Recovered Materials Advisory Notice; Clarification of Floor Tile,
Structural Fiberboard, and Laminated Paperboard Recommendations
[Federal Register: November 12, 1996 (Volume 61, Number 219)]
[Notices]
[Page 58067-58069]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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ENVIRONMENTAL PROTECTION AGENCY
[SWH-FRL-5650-1]
Recovered Materials Advisory Notice; Clarification of Floor Tile,
Structural Fiberboard, and Laminated Paperboard Recommendations
AGENCY: Environmental Protection Agency.
ACTION: Notice.
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SUMMARY: On May 1, 1995, the Environmental Protection Agency (EPA)
issued a Comprehensive Procurement Guideline (CPG) designating items
that are or can be made with recovered materials (60 FR 21370, May 1,
1995). Simultaneously, EPA published a Recovered Materials Advisory
Notice (RMAN) which included recommendations for purchasing items
designated in the CPG (60 FR 21386, May 1, 1995). Today, EPA is
providing additional information to assist procuring agencies in
determining their obligation to purchase designated items for specific
applications. EPA is also clarifying its recommendations for floor tile
and its structural fiberboard and laminated paperboard designation to
address manufacturers' concerns regarding the specific applications to
which the recovered materials content requirements of the CPG should be
applied.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located in Crystal Gateway I, 1235 Jefferson
Davis Highway, First Floor, Arlington, Virginia. The Docket
Identification Number is F-95-PRMF-FFFFF. The RIC is open from 9:00 am
to 4:00 pm, Monday through Friday, excluding federal holidays. To
review docket materials, it is recommended that the public make an
appointment by calling 703 603-9230. The public may copy a maximum of
100 pages from any regulatory docket at no charge. Additional copies
cost $0.15 per page. The index of and some supporting materials are
also available electronically. See the ``SUPPLEMENTARY INFORMATION''
section for information on accessing the materials electronically.
EFFECTIVE DATE: November 12, 1996.
FOR FURTHER INFORMATION CONTACT: For general information, please
contact the RCRA Hotline at 800 424-9346, TDD 800 553-7672 (hearing
impaired), or 703 412-9810 (Washington, DC metropolitan area).
For more detailed information regarding the recommendations in
today's notice, contact Terry Grist of the Office of Solid Waste at 703
308-7257.
SUPPLEMENTARY INFORMATION:
I. Purpose
Last year, in its Comprehensive Procurement Guideline (CPG)
promulgated under section 6002 of the Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. 6962, EPA designated 19 items that are
or can be made with recovered materials (60 FR 21370, May 1, 1995). The
accompanying Recovered Materials Advisory Notice (RMAN) provided
recommendations, including recovered materials content levels, for
purchasing the items designated in the CPG (60 FR 21386, May 1, 1995).
Since publication of the two documents, EPA has learned that there may
be some confusion on the part of procuring agencies as to their
obligation to purchase designated items for specific applications. In
particular, a floor covering trade association and a manufacturer of
interior furnishings that filed petitions for review of two of the
CPG's designations have inquired as to the circumstances in which a
procuring agency would be required to purchase floor tile and
structural fiberboard for use as acoustical ceiling tile. Based on
these inquiries, the Agency concluded that it should clarify the
obligations of procuring agencies with respect to the purchase of
designated items generally as well as the two specific items about
which questions have been raised.
II. Discussion
RCRA section 6002(e) requires EPA to issue guidelines which
designate items that are or can be made with recovered materials and to
recommend practices with respect to the procurement of recovered
materials and items containing such materials. Executive Order 12873
(58 FR 54911, October 22, 1993) establishes procedures for EPA to
follow in carrying out these statutory responsibilities. The order
directs EPA to designate items in a Comprehensive Procurement Guideline
and to include recommended practices for procuring designated items,
including recovered materials content levels within which the items are
available, in a Recovered Materials Advisory Notice. EPA has adopted
two approaches in its designation of items that are or can be made with
recovered materials. For some items, such as floor tiles, the Agency
designated broad categories of items and provided information in the
RMAN as to their appropriate applications or uses. For other items,
such as plastic trash bags, EPA designated specific items, and, in some
instances, included in the designation the specific types of recovered
materials or applications to which the designation applies. The Agency
explained these approaches to designating items in the preamble to the
CPG (60 FR 21373, May 1, 1995).
