implementing the sustainability policy, directing that “[i]n implementing the policy set forth in section 1 of this order and to achieve the goals of section 2 of this order, the head of each agency shall, where life-cycle cost-effective,” take actions directed at specific sustainability targets.277 It later defined life-cycle cost-effective to mean “the life-cycle costs of a product, project, or measure are estimated to be equal to or less than the base case (i.e., current or standard practice or product).”278 This directive was geographically limited to activities, personnel, resources, and facilities located within the United States; agency heads could apply the order outside the United States to the extent practicable or if they determine application to be in the U.S. interest.279
The DoD, General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) developed a FAR Proposed Rule implementing E.O. 13,693 and certain provisions of the Agricultural Act of 2014 (the “Sustainable Acquisition Rule”) directing agencies, where life-cycle cost-effective, to ensure that environmental performance and sustainability factors are considered to the maximum extent practicable.280 The Sustain- able Acquisition Rule was structured to capture all broadly defined “contract actions” under the requirements of proposed FAR subpart 23.1 for sustainable products and services to the maximum extent possible, unless an exception applies.281 The Sustainable Acquisition Rule included W2E systems in its definition of renewable electric energy,282 and listed the conditions under which sustainable products or services are not considered “practicable” – this is where the Sustainable Acquisition Rule required LCCA:
23.104(b)(1) The price shall be deemed unreasonable when the total life-cycle costs are significantly higher for the sustainable product or service compared to the non-sustainable product or service. (2) Life-cycle costs are determined by combining the purchase price of a product or service with any net costs or savings revenues generated from that product or service during its life.283
The proposed Sustainable Acquisition Rule was posted on January 18, 2017, and open for public comment during the first two months of the new administration, until March 20, 2017.284 It attracted only sixteen comments, and none focused on the life-cycle cost requirements.285 Only one FAR rule was finalized during 2017;286 this lack of new regulation was highly unusual, and in fact reflected the longest time between a new administration taking office and publishing procurement changes in the history of the FAR.287
On May 17, 2018, E.O. 13,834, Efficient Federal Operations, revoked E.O. 13,693 in its entirety.288 As a result, the Sustainable Acquisition Rule was withdrawn and a new corresponding FAR Proposed Rule is being drafted to replace it.289 E.O. 13,834 affirms that federal agencies will meet their statutory requirements related to energy and environmental performance “in a manner that increases efficiency, optimizes performance, eliminates unnecessary use of resources, and protects the environment.”290 The Council on Environmental Quality (CEQ) published implementing instructions in April 2019; although E.O. 13,834 does not refer to life-cycle costs, the implementing instructions provide that agencies should implement energy conservation measures that are “life cycle cost-effective” under essentially the same definition used in E.O. 13,693.291
B. Proposed Solution: DFARS 223.104 Requiring LCCA for Contingency Operations
The LCCA requirements of the Sustainable Acquisition Rule, if applied to contingency operations, would ensure that military planners consider sustainable alternatives in acquisition planning and make a reasoned comparison of what may appear to be lower upfront costs for an unsustainable solution against potential longer-term life-cycle savings for a more sustainable option. Damage to human health and the environment was foreseeable based on longstanding EPA research, and even discounting the non-monetary effects on American servicemembers and the overall mission, the high likelihood of adverse health effects and the resulting medical costs borne by the government weighed heavily in favor of alternative waste management solutions. While incineration has proven to be a costly and somewhat ineffective solution,292 it would have at least served as a bridge while the government developed performance parameters for W2E solutions. This represents a missed opportunity not only to avoid the possibility of endless liability for disabled veterans, but to foster U.S. ACT providers that could develop the technology for commercial use, reduce the cost curve, and potentially export sustainable waste management solutions around the world.
Although the Sustainable Acquisition Rule could have been applied to contingency operations by deleting the proposed FAR 23.104 exception for contracts performed outside the United States, there are many valid reasons why the United States may not want to impose it on all contracts performed abroad. For example, DoD permanent overseas installations are located in countries with which the United States has comprehensive bilateral agreements relating to DoD operations in the host nation,293 and requiring LCCA where it may already have extensive host-nation environmental, contracting, or labor obligations could make effective contracting nearly impossible. Applying the LCCA requirement only to contingency operations, where there are few contracting limitations other than the prohibition on open-air burn pits, would ensure that the DoD fully considers all costs as recommended by the GAO.
If the Sustainable Acquisition Rule was implemented, it could have been applied specifically to contingency operations by a Secretary of Defense’s determination that its application is in the interest of the United States.294 However, the CEQ implementing instructions to E.O. 13,834 encourage life-cycle cost-effective energy reduction strategies and the Secretary of Defense could similarly determine that mandating LCCA for specific activities, resources and/ or facilities overseas is in the interest of the United States. The primary difference for agency discretion overseas between the Sustainable Acquisition Rule and E.O. 13,834 is the former’s preference for LCCA, which allowed for the environmentally preferable solution unless total life-cycle costs are significantly higher than the non-sustainable alternative,295 whereas the latter requires projected life-cycle costs to be equal or less than the alternative.
The proposed DFARS 223.104 would make the new FAR Subpart 23.1 a DoD requirement for contingency operations:296
DFARS 223.104: The Secretary of Defense has determined that application of FAR Subparts 23.1 and 23.7 to contracts performed outside of the United States in support of contingency basing (as defined in DoDD 3000.10, Contingency Basing Outside the United States (Change 1, Aug. 8, 2017)) is in the interest of the United States. Contracting authorities shall procure environ- mentally preferable products and services where life-cycle cost-effective to the maximum extent practicable, as those terms are defined in the Council on Environmental Quality Implementing Instructions for E.O. 13,834, Efficient Federal Operations.
Using the DoD’s UFC requirements as an LCCA guide, it would not be feasible for a deployed local commander to work with a deployed contracting officer to perform an adequate sustainable waste management LCCA; this would fall to higher-level planners just as the decision to establish the FOB itself was not in the discretion of the local commander. Requiring LCCA may make FOB planning somewhat more complex at a strategic level, but it would allow FOB commanders to focus on the core mission and eliminate the burden of having to decide between devoting resources to immediate security and the long-term health of those under their command.
Having completed the LCCA, the contracting authority still has the discretion to determine the performance requirements and the weight to afford considerations such as demonstrated reliability or direct labor required for operation,297 which ultimately impacts whether a W2E or other sustainable solution is life-cycle cost effective. The LCCA requirement does not direct an outcome, but rather ensures that the government considers sustainable alternatives and then makes an “apples-to-apples” comparison by weighing all anticipated costs and benefits over the life of the system. Because contingency basing is by its nature intended to be temporary, the DoD will have to develop assumptions about usable life based on past experience and may also heavily weight a system’s ability to be relocated and/ or repurposed in evaluating its feasibility.
Even after DoD regulations severely restricted the use of open-air burn pits, their use continued in many cases due to poor acquisition planning.298 Failure to account for security requirements such as “blackout” periods or logistical complications can lead to costly alterations, and when left to FOB commanders with limited budgets and competing, more immediate, safety concerns it is hardly surprising that waste management falls below the investment cut line. Similarly, failure to account for operation and maintenance costs as a required nondiscretionary budget item has resulted in costly incinerator projects left unused to quickly fall into disrepair.299 Ensuring LCCA prior to construction would force DoD planners to consider projected operation and maintenance costs in advance and include those costs into the FOB’s budget, and would allow deployed commanders to focus on the mission and force protection without the “Hobson’s choice” of immediate safety versus longer-term health and environmental risk.
