BNUMBER:  B-279250 
DATE:  May 26, 1998
TITLE: Red River Service Corporation, B-279250, May 26, 1998
**********************************************************************

Matter of:Red River Service Corporation 

File:     B-279250

Date:May 26, 1998

Theodore M. Bailey, Esq., and Jonathan M. Bailey, Esq., for the 
protester.
Lis B. Young, Esq., George N. Brezna, Esq., and Charles E. Chambers, 
Esq., Department of the Navy, for the agency.
Lisa K. Friedman, Esq., and John Michaud, Esq., for the Environmental 
Protection Agency. 
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Solicitation for solid waste collection and disposal services for Camp 
Pendleton, San Diego County, California, properly included a provision 
requiring that the successful contractor comply with a San Diego 
County ordinance; prior General Accounting Office decisions stating 
that major federal facilities are exempt from such ordinances will not 
be followed. 

DECISION

Red River Service Corporation protests the terms of invitation for 
bids (IFB) No. N68711-97-B-6401, issued by the Department of the Navy, 
for solid waste collection and disposal services for Camp Pendleton, 
San Diego County, California. 

We deny the protest.

The IFB provides for the award of a fixed-price, indefinite-quantity 
contract for a base period of 1 year with four 1-year options.  The 
successful contractor will be required to provide solid waste 
collection and disposal services for Camp Pendleton.  Camp Pendleton 
is located in an unincorporated area of San Diego County, and includes 
approximately 5,784 residential housing units and numerous commercial 
buildings.  The IFB, as amended, states:

     As required by the County of San Diego's Ordinance Number 8790, 
     award of this solicitation is limited only to those contractors 
     who are eligible to, or currently, have a non-exclusive solid 
     waste management agreement with the County of San Diego.[1]

Red River argues that the requirement that the successful contractor 
have a solid waste management agreement with San Diego County unduly 
restricts competition and is unnecessary because, consistent with 
certain decisions of our Office, Camp Pendleton is a "major federal 
facility" and as such is not required to comply with local 
requirements respecting the collection and disposal of solid waste. 

In preparing for the procurement of supplies or services, the 
procuring agency must specify its needs and solicit bids or proposals 
in a manner designed to achieve full and open competition.  10 U.S.C.  sec.  
2305(a)(1)(A)(i) (1994).  A solicitation may include restrictive 
provisions only to the extent necessary to satisfy the needs of the 
agency or as otherwise authorized by law.  10 U.S.C.  sec.  
2305(a)(1)(B)(ii) (1994). 

The agency explains that it interprets section 6001 of the Resource 
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C.  sec.  6961 (1994), 
as requiring that it comply with San Diego County's local ordinances 
in obtaining solid waste collection and disposal services.  Section 
6001 of RCRA, 42 U.S.C.  sec.  6961(a) (1994), provides in pertinent part 
as follows: 

     Each department, agency and instrumentality of the executive, 
     legislative, and judicial branches of the Federal Government . . 
     . engaged in any activity resulting, or which may result, in the 
     disposal or management of solid waste or hazardous waste shall be 
     subject to, and comply with, all Federal, State, interstate, and 
     local requirements, both substantive and procedural . . . 
     respecting control and abatement of solid waste or hazardous 
     waste disposal and management in the same manner, and to the same 
     extent, as any person is subject to such requirements, including 
     the payment of reasonable service charges.  

Our Office first considered the effect of 42 U.S.C.  sec.  6961 on 
procurements by federal agencies for waste disposal services in 
Monterey City Disposal Serv., Inc., B-218624, B-218880, Sept. 3, 1985, 
85-2 CPD  para.  261, at the request of the United States District Court for 
the Northern District of California.  In Monterey, we concluded that 
the Navy Postgraduate School and the Army Presidio of Monterey, 
federal facilities located within the city limits of Monterey, 
California, were required by 42 U.S.C.  sec.  6961 to comply with a city 
requirement that all inhabitants of the city have their solid waste 
collected by the city's exclusive franchisee.[2]  In reaching this 
conclusion, we noted that it was clear from the legislative history of 
42 U.S.C.  sec.  6961 that its purpose was to require federal agencies to 
provide leadership in dealing with solid and hazardous waste disposal 
problems by having them comply not only with federal controls on the 
disposal of waste, but also with state and local controls as if they 
were private citizens.[3]  Monterey City Disposal Serv., Inc., supra, 
at 4.

