Environmental Procurement In New York City:

Making the Case for Enacting Comprehensive New Legislation

Marjorie J. Clarke

Center for Applied Studies of the Environment

City University of New York

89th Annual Meeting & Exhibition

Air and Waste Management Association

Nashville, Tennessee

June 23-28, 1996

INTRODUCTION

Environmental procurement, or purchasing, is the manner by which consumers of goods, be they large consumers, such as companies, government agencies, or institutions, or smaller consumers, such as individuals, buy products and packaging such that degradation to the environment is minimized. All products and packaging require materials in their manufacture, and these materials consume renewable as well as scarce natural resources, such as trees, oil, and metals. Environmental impacts to air, water, and land occur when raw materials are refined, manufactured, transported, and marketed. When products and packaging have been deemed to be consumed, their disposal causes other environmental problems and is quite costly to municipalities. Purchasing items with less packaging, avoiding disposable products, selecting durable products with longer warrantees, buying remanufactured or “pre-owned” goods, and buying products and packaging which has recycled content and which, themselves are recyclable, are just a few of the methods of environmental procurement, since they reduce the environmental impacts of purchasing. These procurement practices reduce natural resources consumption and environmental degradation, with the added bonus of stimulating new industrial activity in recyclables processing and remanufacture, and goods maintenance, repair, and refurbishment, and source-reduced product and packaging design.

The enactment of Local Law 19 of 1989, New York City’s mandatory recycling law, was responsible for establishing the beginnings of environmental procurement, or purchasing, by New York City government. In practice thus far, environmental procurement has been largely limited to price preferences for recycled content paper products purchased. The broader issues of environmental procurement, for example product durability, extended/transferable warrantees, reuse, remanufacturing, and reduced packaging, and advancing the extent of environmental procurement in practice, have not been resolved in local legislation thus far in any meaningful way. But the topic is under debate, as proposals surfaced in 1993 and 1994 from the City Council and the Administration. In 1995 a coalition of environmental organizations worked with Council staff to introduce a bill to expand the scope of environmental procurement in New York City.

This paper describes environmental procurement, its history in New York City, the structure of the City's current recycled content procurement program; the successes and failures of this program, and subsequent efforts to expand the applicability and effectiveness of environmental procurement by the City government. Most significant of these later efforts, reported here by one of the primary authors, is Intro. 509, the legislation drafted by members of the Manhattan Citizens' Solid Waste Advisory Board, the Environmental Defense Fund (EDF), and the Natural Resources Defense Council. (See acknowledgements for more information.) This landmark legislation, which could be used as a model for other jurisdictions, is described briefly, section by section. The substance and politics of the debate and the current status of the bill are also described.

THE EVOLUTION OF ENVIRONMENTAL PROCUREMENT

Even though the concept was introduced in the Resources Conservation and Recovery Act in 1977, environmental procurement took years of education, legislation, and preparation for the time to be right for the idea to proliferate widely. It was during the 1970s that the first, basic laws were introduced to clean the air and water, to protect coastlines and species, and to manage solid and hazardous wastes. New environmental and energy agencies were established at all levels of government in order to implement the requirements of the new laws. Awareness that environmental protection was something in which individuals, businesses and government all have a part to play was just emerging.

By the 1980s the concept of the waste management hierarchy was introduced, though to this day, little attention has been paid to the uppermost priority, waste prevention. But recycling has slowly caught on in a big way, and has become the widely recognized symbol of individual commitment to preserving the environment. But for several years, while recycling collection programs were introduced tentatively around the country, and residents and businesses learned how to separate their recyclables, slower progress was made in developing markets for the separated recyclables. Municipalities and counties have typically not made it as high a priority to foster market development for the recyclables which they have pushed hard to collect. Manufacturing companies were not typically quick to change production lines at existing factories, or build new ones, to take in the recyclables for use as feedstock (though this did catch on in the last decade). This reticence was due, in part, to the risk that the supply of recyclables might dry up due to factors outside their control (e.g., lack of commitment by government to fund recycling programs, which has been an issue in New York City and other municipalities, the risk that people might lose interest in recycling, that the quality of the recyclables might not be good enough, or that research and development was necessary to fashion new products using the unusual feedstock. Another barrier to building markets for recyclables has been government policies, and in some cases tax structures and legislation which preferred or required products purchased by government to be made from virgin materials, and to be, in all respects a new product.

Consumers have not begun to realize, until recently, that their responsibility for recycling does not end at the curb. This is true not only of individual consumers, but also of larger purchasers, including businesses and government. This point has been reflected in the Ad Council’s public service announcements, which several years ago cautioned that unless we are all recycling, we are “throwing it all away”. Now these ads have started to focus on the need for consumers to complete the recycling loop by buying products made of recycled materials. As recycling programs become stronger and a greater number and quantity of materials are collected, the 1990s are becoming a decade where the potential of recycling as a viable part of economic development, as well as environmental protection, is being realized.

But again, this is proceeding at a cautious pace. Many bills and executive orders have focused narrowly on structuring procurement preferences to encourage more government purchases of recycled content paper. There are some state guidelines for many categories of recycled goods, and even remanufactured goods, but mandatory requirements are not as common. Since paper constitutes 38% of the waste stream, it is logical to have started such programs in this manner. But since governments make up a significant portion of the economy, and therefore the buying power, there is a great deal of untapped potential for government to stimulate markets for many other materials in addition to paper. Recycled materials for which markets can be fostered by procurement requirements include rubber, glass, metals, and plastic, among others.

