Monday
May 1, 1995
Part V
Environmental
Protection Agency
40 CFR Part 247
Comprehensive Guideline for
Procurement of Products Containing
Recovered Materials; Final Rule
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21370 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 247
IFRL-5198-7]
RIN 2050-AE16
Comprehensive Guideline for
Procurement of Products Containing
Recovered Materials
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: Today, the Environmental
Protection Agency (EPA) is
promulgating a final regulation
designating the following 19 items that
are or can be made with recovered
materials: Engine coolants, structural
fiberboard, laminated paperboard,
carpet, floor tile, patio blocks, cement
and concrete containing ground
granulated blast furnace slag, traffic
cones, traffic barricades, playground
surfaces, running tracks, hydraulic
mulch, yard trimmings compost, office
recycling containers, office waste
receptacles, plastic desktop accessories,
toner cartridges, binders, and plastic
trash bags. The CPG also consolidates
the designations from EPA's five earlier
procurement guidelines, which were
previously codified at 40 CFR parts 248,
249, 250, 252, and 253. These five items,
in addition to the 19 new items
designated today, will be incorporated
into a new Comprehensive Procurement
Guideline codified at 40 CFR part 247.
This regulation is issued under the
authority of section 6002(e) of the
Resource Conservation and Recovery
Act (RCRA). This action will promote
recycling by using government
purchasing to expand markets for
recovered materials. RCRA section 6002
requires EPA to designate items that are
or can be produced with recovered
materials and to recommend practices
for the procurement of designated items
by procuring agencies. Once EPA
designates an item, RCRA section 6002
requires that any procuring agency,
when using appropriated Federal funds
to procure that item, shall purchase it
with the highest percentage of recovered
materials practicable.
Executive Order 12873 sets forth
procedures for EPA to follow in
implementing RCRA section 6002(e).
Specifically, it calls for EPA to designate
section 6002 items in a Comprehensive
Procurement Guideline (CPG) and to
provide recommended procurement
practices in a related Recovered
Materials Advisory Notice (RMAN).
For the items designated in today's
rule, EPA is issuing a Recovered
Materials Advisory Notice (RMAN),
which is published in the notice section
of today's Federal Register. This RMAN
includes EPA's consolidated
recommendations to procuring agencies
for meeting their section 6002
obligations with respect to the new and
existing designated items. In the case of
most designated items, the RMAN
contains recommended minimum
recovered materials content levels. For
other items, an alternative approach is
recommended. In addition, the RMAN
revises the recommended recovered
materials content levels originally
contained in the building insulation
guideline issued in 1988. The purpose
of the recommendations contained in
the RMAN is to assist procuring
agencies in fulfilling their obligations
under RCRA section 6002 and Executive
Order 12873 to purchase designated
items composed of the highest!
percentages of recovered materials
practicable.
EFFECTIVE DATE: The Comprehensive
Procurement Guideline is effective on
May 1,1996.
ADDRESSES: The public record for this
rulemaking (Docket Number F-95—
PRMF-FFFFF) is located at the
following address: U.S. Environmental
Protection Agency, RCRA Information
Center (RIG), Room M2616, 401 M Street
SW., Washington, DC 20460.
The RIG is open from 9 a.m. to 4 p.m.
Monday through Friday, except for
Federal holidays. To review docket
materials, the public must make an
appointment by calling (202) 260-9327.
Materials may be copied for $0.15 per
page.
FOR FURTHER INFORMATION CONTACT:
"Comprehensive Procurement
Guideline—Supporting Analyses" is the
primary supporting document for the
final Comprehensive Procurement
Guideline. Today's Federal Register
notice and the supporting document
will be available in electronic format on
the Internet System through the EPA
Public Access Server at gopher.epa.gov.
For a paper copy of the Federal Register
notice or "Comprehensive Procurement
Guideline—Supporting Analyses,"
please contact the RCRA Hotline at 800-
424-9346, or, in the Washington, DC
metropolitan area, (703) 412-9810.
Paper copies also are available in the
RCRA Docket at the address listed in the
previous section.
For general information, contact the
RCRA Hotline. For technical
information on individual item
designations, contact the following EPA
staff: Yard trimmings compost, Plastic
pipe and fittings, Geotextiles, Carpet,
Floor tile and Patio blocks, Playground
surfaces and Running tracks, Temporary
traffic control devices—Terry Grist,
(703) 308-7257; Engine coolant—Tracy
Bone, (703) 308-7259; Cement and
concrete containing ground granulated
blast furnace slag and Hydraulic
mulch—Dana Arnold, (703) 308-7279;
Structural fiberboard and Laminated
paperboard, Office recycling containers
and Office waste receptacles, Plastic
desktop accessories, Toner cartridges,
Binders, and Plastic trash bags—Beverly
Goldblatt, (703) 308-7278. For all other
technical information, contact Beverly
Goldblatt at (703) 308-7278, or Terry
Grist at (703) 308-7257.
Accessing Internet
1. Through Gopher: Go to:
gopher.epa.gov
From the main menu, choose "EPA
Offices and Regions". Next, choose
"Office of Solid Waste and Emergency
Response (OSWER)". Next, choose
"Office of Solid Waste". Then, choose
"Non-Hazardous Waste—RCRA Subtitle
D". Finally, choose "Procurement/
CPG".
2. Through FTP: Go to: ftp.epa.gov
Login: anonymous
Password: Your Internet Address
Files are located in directories/pub/
gopher. All OSW files are in directories
beginning with "OSW".
3. Through MOSAIC: Go to: http://
www.epa.gov
Choose the EPA Public Access
Gopher. From the main (Gopher) menu,
choose "EPA Offices and Regions".
Next, choose "Office of Solid Waste and
Emergency Response (OSWER)." Next,
choose "Office of Solid Waste". Then,
choose "Non-Hazardous Waste—RCRA
Subtitle D". Finally, choose
"Procurement/CPG".
4. Through dial-up access:
Dial 919-558-0335. Choose EPA
Public Access Gopher. From the main
(Gopher) menu, choose "EPA Offices
and Regions". Next, choose "Office of
Solid Waste and Emergency Response
(OSWER)". Next, choose "Office of
Solid Waste". Then, choose "Non-
Hazardous Waste—RCRA Subtitle D".
Finally, choose "Procurement/CPG".
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
A. Purpose of the Procurement Guidelines
B. RCRA Section 6002
C. Executive Order 12873
D. Other Requirements and Policies
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Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21371
E. Existing Procurement Guidelines
F. Summary of Proposed Rule
III. Comment Summary and Agency's
Response
A. General Comments
1. Designation of Material Specific Items
2. Purpose, Scope, and Applicability
3. Definitions
4. Affirmative Procurement Program
B. Items Proposed for Designation
1. Engine Coolants
2. Plastic Pipe and Fittings
3. Geotextiles
4. Cement and Concrete Containing
Ground Granulated Blast Furnace Slag
5. Carpet
6. Floor Tiles
7. Yard Trimmings Compost
8. Office Recycling Containers and Waste
Receptacles
9. Toner Cartridges
10. Binders
C. Other Items Considered for Designation
D. Public Participation in Future Updates to
the CPG
IV. Availability of Designated Items
V. Economic Impact Analysis
A. Requirements of Executive Order 12866
B. Unfunded Mandates Reform Act of 1995
and Consultation with State, Local, and
Tribal Governments
C. Summary of Benefits
D. Summary of Costs
E. Product Cost
F. Regulatory Flexibility Analysis
VI. Supporting Information
Appendix I
I. Authority
This guideline is promulgated under
the authority of sections 2002(a) and
6002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation
and Recovery Act of 1976, as amended,
42 U.S.C. 6912(a) and 6962, and section
502 of Executive Order 12873 (58 FR
54911; October 22,1993).
II. Background
RCRA section 6002 and Executive
Order 12873 set forth requirements for
the procurement of products containing
recovered materials and the issuance of
procurement guidelines. The
requirements of RCRA section 6002
apply to "procuring agencies," as
defined in RCRA section 1004;
Executive Order requirements apply
only to Federal "Executive agencies," as
defined in section 202 of Executive
Order 12873. Under RCRA section
1004(17), a "procuring agency" means
any "Federal agency, or any State
agency or agency of a political
subdivision of a State which is using
appropriated Federal funds for such
procurement, or any person contracting
with any such agency with respect to
work performed under such contract."