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, April 20, 1994): ``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 * * * ''
The Agency understands that some procuring agencies may believe
that the designation of a broad category of items in the CPG requires
them (1) to procure all items included in such category with recovered
materials content and, (2) to establish an affirmative procurement
program for the entire category of items, even where specific items
within the category may not meet current performance standards. This is
clearly not required under RCRA as implemented through the CPG and the
RMAN. RCRA section 6002 does not require a procuring agency to purchase
items with recovered materials content that are not available or that
do not meet a procuring agency's specifications or reasonable
performance standards for the contemplated use. Further, section 6002
does not require a procuring agency to purchase such items if the item
with recovered materials content is only available at an unreasonable
price or the purchase of such item is inconsistent with maintaining a
reasonable level of competition. However, EPA stresses that, when
procuring any product for which a recovered materials alternative is
available that meets the procuring
[[Page 58068]]
agency's performance needs, if all other factors are equal (e.g.,
price), section 6002 requires the procuring agency to purchase the
product made with highest percentage of recovered materials
practicable.
III. Floor Tiles
In the CPG, EPA designated floor tiles and patio blocks containing
recovered rubber or plastic (40 CFR 247.12(e)). The Agency designated
these items as broad categories of items, encompassing many different
applications. In making its determination to designate floor tiles, EPA
was unable to identify any specifications that preclude the use of
recovered materials in the manufacture of floor tiles. In the RMAN, the
Agency recommended that procuring agencies purchase floor tiles with
specified minimum recovered rubber or plastic content for ``heavy duty/
commercial type'' applications only. EPA limited the recommended
applications to heavy-duty/commercial-type uses because, at the time
the CPG was issued, the Agency was not aware of any manufacturers that
made floor tile with recovered materials for standard office flooring.
Therefore, the Agency elected to broadly designate floor tiles and
limit its initial recommendations to heavy-duty/commercial type uses.
A. Questions Raised
The concerns expressed by the petitioners regarding EPA's floor
tile designation are twofold. First, they claim that the Agency, at a
minimum, should have limited the floor tile designation to ``specialty
purpose'' applications and should have specifically excluded standard
office flooring. Second, the manufacturers contested EPA's use of the
term ``heavy-duty, commercial-type'' in the RMAN to describe the
recommended applications to which the floor tile designation applies.
In addition, manufacturers were concerned about the ability of ``heavyduty,
commercial type'' floor tiles recommended by EPA to meet
applicable American Society for Testing and Materials (ASTM) and
federal government performance standards for these products.
B. Recommended Applications
EPA used the term ``heavy-duty, commercial-type uses'' because
there were no published industry-wide definitions to describe the
applications to which the recovered materials requirements of the CPG
should be applied. In the supporting analysis for RMAN, EPA explained
what it meant by ``heavy-duty, commercial-type applications.'' There,
the Agency described, in general terms, a number of commercial and
industrial settings where the use of the type of tiles available with
recovered materials content would be appropriate. These would include
entranceways in airports and stores, furniture showrooms, skating rinks
and fitness centers. EPA has learned that this discussion may have
caused some confusion. Some procuring agencies may have confused EPA's
description of the areas where, given special circumstances, such tiles
could be used, with an EPA recommendation that such tile should always
be used in such settings. This was not the Agency's intention.
Therefore, the Agency is today clarifying that tiles with the
characteristics of those tiles manufactured with recovered materials
content may only be appropriate for specialty purpose uses at such
locations (e.g., raised, open-web tiles for drainage on a portion of
school kitchen flooring). Such specialty purpose uses involve limited
flooring areas where grease, tar, snow, ice, wetness or similar
substances or conditions are likely to be present. Thus, EPA is not
recommending floor tile made with recovered materials for standard
office or more general purpose uses. In particular, the preamble to the
CPG states that: ``EPA is not aware of any floor tiles containing
recovered materials being used in standard office flooring
applications'' (60 FR 21376, May 1, 1995).