But environmental procurement need not be limited to stimulating purchases of products containing recycled materials. Environmental procurement, broadly defined, can also include the purchase of products and packaging which incorporate solid waste prevention objectives, as well as water and energy conservation measures. This will accelerate the design of lower volume and toxicity, recyclable, reusable, and higher durability products and packaging, reducing the cost and environmental impacts of solid waste management in the long run. Procurement initiatives need not be limited to addressing the increased purchase of environmentally beneficial products and packaging, but can also be structured to eliminate any barriers to such purchases still codified in government policy or statute. Add to this expanded view increased purchase of used products which have been repaired, reconditioned, or remanufactured (e.g., building materials such as windows, doors, bricks, toilets, and furniture and electronics), and government’s potential to spur economic development in the decaying repair industry and the nascent remanufacturing industry becomes clear.

HISTORY OF ENVIRONMENTAL PROCUREMENT IN NEW YORK CITY

Early Local and State Laws

In 1987 the first City statute addressing environmental procurement (Local Law 20 of 1987) was enacted, allowing that purchases need not always be given to the lowest bidder. It was the first legal authority for giving a price preference of 10% for recycled paper products. Local Law 19 of 1989, the City’s mandatory recycling law also began to address City government procurement of non-paper products with recycled content, stipulating that a price preference of 5% may be given to vendors supplying products with recycled content starting in 1991. More than three years later the Department of General Services' (DGS) final rules regarding eligibility for a price preference for goods made with recycled content were finalized.

In 1991 New York State’s General Municipal Law (Sec. 104-a) was amended to enable municipalities and counties to offer a 10% price preference for non-paper recycled products as well as for paper. An additional 5% price preference was allowed for materials derived from the New York State waste stream.

Mayoral Directives

In 1991 in an effort to spur more purchases of recycled paper, the Mayor of New York City issued Directive No. 91-5 requiring agencies to use letterhead and business card stock with 50% recycled content. In order to facilitate implementation of this Directive, DGS developed bid specifications specifying this minimum content. Additionally, curbside plastic (LDPE) containers were specified to have 25% recovered material, 10% of which was post-consumer.

In 1992 another Mayoral Directive on Waste Prevention (No. 92-5) was issued requiring Mayoral agencies to implement specific waste prevention practices as well as report twice each year to the Mayor’s Office of Operations on the progress of waste prevention initiatives. This directive specified a number of procurement practices for agencies to adopt. Some of these included asking vendors to backhaul packaging for reuse, distributing vendor surveys to spark new ideas to reduce packaging, and revising bid specifications to require waste prevention in purchasing. In addition, this directive laid out a number of in-house waste prevention practices (e.g., by getting off unwanted mailing lists, using email, doublesided copying, etc...) and directed agencies to salvage reusable goods. To date, according to the Department of Sanitation (DOS), the response to this has been spotty, with some agencies following the directive to some extent, and others not at all. No comprehensive, quantitative assessment of the tonnage saved nor the dollar amounts involved has been done.

Current Procurement Practices and Achievements

This first step towards environmentally responsible procurement has resulted in the purchase of large quantities of recycled paper, but relatively little procurement of recycled content products other than paper, or reflecting waste prevention has occurred. Since 1992 there have been contracts for 40 categories of paper products with varying levels of recycled content. According to DGS, “during fiscal year 1994, 25 contracts with an estimated value of $5.9 million were awarded for paper products with recycled content. This represents 50% of the estimated $11.9 million which will be spent on paper having recycled content potential.” But by comparison, the total estimated value of purchases of goods with recycled content in FY94, including paper and printing, totaled a little over $18 million.[i] Further, the percentage of post-consumer content has been disappointing, in most cases around 10% for paper and envelopes, despite wide availability of 100% post-consumer content papers for some years. The City’s purchases of non-writing papers has had more post-consumer content: 25-50%: boxes and paper towels, 70%: napkins, and 95%: toilet tissue.

The good news is that just within a year or two DGS’ efforts immediately spurred a jump in paper and print contracts, from $1.73 million in 1989 to $7.13 million in 1990, due mostly to paper contracts, and to $8.06 million in 1991, with most of this marginal increase due to print contracts. And by FY94 all twenty-five of the paper contracts were awarded without the need to utilize the price preference provision in bid solicitation. About a third of the printing contracts were awarded without the use of the price preference.

Non-Paper Products have been much slower to achieve these results. The DGS report indicates a rocky road in implementing environmental procurement in this area, with no purchases of non-paper contracts with recycled content until 1990. Such purchases went from $4.1 million in that year to $9.9 million in 1991, then down to $700 thousand in 1992, up to $2.1 million in 1993 and $11.3 million in 1994. The total list of contracts for non-paper products with recycled content during the first five year period includes: asphalt mixtures, polyethylene bags, liners and sheets, ceiling tile, hydraulic and lubricating oils, plastic lumber and pilings (for a special demonstration pier project), barricades and traffic cones, weatherproof fiberboard, antifreeze, bathroom partitions, and plastic desk trays. Asphalt has accounted for 75% of the dollar value of these contracts, and with much of the asphalt having 10% secondary material. The Tiffany Street pier project accounts for another 7% of the total dollar value, but the recycled content ranges from 75-100%. Most of these purchases were made without the use of the price preference. However, since DGS purchased recycled content in such a small number of non-paper products, the lack of the use of price preference may actually be indicative of a narrowly targeted program rather than a broad-based policy of advertising to all potential bidders regarding the City’s desire for recycled products in all categories of procurement.

Remanufactured products is another area of environmental procurement that the City has just begun to explore. In FY93 three contracts for a little over $1 million were awarded for purchasing remanufactured photocopiers over a three-year period. In FY94 a $370,000 3-year contract was awarded for buying remanufactured toner cartridges, and $150,000 for refrigerant recovery recycling systems.