A. Purpose of the Procurement
Guidelines
In RCRA, Congress acknowledged the
importance of recycling in helping to
manage the nation's solid waste and
recognized that recycling is not merely
the collection of materials, but includes
the manufacture of products with these
materials and the purchase of recycled
content products by consumers. RCRA
section 6002 established the
government's buy-recycled program,
which uses Federal purchasing power to
stimulate the demand for products made
with recovered materials. The statute
does this by requiring EPA to issue
guidelines to be used by government
when procuring recycled products. The
guidelines are used not only by Federal
agencies but also by state and local
agencies and their contractors. Many
state and local agencies have urged EPA
to designate additional items to increase
markets for recovered materials.
President Clinton's Executive Order
12873 further bolsters the Federal
government's commitment to buy
products containing recovered materials
by "streamlining" the process used by
EPA in fulfilling its obligation under
RCRA section 6002 to designate items
that are or can be made with recovered
materials.
Executive Order 12873 recognizes that
the nation's interest is served when the
Federal government makes more
efficient use of natural resources by
maximizing recycling and preventing
waste wherever possible. The E.O. also
recognizes that the Federal government
should—through cost-effective waste
prevention and recycling activities—
work to conserve disposal capacity, and
serve as a model in this regard for
private and other public institutions.
For many products, the use of recovered
materials in manufacturing can result in
significantly lower energy and material
input costs than when virgin raw
materials are used. Use of recovered
materials may reduce the generation and
release of air and water pollutants often
associated with manufacturing
(including air emissions that contribute
to the level of "greenhouse gases" and
ozone depletion). Using recovered
materials also reduces the
environmental impacts of mining,
harvesting, and other extraction of
natural resources, while conserving
non-renewable resources for future use.
Recycling can also divert large amounts
of materials from landfills. This reduces
the need to expand existing or site new
disposal facilities, allowing local
officials to devote more attention to
health, education, and safety issues.
Exeicutive Order 12873 also points out
that the use of recycled content
products by the Federal government can
spur private sector development of new
technologies and use of such products,
thereby creating business and
employment opportunities that enhance
local, regional, and national economies.
Technological innovation associated
with 'the use of recovered materials can
translate into economic growth and
make American industry more
competitive in the global economy.
Both RCRA and the E.O. recognize the
interdependence between buying
recycled content products and the
success of recycling. For recycling to
occur;, industry must use recovered
materials as feedstock for the
manufacture of new products. Despite
the environmental and economic
efficiencies that can be realized by using
recovered materials as feedstock, a
manufacturer's primary responsibility
remains to produce items that meet the
demands of the consumer. The Federal
government, through its purchasing
decisions as a consumer, can play a key
role in influencing manufacturers'
decisions on products made with
recovered materials. By purchasing
products containing recovered materials
pursuant to the guidelines established
under RCRA and Executive Order
12873, the Federal government and
other procuring agencies have the
opportunity to increase markets for
recovered materials and to contribute to
an increased level of recycling in this
country.
EPA also strongly encourages the
private sector to use these guidelines
when making purchasing decisions.
Private sector purchases of most
designated items far exceed government
purchases. By seeking products made
with recovered materials, the private
sector can further stimulate markets for
recovered materials, reduce the
generation of air and water pollutants
associated with virgin material
extraction and beneficiation, and, in
some instiinces, contribute to reductions
in our nation's energy usage.
B. RCRA Section 6002
RCRA section 6002 requires EPA to
designate items that are or can be made
with recovered materials and to
recommend practices to assist procuring
agencies in purchasing the designated
items,. Once an item is designated by
EPA, procuring agencies are required to
purchase it composed of the highest
percentage of recovered materials
practicable (and in the case of paper, the
highest percentage of postconsumer
recovered materials), taking into
consideration the limitations set forth in
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21372 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations
section 6002(c)(l) (A) through (C) (i.e.,
competition, price, availability, and
performance). The requirement applies
when the purchase price of the item
exceeds $10,000 or when the total cost
of such items, or of functionally
equivalent items, purchased during the
preceding fiscal year was $10,000 or
more.
Within one year after EPA designates
an item, RCRA section 6002(d)(2)
requires that Federal agencies revise
their specifications to require the use of
recovered materials to the maximum
extent possible without jeopardizing the
intended end-use of the item. Section
6Q02(d)(l) further requires Federal
agencies responsible for drafting or
reviewing specifications to review all of
their product specifications to eliminate
both provisions prohibiting the use of
recovered materials and requirements
specifying the exclusive use of virgin
materials. This revision process should
have been completed by May 8,1986.
Once EPA designates an item,
responsibility for complying with RCRA
section 6002 rests with the procuring
agencies. As noted, after the date
specified in the designation, each
procuring agency must procure
designated items with the highest
recovered materials content practicable.
After the effective date, contracting
officers must require their vendors to
certify that the recovered materials
content of their product meets the
required content level. Furthermore, for
each item designated by EPA, RCRA
section 6002(i) requires each procuring
agency to develop an affirmative
procurement program, which sets forth
the agency's policies and procedures for
implementing the requirements of
RCRA section 6002. The program must
assure that the agency purchases items
composed of recovered materials to the
maximum extent practicable and that
these purchases are made consistent
with applicable provisions of Federal
procurement law. In accordance with
RCRA section 6002(i), the affirmative
Erocurement program must contain at
mst four elements:
(1) A recovered materials preference
program;
(2) An agency promotion program;
(3) A program for requiring vendors to
reasonably estimate, certify, and
verify the recovered materials content
of their products; and
(4) A program to monitor and annually
review the effectiveness of the
affirmative procurement program.
C. Executive Order 12873
Executive Order 12873, entitled
"Federal Acquisition, Recycling, and
Waste Prevention," was signed by
President Clinton on October 20,1993.
The Order establishes a new, two-part
process for EPA to use when developing
and issuing the procurement guidelines
for products containing recovered
materials. The first part, the
Comprehensive Procurement Guideline,
contains EPA's designations of items
that are or can be made with recovered
materials. Because this is an activity
requiring rulemaking, the CPG was
developed using formal notice-and-
comment rulemaking procedures and
will be codified in the Code of Federal
Regulations. Today's final CPG was
developed under the procedures
established in the Executive Order.
The second part, the Recovered
Materials Advisory Notice, provides
recommendations to procuring agencies
on purchasing the items designated in
the CPG. The Executive Order directs
EPA to publish the RMAN in the
Federal Register for public comment.
The RMAN for items designated in
today's CPG appears in the notice
section of today's Federal Register.
A detailed description of the
Executive Order provisions was
included in the preamble to the
proposed CPG (59 FR18858; April 20,
1994).
D. Other Requirements and Policies
There are several other policies and
procedures that may affect the
procurement of products containing
recovered materials by Federal and
other government agencies. For the
convenience of the reader, in Appendix
I of this preamble, EPA has briefly
summarized requirements and policies
set forth in the Federal Acquisition
Regulation, OFPP Policy Letter 92-4,
and OMB Circulars A-102, A-119, and
A-131.
E. Existing Procurement Guidelines
Between 1983 and 1989, EPA issued
five guidelines for the procurement of
products containing recovered
materials. The guidelines issued prior to
today's effort are listed in the following
table:
TABLE 1.—EPA GUIDELINES FOR PRO-
CUREMENT OF PRODUCTS CONTAIN-
ING RECOVERED MATERIALS
Guideline
Cement and
Concrete
Containing Fly
Ash.
Paper and
Paper Prod-
ucts.
40CFR
Part
249
250
Date
(FR)
January 28,
1983 (48 FR
4230).
June 22, 1988
(53 FR
23546).
TABLE 1 .—EPA GUIDELINES FOR PRO-
CUREMENT OF PRODUCTS CONTAIN-
ING RECOVERED MATERIALS—Con-
tinued
Guideline
Re-Refined Lu-
bricating Oils.
Retread Tires ...
Building Insula-
tion.
40CFR
Part
252
253
248
Date
(FR)
June 30, 1988
(53 FR
24699).
November 17,
1988 (53 FR
46558).
February 17,
1989 (54 FR
7327).
F. Summary of Proposed Rule
On April 20,1994, EPA proposed a
Comprehensive Procurement Guideline
that, when finalized, would designate
21 items that are or can be made with
recovered materials. The items were
arranged into product categories as
shown below: .
Vehicular Products
Reclaimed engine coolants
Construction Products
Structural fiberboard
Laminated paperboard
Plastic pipe and fittings
Geotextiles
Cement/concrete containing ground
granulated blast furnace slag
Carpet
Floor tiles
Patio blocks
Transportation Products
Traffic barricades
Traffic cones
Park and Recreation Products
Playground Surfaces
Running Tracks
Landscaping Products
Hydraulic Mulch
Yard Trimmings Compost
Non-Paper Office Products
Office recycling containers
Office waste receptacles
Plastic desktop accessories
Remanufactured toner cartridges
Binders
Plastic Trash Bags
In addition to proposing to designate
the 21 new items, EPA (1) identified
items for potential future designation,
depending on the receipt of additional
information; (2) identified items deemed
not appropriate for designation at this
time; (3) announced the Agency's
intention to establish a process for the
public to suggest items that could be
added to future updates to the CPG; and
(4) requested comment on how EPA
might be able to increase public
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Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21373
participation in developing future
updates to the CPG.