C. LOGCAP Contract Already in Place, Allowing for Streamlined Acquisition
The proposed DFARS 223.104 would apply to task orders under existing ID/IQ contracts, and would be applicable to the LOGCAP contractors. The LCCA burden would be in the acquisition planning stage. The requesting agency would consider the sustainability of waste management alternatives and design a performance requirement which allows the contractor to implement a solution of her choice, within specified requirements as to emissions, energy and water usage, and fuel consumption. The LOGCAP program cannot be used as a source of supply, so the DoD requirement would need to be framed in terms of waste disposal services with specified requirements, such as emissions and ash limitations and operation without net fuel requirements. Alternatively, the DoD could contract for the installation of specific W2E systems and then utilize the LOCGAP for operation and maintenance.
The LOGCAP contractors, all large sophisticated corporations with significant government contracts experience, could then develop solutions by subcontracting or acquiring the necessary capabilities. By performing the LCCA incorporating the extremely high “fully burdened” costs of energy, water, and labor in the contingency environment, coupled with a reasonable estimation of the costs in terms of human health and the environment (with resulting medical care and remediation liabilities), the LOGCAP contractors will be able to meet the requirements and focus on technical capability. The DoD has already invested in significant research and development of ACT with a variety of systems300 – they have proven reliable enough for the next-generation aircraft carrier, and after numerous failed conventional incinerator acquisitions ACT should be utilized at the FOBs in the field.
Even after DoD regulations required transitioning from use of open-air burn pits, they persisted for years despite significant investment in alternative disposal solutions due in part to poor acquisition planning and contract management. Requiring LCCA would force the DoD to pay greater attention to waste management in contingency planning at the outset, rather than using burn pits until a FOB reaches a designated size and maturity and then reflexively contracting for an incinerator to meet DoD regulatory requirements. ACT should be linked to DoD efforts to reduce operational vulnerability as part of the solution to loosen the “tether of fuel,” with the resulting benefits of its renewable energy potential included in the analysis. The DoD would retain broad discretion to frame the cost-benefit parameters and assess the relative merits of waste management solutions, but considering the short-term (supply convoy casualties avoided) and long-term (avoided VA healthcare and disability costs) benefits should weigh heavily in favor of ACT systems. LCCA is a proven, objective forcing mechanism to give practical effect to the SIGAR’s concluding assessment, stressing the “need for [the] DoD to pay far greater attention to its solid waste management needs before the next contingency.”301
- Joseph Hickman, The Burn Pits: The Poisoning of America’s Soldiers 28 (2016).
- Id. at 29.
- Id. at 30–31.
- Id. at 31.
- Dan Sagalyn, Biden Addresses Possible Link Between Son’s Fatal Brain Cancer and Toxic Military Burn Pits, PBS News Hour (Jan. 10, 2018), https://www.pbs.org/newshour/health/biden-addresses-possible-link-between-sons-fatal-brain-cancer-and-toxic-military-burn-pits [https://perma.cc/MEH7-B7P4].
- Cf. Protections for Veterans Exposed to Open Air Burn Pits, Amnesty Int’l, https://www.burnpits360.org/upload/BurnPits%20Issue%20Brief.pdf [https://perma.cc/MCE2-WBYG] (last visited May 22, 2019).
- “Contingency operations” generally refers to U.S. military activities in combat zones, and includes but is not limited to any military operation “designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force.” 10 U.S.C. § 101(a)(13) (2018).
- Protections for Veterans Exposed to Open Air Burn Pits, supra note 10; U.S. Gov’t Accountability Off., GAO No. 18-596-T, Waste Management: DOD Needs to Fully Assess the Health Risks of Burn Pits 2 (2018).
- U.S. Gov’t Accountability Off., GAO-11-63, Afghanistan and Iraq: DOD Should Improve Adherence to Its Guidance on Open Pit Burning and Solid Waste Management 30 (2010) [hereinafter GAO-11-63]. False economy is discussed in the Federal Acquisition Regulation (FAR): “[t]he award of a contract to a supplier based on lowest evaluated price alone can be false economy if there is subsequent default, late deliveries, or other unsatisfactory performance resulting in additional contractual or administrative costs.” FAR 9.103(c).
- National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 317, 123 Stat. 2190, 2249 (2009); see The Airborne Hazards and Open Burn Pit Registry: Number of Participants, U.S. Dep’t of Veterans Affairs, https://www.publichealth.va.gov/docs/exposures/Registry-Part-fy2019-qtr2.pdf# [https://perma.cc/M6DA-ZCWF] (last updated Mar. 31, 2019).
- A negative externality is “a cost imposed on third parties by the activity of an individual or firm,” and environmental costs are a prototypical example of costs incurred by others which result in market inefficiencies. Jonathan S. Masur & Eric A. Posner, Toward a Pigouvian State, 164 U. Pa. L. Rev. 93, 100-01 (2015).
- Cf. James Varley, How Waste Gasification Can Clean Up Its ACT, Mod. Power Sys. (Apr. 2, 2018), https://www.modernpowersystems.com/features/featurehow-waste-gasification-can-clean-up-its-act-6097155/ [https://perma.cc/VHR2-RCXQ] (explaining the commercial setbacks of Advanced Conversion Technology).
- See FAR 7.105(a)(3)(i).
- See U.S. Dep’t of Def., Instruction 4715.19, Use of Open-air Burn Pits in Contingency Operations ¶ 3.2 (2018).
- See 42 U.S.C. §§ 6901–6992 (2018). RCRA prohibits open dumping or burning of solid waste or hazardous waste. Id. § 6945(a); 40 C.F.R. §§ 257.3-7(a); 258.24(b) (2018). “Solid waste” is not limited to wastes that are physically solid and includes any material that is discarded by being abandoned, discarded military munitions, poses such a threat to human health and the environment that it is inherently waste-like, or recycled in certain ways. See 42 U.S.C. § 6903(27); 40 C.F.R. § 261.2(a).
- 42 U.S.C. §§ 9601–9657.
- Key Tronic Corp. v. United States, 511 U.S. 809, 815 n.6 (1994) (quoting Gen. Elec. Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d 1415, 1422 (8th Cir. 1990)).
- See 10 U.S.C. §§ 2700–2711 (2018).
- Id. § 2701(a)(1), (c)(1); see also ARC Ecology v. U.S. Dep’t of Air Force, 411 F.3d 1092, 1095 (9th Cir. 2005) (citation omitted).
- 42 U.S.C. §§ 4321–4370 (2018).
- Id. § 4332(2)(C); Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528, 532 (D.C. Cir. 1993) (quoting 42 U.S.C. § 4332(2)(C)).
- 42 U.S.C. §§ 7401–7429.
- Id. § 7429(a)(1).
- See Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources, 60 Fed. Reg. 65,387, 65,413 (Dec. 19, 1995) (to be codified at 40 C.F.R. pt. 60).
- Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources, 60 Fed. Reg. 65,390.
- EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (quoting Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957)).