To place these purchases in perspective, It is important to note that total DGS procurement of all goods for FY94 was on the order of $625 million, though cars, fuel, and food represent the vast majority of the total.[ii] And other agencies do additional purchasing. As DGS did not provide information on the percent of total purchases in its annual report, a more accurate evaluation is not possible. DGS is laboring under considerable restrictions which impede its ability to implement and document environmental procurement. First, starting in the latter part of FY94, with the advent of the most recent administration, the already small staff at DGS dedicated to environmental procurement was decimated (down to one individual). In addition to a near lack of an operations budget, DGS has stated in public hearing that its computer system is quite old and is, therefore, in dire need of upgrading to track adequately its purchases of recycled products and products which prevent waste.[iii] Such inadequacy would make it difficult to advertise to and keep track of a broader range of potential bidders with a wider selection of product types and specifications.

Because of these reasons, the City has not developed a comprehensive strategy to procure products and packaging which incorporate waste prevention principles, such as durability, reusability, recyclability, and reduced volume and toxicity. Further, there are no plans to advance such a strategy, or to gather information on the environmental attributes of products it purchases in a thorough or systematic way, or to document it (other than recycled content, and in some cases remanufactured product purchases, which DGS does now). Without an improved capacity for data acquisition, processing, and reporting, implementation of waste prevention measures in procurement is hindered.

The City has some warehouse space and limited capability to foster the reuse of office furniture and other durable products. However, this capability is also not optimized in that current information about the warehouse inventory is not readily available to those who could use it. A computerized, user-friendly, living database, accessible by all City employees, is needed to encourage maximum utility by the City agencies of durable products the City has purchased. Likewise, increasing the City's capability to repair and maintain its durable products will lengthen their useful lifespan, reduce collection and waste disposal costs, conserve space at the City’s only landfill, and reduce environmental impacts associated with waste disposal.

Thus, it is clear that this first step towards environmentally responsible procurement due to Local Law 19 resulted in the purchase of recycled paper and a few other recycled products, but there are many aspects of environmental procurement which remain unexplored by the City. To this end, it is desirable to amend Local Law 19 to increase the breadth and effectiveness of the City’s procurement of all kinds of products and packaging, which has recycled content, reduced volume and toxicity, and which are durable, reusable, remanufactured, and recyclable. By redirecting purchases towards such products and packaging, the City saves money by reducing the purchase and disposal of disposable products and excessive packaging, and by avoiding the adverse environmental impacts caused by having to deal with products containing toxic constituents. Such a move can also foster markets for recovered materials and local economic development.

City Council

In early 1993 these realities were recognized by the Council Committee on Environmental Protection, and it proposed Intro. 629, a bill which would increase the price preferences for the City’s purchase of products with recycled content, and which would establish the government as a major market for the City’s own recycled paper. Responsible bidders offering goods with at least 50% of recycled content taken from New York State’s waste stream would be able to charge up to 15% more than those selling non-recycled products. Goods with at least 50% of recycled content taken from the City’s waste stream would have a cost premium of 20%. The price preference for all other recycled products would be increased from 5% to 10%, and the additional premiums for New York State and City content would also apply. Though this bill would have served to strengthen Local Law 19 provisions on environmental procurement, it did not advance to the Council floor, but did serve to get DGS and DOS to collaborate on a new environmental procurement legislative package.

Intro. 816

During 1993 the DGS and DOS worked hard to prepare a more comprehensive amendment to Local Law 19 of 1989 while incorporating some of the provisions proposed in the earlier City Council-initiated bill. At the request of the Manhattan Citizens’ Solid Waste Advisory Board (MCSWAB), one of the borough Boards established by Local Law 19, members of MCSWAB, the Citywide Recycling Advisory Board (CRAB), and the EDF were invited to participate in discussions. As the Waste Prevention and Procurement Committees of the MCSWAB had been developing their own recommendations for City environmental procurement legislation for some months, these members provided critiques and alternative proposed language for the legislation, some of which was included in the Administration legislation. In the end the bill would have added the following provisions to the City’s procurement requirements:

1) consideration of recyclability and waste prevention in DGS’ specification and practice review,

2) consideration of packaging as well as products in DGS’ specification and practice review,

3) application of the results of this review process to all City agencies

4) increase in the price preference to 10% (higher for materials generated in New York City) for products that use waste from the City’s waste stream,

5) multi-material products (which are difficult to recycle) and nonessential packaging would not be eligible for a price preference,

6) various agencies would have to develop plans on how they would implement waste prevention procurement,

7) timelines by which each agency would be required to implement its waste prevention plan, and

8) an annual report outlining activities and achievements.

Towards the end of 1993 the Council introduced the Administration bill as Intro. 816. However, since the Council session expired at the end of 1993 with new elections, the bill died at the end of 1993.

Citizens’ Advisory Board contributions -- The birth of the current bill

Discussions on the subject of environmental procurement legislation, particularly focused on waste prevention measures, was begun in 1992 by the MCSWAB Waste Prevention committee. When Intro. 816 expired, this committee’s drafts, along with those focused on recycled content procurement begun by the Procurement committee, were merged with some of the provisions from Intro. 816 during many discussions involving a task force from these two committees, the EDF and NRDC. The philosophy behind this coalition’s efforts has been to broaden the implementation of environmental procurement in New York City to include more categories of recycled content products and waste prevention, which it does by strengthening provisions in Intro. 816 and adding new requirements. Another important intent of the task force was to ensure that a minimum amount of environmental purchasing actually takes place. Modest price preferences may encourage more purchasing of certain products, but then again, they may not. Thus, one of the cornerstones of the proposal is a timetable of dates by which specific numeric goals, or set-asides, would be achieved. It was felt that this mechanism would make more certain the speedier implementation of environmental procurement, and spur faster progress in development, by industry, of new innovative products, using more recycled feedstocks and incorporating waste prevention objectives. The prototype bill from this effort was submitted to the City Council in March of 1994, and was further modified by the City Council staff prior to introduction.

