Thursday
Gtotdber 12; 1989
Part
Environmental
Protection Agency
4ff CFR Part 260
Hazardous Waste Management System?
Use at Ground-Water Data m Delisiing
Decisions; Proposed! Rufe and Request
tor Comments
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' • r
Federal Register / Vol. 54. No. 196 / Thursday, October 12. 1989 / Proposed Rules
•41931*
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 260
[SW-FRL-3552-9]
RW20SO-AO*
Hszsfdous Wast* Management
Sy»t«fn; Us* of Ground-Water Data in.
D*ttstlnfi Decision*
AOINCY: Environmental Protection
Agency.
ACTION: Proposed rule and request for
comments.
SUMMARY: The Environmental-Protection
Agency (EPA or Agency) is- today"
proposing to amendits regulations-,
under the Resource Conservation and
Recovery Act (RCRA) to clarify the
Agency's authority to consider ground-
water monitoring data in the evaluation
of deliating petitions (submitted under
40 CFR 260.20 and 260.22), and also to
clarify the ability of the Agency to
require such data from petitioners.
Accordingly, this proposal provides that
petitions Tor wastes managed-in a
hazardous waste unit must include •' '
ground-water monitoring information, if'
a ground-water monitoring system for
the unit is required under 40 CFR part
284 or 265, or equivalent authorized •
State requirements. Such petitioners
should have adequate ground-water
monitoring systems in place and should
be conducting regular ground-water
monitoring, except as specifically
provided otherwise in 40 CFR part 281,
264. or 265. Facilities will be required to
provide the following information as
part of their petitions: A description of
site geology and hydrology; a
description of the ground-water
monitoring systems for the units in
which the petitioned waste is managed:
the results obtained from the analysis of
ground-water samples collected
pursuant to 40 CFR part 284 or 265 or
authorized State equivalent; a
discussion of sampling and analytical
procedures followed; and an
interpretation of the information and
data presented. The petitioner must also
submit any additional ground-water
information necessary to characterize
the petitioned waste's impact on ground-
water quality, including the analyses of
ground water for any constituent
deemed necessary by EPA.
Alternatively, the petitioner may specify
the titles of reports containing this
information and identify the State or
EPA Regional authority which has
possession of the submitted reports. The
Agency has in the past evaluated and
will continue to evaluate ground-water
monitoring data, where appropriate, as
well as other factors (e.g., waste
constituent concentrations, mobility, pH.
and reactivity) during the delisting .
petition review process,
DATE: EPA will accept public comments
on this proposed rule until November 27,
1989. Comments postmarked after the
close of the comment period may not be
.considered. -Any person may request a
hearing on this proposed rule by filing a
request with Joseph S. Carra whose
address appears below, by October 27, •
1989. .
ADDRESSES: The public must send an.
original and two copies of their
comments to the Docket Clerk. Office of •
Solid Waste (OS-305), U.S.
Environmental Protection Agency, 401M
Street SW., Washington;'DC 20460;
Identify your comments at the top with
this regulatory docket number "
GWRP-FFFF".
Requests for a hearing should be
addressed to Joseph S. Carra. Director,
Permits and State Programs Division, •
Office of Solid Waste (OS-340), US.
Environmental Protection Agency, 401M
Street SW.. Washington, DC 20460. .
The RCRA regulatory docket for this
proposed rule is located at the U.S.
Environmental Protection Agency, 401M
Street SW.. Room 2427. Washington. DC
20460, and is available for viewing from
9:00 ajn. to 4:00 p.m.. Monday through
Friday, excluding Federal holidays. Call
(202) 475-9327 for appointments. The
public may copy material from any -
regulatory docket at a cost of $0.15 per
page.
FOR FURTHER INFORMATION CONTACT:
For general information; contact the
RCRA/Superfund Hotline, toll free at •
(800) 424-9348 or at (202) 382-3000. For
technical information, contact Robert
Kayser, Office of Solid Waste (OS-343),
U.S. Environmental Protection Agency,
401M Street SW., Washington. DC
20480, (202) 382-4538,
SUPPLEMENTARY INFORMATION:
Preamble Outline ••
I. Authority
IL Background
HL Overview of Ground-water Monitoring
Requirements under 40 CFR Parts 264'
and 265
IV. Use of Ground-water Monitoring Data in
. Delisting Decisions
A. Incomplete Delisting Information
B. Non-compliant Monitoring Systems
C. Identification of Ground-water
Contamination
D. Impact on Future Hazardous Waste
Generators
E. Impact on Facilities Planning to Treat
Stored Wastes
V. Effective Date
VI. State Authority
A. Applicability of Rules in Authorized
States
B. Effect on State Authorizations
Vtt. Regulatory Analysis
A. Regulatory Impact Analysis
a Regulatory Flexibility Act
C. Paperwork Reduction Act
VOX List of Subjects.
L Authority
This regulation is issued under the
authority of sections 2002(a) and 3001 of
the Solid Waste Disposal Act as
amended (42 U.S.C. 6912(a) and 6921).
IL Background
On January 16,1981, as part of its final
and interim final regulations
implementing section 3001 of RCRA,
EPA published an amended list of
hazardous wastes from nonspecific and
specific sources. This list has been
amended several times, and is published
in 40 CFR 261.31 and 261.32. These
wastes are listed as hazardous because
they typically and frequently exhibit one
or more of the characteristics of
hazardous wastes identified in subpart
C of part 261 (i.e., ignitability,
corrosivity, reactivity, and extraction
procedure (EP) toxicity) or meet the
criteria for listing contained in 40 CFR
261.11 (a)(2) or (a)(3).
' Individual waste streams may vary,
however, depending on raw materials,
industrial processes, and other factors.
Thus, while a waste that is described in
these regulations generally is hazardous,
a specific waste from an individual
facility meeting the listing description
may not be. For this reason, 40 CFR
260.20 and 260.22 provide an exclusion
procedure, allowing persons to
demonstrate that a specific waste from a
particular generating facility should not
be regulated as a hazardous waste. The
petitioner makes this demonstration by
submitting manufacturing and treatment
process information, raw materials lists,
analytical data, mass balance
arguments, and other administrative
information.