Our Office next substantively considered the effect of 42 U.S.C.  sec.  
6961 on procurements by federal agencies for waste disposal services 
in Solano Garbage Co., B-225397, B-225398, Feb. 5, 1987, 87-1 CPD  para.  
125, recon. denied, B-225397.2, B-225398.2, June 5, 1987, 87-1 CPD  para.  
571, which presented the issue of whether the protester's possession 
of an exclusive franchise to provide waste disposal services within 
the city limits of Fairfield, California, precluded Travis Air Force 
Base (which is located within Fairfield) from issuing a competitive 
solicitation for such services.  Although we recognized that 42 U.S.C.  sec.  
6961 requires that federal agencies obtain waste disposal services in 
accordance with local government requirements, we agreed with the 
procuring agency that Travis Air Force Base "should be treated as 
though it is a separate municipality that cannot be required by 
Fairfield to use that city's exclusive franchisee for refuse 
collection."  Solano Garbage Co., supra, at 6.  We relied primarily on 
40 C.F.R.  sec.  255.33 (1986) in reaching this conclusion.[4]  That 
regulation, issued by the Environmental Protection Agency (EPA) and 
implementing certain aspects of RCRA, provides as follows: 

     Major Federal facilities and Native American Reservations should 
     be treated for the purposes of these guidelines as though they 
     are incorporated municipalities, and the facility director or 
     administrator should be considered the same as a locally elected 
     official.

We determined that 40 C.F.R.  sec.  255.33 created an exception to the RCRA 
requirement set forth at 42 U.S.C.  sec.  6961, finding that the regulation

     evidences an intent that "major federal facilities" be considered 
     "as though they are incorporated municipalities" for planning 
     purposes under RCRA, which includes planning for the disposal of 
     municipal solid waste.  

Solano Garbage Co., supra, at 6.  That is, we agreed with the 
procuring agency that Travis Air Force Base, as a major federal 
facility by virtue of its size and function (10,000 military 
inhabitants located on 5,200 acres owned by the United States, and 
occupying hundreds of buildings, workshops and storage facilities, all 
surrounded by a chain-link fence), was to be afforded the same status 
as a municipality under the California Solid Waste Management Plan, 
and could provide for its own refuse collection services.[5]  Id.
    
Our Office subsequently considered the "major federal facilities" 
exception in four more protests.  We found in one of the protests that 
the installation at issue was not, by virtue of its size and function, 
a major federal facility, and thus was required to use the city's 
exclusive franchise for refuse collection and transportation.  Oakland 
Scavenger Co., B-236685, Dec. 19, 1989, 89-2 CPD  para.  565 (Coast Guard 
Island, Alameda, California).  In each of the remaining three 
protests, we determined that the installation at issue was a major 
federal facility and entitled to contract for its own refuse 
collection services, and thus was not subject to the waste disposal 
arrangement requirements of the local municipality or county.  Waste 
Management of N. Am., Inc., B-241067, Jan. 18, 1991, 91-1 CPD  para.  59 (El 
Toro Marine Corps Air Station, Orange County, California); Oakland 
Scavenger Co., B-241577, B-241584, Feb. 13, 1991, 91-1 CPD  para. 166 
(Alameda Naval Air Station, Alameda, California); Concord Disposal, 
Inc., B-246441.2, July 15, 1992, 92-2 CPD  para.  24 (Naval Weapons Station, 
Concord, California). 

The protester in Concord Disposal, the most recent decision of our 
Office in this area, challenged, among other things, the validity of 
the major federal facilities exception first set forth in Solano 
Garbage Co., supra.  In support of this challenge, the protester 
argued that EPA was without statutory authority to issue a regulation 
exempting major federal facilities from the requirements 42 U.S.C.  sec.  
6961, and pointed out that its view was consistent with that of the 
United States District Court of the Eastern District of California, as 
set forth in Solano Garbage Co. v. Cheney, 779 F. Supp. 477 (E.D.Cal 
1991).

