Comprehensive Procurement Guideline V for Procurement of Products Containing Recovered Materials, 52475-52488 [E7-18150]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 72, Number 178 (Friday, September 14, 2007)]
[Rules and Regulations]
[Pages 52475-52488]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18150]


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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 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 
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
------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
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..................
----------------------------------------------------------------------------------------------------------------

    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 (https://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, https://
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 https://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.
---------------------------------------------------------------------------

    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 https://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 https://
www.compostingcouncil.org/pdf/Specifying_STA_Prog.pdf. More 
information on TMECC and STA can be found at https://www.composting 
council.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 (https://
www.epa.gov/owm/mtb/biosolids/) and USDA (https://www.ams.usda.gov/nop/
NOP/NOPhome.html) have promulgated regulations and requirements to be 
followed in the production, use and application of fertilizers made 
from recovered organic materials, including biosolids and sewage 
sludge. Also, OMRI (https://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 https://
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: https://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 ot