• To have their wastes excluded,
petitioners must show that wastes
generated at their facilities do not meet
any of the criteria for which the wastes
were listed. See 40 CFR 260.22(a) and
the background documents for the listed
wastes. In addition, the Hazardous and
Solid Waste Amendments (HSWA) of
1984 require the Agency to consider any
factors (including additional
constituents) other than those for which
the waste was listed, if there is a
reasonable, basis to believe that such
additional factors could cause the waste
to be hazardous. Accordingly, a
petitioner also must demonstrate that
the waste does not exhibit any of the
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Federal Register / VoL 54. No; 196 / Thursday, October 12. 1989 /proposed Rules
hazardous characteristics..(/.«,
ignitability, reactivity, corrosivity, and
EP toxicity), and must present sufficient
information for the Agency to determine
whether the waste .contains any other
toxicants at hazardous levels. See 40
CFR,26022(a), 42 U.S.C. 6921(f). and the
background documents for the listed ,
wastes. Although wastes which.are
"delisted" (i.e., excluded] have been
evaluated to determine whether or not
they exhibit-any of the characteristics of
hazardous wastes, generators remain
obligated to determine whether or not
their waste remains nonhazardous
based on the hazardous waste
characteristics. :
In addition to wastes listed as
hazardous in 40 CFR 281.31 and 261.32.
residues from the treatment, storage, or
disposal of listed hazardous wastes and
mixtures containing hazardous wastes
also are eligible for exclusion and
remain hazardous wastes until
excluded. See 40 CFR 261.3 (c) and
(d)(2). The substantive standard for
"delisting"'a treatment residue or a - .
mixture is the same as previously
described for listed wastes.
La the past, the Agency requested that
petitioners submit ground-water .
monitoring data for the waste .
management units which contained the
petitioned waste. This ground-water •
monitoring information was evaluated
as part of the submitted petition on a
case-by-case" basis. In April 1985, the
Agency published a guidance manual to
assist facilities in-preparing delistihg
petitions. See "Petitions to Delist
Hazardous. Wastes—A Guidance
Manual" U.S. EPA, Office of Solid
Waste (EPA/530-SW-85-003), April
1985~. This manual informed petitioners
that ground-water monitoring data
would be collected, if available, from
State and EPA Regional offices for
consideration during petition reviews.
The Agency has also used (and
currently uses, where appropriate)
analytical models, such as the vertical
and horizontal spread (VHS) model and
the Land Treatment Model (LTM), to
evaluate the mobility of toxicants from
land-disposed wastes. See 50 FR 48896,
November 27,1985; 50 FR 48961.
November 27,1985; and 51 FR 41095,
November 13,1986. The Agency has
relied, and currently relies where
appropriate, on these models, to quantify
the potential hazards of a petitioned
waste. '•• . . ;
For wastes that contain toxic
constituents (La., constituents listed in
40 CFR part 281. Appendix VHI), the
listing criteria require the Agency to
consider a number of factors in
determining if the waste poses a
"substantial present or potential hazard
to human health or the environment" 4Or
CFR 281.11(a)(3). These factors include
the "potential of the constituent to
migrate from the waste into the
environment" 40 CFR 261.11(a)(3)(iii); In
delisting evaluations* the. Agency
normally assesses the potential for
migration from the waste into the
ground water. Although EPA uses
models'to predict the movement o£
waste constituents, EPA views ground-
water monitoring data from an -adequate
well system as important information in
determining that the petitioned waste
. has not had or could not have an
adverse impact on ground water. .
Therefore, the Agency routinely
evaluates ground-water monitoring data
for petitions involving on-site and
dedicated off-site land-based hazardous
waste units.
The Agency recognizes that
modelling, by definition, is less accurate
in predicting hazards at a particular site
than data that reflect hazards posed by
the actual disposal of a specific
wastestream at that particular site.
However, wastes which have been
delisted may be disposed of at
numerous locations where the
hydrogeological and other conditions
may vary substantially. Predictive
models, therefore, are,necessary to
evaluate the hazards posed by disposal
of specific wastestreams.
When data can be obtained to
characterize the effects of past disposal
practices for a given wastestream, the
Agency believes this data will.
complement the use of predictive
models. Such waste-specific data
provide significant additional
information that the Agency believes is
important to characterize fully the
hazards posed by disposal of a
particular waste. For example, ground-
water monitoring data from a particular
site at which a specific waste was
disposed may-reflect contamination
(e.g., exceedance of health-based
levels). Such data clearly indicate that
the specific waste is hazardous at one
location, and thus is potentially
hazardous at many other locations.
EPA is proposing today's amendments
to 40 CFR 280.22 to clarify the authority
of the Agency to consider ground-water
monitoring data as part of the
evaluation of delisting petitions, and
also to clarify the ability of the Agency
to require such data from petitioners.
(EPA is not soliciting, and will not
respond to, comments on other existing
elements of the delisting program or
regulations.) EPA will require petitioners
to submit as part of delisting petitions,
ground-water monitoring data sufficient
to characterize the effects on underlying
aquifers of waste disposed of at on-sife
and dedicated off-site hazardous waste
units, if such units are required to have a
ground-water monitoring system under
40 CFR part 264 or 285. EPA will not
require such ground-water monitoring
data from nondedicated off-site
hazardous waste units for delisting
petitions, because, the ground-water ,
data from such units would not provide
useful information about the petitioned
waste. In other situations, EPA will not
require petitioners to provide this
additional data, because ground-water
monitoring data cannot be obtained
(e.g., in cases where petitioners have
requested upfront delistings).
