Comprehensive Procurement Guideline V for Procurement of Products Containing Recovered Materials

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: September 14, 2007 (Volume 72, Number 178)]
[Rules and Regulations]
[Page 52475-52488]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14se07-6]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 247
[EPA-HQ-RCRA-2003-0005; FRL-8468-3]
RIN 2050-AE23

Comprehensive Procurement Guideline V for Procurement of Products
Containing Recovered Materials

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending the
Comprehensive Procurement Guideline (CPG) for recovered content
products. Specifically, EPA is revising the list of items designated in
the category of landscaping products. First, EPA is changing the
description of ``compost'' by consolidating all compost designations
under one item designation: ``compost made from recovered organic
materials.'' At the same time, the Agency is amending the definition of
compost. The effect of the two changes will be to include compost from
biosolids and manure, and not limit the designation to specific types
of organic materials. Second, EPA has added ``fertilizer made from
recovered materials'' as a designated landscaping item and added a
definition for ``fertilizer made from recovered organic materials.''
(In the notices section of this Federal Register, EPA also is making
available the final Recovered Materials Advisory Notice (RMAN) that
contains recommendations for purchasing these designated items.)
The CPG implements section 6002 of the Resource Conservation and
Recovery Act (RCRA) which requires EPA to designate items that are or
can be made with recovered materials and to recommend practices that
procuring agencies can use to procure designated items. Once EPA
designates an item, any procuring agency that uses appropriated federal
funds to procure that item must purchase the item containing the
highest percentage of recovered materials practicable. This action
harnesses government purchasing power to stimulate the use of recovered
materials in the manufacture of products, thereby fostering markets for
materials recovered from solid waste.

DATES: This final rule is effective on September 15, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-RCRA-2003-0005. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through
http://www.regulations.gov or in hard copy at the OSWER Docket EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the OSWER
Docket is (202) 566-0270.

[[Page 52476]]

FOR FURTHER INFORMATION CONTACT: Marlene RedDoor, Office of Solid
Waste, Municipal and Industrial Solid Waste Division (5306P),
Environmental Protection Agency, 1200 Pennsylvania Avenue; 703-308-
7276; fax number: 703-308-8686; e-mail address:
Regelski-RedDoor.Marlene@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

This action may potentially affect agencies that are procuring
agencies under RCRA section 6002 that purchase the following items:
compost made from recovered organic materials and fertilizers made from
recovered organic materials. Section 6002 defines procuring agencies to
include the following: (1) Any federal agency; (2) any state or local
agency using appropriated federal funds for a procurement; or (3) any
contractors of these agencies who are procuring these items for work
they perform under the contract. See RCRA section 1004(17). The
requirements of section 6002 apply to these procuring agencies only
when the agencies procure designated items whose price exceeds $10,000
or when the quantity of the item purchased in the previous year
exceeded $10,000. A list of entities that this rule may cover is
provided in Table 1.

Table 1.--Entities Potentially Subject to Section 6002 Requirements
Triggered by CPG Amendments
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Category Examples of regulated entities
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Federal Government..................... Federal departments or agencies
that procure $10,000 or more
of a designated item in a
given year.
State Government....................... A state agency that uses
appropriated federal funds to
procure $10,000 or more of a
designated item in a given
year.
Local Government....................... A local agency that uses
appropriated federal funds to
procure $10,000 or more of a
designated item in a given
year.
Contractor............................. A contractor working on a
project funded by appropriated
federal funds that purchases
$10,000 or more of a
designated item in a given
year.
------------------------------------------------------------------------

This table is not intended to be exhaustive. To determine whether
this action applies to your procurement practices, you should carefully
examine the applicability criteria in 40 CFR 247.12. If you have
questions about whether this action applies to a particular entity,
contact Marlene RedDoor at 703-308-7276.

Preamble Outline

I. What is the statutory authority for this amendment?
II. Why is EPA taking this action?
III. What are the related requirements for biobased products?
IV. What criteria did EPA use to select items for designation?
V. What are the definitions of terms used in this action?
VI. What did commenters say about the proposed CPG V and draft RMAN V?
A. Request for Comments
1. Items Selected for Designation
2. Accuracy of Information Presented in the Item Discussions
3. Definitions of ``Organic Fertilizer'' and ``Compost''
4. Limitations on the Recovered Organic Materials Contained in
the Fertilizers Proposed by EPA
5. Types of Recovered Materials Identified in the Item
Recommendations, and Other Recommendations, Including Specifications
for Purchasing the Designated Items
6. Any Other Specifications the Agency Should Recommend That
Pertain to Fertilizers Made With Recovered Organic Materials
B. Issue-Specific Comments
1. General Comments About Sewage Sludge/Biosolids as Compost or
Organic Compost
2. Proper Labeling of Compost or Fertilizers
3. Use of the Term ``Organic''
4. Use of Compost or Fertilizer Made From Sewage Sludge on Food
or Crops
5. Toxins in Sewage Sludge and Potential Health Effects
6. Specific Applications of Sewage Sludge
7. Manure
8. Thermophilic Process and Vermicompost
VII. Where can agencies get information on the availability of EPA-
designated items?
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
1. Summary of Costs
2. Product Cost
3. Summary of Benefits
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations
K. Congressional Review Act
IX. Supporting Information and Accessing Internet

I. What is the statutory authority for this amendment?

EPA (``the Agency'') is promulgating this amendment to the
Comprehensive Procurement Guideline (CPG) under the authority of
sections 2002(a) and 6002 of the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act of 1976 (RCRA), as
amended, 42 U.S.C. 6912(a) and 6962. This amendment is also consistent
with Executive Order 13423, ``Strengthening Federal Environmental,
Energy, and Transportation Management,'' (72 FR 3919, January 26,
2007), which revoked Executive Order 13101, ``Greening the Government
Through Waste Prevention, Recycling, and Federal Acquisition,'' (63 FR
49643, September 14, 1998). Per section 2(d)(i) of Executive Order
13423, the head of each Federal agency shall require in the agency's
acquisition of goods and services the use of, among other things,
recycled content products.

II. Why is EPA taking this action?

Section 6002(e) of RCRA requires EPA to designate items that are or
can be made with recovered materials and to recommend practices to help
procuring agencies meet their obligations for procuring those items.
After EPA designates an item, RCRA requires that each procuring agency,
when purchasing a designated item, must purchase that item made of the
highest percentage of recovered materials practicable.
Between 1983 and 1989, EPA issued five guidelines for the
procurement of

[[Page 52477]]

products containing recovered materials, which were previously codified
at 40 CFR parts 248, 249, 250, 252, and 253. These products include
cement and concrete containing fly ash, paper and paper products, re-
refined lubricating oils, retread tires, and building insulation. Table
2 summarizes designations of CPG I-IV and references the Federal
Register publications.

Table 2.--CPG I-IV Designations
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Number items
Designation Date published FR No. designated
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CPG I.......................... May 1, 1995.................. 60 FR 21370.................. 19 new, 5
previous in 8
product
categories.
RMAN I......................... May 1, 1995.................. 60 FR 21386..................
Paper Product RMAN............. May 29, 1996................. 61 FR 26985..................
CPG II......................... November 13, 1997............ 62 FR 60962.................. 12 new items.
RMAN II........................ November 13, 1997............ 62 FR 60975..................
Paper Product RMAN............. June 8, 1998................. 63 FR 31214..................
CPG III........................ January 19, 2000............. 65 FR 3070................... 18 new items.
RMAN III....................... January 19, 2000............. 65 FR 3082...................
CPG IV......................... April 20, 2004............... 69 FR 24028.................. 7 new, 3 revised.
RMAN IV........................ April 30, 2004............... 69 FR 24039..................
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On December 10, 2003, EPA published the proposed CPG V (68 FR
68813) and draft RMAN V (68 FR 68919) which are finalized by this
action.
EPA is consolidating all compost designations into one item
designation: compost made from recovered organic materials. In
addition, EPA is establishing a new item designation: ``fertilizers
made from recovered organic materials.'' These items are being
designated under the Landscaping Products category. Recovered organic
materials include, but are not limited to, yard waste, food waste,
manure, and biosolids. (For more information on CPG, go to the EPA Web
site at (http://www.epa.gov/cpg/.)