INTRO. 509

In furtherance of these objectives, 17 members of the City Council (one-third of the entire body) introduced Intro. No. 509 on January 19, 1995 as a Local Law “To amend the administrative code of the City of New York, (Local Law 19 of 1989) in relation to the purchase by the City of products, materials and equipment made with post-consumer material and the incorporation of waste prevention measures into the City’s procurement practices”. Features of the bill, still under consideration, include the following provisions:[iv]

Definitions

Some definitions have been added and modified to the language in Local Law 19. Some of these follow:

·Recycled Product is newly defined to be a product, material or equipment which contains at least the minimum amount of post-consumer material as designated by USEPA, New York State, or DGS, whichever is highest. Previously the term “secondary material” was used instead of recycled product.

·Secondary Material is modified to include post-consumer and/or preconsumer material.

·Post-Consumer Material now is expanded to apply to packages and materials in addition to products.

·Waste Prevention is newly defined to include practices including but not limited to: reuse of products or packaging, expansion of repair and maintenance programs for products, use of City surplus and warehoused items, use of remanufactured products, purchase of durable products, including products that offer extended warranties, and reduction in the use of products or packaging through the purchase of products in bulk or concentrate.

·Remanufactured is newly defined to mean a used product or part which has been repaired or otherwise restored to serviceable condition, meeting applicable performance specifications.

·Reusable is newly defined to be a product or package designed to be able to be used a minimum of five times for its original intended purpose.

·Practicable is defined as capable of being implemented without violating the following criteria: reasonable performance standards, availability at a reasonable price (i.e. at a cost no greater than 10% above a comparable product that does not meet post-consumer content), availability within a reasonable period of time, and maintenance of a satisfactory level of competition.

In addition, definitions for recyclable material, chlorine-free recycled paper, durable products, pre-consumer material, and toxic materials are included.

Review of DGS Procurement Specifications

This provision requires DGS to review its procurement specifications and practices to increase the purchase of products and packaging which are made from post-consumer materials, such that they don’t discriminate against products or packaging

(1) made from post-consumer materials,

(2) made from materials that are recyclable,

(3) that facilitate waste prevention; or

(4) that have been remanufactured.

Reviews and changes to procurement specifications are to be performed annually.

Changes to DGS Procurement Specifications

The 10% price preference required for purchase of paper products and the 5% price preference for non-paper products have been replaced with a requirement for DGS to change its procurement specifications to ensure that:

(1) they do not discriminate against products, materials, and equipment as delineated above,

(2) performance standards, specifications and a product’s intended use are related and clearly identified,

(3) recycled product specifications require use of post-consumer materials to the maximum extent practicable,

(4) waste prevention measures are incorporated into specifications and practices, and

(5) products and packaging made from recyclable materials are used and that excess packaging is eliminated to the maximum extent feasible.

Minimum Recycled Content Standards

The previous requirement, that DGS purchase products utilizing the minimum content standards for recycled materials content established by USEPA, is replaced with the requirement that DGS purchase recycled products that contain the highest of the minimum content standards established by USEPA, New York State Department of Environmental Conservation, or DGS.

Minimum Purchasing of Recycled Products

This provision requires DGS to purchase recycled products specifically including products, materials, and equipment made from plastic, rubber, glass, tires, non-fuel oil, paper, and paperboard. The purpose of restricting the application to these materials is that markets need to be stimulated to become mature. The demand for these is to be stimulated by establishing a purchasing requirement known as a “set-aside”. Specifically,

·at least 20% of the total annual dollar amount that DGS spends on all products, materials and equipment made from these seven materials must be used to purchase products that conform to the new minimum content standards, by the end of fiscal year 1996,

·at least 30% of the total dollar amount must conform by the end of fiscal year 1998,

·at least 40% of the total dollar amount must conform by the end of fiscal year 2000, and each year thereafter.

However, in meeting these purchasing requirements, a price preference of up to 10% is established, ensuring that the recycled products are purchased at a reasonable price.

City Purchase of Printing and Writing Paper with Recycled Content.

This provision codifies into law Mayoral Directive 93-2, modeled after the Federal Executive Order, No. 12873, signed by President Clinton on October 20, 1993, to increase procurement of recycled paper. This provision requires that all purchases of printing and writing paper made by City mayoral and non-mayoral agencies and the Council must, beginning July 1995, meet or exceed a minimum content standard of 20% post-consumer material for

·high speed copier paper, offset paper, forms bond, computer printout, carbonless paper, file folders, and white wove envelopes, and

·other uncoated printing and writing paper, such as office, book, and cotton fiber papers and cover stock.

This minimum content standard increases to 30% beginning fiscal year 1999.

In addition, all printing and writing papers must consist of chlorine-free recycled paper when the price of such paper is equal to or less than the price offered by the lowest responsible bidder for paper otherwise meeting the standards of this provision. This provision goes into effect beginning in fiscal year 1997. Again, to ensure the price is reasonable, a 10% price preference applies to purchases made under this provision. However, an agency or the Council may decide not to comply if purchase of printing and writing papers with the required recycled content is not deemed “practicable”.

All contractors that provide recycled and chlorine-free recycled paper and paper products must maintain records for three years documenting the source of post-consumer material used in these products, and attest to the use of non-chlorine bleaching technologies.

Requirements for Contractors

This provision states that all requests for proposals or invitations to bid issued by agencies or the Council requires bidders to agree that

(1) all reports and studies must use recycled paper and, wherever feasible, both sides of the page, and

(2) products, materials, and equipment used in the fulfillment of contracts must be remanufactured, durable, reusable, and/or made from recyclable products, and that packaging be made from recyclable materials, where practicable.

(3) the use of packaging in the performance of contracts is required to be eliminated to the extent feasible.