IIL Overview of Ground-Water
Monitoring Requirements Under 40 CFR
Parts 284 and 265
Facilities that have not yet received
final administrative disposition of their
Part B permit application (i.e., facilities
with interim status) are required to
comply with 40 CFR part 265. All other
regulated subtitle C facilities managing
hazardous wastes in on-site land
disposal units are required to comply
with a permit issued under 40 CFR part
264. As explained below/ subpart F in
both part 264 and part 285 generally 1
require facilities that treat store, or
dispose of hazardous wastes in on-site
surface impoundments, waste piles (40
CFR part 264 only), landfills, or land
treatment facilities to implement a
ground-water monitoring program that
evaluates the ground-water quality in
the uppermost aquifer underlying the
facility. (See 40 CFR 264.90(a), 265.90(a)).
Interim status facilities are required
under 40 CFR part 265, subpart F, to
install a ground-water monitoring
system capable of determining the
facility's impact on the quality of ground
water in the uppermost aquifer. Under
40 CFR 265.92 and 265.93, facilities are
required to sample ground water at
specified time intervals and to
determine whether statistically
significant increase (or for pH, increases
and decreases) of indicator parameters
(e.g., specific conductance, pH, total
organic carbon, total organic halogen)
over background have occurred. If a
statistically significant increase (or for
pH, an increase or decrease) of an
indicator parameter over its background
level occurs, then the facility must
develop and implement a ground-water
assessment plan approved by the EPA
Regional Office or the authorized State.
RCRA-permitted facilities are
required under 40 CFR part 264, subpart
F, to install a ground-water monitoring
system capable of detecting hazardous
constituents that have entered the
uppermost aquifer. RCRA-permitted
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41932 f«d«al Register / Vol. 54» No. 1S6 / Thtaaday, October 12. 1989 / Proposed Rnter
fadiltie* mail sampta ground water at
ipccified tima intervals and determine
whether th« levels of constituents or
a.v« Increased COT for pH. increased ox-
decreased) statistically over
background. If a statistically significant
increase. forforpH. an increase or
decrease) in a constituent or parameter ••
is detected; thft facility must develop
* and implement a compliance monitoring
program pneTmffng famn^f atq. testing fox
constituents. listed in. Appendix EC to
part 284 andv thereafter, an annual scan
for all Appendix
meeting the requirements, of 40 CFR
2G4.99.If the levels of any constituent -
being monitored are- found to exceed the
concentration limits specified in the
facility permit, the facility must prepare
and implement a corrective action
program in accordance with. 40 CFR
sataao.
IV. Us
Today^ proposed amendment ta4fr
C2FR28(X22codirTe»tne-Agenc3fx8 pottcy
to require individuals who submit
deBattogpetfh~oi»(urrfer4CCFR280.2ff ,
and 20O22) for waster managed hi on-
site (or off-sit* dedicated} hazardous
was Iff management units to* provide
groun&watermonitaingmiorraation as
part of thdrpertitionsi if the units- of
concern zire- required to haveground-
water monitoring- systems under 40 CFR
part 28* or28K. Generally, facilities that
hav« submitted detisting petitions for
waste managed in- land-based
hazardous waste management units-
already are required to monitor ground
water under 40 CFR part 254 or 265,
subpart P, Thusv ground-water
information and analytical data should
bertwdily available and can- be
provided for use hi the delisting
evaluation without any significant cost
to petitioner*. Petitioners- will be
required to provide: the following
information as part of their petitions: A
description, of site geology ami
hydrology; a description of the ground-
water monitoring systems for the units
in which the petitioned waste is
managed; the results obtained front the
analysis of ground-water- samples
collected pursuant to 40 CFR part 284 or
285, subpart F> a discussion of sampling
and analytical procedures followed; and
an Interpretation of the information and
data presented. The petitioner must also
submit any additional information
necessary for evaluating the petitioned
waste's impact on ground-water quality,
including the analyses of ground water
for any constituent deemed necessary
by EPA. EPA will consider failure to
submit any of the above information as
ground* for denial or dismissal of the
deBsting petition, . .
Facilities that have submitted
delisting petitions for wastes managed.
in dedicated! off-site units are also
required to provide-tfae above ground*-
water monitoring information, if these
units are required.ta have a-ground-
water monitoring system under 4O CFR
part 284 or265, A dedicated off-site unit
is a hazardous waste management unit,
located apart from the facility proper, in
which no hazardous waste other than
the petitioned! waste is managed. If the
dedicated off-site- unit is not tinder the
petitioner's, control; the petitioner most
arrange to provide the required
information. The Agency is not requiring
ground-water monitoring- information
from nondedJeated off-site units because
such data would likely reflect
constituent concentrations from
numerous, codiaposed hazardous- waste
streams. Thus,, mis data wouM have.
little value to- die Agency's evaluation of
the petitioned waste.
The Agency wiH however, require the
petitioner to- submit ground-water date
for all on-site units- mat contain the
petitioned waste, including those units
that also contain other wastes (i.e.,
"nondedicatedunitsjfif theunitis subject
to RCRA ground-water monitoring
requirements. The Agency believes that
such data may pro vide useful
information for delisting because the
petitioned waste is often a significant
component of the waste contained in on-
site, nondedicated units. As noted
above, off-site nondedicated units are
more likely to be large faculties that
accept a wide variety of wastes. EPA
win evaluate the Importance of ground-
water and other information for on-site
nondedicated units on a case-by-case
basis.
In general; the petitioner is required to
submit ground-water monitoring
information and analytical data for all
ground-water wells that monitor the
unitCs) in which, the petitioned waste is
managed. All available analytical
• results for upgradient and downgradient
monitoring wells should be submitted;
The Agency will normally require at
least four rounds of monitoring data
collected over the course of one year
unless, hi the Judgment of EPA. data
from a shorter time period are adequate
to evaluate the impact of the petitioned
waste on the ground water. The
submitted data must represent any
expected seasonal variation in ground-
water quality. If the petitioner has
previously submitted ground-water
information in response to- RCRA
subpart F requirements, the petitioner
may either resubmit the information in
the delisting demonstration, or specify
the titleaof the reports containing the
required information and identify the
State or EPA Regional contact who has
possession of the submitted reports. The
Agency wilt coordinate with State and
EPA Regional contacts to obtain this
infonnationv when appropriate. The
Agency retains the authority to request
the petitioner to submit additional
information necessary for the delisting
evaluation, if the reports submitted to-
me State or EPA Region are not
adequate for this purpose.