III. What are the related requirements for biobased products?

Section 9002 of the Farm Security and Rural Investment Act of 2002
(FSRIA) provides for the preferred procurement of biobased products by
procuring agencies. 7 U.S.C. 8192. Under FSRIA, once the U.S.
Department of Agriculture (USDA) designates an item, procuring
agencies, when procuring the item, must, in specified circumstances,
procure it as a biobased product. Some of the products that are
biobased items designated for preferred procurement may also be items
that EPA has designated under EPA's CPG program for recovered content
products. Where that occurs, and where the item is used for the same
purpose and the performance standards are the same for both the product
containing recovered materials and the biobased item, an EPA-designated
recovered content product (also known as ``recycled content products''
or ``EPA-designated products'') has priority in Federal procurement
over the qualifying biobased product. See 71 FR 13686,
http://www.biobased.oce.usda.gov/fb4p/files/Round_1_Final_Rule.pdf).
Composts and fertilizers can be both products containing recovered
materials and biobased products. USDA has proposed to designate
biobased fertilizer as a product for Federal procurement. Once USDA
promulgates a final designation, if an agency purchases fertilizer or
landscaping or facilities management services that require the use of
fertilizer, then the agency should first consider specifying fertilizer
containing recovered materials. This should satisfy both the
requirement to purchase EPA-designated products and the requirement to
purchase USDA-designated products. If such fertilizer will not meet the
agency's reasonable performance needs, then the agency should specify
other biobased fertilizer.
As noted previously, section 6002 of RCRA requires a procuring
agency procuring an item designated by EPA generally to procure such
items composed of the highest percentage of recovered materials content
practicable. However, a procuring agency may decide not to procure such
an item based on a determination that the item fails to meet the
reasonable performance standards or specifications of the procuring
agency. An item with recovered materials content may not meet
reasonable performance standards or specifications, for example, if the
use of the item with recovered materials content would jeopardize the
intended end use of the item.

IV. What criteria did EPA use to select items for designation?

RCRA section 6002(e) requires EPA to consider the following
criteria when determining which items it will designate:
(1) Availability of the item.
(2) Potential impact of the procurement of the item by procuring
agencies on the solid waste stream.
(3) Economic and technological feasibility of producing the item.
(4) Other uses for the recovered materials used to produce the item.
Section 6002(e) also authorizes EPA to consider other factors in
its designation decisions. EPA, consequently, also consulted with
federal procurement officials to identify other criteria it should
consider. Based on these discussions, the Agency concluded that the
limitations set forth in RCRA section 6002(c) should also be factored
into its selection decisions. Specifically, this provision requires
that each procuring agency that procures an item that EPA has
designated, procure the item that contains the highest percentage of
recovered materials practicable, while maintaining a satisfactory level
of competition. A procuring agency, however, may decide not to procure
an EPA-designated item containing recovered materials if the procuring
agency determines: (1) The item is not available within a reasonable
period of time; (2) the item fails to meet the performance standards
that the procuring agency has set forth in the product specifications;
or (3) the item is available only at an unreasonable price.
EPA recognized that these criteria could provide procuring agencies
with a rationale for not purchasing EPA-designated items that contain
recovered materials. For this reason, EPA considers the limitations
cited in RCRA section 6002(c) when it selects items to designate in the
CPG. In CPG I, the Agency outlined the following criteria that it
continues to use when it selects items for designation:
• Use of materials found in solid waste.
• Economic and technological feasibility and performance.
• Impact of government procurement.
• Availability and competition.
• Other uses for recovered materials.

[[Page 52478]]

EPA discussed these criteria in the CPG I background documents and
in Section II of the document entitled, ``Background Document for the
Final Comprehensive Procurement Guideline (CPG) V and Final Recovered
Materials Advisory Notice (RMAN) V.'' The RCRA public docket for the
proposed CPG V rule, Docket No. RCRA-2003-0005, contains this document.
In CPG I, EPA stated that it had adopted two approaches for
designating items that are made with recovered materials. For some
items, such as floor tiles, the Agency designated broad categories and
provided information in the RMAN about the appropriate applications or
uses for the items. For other items, such as plastic trash bags, EPA
designated specific items, and, in some instances, specified the types
of recovered materials or applications to which the designation
applies. The Agency explained the approaches it took to designate items
in the preamble to CPG I (60 FR 21373, May 1, 1995), and repeats them
here for the convenience of the reader:

EPA sometimes had information on the availability of a
particular item made with a specific recovered material (e.g.,
plastic), but no information on the availability of the item made
from a different recovered material or any indication that it is
possible to make the item with a different recovered material. In
these instances, EPA concluded that it was appropriate to include
the specific material in the item designation in order to provide
vital information to procuring agencies as they seek to fulfill
their obligations to purchase designated items composed of the
highest percentage of recovered materials practicable. This
information enables the agencies to focus their efforts on products
that are currently available for purchase, reducing their
administrative burden. EPA also included information in the proposed
CPG, as well as in the draft RMAN that accompanied the proposed CPG,
that advised procuring agencies that EPA is not recommending the
purchase of an item made from one particular material over a similar
item made from another material.

The Agency understands that some procuring agencies may believe
that designating a broad category of items in the CPG requires that
they (1) procure all items included in such category with recovered
materials content and (2) establish an affirmative procurement program
for the entire category of items, even when specific items within the
category do not meet the procuring agency's performance standards. RCRA
clearly does not require such actions. RCRA section 6002 does not
require a procuring agency to purchase items that contain recovered
materials if the items are not available or if they do not meet a
procuring agency's specifications or reasonable performance standards
for the contemplated use. Further, section 6002 does not require a
procuring agency to purchase such items if the item that contains
recovered material is only available at an unreasonable price, or if
purchasing such items does not maintain a reasonable level of
competition. See also 40 CFR 247.2(d). However, EPA stresses that the
statute requires that a procuring agency must purchase the product made
with the highest percentage of recovered materials practicable in the
absence of the circumstances identified above.
The items designated have been evaluated against EPA's criteria.
The Agency discusses these evaluations in the ``Background Document for
the Proposed CPG V/Draft RMAN V,'' which the Agency has placed in the
docket for the final CPG V and RMAN V. You may also access the document
electronically. (See Section IX below for Internet access directions.)

V. What are the definitions of terms used in this action?

For this action, in 40 CFR 247.3, EPA is revising the previous
definition of compost from CPG III (65 FR 3070) and adding a definition
for ``fertilizer made from recovered organic materials.'' \1\ EPA
generally bases its definitions on industry definitions. Because there
are a number of industry definitions for ``compost'' and
``fertilizer,'' EPA developed its own to prevent confusion to procuring
agencies. EPA based its fertilizer definition in part on a USDA
definition of ``fertilizer''
(see http://www.ams.usda.gov/NOP/NOP/standards/DefineReg.html).

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\1\ In proposed CPG V, the Agency proposed that the definition
be entitled ``organic fertilizer.'' However, in final CPG V, EPA is
instead entitling the definition ``fertilizer made from recovered
organic materials'' so that the definition title and the designation
description are more consistent.
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Because the description of the items designated in CPG V uses the
term ``recovered materials,'' the Agency also is providing a definition
for that term in this notice. The Agency previously provided this
definition in CPG I, and it is also provided at 40 CFR 247.3.

Recovered materials means waste materials and byproducts which
have been recovered or diverted from solid waste, but the term does
not include those materials and byproducts generated from, and
commonly reused within, an original manufacturing process.

