OGC is the EPA Office of General Counsel
OARM is the EPA Office of Administration and Resources Management
OSW is the EPA Office of Solid Waste
DOD is the Department of Defense
GSA is the General Services Administration
December 23, 1988


SUBJECT:    Procurement Guidelines

TO:               Matthew Straus

FROM:         William Sanjour

    You have asked me to write up my view of the problems we are having in the procurement guideline workgroup with OGC and OARM. In a nutshell it is this: if we go along with OARM and OGC's demands for changes in the procurement guidelines, EPA will be in the absurd position of having put the people Congress intended to regulate in charge of writing the regulations.

    The persons being regulated under section 6002 of RCRA are "procuring agencies", that is, basically, government procurement officials. Congress has passed laws requiring procurement guidelines to be written even before the creation of EPA. These guidelines were supposed to cause procuring agencies to procure recycled products. In the past, EPA either ignored the requirement or wrote weasel worded guidelines with no teeth. Procuring agencies for the most part ignored the guidelines.

    Every few years, a disgusted Congress, seeing nothing happening and prodded by recycling industries, would pass stronger legislation, and EPA and the procuring agencies would continue to ignore them or get around them. The last revision of the law was the HSWA amendments of 1984. The new law had a lot of teeth in it, but EPA proposed a guideline for paper in April of 1985, which thwarted the law and would have let the procuring agencies off the hook.

    This outraged the recycling community and the Congressional sponsors of the procurement guidelines. They called the Director of OSW on the carpet and he promised to re-propose a paper procurement guideline with teeth in it. It was at that point that I was put in charge of the procurement guideline program. I was told by my management that the Agency took the guidelines seriously and that I was to issue meaningful guidelines that would have a real effect on reducing the solid waste stream. These instructions have never changed. Shortly after that, EPA rediscovered municipal solid waste and the procurement guidelines program took on new importance.

    One of the chief problems I found was that the legislative language of section 6002 is badly drafted. One could ignore that and proceed to issue guidelines which would be so full of ambiguities and loopholes, that no procurement agency need take them too seriously (as was done with the original proposed paper guideline). I chose instead to go out of my way to try to resolve the ambiguities and close the loopholes. Let me illustrate two such problems which we addressed and which are among the issues now being re-opened by OGC and OARM.

    Section 6002(d)(2) requires "Federal agencies" to revise their specifications, once EPA issues a procurement guideline, so as to assure the maximum use of the material designated in the guideline. Section 6002(i) requires that, once EPA issues a procurement guideline, "procuring agencies" are to institute an affirmative procurement program which will assure that the designated item is procured to the maximum extent practicable. The trouble is that the tern "procuring agency" is defined in the law to include more than "Federal agencies". It includes states, counties and even contractors under some circumstances. But if states, for example, are not required to revise their specifications under section (d), they need only cite the lack of a specification for failing to implement the provisions of (i).

    We corrected this loophole by interpreting the law so as to apply the provisions of section (d)(2) to "procuring agencies" and not just "Federal agencies". This was first done in the re-proposed paper procurement guideline. OGC reviewed the decision and agreed that it was a legally defensible position. Since then it has appeared in the final paper guideline, the proposed asphalt rubber guideline, the proposed and final oil guideline, the proposed and final tire guideline and the proposed insulation guideline. Each time it was reviewed and accepted by OGC. Three different OGC counsels have passed on it. There have been five opportunities for public comment and three opportunities for a lawsuit, yet no one, until now, has ever challenged our position.

    A second issue is in the use of the word "specification". Section 6002(d) requires specifications which discriminate against recovered materials, to be revised. A great many of the procurement practices which unfairly discriminate against recovered materials are not labeled "specifications". For example, GSA gave us a memorandum from their administrator instructing them not to use retread tires on passenger vehicles. They cited this as a reason why they could not comply with the guideline. Our position is that Congress included such documents in the term "specification" even though it is not a specification in procurement jargon.

    The example which triggered this was the fact that DOD let out such huge nationwide contracts for oil, that small recycling firms could not bid on the whole package. We took the position that this practice discriminated against recovered oil and was a procurement specification in the sense that congress intended and should be revised. Again, OGC reviewed our position in the oil guideline and affirmed that it was legally defensible. This position was in the proposed and final oil guideline, and the proposed and final tire guideline, and the proposed insulation guideline. As with the other example, this interpretation has never been challenged outside or inside the Agency until it was recently challenged by the OARM OGC team.