This proposal also explains how the
Agency intends to use the submitted
ground-water monitoring information ta
support delisting decisions. Ground-
water monitoring data from EPA Region
or State-approved RCRA monitoring
systems that show no unacceptable
toxicant levels (e.g^ hazardous
constituent concentrations above
health-based levels) may support the
Agency's-decision to grant an exclusion.
However, because the monitoring data
from a particular site do not reflect the
potential to contaminate other sites,
these data alone are not sufficient
evidence to grant an exclusion. The
evaluation of many factors (e.g., waste
constituent concentrations, pH, and
reactivity) and the Agency's evaluation
of toxicant mobility from wastes using
ground-water transport models (e.g., the
VHS model) may contribute to the final
delisting decision. If the Agency
believes that under reasonable worst-
case conditions a waste will leach
unacceptable levels of toxicants, then
the Agency may consider the waste to
be hazardous and subject to subtitle C
control even though ground-water
monitoring data may not indicate
ground-water contamination. Ground-
water monitoring data showing no
contamination indicate that either
contamination has not yet occurred or
has not been detected, but do not
indicate whether the waste will cause
ground-water contamination in the
future at the site assessed or at other
potential sites. In addition, because
wastes may be moved to a different
location following exclusion, the
evaluation of ground-water monitoring
data from the current location will have
no direct bearing on possible migration
from a similar unit at a different waste
management site which may have
different hydrogeological conditions.
On the other hand, ground-water
monitoring data that show ground-water
contamination may support the
Agency's decision to deny a petition,
even when leachate test results and
modeling evaluations would not indicate
potential ground-water contamination.
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FaderaT Register / VoL 54. No. 19ft /Thursday, October 12. 198$ /Proposed Rules 41833
The Agency intends to use results of
ground-water monitoring data
evaluations- as a check .on the
reasonable worst-case evaluations
performed in order to provide an
additional level of confidence in its
delisting decisions! Because ground-
water monitoring data are descriptive of
the impact of the petitioned waste under
actual conditions, and not reasonable
worst-case assumptions, the Agency
believes that evidence of ground-water
contamination originating from the
unit(s) of concern may be a sufficient
basis for petition.denial.
A Incomplete Delisting Information
The Agency's policy to dismiss •
incomplete petitions by letter is
explained in detail in 53 FR 6822, March
3,1988. Petitions that are substantially
incomplete may be dismissed upon ,
. receipt Facilities with petitions that are
partially deficient will have a maximum
of 6 months to submit the information '
necessary to complete their delisting
. petitions. In the event that the 6-month
deadline passes without full submittal of
the requested information, the Agency
may dismiss.the petition by written
notice to the facility. The effect of the
dismissal is to remove the petition from
the petition review process and to close
the petition file.The facility may submit
a new petition with updated and
complete information at any time.
Pursuant to this policy, the Agency /
will notify facilities when submitted
ground-water monitoring information is
insufficient to complete their petitions.
Such incomplete petitions may be
dismissed upon receipt or the facility
may be given a maximum of six months
within which to provide the necessary
ground-water monitoring information.
B, Non-compliant Monitoring Systems
In most cases, the Agency will dismiss
petitions for wastes in on-site and
dedicated off-site waste management
units if ground-water monitoring is not
in compliance with the applicable 49
CFR part 264 or 265, subpart F ground-
water monitoring regulations and such
lack of compliance, in EPA's discretion,
renders the ground-water monitoring
data insufficient to properly
characterize the impact of the petitioned
waste on ground water. Compliance
with supart F regulations will be
determined after consultation with the
appropriate State or EPA Regional
offices. Such petitions generally will be
dismissed upon finding the system out of
compliance, because more than six
months will typically be required to
bring the monitoring system into
compliance and/or to collect the
requisite ground-water monitoring data.
A facility may submit a new petition
with updated and complete ground-
water monitoring information after the
ground-water monitoring system is-
brought into compliance and the
required sampling information has been
obtained.
* If data submitted from non-compliant
monitoring systems indicate that the
petitioned waste may have caused
ground-water contamination, the
Agency may use this information to
support a denial of the petition. The
Agency believes that these data may be
used as a separate basis to deny the
petition because the ground-water
monitoring results, even though the
monitoring system is not in. compliance,
may-indicate that the petitioned waste-
has adversely affected ground-water . •
quality at the site. The petitioner may
submit a new petition if the monitoring
system is brought into compliance with
the appropriate regulations and may
attempt to provide sufficient information
to demonstrate that the petitioned waste
has not contributed to ground-water
contamination.
In most cases, ground-water
monitoring systems approved by the
EPA Region or State will provide the
data necessary for evaluating the impact
of the petitioned waste on ground-water
quality. In a few cases, however, a
petitioner's approved ground-water
monitoring system may not be adequate
for determining the impact of only the
petitioned waste on ground-water
quality. For example, the EPA Region or
State may have granted approval of a
single ground-water monitoring system
for a. waste management area. A waste
management area is defined by an
imaginary line circumscribing more than
one regulated unit A well system which
monitors several regulated units within
a single waste management area may be
-inadequate for determining the •
petitioned waste's impact on ground-
water quality where, for example, the
petitioned waste is found only in one
unit Such situations will be evaluated
on a case-by-case basis.
Other cases in which data from an
approved ground-water system will not
be adequate may arise for units that are
subject only to the monitoring
requirements in subpart F of 40 CFR part
265. The list of analytes required under
part 265 is limited in scope and often
will not include constituents that are of
concern to EPA in evaluating delisting
petitions. Therefore, EPA will require
that petitioners provide ground-water
analyses for any constituents that the
Agency believes may be derived from
the petitioned waste and might
adversely affect ground-water quality.