- Foley Bros., Inc. v. Filardo, 336 U.S. 281, 282 (1949).
- Id. at 285 (citing Blackmer v. United States, 284 U.S. 421, 437 (1932)).
- Id. at 288. In reviewing administrative interpretations of the law, the Court afforded “no weight” to an Executive Order which would imply that it applied extraterritorially. Id. at 288–89 (citations omitted). Administrative interpretation was essentially eviscerated in EEOC v. Arabian American Oil Co., where the Court “assume[d] that Congress legislates against the backdrop of the presumption against extraterritoriality,” and found an agency regulatory interpretation “insufficiently weighty to overcome the presumption against extraterritorial application.” 499 U.S. at 248, 258.
- Arabian Am. Oil Co., 499 U.S. at 248 (quoting Foley Bros., 336 U.S. at 285).
- Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 676 (S.D.N.Y. 1991) (citations omitted).
- Id. at 672.
- Id. at 675–76.
- Arc Ecology v. U.S. Dep’t of the Air Force, 294 F. Supp. 2d 1152 (N.D. Cal. 2003), aff’d, 411 F.3d 1092 (9th Cir. 2005).
- Arc Ecology, 294 F. Supp. 2d at 1159.
- 42 U.S.C. § 4332(2)(F).
- A counter-argument may be that self-imposed extraterritorial limitations (that may create future third party causes of action against the United States) are by their nature damaging to U.S. foreign policy.
- Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528, 529 (D.C. Cir. 1993).
- Id. at 529, 533 (citation omitted). The court observed that “Antarctica ‘is not a foreign country,’ but rather a continent that is most frequently analogized to outer space.” Id. at 533 (quoting Beattie v. United States, 756 F.2d 91, 94 (D.C. Cir. 1984)).
- NEPA Coal. of Japan v. Aspin, 837 F. Supp. 466–67 (D.D.C. 1993).
- Id. at 468 (citing Massey, 986 F.2d at 535).
- Exec. Order No. 12,114, 44 Fed. Reg. 1,957 (Jan. 4, 1979).
- U.S. Dep’t of Def., Directive No. 6050.7, Environmental Effects Abroad of Major Department of Defense Actions 12, 14 (1979).
- An enduring location is one where the “DoD intends to maintain access and use of that location for the foreseeable future,” and includes main operating bases, forward operating sites, and cooperative security locations. U.S. Dep’t of Def., Instruction No. 4715.05, Environmental Compliance at Installations Outside the United States enclosure 4, pt. II (2013) [hereinafter DoDI 4715.05].
- U.S. Dep’t of Def., Publication No. 4715.05-G, Overseas Environmental Baseline Guidance Document C1.1 (2007).
- U.S. Dep’t of Def., Instruction No. 4715.08, Remediation of Environmental Contamination Outside the United States ¶ 2 (2013) [hereinafter DoDI 4715.08].
- Id. ¶ 3.d.
- DoDI 4715.05, supra note 49, at 2.a.2.
- U.S. Dep’t of Def., Directive No. 3000.10, Contingency Basing Outside the United States glossary, pt. II (2013).
- Command Narrative, U.S. Cent. Command, https://www.centcom.mil/ABOUT-US/COMMAND-NARRATIVE/ [https://perma.cc/EX7F-VEEM] (last visited May 22, 2019).
- Reg. 200-2, Environmental Quality: CENTCOM Contingency Environmental Guidance, U.S. Cent. Command (2009), https://www.cemml.colostate.edu/cultural/09476/pdf/CENTCOM_ITTR_CCR_200-2-1.pdf [https://perma.cc/3C4T-CW5G] [hereinafter USCENTCOM Reg. 200-2], superseded by U.S. Cent. Command, Reg. 200-2, CENTCOM Contingency Environmental Standards (2012).
- Id. ¶ 3-2(g)(4)(d).
- Id. ¶ 9-2, app. D.11.
- National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, 123 Stat. 2190, 2249–50 (2009).
- U.S. Dep’t of Def., Instruction 4715.19, Use of Open-Air Burn Pits in Contingency Operations enclosure 2, ¶ 1.b, enclosure 3, ¶ 1.a (2011). DoDI 4715.19 adopts the transition time reflected in CENTCOM Regulation 200-2 by excluding from the definition of “open-air burn pit” locations with fewer than 100 attached or assigned personnel or that are in place less than 90 days. Id. at glossary, pt. II; USCENTCOM Reg. 200-2, supra note 56, at app. D.17.
- U.S. Dep’t of Def., Instruction 4715.22, Environmental Management Policy for Contingency Locations (2018). DoDI 4715.22 directs compliance with DoDI 4715.19 with respect to solid waste burning. Id. ¶ 3.6.
- See David E. Mosher et al., Green Warriors: Army Environmental Considerations For Contingency Operations from Planning Through Post-Conflict 154 (2008).
- See id. at 154–55.
- Id. at 156.
- Id. at 157 (citation omitted).
- Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 539 U.N.T.S. 631 [hereinafter Hague IV].
- Int’l & Operational Law Dep’t, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, Operational Law Handbook 348 (2017) [hereinafter Operational Law Handbook].
- Hague IV, supra note 68, arts. 22, 23.
- Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571 [hereinafter Geneva Protocol]. The United States reserved its right to use herbicides and riot control agents, taking the position that neither met the treaty’s definitions for prohibited substances. U.S. Dep’t of Army, Field Manual 27-10: The Law of Land Warfare 2 (1956).
- Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction pmbl., Jan. 13, 1993, 1975 U.N.T.S. 45; Exec. Order No. 11,850, 40 Fed. Reg. 16,187 (Apr. 8, 1975) (renouncing certain uses of herbicides and riot control agents in war).
- Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, arts. 53, 147 [hereinafter Geneva IV].
- Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977–May 31, 1978, 1108 U.N.T.S. 151, 153.
- Operational Law Handbook, supra note 69, at 349 (citations omitted).
- 10 U.S.C. §§ 2734–2736 (2018).
- Id. § 2734(a).
- Id.; Claims not payable under the Foreign Claims Act, 32 C.F.R. § 536.138 (2018).
- Operational Law Handbook, supra note 69, at 313-14.
- See FAR 1.101.
- FAR 2.101 (“‘Renewable energy’ means energy produced by solar, wind, geothermal, biomass, landfill gas, ocean (including tidal, wave, current, and thermal), municipal solid waste, or new hydroelectric generation capacity achieved from increased efficiency or additions of new capacity at an existing hydroelectric project.”).
- FAR 23.202(a).
- FAR 23.200(b).
- FAR 23.103(a).
- FAR 23.104(a).
- FAR 23.703(a). The FAR defines “environmentally preferable” to mean “products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. This comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product or service.” FAR 2.101.
- FAR 23.703(b)(1). The EPA has identified waste-to-energy as a clean source of renewable energy with low pollutant emissions. See infra notes 236–238 and accompanying text.
- FAR 23.703(b) (emphasis added). Other required environmental objectives include promoting the use of recovered/nonhazardous materials and biobased products as well as purchasing degradable plastic ring carriers. Id.
- FAR 23.704(a)(3) (emphasis added).
- FAR 15.101.
- 15 U.S.C. §§ 631–57 (2018).
- Id. § 631(a).