During the pendency of the Concord Disposal protest, our Office 
requested EPA's opinion regarding the protester's challenge to the 
propriety of the major federal facilities exemption.  EPA advised our 
Office that "it would be inappropriate to provide such an opinion, as 
this is a matter on which the Federal government is currently involved 
in litigation."  Concord Disposal, Inc., supra, at 5.  The litigation 
referred to was the appeal of Solano Garbage Co. v. Cheney, then 
pending at the United States Court of Appeals for the Ninth 
Circuit.[6]  In light of EPA's position that it would not comment and 
because the validity of the exemption was squarely before the Ninth 
Circuit, we declined to revisit the issue of the propriety of the 
major federal facilities exception in Concord Disposal.[7]

As detailed below, we now conclude that 40 C.F.R  sec.  255.33 does not 
exempt major federal facilities from the general requirement that 
federal installations comply with applicable local requirements and 
arrangements for solid waste collection and disposal.  In reaching 
this conclusion, we give considerable weight to EPA's views on the 
matter, which were detailed in a letter filed with our Office and 
provided to the parties for comment on May 4, 1998.  We are required 
to give deference to EPA's reasonable interpretation of its 
regulations.  Israel Aircraft Indus., Ltd.--Recon., B-258229.2, July 
26, 1995, 95-2 CPD  para.  46 at 5; see Udall v. Tallman, 380 U.S. 1, 16-17 
(1964).

In accordance with section 4002 of RCRA, 42 U.S.C.  sec.  6942 (1994), EPA 
was required to "publish [by regulation] guidelines for the 
identification of those areas which have common solid waste management 
problems and are appropriate units for planning regional solid waste 
management services." 42 U.S.C.  sec.  6942(a).  EPA explains that 40 
C.F.R. Part 255 constitutes the guidelines for identifying appropriate 
regions for waste management planning purposes required by section 
4002(a) of RCRA, 42 U.S.C.  sec.  6942(a).  These guidelines provide that 
the preliminary identification of regional boundaries should be made 
by the governor of the respective State after consultation with local 
government officials and/or entities.  40 C.F.R.  sec.  255.20 and 255.21.  
The local government officials and/or entities are to be notified of, 
and allowed to participate in, the process of identifying the 
appropriate state agencies to be responsible for the solid waste 
management plan and its implementation, and invited to a public 
hearing should one be needed.  40 C.F.R.  sec.  255.23.   

EPA explains that 40 C.F.R.  sec.  255.33 equated "'major federal 
facilities' . . . with 'incorporated municipalities' to ensure that 
these potentially large areas of a State are included in the 
identification of solid waste management planning regions."  The 
agency adds that, because the guidelines set forth in Part 255 
identify certain roles for locally elected officials, the provision in 
40 C.F.R.  sec.  255.33 that "the facility director or administrator should 
be considered the same as a locally elected official" was "intended to 
allow the director of a federal facility . . . to fully participate in 
regional solid waste planning and implementation in the same manner as 
local elected officials."  The agency points out that its intentions 
are confirmed by the terms of 40 C.F.R.  sec.  255.33, which provide that 
major federal facilities are to be treated as incorporated 
municipalities only "for the purposes of these guidelines."  EPA 
concludes that 40 C.F.R.  sec.  255.33 "does not . . . go further to exempt 
federal facilities from local solid waste requirements." 

EPA's view is consistent with that expressed in Solano Garbage Co. v. 
Cheney, supra.  In that decision, the district court took issue with 
our prior reading of 40 C.F.R.  sec.  255.33, and concluded, based upon its 
examination of the statutory language and legislative history of 42 
U.S.C.  sec.  6961 and RCRA as a whole, as well as 40 C.F.R.  sec.  255.33, that 
40 C.F.R.  sec.  255.33 did not provide for a major federal facilities 
exemption to the requirement that federal installations comply with 
local requirements and arrangements for solid waste collection and 
disposal.  The court noted that the legislative history of RCRA showed 
that Congress was aware of a history of controversy over the extent of 
federal compliance with local requirements mandated by section 118 of 
the Clean Air Act, 42 U.S.C.  sec.  7418, and section 313 of the Federal 
Water Pollution Control Act, 33 U.S.C.  sec.  1323, and that "the 
legislative reaction to this history of controversy 'was to subject 
federal installations to state environmental control.'"  Solano 
Garbage Co. v. Cheney, 779 F. Supp. at 487.  The court concluded that 
"[a]gainst this history . . . Congress did not intend any exemption to 
local requirements beyond those specifically described in the 
statute," and noted that consistent with this, the statute provides no 
indication that major federal facilities should be exempted from local 
requirements.  Id.  