C. Identification of Ground-water
Contamination
1. Evaluation of Hazardous Constituent
Concentrations
In evaluating a delisting petition, the
Agency will consider to be unacceptable
ground-water contamination that
exceeds health-based levels in wells
that monitor the units containing the
petitioned waste. The health-based
levels are Agency-reviewed levels of
regulatory concern proposed for use- in
delisting decisions (see "Docket Report
on Health-Based Regulatory Levels and
Solubilities Used in the Evaluation of
Delisting Petitions," June 8,1988, located
in the RCRA public docket). These
levels include Maximum Contaminant
Levels (MCLs) developed for drinking
water, as well as Reference Doses (for
noncarcinogens) and Risk Specific
Doses (for carcinogens). Health-based
levels are intended to protect humans
from the possible adverse effects of
chronic, low level exposure to
hazardous constituents.
The Agency is aware that the ground-
water monitoring regulations in subpart
F to 40 CFR part 264 appear to take a
somewhat different approach in
evaluating contamination. Under part
264, detection of hazardous constituents
in the ground water above certain
concentration limits (ground-water
protection standards) triggers the
requirement for corrective action. These
concentration limits are based on: (1)
Maximum concentration limits for
drinking water specified in part 264, (2)
alternate concentration limits (ACLs)
established in a permit to protect human
health and the environment, or (3)
background levels. (Subpart F to part
265, unlike part 264, does not provide
any specific mechanism for corrective
action. The focus of the part 265
regulations is on determining the extent
and nature of ground-water
contamination, not on its removal or •
treatment. The use of health-based
levels in delisting ground-water
evaluations is not inconsistent with
subpart F to part 285, because part 265
does not contain procedures for
evaluating what levels of constituents
are unacceptable and require corrective
action.)
The use of health-based levels
(including MCLs) in evaluating ground
water for delisting is clearly consistent
with the use of MCLs and ACLs as
ground-water protection standards in
part 264, subpart F. (ACLs are site-
specific limits developed from health-
based levels similar to the levels used in
delisting decision-making.) For delisting
purposes, however, the Agency
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41934
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Federal Register / VoL 54. No. 196. / Thursday.. October 12.1989 / Proposed Rates
generally will not use constituent levels
above background as a sola basis, for •
petition denial. EPA believes that
f referent to
the delis ting decision process die
delis ting process, determines, which?
wastes me hazardous to Tinman.
and- the environment whereas sufipartF
is designed to protect nmaan health. and
the: environment by detecting, antT
Solid- Waft
could contaminate, ground water.
Fuxilttxmarer this, apparent difference
of approacR with part 264 suipartP has
Btttii practical
background axe detected in. ground
water* tn* Agency'* ddkting program.
vrill await tlie-ou&mittaj of theruither
ground- water data required under
8U&partF(Le, Appendix EX. ta part 2&J)
IcveLtace exceeded fox any constituents
today's, proposed rula will require
petitioners, to analyze, the. ground water
for any constituent dggned necessary
by EEA.fbJt the. deliating. evaluation, if
•JgniQc&nt ground-Water finnfomfnntthn
exists at a site. i£ seam* highly unUiely
of concern would be
found abova heaWt-baaedi levels.
Fkudfy. as noted prevf aualy, EPA
Headquarters plana to coordinate,
dot ely with. EPA Regional and. State
permitting authoritfe* to ensure, that any
evidence, tnat tnct petitioned waste fam-
caused" a ground-water problem, is.
evaluated prior ta deEating.
Tb* ftxeeedancs- of the. health-based
levelftitkgrovndrw&tec gyrrr**? collected
from TBOTiUnrfng weHs. located;
hydra ulfcsfly dawngradleiit from. a
regulated unit in. wbicn tne petitioned
cona titueat* at levels of concern to the
delitUng program. GcooncE-water
contamlnatfon. uxexceedance- of ieaKL-
based level* may provide grounds to
deny a pgHtfoit, tinE».t« the petitioner cam
demonstrate on* of the. fbllowfaigi (.11
The petitioned, .waste has. not
contamination, is the. result of other on.-
slte, sourceaj. Q2J the exceedancei& due
^n a^ i»mnr Irt gnmplfng oranaJ^ISiaor
other factors not associated with the
petitioned waste* oc (3> the cxceedance,
although- greatec than the health-based
levels, is- not statistically sfgnificanLThe
Agency will review these
demonstratfons on a case-by-case basis.
(I J If the evaluation, of ground-water
moniU)rirjg.ihfonnatiorLsriowa that
conitituent concentrations frt the
background for upgradlentj wells
designated by the faculty also exceed
healthrbased levels, the petitioner will
be required, to deiBonstcatft ^Vtrt the
coagtirnent concaateationa in. the
backgroond £OB upgradient} wells are- the
result o£ » contamiaant souiee other
than the petitiooetJ waste, and are not m
fact related to factors such as
inappropriate well construction or
placement, ground-watet moHnduig
effects,, 01 'site-specific hyditogeologic
factors, that might cause background (os
upgradieat) well»to intercept £k>w from
the petrtioned unit.
If eaaiHmiiBf>t>ati>indieitedina
downgradknew«tt.a faci&ymajr
attempt to deMMBtrate to the Agency's
satisfaction that a source other than ti»
yy.HI it jned waste caused the • ' .
coBtamnatkia.Sucba demonstration
may rerpirr thai
i f fill "ntnitrti Thtff tin mf iiitrii4itMTTT rnsjf
inclttdeinfonaaticfi sadt a» background
conpocitkni datavaa«»bdkrae«
demon»featioB«, iesuft» of the cfceraieaJt
analysis of other potential con*a«feanl
sources, and process and traatswirt
(Zf Itte Agency alsw wHI consider a
fadfiyg cMa t&at an ex&ee Jance is the
f 09UzL Or ssf evroT tm
_or
analysts. T&e petitioner must provide an
explanation* or" wiry the* error has-
uataireJ and- sufficient date t9 show the
exceedance is* .not represeiifucive or
actual grotnd-water quality. Such a
demonstration may mcmde the
presentation of freH and faboratory
• QA/QC data- fgg:. equipment blanks'.