VI. What did commenters say about the proposed CPG V and draft RMAN V?

EPA received 395 comments on the proposed CPG V and the draft RMAN
V. Many of the comments received on the proposed CPG V were equally
applicable to the draft RMAN V.
In this section, EPA discusses the major comments that commenters
provided on the proposed CPG V. The most significant comments received
on the draft RMAN V are discussed in the preamble to the final RMAN V,
which is published in the notices section of this Federal Register. You
can find a more thorough summary of comments and EPA's responses in the
``Background Document for the Final Comprehensive Procurement Guideline
(CPG) V and Final Recovered Materials Advisory Notice (RMAN) V.'' The
Final CPG V and RMAN V Background Document also has reference numbers
to specific comments found in the CPG V Docket: EPA-HQ-RCRA-2003-0005.

A. Request for Comments

This section summarizes and responds to the comments that address
the Agency's specific requests for comments in the CPG V proposed rule.
1. Items Selected for Designation
Comments: EPA received comments specifically regarding the
designation of compost and/or fertilizers. Some commenters opposed
consolidating all compost designations under one heading called
``compost made from recovered organic materials.'' A few of these
comments described the proposed revision as deceptive or misleading due
to an inconsistent use of the term ``organic.'' One commenter discussed
the need for appropriate labeling were the revision to be carried out.
Many commenters also opposed revising the compost designation to
include sewage sludge or generally opposed using biosolids, manure,
and/or sewage sludge in compost or fertilizer. One of these comments
claimed that composts and fertilizers made from these materials are
likely to contaminate the land and cause adverse effects to human
health and welfare and the environment.
One commenter specifically supported the revision of compost to
include manure or biosolids and the designation of fertilizers
containing recovered organic materials. One other commenter believed
the proposed, more generic designation that defines compost as
``compost made from recovered organic materials'' is more accurate and
encompassing.
Response: In the CPG V final rule, the Agency consolidated all
compost designations under one item designation: ``compost made from
recovered organic materials.'' This is being done partly in response to
the request of procuring agencies that EPA

[[Page 52479]]

simplify the compost designations to make it easier for them to track
and report their purchases of compost. For discussion on the labeling
issue and the term ``organic,'' please see the responses below in
sections VI.B.2 and 3, respectively.
Regarding those comments that opposed the designations for compost
and fertilizer made with sewage sludge because of perceived risks, EPA
notes that, if a compost product or fertilizer contains biosolids, then
its use would be subject to the Part 503, Standards for the Use or
Disposal of Sewage Sludge (40 CFR part 503). EPA believes that these
standards ensure protection of human health and the environment.
2. Accuracy of Information Presented in the Item Discussions
Comment: The U.S. Composting Council (USCC) commented on the
accuracy of the information presented in the designation of compost.
Specifically, USCC claimed that compost can be a sole source of plant
nutrients when applied at sufficient application rates, countering
EPA's background statement that ``compost is not a complete fertilizer
unless amended.'' The commenter cited research projects demonstrating
that compost alone can result in yields equivalent to those obtained
with chemical fertilizers. The commenter requested that EPA correct
this misconception in its background statement.
Response: EPA first explained that ``compost is not a complete
fertilizer unless amended'' in the April 20, 1994 Federal Register
notice for the proposed CPG I. (See 59 FR 18877.) EPA based its
explanation on USCC's own description in its ``Composting Glossary'':

Compost is the stabilized and sanitized product of composting;
compost is largely decomposed material and is in the process of
humification (curing). Compost has littleresemblance in physical
form to the original material from which it was made. Compost is a
soil amendment, to improve soils. Compost is not a complete
fertilizer unless amended, although composts contain fertilizer
properties, e.g., nitrogen, phosphorus, and potassium, which must be
included in calculations for fertilizer application.

Since USCC has modified its position on this issue, as evidenced in
their subsequent referenced comment, the Agency has removed this
statement from the compost discussion in the final CPG V background
document (see section VIII.A.6 of the background document).
3. Definitions of ``Organic Fertilizer'' and ``Compost''
Comments: EPA received comments on the definitions EPA provided for
``compost'' and ``organic fertilizers'' in its proposal. Several of
these comments actually appear to address the ``designation'' of the
items, rather than the ``definition,'' and EPA is responding to those
comments in this section.
A few of the commenters stated that they agreed with the proposed
definition of compost and/or organic fertilizers, or that they agreed
with or supported including biosolids or manure in the definition of
compost because it allows for the addition of other materials or
appropriately broadens the definition to include other types of
materials. One of these commenters also requested that EPA include some
means to acknowledge and evaluate compost products that are produced at
lower temperatures, short of thermophilic.
On the other hand, one commenter suggested that EPA amend the
compost definition to require the composting process to meet the time-
temperature relationships in 40 CFR part 503. A few other commenters
stated concern that the definitions may cause confusion over the term
``organic'' or that the definitions must be carefully phrased so as not
to conflict with organic food production laws. One of these commenters
suggested using the term ``nutrient-rich products from recovered
organic materials'' rather than ``fertilizers.'' One other commenter
opposed re-defining compost to include sewage sludge because it would
blur the distinction between sludge-based and non sludge-based compost.
Response: The CPG V defines compost as a thermophilic converted
product and does not include compost products that are produced at
lower temperatures, short of thermophilic. For more discussion on these
issues, please see the response in section VI.B.8 below.
The definition does not include specific language about the time-
temperature relationships in 40 CFR part 503. However, the
Specifications section of the final RMAN V for compost does reference
40 CFR part 503. For more on the time-temperature requirements in Part
503, see pp. 28, 38, et al, of the EPA document entitled, Environmental
Regulations and Technology: Control of Pathogens and Vector Attraction
in Sewage Sludge. This document can be found at
http://www.epa.gov/ORD/NRMRL/Pubs/1992/625R92013.pdf.
Regarding the potential confusion over the term ``organic,'' EPA
acknowledges that USDA's National Organic Program (NOP) regulations
prohibit the use of biosolids and sewage sludge for use in growing
organic foods (i.e., of or relating to foods grown or raised without
synthetic fertilizers, pesticides, or hormones), as addressed in the
proposed background document for CPG V/Draft RMAN V. However, in EPA's
proposal, EPA used the term ``organic'' to mean ``of, relating to, or
derived from living organisms.'' EPA is using the word ``organic'' in
the phrase ``recovered organic materials'' because this is the term
commonly used by those promoting the recovery and use of these
materials. In these circumstances, EPA has concluded there is little
potential for confusion. (See section VI.B.3 below for more discussion
on the term ``organic.'')
Regarding a potential blurred distinction between sludge-based and
non sludge-based compost, EPA has previously explained that, if
biosolids are included as part of the compost, the processing and
product are subject to the 40 CFR part 503 regulations which are
protective of human health and the environment. (See 68 FR 68818.)
Further, all users of sludge-based products also must comply with
applicable local, state, and federal laws regarding the use of
biosolids and sewage sludge.
4. Limitations on the Recovered Organic Materials Contained in the
Fertilizers Proposed by EPA
Comments: EPA received comments asking that restrictions be placed
on the materials used in fertilizers. Most of these comments either
stated that sewage sludge or human waste should not be used as
fertilizer, or made a reference to sewage sludge being too toxic,
hazardous, or unsafe to use as fertilizer. One commenter did not
support the use of biosolids in public projects due to possible toxic
contamination of biosolids, which could contaminate organic production
operations. Another commenter requested that EPA maintain a separation
of sewage sludge and fertilizers that will be used for growing organic
fruits and vegetables. Still another commenter claimed that the idea of
proposing that composted ``municipal sludge'' be used as an ``organic''
fertilizer has already been rejected for ``Organic'' standards, as
defined in NOFPA. (EPA could not identify ``NOFPA.'')
Another commenter stated that to be an effective fertilizer, the
dung (i.e., sewage) must be totally vegan. Another