EPA also proposed to delete the
outdated guidance in 40 CFR part 247,
which pre-dated the 1984 amendments
to the Resource Conservation and
Recovery Act and to consolidate the
existing five procurement guidelines
and new item designations into a new
part 247. The proposed new part 247
consisted of two subparts: Subpart A—
General, which included the general
requirements of RCRA section 6002 and
definitions, and Subpart B—Item
Designations (see 59 FR 18862, April 20,
1994). As explained in the preamble to
the proposed CPG, EPA did not seek
comment on the existing item
designations for paper and paper
products, re-refined lubricating oil,
building insulation, cement and
concrete containing fly ash, or retread
tires.
The legal basis, methodology, and
factual conclusions that formed the
basis of the proposal were described in
substantial detail in the notice of
proposed rulemaking (see 59 FR 18853—
18882).
Interested persons were invited to
participate in the rulemaking by
submitting written comments by June
20, 1994.
III. Comment Summary and Agency's
Response
EPA received submittals from over
300 commenters in response to the
proposed CPG. These commenters
represented various interests, including
Federal agencies, State agencies, local
governments, product manufacturers,
product users, public interest groups,
waste management companies, and
members of Congress. EPA has carefully
considered all of these comments. A
discussion of the major comments
follows.
A. General Comments
1. Designation of Material Specific Items
Comment: One commenter suggested
that EPA designate items in a material
neutral manner. In other words, rather
than designating items made of specific
materials (e.g., "plastic" trash bags),
EPA should simply designate the items
in generic terms (e.g., trash bags).
Response: EPA believes that such an
approach is not appropriate for all
items. Under RCRA section 6002(c)(l),
each procuring agency which procures
"any items" designated by EPA is
required to procure such items
composed of the highest percentage of
recovered materials practicable. As a
result, if EPA designates a generic
category of items, procuring agencies are
obligated to try to purchase all items
within that category containing
recovered materials. For example, when
EPA designated "paper and paper
products" or "building insulation
products," procuring agencies were
obligated to purchase all types of paper
products or building insulation
containing recovered materials, even
though EPA did not provide content
recommendations for all products
within these categories. In other
instances, where EPA is not aware that
items manufactured from other types of
materials are made with or could
contain recovered materials, EPA has
limited its designations so as not to
create an unnecessary burden on
agencies to try to purchase an item that
is not available. When EPA learns that
the generic item is being made with
additional recovered materials, EPA will
evaluate the new information and
consider amending the item designation
accordingly.
In implementing this process for the
items listed in the proposed CPG, EPA
sometimes had information on the
availability of a particular item made
with a specific recovered material (e.g.,
plastic), but no information on the
availability of the item made from a
different recovered material or any
indication that it is possible to make the
item with a different recovered material.
In these instances, EPA concluded that
it was appropriate to include the
specific material in the item designation
in order to provide vital information to
procuring agencies as they seek to fulfill
their obligations to purchase designated
items composed of the highest
percentage of recovered materials
practicable. This information enables
the agencies to focus their efforts on
products that are currently available for
purchase, reducing their administrative
burden. EPA also included information
in the proposed CPG, as well as in the
draft RMAN that accompanied the
proposed CPG, that advised procuring
agencies that EPA is not recommending
the purchase of an item made from one
particular material over a similar item
made from another material. For
example, EPA included the following
statement in the preamble discussion for
plastic desktop accessories (59 FR
18879): "This designation does not
preclude a procuring agency from
purchasing desktop accessories
manufactured from another material,
such as wood. It simply requires that a
procuring agency, when purchasing
plastic desktop accessories, purchase
these accessories made with recovered
materials * * *"
2. Purpose, Scope, and Applicability
Comment: A commenter inquired
about the applicability of RCRA section
6002 to designated items that are leased
rather than purchased by a procuring
agency.
Response: Section 6002 applies to
"any purchase or acquisition" in excess
of $10,000 by a procuring agency. The
Federal Acquisition Regulation (FAR)
defines "acquisition" to include the
acquiring of supplies or services
(including construction) by means of a
lease (48 CFR 2.101). Therefore, RCRA
section 6002 and the procurement
guidelines developed under its
authority apply to a procuring agency's
lease contracts for designated items.
Under the definition of "procuring
agency," lessor contractors are subject to
the section 6002 requirements for work
performed under the lease contract.
Comment: Commenters inquired
when RCRA section 6002 applies to
contractors.
Response: The requirements of RCRA
section 6002 apply to contractors in the
following circumstances. A contractor
must comply with section 6002 with
respect to work under the contract if the
contractor is (1) contracting with a
Federal agency or a State agency which
is using appropriated Federal funds for
a procurement and (2) purchasing or
acquiring a designated item whose
purchase price exceeds $10,000 or the
quan.tity of the item purchased in the
previous year was $10,000 or more.
Under both circumstances, it is
immaterial for purposes of the $10,000
thresihold whether the contractor
purchased or acquired the designated
items as a "procuring agency" (with
respect to work performed under a
contract with a Federal or State agency)
or in its private capacity. All the
purchases of a designated item should
be aggregated in order to determine
whether the $10,000 threshold for
section 6002 applicability is met.
However, the obligations of section 6002
are prospective. The contractor must
deteirmine whether the $10,000
threshold is met only after it is a
"procuring agency." That is, purchases
exceeding the $10,000 threshold in the
year prior to the year in which a
contractor becomes a "procuring
agency" do not trigger section 6002(a)
requirements. Furthermore, while the
contractor is subject to section 6002
requirements once it exceeds the
threshold, the RCRA requirements apply
only with respect to work performed
undeir the contract (i.e, when supplying
the designated item to any State or
Federal agency).
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21374 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations
For example, in Year One, Contractor
X contracts to supply $500 of hydraulic
mulch to a State agency using
appropriated Federal funds to purchase
the hydraulic mulch. Therefore, in Year
One, Contractor X is a "procuring
agency." During Year One, Contractor X
also purchases hydraulic mulch for its
own use and to supply the requirements
of its other customers, with total
purchases of hydraulic mulch exceeding
$10,000. In Year One, while Contractor
X is a procuring agency, Contractor X is
not subject to the section 6002
requirements for hydraulic mulch
supplied to the State agency because the
contract price does not exceed $10,000.
In Year Two, Contractor X is subject to
section 6002 requirements for hydraulic
mulch provided to the State agency for
the procurement regardless of the
amount of the contracted purchase,
because, while a "procuring agency" in
Year One, it purchased in excess of
$10,000 of hydraulic mulch.
In another example, in Year One,
Contractor Y purchases $10,000 of
hydraulic mulch but none was
purchased on behalf of a government
agency using appropriated Federal
funds. In Year One, Contractor Y is not
a procuring agency. In Year Two,
Contractor Y contracts to supply less
than $10,000 of hydraulic mulch to a
State agency using appropriated Federal
funds for the purchase. In Year Two,
Contractor Y is a procuring agency, but
is not subject to section 6002
requirements for its purchases of
hydraulic mulch because it was not a
procuring agency during the previous
year when it acquired in excess of
$10,000 of hydraulic mulch.
3. Definitions
In the proposed CPG, EPA explained
that the definitions found in the five
existing guidelines would be
incorporated into a new part 247 (59 FR
18863, April 20,1994). The new part
247 would include the relevant
definitions found in RCRA, the
definitions of items, and definitions of
terms used in the companion RMAN.
EPA has concluded that it will be easier
for procuring agencies to use the
definitions if they are limited to those
terms used in the CPG. Therefore, in the
final CPG, the definitions section
contains only terms used in the CPG.
4. Affirmative Procurement Program
Comment: Several commenters
expressed concern with the
administrative requirements associated
with individual item designations. In
particular, many commenters objected
to the requirement that procuring
agencies develop affirmative
procurement programs for all designated
items, including items that they may not
purchase or that they are unable to
obtain with recovered materials content.
Response: In the proposed CPG (59 FR
18864, April 20,1994), EPA
recommended that procuring agencies
develop one comprehensive affirmative
procurement program with a structure
that provides for the integration of new
items as they are designated. EPA
believes that developing a single
affirmative procurement program will
substantially reduce procuring agencies'
administrative burdens under RCRA
that result from today's item
designations.
EPA also recommends that if a
procuring agency does not purchase a
specific designated item, it should
simply include a statement in its
preference program to that effect.