- Id. § 644(g)(1)(A)(i). Small businesses are further categorized for the purpose of allocating preferences and set-asides, including veteran-owned small business, servicedisabled veteran-owned small business, historically underutilized business zone (HUBZone) small business, small disadvantaged business, and women-owned small business concerns. Id. § 644(g)(1)(A)(ii)–(v).
- 41 U.S.C. §§ 8301–8305 (2018).
- FAR 25.101(a). Domestic end products must be manufactured in the United States, and the cost of domestic components must exceed fifty percent of the cost of all components. Id.
- FAR 22.403-1.
- See, e.g., Small Business Act, 15 U.S.C. § 631(2)(b) (2018) (“It is the declared policy of the Congress that the Federal Government . . . should aid and assist small businesses.”); Exec. Order No. 11,246, 30 Fed. Reg. 12,319, 12,320 (1965) (requiring certain contractors to design and implement affirmative action plans).
- FAR 7.101. Although the definition refers to “items,” the FAR uses this term elsewhere to describe both physical goods and services, such as in its definition of “commercial items.” FAR 2.101.
- John Cibinic, Jr. et al., Formation of Government Contracts 387–88 (4th ed. 2011); DoD Contract Pricing Reference Guides, Def. Acquisition U. § 5.6, https://www.dau.mil/tools/p/cprg [https://perma.cc/HWF7-5L4X] (last visited June 9, 2019) (noting that consideration of life-cycle cost in acquisition planning “is particularly important when you expect that offers will include items that have substantially different operation, support, and disposal costs.”).
- See, e.g., Sensis Corp., B-265790.2, 96-1 CPD ¶ 77, at 9 (Comp. Gen. Jan. 17, 1996) (stating that life-cycle costs are not required to be evaluated) (citation omitted); ViON Corp., B-256363, 94-1 CPD ¶ 373, at 10-11 (Comp. Gen. June 15, 1994) (stating that consideration of environmental factors are not required as part of life-cycle costs in deference to agency’s discretion); Lockheed Missiles & Space Co. v. Dep’t of the Treasury, GSBCA Nos. 11776-P, 11777-P, 93-1 BCA ¶ 25,401, at 126,498, 126,508 (finding analysis of projected life-cycle costs justified awarding contract to offeror whose price totaled $1.4 billion over others whose prices were $900 and $700 million), aff'd, Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 960 (Fed. Cir. 1993); Ingalls Shipbuilding, Inc., B-275830, et al., 97-1 CPD ¶ 180, at 13 (Comp. Gen. Apr. 7, 1997) (finding price premium justified because awardee’s proposed life-cycle cost reduction approach provided the greatest probability of savings).
- Sieglinde K. Fuller & Stephen R. Petersen, U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., NIST Handbook 135, Life-Cycle Costing Manual for the Federal Energy Management Program, at iii (1996). Handbook 135 implements FEMP rules but is also consistent with American Society for Testing and Materials (ASTM) standards on building economics; although technical supplements are published annually, it has not been substantively revised since 1995. Id. at v.
- Id. at 1-1.
- Id. at iv–v.
- Id. at 4-10-4-11.
- U.S. Dep’t of Def., UFC 1-200-02, Unified Facilities Criteria (UFC): High Performance and Sustainable Building Requirements 2, 4 (2016). Buildings outside the United States, buildings supporting contingency operations, non-permanent buildings, and projects marked “austere” are all applicable to the greatest extent practical. Id. at 2.
- Id., foreword.
- Id. at 9, 10, 11, 14, 15.
- Id. at 50 (emphasis added).
- DoD Contract Pricing Reference Guides, supra note 100.
- FAR 7.103(i).
- DFARS 207.103(d)(i)(B).
- David A. Krooks & Kurt J. Kinnevan, Army Envtl. Policy Inst., Analysis of Policy and Guidance Regarding Sustainability and Environmental Considerations in Overseas Contingency Operations in the Joint, Interagency, Intergovernmental, and Multinational (JIIM) Environment 1 (2011).
- GAO-11-63, supra note 13, at Highlights.
- Id. at 31.
- See Mosher et al., supra note 62, at 4.
- The DoD defines risk as “[p]robability and severity of loss linked to hazards;” hazard is in turn defined as a “condition with the potential to cause injury, illness, or death of personnel; damage to or loss of equipment or property; or mission degradation;” and risk management is the “process of identifying, assessing, and controlling risks arising from operational factors and making decisions that balance risk cost with mission benefits.” U.S. Dept’ of Def., Department of Defense Dictionary of Military and Associated Terms 101, 206 (2016). Under these definitions, environmental degradation can pose a risk, but the uncertain probability and much longer timeframe of harm limit its impact on the military mission and weigh against prioritizing it.
- The FOBs can vary greatly depending on mission, duration, role, size, and location, from “an austere, platoon‐sized base on the tactical edge to division‐sized enduring bases that sell flat screen televisions from their Post Exchange,” but each FOB is an “evolving military facility that supports the military operations of a deployed unit and provides necessary support and services for sustained operations.” Strategic Envtl. Research & Dev. Program (SERDP), Sustainable Forward Operating Bases 3–4 (2010) [hereinafter SERDP FOB Report].
- Cleanup of U.S. Military Burn Pits in Iraq and Afghanistan, Am. Pub. Health Ass’n (Nov. 3, 2015), https://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2015/12/16/08/56/cleanup-of-us-military-burn-pits-in-iraq-and-afghanistan [https://perma.cc/2KX4-8X4N]. In Iraq, as of November 2009, open-air burn pits were in use in fourteen of forty-one small sites with fewer than one hundred personnel, thirty of forty-nine medium sites with between one hundred and one thousand personnel, and nineteen of twenty-five large sites with over one thousand personnel; in Afghanistan, as of 2011, burn pits were used in one hundred, twenty-six of one hundred, thirty-seven small sites, sixty-four of eighty-seven medium sites, and seven of eighteen large sites. Id.
- See Special Inspector Gen. for Afg. Reconstruction, SIGAR 15-33-AL, Final Assessment: What We Have Learned From Our Inspections of Incinerators and Use of Burn Pits in Afghanistan 1, 24 (2015) [hereinafter SIGAR Report].
- See USCENTCOM Reg. 200-2, supra note 56, at 13-1.
- Memorandum from Darrin L. Curtis, U.S. Dep’t of Air Force to U.S. Dep’t of Air Force, 332nd Air Expeditionary Wing, Balad Air Base Iraq (Dec. 20, 2006), available at http://www.comanchero.org/BaladIraq.pdf [https://perma.cc/DA7Q-YDM4].
- See SIGAR Report, supra note 120, at 9, 25.
- Id. at 3–5 (emphasis added).
- See Human Rights Watch, “As If You’re Inhaling Your Death”: The Health Risks of Burning Waste in Lebanon 32, 35 (2017).
- Backyard Burning, U.S. Envtl. Protection Agency, https://archive.epa.gov/epawaste/nonhaz/municipal/web/html/index-3.html [https://perma.cc/EQL7-L7EK] (last visited Apr. 30, 2018).
- Human Health, U.S. Envtl. Protection Agency, https://archive.epa.gov/epawaste/nonhaz/municipal/web/html/health.html [https://perma.cc/N7VJ-J27N] (last visited Apr. 30, 2018).