Those contractors who supply or use remanufactured, reusable, and recyclable products and packaging in fulfillment of contracts must report the source, type, quantity and total dollar amount expended on such items, and certify that the recycled products being supplied or used contain the required minimum percentages of post-consumer content. The purpose of this provision is to assist in the evaluation and optimization of environmental procurement.

City Waste Prevention Procurement Plans

Within 18 months of Intro. 509’s passage, DGS, in consultation with DOS, is to prepare a 10-year plan for City agencies to incorporate waste prevention measures into their procurement practices. (At present a 1992 Mayoral Directive encourages City agencies voluntarily to adopt and implement office paper waste prevention and reuse measures, and report on these activities to DOS annually.) The new waste prevention plan must be updated biennially. The plan must contain at least the following:

·development of a method and schedule for increasing the purchase of products, materials, and equipment that promote waste prevention,

·development of a waste audit procedure to determine the actual useful life, repair records and reuse histories of those products, materials and equipment most frequently or repeatedly purchased or most costly in the aggregate,

·development of a product list to be consulted when purchasing products, materials and equipment that are durable, remanufactured, reusable and/or recyclable,

·development and expansion of repair and maintenance programs for products, materials and equipment,

·reduction in the use of packaging through the purchase of products in bulk or concentrated form and the creation of packaging requirements to reduce volume or weight,

·the establishment of agency paper reduction guidelines,

·increased use of City surplus and warehoused items,

·increased use of products with extended warranties and remanufactured products, and

·decrease in the purchase of products that are not reusable, durable, or recyclable.

Intro. 509 requires that within two years of enactment, all mayoral and non-mayoral agencies implement the methods, procedures, and systems developed in the waste prevention procurement plan.

City Purchase of Products, Materials, the Equipment Designed to Prevent Waste

On an annual basis, beginning in fiscal year 1998, DGS must prepare and circulate to all agencies and the Council, lists of products, materials and equipment procured in the previous year that

(1) were durable, reusable, or remanufactured,

(2) complied with the minimum content standards,

(3) were formulated to reduce or eliminate packaging, and

(4) were formulated to reduce toxic materials substantially.

If any person believes that particular products, materials, or equipment have been erroneously excluded from these lists, s/he may petition DGS, including supporting documentation, to include them.

Reporting Requirements

The requirement from Local Law 19 that DGS submit an annual report on its procurement activities to the Mayor, Council, Board of Estimate (which no longer exists), the Borough SWABs and the CRAB is replaced with a comprehensive annual reporting requirement. This report, prepared in consultation the with DOS, the agency responsible for designing and implementing waste prevention and recycling in New York City, is to be entitled, “Report on Procurement of Recycled Products and Procurement Measures to Facilitate Waste Prevention”. The report must include at least the following components:

1) a summary of activities undertaken by both mayoral and non-mayoral agencies to increase their procurement of recycled products and products and packaging that facilitate waste prevention, including a list of products reviewed in DGS’ review of product specifications,

2) the results of annual waste audits as required in the Waste Prevention Plans,

3) quantities purchased, sources of recycled products being purchased, dollar amount spent and recycled content percentages for each recycled product procured pursuant to the provisions dealing with Minimum Purchasing of Recycled Products and City Purchase of Printing and Writing Paper with Recycled Content.

4) the dollar amount spent and percentage of any price preference used for any recycled product procured,

5) the dollar amount of savings if the recycled product offered in response to a bid or proposal is less expensive than a product made from virgin materials offered in response to a bid or proposal,

6) a summary of any revisions of minimum content standards,

7) an explanation of any changes in agency procurement practices to encourage the purchase of products, materials, and equipment that are reusable, remanufactured, durable or recyclable,

8) quantities purchased, sources of purchases and dollar amount spent on durable, reusable, remanufactured, or recyclable products and packaging,

9) lists of products, materials and equipment that are designed to prevent waste,

10) waste prevention initiatives to be undertaken and schedules of implementation,

11) the costs avoided, including but not limited to the areas of storage, replacement and procurement, by the implementation of waste prevention procurement measures, and

12) the net costs associated with the implementation of waste prevention procurement measures.

Agency Responsibility for Compliance

This section requires that each mayoral and non-mayoral agency designate an agency environmental executive from his or her senior staff who will be responsible for:

·coordinating all environmental programs in the areas of procurement and acquisition, standards and specification review, facilities management, waste prevention and recycling,

·participating in the development and implementation of the procurement plans for the agency,

·coordinating timely submission of agency reports to DGS on the annual progress of these plans,

·providing incentives, guidance and educational programs for agency employees, and

·reviewing agency programs to ensure compliance with the bill.

ECONOMIC AND ENVIRONMENTAL BENEFITS OF INTRO. 509

There are a number of arguments supporting the adoption of Intro. 509; these are enumerated below:

Increase the Purchase Of Durable, Reusable Products

By increasing the number of products the City buys which are durable, and requiring longer warrantees, and therefore, decreasing the number of disposable and nondurable products, the City saves over the long run. Durable goods are defined as being designed to last at least three years. Goods which are made to last longer are purchased less frequently and take up less storage space. Durable goods are more likely to have available spare parts and higher resale value. If durable goods are purchased whenever possible, the number of goods thrown away per unit of time, and therefore solid waste tonnage, decreases substantially, saving the City in collection and disposal costs. For example, the purchase of one plastic, reusable food service tray, or products in reusable packages, replaces the purchase and disposal of hundreds of disposable ones. Since New York City has no incineration capacity, and now depends on a single landfill, Fresh Kills, to deposit more than 10,000 tons per day of waste, and since this is a finite resource, when it is depleted alternative disposal costs will skyrocket. Neighboring Newark’s tipping fee quadrupled in the 1980s when its landfill capacity was exhausted. Anything the City can do to delay this will create considerable savings.