Turning to 40 C.F.R.  sec.  255.33, the court noted that the scope and 
purpose of Part 255 is defined in 40 C.F.R.  sec.  255.1(a) as follows:

     These guidelines are applicable to policies, procedures, and 
     criteria for the identification of those areas which have common 
     solid waste management problems and which are appropriate units 
     for planning regional solid waste management services pursuant to 
     section 4002(a) of the Solid Waste Disposal Act, and amended by 
     [RCRA] (the Act).[8]  The guidelines also define and guide the 
     identification of which functions will be carried out by which 
     agencies pursuant to section 4006 of the Act.[9]

The court held:

     By its plain language, 40 C.F.R.  sec.  255.33 requires "major federal 
     facilities" to be treated as local municipalities for purposes of 
     the guidelines, i.e., for purposes of the regulations in Part 
     255, which were intended to guide the states in developing state 
     plans pursuant to  sec.  4006.  The regulation does not require the 
     states to treat major federal facilities as separate 
     municipalities for all purposes.  

Solano Garbage Co. v. Cheney, 779 F. Supp. at 488.  The court added 
that reading the regulation in the manner suggested by our Office 
would conflict with the congressional concern for unification of waste 
disposal systems by effectively multiplying rather than unifying the 
number of jurisdictions with such systems.  779 F. Supp. at 488-89.  
The court also noted that, because 42 U.S.C.  sec.  6961 did not provide 
for a "major federal facilities" exemption, reading 42 C.F.R.  sec.  255.33 
as creating one would place the EPA in the position of having issued a 
regulation which exceeded its statutory authority.  779 F. Supp. at 
489.

We are persuaded by EPA's position and that expressed in Solano 
Garbage Co. v. Cheney, and now agree that 40 C.F.R.  sec.  255.33 does not 
exempt major federal facilities from the general requirement that 
federal installations are required to comply with local arrangements 
for solid waste collection and disposal.  As noted by the district 
court in Solano Garbage Co. v. Cheney, there is no language in 42 
U.S.C.  sec.  6961 or anywhere else in RCRA, or in RCRA's legislative 
history, indicating that Congress intended that major federal 
facilities be exempt from the general requirement that federal 
installations are required to comply with local arrangements for solid 
waste collection and disposal.  With regard to 40 C.F.R.  sec.  255.33, we 
agree with EPA that the context of the regulation makes it clear that 
the regulation is only meant to ensure that major federal facilities 
are considered in the identification of solid waste management regions 
and that the facilities' administrators are included in the 
decision-making process, and was not intended to exempt federal 
facilities from local requirements regarding solid waste collection 
and disposal.  In this regard, we note that there is no indication in 
the explanatory comments in the Federal Register notice setting forth 
the Part 255 regulations that 40 C.F.R.  sec.  255.33 was intended to 
exempt major federal facilities from the general requirements of 
section 6001 of RCRA.  See Part 255--Identification of Regions and 
Agencies for Solid Waste Management, 42 Fed. Reg. 24,925-927 
(1977).[10]  

Accordingly, we will no longer follow our prior decisions stating that 
major federal facilities are exempt from the general RCRA requirement 
that federal agencies comply with local solid waste management 
regulations.  The agency here acted properly in including in the 
solicitation the clause providing that the successful contractor 
comply with the San Diego County ordinance, by requiring that the 
contractor have or be able to obtain a solid waste management 
agreement with the County of San Diego.

The protest is denied.

Comptroller General
of the United States

1. Ordinance 8790 provides in part that:

            it is unlawful for any person to engage in the business of 
            collection of solid waste kept, accumulated or produced in 
            the unincorporated County unless a Solid Waste Management 
            Agreement has been entered into and is in full force and 
            effect.