- See Inventory of Dioxin Sources and Environmental Releases, U.S. Envtl. Prot. Agency, https://www.epa.gov/dioxin/inventory-dioxin-sources-and-environmental-releases [https://perma .cc/C2AP-GN3T] (last visited May 18, 2019).
- The thirty dioxin-like compounds “are members of three closely related families: the chlorinated dibenzo-p-dioxins (CDDs), chlorinated dibenzofurans (CDFs) and certain polychlorinated biphenyls (PCBs).” U.S. Envtl. Prot. Agency, Information Sheet 1, Dioxin: Summary of the Dioxin Reassessment Science 1 (2000).
- Human Health, supra note 127.
- U.S. Envtl. Prot. Agency, Nat’l Ctr. for Envtl. Assessment, Review Draft, Exposure and Human Health Reassessment of 2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) and Related Compounds, Part III: Integrated Summary and Risk Characterization 1–10 (2003).
- See U.S. Gov’t Accountability Off., GAO-19-24, Agent Orange: Actions Needed to Improve Accuracy and Communication of Information on Testing and Storage Locations, at highlights (2018).
- Thomas Fuller, 4 Decades On, U.S. Starts Cleanup of Agent Orange in Vietnam, N.Y. Times, Aug. 9, 2012.
- William Glaberson, Agent Orange, the Next Generation; In Vietnam and America, Some See a Wrong Still Not Righted, N.Y. Times, Aug. 8, 2004, at N25.
- Inst. of Med. of the Nat’l Acad., Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan, at ix (2011).
- Id. at ix, 3.
- See id. at 112.
- See id. at 7.
- Dignified Burial and Other Veterans’ Benefits Improvement Act of 2012, Pub. L. 112-260, § 201, 126 Stat. 2417, 2422 (2013).
- Public Health, VA’s Airborne Hazards and Open Burn Pit Registry, U.S. Dep’t of Veterans Aff., https://www.publichealth.va.gov/exposures/burnpits/registry.asp [https://perma.cc/4H5Z-4AXX] (last visited May 25, 2019).
- The Nat’l Acad. of Sci., Eng’g, & Med., Assessment of the Department of Veterans Affairs: Airborne Hazards and Open Burn Pit Registry at ix (2017). It also acknowledged that “some of those who were exposed to burn pits and airborne hazards undoubtedly have suffered and continue to suffer adverse health consequences.” Id.
- Id. at 24.
- Id. at 158.
- See id. at 24, 161.
- Id. at 24.
- Shannon K. Barth et al., Lifetime Prevalence of Respiratory Diseases and Exposures Among Veterans of Operation Enduring Freedom and Operation Iraqi Freedom Veterans: Results from the National Health Study for a New Generation of U.S. Veterans, 58 J. Occupational & Envtl. Med. 1175, 1175 (2016).
- U.S. Marine Corps, Initial Capabilities Document for United States Marine Corps Expeditionary Energy, Water, and Waste iii (2011) [hereinafter USMC Initial Capabilities Document].
- U.S. Marine Corps, Expeditionary Energy Strategy and Implementation Plan “Bases-to-Battlefield” 17 (2011). The Commandant also stated that “[t]he current and future operating environment requires an expeditionary mindset geared toward increased efficiency and reduced consumption, which will make our forces lighter and faster. We will aggressively pursue innovative solutions to reduce energy demand in our platforms and systems, increase our self-sufficiency in our sustainment, and reduce our expeditionary foot print on the battlefield.” Id. at 3.
- Matthew T. Barnes et al., Bridging the Gap Between Burn Pits and Waste-to-Energy Technology: Safe and Effective Waste Management in Contingency Operations, Army Med. Dep’t J. 85, 89 (2016).
- U.S. Dep’t. of Army, Technical Manual No. 3-34.56, Waste Management for Deployed Forces 1-4, 1-5 (2013) [hereinafter Technical Manual].
- How Many Acres is a Football Field?, Stack, http://www.stack.com/a/how-many-acres-is-a-football-field [https://perma.cc/WT2B-M22U] (last visited Apr. 30, 2018).
- Technical Manual, supra note 151, at 1-5.
- USMC Initial Capabilities Document, supra note 148.
- Army Envtl. Policy Inst., Sustain the Mission Project: Casualty Factors for Fuel and Water Resupply Convoys, at i (2009).
- See USMC Initial Capabilities Document, supra note 148, at 1–2.
- Strategic Envtl. Research & Dev. Program (SERDP), FY 2018 Statement of Need: Development of Agile, Novel Expeditionary Battlefield Manufacturing Processes Using Recycled and Reclaimed Materials ¶ 3 (2016).
- GAO-11-63, supra note 13.
- Id. at 30–31.
- See U.S. Dep’t of Def., Fiscal Year 2014 Budget Request, Addendum A: Overseas Contingency Operations 2 fig.2 (2013).
- Todd Harrison, Ctr. for Strategic & Budgetary Assessments, Chaos and Uncertainty: The FY2014 Defense Budget and Beyond 11–12 (2013).
- Roxana Tiron, $400 Per Gallon Gas to Drive Debate over Cost of War in Afghanistan, The Hill (Oct. 16, 2009), https://thehill.com/homenews/administration/63407-400gallon-gas-another-cost-of-war-in-afghanistan- [https://perma.cc/QR74-GWK8]. A 2009 Deloitte study calculated the “fully burdened cost of fuel” at deployed locations to be approximately forty-five dollars per gallon, noting that “[p]rotecting fuel convoys from the ground and air costs the DoD upward of [fifteen] times the actual purchase cost of fuel” and that “costs grow exponentially as the delivery distance increases or when force protection is provided from air.” Deloitte, Energy Security: America’s Best Defense 19 (2009) [hereinafter Deloitte Study].
- Tiron, supra note 163 (citation omitted).
- An SBCT is a motorized infantry force of approximately 4,500 soldiers. Cong. Budget Office, The U.S. Military’s Force Structure: A Primer 17 (2016).
- See David S. Eady et al., Army Envtl. Policy Inst., Sustain the Mission Project: Casualty Factors for Fuel and Water Resupply Convoys 9 fig.4 (2009).
- Deloitte Study, supra note 163, at 1; U.S. Dep’t of Def., Office of the Under Secretary of Def., More Capable Warfighting Through Reduced Fuel Burden, at ES-1 (2001).
- Bill Lynn, Energy for the War Fighter: The Department of Defense Operational Energy Strategy, Dep’t of Energy (June 14, 2011), https://www.energy.gov/articles/energy-war-fighter-department-defense-operational-energy-strategy [https://perma.cc/H6ZE-XN6C].
- Mark Clayton, In the Iraqi War Zone, US Army Calls for ‘Green’ Power, Christian Sci. Monitor (Sept. 7, 2006), https://www.csmonitor.com/2006/0907/p01s04-usmi.html [https://perma.cc/BSE9-3ZTP].
- SERDP FOB Report, supra note 118, at 1.
- Army Envtl. Policy Inst., Fully Burdened Cost of Managing Waste in Contingency Operations vii (2010).
- Id. at 25.
- See id. at 21 tbl.6.
- See id. at 21.