C. Performance Standards
Regarding the ability of floor tiles to meet applicable American
Society for Testing and Materials (ASTM) and federal government
performance standards, EPA has specifically noted that it does not have
substantive information indicating that available tiles with recovered
materials content meet these standards. As a result, the Agency is
plainly not recommending that procuring agencies purchase recovered
materials content floor tile or establish an affirmative procurement
program where its use is not appropriate under the criteria set forth
in RCRA section 6002 (c)(1) (e.g., fails to meet performance standards
for a particular use, is not available at a reasonable price, is not
available within a reasonable period of time, is not available from an
adequate number of sources).
D. EPA Comments on Federal Acquisition Regulations
As a result of the confusion over the floor tile recommendations,
EPA submitted comments to the Civilian Agency Acquisition Council
(CAAC) and the Defense Acquisition Regulations Council (DARC) on the
interim rule amending the Federal Acquisition Regulation (FAR) (60 FR
28494, May 31, 1995). The FAR interim rule incorporates, among other
environmentally-related procurement policies, the requirements set
forth in RCRA section 6002. The comments submitted by EPA recommend a
clarification to the FAR to make it clear that procuring agencies do
not need to document their decision to purchase items for which EPA has
not included purchase recommendations in an associated RMAN. Thus, if
the CAAC and the DARC adopt this recommendation, procuring officers
would not be required to document their decision not to purchase
recovered materials content floor tile for standard office or general
purpose uses.
IV. Structural Fiberboard and Laminated Paperboard
In the CPG, EPA designated structural fiberboard and laminated
paperboard products for applications other than building insulation.
EPA further included acoustical and non-acoustical ceiling tiles and
lay-in panels in its list of applications to which the designation
applies. Since the CPG was issued, one manufacturer of mineral fiber
ceiling products has expressed concern over the scope of the structural
fiberboard and laminated paperboard designations, particularly as they
apply to acoustical and non-acoustical ceiling tiles and lay-in panels.
EPA wants to clarify that the specific applications included in the
structural fiberboard and laminated paperboard designation, i.e.,
building board, sheathing, shingle backer, sound deadening board, roof
insulating board, insulating wallboard, acoustical and non-acoustical
ceiling tile, acoustical and non-acoustical lay-in panels, floor
underlayments, and roof overlay (coverboard), apply to the purchase of
cellulosic fiber structural fiberboard and laminated paperboard
products only. The listed applications, and therefore the designation,
do not apply to products made from other similar or competing
materials. In other words, if a procuring agency is purchasing a
cellulosic fiberboard acoustical ceiling tile, then section 6002
requires the agency to purchase the ceiling tile made with recovered
materials. However, if the agency prefers to purchase a ceiling tile
made with mineral fiber rather than fiberboard, it is free to do so. In
the latter instance, there is no requirement to purchase a cellulosic
fiberboard ceiling tile. Further, as discussed in section III(D) above,
if the CAAC and the DARC adopt the comments
[[Page 58069]]
submitted by EPA on the amendments to the Federal Acquisition
Regulation, procuring officers would not be required to document their
decision not to purchase recovered materials content acoustical ceiling
for general purpose ceiling uses.
V. Supporting Information and Accessing Internet
Supporting analyses are available on the EPA Public Access Server,
which you can access via the Internet. Follow these instructions to
access the information electronically:
WWW: http://www.epa.gov/epaoswer
Gopher: gopher.epa.gov
Dial-up: 919 558-0335
If you are using the gopher or direct dialup method, once you are
connected to the EPA Public Access Server, choose the following path:
EPA Offices and Regions/Office of Solid Waste and Emergency Response
(OSWER)/Office of Solid Waste (RCRA)/[Non-Hazardous Waste--RCRA
Subtitle D/Procurement/RMAN].
FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address
Files are located in /pub/gopher/OSWRCRA.
Dated: November 5, 1996.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 96-28909 Filed 11-8-96; 8:45 am]
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