Purchasing durable products saves not only money, but also preserves the environment. When dozens or hundreds of disposable items are replaced with a single durable one, the amount of air pollution and energy impacts associated with trucking the extra disposable items to the City agency and from there to the landfill is reduced. The amount of pollution from manufacturing and packaging as well as the depletion of resources used to make the disposable products, namely oil, trees, minerals, and water, is also reduced when larger purchasers of goods shift purchasing from virgin products to recycled, reused, remanufactured, and durable products. The less we deplete these natural riches, the less we damage the environment and fragile habitats due to mining and logging impacts.

Increase the City’s Use of Reused, Remanufactured Products

In some cases it may not be necessary to have brand new products or fixtures in a City building or office. By increasing the purchase by the City of products which have previously been used, for example building supplies such as remanufactured doors, windows, toilets, and bricks, which have been repaired to meet City specifications, the City saves money. The City will also save money due to the provisions in Intro 509 when it makes better use of the DGS’ warehouses in which are stored usable furniture and equipment. The City also saves money by utilizing reused and remanufactured goods, but it also reduces environmental impacts and resources depletion by reducing the quantity of goods and packaging created and disposed. And when the City buys remanufactured goods, it supports the local repair and remanufacturing industry, spurring economic development in the City rather than exporting dollars to purchase more new products manufactured elsewhere. Further, it would enhance the possibility of spurring the private sector to follow suit.

Increase the City’s Use of Recycled Content Products

Intro 509 builds on the provisions of Local Law 19 and the achievements in environmental purchasing pursued by the City thus far, in that purchase of products with higher percentages of recycled content will increase over time. Passage of Intro 509 will also see to it that the City will procure at least a minimum amount of other paper and non-paper recycled products in the near and distant future, helping to close the recycling loop, spurring local economic development and the financial benefits this can bring to a city.

In addition, buying goods and packaging including postconsumer, recycled content helps the City:

·When the City buys products which contain materials which were originally collected in its curbside recycling programs, it is supporting the market price it commands when it sells those materials at market.

·When the City purchases products with recycled content, it stimulates the market for such products and lowers their overall price, thereby saving money, for the City and for others purchasing recycled products.

·When the City purchases recycled content materials, it reduces the environmental and natural resources impacts of production, as it does when the City buys durable and remanufactured products.

Decrease the Quantity of Packaging Purchased and Disposed

Intro. 509 will require City agencies to reduce, and in some cases, eliminate packaging of products purchased. Since packaging constitutes almost a third of the waste stream, packaging reduction will have a considerable positive impact on waste generation by the public sector. The benefits of this include reduced pressure on Fresh Kills, reduced lifecycle impacts insofar as mining, logging, processing, manufacturing, and transportation are concerned, reduced costs of waste collection, processing and disposal, and reduced costs in procurement itself. Where products can be marketed with less packaging, the cost of the product often is reduced, so the City saves in many ways by reducing the amount of packaging it buys.

Intro. 509 Will Require Maintenance and Repair of City-Owned Products and Equipment

The bill requires agencies to examine their repair practices, resulting in savings. For example, it would save the City money to continually upgrade and modify computers, by adding new chips and hard drives, rather than throwing them out for new ones. The City saves when it makes greater efforts to repair furniture and maintains other durable goods in serviceable condition, rather than replacing them.

Intro. 509 Will Start to Reduce the Costs of Solid Waste Collection and Disposal

The Waste Prevention Committee has testified regarding the extent to which waste prevention initiatives can decrease City expenditures on solid waste management. According to the Final Revisions to the Solid Waste Management Plan, presented by DOS to NYSDEC at their request on October 28, 1992, the total costs for prevention programs for 1995 would be $19.16 per ton of waste prevented. But according to the same report, for 1995 the cost to collect, process, and/or dispose of a ton of waste in DOS' integrated management system was projected to be $202.65. So every dollar spent that year to prevent waste would avoid the expenditure of ten dollars the next year and every year after that. Now with increased truck routing flexibility, these savings of $180 per ton resulting from waste prevention will be realized more often by the City.

Further, the Final Revisions to the Solid Waste Management Plan show costs for Waste Prevention programs staying below $20 until 2003, while the total collection and facility costs for non-waste prevention programs rise steadily to over $300 by 2009. In the next ten years the savings due to waste prevention would mount considerably, to as much as $100 million in the year 8% waste prevention is achieved, and the return on investment could approach $100 for every $1 spent on waste prevention. Further, every ton of waste which is not deposited at Fresh Kills is money in the bank insofar as future solid waste management costs. For, when Fresh Kills is used up, export costs will explode if the similar experience of New York’s nearest neighbor, Newark, is any indication. The City should want to maximize reduction and recycling as soon as possible and as much as possible to reduce the environmental impacts of landfilling to Staten Island, and to delay the time when export will drive New York’s transportation and disposal costs through the roof. That is, assuming New York can find disposal sites if Congress regulates inter-state shipments of waste.

Intro. 509 Will Hasten Progress Towards the City’s Waste Prevention and Recycling Goals

New York State’s Solid Waste Management Act of 1988 stipulates that the City should be aiming to achieve a 10% waste prevention and 40% recycling goal by 1997. Local Law 19 required the City to recycle at a rate of 25% by 1994. At present the City is achieving only 14% recycling and has not yet documented whether waste prevention has occurred. Implementation of Intro. 509 will reduce the amount of disposable products and packaging purchased by the City and will therefore reduce by that amount the quantity disposed. The reporting provisions in the bill will be helpful in documenting to the State the amount of waste prevention achieved as a result of the proposed changes in procurement practices.