- U.S. Dep’t of Army, Reg. No. 700–137, Logistics Civil Augmentation Program 1 (2017) [hereinafter AR 700-137]; see e.g., Valerie Bailey Grasso, Cong. Research Serv., RL33834, Defense Logistical Support Contracts in Iraq and Afghanistan: Issues for Congress 8 (Apr. 28, 2010).
- AR 700–137, supra note 175.
- Id. at 7, 18.
- KBR, Inc., Annual Report (Form 10-K) 105 (2017) [hereinafter KBR 10-K].
- Id. at 5.
- Id. at 103.
- KBR, Inc., Annual Report (Form 10-K) 118 (2019).
- In re KBR, Inc., 736 F. Supp. 2d 954, 956 (D. Md. 2010), modified on reh’g, In re KBR, Inc., 925 F. Supp. 2d 752, 774 (D. Md. 2013), vacated, In re KBR, Inc., 744 F.3d 326, 351–52 (4th Cir. 2014).
- In re KBR, Inc., 268 F. Supp. 3d 778, 780–81 (D. Md. 2017), aff’d in part, vacated in part sub nom. In re KBR, Inc., Burn Pit Litig., 893 F.3d 241 (4th Cir. 2018), cert. denied, 139 S. Ct. 916 (2019). The Fourth Circuit affirmed the dismissal and vacated the “portion of the district court’s opinion discussing the [Federal Tort Claims Act] issue.” In re KBR, Inc., Burn Pit Litig., 893 F.3d at 264.
- In re KBR, Inc., 268 F. Supp. 3d at 813-15 (citation omitted).
- Id. at 823-24 (citations omitted). Although the court found that the DoD controlled “virtually every aspect” of KBR’s burn pit activities, a former KBR employee and LOGCAP contracting officer stated at a U.S. Senate hearing that he witnessed “KBR employees dump nuclear, biological, chemical decontamination materials and bio-medical waste, plastics, oil, and tires into burn pits in direct violation of military regulations, federal guidelines, and the LOGCAP contract Statement of Work.” Are Burn Pits in Iraq and Afghanistan Making Our Soldiers Sick?: Hearing Before the S. Democratic Policy Comm., 111th Cong. (2009) (statement of Rick Lamberth, former KBR employee). When attempting to report violations, he “was told by the head of KBR’s Health Safety and Environment division to shut up and keep it to [himself]. At one point, KBR management threatened to sue [him] for slander if [he] spoke out about these violations.” Id.
- FAR 31.000.
- See FAR 31.205.
- Boeing N. Am., Inc. v. Roche, 298 F.3d 1274, 1275 (Fed. Cir. 2002).
- FAR 31.204(d) provides that FAR 31.205 does not cover every element of cost, and where not explicitly covered the “determination of allowability shall be based on the principles and standards in this subpart and the treatment of similar or related selected items.”
- See FAR 31.205-47(e)(3). The eighty percent limitation applies only to costs incurred for “proceeding[s] brought by: a [f]ederal, [s]tate, local, or foreign government for a violation of, or failure to comply with, law or regulation by the contractor (including its agents or employees) (41 U.S.C. 4310 and 10 U.S.C. 2324(k)); a contractor or subcontractor employee submitting a whistleblower complaint of reprisal in accordance with 41 U.S.C. 4712 or 10 U.S.C. 2409; or a third party in the name of the United States under the False Claims Act, 31 U.S.C. 3730.” FAR 31.205-47(b). The “80% rule” has not been tested in court where the contractor is sued by private parties and the government argues that the costs are “similar or related” to those covered under the rule, but would appear unlikely to apply. See Martin P. Willard, Allowability of Legal Costs, Briefing Papers Collection 1, 6 (2010).
- KBR 10-K, supra note 178, at 104.
- Id. at 105.
- See Robert V. Chisholm, Agent Orange, Burn Pits, and Presumptive Service Connection for Disability Compensation, 35 GPSolo 42, 43 (2018).
- Glaberson, supra note 135.
- Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984).
- Chisholm, supra note 193.
- See Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 1404, 1423 (N.D. Cal. 1989).
- See Chisholm, supra note 193, at 43–44.
- Hope Yen, US Government to Pay At Least $47 Million to Veterans over Agent Orange Claims, Bus. Insider (June 18, 2015), http://www.businessinsider.com/us-government-to-pay-at-least-47-million-to-veterans-over-agent-orange-claims-2015-6 [https://perma.cc/36RF-STUL].
- U.S. Gov’t Accountability Off., GAO-17-511, Gulf War Illness: Improvements Needed for VA to Better Understand, Process, and Communicate Decisions on Claims 12 (2017) [hereinafter GAO-17-511].
- Id. at 1.
- Id. at 5.
- Veterans’ Benefits Improvement Act of 1994, Pub. L. No. 103-446, § 106(a), 108 Stat. 4645, 4650–51 (1994).
- Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 202(a), 115 Stat. 976, 988–89 (2001).
- The diseases are brucellosis, campylobacter jejuni, coxiella burnetti (Q fever), malaria, mycobacterium tuberculosis, nontyphoid salmonella, shigella, visceral leishmaniasis, and West Nile virus. Presumptions of Service Connection for Persian Gulf Service, 75 Fed. Reg. 59,968, 59,971 (Sept. 29, 2010) (to be codified at 38 C.F.R. pt. 3).
- GAO-17-511, supra note 202, at 18.
- M21-1, Developing Claims for Service Connection (SC) Based on Other Exposure Types, Exhibit 1: Fact Sheet for Claims of Exposure Based on Burn Pits in Iraq, Afghanistan, and Djibouti, U.S. Dep’t of Veterans Aff., https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-S/portal/554400000001018/content/554400000033326/M21-1-Part-IV-Subpart-ii-Chapter-1-Section-I-Developing-Claims-for-Service-Connection-SC-Based-on-Other-Exposure-Types [https://perma.cc/6JER-9MM2] (last visited Apr. 30, 2018).
- Robert V. Chisholm has served as president of both the Court of Appeals for Veterans Claims (CAVC) Bar Association and the National Organization of Veterans’ Advocates, and has appeared before the CAVC in over 7,500 cases. Chisholm, supra note 193, at 45.
- See, e.g., Helping Veterans Exposed to Burn Pits Act, S. 319, 115th Cong. (2017).
- Pub. L. No. 115-91, § 738, 131 Stat. 1283, 1446 (2017).
- Tillis, Klobuchar Bipartisan Legislation to Help Veterans Exposed to Toxic Burn Pits Passes Senate, Thom Tillis, U.S. Senator for N.C. (Sept. 19, 2017), https://www.tillis.senate.gov/public/index.cfm/press-releases?ID=7F1A774F-0300-47C4-ACC4-52423357AA79 [https://perma.cc/27EW-CV3Y]; see also Leo Shane III, Obama Says Burn Pits Won’t Become Another Agent Orange, Stars & Stripes (Aug. 4, 2009), https://www.stripes.com/news/obama-says-burn-pits-won-t-become-another-agent-orange-1.93801 [https://perma.cc/GDU5-BSWA]; Letter from David Petraeus, Bd. Member, Iraq & Afg. Veterans of Am., to Cong. (July 31, 2018), available at https://iava.org/wp-content/uploads/2018/08/Support-of-Burn-Pits-Accountability-Act.pdf [https://perma.cc/7P2P-HF5J].
