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METALS FORUM When it comes to recycling, Uncle Sam is above it all

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George Vary is executive director of the American Zinc Association.
George Vary is executive director of the American Zinc Association.
For decades, Americans have overwhelmingly supported recycling, realizing that conservation of resources by making new products from ones that have reached the end of their current service lives makes good environmental-and economic-sense.

In the steel industry-and steel is the largest-volume recycled product by far-more than 75 million tons of steel were recycled last year in the United States alone, making new products that are just as good as the old ones. Steel from old buildings and appliances is routinely transformed into tomorrow's new bridges and automobiles.

To encourage recycling, Section 6002 of the landmark Resource Conservation and Recovery Act (RCRA) was intended to expand markets for products with recovered content by using the purchasing power of the federal government to support those markets. Unfortunately, RCRA is being ignored by the government. Worse, the government seems not to care that this is the case.

As succinctly explained by the U.S Environmental Protection Agency (EPA) "In Section 6002 of the RCRA, Congress established a program to promote recycling by increasing (government) purchases of products containing recovered materials. Section 6002 requires EPA to designate products that may be produced with recovered materials and to recommend practices for buying these products containing recovered materials. Once a product is designated, federal, state and local agencies and their contractors that use appropriated federal funds to purchase the items must purchase them with the highest recovered materials content practicable." (60 Federal Register 48714, Sept. 20, 1995).

Supplementing this, Federal Acquisition Regulation (FAR) 23.405(c) requires each contracting officer who does not procure an EPA-designated product with recovered content at the minimum level recommended by the EPA to place in the contract file-and send to an official of each agency who is at least at the assistant secretary or equivalent level-written justification for failing to procure the EPA-designated product.

On April 30, 2004, the EPA designated, among other things, "roofing materials" made of steel as a product to be so procured under Section 6002 effective May 2, 2005.

Because the industry saw no evidence that the government was complying with RCRA with respect to, among other things, steel roofing materials, a bipartisan group of six House members wrote to Rob Portman, former director of the Office of Management and Budget (OMB), in Aug. 1, 2006, asking that he direct all Cabinet-level agencies to provide a list of their current building projects involving the procurement, via federal funds, of roofing materials, and a breakdown of the composition of the roofing materials being purchased or used.

Portman replied Sept. 27, 2006, in a letter in which he stated that "each year the Office of Federal Procurement Policy and the Office of the Federal Environmental Executive issue a data call on agencies' implementation of Section 6002. This data is incorporated in a biennial report to Congress. Reporting does not focus on the specific composition of material because of the cost and complexity of this level of analysis. The fiscal 2005 data call asked agencies about their affirmative procurement plans, which were required to include recycled roofing materials as of April 2005. Information received from the agencies will be included in the next report to Congress."

Someone gave Portman terrible advice for this non-responsive response.

- Despite his exhortation to wait until the next report to Congress (whenever that might occur; the report for fiscal 2002-03 was prepared in October 2005), previous reports can be scoured in vain for the type of information requested by the six House members. None will be found. The reports simply do not tell anyone whether a particular EPA-designated product is being procured as the law requires.

- Agencies apparently can generate the information requested without any great cost or effort. The General Services Administration (GSA) Mid-Atlantic Region, in response to a Freedom of Information Act (FOIA) request I filed, provided information showing that only two out of 10 roofing projects used products with recovered content. Of the eight that did not, GSA advised that all eight contract files lacked the written justification required. It seems instructive that I was not charged for this by GSA, undercutting the notion that this analysis was costly and complex. In addition, the GSA response was mailed just 36 days (including all the December and January holidays) after the FOIA filing, again strongly suggesting that this information is not that hard to develop. Finally, the information appeared to indicate that roofing materials with recovered content were not even specified as an alternative in those eight jobs, which in itself was an apparent violation of RCRA.

In short, information on compliance with the law seems readily available if one is even mildly interested in asking for it. Unfortunately, the information produced by GSA strongly indicates non-compliance. Perhaps this is why Portman was urged not to take the time to look for it.

As if OMB's studied indifference were not enough, the U.S. Commerce Department refused to be involved at all in the request for data on compliance with RCRA. Commerce was directly requested by metals interests (steel and zinc) to support the request to OMB for information on compliance with the law, but refused to do so much as pick up the telephone (or send an e-mail) to OMB indicating Commerce's support of the request from steel, zinc and Congress for information.

This result, unfortunately, seems in keeping with a documented (but, nevertheless, inexplicable) lack of interest by Commerce in expanding domestic markets for products with recovered content. A December 2006 report by the Government Accountability Office (GAO) titled "Additional Efforts Could Increase Municipal Recycling" contained this pointed indictment of Commerce "Although Commerce is required under RCRA to stimulate the development of markets for recycled materials, it is not taking any actions to do so in the United States. . . . Commerce is falling short of meeting its requirements under RCRA to stimulate the development of markets for recycled materials in the United States. . . . To fully meet its requirement under RCRA, we are recommending that Commerce develop and implement a strategy to stimulate the development of markets for recycled materials in the United States."

As is customary, GAO provided Commerce with an opportunity to comment on these conclusions before issuing the final report, but in keeping with what appears to be Commerce's hands-off policy on increasing domestic markets for recyclable materials, the department demurred "Commerce did not directly address our recommendation regarding developing a strategy to stimulate markets for recycled materials in the United States. Rather, Commerce provided a list of ongoing activities that support the agency's mission to promote international trade in goods and services produced in the United States, including trade in recycled and recycled materials."

While not worse than failing to address the GAO proposals, Commerce's list, itself, contains stale items on which nothing has been done for some time (the Basel Convention, for example)-more indication that Commerce appears to be wholly uninterested in promoting markets for products with recycled content.

As noted, a FOIA request to the GSA indicated steel roofing materials were not being procured as required. A similar request to the Defense Department resulted in the production from the Defense Logistics Agency (DLA) in Philadelphia of contract documents showing that asphalt roofing (with, as EPA found, no recovered content) was used on the majority of projects referenced. I was not sent any copies of the FAR justifications by DLA, despite specific request, strongly suggesting those documents were not prepared and filed as required.

I also requested, via FOIA, copies of the document required by FAR to be filed with the Defense Department's agency environmental executive in the Office of the Secretary of Defense. I was informed by e-mail from the Defense Department's Office of Freedom of Information that the "Office of the Secretary of Defense . . . does not maintain the type of records you describe in your requests," which seems to confirm that the FAR-mandated justifications were never made.

This paints a sorry picture of government adherence to the law and encouragement for increasing markets for products with recovered content. OMB can't be bothered to ask if there is compliance with RCRA, Commerce won't help find out information and has no interest in building domestic markets for products with recovered content, and the two main procuring agencies of the government are going on with business as usual in disregard of the law.

RCRA is being ignored and government support for recycling is winked at. Why?

George Vary is executive director of the American Zinc Association.

Metals Forum appears monthly and is open to submissions from industry and trade associations eager to address issues of concern to the metals community.


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