This initiative is authorized by and responsive to multiple mandates applicable to federal agencies for preventing pollution, reducing procurement of hazardous substances and minimizing generation of wastes.
Federal Statutes. A large array of statutes, regulations, Executive Orders, HHS and NIH policies and plans regulate the use and disposal of hazardous and polluting chemicals. Until recently, fewer mandates governed procurement of these substances. Among these was the Resource Conservation and Recovery Act of 1976 (RCRA), which set an objective requiring minimization of hazardous wastes by several methods including process substitution. In 1984, the Hazardous and Solid Waste Amendments (HSWA) to RCRA focused more on minimization and required generators to certify that they had a program in place to reduce the volume, quantity and toxicity of the wastes they generated. In 1990, passage of the Pollution Prevention Act expanded the nation's waste prevention policy beyond a RCRA-only framework to minimizing or eliminating toxic releases to all environmental media and natural resources. It also set a national policy that waste should be prevented or reduced at its source whenever feasible. Reducing or eliminating waste by avoiding or reducing procurement of products and services that emit pollutants or generate hazardous wastes is an effective best practice for source reduction and meets the intent of these laws.
Executive Orders. Successive presidential Executive Orders over the last several years have also been issued requiring federal agencies to reduce wastes and emissions by implementing pollution prevention measures. Section 2(e) of Executive Order 13423 of January 24, 2007, titled Strengthening Federal Environmental, Energy, and Transportation Management set toxic chemical and hazardous substance release and use reduction goals and required more widespread use of Environmental Management Systems (EMS) as the framework in which to manage and continually improve these sustainability practices.
Executive Order 13514 of October 5, 2009 titled Federal Agency Leadership in Environmental, Energy, and Economic Performance was the most recent environmental order affecting federal agency procurement. Among its many provisions were new requirements that are authorized and will implemented by this initiative:
· Reduction and minimization of the quantity of toxic and hazardous chemicals and materials acquired, used, or disposed of;
· Increasing agency use of acceptable alternative chemicals and processes in keeping with the agency’s procurement policies; and decreasing agency use of chemicals where such decrease will assist the agency in achieving greenhouse gas emission reduction targets;
· Chemical inventory reporting in accordance with the requirements of sections 301 through 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. 11001 et seq.); and
· Requirements that 95% of all new contract actions, including task and delivery orders meet sustainable acquisition requirements, including non-toxic or less toxic alternatives where such products and services meet agency performance requirements.
Federal Acquisition Regulation Implementing E.O. 13514. On May 31, 2011 DoD, GSA, and NASA issued an Interim Rule[1] amending the Federal Acquisition Regulation (FAR) to implement Executive Order 13514 including requirements for acquisition of non-toxic products or less toxic alternatives, and contractor compliance with agency Environmental Management Systems.
HHS Policies and Plans. Several Department of Health and Human Services (HHS) and NIH plans and policies set requirements, goals and have provided guidance on reducing procurement of products containing chemicals referred to here as Substances of Concern. Examples include the HHS Sustainable Building Implementation Plan of December 2008,[10] Affirmative Procurement Plan adopted in October 2010[11] and the 2011 HHS Strategic Sustainability Performance Plan[12].
State and Local Regulations. Many states and local governments have promulgated regulations restricting or prohibiting the sale or purchasing of specific substances and products containing them to control or prevent pollution. Under the provisions of E.O. 12088 and the Federal Facilities Compliance Act of 1992 federal purchasers located in these jurisdictions may be subject to these regulations, particularly if they were adopted to control hazardous or solid waste.
NIH Delegation of Authority. Under the NIH Director’s Delegation of Authority 19, effective June 11, 2001 the Associate Director for Research Facilities Development and Operations (ORF) administers, interprets and oversees the applicable environmental laws, Executive Orders and regulations for the NIH. The Division of Environmental Protection (DEP) is a division of the ORF. The NIH Policy Manual 3032 also gives the Division overall responsibility for waste management activities at NIH facilities including assisting the NIH Institutes and Centers (ICs) in meeting requirements for affirmative procurement of products and services that maximize environmental performance and minimize generation of wastes.