- SIGAR Report, supra note 120, 1–2.
- Special Inspector Gen. for Afg. Reconstruction, SIGAR 14-13-IP, Forward Operating Base Sharana: Poor Planning and Construction Resulted in $5.4 Million Spent for Inoperable Incinerators and Continued Use of Open-Air Burn Pits, at intro., 6–7 (2013).
- See Barnes et al., supra note 150, at 89.
- Special Inspector Gen. for Afg. Reconstruction, SIGAR Inspection 13-8, Forward Operating Base Salerno: Inadequate Planning Resulted in $5 Million Spent for Unused Incinerators and the Continued Use of Potentially Hazardous Open-Air Burn Pit Operations 1-3 (2013) [hereinafter SIGAR Inspection 13-8].
- Id. at 4–5.
- SIGAR Report, supra note 120, at 4.
- Id.; SIGAR Inspection 13-8, supra note 220, at 4–5.
- J. Abram Crutchfield et al., Air Force Inst. of Tech., Contingency Waste Disposal and Energy Conversion Decision Support Model, Portland Int’l Conf. on Mgmt. of Engineering & Tech. 585 (2016).
- Technical Manual, supra note 151, at v.
- Crutchfield et al., supra note 224.
- Id. Traditional W2E systems incinerate waste through combustion, although ACT processes that do not incinerate the waste also fall under W2E. Id. at 585–86.
- Barnes et al., supra note 150, at 95.
- Id. at 85.
- Id. at 90.
- Id. at 94–95.
- Crutchfield et al., supra note 224.
- See How much energy is there in a barrel of oil?, Peak Oil, http://peakoil.com/generalideas/how-much-energy-is-there-in-a-barrel-of-oil [https://perma.cc/AK2J-86FC] (last visited Apr. 30, 2018).
- MACT required installation of dry scrubbers, fabric filter baghouses, activated carbon injection, selective non-catalytic reduction of nitrogen oxides (NOx), and other measures. C.S. Psomopoulos et al., Waste-to-energy: A review of the status and benefits in USA, 29 Waste Mgmt. 1718, 1722 (2009).
- Air Emissions from MSW Combustion Facilities, U.S. Envtl. Prot. Agency, https://archive.epa.gov/epawaste/nonhaz/municipal/web/html/airem.html [https://perma.cc/Q86C-CEV2] (last visited Mar. 7, 2018).
- Psomopoulos et al., supra note 234, at 1718.
- The EPA conducted life-cycle emission analysis of W2E and considered factors including avoided methane emissions from landfills, energy generation offsetting fossil fuel use, recycling of metals, and emissions savings from avoiding long-distance hauling to landfills. Air Emissions from MSW Combustion Facilities, supra note 235. The EPA found that W2E generates 1016 pounds of CO2 per megawatt hour, compared with coal (2249), oil (1672), and natural gas (1135). Id.
- Two EPA-sponsored models both show that W2E results in savings estimated at 1.0 ton of GHGs per ton of waste combusted instead of landfilling. Id.
- Advanced Waste Conversion: The Lockheed Martin and Concord Blue Solution, Lockheed Martin, https://www.lockheedmartin.com/content/dam/lockheed/data/mfc/photo/energy/bioenergy/mfc-Advanced-Waste-Conversion-brochure.pdf [https://perma.cc/XX5G-2KT5] (last visited Apr. 30, 2018).
- How It Works: Concord Blue Reformer, Concord Blue Energy, http://www.concordblueenergy.com/solutions-in-action/how-it-works.aspx [https://perma.cc/GH4M-9V3M] (last visited Apr. 30, 2018); Tech Breakthrough: Lockheed Martin Opens Advanced Bioenergy Plant, Lockheed Martin, https://news.lockheedmartin.com/2016-09-20-Tech-Breakthrough-Lockheed-Martin-Opens-Advanced-Bioenergy-Plant [https://perma.cc/H8L7-H8GX] (last visited Apr. 30, 2018).
- Renee Cho, Putting Garbage to Good Use with Waste-to-Energy, Columbia U. Earth Inst. (Oct. 18, 2016), http://blogs.ei.columbia.edu/2016/10/18/putting-garbage-to-good-use-with-waste-to-energy/ [https://perma.cc/74BM-LLER].
- See id.
- See, e.g., Michael Cushman, Strategic Envtl. Research & Dev. Program (SERDP), Project WP-2235, Final Report: Shredded Waste Downdraft Gasifier for Overseas Contingency Operations Waste-to-Energy Conversion 1 (2015); Patrick Scott et al., Strategic Envtl. Research & Dev. Program (SERDP), Project WP-2236, Final Report: Investigating Efficient Tar Management from Biomass and Waste to Energy Gasification Processes 1 (2015); Christopher Martin et al., Strategic Envtl. Research & Dev. Program (SERDP), Project WP-2210, Final Report: Thermal Catalytic Syngas Cleanup for High-Efficiency Waste-to-Energy Converters 1 (2015); Stephen D. Cosper, Strategic Envtl. Research & Dev. Program (SERDP), Project WP-2211, Rotary Kiln Gasification of Solid Waste for Base Camps (2017).
- The Naval Research Laboratory (NRL) contracted for the design and construction of an advanced plasma arc hazardous waste treatment system with successful operational testing completed in October 1999. Envtl. Sec. Tech. Certification Program, U.S. Dep’t of Def., ESTCP Cost and Performance Report CP-9509: Plasma Arc Destruction of DoD Hazardous Waste 1-2 (2003). An Environmental Assessment was completed finding emissions below EPA limits, and the Virginia Department of Environmental Quality issued an air emissions permit for construction at Naval Station Norfolk; a separate economic analysis indicated a net savings of at least fourteen million dollars instead of the current off-site disposal method over a fifteen-year operating period. Id. at 2. The system was ultimately not installed because the Commander, Naval Region Mid-Atlantic was concerned about immediate budget constraints and also (erroneously) projected a significant reduction in hazardous waste generation which would limit the net savings. Id. at 31.
- Strategic Envtl. Research & Dev. Program (SERDP), FY 2012 Statement of Need: Waste to Energy Converters for Overseas Contingency Operations 1 (2010).
- Scott et al., supra note 243. The report also expresses doubt about the government’s refusal to acknowledge the health effects of burn pits, noting that the “US Department of Veterans Affairs’ position is that current research does not prove long term health problems associated with burn pits, yet it has a registry to document health effects and provide opportunity to file compensation claims.” Id.
- Martin et al., supra note 243.
- Cushman supra note 243, at 3.
- Crutchfield et al., supra note 224, at 586.
- Id. at 587.
- Id. at 595.
- Id. at 596. While currently available W2E products may generate life-cycle cost savings, their value would increase substantially if adapted for the contingency environment to reduce their logistical requirements. Id.
- History, Concord Blue Energy, http://www.concordblueenergy.com/about-us/history.aspx [https://perma.cc/XX4M-QBLP] (last visited Apr. 30, 2018).
- Advanced Waste Conversion: The Lockheed Martin and Concord Blue Solution, supra note 239.