[[Page 52480]]

commenter mentioned a report that indicates that the ``greensands''
that EPA proposed as rock and mineral powders for ``organic
fertilizers'' are highly contaminated with heavy metals and organic
toxins. The commenter cites a report that refers to ``green sand'' that
is foundry sand. The commenter concludes that greensand is not an adequate,
appropriate, or effective substitution for virgin rock or minerals.
Response: Regarding the comments that sewage sludge should not be
used as fertilizer or that sewage sludge is too toxic, hazardous, or
unsafe to use as fertilizer, please see the responses in sections
VI.B.4 and 5 below. Also, as previously stated, EPA has evaluated the
potential risks of sewage sludge in developing the Part 503 Standards
for the Use or Disposal of Sewage Sludge (40 CFR part 503). EPA
believes that these regulations will ensure that sewage sludge used in
compliance with the Part 503 Standards will not be harmful to human
health and the environment. Procuring agencies should not procure
compost or fertilizer that is not appropriate for its intended use.
The commenter opposing the use of biosolids in public projects due
to possible toxic contamination of biosolids, and who expressed concern
that this could contaminate organic production operations, provided no
further explanation as to what was meant by ``public projects'' or the
mechanism by which contamination of organic production operations would
occur.
Regarding a separation of sewage sludge from fertilizer that will
be used for growing organic fruits and vegetables, in the final RMAN V
for fertilizers, EPA references USDA's NOP regulations, which prohibit
the use of biosolids in organic production. EPA also references the
Organic Materials Review Institute (OMRI), which developed guidelines
and lists of materials allowed and prohibited for use in the
production, processing, and handling of organically grown products, and
the land application requirements for biosolids in 40 CFR part 503. For
more discussion on the term ``organic,'' please see section VI.B.3 below.
EPA appreciates the comment that dung (i.e., sewage) should be
vegan, but does not believe that this characteristic is necessary to
achieve a high-quality fertilizer. Therefore, EPA is not addressing
this issue in the recommendations for fertilizer in the final RMAN V.
Finally, EPA has determined that the commenter who claimed that
``greensands,'' highly contaminated with heavy metals and organic
toxins, and therefore not appropriate for use in fertilizer, was
confusing the term EPA used with a different type of green sand--that
which is found in foundry sand. EPA is clarifying that the proposed CPG
V background document referenced greensand which is sedimentary rock
containing the mineral glauconite. The two materials are unrelated.
5. Types of Recovered Materials Identified in the Item Recommendations,
and Other Recommendations, Including Specifications for Purchasing the
Designated Items
Comments: EPA received a number of comments on the types of
recovered materials identified in the item designations, and other
recommendations, but none that appeared to address specifications for
purchasing the designated items. Several comments supported allowing
biosolids and/or manure to be used for compost and/or fertilizer. Some
of these commenters stated that the inclusion of biosolids in the
compost and fertilizer designations will increase market demand for
these recovered material products, but will also provide further
support for the long-standing practice of biosolids land application.
EPA also received comments that suggested or implied that additions
should be made to the list of materials covered by the scope of
``recovered organic materials'' in the compost and fertilizer item
designations and RMAN recommendations such as EQ biosolids, cotton gin
by-products, sawdust, and yard trimmings.
Yet another commenter encouraged EPA to retain the 247.15(b)
designation of compost language ``for use in landscaping, seeding of
grass or other plants on roadsides and embankments * * * '' and add
``and other uses'' at the end of the sentence.
Response: EPA appreciates the comments supporting the use of
biosolids and/or manure for compost and/or fertilizer and agrees that
their designation will achieve one of the most important goals of the
CPG program-to increase market demand for items made from recovered
materials. For responses to comments opposing the use of biosolids,
manure, and/or sewage sludge in compost and/or fertilizer, please refer
to section VI.B.5.
EPA appreciates the suggestions for additional materials to be
included in EPA's recommendations. In EPA's view, EQ biosolids, cotton
gin by-products, sawdust, and yard trimmings are already included in
the scope of the item designations and recommendations, because EPA has
revised the description of fertilizer and compost to ``made with
recovered organic materials,'' a term which does not restrict the
organic content only to the specified material. Also, in CPG V and RMAN
V, the Agency did not exclude any particular types of biosolids.
Instead, in the final RMAN V, the Agency referred to Part 503, as well
as to applicable federal, state, and local government regulations on
the use of compost and fertilizer made with biosolids and other
recovered organic materials.
Regarding the comments about permitting the use of sewage-derived
products only on trees and non-vegetable crops, please refer to the
comments and responses in section VI.B.4. In response to the comment
which encouraged EPA to retain the 247.15(b) designation of compost
language ``for use in landscaping, seeding of grass or other plants on
roadsides and embankments * * * '' and add ``and other uses'' at the
end of the sentence, EPA did retain this language in the Preference
Program section of the RMAN V for compost. However, the final CPG V
compost designation language does not prescribe specific applications.
Recognizing that government agencies typically use compost for numerous
applications, such as landscaping, bioremediation, roadside
maintenance, and erosion control, EPA wanted to be as inclusive as
possible in terms of potential applications of compost, while ensuring
that the Agency would not have to re-propose the compost designation
each time it learned of an additional use by procuring agencies.
Regarding the suggestion that the processing and handling protocols in
Part 503 should be further emphasized, EPA referenced Part 503 in the
final RMAN V for both compost and fertilizers.
6. Any Other Specifications the Agency Should Recommend That Pertain to
Fertilizers Made With Recovered Organic Materials
Response: The Agency did not appear to receive any comments on
other specifications pertaining specifically to fertilizers.

B. Issue-Specific Comments

This section summarizes and responds to other significant comments.
Many of the comments were similar, and most could be grouped in one or
more particular topic categories that captured the general essence of
the comment.

[[Page 52481]]

1. General Comments About Sewage Sludge/Biosolids as Compost or Organic
Compost
Comments: EPA received many comments that essentially found the
idea of calling, renaming, or labeling biosolids as compost
problematic, especially without labeling that indicated that the
compost originated from sewage. Approximately half of the comments in
this topic category were opposed to toxic, hazardous, or contaminated
sewage sludge being called compost or organic. A few commenters mentioned
negative impacts to human health from using sewage sludge as compost.
Some of the comments also mentioned that designating manure and
biosolids compost is misleading to the public or is a misrepresentation
of the labeling for organic products. Specifically, many comments were
opposed to calling, renaming, labeling, or using biosolids as compost
if there was not accurate labeling indicating that the compost
originated from sewage.
Response: EPA is not renaming or re-labeling biosolids or sewage
sludge as compost. This designation acknowledges that biosolids and
treated and processed sewage sludge are components in recovered organic
material used in commercial compost and fertilizer. For a discussion on
the toxicity, health, and labeling issues, please see additional
responses below in sections VI.B.5, 4, and 2, respectively.
2. Proper Labeling of Compost or Fertilizers
Comments: A number of commenters emphasized that compost and/or
fertilizer made from biosolids should be appropriately labeled. While
most of these commenters seem to oppose the designations, several do
not seem to oppose it as long as the compost and/or fertilizer derived
from biosolids is accurately labeled with what it contains so that
users could make informed decisions when purchasing these products.
Many of these commenters made the general point that appropriate
labeling was necessary. Some commenters specifically stated that proper
labeling of these products was necessary in order to be fair to the
consumer or the public. One other commenter suggested that labeling
biosolids as ``recovered organic materials'' is not appropriate or honest.
Approximately half of the comments in this category suggested that
appropriate labeling was particularly necessary due to the toxic or
unsafe nature of biosolids.
Response: The final CPG V rule does not include a labeling
requirement because under RCRA EPA is not authorized to promulgate
labeling requirements, and because labeling requirements that ensure
product safety exist under other Federal and State regulations such as
the USCC's Test Methods for the Examination of Composting and Compost
(TMECC) and USCC's Seal of Testing Assurance (STA) labeling program. In
the draft (and final) RMAN V, EPA recommends that procuring agencies
refer to USCC's TMECC, which are standardized methods for the
composting industry to test and evaluate compost and verify the
physical, chemical, and biological characteristics of composting source
materials and compost products. The TMECC also includes material
testing guidelines to ensure product safety and support market claims.
In addition to referencing the TMECC, the final RMAN V recommends that
procuring agencies refer to the USCC's STA labeling program. STA is a
compost testing and information disclosure program that uses the TMECC.
Participating compost producers regularly sample and test their
products using STA Program approved labs, all of which must use the
same standardized testing methodologies. Participants must make test
results available to customers and certify that they are in compliance
with all applicable local, state, and federal regulations with respect
to their compost products. The USCC then certifies the participants'
compost as ``STA certified compost'' and allows the use of the STA logo
on product packaging and literature. Procuring agencies may wish to
consider specifying STA certified compost in their solicitations to the
extent otherwise authorized. The USCC has developed sample specification
and contract language, available at http://www.compostingcouncil.org/
pdf/Specifying_STA_Prog.pdf. More information on TMECC and STA
can be found at
http://www.compostingcouncil.org.

