During the COVID-19 pandemic, as large and small businesses alike struggle to stay afloat while acting responsibly to protect public health, sustainability may not be top-of-mind. But the development and sale of sustainable products may provide struggling businesses with new sources of revenue and competitive advantage in the days ahead.

The federal government promotes recycling by using federal purchasing power to demand products made with recovered materials. The U.S. Environmental Protection Agency (“EPA”) maintains a list of approved recycled-content products for procuring agencies.  EPA has commenced a 90-day public comment period on a new list that may be more relevant than ever as companies seek to emerge from the current crisis.

What’s the list?

Section 6002 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6962, authorized EPA’s Comprehensive Procurement Guideline (“CPG”) Program as part of an effort to promote recycling. With a few exceptions, section 6002(a) of RCRA requires procuring agencies—including federal agencies and state or local agencies or government contractors using federal funds— that spend more than $10,000 a year on an EPA-designated item to purchase that item made from recovered materials. Executive Order 13423 also requires agencies to implement sustainable acquisition practices and purchase EPA-designated recycled-content products as well as environmentally preferable products.

The CPGs designate items that are made, or can be made, from recycled materials. EPA then publishes Recovered Materials Advisory Notices (“RMANs”), which provide recommendations and procurement specifications for purchasing those designated items. EPA must identify a recycled-content level for each item – often a range. There has not been an update to the CPGs since 2007.

Request for public comment

On April 7, 2020, EPA commenced a 90-day public comment period, seeking input on the current recycled-content designated items and procurement specifications.  See 85 Fed. Reg. 19473.  This presents an opportunity to identify new items and categories or to weigh in on the current recycled-content levels for existing items.

What are the current designations?

The existing CPGs/RMANs include 61 items in eight different product categories: (1) Construction Products; (2) Landscaping Products; (3) Miscellaneous Products; (4) Nonpaper Office Products; (5) Paper and Paper Products; (6) Park and Recreation Products; (7) Transportation Products; and (8) Vehicular Products.

Although EPA does not endorse any specific product or manufacturer, EPA maintains an online database of manufacturers and suppliers for each designated item.

Why does it matter?

Given current demands, EPA may be open to considering new item-types for inclusion the list (e.g., certain personal protective equipment). EPA would need to develop a CPG/RMAN for any new designation, which takes time and further comment. But EPA’s request for comments on the proposed list may present an opportunity for manufacturers of recycled goods.

Manufacturers and others have until July 6, 2020 to submit comments on the proposed designations and to propose additional product-types made or capable of being made from recycled materials that are in high demand by procuring agencies, but not yet designated.