DOS failed to meet the Local Law 19’s recycling tonnage requirements for the last few years, and that at the current rate, it will not meet the State’s 1997 goals. The power to insure that DOS meets the goals to which the City and State agreed in 1992 ultimately lies with the Council, since the Council passed legislation in 1992 giving itself authority to pass or reject a submission of any Plan Update to DEC. One step the Council can make to assist the City in meeting its waste prevention and recycling tonnages is to pass Intro. 509.

STATUS OF INTRO. 509

Intro. 509 was introduced in January, 1995 and the first public hearing was held on February 14, 1995. DGS and DOS presented very brief testimony, agreeing with the concept and many provisions of the bill, but suggesting that some of the bill’s requirements are staff intensive. DGS stated “we would probably be better advised to continue targeting areas which hold the most potential for opening recycling markets, rather than... blanketing the total inventory of products purchased by the City. Disclosing the inadequacy in its own computer capacity, DGS asked “how does one determine the total amount purchased in the course of any given year” {the minimum percentages of products made from plastic, rubber, glass, tires, etc...]?[v] DGS and DOS promised to send in more detailed comments soon.

Many environmental organizations and the Advisory Boards testified to the benefits of enacting the bill, and a few industry representatives expressed some concerns. The Chamber of Commerce objected to the requirement that contractors “‘use’ products, materials and equipment in fulfillment of a contract that are, where practicable, remanufactured, durable, reusable, and/or made from recyclable products, and to use packaging made from recyclable materials”. They thought the requirement might apply to office furniture that was not purchased for purposes of a City contract. The Chamber was also troubled by the requirement that “the DGS to set aside certain portions of its budget for purchasing recycled goods and equipment” as arbitrary -- much as they consider the requirement that the City achieve a 25% recycling rate as required by recycling law to be. They did not question the concept of City environmental procurement legislation.[vi]

During 1995 DOS and DGS never sent the promised comments. Meanwhile, other matters diverted the attention of the Council, namely the annual 3-month budget preoccupation, followed by examination of the DOS’ 1995 Update to the State-mandated Solid Waste Management Plan, which ended February, 1996. To date (March, 1996), no further hearings on Intro. 509 have been scheduled.

FUTURE ENVIRONMENTAL PROCUREMENT LEGISLATION

It is, from a practical standpoint, very difficult to include every important aspect of environmental procurement in Intro. 509, or any, bill. A number of areas of environmental procurement , important to the environmental community, were left out when Council staff drafted Intro. 509. These include such significant procurement issues as reducing the purchases of products and packaging containing toxic constituents, and purchasing products which conserve energy and water resources. And some other procurement issues have come to light since introduction of the bill. Thus, though Intro. 509 does not include every provision the environmental drafting coalition might have hoped for, if it is passed, it will be landmark legislation -- a model for other municipalities, states, and the private sector.

Preference for Products with Minimum Lifecycle Costs

The goals of environmental purchasing have evolved from recycled paper to recycled materials of all kinds, to products and packaging resulting in less waste volume and toxicity. The purpose in pursuing such ends is to minimize environmental impacts and depletion of natural resources associated with materials use. Similarly, procurement requirements can be structured to encourage the purchase of products, packaging, or information (e.g., techniques, practices) which result in minimized energy or water usage. Along these lines, enlightened procurement procedures may eventually be directed at unifying these seemingly separate requirements simply by targeting purchases which minimize lifecycle costs. Lifecycle assessment is a relatively new methodology being developed to compare the total environmental costs (i.e., emissions, effluents, wastes, resource and habitat loss, etc. generated during resources extraction, refining, manufacturing, transportation, use, and disposal processes) of one product or process against another. Thus, when selecting products for purchase, the City could eventually specify those having a minimum total impact on the environment, natural resources, energy and water resources in all stages of their production and disposition. Such a policy would result in maximum waste prevention, pollution prevention, and resources conservation.

A case study of a product which minimizes lifecycle impacts is reflected in the budding movement away from tree-based products and towards annual fiber plants which have been cultivated for thousands of years for the purpose of making rope, and in more recent centuries for making paper. Consideration of alternatives to tree-based paper will become necessary, because of steadily increasing U.S. wood consumption and steadily decreasing stands of forested lands.[vii] The inner stalks of such plants have a woody inner core and a rope-like bark. The longer, outer fibers are similar to softwood tree fibers and can be made into many pulped products, especially paper. The US Dept. of Agriculture has researched one such fiber plant, kenaf, for over 50 years, and found that it makes better newsprint than Southern yellow pine (it is brighter, more durable, and has less ink ruboff). It can be used to make a range of paper grades for printing and photocopying, as well as pressed fiberboard and other products. The reason kenaf has lower lifecycle impacts than wood-based paper products is that less chemicals and energy are needed to process kenaf because it has less lignin than wood. Milling kenaf for paper will reduce the amount of pollutants released into the air and water. Kenaf also requires less water, less fertilizer, and fewer pesticides than typical row crops. It currently costs more to make paper from kenaf because of the lack of economies of scale with such a young industry. In the best of all worlds, procurement policies would not only encourage use of recycled wood-based paper, but also do not discriminate against alternatives to tree-based paper products.

Assembling an Environmental Procurement Database

One important provision removed from the draft environmental procurement bill which became Intro. 509 is one requiring that all bidders supply detailed information on their products and the packaging sold with them, such that, in time, a large database of environmentally-advanced products and packaging could be assembled. Attributes would include everything from pre- and post-consumer recycled content, product-to-packaging ratio, warrantee period and conditions, content of toxic constituents, repair records, recyclable material content, number of times the product or package can be reused, and whether the product is remanufactured. With this kind of information on hand, the City can more knowledgeably revise its bid specifications to fit the current marketplace and increase the environmentally positive characteristics of the goods it purchases. This provision was linked with some of those listed below, which required assembly of lists of environmentally desirable products and packaging, and other lists of products which have negative environmental properties.