3. Use of the Term ``Organic''
Comments: EPA received a number of comments that supported the
proposal and discussed the use of the term ``organic'' when describing
recovered materials used in compost. A couple of the commenters noted
that the proposal, as it defines ``organic,'' is not renaming organic
amendments or foods. The rest of these commenters suggested that the
definitions presented in CPG V should be carefully worded so that they
do not conflict with ``organic food production laws'' or ``USDA's
organic farming and food standards.'' One commenter suggested using the
term ``biologically-derived.''
EPA also received a large number of comments that opposed the
proposal and took issue with the idea that EPA would label or represent
compost made from biosolids as ``organic,'' many claiming that there is
nothing organic about it. Some of these commenters were generally
opposed to representing compost derived from biosolids or sewage sludge
as organic.
Some commenters stated that this designation would dilute,
compromise, or otherwise undermine the term ``organic'' as used or
defined by USDA's NOP standards. Similarly, other commenters claimed
that the use of the word ``organic'' would be misleading, deceptive, or
confusing to the public. In addition, a number of comments argued that
(biosolids) compost could not possibly be considered organic due to the
toxic, hazardous, or polluting nature of chemicals that are found in
sewage sludge.
A few commenters offered solutions to any confusion that may arise
from using the term ``organic.'' One suggested that any compost labeled
``organic'' must have the same restrictions as food labeled as such.
Another commenter suggested that EPA replace ``organic'' with the word
``natural'' or ``biobased'' to avoid confusion with materials produced
under 7 CFR part 205.
Response: By the term ``organic,'' EPA means ``of, relating to, or
derived from living organisms.'' EPA used the word ``organic'' in the
phrase ``recovered organic materials,'' which include food and yard
waste, biosolids, and manure, of animal or vegetable origin. EPA's use
of the term ``organic materials'' is consistent with the compost and
fertilizer industries' commercial use of that term. For this reason,
EPA is not using an alternative word, such as those suggested by the
commenters. Also, EPA is not using the term ``organic'' to refer to
organic farming, organically grown food, or USDA's NOP standards. EPA
recognizes that the NOP standards do not allow biosolids to be used in
the production of organic food and the final CPG V does not revise the
NOP standards in any way. In addition, in the final CPG V RMAN, EPA
notes that the NOP standards prohibit the use of sewage sludge
(biosolids) in organic production.
4. Use of Compost or Fertilizer Made from Sewage Sludge on Food or Crops
Comments: EPA received comments that emphasized that compost or
fertilizers made from biosolids or sewage sludge should not be used on
foods or crops. Many of these comments

[[Page 52482]]

expressed general opposition to the use of sewage sludge or biosolids
on food or agricultural crops. Nearly half of the food/crop related
comments mentioned the general issue of toxicity. Some included direct
or indirect references to a 1992 determination or decision which the
commenters claimed determined that biosolids are too toxic to be dumped
in the ocean and questioned how they could be spread on crops; many of
the commenters attributed this determination to EPA.\2\ One commenter
believed the proposed designations would make it more difficult for
consumers to know what went into the production of their food. One
comment requested studies to ensure the safety of food treated with
sludge, and another suggested that any untested sewage sludge is unsafe
for crops.
---------------------------------------------------------------------------

\2\ We believe this is a reference to the Ocean Dumping Ban Act
of 1988 that prohibited the dumping of sewage sludge in ocean
waters. Specifically, the Act made it unlawful for any person to
dump or transport for the purpose of dumping sewage sludge or
industrial waste into ocean waters after December 31, 1991.
---------------------------------------------------------------------------

Response: EPA disagrees with the commenters who argue that the use
of biosolids and or sewage sludge can not be safely used on foods or
crops. (The basis for this position is discussed more fully below.)
Therefore, in RMAN V, EPA recommends that procuring agencies can
purchase and use fertilizer made from recovered organic materials in
such applications as agriculture and crop production, landscaping,
horticulture, parks and other recreational facilities, on school
campuses, and for golf course and turf maintenance. Both EPA
(http://www.epa.gov/owm/mtb/biosolids/) and USDA
(http://www.ams.usda.gov/nop/
followed in the production, use and application of fertilizers made
from recovered organic materials, including biosolids and sewage
sludge. Also, OMRI (http://www.omri.org) has developed guidelines
and lists of materials allowed or prohibited for use in the production,
processing and handling of organically grown products. If a fertilizer
is produced with recovered organic materials, including biosolids, it
must have already met the standards for production or be in violation
of legal requirements. As previously stated, EPA has concluded that
these standards protect human health and the environment.
Specifically, in 1993, EPA promulgated regulations that limit
pollutants and pathogen content in biosolids. These regulations (known
as ``the Part 503 Standards for the Use or Disposal of Sewage Sludge''
(40 CFR part 503)) are designed to protect public health and the
environment with an adequate margin of safety. If a composted product
contains biosolids, the product and its processing are subject to Part
503. The regulations require that sewage sludge meet metals standards
and require either the elimination or significant reduction of
concentrations of pathogens in sewage sludge before land application.
For Class B sewage sludge that contains reduced levels of pathogens,
Part 503 standards impose crop-harvesting restrictions and site
controls to ensure that the pathogen levels in the sewage sludge-soil
mixture are reduced below pathogen background levels before crops may
be harvested, domestic animals are allowed to graze or humans are
allowed unrestricted access to the land application site. Class A
sewage sludge contains no pathogens or pathogen indicator organisms.
There are no restrictions in the use of Class A biosolids. (For more
information, see subpart D of 40 CFR part 503.)
EPA's national sewage sludge standards are protective of public
health and the environment, including sensitive human subpopulations,
such as the elderly and small children. In establishing national
standards for sewage sludge under the 40 CFR part 503 regulations, EPA
assessed the exposure and hazard to members of a modeled highly exposed
farm family who live on farms where sewage sludge is land-applied as a
fertilizer or a soil amendment. Uses include fertilizer use on both
pasture-land and crop land, and as a soil amendment on mining
reclamation areas. The farm family's diet is assumed to include a
significant portion of home-produced foods, including exposed and
protected fruits and vegetables, root vegetables, beef, and milk. We
also assumed that a child will consume a biosolids-soil mixture via
hand to mouth exposure. Ecological species modeled include invertebrate
and vertebrate animals and plants that may be exposed to contaminants
through agricultural application of sewage sludge as a fertilizer or
soil amendment.
Based on this assessment, the Agency concluded that the Part 503
regulations are protective of public health and the environment and
continues to support biosolids management in full compliance with State
and Federal regulations. Moreover, EPA is in an ongoing process to
evaluate additional toxic pollutants for potential regulation under
section 405(d) of the CWA, and the Part 503 Standards for the Use and
Disposal of Sewage Sludge.
Finally, although EPA does not have baseline data on the amount of
compost or fertilizers used by each federal agency, we believe that the
major purchases by procuring agencies of compost or fertilizers would
be used in landscaping applications.
5. Toxins in Sewage Sludge and Potential Health Effects
Comments: EPA received a number of comments regarding the toxic,
radioactive, pathogenic, or chemical nature of biosolids. More than
half of the comments in this category generally described sludge or
biosolids as toxic, hazardous, poisonous, or containing harmful
chemicals. Many of the comments mentioned specific substances found in
wastewater and/or sludge, such as radionuclides, hormones, drugs, heavy
metals, pesticides, solvents, and pathogens. Some comments focused
particularly on pathogens present in sludge or biosolids. A few other
commenters stated that radioactivity can end up in the sludge, because
NRC, DOE, DOT, and EPA are proposing that nuclear waste go to
landfills, with the resultant leachate going to wastewater treatment
plants, and radioactivity is not monitored or regulated in sludge.
Other comments expressing concern about substances found in
wastewater mentioned a variety of materials they believe homeowners and
industry flush down the drain; one of these suggested education for
households and industry to prevent contamination of biosolids with
chemicals. A few comments also suggested that landfill and Superfund
leachates are disposed of in local sewage treatment plants.
A little more than a dozen comments raised concerns over the
potentially harmful human health effects of sewage sludge/biosolids.
One in particular cited the 2002 Report of the Board of Environmental
Studies and Toxicology of the National Academy of Sciences (NAS), which
the commenter claimed underscored the uncertainties about the human
health effects from exposure to biosolids. One commenter also suggested
that, ``If the limits used in the HWIR also allow a hazardous waste to
escape regulation as a hazardous waste, then they should be used as the
upper limit delimiting solid that is allowed as fertilizer feedstock
under the Procurement Rule.''
Response: As noted above, EPA has established standards for sewage
sludge to protect public health and the environment. Thus, the Agency
does not agree with those commenters who argue that the use of
biosolids as compost or fertilizer is not protective of human