Similarly, if a procuring agency is
unable to obtain a particular item for
one or more of the reasons cited in
RCRA section 6002(c)(l), a similar
statement should be included in the
preference program along with the
appropriate justification.
For example, if a state agency
procures cement and concrete using
appropriated Federal funds and has
determined that ground granulated blast
furnace slag is not available in the state
due to high transportation costs, then
that state agency would include the
following or similar statement in its
preference program:
The State currently is unable to use ground
granulated blast furnace slag in cement and
concrete products due to the high
transportation costs of this material.
Therefore, this State has concluded that,
based on RCRA section 6002(c)(l)(C), it is not
required to procure this material.
EPA notes that, in accordance with
RCRA section 6002(i)(2)(D), it is the
procuring agency's responsibility to
monitor and regularly update its
affirmative procurement program.
Should an item that was previously
unobtainable become available, then the
procuring agency should modify its
affirmative procurement program
accordingly.
B. Items Proposed for Designation
No commenters opposed the
designations of the following items:
Structural fiberboard, laminated
paperboard, patio blocks, traffic
barricades, traffic cones, playground
surfaces, running tracks, hydraulic
mulch, plastic desktop accessories, and
plastic trash bags. Therefore, today, EPA
is promulgating these item designations
as proposed. The following subsections
discuss the significant comments
pertaining to the remaining proposed
item designations.
1. Engine Coolants
Comment: Two commenters asked
that EPA clarify that the proposed
designation applies only to engine
coolants used in vehicles and not to
other glycol-based coolants used in
other types of machinery such as
generator motors.
Response: EPA believed that
inclusion of engine coolants in the
Vehicular Products Category clarifies
that the designation is limited to
vehicular engine coolants and does not
apply to other non-vehicular coolants.
However, to remove any ambiguity, EPA
is revising the engine coolant
designation to specify that it applies to
vehicles only.
Comment: Two commenters urged
EPA to limit the designation to
ethylene-glycol based engine coolants
and exclude other types of engine
coolants. These two commenters stated
that propylene glycol is not currently
being reclaimed and that, therefore,
propylene glycol-based engine coolants
do not meet the statutory requirements
for designation. Furthermore, one
commenter noted that U.S. automobile
manufacturers "currently disallow the
use of propylene glycol engine coolants
in their products. Products which are
not ethylene glycol-based fail to meet
the appropriate chemical properties
requirement and are therefore not
qualified for use in American
Automobile Manufacturers Association
members' vehicles."
Response: EPA believes that
propylene glycol-based engine coolants
are not currently being recovered and
processed into reclaimed engine
coolants. However, EPA is unaware of
any technical reason that would prevent
this from occurring. RCRA directs EPA
to "designate those items which are or
can be produced with recovered
materials and whose procurement by
procuring agencies will carry out the
objectives of this section (Section 6002
of RCRA)." Rather than precluding
procuring agencies from purchasing
propylene glycol-based engine coolants
and reclaiming them, EPA concludes
that it is inappropriate to limit the item
designation to ethylene glycol-based
engine coolants only. If propylene
glycol-based engine coolants do not
meet a procuring agency's performance
requirements, the agency need not
purchase them. Thus, EPA has decided
to finalize the engine coolants
designation as proposed.
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2. Plastic Pipe and Fittings
Comment: While one commenter
supported the proposed designation of
plastic pipe and fittings, EPA received
numerous comments expressing
concern about the possible liability and
adverse effects were there to be failures
of plastic pipe containing recovered
materials. These commenters stated that
the American Society for Testing and
Materials (ASTM) and American
Association of State Highway and
Transportation Officials (AASHTO) are
currently reviewing their material
specifications that preclude the use of
recovered materials in plastic pipe and
fittings for possible revision to allow the
use of these materials. These
commenters suggested that ASTM and
other reliable specifications are
necessary to ensure the quality of plastic
pipe containing recovered materials,
and that EPA should not designate
plastic pipe containing recovered
materials until such specifications are in
place.
Response: As described in the
proposed CPG, several manufacturers
have conducted performance testing on
pipe made with recovered materials and
demonstrated that the pipe meets
applicable ASTM performance
specifications. However, there currently
exist ASTM and other material
specifications that preclude the use of
recovered materials in plastic pipe and
fittings. As poyited out by commenters,
there is a major effort underway to
review these specifications for possible
revision to allow the use of recovered
materials. This effort is not yet
completed. Based on the comments
received, EPA has become aware that
many manufacturers and users of plastic
pipe do not believe that adequate
testing, especially field testing, has been
conducted and that designation should
be delayed until such testing is
conducted. For this reason, EPA has
determined that it is premature to
designate plastic pipe and fittings, even
for non-pressure applications.
Many commenters in industry and
government, particularly state
transportation officials, expressed a
strong interest in working with EPA to
overcome the barriers to using plastic
pipe made of recovered materials. At
least one state transportation office
currently is conducting field testing of
HDPE drain pipe made of recovered
materials. EPA will continue to follow
developments in this area and will
reconsider designating plastic pipe
when these barriers have been
overcome. In the meantime, EPA
encourages manufacturers and users of
plastic pipe made with recovered
materials to keep the Agency apprised
of new developments in product
performance testing and revision of
material specifications.
3. Geotextiles
Comment: Although many
commenters supported the proposed
designation of geotextiles, the majority
of commenters opposed it. Those in
support of the designation stated that
there are non-woven geotextiles
available made with postconsumer
recovered polyethylene terephthalate
(PET) and they are being used in a
variety of applications. These
commenters also stated that adequate
performance testing has been conducted
to justify the designation of geotextiles
made with recovered materials.
Commenters opposed to the proposed
designation of geotextiles expressed
concern that using recovered resins in
geotextiles could result in catastrophic
failures if used in critical applications,
such as in landfills or in road
construction. These commenters stated
that evidence does not exist on the long-
term performance of geotextiles made
with recovered resin or on the chemical
compatibility of geotextiles containing
recovered materials when used in
landfill applications. Additional
commenters claimed that no
manufacturers actually make geotextiles
with postconsumer polypropylene, that
the technology does not exist to make
geotextiles with recovered
polypropylene, and that high-quality
postconsumer polypropylene is not
available in sufficient quantities for use
in making geotextiles.
Response: EPA has not yet been able
to resolve the numerous technical issues
raised during the comment period. To
do so would have meant a delay in
issuance of the final CPG and a delay in
the date on which procuring agencies
would be required to begin purchasing
the 19 additional items that are being
designated at this time. Thus, EPA
determined that it would be best to
issue the CPG for those items on which
the Agency is ready to proceed and to
defer a final decision on the designation
of geotextiles until a future update of
the CPG.
EPA will continue to track
developments in this area, evaluate the
issues raised by commenters, and
maintain a dialog with manufacturers
and users of geotextiles. EPA encourages
manufacturers of geotextiles made with
recovered materials to keep the Agency
apprised of new products being
manufactured with recovered materials,
the availability of recovered
polypropylene, and developments in
product performance testing.
4. Cement and Concrete Containing
Ground Granulated Blast Furnace Slag
Comment: Several commenters
opposed the designation of ground
granulated blast ftirnace (GGBF) slag
because of its lack of availability.
Response: EPA has concluded that
availability is not a barrier to
designating GGBF slag. Data provided in
comments by GGBF slag producers
indicate that granulators currently are
located at four steel plants, an
additional five steel companies are
considering the installation of
granulation capacity at locations in six
states, ten cement manufacturers in nine
states currently grind granulated blast
furnace slag, and excess capacity is
available to supply granulated blast
furnace slag to additional customers.
Additionally, EPA's Report to Congress
on special wastes from mineral
processing' indicates that most U.S.
primary iron producers are expected to
modernisie their blast furnaces and
install slag granulation facilities,
resulting in greater availability of
granulated blast furnace slag for use in
cement and concrete.
While GGBF slag currently is used
primarily in Eastern states and states
located just west of the Mississippi
River, the product also has been used in
states more remote from the nation's
steel centers (e.g., Texas, Oklahoma, and
Colorado), indicating that this item can
be made available to states that are not
proximate to steel mills. In light of the
Agency's past experience with the
positive effect of an item designation on
markets, EPA concludes that
designation of cement and concrete
containing GGBF slag will encourage
additional states to consider the use of
GGBF slag, thereby creating expanded
markets for this item.
If ei procuring agency determines that
cemeint or concrete containing GGBF
slag is not available, it is not required
to purchase this item. Section 6002 of
RCRA provides that procuring agencies
need not purchase a designated item if
the item is not reasonably available
within a reasonable period of time or
the item is available only at an
unreasonable price. The procuring
agency must, however, take the
affirmative step of inquiring whether the
item is or can be made available.