San Diego County, Cal., Ordinance 8790,  sec.  68.530 (Apr. 29, 1997)  

According to the record, 25 firms currently have solid waste 
management agreements with San Diego County.  County of San Diego, 
Solid Waste Management Agreements (Feb. 20, 1998).

2. We noted in Monterey that, while the Competition in Contracting Act 
of 1984 (CICA) generally requires competition in government 
contracting, CICA recognizes an exception where a statute expressly 
authorizes or requires that a procurement be made from a specified 
source.  10 U.S.C.A.  sec.  2304(c)(5) (West Supp. 1998).  As indicated 
above, we found the exception applicable, and concluded that the 
protested federal solicitations should be canceled and the services of 
the city's franchisee used instead.  Monterey City Disposal Serv., 
Inc., supra, at 4.

3. Shortly after Monterey was issued, the court, consistent with our 
opinion, entered judgment for the plaintiffs.  Parola v. Weinberger, 
No. C-85-20303-WAI (N.D. Cal. Sept. 12, 1986).  This decision was 
appealed to the United States Court of Appeals for the Ninth Circuit 
which reviewed de novo the district court's interpretation of the 
applicable statutes and affirmed the lower court decision holding that 
federal installations were required to comply with local arrangements 
for solid waste collection and disposal, including garbage collection 
franchises.  Parola v. Weinberger, 848 F.2d 956 (9th Cir. 1988). 

4. This regulation has remained unchanged from the date of our prior 
decision.

5. Under the California Solid Waste Management Plan, local governments 
(city and county) are responsible for aspects of solid waste handling 
that are of a local concern.  This includes such aspects as frequency 
and means of collection, level of services, charges and fees, and 
whether collection services are provided by means of an exclusive or 
non-exclusive franchise.  Cal. Public Resources Code  sec.  40059 (West 
1996). 

6. The Navy has advised our Office that the appeal of the district 
court's decision in Solano Garbage Co. v. Cheney, supra, was withdrawn 
by the government on December 12, 1992, several months after we issued 
our decision in the Concord Disposal protest.  

7. We also noted that two other federal district courts had previously 
issued opinions which conflicted with Solano Garbage Co. v. Cheney.  
See Carmel Marina Corp. v. Carlucci, No. C-87-20789-WAI (N.D. Cal. 
Apr. 20, 1988); Waste Management of N. Am., Inc. v. Weinberger, No. 
CV-87-4329-DT (C.D. Cal. Sept. 28, 1987), aff'd on other grounds, 862 
F.2d 1393 (9th Cir. 1988).  

8. Section 4002(a) of RCRA, 42 U.S.C.  sec.  6942(a), provides that EPA 
"shall by regulation publish guidelines for the identification of 
those areas which have common solid waste management problems and are 
appropriate units for planning regional solid waste management 
services."

9. Section 4006 of RCRA, 42 U.S.C.  sec.  6946(a), provides in part that:

            the Governor of each state, after consultation with local 
            elected officials, shall promulgate regulations based on 
            [EPA's] guidelines identifying the boundaries of each area 
            within the State which . . . is appropriate for carrying 
            out regional solid waste management.  

Section 4006(b) of RCRA, 42 U.S.C.  sec.  6946(b), adds in relevant part 
that:

            the State, together with appropriate elected officials of 
            general purpose units of local government, shall jointly 
            (A) identify an agency to develop the State plan and 
            identify one or more agencies to implement such plan, and 
            (B) identify which solid waste management activities will, 
            under such State plan, be planned for and carried out by 
            the State and which such management activities will, under 
            such State plan, be planned for and carried out by a 
            regional or local authority or a combination of regional 
            or local and State authorities.   

10. The protester similarly argues that 40 C.F.R.  sec.  255.33 requires 
that Camp Pendleton be construed as an incorporated municipality 
because it is a major federal facility, such that the San Diego County 
ordinance is applicable, inasmuch as it only applies to unincorporated 
areas of the county.  This argument also fails because the EPA 
regulation requires treatment of major federal facilities as 
incorporated municipalities solely for the limited purposes discussed 
above.