[[Page 52483]]

health and the environment. (For more information on Part 503, please
refer to the response in section VI.B.4 above.) In addition, EPA has an
ongoing effort to evaluate further pollutants for potential regulation
in sewage sludge.
Regarding the 2002 NAS report cited by a commenter, EPA requested
the NAS to prepare a study of sewage sludge to assist the Agency in
evaluating regulatory requirements and non-regulatory measures with
respect to the land application of biosolids. The NAS completed an 18-
month study in July 2002 entitled, Biosolids Applied to Land, Advancing
Standards and Practices. The overarching findings of the report
indicated that there is no documented scientific evidence that the Part
503 rule has failed to protect public health. The findings went on to
say that additional research is needed to reduce the persistent
uncertainty concerning the potential for adverse human health effects
from exposure to biosolids. The NAS report can be found at
http://www.epa.gov/waterscience/biosolids/nas/complete.pdf.
As a result, in December 2003, EPA developed a biosolids action
plan aimed at responding to the NAS report. The EPA action plan
includes conducting a review to identify additional pollutants for
possible regulation, conducting a targeted survey of potential
pollutants, and evaluating the next steps for investigating adverse
health allegations following land application of sewage sludge. A
number of projects from the action plan are either completed or nearing
completion, including field studies of application of treated sewage
sludge, the targeted national analytical sewage sludge survey, and an
exposure measurement workshop. Several analytical methods reports and
several research projects have been published and a number of documents
are scheduled to be published by the end of 2007. For more information
see: http://www.epa.gov/waterscience/biosolids/.
One comment referred to EPA's Proposed Hazardous Waste
Identification Rule (HWIR). EPA notes that it never finalized this rule.
6. Specific Applications of Sewage Sludge
Comments: EPA received a number of comments supporting the proposed
CPG V that discussed specific applications of compost made from
biosolids. A few commenters stated that they support the proposal
because it would promote the use by government agencies and their
contractors of biosolids-derived compost on landscaping and not on food
crops. Use on farm land was supported by one commenter, who stated it
resulted in significant crop growth and yield and reduces the need for
chemical fertilizers. Another commenter stated that several
municipalities in Georgia have used compost derived from a combination
of biosolids and yard waste for use in landscaping, agriculture, and as
landfill cover, with good success. Yet another commenter encouraged EPA
to retain the 247.15(b) designation of compost language ``for use in
landscaping, seeding of grass or other plants on roadsides and
embankments * * *'' and add ``and other uses'' at the end of the
sentence. The commenter stated that the majority of materials procured
in large quantities by government agencies and their contractors are
used in applications that involve minimal public contact, such as
highway construction, land reclamation after construction, landfill
covers, parks, and golf courses. Encouraging such uses could reduce
demand for biosolids applications in agriculture, which, while widely
considered safe and effective, has been criticized by some. This
commenter also stated that, in densely-populated regions, such as parts
of New England, the nutrients and organic matter in biosolids are
needed less in agriculture and more to build healthy urban and suburban
soils that are then better able to absorb precipitation and reduce
storm runoff and erosion.
EPA also received several comments that were opposed to certain
types of land applications of sewage sludge or sludge products. One
comment opposed all land applications of sludge. A few other commenters
opposed application of sewage sludge near food, as an agricultural soil
amendment, or on recreational public places. Some of these commenters
did suggest, however, that there were appropriate land applications of
sludge, such as on trees and non-vegetable crops or along roadways and
similar places.
Response: Regarding the use of biosolids on food crops, please see
the response in section VI.B.4 above. In response to the comment which
encouraged EPA to retain the previous 40 CFR 247.15(b) designation of
compost language ``for use in landscaping, seeding of grass or other
plants on roadsides and embankments* * * '' and add ``and other uses''
at the end of the sentence, EPA has retained this language in the
Preference Program section of the RMAN V for compost. However, the
final CPG V compost designation language does not prescribe specific
applications. Recognizing that government agencies typically use
compost for numerous applications, such as landscaping, bioremediation,
roadside maintenance, and erosion control, it is appropriate to be as
inclusive as possible in terms of potential applications of compost,
while ensuring that the Agency would not have to re-propose the compost
designation each time it learned of an additional use by procuring
agencies.
As explained in sections VI.B.4 and 5 above, EPA's Part 503
regulations are protective of public health and the environment, and
the Agency continues to support biosolids management that complies with
the Part 503 regulations. EPA supports the beneficial reuse of
biosolids as an option for biosolids use, but recognizes that any
decisions regarding those choices are local decisions subject to state
requirements in addition to federal regulations.
7. Manure
Comments: EPA received a few comments that discussed animal manure.
A few of the commenters supported changes to the definition of compost
and the description of the fertilizer designation that would have the
effect of allowing the recovered material content of these designated
items to include manure. A number of other commenters addressed both
manure and biosolids. One of the commenters supported the use of manure
as a recovered material, but also expressed concern that it (including
human manure) could be very toxic regarding ``medications, diseases,
and any products that are flushed in the toilet.'' Another opposed
allowing manure or biosolids as recovered materials for the compost
designation, asking how these materials are not considered ``a risk for
human consumption, especially once they are [leached] into our ground
water systems?'' One commenter was opposed to the use of manure,
claiming that CAFOs produce manure full of hormones and antibiotics.
Response: As previously explained, EPA is only designating items
that may be produced with recovered materials. In doing so, under
section 6002 of RCRA, we evaluated a number of factors, including
availability. Compost and fertilizers are available with manure
content, one of many types of compost and fertilizers composed of
recovered materials content. Accordingly, the descriptions of the
compost and fertilizer designations do not address specific types of
recovered organic materials in the compost or fertilizers. The use of
the compost or fertilizer and their suitability for particular uses is
a determination made by individual