Comment: The comments contained
both positive and negative information
about the performance of cement and
concrete containing GGBF slag. Several
states commented that they use GGBF
1 "Report to Congress on Special Wastes from
Mineral Processing," Volume II: Methods and
Analyses, U.S. Environmental Protection Agency,
Office of Solid Waste, July 1990, Chapter 8.
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Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations
slag in cement or concrete for its
positive attributes. A federal agency also
cited several positive attributes of this
material. The positive attribute most
often cited was GGBF slag-cement's
contribution to a reduction in alkali-
silica reactivity. It also adds
cementitious properties.
Commenters also cited negative
performance factors about the use of
GGBF slag, although conflicting
information was provided about almost
all of these factors. For example,
commenters noted that concrete
containing GGBF slag has a slower set
time than concrete without GGBF slag.
This fact could limit the time of year in
which the product is used. However,
considering that 70% of concrete is used
in warmer months, other commenters
stated that slower set time, in an of
itself, is not a barrier to using this
product in most projects.
Response: EPA's detailed response to
each of these comments is contained in
"Comprehensive Procurement
Guideline—Supporting Analyses." In
many instances, the negative attributes
cited by commenters were cited as
positive attributes by others. For
example, slower setting times are often
advantageous, especially in warm
weather when 70 percent of concrete is
placed. With respect to other
performance criteria, other commenters
provided conflicting information. For
example, while some commenters cited
a problem with the workability of
concrete containing GGBF slag, a
Federal agency commented that GGBF
slag will generally improve the
workability of concrete. Based on a
review of the information submitted by
commenters, EPA agrees with one
commenter that GGBF slag is suitable
for some, but not all, concrete
applications and, therefore, should not
be mindly substituted for Portland
cement without regard for its effects on
the characteristics of the concrete mix.
For the following reasons, EPA
concludes that cement and concrete
containing GGBF slag should be
designated: (1) The use of GGBF slag in
cement and concrete can provide
beneficial properties to users of
concrete, such as reduced alkali-silica
reactions, (2) the use of GGBF slag in
cement and concrete can reduce the
quantities of this material requiring
disposal, and (3) cement and concrete
containing GGBF slag is used on a
widespread basis in several states.
Additionally, EPA believes that the
designation of this item will encourage
procuring agencies to learn more about
this product, which will, in turn,
increase the likelihood that they will
begin to purchase it where it is available
and meets their performance
requirements.
Under the exceptions in RCRA section
6002, in those instances where the use
of GGBF slag will not meet a procuring
agency's reasonable performance
requirements, the agency is not required
to purchase the product.
Comment: Several state agencies
commented that coal fly ash is
generated and used in their state. They
stated that a designation of GGBF slag
could result in reduced markets for coal
fly ash because GGBF slag would
compete with coal fly ash.
Response: EPA's designation of GGBF
slag does not require procuring agencies
to favor this item over coal fly ash.
Because it is an expansion of the
existing cement and concrete
designation, the GGBF slag designation
simply requires that procuring agencies
use cement and concrete containing
either coal fly ash or GGBF slag when
it meets their price and performance
objectives. Which type of cement or
concrete a procuring agency purchases
will depend on a number of factors,
including the performance requirements
for the construction project, product
availability, competition, and product
price.
5. Carpet
Comment: Several commenters were
concerned about the proposed
designation of polyester carpet, stating
that this item generally does not meet
the performance standards for
commercial applications. Commenters
stated that nylon carpeting is preferred
in commercial applications because of
the fiber's superior performance
characteristics, while polyester
carpeting is mainly suited for low-wear
or residential applications. Another
commenter stated that nylon fibers can
be made in a loop pile construction,
whereas polyester fibers are typically
made in a cut-pile construction which is
prone to faster wear.
Response: EPA is aware that polyester
carpeting may not perform as well as
nylon carpeting in high-wear and
severe-wear applications. For this
reason, EPA proposed to designate
polyester carpet for low- and medium-
wear applications only. The designation
of polyester carpet applies only in those
cases where procuring agencies have
determined that polyester carpet has
suitable performance characteristics to
meet the agencies' particular
applications. Where it is determined
that polyester carpet is suitable,
procuring agencies should purchase
polyester carpet containing recovered
materials.
6. Floor Tiles
Comment: No commenters opposed
the proposed designation of floor tiles.
However, commenters explained that
floor tiles containing recovered
materials are not typically used in
certain applications, such as for
standard office flooring. Commenters
explained that their use has been
limited to certain heavy-duty
applications.
Response: EPA is not aware of any
floor tiles containing recovered
materials being used in standard office
flooring applications; consistent with
information submitted by commenters,
their use has been limited to heavy-
duty, commercial applications. For this
reason, EPA is limiting the
recommendations contained in the
Recovered Materials Advisory Notice
that accompanies today's rule to rubber
and plastic floor tiles used in heavy-
duty, commercial applications. If other
uses, such as for standard office flooring
are identified in the future, EPA will
consider revising its recommendations
to incorporate these applications.
7. Yard Trimmings Compost
Comment: One commenter expressed
concern about the proposed designation
of yard trimmings compost because
there are a lack of national standards for
this item.
Response: The Agency does not
believe that a lack of national standards
will inhibit the general use of yard
trimmings compost, or that national
standards are a necessary prerequisite
for its designation. As noted in the
preamble to the proposed rule, compost
can have many different applications,
each of which may require compost
with differing characteristics. For
instance, using compost for turf
establishment would typically require a
mature, cured compost, while an
application for landfill cover might
utilize less mature compost. As
explained in EPA's draft RMAN issued
concurrently with the proposed CPG,
the State of Maine has developed
quality standards for six different types
of compost ranging from topsoil (three
classes), to wetlands substrate, to mulch
(two classes) (see 59 FR 18906, April 20,
1994). These standards are being used
by many State agencies in purchasing
compost and can serve as a guide to
anyone purchasing this item.
In addition to the guidance afforded
by the State of Maine's quality
standards, compost suppliers can assist
procuring agencies in determining the
type(s) of compost needed for particular
applications. The agency recommends,
therefore, that when purchasing yard
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trimmings compost, the specific use of
the compost should be described to the
supplier to ensure the purchase of a
product compatible with the intended
use.
In the preamble to the proposed CPG,
EPA also noted that the Composting
Council, a diverse group of
professionals engaged in promoting the
beneficial use of compost, as well as a
number of State agencies are developing
standards and specifications for
compost (see 59 FR 18878, April 20,
1994). As these standards are
developed, EPA will make their
availability known to procuring
agencies by referencing them in a future
Recovered Materials Advisory Notice.
8. Office Recycling Containers and
Waste Receptacles
Comment: One commenter questioned
EPA's proposed designation of steel
office recycling containers and office
waste receptacles, stating that the
amount of steel used to manufacture
such items is inconsequential when
compared to the amount of steel
produced in the U.S. Another
commenter stated that the designation
of recycling containers and waste
receptacles made from multiple
materials (i.e., plastic, steel, and paper)
could encourage the purchase of plastic
and paper containers rather than the
traditional steel containers.
Response: EPA encourages the use of
all recovered materials in products and
does not favor one material over
another. If EPA did not include steel
containers in its designation, procuring
agencies might assume that EPA was
recommending the use of plastic or
paper containers only, when this is not
the case. Additionally, steel containers
made from recovered materials are
readily available as are containers made
from plastic and paper. For these
reasons, the Agency believes it is
appropriate to designate containers
made from steel, paper, and plastic. EPA
also believes that the type of containers
purchased should be the sole decision
of the procuring agencies and that they
can best choose the product that meets
their needs.
9. Toner Cartridges
Comment: Two commenters contested
EPA's designation of remanufactured
toner cartridges, citing RCRA section
6002(e)(l) and Executive Order 12873 as
requiring EPA to designate items made
with "recovered," not
"remanufactured" materials. The
commenters further stated that, should
EPA proceed with its designation of
remanufactured toner cartridges, it
should expand the designation to
include new toner cartridges made from
recovered materials as well.
Response: EPA believes that the
designation of remanufactured toner
cartridges is consistent with the
directives contained in RCRA section
6002 and Executive Order 12873. EPA
believes that the reuse of materials in
remanufacturing operations falls within
the statutory definition of "recovered
materials" in that these are materials
"which have been recovered or diverted
from solid waste, but * * * not * * *
generated from, and commonly reused
within, an original manufacturing
process." Additionally, in 1988, the
Agency designated retread tires as a
guideline item (53 FR 46558, November
17,1988). Retread tires are also
remanufactured items.
EPA now has information that toner
cartridges made with recovered
materials are available for purchase.
