Attachment A

 Summary of Legislative and Regulatory Requirements

Background

The Resource Conservation and Recovery Act (RCRA) of 1976 addresses management of hazardous waste and non-hazardous solid waste.  Recycling is a preferred method of solid waste management and can be encouraged through Federal procurement policies promoting purchasing and using products made from materials typically recovered in home and office recycling programs.  Section 6002 of RCRA, as amended, (42 U.S.C. 6962) requires Federal agencies to purchase EPA-designated products containing recovered materials “to the maximum extent practicable.”

Executive Order (EO) 13101, "Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition," requires the heads of each Executive agency to incorporate waste prevention and recycling in the agency’s daily operations and work to increase and expand markets for recovered materials through greater Federal Government preference and demand for recycled content products.  EO 13101 requires Federal agencies that have not implemented an affirmative procurement program to ensure that such a program is established and is being implemented, to the maximum extent practicable within 90 days after the date of the Order.

The main goals of RCRA and EO 13101 are to:

·        Stimulate private-sector markets for recovered materials through Federal procurement of products containing those materials.  Federal procurement also demonstrates the performance and availability of these products.

·        Promote cost-effective waste prevention and recycling activities.

·        Spur private sector development of new technologies, thereby creating new business and employment opportunities.

·        Conserve waste disposal capacity through cost-effective waste prevention and recycling programs.

·        Establish Federal waste prevention and recycling leadership.

Legislative Requirements

Section 6002(i) of RCRA, as amended, (42 U.S.C. 6962) and Sections 402 and 403 of Executive Order 13101 require each Federal agency to develop and implement a comprehensive APP with four specified elements.  Section 6002(e) of RCRA, as amended, (42 U.S.C. 6962) requires EPA to designate products and provide recommendations for implementing the requirements of Section 6002 of RCRA, as amended, (42 U.S.C. 6962).  Section 6002(c) of RCRA, as amended, (42 U.S.C. 6962) requires each procuring agency to purchase the designated items composed of the highest percentage of recovered materials practicable.  Any decision by a procuring agency not to procure such items shall be based on a determination that such items:

·        Are not available within a reasonable period of time;

·        Fail to meet the performance standards set forth in applicable specifications or fail to meet reasonable agency performance standards;

·        Are only available at an unreasonable price; or

·        Cannot maintain a satisfactory level of competition because they are not available from at least two or more sources.

Further, Section 6002(d) requires all procuring agencies to revise their specifications to eliminate any recovered materials exclusion or any requirement that items be manufactured only from virgin materials.

In accordance with Section 6002 of RCRA, as amended, (42 U.S.C. 6962) and Executive Order 13101 Federal agencies must fulfill several requirements:

·        Develop and implement a comprehensive APP, along with policies and procedures for Department-wide implementation.

·        Appoint an Agency Environmental Executive to coordinate environmental programs, participate in related Federal committees and workgroups, create an awareness and outreach program, establish incentives, provided guidance, and coordinate preparation of reports.

·        Ensure appropriate provisions are included in maintenance and operation contracts.

Each agency's APP, as required by Section 6002(i) of RCRA, as amended, (42 U.S.C. 6962(i)) must contain at least the following four elements: (1) a recovered materials preference program; (2) an agency promotion program to promote the preference program; (3) a program for requiring estimates of the total percentage of recovered material utilized in the performance of a contract; certification of minimum recovered material content actually utilized, where appropriate; and reasonable verification procedures for estimates and certifications; and (4) annual review and monitoring of the effectiveness of an agency's affirmative procurement program.  EPA's guidelines provide the following recommendations for implementing these required elements.

            Preference Program

RCRA requires agencies to use minimum content standards, case-by-case-procurements, or a substantially equivalent alternative, in developing a preference program for each EPA-designated item.  For most designated products, EPA recommends a procuring agency use minimum content standards.  The exceptions are retread tires, toner cartridges, and pallets for which EPA recommends that agencies arrange for product remanufacturing or for the purchase of a remanufactured product.  Case-by-case procurement should only be used if the procuring agency is unable to acquire the item within the limitations described in RCRA.