Minimum and Transferable Warrantees

Although long product warrantees is acknowledged as desirable, Intro. 509 does not specifically require a set amount of products to be purchased with longer warrantees by any particular date. Another characteristic of product warrantees which encourages reuse is the transferable warrantee. An example of this is the Fender Guitar company which warrantees their amplifiers for five years, permitting the original owner to sell the amp to another musician and retain the original warrantee. If the government bought a substantial amount of durable products with such longer, transferable warrantees, it not only increases the resale value of the items, but also encourages other suppliers to offer such warrantees. Eventually, items that might have been trashed prematurely when a part broke would not only be repaired and have a longer life, but would circulate through the economy for longer periods of time. Another set of provisions which might, in the future, address longer, transferable warrantees could be structured as follows:

·The DGS shall, within x months, prepare lists of durable products purchased in the previous year. Beginning x months after the effective date, DGS and all other agencies shall, for each product on the list of products, purchase alternatives which have product warrantees of at least three years, where available.

·A price preference of y% will be awarded to those products which come with a transferable warrantee.

Toxicity Reduction

Pollutant precursors include those chemical constituents of products and packaging which, upon disposal in incinerators or landfills, may result in emissions to air or contaminated effluents, ash, or leachate. Specifically, the most common precursors include: mercury, cadmium, chromium, lead, arsenic, nickel, beryllium, chlorine, sulfur, and fluorine. Minimizing these elements and compounds in products and packaging will reduce the quantity of these constituents in environmental releases, and is therefore, desirable. Intro. 509 does not include a provision which stipulates that the City must purchase any quantity of products or packaging with a minimum of pollutant precursors. Two alternative provisions, written by the MCSWAB Waste Prevention Committee, which might, in the future, address this issue could be structured as follows:

·The DGS shall, within x months, prepare lists of products and packaging, purchased in the previous year, which contain the highest concentration of each toxic constituent. For each toxic constituent, DGS shall identify those categories of products and packaging which together account for 90% of the total quantity of that toxic constituent contained in all products and packaging purchased by all agencies. Beginning x months after the effective date, DGS and all other agencies shall, for each product or package on each list, purchase alternatives containing none of the toxic constituent where such is available. Where no such product or package is available, the product or package with the lowest concentration of the toxic constituent shall be purchased.

·The DGS shall, within x months of the effective date, identify those categories of products and packaging which together account for 90% of the total in all products and packaging purchased by all agencies, of each pollutant precursor, establishing a baseline database. By December 31, 199x >> y >> z, the total amount of each pollutant precursor in products and packaging purchased by all agencies shall be reduced by 5% >> 15% >> 25% from the baseline total quantity for each pollutant precursor. (This provision would be structured with progressively more stringent requirements advancing with time.)

Further Packaging Reduction

Although reduced packaging is acknowledged as desirable, Intro. 509 does not specifically require a set amount of packaging reduction to be achieved by any particular date. Another set of provisions which might, in the future, address this issue could be structured as follows:

·The DGS shall, within x months, prepare a list of products purchased in the previous year which do not satisfy a product-to-packaging ratio of at least 4:1. At this time DGS and all other agencies shall, for each product on the list of products prepared, purchase alternatives which have at least a product-to-packaging ratio of 4:1, where such is available. No more than 5% of the dollar value of all packaging purchased may be excluded from this provision at each agency's discretion.

Increased Product Durability and Reuse

Although product durability, reuse, and remanufacturing is acknowledged as desirable, Intro. 509 does not specifically require purchase of a set amount of products with these features to be achieved by any particular date. Two alternative proposals for provisions which might, in the future, address this issue could be structured as follows:

·By December 31, 199x >>y, at least 25% >> 35% of the total dollar amount of all purchases made by each agency shall be composed of durable, reusable, and/or remanufactured products and packaging, and that no more than 5% >> 2% of the dollar amount of all purchases made by each agency shall be composed of disposable products and packaging which are not currently recyclable. (This provision would be structured with progressively more stringent requirements advancing with time.)

·The DGS shall, within x months, prepare a list of products purchased in the previous year which do not satisfy at least one the following criteria: 1) durable, 2) reusable, and 3) remanufactured. Beginning y months after the effective date, DGS and all other agencies shall, for each product on the list purchase alternatives which are durable, reusable, and/or remanufactured, where such is available. Products affected by health or safety standards are excluded from this provision. In addition, no more than 5% of the dollar value of all products purchased may be excluded from this provision at each agency's discretion.

CONCLUSIONS

Environmental procurement in New York City has commanded considerable attention from the environmental community and the City government for the last five years, and the results have been positive to a degree. A number of local laws have been proposed, one has passed, a few Mayoral Directives have been issued. As a result, DGS has begun to purchase a significant quantity of paper products with a small amount of recycled content; DGS’ purchases of non-paper products with recycled content has not been as remarkable. A third of the New York City Council co-sponsored a new bill, Intro. 509, drafted, in parts, by the City’s administration, Solid Waste Advisory Board committees, environmental groups and City Council staff. The time is right for environmental procurement in New York City to take its next step forward.

ACKNOWLEDGEMENTS

The provisions which make up Intro. 509 were co-authored by Marjorie Clarke, MCSWAB Waste Prevention Committee Chair, Barbara Olshansky, attorney, EDF, Nancy VandenBerg, MCSWAB Procurement Committee Chair, and Mark Izeman, NRDC, with input from their respective organizations. Initial drafting of the bill was done by Barbara Olshansky, and final drafting was done by Heidi Levine, attorney, Infrastructure Division, City Council. Copies of Intro. 509 and model executive orders can be obtained by writing to Barbara Olshansky, Center for Constitutional Rights, 666 Broadway, 7th floor, New York, NY 10012.

REFERENCES