Thus, EPA agrees with the commenters
that it is appropriate at this time to
designate toner cartridges made with
recovered materials as well as
remanufactured toner cartridges.
Therefore, the Agency has changed its
designation from "remanufactured toner
cartridges" to "toner cartridges" to
include new cartridges made with
recovered materials.
10. Binders
Comment: Two commenters stated
that EPA's proposed item designation
for binders was incomplete because it
did not mention binders made from
pressboard.
Response: The commenters are
correct. EPA inadvertently omitted
reference to pressboard in the proposed
CPG under the erroneous assumption
that "pressboard" was included in the
term "chipboard." EPA has since
determined that this is not the case. For
this reason, today's final item
designation for binders references
chipboard and pressboard, both of
which are paper and paperboard
products. As explained in the final
Recovered Materials Advisory Notice
that accompanies this final CPG,
procuring agencies should rely on the
guidance provided in Section II, Part A
of the Recovered Materials Advisory
Notice that accompanies this final CPG
and in the draft Paper Products
Recovered Materials Advisory Notice
(60 FR 14182, March 15,1995) when
purchasing chipboard or pressboard
binders.
C. Other Items Considered for
Designation
In addition to the items proposed for
designation, EPA listed and requested
information on 23 items as potential
items for future designation and 4 items
that the Agency believed were
inappropriate for designation at this
time (59 FR 18881, April 20,1994).
EPA received comments on most of
the 231 items listed as potential items for
future! designation. In addition, EPA
received comments on pallet stretch
wrap and strapping, which, at proposal,
were two of the items EPA believed to
be ineippropriate to designate (59 FR
18812, April 20,1994). Three
commenters provided information on
pallet stretch wrap and one on
strapping, indicating that these two
items may be suitable for designation.
The information provided in the
comments will be considered when the
Agency evaluates items for possible
designation in a future update of the
CPG.
D. Public Participation in Future
Updates to the CPG
In the proposed rule, the Agency
announced it would develop procedures
that would allow the public to suggest
items for inclusion in future updates of
the CPG and to provide information on
products made from recovered
materials. The proposal also solicited
public comment on possible options for
increasing public participation in
developing updates to the CPG and
RMAN. EPA did not receive any
comments relating to this issue.
EPA still intends to establish such a
process and will issue a future Federal
Register notice that describes this
process.
IV. Availability of Designated Items
EPA has developed lists of
manufacturers and vendors of the items
designated in today's final CPG. These
lists will be updated periodically as new
sources are identified and EPA becomes
awares of changes in product availability.
To assist procuring agencies, the lists
will be made available at no charge by
calling EPA's RCRA Hotline at (800)
424-9346, or, in the Washington, DC
area, at (703) 412-9810. They also will
be available for review in the RCRA
Information Center (RIC). For additional
details about the location and operating
schedule of the RIC, see the "Address"
section at the beginning of this Federal
Register notice. Procuring agencies are
encouraged to contact manufacturers
and vendors directly to discuss their
specific needs and to obtain detailed
information on the availability and price
of recycled content products meeting
those needs.
The U.S. General Services
Administration (GSA) publishes an
"Environmental Products Guide,"
which lists items available through its
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Federal Supply Service. This Guide is
updated periodically as new items
become available. Copies of the GSA
"Environmental Products Guide" can be
obtained by contacting GSA's
Centralized Mailing List Service in Fort
Worth, Texas at (817) 334-5215.
In addition'to the information
provided by EPA and GSA, there are
other publicly-available sources of
information about products containing
recovered materials. For example, the
"Official Recycled Products Guide"
(RPG) was established in March 1989 to
provide a broad range of information on
recycled content products. Listings
include product, company name,
address, contact, telephone, fax, type of
company (manufacturer or distributor),
and minimum recycled content. Price
information is not included. The RPG is
available on a subscription basis from
American Recycling Market, Inc., (800)
267-0707. Private corporations that
have researched recycled product
availability may also be willing to make
this information publicly available. For
instance, as part of the McRecycle USA®
program, the McDonald's Corporation
established a Registry Service for
manufacturers and suppliers of recycled
content products. The Corporation has
compiled a database of registrants and
makes this information available upon
request. More information on the
McRecycle USA® Registry Service is
available by calling (800) 220-3809.
State ana local recycling programs are
also a potential source of information on
local distributors and availability. In
addition, state and local government
purchasing officials that are contracting
for recycled content products may have
relative price information. A list of state
purchasing/procurement officials has
been placed in the RIC and will be
updated periodically. Also included in
the public docket is a list of states with
recycled content products purchasing
programs, current as of April 1994.
Information is also available from trade
associations whose members
manufacture or distribute products
containing recovered materials. A list of
such trade associations is also included
in the RIC.
V. Economic Impact Analysis
A. Requirements of Executive Order
12866
Executive Order 12866 requires
agencies to determine whether a
regulatory action is "significant." The
Order defines a "significant" regulatory
action as one that is likely to result in
a rule that may: (1) Have an annual
effect on the economy of $100 million
or more or adversely affect, in a material
way, the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) create
serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients; or (4) raise novel legal or
policy issues arising out of legal
mandates, the President's priorities, or
the principles set forth in the Executive
Order.
The cost of the rule is below the $100
million threshold. However, EPA
believes that the rule may raise policy
issues and, therefore, is considering it a
significant regulatory action. To enable
the Agency to evaluate the potential
impact of today's action, EPA has
conducted an Economic Impact
Analysis (EIA), discussed below. For
more information on the EIA, see
"Technical Background Document for
the Comprehensive Procurement
Guideline."
B. Unfunded Mandates Reform Act of
1995 and Consultation With State,
Local, and Tribal Governments
Under section 202 of the Unfunded
Mandates Reform Act of 1995 (the Act),
Pub. L. 104-4, which was signed into
law on March 22,1995, EPA generally
must prepare a written statement for
rules with Federal mandates that may
result in estimated costs to State, local,
or tribal governments in the aggregate,
or to the private sector, of $100 million
or more in any one year. When such a
statement is required for EPA rules,
under section 205 of the Act EPA must
identify and consider alternatives,
including the least costly, most cost-
effective or least burdensome alternative
that achieves the objectives of the rule.
EPA must select that alternative, unless
the Administrator explains in the final
rule why it was not selected or it is
inconsistent with law. Before EPA
establishes regulatory requirements that
may significantly or uniquely affect
small governments, including tribal
governments, it must develop under
section 203 of the Act a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, giving them
meaningful and timely input in the
development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising them
on compliance with the regulatory
requirements.
EPA has determined that this rule
does not include a Federal mandate that
may result in estimated annualized
costs of $100 million or more to either
State, local and tribal governments in
the aggregate, or to the private sector. To
the extent enforceable duties arise as a
result of today's rule on State, local and
tribal governments, they are exempt
from inclusion as Federal
intergovernmental mandates if such
duties are conditions of Federal
assistance. Even if they are not
conditions of Federal assistance, such
enforceable duties do not result in a
significant regulatory action being
imposed upon State, local and tribal
governments since the estimated
aggregate cost of compliance for them
are not expected to exceed, at the
maximum, $5.1 million annually. The
cost of enforceable duties which may
arise as a result of today's rule on the
private sector are estimated not to
exceed $130,000 annually. Thus, today's
rule is not subject to the written
statement requirement in sections 202
and 205 of the Act.
The newly designated items included
in the CPG may give rise to additional
obligations under section 6002 (i)
(requiring procuring agencies to adopt
an affirmative procurement program and
to amend their specifications) for state
and local governments and tribal
authorities. As noted above, the expense
associated with any additional costs is
not expected to exceed, at the
maximum, $5.1 million annually. In
compliance with E.O. 12875, which
requires the involvement of State, local
and tribal governments in the
development of certain Federal
regulatory actions, EPA conducted a
wide outreach effort and actively sought
the input of representatives of state,
local and tribal governments in the
process of developing the final
designation. Thus, Agency personnel
have met with their representatives in a
number of different forums. For
example, EPA staff involved in
development of the CPG spoke and met
with attendees at the annual meeting of
the National Institute for Government
Purchasing, Inc., which includes
representatives of government
purchasing offices. EPA representatives
have met with government officials at
trade association gatherings such as the
National Recycling Coalition annual
conference.
The requirements do not significantly
affect small governments because they
are subject to the same requirements as
other entities whose duties result from
today's rule. As discussed above, the
expense associated with any additional
costs to State, local and tribal
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Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21379
governments, is not expected to exceed,
at the maximum, $5.1 million annually.
The requirements do not uniquely affect
small governments because they have
the same ability to purchase these
designated items as other entities whose
duties result from today's rule.