Promotion Program

EPA recommends that Federal procuring agencies promote their guideline-related preference programs through statements contained in procurement solicitations, discussion of their preference programs at bidder's conferences, publicized preference statements in product-related information services, and press releases.

            Estimation, Certification, and Verification

EPA recommends agencies require vendors provide an estimate of the total recycled content of their products and certify the recycled content meets minimum content standards.  The FAR contains certification and estimation requirements in FAR 52.223-4 and 52.223-9.  EPA recommends that agencies use their normal verification procedures to verify vendor estimates and certifications.

            Annual Review and Monitoring

Each procuring agency must conduct an annual review and monitor the effectiveness of its APP.  EPA recommends that the annual review process include estimates of the quantity of each designated item purchased, relative to the amount of the item purchased containing recovered material, as well as a review of estimations and certifications, and any purchase barriers.

            Regulatory Requirements

To date, EPA has designated 54 recycled content products or categories of products in the Comprehensive Procurement Guideline (CPG).  EPA’s Recovered Materials Advisory Notices (RMANs) contain recommendations for Federal agencies to develop and implement affirmative procurement programs for these products.  The product designations are codified in 40 CFR Part 247, and the original CPGs can be found in the following Federal Registers:

                        CPG 1:  60 FR 21370 (May 1, 1995)

                        CPG 2:  62 FR 60962 (Nov 13,1997)

                        CPG 3:  65 FR 3070 (Jan 19, 2000)

Copies of the Federal Registers can be found on EPA’s CGP website at www.epa.gov/cpg.

EPA has determined that:

·        Federal agency adherence to the practices recommended in the guidelines constitutes compliance with Section 6002 of RCRA, as amended, (42 U.S.C. 6962).

·        The guidelines apply to all Federal agencies, state or local agencies using appropriated Federal funds, and to persons contracting with any such agencies with respect to work performed on behalf of the agencies.  Federal agencies are responsible for ensuring appropriate language is contained in contracts requiring contractors to comply with such regulations.

·        Procuring agencies should establish minimum recovered material content standards for each guideline item to ensure the recovered material content required in applicable contract specifications is the maximum available without jeopardizing the intended use of the procured item.   EPA’s RMANs recommend the appropriate minimum content levels for each designated item or the range of content level currently available.   When EPA recommends a range, agencies must research the recycled content levels of products available in their local marketplace and set their content standards at the highest level available to them within EPA’s recommended range.

·        Each procuring agency is required to ensure its procurement specifications for designated items do not unfairly discriminate against the use of recovered materials.  Any procurement specifications prohibiting the purchase of recovered materials should be revised.  In cases where products containing only virgin materials are needed, the contract specifications should provide justification as to why these products are required.

·        Any determination that, for technical or other reasons, a product containing recovered material would not meet reasonable performance standards must be documented.

Pursuant to Section 6002(g) of RCRA, as amended, (42 U.S.C. 6962),  OFPP issued Policy Letter 92-4, "Procurement of Environmentally-Sound and Energy-Efficient Products and Services," establishing Executive branch policies for the acquisition and use of environmentally-sound, energy-efficient products and services.  The Letter also provides guidance for Federal agencies to implement Section 6002 of RCRA, as amended, (42 U.S.C. 6962).  The Policy Letter was published in the Federal Register on November 9, 1992.  (OFPP Policy Letter 92-4 contains references to EO 12780 which was revoked by EO 12873, which itself was replaced by EO 13101.  However, the guidance provided by the Policy Letter is still in effect.)

OFPP's Policy Letter also requires Federal procuring agencies when drafting or reviewing specifications for guideline items, to assure they: (1) do not exclude the use of recovered materials; (2) do not unnecessarily require the item to be manufactured from virgin materials; and (3) require the use of recovered materials and environmentally-sound components to the maximum extent practicable without jeopardizing the intended use of the item.  Federal agencies must use product descriptions and prepare contract specifications reflecting cost-effective procurement and use of designated recycled products, in order to encourage bidders to supply products containing recycled material.