- For example, it can be configured to process municipal solid waste, industrial waste, or biomass (waste wood chips). See 250kW Advanced Gasification Plant: Creating Clean Energy Through Sustainable, On-Site Waste Conversion, Lockheed Martin ttps://lockheedmartin.com/content/dam/lockheed-martin/mfc/documents/energy/mfc-Gasification-Plant-brochure.pdf [https://perma.cc/TS4P-RJTG] (last visited May 25, 2019).
- Advanced Waste Conversion: The Lockheed Martin and Concord Blue Solution, supra note 239.
- Lockheed Martin Corp., 2016 Annual Report 3 (2017).
- Cosper, supra note 243, at 2.
- Id. at 7, 109.
- See Peter Baker, U.S. Navy Opens New Era with Commissioning of Gerald R. Ford, N.Y. Times (July 22, 2017), https://www.nytimes.com/2017/07/22/us/politics/ford-class-aircraft-carrier-commissioning.html [https://perma.cc/WJ8X-XGRW]. The USS Ford debuted the first new class of aircraft carriers in forty-two years. Id.
- Gary Alexander, Navy Environmental Success Story: The Plasma Arc Waste Destruction System to Reduce Waste Aboard CVN 78, 4 SeaFrame 1, 13–14 (2008).
- L. Rao et al., PyroGenesis Can. Inc., Plasma Waste Gasification: Decentralized Approach to Production of Energy from Waste para. 3 (2010).
- See Scott et al., supra note 243, at 63.
- Travis J. Tritten, The Pentagon Is Quietly Moving Forward on Biofuel Deals. Republicans Want to Stop It, Wash. Examiner (Mar. 13, 2018), https://www.washingtonexaminer.com/the-pentagon-is-quietly-moving-forward-on-biofuels-deals-republicans-want-to-stop-it?utm_source=Sailthru&utm_medium=email&utm_campaign=EBB%203/13/18&utm_term=Editorial%20-%20Early%20Bird%20Brief [https://perma.cc/2UAD-Z7Q3].
- See Cong. Research Serv., R42859, DoD Alternative Fuels: Policy, Initiatives and Legislative Activity summary, 7 (2013); Jim Lane, The Big $55M Drop-in Military Biofuels Op, BioFuels Digest (Jan. 24, 2017), http://www.biofuelsdigest.com/bdigest/2017/01/24/the-big-55m-drop-in-military-biofuels-op/ [https://perma.cc/JVF7-ECLD]. The DoD’s investments in the refineries do not obligate it to purchase the fuels if they are not competitive with conventional fuels. See U.S. Gov’t Accountability Off., GAO-15-674, Defense Energy: Observations on DoD’s Investments in Alternative Fuels 20 (2015).
- See Tami Relph & Edwin Chiang, Naval Facilities Eng’g & Expeditionary Warfare Ctr., Technical Report TR-NAVFAC-EXWC-EV-1703: Waste-to-Energy Thermal Destruction Identification for Forward Operating Bases 36 (2016).
- Scott et al., supra note 243, at 62.
- Id. at 2.
- Cf. Bruce J. Clark & Marc J. Rogoff, NAWTEC18-35, Economic Feasibility of a Plasma Arc Gasification Plant, City of Marion, Iowa, N. Am. Waste-to-Energy Conference, at 8 (2010) (noting that regulatory action increasing landfill disposal fees is critical to the economic feasibility of a proposed municipal plasma arc project).
- Martin et al., supra note 243, at 55.
- Id. at 1–2.
- Id. at 55.
- See, e.g., Bioenergy, Lockheed Martin, https://www.lockheedmartin.com/en-us/capabilities/energy/bioenergy.html [https://perma.cc/J7UD-2J5W] (last visited May 26, 2019) (noting agreement between Lockheed Martin and Concord Blue to develop an ACT system).
- Exec. Order No. 13,693, 80 Fed. Reg. 15,871, 15871 (Mar. 19, 2015).
- Id. at 15,871–72 (emphasis added).
- Id. at 15,882.
- Id. at 15,881.
- Federal Acquisition Regulation: Sustainable Acquisition, 82 Fed. Reg. 5,490, 5,491 (Jan. 18, 2017) (to be codified at 48 C.F.R. pts. 2, 4, 7, 11, 23, 36, 39, 42, 52).
- See id. at 5,495–96.
- See id. at 5,495.
- Id. at 5,496 (emphasis added).
- See id. at 5,490.
- See Comment Letters on Proposed Rule to the Federal Acquisition Regulation: Sustainable Acquisition, Regulations.gov (2017), https://www.regulations.gov/docketBrowser?pp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=FAR-2015-0033 [https://perma.cc/RGE2-ZVF3].
- See Jason Miller, How Many Procurement Regulations Were Finalized in 2017? The Answer May Surprise You, Fed. News Network (Jan. 29, 2018), https://federalnewsradio.com/reporters-notebook-jason-miller/2018/01/how-many-procurement-regulations-were-finalized-in-2017-the-answer-may-surprise-you/ [https://perma.cc/RAK2-Z6HG].
- Steven L. Schooner & David J. Berteau, Emerging Policy and Practice Issues, Geo. Wash. U. L. Sch., 9-1 (2018).
- Exec. Order No. 13,834, 83 Fed. Reg. 23,771, 23,773 (May 18, 2018). Like E.O. 13,693, E.O. 13,834 applies only within the United States, with agency head discretion to apply outside if in the interest of the United States. Id.
- Open FAR Cases As of 6/10/2019, Def. Acquisition Reg. Sys., https://www.acq.osd.mil/dpap/dars/opencases/farcasenum/far.pdf [https://perma.cc/7HCY-BCQK] (last visited June 11, 2019).
- Exec. Order No. 13,834, 83 Fed. Reg. at 23,771.
- See id. Compare U.S. Office of Fed. Sustainability, Council on Envtl. Quality, Implementing Instructions for Executive Order 13834: Efficient Federal Operations 36 (2019) (stating “[t]he life cycle cost of a product, project, or measure are estimated to be equal to or less than the base case (i.e., current or standard practice or product) in accordance with 10 CFR part 436), with Exec. Order No. 13,693, 80 Fed. Reg. 15,871, 15,882 (Mar. 19, 2015) (stating “the life-cycle costs of a product, project, or measure are estimated to be equal to or less than the base case (i.e., current or standard practice or product”).
- See supra Part III. A.
- See Sean D. Murphy, The Role of Bilateral Defense Agreements in Maintaining the European Security Equilibrium, 24 Cornell Int’l L.J. 415, 415 (1991).
- This determination would then be cleanly incorporated into the Defense Federal Acquisition Regulation Supplement at DFARS 223.104.
- Federal Acquisition Regulation: Sustainable Acquisition, 82 Fed. Reg. 5,490, 5,496 (Jan. 18, 2017) (to be codified at 48 C.F.R. pts. 2, 4, 7, 11, 23, 36, 39, 42, 52).
- Alternatively, DoDI 4715.19, Use of Open-Air Burn Pits in Contingency Operations, could be modified to require LCCA prior to contracting for FOB waste disposal. This would not carry the same preference for sustainable acquisition, but the LCCA process would likely still yield a W2E solution.
- See FAR 1.102-4.
- See supra Part IV.B.
- See SIGAR Inspection 13-8, supra note 220, at intro.
- See sources cited supra note 243.
- SIGAR Report, supra note 120, at 12.