[[Page 52484]]

procuring agencies. That decision made by individual procuring agencies
will reflect many factors, including the required organic material
content, necessary nutrient concentration, as well as the necessity for
complying with all state and local limitations or restrictions relative
to the organic content.
As discussed in the background document for proposed CPG V, if
improperly managed, animal manures can and have created significant
environmental problems, including human health issues caused by
contamination of surface water and groundwater. Using animal manures as
a raw material for compost, as opposed to applying it directly to the
land or stockpiling it, represents an environmentally beneficial option
for this waste product that should help in controlling the pathogens in
the manure. With respect to more general concerns about animal manure,
EPA notes that, under EPA regulations, Concentrated Animal Feeding
Operations (CAFOs) must obtain permits, submit annual reports, and
develop and follow nutrient management plans for proper handling of
manure and wastewater associated with CAFO operations (68 FR 7176,
February 12, 2003).
8. Thermophilic Process and Vermicompost
Comments: EPA received a few comments requesting that the agency
include vermicompost (the end-product of the breakdown of organic
matter by some species of earthworm) in the designation. One of the
commenters requested that the Agency not require thermophilic
treatment, while the other requested that EPA acknowledge compost
products (e.g., vermicompost) that are produced at temperatures lower
than thermophilic.
Response: Vermicompost (the end-product of the breakdown of organic
matter by some species of earthworm) does not appear to meet the
statutory criteria under RCRA section 6002 by which EPA evaluates
products for designation, including widespread availability. The
commenters did not provide sufficient information to assist EPA in
evaluating vermicompost against those criteria. Furthermore, EPA
understands that there are very few large-scale vermicomposting
operations in the U.S. and that this could impact the availability of
vermicompost. Therefore, EPA's definition of compost promulgated in the
final CPG V is limited to compost produced by the thermophilic
processes. Since vermicompost is not a thermophilic product, it is not
covered by the definition, and therefore it is not included within the
scope of the final CPG V compost designation.
As background, EPA sought to designate the broadest category of
compost so as to promote its wide applicability for procuring agencies.
Consequently, EPA originally designated compost produced under
thermophilic conditions in CPG I in 1995 because these conditions
result in mature, cured composts that can be used for a broad range of
applications for which procuring agencies were known to use compost.
Among these applications are landscaping, seeding of grass or other
plants on roadsides and embankments, use as a nutritious mulch under
trees and shrubs, erosion control, and land reclamation. This diverse
range of applications requires that the compost have several
characteristics. These include an ability to hold several times its
weight in water and to change the infrastructure of soils. In addition,
the compost should degrade the hydrocarbons found in petroleum
products, pesticides, and wood preservatives; degrade volatile organic
compounds (VOCs); and form metal, humus, and soil complexes that are
too large to pass through the cell walls of plants grown in this
compost. Thermophilic compost has these characteristics. Furthermore,
thermophilic microorganisms that develop only at higher temperatures
are needed to promote rapid composting and destroy pathogens and weed
seeds that may be present in the composted materials. While
vermicompost has been shown to enhance plant growth as a soil
amendment, it does not appear to exhibit characteristics that would
make it useful in the other applications previously mentioned.

VII. Where can agencies get information on the availability of EPA-
designated items?

EPA has developed a searchable online Supplier Database containing
the names of manufacturers, suppliers, and distributors of CPG-
designated items (see section IX below for Internet access
information). Procuring agencies should contact the manufacturers/
vendors directly to discuss their specific needs and to obtain detailed
information on the availability and price of recycled products meeting
their needs.
Other information is available from the GSA, the Defense Logistics
Agency (DLA), private corporations, and trade associations. State and
local recycling programs are also a potential source of information on
local distributors and the availability of designated items. In
addition, state and local government purchasing officials that are
contracting for recycled content products may have relative price
information.

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO)12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
However, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in the
``Economic Impact Analysis for the Comprehensive Procurement Guideline
V.'' A copy of the analysis is available in the docket for this action
and is briefly summarized here.
1. Summary of Costs
As shown in Table 3 below, EPA estimates that the annualized costs
of the final rule will range from $1.75-$3.51 million, with costs being
spread across all procuring agencies (i.e., federal agencies, state and
local agencies that use appropriated federal funds to procure
designated items, and government contractors that use appropriated
federal funds to procure designated items). These costs are annualized
over a 10-year period at a three percent discount rate. Because there
is considerable uncertainty regarding several of the parameters that
influence the costs, EPA conducted a sensitivity analysis to identify
the range of potential costs of the final rule. Thus, high-end and low-
end estimates are presented along with the best estimate. The primary
parameter affecting the range of cost estimates is the number of
products each procuring agency is assumed to procure each year. Details
of the costs associated with the final rule are provided in the
Economic Impact Analysis (EIA) for this rule.

[[Page 52485]]

Table 3.--Summary of Annualized Costs of CPG V Amendments to All
Procuring Agencies
------------------------------------------------------------------------
Best estimate
Total total
Procuring agency annualized annualized
costs ($1000) costs ($1000)
------------------------------------------------------------------------
Federal Agencies........................ $668-$1,336 $1,336
States.................................. 240-480 480
Local Governments....................... 836-1,673 1,673
Contractors............................. 10-20 20
-------------------------------
Total............................... 1,754-3,509 3,509
------------------------------------------------------------------------

As a result of this rule, procuring agencies will be required to
take certain actions pursuant to RCRA section 6002, including rule
review and implementation; estimation, certification, and verification
of designated item procurement; and for federal agencies, reporting and
recordkeeping. The costs shown in Table 3 represent the estimated
annualized costs associated with these activities. Table 3 also
includes estimates for federal agencies that will incur costs for
specification revisions and affirmative procurement program
modification. More details of the costs associated with this rule are
included in the EIA.
There may be both positive and negative impacts to individual
businesses, including small businesses. EPA anticipates that this final
rule will provide additional opportunities for recycling businesses to
begin supplying recovered materials to manufacturers and products made
from recovered materials to procuring agencies. In addition, other
businesses, including small businesses, that do not directly contract
with procuring agencies may be affected positively by the increased
demand for recovered materials. These include businesses involved in
materials recovery programs and materials recycling. Municipalities
that run recycling programs are also expected to benefit from increased
demand for certain materials collected in their recycling programs.
EPA is unable to determine the number of businesses, including
small businesses, which may be adversely impacted by this final rule.
If a business currently supplies products to a procuring agency and
those products are made only out of virgin materials, the amendments to
the CPG may reduce that company's ability to compete for future
contracts. However, the amendments to the CPG will not affect existing
purchase orders, nor will it preclude businesses from adapting their
product lines to meet the new specifications or solicitation
requirements for products containing recovered materials. Thus, many
businesses, including small businesses, that market to procuring agencies
have the option to adapt their product lines to meet specifications.
2. Product Cost
Another potential cost of this action is the possible price
differential between an item made with recovered materials and an
equivalent item manufactured using virgin materials. The relative
prices of recycled content products compared to prices of comparable
virgin products vary. In many cases, recycled content products are less
expensive than similar virgin products. In other cases, virgin products
have lower prices than recycled content products. Many factors can
affect the price of various products. For example, temporary
fluctuations in the overall economy can create oversupplies of virgin
products, leading to a decrease in prices for these items. Under RCRA
section 6002(c), procuring agencies are not required to purchase a
product containing recovered materials if it is only available at an
unreasonable price. However, the decision to pay more or less for such
a product is left up to the procuring agency.
3. Summary of Benefits
EPA anticipates that this final rule will result in increased
opportunities for recycling and waste prevention. Waste prevention can
reduce the nation's reliance on natural resources by reducing the
amount of materials used in making products. Using less raw materials
results in a commensurate reduction in energy use and a reduction in
the generation and release of air and water pollutants associated with
manufacturing.
Additionally, using compost can reduce the need for water,
fertilizers, and pesticides. It serves as a marketable commodity and is
a low-cost alternative to standard landfill cover and artificial soil
amendments. Composting also extends municipal landfill life by
diverting organic materials from landfills and provides a less costly
alternative to conventional methods of remediating (cleaning)
contaminated soil. The use of compost and fertilizer made from
recovered organic materials reduces the need for chemical manufacturing
and processing and reduces energy costs associated with that.
Recycling, in general, can affect the more efficient use of natural
resources. For many products, the use of recovered materials in
manufacturing can result in significantly lower energy and material
input costs than when virgin raw materials are used; reduce the
generation and release of air and water pollutants often associated
with manufacturing; and reduce the environmental impacts of mining,
harvesting, and other extraction of natural resources.
By purchasing products made from recovered materials, government
agencies can increase opportunities for all of these benefits. On a
national and regional level, this final rule can result in expanding
and strengthening markets for materials diverted or recovered through
public and private collection programs. Also, since many state and
local governments, as well as private companies, reference EPA
guidelines when purchasing designated items, this rule can result in
the increased purchase of recycled products, locally, regionally, and
nationally and provide opportunities for businesses involved in
recycling activities.

