[Federal Register Volume 61, Number 219 (Tuesday, November 12, 1996)]
[Notices]
[Pages 58067-58069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28909]



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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

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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 ``heavy-
duty, 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

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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]
BILLING CODE 6560-50-P