Lip- Dr3n&3V labxjia tury blanks,
replicates):
p} A facrCty may show that a
constituent concentration, which is
above a- health-based level, is not a
statistically significant exceedancevThe
• Agency has approved the use of a
variety of statistical methods-for
evaluating, ground-water monitoring.
data from: hazardous, waste facilities.
•• However, the appropriateness of a given
procedure is governed by specified
performance standards which require
that the use of a statistical test be
determined on a case-by-case basis. See
the Faderal Kegfetee* October 11.1388.
53 ER 39720. Examples of accepted
statistical procedures-are an analysis of
variance CANQ VA-i, a tolerance oc
prediction interval procedure; and
control rfigMrt^ Guidance: materials, are
being developed that wiH discuss the
tolerance interval method and an,
alternative confidence interval method
of analysis that may be used in certain.
circumstances.
2. Evaluation, of Indicator Parameters
and Constituents;
The restrfts of indicator-parameter
analyses (eg, pH, specific conductance,
total organic-carbon, or total organic
halogen} submitted in support of a
facility's deiistmg demonstration, and
any indicator parameter analyses
obtained from State and EPA Regional
officeSiWuTbe evaluating according to
statistical procedures set forth, in 40 CFR
part 264 or 285 as appropriate. If this.
evaluation, shows that there has been a
statistically significant increase [or far
pH,. an increase or decrease) over
background* levels' of an- indicator
parameter, the RCRA regulations require
that the facility submit additional
ground-water monitoring data to
determine- the concentrations- of
hazardous waste constituents in ground
watet (see 4O CFR part* 264 and285v
atibpartF)..
Psutf 2M aiso requires that facilities
sample for constituents specified in their
pernfe and for all part 26* Appendix IX
constituents- if as exceedance of the
specified constituents or parameters
occurs. For defisting purposes, the*
Agency wfff require' the sobimttal of this
constituent data- in order to- demonstrate
that levels' of hazardous constituents in
ground water are not exceeding' health-
based levefe. fir addition, today's-
proposed1 amendments to the deiisrmg
regulanbns require- that petitioners
submit ground-water data for any
constituent deemed necessary by EPA
(see f 2WJ.22ffK13ft. EPA will usually
require ground-water monitoring data
(to incmde hazardous- constituent
analyses} collected over the course of at
least one year.
If an evaluation of indicator
parameter analyses- shows that a
statistically; significant increase (os for
pH, an increase or decrease) over
background concentrations- in the level
of an indicator parameter has not
occurred; the Agency may still require.
fordelisiing purposes^ that a petitioner
perform- additional sampling and
analyses for one or more hazardous
constituents. Similarly, the Agency may.
require analyses foe constituents not
specified in the permit, evea without arv
exceedanee. for specified constituents: or
parameters. The request for additional
information would be made when, the
Agency has sufficient reason ta suspect
that such constituents in the waste could
have an adverse effect on ground-water
quality. EPA Headquarters will
coordinate with appropriate State and
EPA Regional offices in determining the
adequacy of existing ground-water
monitoring data in demonstrating that
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Federal Register / VoL 54. No. 195 / Thursday, October 12,1969 / Proposed Rules. 41935
the petitioned waste has not adversely
affected ground-water quality.
3. Evaluation of Vadose. Zone
Monitoring Data
In some-instances a petitioner may be
monitoring the vadose zone (i.e., the
unsaturated zone between the waste
and the ground-water) in order to detect
hazardous constituents migrating from a
waste management unit before ground
water has been adversely affected. Such
a program is particularly, advantageous
and necessary when a waste
management unit Is located in a region
where depth to ground water is
substantial. The Agency intends to use
vadozezone monitoring data, when it is
available from the petitioner or is
required by EPA Regional or State
authorities, to support the evaluation of
a waste's potential impact on ground
water and the environment. Should an
analysis of vadose zone monitoring data
indicate that contamination of the
vadose zone has. occurred or is
occurring, the Agency may determine
that the petitioned waste could cause
ground water contamination if it were to
migrate to ground water, or if, once
excluded, the waste was transported-to
a disposal site with different
hydrogeologic properties (e.g., a shallow
water table). The Agency will
coordinate with appropriate State and-
EPA Regional offices-in determining
whether vadose zone monitoring data
demonstrate that the petitioned waste-is
capable of adversely impacting ground
water and the environment • "
D. Impact on Future Hazardous Waste
Generators
The Agency/recognizes that some
petitioners may be planning to generate
new wastestreams that would be listed
in 40 CFR 261.31 and 261.32 once
generated. These petitioners may
request an "upfront" delisting, submit
pilot-scale waste constituent data,
process descriptions, and other _•
information in support of their delisting
demonstrations prior to full operation of
the new process. If these data and the
information in the remainder of the
petition demonstrate that the waste is
not hazardous, the Agency may grant an
upfront exclusion. Obviously, ground-
water monitoring data for such wastes
are not physically obtainable.
For an upfront delisting, the
conditions of the exclusion-will set
maximum allowable constituent levels
in the waste and will require the facility
to submit representative sampling and
analytical results from the full-scale
process to verify that the allowable
levels have been met in the generated
waste. Such upfront delisting will be
granted only when the Agency has.
sufficient reason to conclude, based
upon information submitted about the
process and waste and upon the
conditions of the exclusion, that
nonhazardous wastes will be generated.
E. Impact on Facilities Planning To
Treat Stored Wastes
The Agency has received and
currently is reviewing a number of
petitions from facilities that are using
various procedures (e.g., stabilization,
incineration, leachate treatment) to treat
and to reduce constituent mobility hi
appropriate-waste matrices. In a typical
case, a petitioner may stabilize wastes
contained in a land-based hazardous
waste management unit In all cases,
petitioners must demonstrate that the
treatment procedures are effectively
reducing constituent mobility and/or
concentrations to levels that are below
regulatory concern.
