STATEMENT OF CLIFFORD P. CASE ON BEHALF OF THE NATIONAL RECYCLING COALITION, INC. BEFORE A HEARING OF THE UNITED STATES SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS ON FEDERAL PROCUREMENT OF RECYCLED PRODUCTS

July 11, 2002

I am grateful to Senator Jeffords, Senator Smith and the full Committee for the opportunity to speak today on behalf of the National Recycling Coalition about the importance of federal procurement of recycled products. Recycling makes environmental sense and economic sense; it is enduringly popular with citizens of all ages and backgrounds throughout the nation; it is thoroughly bipartisan; and it deserves the full support of all agencies of the federal government. But while much has been accomplished since the first Earth Day focused public and governmental attention on recycling, much, much more remains to be done.

I am an attorney, and co-direct the Environmental Practice Group at my firm, Carter, Ledyard & Milburn in New York City and Washington, DC. For over 30 years I have maintained a significant interest in recycling and tried to do what I could, as a lawyer, to make it grow, including founding the National Recycling Coalition in 1978 to unite the diverse groups who wish to see recycling succeed. The Coalition has 5,000 members representing all aspects of recycling: volunteer recyclers, state and local government officials, businesses collecting and sorting materials for recycling and manufacturers of recycled products.

It is fitting that we speak here of federal procurement of recycled products, because it was the passage of the Resource Conservation and Recovery Act and its signature by President Ford in October, 1976 that was a major catalyst for the organization of the National Recycling Coalition. Recycling has always been recognized as a prime method of conserving resources, and consequently, RCRA contained an important provision, Section 6002, that for the first time required that the federal government=s purchasing power be used to support recycling. An important reason for the formation of the National Recycling Coalition was to work for the implementation of Section 6002 and later efforts to use federal procurement to strengthen the markets for recovered materials and thus make more recycling possible.

Have we done enough in the past quarter century to comply with Section 6002 and the executive orders subsequently issued by the first President Bush and by President Clinton on procurement of environmentally preferable products? Unfortunately, no. Things started off on the wrong foot when the Environmental Protection Agency failed to issue guidelines for the purchase of recycled products by deadlines added to Section 6002 by Congress in the face of agency inaction, forcing the National Recycling Coalition and Environmental Defense to sue EPA, successfully, for an order directing guideline issuance.

Since that time some progress has been made, but as documented by the General Accounting Office=s June 2001 report, AFederal Procurement: Better Guidance and Monitoring Needed to Assess Purchases of Environmentally Friendly Products,@ by no means has that progress been sufficient. There have been limited successes and isolated achievements, but anecdotal accomplishments are not enough.

In general, federal agency procurement does not take advantage of the broad range of high-quality recycled products available in the marketplace today. As the GAO report makes clear, most agencies do not know what recycled products they are purchasing, and government buyers lack knowledge as to what products are available or how to get them. Purchasing data is fragmentary, in most cases based only on estimates, and incomplete. Many agencies report little or no information, and important components of many agencies (for example, in the case of the Department of Defense, the Army, the Navy and the Air Force) provide little or no information.

Moreover, the programs that do exist cover direct agency purchases only. I know of no instance in which agencies make any effort whatsoever to assure compliance with Section 6002=s affirmative purchasing requirements by their contractors and grantees. This is of vital importance because purchases by contractors and grantees using federal funds are often much more significant than those of the agencies themselves: GAO notes that in fiscal year 1999, 85% of the total outlays of the Department of Housing and Urban Development were for grants to states and local governments, and 69% of the total outlays of the Department of Transportation were for such grants. It is safe to say that none of those grantees knew that by law, they were required to give a preference in purchasing to recycled products.