B. Paperwork Reduction Act

This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the

[[Page 52486]]

existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this final rule on small
entities, a small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district, or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise that is independently owned and operated and
is not dominant in its field.
EPA evaluated the potential costs of this rule to determine whether
its actions would have a significant impact on a substantial number of
small entities. In the case of small entities that are small
governmental jurisdictions, EPA has concluded that the rule will not
have a significant economic impact. EPA concluded that no small
government with a population of less than 50,000 is likely to incur
costs associated with the designated items because it is improbable
that such jurisdictions will purchase more than $10,000 of any
designated item. Consequently, RCRA section 6002 would not apply to
their purchases of designated items. Moreover, there is no evidence
that complying with the requirements of RCRA section 6002 would impose
significant additional costs on the small governmental entity in the
event that a small governmental jurisdiction purchased more than
$10,000 worth of a designated item. This is the case because in many
instances, items with recovered materials content may be less expensive
than items produced from virgin material.
EPA similarly concluded that the economic impact on small entities
that are small businesses would not be significant. Any costs to small
businesses that are ``procuring agencies'' (and subject to RCRA section
6002) are likely to be insubstantial. RCRA section 6002 applies to a
contractor with a federal agency (or a state or local agency that is a
procuring agency under section 6002) when the contractor is purchasing
a designated item, is using appropriated federal money to do so, and
exceeds the $10,000 threshold. There is an exception for purchases that
are ``incidental to'' the purposes of the contract, i.e., not the
direct result of the funds disbursement. For example, a courier service
contractor is not required to purchase re-refined oil and retread tires
for its fleets because purchases of these items are incidental to the
purpose of the contract. Therefore, as a practical matter, there would
be very limited circumstances when a contractor's status as a
``procuring agency'' for section 6002 purposes would impose additional
costs on the contractor. Thus, for example, if a state or federal
agency is contracting with a supplier to obtain a designated item, then
the cost of the designated item (any associated costs of meeting
section 6002 requirements) to the supplier presumably will be fully
recovered in the contract price. Any costs to small businesses that are
``procuring agencies'' (and subject to section 6002) are likely to be
insubstantial. Even if a small business is required to purchase other
items with recovered materials content, such items may be less
expensive than items with virgin content.
After considering the economic impacts of this final rule on small
entities, EPA certifies that the rule will not have a significant
economic impact on a substantial number of small entities.
This final rule, therefore, does not require a regulatory
flexibility analysis. The basis for EPA's conclusions is described in
greater detail in the EIA for the final rule.
While not a factor relevant to determining whether the final rule
will have a significant impact for RFA purposes, EPA has concluded that
the effect of this final rule will be to provide positive opportunities
to businesses engaged in recycling and the manufacture of recycled
products. Purchase and use of recycled products by procuring agencies
increase demand for these products and result in private sector
development of new technologies, creating business and employment
opportunities that enhance local, regional, and national economies.
Technological innovations associated with the use of recovered
materials can translate into economic growth and increased industry
competitiveness worldwide, thereby, creating opportunities for small
entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. The estimated aggregate cost of compliance

[[Page 52487]]

for state and local governments is not expected to exceed, at the
maximum, $2.1 million annually. The cost of enforceable duties that may
arise as a result of this action on the private sector is estimated to
not exceed $20,000 annually. Thus, this rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. This rule does not significantly affect small governments
because they are subject to the same requirements as other entities
whose duties result from this rule. As discussed above, the expense
associated with any additional costs to state and local governments is
not expected to exceed, at the maximum, $2.1 million annually. The
requirements do not uniquely affect small governments because they have
the same ability to purchase these designated items as other entities
whose duties result from today's rule. Additionally, use of designated
items affects small governments in the same manner as other such
entities.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The rule will not impose
substantial costs on states and localities. As a result of this action,
procuring agencies will be required to perform certain activities
pursuant to RCRA section 6002, including rule review and
implementation, and for federal agencies, reporting and record keeping.
As noted above, EPA estimates that the total annualized costs of this
final rule will range from $1.75 to $3.51 million. EPA's estimate
reflects the costs of the rule for all procuring agencies (i.e.,
federal agencies, state and local agencies that use appropriated
federal funds to procure designated items, and government contractors
that use appropriated federal funds to procure designated items), not
just states and localities. Thus, the costs to states and localities
alone will be lower and not substantial. Thus, Executive Order 13132
does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. This rule
does not significantly or uniquely affect the communities of Indian
tribal governments. The rule does not impose any mandate on tribal
governments or impose any duties on these entities. Thus, Executive
Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to children.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
The Agency has referenced USCC's Test Methods for the Examination
of Composting and Compost (TMECC) and USCC's Seal of Testing Assurance
(STA) labeling program, as well as the OMRI guidelines.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The effect, if any, of our action is to increase the
procurement, and hence the quantity produced, of items with recovered
materials content. This may result in the increased diversion of waste
products from the disposal stream and thus may have positive effects on
human health and the environment. Reuse of the waste materials may
prevent improper disposal with its potential for adverse

[[Page 52488]]

consequences to public health or the environment. To the extent that
disadvantaged populations are disproportionately at risk for such
effects, this rule may well result in community benefits.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective September 15, 2008.

IX. Supporting Information and Accessing Internet

Supporting materials for this final CPG V are available in the
OSWER Docket and on the Internet. The address and telephone number of
the OSWER Docket are provided in the SUPPLEMENTARY INFORMATION section
above. Supporting materials can be accessed on the Internet at
http://www.regulations.gov. Among the supporting materials available in the
OSWER Docket and on the Internet are the following:
``Background Document for the Final Comprehensive Guideline (CPG) V
and Final Recovered Materials Advisory Notice (RMAN) V,'' U.S.
Environmental Protection Agency, Office of Solid Waste, August, 2007.
``Economic Impact Analysis for Final Comprehensive Procurement
Guideline V,'' U.S. Environmental Protection Agency, Office of Solid
Waste, July 2007.

List of Subjects in 40 CFR Part 247

Environmental protection, Government procurement, Recycling.

Dated: September 6, 2007.
Stephen L. Johnson,
Administrator.

• For the reasons discussed in the preamble, title 40, chapter I, of the
Code of Federal Regulations, is amended as follows:

PART 247--COMPREHENSIVE PROCUREMENT GUIDELINE FOR PRODUCTS
CONTAINING RECOVERED MATERIALS

• 1. The authority citation for part 247 is revised to read as follows:

Authority: 42 U.S.C. 6912(a) and 6962; EO 13423, 72 FR 3919, 3
CFR, 1998 Comp., p. 210.

• 2. Section 247.3 is amended by revising the definition of ``compost''
and adding a definition in alphabetical order for ``fertilizer made
from recovered organic materials'' to read as follows:

Sec. 247.3 Definitions.

* * * * *
Compost is a thermophilic converted product with high humus
content. Compost can be used as a soil amendment and can also be used
to prevent or remediate pollutants in soil, air, and storm water run-off.
* * * * *
Fertilizer made from recovered organic materials is a single or
blended substance, made from organic matter such as plant and animal
by-products, manure-based or biosolid products, and rock and mineral
powders, that contains one or more recognized plant nutrient(s) and is
used primarily for its plant nutrient content and is designed for use
or claimed to have value in promoting plant growth.
* * * * *

• 3. In Sec. 247.15, revise paragraph (b) and add paragraph (f) to read
as follows:

Sec. 247.15 Landscaping products.

* * * * *
(b) Compost made from recovered organic materials.
* * * * *
(f) Fertilizer made from recovered organic materials.

[FR Doc. E7-18150 Filed 9-13-07; 8:45 am]
BILLING CODE 6560-50-P

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