Ground-water monitoring information
from units used to store wastes prior to
treatment will not be required for
petitions for treated waste because the
treatment process is expected to alter
the chemical composition of the waste
and/or the mobility of the waste
constituents. Ground-water monitoring
for the original unit, therefore, generally
will not provide useful information on
the impact of the treated waste on
ground-water quality. If a petition for
treated wastes is submitted on an
upfront basis (i.e., before the waste is
treated), ground-water monitoring data
from the treated wastes will not be.
physically obtainable. For wastes that
have already been treated and placed in
a new unit ground-water monitoring
data from the new unit will be required
for delisting purposes, if the Agency
believes that such data would be useful
hi evaluating the hazards of the treated
waste.
EPA's decisions to delist a waste are
generally retrospective and typically
remove the waste management units
holding the delisted waste from control
under subtitle C of RCRA. In effect the
Agency has decided that these units
have not received a hazardous waste.
However, if waste from a hazardous
waste management unit is treated and
subsequently delisted, the unit hi which
the untreated waste was managed is not
necessarily removed from regulation
under 40 CFR parts 262 through 268 and
the permitting standards of 40 CFR parts
270. Delistings also may be prospective
and remove from subtitle Ccontrol only
the waste sampled or newly disposed/
generated waste. The Agency believes
that the unit from which the untreated
waste was removed should remain
regulated until any hazardous residues
remaining from disposal of the original
(untreated) waste are managed to meet
applicable requirements under RCRA
(e.g., clean closure requirements), or
until these residues receive an exclusion
based on a separate delisting petition.
Before the unit itself could be removed
from regulation, the petitioner must
demonstrate (through ground-water
monitoring and other data) that residues
remaining at the unit that contain or are
derived from the original (untreated)
waste are not hazardous and that past
waste management practices at the unit
have not caused ground-water
contamination.
V. Effective Date
This rule, when promulgated, will be
effective immediately. Although Subtitle
C regulations normally take effect six
months after promulgation (RCRA
section 3010(b}£ the Hazardous and
Solid Waste Amendments of 1984
amended section 3010 of RCRA to allow
rules to become effective in less than six
months when the regulated community
does not need the six-month period to
come into compliance. Because today's
rule merely clarifies the Agency's
existing authority to require any
additional information needed to
evaluate a petition (see 40 CFR part
260.22(1)). the Agency believes that a
six-month delay is unnecessary. In
addition, a six-month deadline is not
necessary to achieve the purpose of
section 3010 and good cause exists to
make the rule effective immediately
upon promulgation. These reasons also
provide a basis for making this rale
effective immediately, upon
promulgation, under the Administrative
Procedure Act pursuant to 5 U.S.C.
553(d).
VI. State Authority
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority under sections
3008, 7003, and 3013 of RCRA, although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid
Waste Amendment (HSWA) of 1984, a
State with final authorization
administered its hazardous waste
program entirely in lieu of EPA
administering the Federal program in
that State. The Federal requirements no
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43336 F&Efesal Kegfeter f VoL 54t Mb-- 196 / TnTrredag^ October 12. 1989
longer appSeoT to t£te authorized! Stefcv
1PA c0*££net issue permits for any
authoring topermit W&eir new; more
lUlIuguit FwJesai reqtsreoMSts west?
promulgated or emctedv the State wws
obliged; to enact etpuralent Minority
within specified; timefranjea. Bfeyp
Federal requirements did no* take effect
ixs an authorized Slate until the Stete
adopted the requirements as State Iai«.
la contrast, under sestiiz&30Q6fg)o£
RCRA, 42 U&C.&926(gl. oar
reqpiramtat*and prohibitions uapooed
by the HS W A take- effect in antbotized
States at the same time that they take
effect in non-authorized States. EPA is
directed to implement those
requirements and prohibitions. iu>
orized- S Isles* including the issuance
T until* the S1&1& is granted,
authorfcuifo* to. da so. While States
must 8 tiD adbptHSWA-reJaied
provfafoJ3S.a» Stats law to. retain, final
authori2atiQDvt£«.HSXVA applies, m.
& Effcctcx State Authorisation*
At t&fs tfmff, only a few States are
autfiOTizedtoardrnMsfertiieRCRA
deliating program. EPA cnrrentlir
adminiatenr the RCRA deh'sting program'
in other States' and* territories;
Today's' announcement propose?
standard* tfiatw uuld1 not be; effective hi
authorized State? because the
requlremenfar would: not be imposed1
pursuant to the Hazardous- and Solid
Waste Amendments of 199* Thus. the
requirements wrH be H
a ppll cable upon* promu]g3tion° cirfy in
those Steles that do-not have
authorization. In authorized States1, the
remrBrements will not be applicable
unless the States revises its program to
adopt equivalent regulations understate
law and the State revisiona are:
authorized. If a State is authorized for
deliitiug, its program must be no less.
stringent than that of the Federal
Program, for the State to obtain and keep
final authorization. Today's rule
proposes to. clarify EPA*s exercise of its
existing- authority by codifying specific
requirements to consider grounds-water
monitoring data1 as part of the Agency's
evaluation of detisting'petitions; EPA
believes that this- additional specificity
of delfsting regulations make? the-
deHstmg-process more stringent
Therefore, the State program must
include equivalent regulations hi order
for the-,State to* obtain and to keep final
authorization, upon promulgation of
these requirements*.
40 CFR 273^1(e]f2} requires that
States that have fhiaf authorization mast
modify their programs, to reflect Federal
program changes and must subsequently
submit the? modification? tki EPA for
approval. Trie deatffine by which-the-
Stare most JUKicfifjr it!? program to adopt
this proposed' regtriafioTr win- be
determined1 by the date of pronrctfgatibir
of the fin a* rale irrcflAXJiiIanGe with; 49
CFR 271.21(6}.. These deadline* caa be
extended in certain eases fcift CFR
271.21(e)t3]l. Once EPA approves the
modification, the State requirements-,
become Sabtitfe CRCRA requirements.
State? wrdr authorized RCRA
programs already may have*
reqrrirjBmentS' similar to those fin today"?
proposed1 rule. These State reguTatfons
lidvt! not been" assessed against the
Federal regufations being-proposed!
today ttr determine whether theymeet
the teat? for authorisation. Thus, a State
will not fie authorized to carry out these
requirements* upon their promulgation in
lieu of EPA until the Slate program
modification: nr submitted to EPA and
approved. Of course. State? with
existing regulations may continue to
administer and enforce their regulations
as amafter of State few.