A review of agency responses to the GAO report demonstrates that while most agencies give lip service to the importance and desirability of recycling, they do not take responsibility to make procurement of recycled products work, either for themselves or for their contractors and grantees. Moreover, these agencies make no effort to justify their failures to perform. While noting that training of buyers in procurement of environmentally preferable products is needed, the agencies show no indication of any attempt to provide such training, either on their own or in conjunction with others, despite being charged by Congress with the duty of affirmative procurement of recycled products. Such blatant disregard of the law should no longer be condoned.

This bureaucratic foot-dragging, prolonged for over two decades, is immensely frustrating to those of us who have been advocates for more recycling over the years, but it is also important to society as a whole, because the ability to recycle more, and thus achieve the benefits of conservation of resources, reduction of pollution and savings in energy B all important to our national security as well as to the environment B depends directly on strong markets for recovered materials, and these markets depend directly in turn on strong markets for the recycled products made from those materials. Every time a federal agency fails to buy a product made from recovered paper, plastic or metal, it condemns that material to the landfill instead of to a new, productive rebirth as a recycled product. Every time a federal agency fails to require its contractor or grantee to use construction products made from recovered materials, it ensures that those materials will be thrown away and not recovered.

This is not by any means an academic issue. This past July 1, in my home of New York City, the Department of Sanitation stopped collecting recovered glass and plastic bottles and paperboard drink containers. The reason asserted by the City administration? A lack of markets for these recovered materials. One may be somewhat skeptical of the City=s reasoning here B I know I am B but the fact remains that a number of municipalities have recently cited a lack of markets as a reason for cut-backs in recycling collection efforts. Furthermore, data from the Environmental Protection Agency show that after a decade of significant growth, the nation=s recycling rate leveled off in the late 1990=s: waste generation began to increase faster than recycling. Moreover, many of the products entering the waste stream today, in particular the ever-growing flood of obsolete electronic equipment, are particularly tough to recycle, and require even more effort to achieve success in recycling than the simpler waste materials of the past.

Given this background, it is especially infuriating to encounter the bland assertions of procurement bureaucrats that purchasing recycled is too difficult to do, or requires more information that is not easily available, or more training that someone else needs to provide, and so on ad finitum.

It is evident that we need to do more than we have been to break down the barriers to greater success in government programs to buy recycled. Most importantly, every responsible procurement official needs to make buying recycled an important part of his or her duties, and every government contractor and grantee needs to receive clear instructions on its obligation to recycle. If these duties and obligations are not fulfilled, definite sanctions should be imposed, proportionate to the seriousness of the offense. For a procurement official, a failure to buy recycled should be recognized as a failure to perform his or her duties of office. For a contractor or grantee, a failure to buy recycled should be recognized as a failure to perform the terms of its contract or grant agreement.

Several promising initiatives have been proposed to increase the success of the government=s procurement programs for recycled products. The National Recycling Coalition has not taken an official position on these initiatives, but we hope this Committee will consider some or all of them. They include: codification of the existing executive orders on procurement to, among other things, give statutory sanction to principles of design for recyclability, life-cycle costing and reliance on environmentally preferable products; requiring major improvements in the woefully inadequate information collection system for purchasing recycled products, so that year-over-year progress -- or its absence -- can be more clearly tracked; providing for mandatory training programs for government buyers, to take the mystery out of buying recycled; and a Congressional award program to recognize those dedicated public servants who, despite all the current obstacles, have nevertheless managed to buy recycled products successfully.

Coupled with these new initiatives must, however, be a continuing interest in this subject on the part of Congress, because no legislation is self-executing and careful oversight is essential. If nothing else, the history of Section 6002 of the Resource Conservation and Recovery Act since 1976 teaches us that!

We commend this Committee for its interest in government procurement of recycled products. As we know you agree, the benefits of recycling are great and have been repeatedly documented. But we cannot achieve these benefits unless we take buying recycled seriously. The government represents us all and should be the leader, not the laggard, in doing just that. The National Recycling Coalition looks forward to working with you over the coming months to make sure that this vision of true government leadership becomes reality.

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