Additionally, use of designated items
affects small governments in the same
manner as other such entities. Thus, any
applicable requirements of section 203
have been satisfied.
C. Summary of Benefits
EPA anticipates that this rule will
result in increased opportunities for
recycling and waste 'prevention. Waste
prevention can reduce the nation's
reliance on natural resources by
reducing the amount of materials used
in making products. This results in a
commensurate reduction in energy use
and in the generation and release of air
and water pollutants associated with
manufacturing. Additionally, waste
prevention leads to a reduction in the
environmental impacts of mining,
harvesting, and other extraction
processes.
Recycling can effect the more efficient
use of natural resources. For many
products, the use of recovered materials
in manufacturing can result in
significantly lower energy and material
input costs than when virgin raw
materials are used; reduce the
generation and release of air and water
pollutants often associated with
manufacturing; and reduce the
environmental impacts of mining,
harvesting, and other extraction of
natural resources. In addition to
conserving non-renewable resources,
recycling can also divert large amounts
of materials from landfills, conserving
increasingly valuable space for the
management of materials that truly
require disposal. This reduces the need
to expand existing or site new disposal
facilities, allowing local government
officials to devote more attention to
health, education, and safety issues.
By purchasing products made from
recovered materials, government
agencies can increase opportunities for
realizing these benefits. On a national
and regional level, this rule can result
in expanding and strengthening markets
for materials diverted or recovered
through public and private collection
programs. Also, since many State and
local governments, as well as private
enterprises, reference EPA guidelines
when purchasing designated items, the
CPG can result in increased purchase of
recycled products, locally, regionally,
and nationally.
Finally, purchase and use of recycled
products by government agencies can
also spur private sector development of
new technologies, creating business and
employment opportunities that enhance
local, regional, and national economies.
Technological innovation associated
with the use of recovered materials can
translate into economic growth and
make American industry more
competitive in the global economy.
D. Summary of Costs
As discussed in Section III, EPA
received several comments regarding
the cost estimates presented in the
proposed CPG. Based on these
comments and actual cost information
submitted by commenting Federal
agencies, EPA modified its approach to
estimating costs attributable to the CPG.
Details on EPA's approach for
estimating costs presented in this
subsection are included in "Technical
Background Document for the
Comprehensive Procurement
Guideline." This document is included
in the RCRA docket for this rulemaking.
As shown in Table 2 below, EPA
estimates that the annualized costs of
today's rule will range from $10 to $13
million, with costs being spread across
all procuring agencies (i.e., Federal
agencies, State and local agencies that
use appropriated Federal funds to
procure designated items, and
contractors to all three). These costs are
annualized over a 10-year period at a
three percent discount rate. Because
there is considerable uncertainty
regarding several of the parameters that
drive the costs, EPA conducted a
sensitivity analysis to identify the range
of potential costs of this rule. Thus,
high-end and low-end estimates are
presented along with the best estimate.
The primary parameters affecting the
range of cost estimates are the number
of products each procuring agency is
assumed to procure each year and the
number of contractors that will be
affected by this rule.
TABLED 2.—SUMMARY OF ANNUALIZED
COSTS OF CPG TO ALL PROCURING
AGENCIES
Procuring
agency
Federal agen-
cies
States
Local govern-
ments
Contractors ....
Total ....
Total
annualized
costs
($1000)
$8 100-$7500
1,600-1,000
3,500-1 ,800
130-26
13,300-10,300
Best esti-
mate total
annualized
costs
($1000)
$8 100
1 600
2,800
79
12,600
RCIIA section 6002(g) requires the
Office of Federal Procurement Policy to
report to Congress every two years on
the actions taken by Federal agencies to
comply with RCRA section 6002. In
developing this report, OFPP requests
information and data from Federal
agencies regarding their affirmative
procurement programs and related
activities. Table 3 below presents the
estimated annualized costs to Federal
agencies, including (1) specification
revision and affirmative procurement
program modification/implementation
costs, and (2) recordkeeping and
reporting costs. The recordkeeping and
reporting costs presented below are the
likely costs that would be incurred by
Federal agencies to maintain and
compile information for and complete
the annual OFPP information request
using the existing OFPP reporting
format (i.e., the format used to collect
information for fiscal years 1993 and
1994),
TABLE 3.—SUMMARY OF BEST ESTIMATE ANNUALIZED COSTS OF CPG TO FEDERAL AGENCIES
Federal agency
Civilian Agencies
Defense Agencies
Total
Specification re-
vision and APR
costs
($1000)
$1,100
2,000
3.100
Recordkeeping
and reporting
costs
($1000)
1 600
3400
5.000
Total
annualized
costs
($1000)
$2700
5400
8.100
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21382 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations
establishment of the Federal
government including any government
corporation; and the Government
Printing Office;
Fiberglass insulation means
insulation which is composed
principally of glass fibers, with or
without binders;
Foam-in-place insulation is rigid
cellular foam produced by catalyzed
chemical reactions that hardens at the
site of the work. The term includes
spray-applied and injected applications
such as spray-in-place foam and pour-
in-place;
Gear oils means petroleum-based oils
used for lubricating machinery gears;
Hydraulic fluids means petroleum-
based hydraulic fluids;
Hydraulic mulch means a mulch that
is a cellulose-based (paper or wood)
protective covering that is mixed with
water and applied through mechanical
spraying in order to aid the germination
of seeds and to prevent soil erosion;
Hydroseeding means the process of
spraying seeds mixed with water
through a mechanical sprayer
(hydroseeder). Hydraulic mulch,
fertilizer, a tacking agent, or a wetting
agent can also be added to the water/
seed mix for enhanced performance;
Laminated paperboard means board
made from one or more plies of kraft
paper bonded together, with or without
facers, that is used for decorative,
structural, or insulating purposes;
Loose-fill insulation means insulation
in granular, nodular, fibrous, powdery,
or similar form, designed to be installed
by pouring, blowing or hand placement;
Mineral fiber insulation means
insulation (rock wool or fiberglass)
which is composed principally of fibers
manufactured from rock, slag or glass,
with or without binders;
Paper means one of two broad
subdivisions of paper products, the
other being paperboard. Paper is
generally lighter in basis weight,
thinner, and more flexible than
paperboard. Sheets 0.012 inch or less in
thickness are generally classified as
paper. Its primary uses are for printing,
writing, wrapping, and sanitary
purposes. However, in this guideline,
the term paper is also used as a generic
term that includes both paper and
paperboard.
Paper product means any item
manufactured from paper or
paperboard. The term paper product is
used in this guideline to distinguish
such items as boxes, doilies, and paper
towels from printing and writing papers.
Perlite composite board means
insulation board composed of expanded
perlite and fibers formed into rigid, flat,
rectangular units with a suitable sizing
material incorporated in the product. It
may have on one or both surfaces a
facing or coating to prevent excessive
hot bitumen strike-in during roofing
installation;
Person means an individual, trust,
firm, joint stock company, corporation
(including a government corporation),
partnership, association, Federal
agency, State, municipality,
commission, political subdivision of a
State, or any interstate body;
Phenolic insulation means insulation
made with phenolic plastics which are
plastics based on resins made by the
condensation of phenols, such as
phenol or cresol, with aldehydes;
Polyisocyanurate insulation means
insulation produced principally by the
polymerization of polymeric
polyisocyanates, usually in the presence
of polyhydroxyl compounds with the
addition of cell stabilizers, blowing
agents, and appropriate catalyst to
produce a polyisocyanurate chemical
structure;
Polystyrene insulation means an
organic foam composed principally of
polymerized styrene resin processed to
form a homogenous rigid mass of cells;
Polyurethane insulation means
insulation composed principally of the
catalyzed reaction product of
polyisocyanates and polyhydroxyl
compounds, processed usually with a
blowing agent to form a rigid foam
having a predominantly closed cell
structure;
Postconsumer material means a
material or finished product that has
served its intended use and has been
diverted or recovered from waste
destined for disposal, having completed
its life as a consumer item.
Postconsumer material is a part of the
broader category of recovered materials.