    The only public comment we have ever received on this issue is when, by mistake, we changed the language in the proposed insulation guideline from "must" to "should", the very change that OARM and OGC are now advocating. We received a docket comment from the people who are suing us challenging that wording.

    I would like to make clear just what is at stake here. To illustrate, let's review what we went through in issuing the tire guideline. GSA fought us on this every inch of the way. They had numerous meetings, bringing in people from all over. The docket is full of their letters. They made phone calls. They presented one excuse after another about why they could not buy retread tires.

Retreads are unsafe. We have no specifications. The National Highway Traffic Safety Administration says we can't. The Administrator says we can't. We can't warehouse tires. There's too much variability in quality. It will hurt small businesses. It will raise cholesterol levels. Et cetera, et cetera, et cetera.
    The final guideline addressed every one of their excuses, and disallowed every one of them. We left them no room to wiggle. Today GSA is marshaling its efforts to figure out how to comply with the guideline. Task forces are being organized, people are being shuffled around and reorganized. In other words they are doing the things that bureaucracies do to cope with a new responsibility. The phone calls we get from GSA are no longer saying "we can't" but "how do we?"

    Would we have gotten this kind of turn around if we had used the kind of weasel words that OARM and OGC now want us to use? I doubt it. The public always complains that it cannot understand the rules that we bureaucrats write, but bureaucrats understand what bureaucrats write. If we had put in the weasel words, if we had left GSA with wiggle room, they would have recognized it as the equivalent of a wink and a nod which says in effect "we've got to put out this crap to humor Congress, but you guys don't really have to do anything." Instead, the message GSA got when they read the guideline was, "these guys aren't kidding, they really mean it" and they acted accordingly.

    Look at what's happening at the state and county level. Our consultant Nancy VandenBerg, who works closely with state and locals in establishing recycling programs, tells me that the guidelines have had a strong influence in getting states and counties to set up procurement programs for recovered materials. In most jurisdictions, just as in the Federal government, there are those who want to do the recycling thing and those who think it's too much bother. Nancy tells me the guidelines frequently tip the balance because the ones who want to do wave it and saying "the Feds say we got to do it, we got no choice." Nancy tells me she's been told that if the guideline said "should" instead of "must" it wouldn't have worked.

    In other words, what is at stake here is whether we are going to issue meaningful effective guidelines or whether we're just going to play silly meaningless bureaucratic games.

    Why are OGC and OARM doing this? Eleanor Norment, the OARM representative is an EPA procurement official. Thomas Doherty, the OGC representative, is a procurement attorney. Eleanor Norment refers to Thomas Doherty as her counsel. These people were placed on our workgroup by order of the EPA Steering Committee. As I pointed out earlier, procurement officials are the very people we are supposed to be regulating. They are the people who, for many years, Congress has been trying to get to buy recycled goods, with no result. Even EPA procurement and grants officials ignore EPA's procurement guidelines. Now they are members of our workgroup. Furthermore, the counsel for the regulated community is also the spokesman for the EPA Office of General Counsel.

    Their behavior on the workgroup is not what one would expect of a workgroup member. It is what one would expect of someone we are trying to regulate and who doesn't want to be regulated. They are forever raising issues, asking questions, and pointing out flaws. When asked to suggest solutions to the problems they raise, they are indignant and almost never do so. When they do offer solutions, it is usually some weasel worded cop-out. When we suggest a solution, their response is "well let's look at this other problem." When we ask them to write up specific language which meets their requirements, they are too busy. But they never seem too busy to request more meetings to go over the same ground time after time, or to pursue some bit of minutia ad infinitum. When we take our own time to draft specific language to attempt to address their concerns their reaction is "we'll have to think about it."

    I'm not saying they are bad people. I believe they are honestly, forthrightly and even competently doing what they believe they are supposed to be doing, i.e., protecting the interests of the Federal procurement community. As such, though, they have repeatedly shown no concern for what I view as EPA's interests, i.e., they are not interested in issuing an effective guideline or any guideline at all, they are not concerned with recycling, they don't care about the landfill crisis, they know nothing of EPA's commitment to help solve municipal waste disposal problems, and they don't seem to care that the Administrator is under a court ordered deadline which they may very well cause him to miss.

    As of right now, only one issue remains formally unresolved in the insulation guideline. This is the second of the two issues discussed above. The other issue has, by agreement, been deferred to the policy paper workgroup. However, OGC has told us that they will have more issues and have called for still another workgroup meeting on Thursday, December 29.

cc:    Sylvia Lowrance
        Dev Barnes
        Eleanor Norment, PM-214F
        Thomas Doherty, PM-214F

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