Postconsumer recovered paper means:
(1) Paper, paperboard and fibrous
wastes from retail stores, office
buildings, homes and so forth, after they
have passed through their end-usage as
a consumer item including: Used
corrugated boxes; old newspapers; old
magazines; mixed waste paper;
tabulating cards and used cordage; and
(2) All paper, paperboard and fibrous
wastes that enter and are collected from
municipal solid waste;
Practicable means capable of being
used consistent with: Performance in
accordance with applicable
specifications, availability at a
reasonable price, availability within a
reasonable period of time, and
maintenance of a satisfactory level of
competition;
Procurement item means any device,
good, substance, material, product, or
other item, whether real or personal
property, which is the subject of any
purchase, barter, or other exchange
made to procure such item;
Procuring agency means any Federal
agency, or any State agency or agency of
a political subdivision of a State, which
is using appropriated Federal funds for
such procurement, or any person
contracting with any such agency with
respect to work performed under such
contract;
Purchasing means the act of and the
function of responsibility for the
acquisition of equipment, materials,
supplies, and services, including:
Buying, determining the need, selecting
the supplier, arriving at a fair and
reasonable price and terms and
conditions, preparing the contract or
purchase order, and follow-up;
Recovered materials means waste
materials and byproducts which have
been recovered or diverted from solid
waste, but such term does not include
those materials and byproducts
generated from, and commonly reused
within, an original manufacturing
process;
Recovered materials, for purposes of
purchasing paper and paper products,
means waste material and byproducts
that have been recovered or diverted
from solid waste, but such term does not
include those materials and byproducts
generated from, and commonly reused
within, an original manufacturing
process. In the case of paper and paper
products, the term recovered materials
includes:
(1) Postconsumer materials such as—
(i) Paper, paperboard, and fibrous
wastes from retail stores, office
buildings, homes, and so forth, after
they have passed through their end-
usage as a consumer item, including:
Used corrugated boxes; old newspapers;
old magazines; mixed waste paper;
tabulating cards; and used cordage; and
(ii) All paper, paperboard, and fibrous
wastes that enter and are collected from
municipal solid waste, and
(2) Manufacturing, forest residues,
and other wastes such as—
(i) Dry paper and paperboard waste
generated after completion of the
papermaking process (that is, those
manufacturing operations up to and
including the cutting and trimming of
the paper machine reel in smaller rolls
of rough sheets) including: Envelope
cuttings, bindery trimmings, and other
paper and paperboard waste, resulting
from printing, cutting, forming, and
other converting operations; bag, box,
and carton manufacturing wastes; and
butt rolls, mill wrappers, and rejected
unused stock; and
(ii) Finished paper and paperboard
from obsolete inventories of paper and
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Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21383
paperboard manufacturers, merchants,
wholesalers, dealers, printers,
converters, or others;
(iii) Fibrous byproducts of harvesting,
manufacturing, extractive, or wood-
cutting processes, flax, straw, linters,
bagasse, slash, and other forest residues;
(iv) Wastes generated by the
conversion of goods made from fibrous
material (that is, waste rope from
cordage manufacture, textile mill waste,
and cuttings); and
(v) Fibers recovered from waste water
which otherwise would enter the waste
stream.
Re-refined oils means used oils from
which the physical and chemical
contaminants acquired through previous
use have been removed through a
refining process;
Retread tire means a worn
automobile, truck, or other motor
vehicle tire whose tread has been
replaced;
Rock wool insulation means
insulation which is composed
principally from fibers manufactured
from slag or natural rock, with or
without binders;
Specification means a description of
the technical requirements for a
material, product, or service that
includes the criteria for determining
whether these requirements are met. In
general, specifications are in the form of
written commercial designations,
industry standards, and other
descriptive references;
Spray-in-place insulation means
insulation material that is sprayed onto
a surface or into cavities and includes
cellulose fiber spray-on as well as
plastic rigid foam products;
Spray-in-place foam is rigid cellular
polyurethane or polyisocyanurate foam
produced by catalyzed chemical
reactions that hardens at the site of the
work. The term includes spray-applied
and injected applications;
State means any of the several states,
the District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern
Mariana Islands;
Structural fiberboard means a fibrous-
felted, homogenous panel made from
lignocellulosic fibers (usually wood,
cane, or paper) and having a density of
less than 31 lbs/ft3 but more than 10 Ibs/
ft3. It is characterized by an integral
bond which is produced by interfelting
of the fibers, but which has not been
consolidated under heat or pressure as
a separate stage of manufacture;
Tire means the following types of
tires: Passenger car tires, light- and
heavy-duty truck tires, high-speed
industrial tires, bus tires, and special
service tires (including military,
agricultural, off-the-road, and slow-
speed industrial);
§ 247.4 Contracting officer requirements.
Within one year after the effective
date of each item designation,
contracting officers shall require that
vendors:
(a) Certify that the percentage of
recovered materials to be used in the
performance of the contract will be at
least the amount required by applicable
specifications or other contractual
requirements, and
(b) Estimate the percentage of total
material utilized for the performance of
the contract which is recovered
materials.
§247.5 Specifications.
(a) RCRA section 6002(d)(l) required
Federal agencies that have the
responsibility for drafting or reviewing
specifications for procurement items
procured by Federal agencies to revise
their specifications by May 8,1986, to
eliminate any exclusion of recovered
materials and any requirement that
items be manufactured from virgin
materials.
(b) RCRA section 6002(d)(2) requires
that within one year after the
publication date of each item
designation by the EPA, each procuring
agency must assure that its
specifications for these items require the
use of recovered materials to the
maximum extent possible without
jeopardizing the intended end use of
these items.
§ 247.6 Affirmative procurement programs.
RCRA section 6002(i) provides that
each procuring agency which purchases
items designated by EPA must establish
an affirmative procurement program,
containing the four elements listed
below, for procuring such items
containing recovered materials to the
maximum extent practicable:
(a) Preference program for purchasing
the designated items;
(b) Promotion program;
(c) Procedures for obtaining estimates
and certifications of recovered materials
content and for verifying the estimates
and certifications; and
(d) Annual review and monitoring of
the effectiveness of the program.
§247.7 Effective date.
Within one year after the date of
publication of any item designation,
procuring agencies which purchase that
designated item must comply with the
following requirements of RCRA:
affirmative procurement of the
designated item (6002(c)(l) and (i)),
specifications revision (6002(d)(2)),
vendor certification and estimation of
recovered materials content of the item
(6002(c)(3) and (i)(2)(Q), and
verification of vendor estimates and
certifications (6002(i)(2)Q).
Subpart B—Item Designations
§ 247.11) Paper and paper products.
Paper and paper products, excluding
building and construction paper grades.
§ 247.11 Vehicular products.
(a) Lubricating oils containing re-
refined oil, including engine lubricating
oils, hydraulic fluids, and gear oils,
excluding marine and aviation oils.
(b) Tires, excluding airplane tires.
(c) Reclaimed engine coolants,
excluding coolants used in non-
vehicular applications.
§247.12 Construction products.
(a) Building insulation products,
including the following items:
(1) Loose-fill insulation, including but
not limited to cellulose fiber, mineral
fibers (fiberglass and rock wool),
vermiculite, and perlite;
(2) Blanket and batt insulation,
including but not limited to mineral
fibers (fiberglass and rock wool);
(3) Board (sheathing, roof decking,
wall painel) insulation, including but not
limited, to structural fiberboard and
laminated paperboard products, perlite
composite board, polyurethane,
polyisocyanurate, polystyrene,
phenolics, and composites; and
(4) Spray-in-place insulation,
including but not limited to foam-in-
place polyurethane and
polyisocyanurate, and spray-on
cellulose.
(b) Structural fiberboard and
laminated paperboard products for
applications other than building
insulation, including building board,
sheathing, shingle backer, sound
deadening board, roof insulating board,
insulatiing wallboard, acoustical and
non-acoustical ceiling tile, acoustical
and non-acoustical lay-in panels, floor
underlaynMsnts, and roof overlay
(coverboard).
(c) Cement and concrete, including
concrete products such as pipe and
block, containing coal fly ash or ground
granulated blast furnace (GGBF) slag.
(d) Carpet made of polyester fiber for
use in low- and medium-wear
applications.
(e) Floor tile's and patio blocks
containing recovered rubber or plastic.
§247.13 Transportation products.
Traffic barricades and traffic cones
used in controlling or restricting
vehicular traffic.
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21384 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations
§ 247.14 Park and recreation products.
Playground surfaces and running
tracks containing recovered rubber or
plastic.
§ 247.15 Landscaping products.
(a) Hydraulic mulch products
containing recovered paper or recovered
wood used for hydroseeding and as an
over-spray for straw mulch in
landscaping, erosion control, and soil
reclamation.
(b) Compost made from yard
trimmings, leaves, and/or grass
clippings for use in landscaping,
seeding of grass or other plants on
roadsides and embankments, as a
nutritious mulch under trees and
shrubs, and in erosion control and soil
reclamation.
§ 247.16 Non-paper office products.
(a) Office recycling containers and
office waste receptacles.
(b) Plastic desktop accessories.
(c) Toner cartridges.
(d) Binders.
(e) Plastic trash bags.
§247.17 Miscellaneous products.
[Reserved]
[FR Doc. 95-10509 Filed 4-28-95; 8:45 am]
BILLING CODE 6560-50-P
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