Statesr that submit their official
applications for final authorization less
than tZmonths after the effective: dale
of these, standards axe not required to
include standards equivalent to these
standards' in their application. However,
the State must modify its program by the
deadlines set forth in 40 CFR 271.2?(e}.
State? that submit official applications
for final authorization 12 months after
the effective date of these standards
must include standards equivalent to
these standards in their application. 40
CFR 271.3 sets forth the requirements a
State must meet when submitting its
final authorization'application.
VTL Regulatory Analysis
A~ Regulatory Impact Analysis-
Under Executive Order 12291, EPA
must judge whether a- regulation, is
"major" and, therefore; subject to the
requirement of a Regulatory Impact
Analysis. A major rale is defined a? a
regulation that LrEkely to, resnttia:
1. An annual effect on the- economy of
$1O0 million or more;
2. A major increase in. costs- or price? for
consumers, individual industries.
Federal; State* or local' government
agencies or geographic regions, or
3. Significant advene effect? on
competition, employment; investment,
productivity, innovation, or the ability
of United States-based enterprises to
compete with foreign-based
enterprises in domestic or export
markets.
The Agency ha? determined that
today'? proposal i? not a major rule. If
pronrofeated, this' proposal would not
significantly; increase cost to the
petitioner because the information
requested ins today/a proposal generally;
should be available from, fatalities in
compliance with 4O CFR part 264 or 265,
subpant F. In ad«ftHn^r facilities have
been given, the option, of specifying the
titles of reporta containing, the requested
infonnalian. and, identifying the State ox
EPA Regional contact wha naa
possession of such> reportsv in lieu of
resubmittmg this, information a* part of
the defisting application. Finally, EPA
could require submission of this
information under existing: authority, so •
no> significant cost of providing this
information, will be attributable to this
proposed mleu
B<. Regulatory Flexibility Act
Pursuant to- the Regulatory Flexibility
Act 5-U.S.C: 605-612, whenever an
ageaeyisreeufred to-pnbh'sh'a General"
Notice of Rulemakrng- for any proposed
or final rule, it must prepare and make
available forpabfic comment a
regulatory ffexibiKty anafysi? that
describe? the impact of the rule OH small
•entities f/'e., small businesses, small
organizations', ami smaff governmental
jurisdictionsJ. No regulatory flexibility
anafysi? is required; however, if the
head of the agency certifies that 'he rule
will not have a significant impact on a
substantial number of small entities.
This amendment will not have an
adverse impact on, a substantial number
of small entities* since the information
requested in today's proposal generally
is already required of petitioners under
40 CFR part 284 or 265, subpart F and 40
CFR part 270; subpart B, and can be
requested.under existing delisting
authority. Accordingly. I hereby certify
that this regulation upon promulgation
will not have, a significant economic
impact on a substantial number of small
entities. This: regulation, therefore, does
not require a regulatory flexibility
analysis-
C. Paperwork Reduction Act
The Information collection
requirements in this proposed rule have
been sabmftfed for approval to the
Office of Management and Budget
(OMBJ under the Paperwork Reduction
Act, 44 U.S.C. 3501 etseq. Reporting and
recordkeeping burden on the public for
this collection is estimated to be 1,550
hours for the 50 respondents- per year*
with an average of 31 hour? per petition.
These burden estimates include all
aspect? of the collection effort and may
include time for reviewing instructions,
searching existing data- sources,
gathering and maintaining the data
-------
Federal Register / Vol. 54, No. 196 / Thursday. October 12, 1989 / Proposed Rules 41937
needed; completing and reviewing the
collection of information, etc,
If you wish to submit comments
regarding any aspect of this collection of
information, including suggestions for
reducing the burden, or if you would like
a copy of the information collection
request (please reference ICR ellSS),
contact Chief. Information Policy
Branch, PM-223, U.S. Environmental
Protection Agency, 401M Street SW.,
Washington. DC 20460 (202-382-2745),
and Paperwork Reduction Project 2050-
0053, Office of Management and Budget.
Washington, DC 20503. The final rule
will respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
. Vin. List of Subjects in 40 CFR Part 280
Hazardous materials. Waste
treatment and disposal. Recycling.
Dated: October 4,1989.
William K. Reilly,
Administrator.
For the reasons set out in the
preamble, title 40 of the Code of Federal
Regulations is proposed to be amended
as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260
continues to read as follows:
Authority: Sees. 1006.2002(a). 3001 through.
3007,3010, 3014, 3015.3017,3018,3019, and
7004, Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery
Act of 1976, as amended (42 U.S.C. 6905,
6912{a), 6921 through 6927, 6930, 6934.6935,
6937,6938,6939, and 6974).
2. Amend paragraphs (a)(2), (c)(2),
(d)(4), and (e)(4) of § 260.22 by replacing
the ending period with a semicolon
fallowed by the word "and".
3. Amend § 260.22(b) by adding to the
end of the paragraph the sentence
"During the-review,, of the complete
application, the Administrator will
consider the ground-water monitoring
information collected under paragraph
(i)(13) of this section and evaluate the
impact of a petitioned waste on ground
water.".
4. Amend § 260.22 by adding
paragraphs (a}(3). (c)(3). (dp), (e)(5),
and (i)(13) to read as follows:.
§264X22 Petition* to amend part 261 to
excludes waste produced at a particular
facWty.
(a) - * *
(3) During the review of the complete
application, the Administrator will
consider the ground-water monitoring
information collected under paragraph
(i)(13) of this section and evaluate the
impact of a petitioned waste on ground
water.
* * * * ' *
(c) ••
(3) During the review of the complete
application, the Administrator will
consider the ground-water monitoring
information collected under paragraph
(i)(13) of this section and evaluate the
impact of a petitioned waste on ground
water.
(d) * * *
(5) During the review of the complete
application, the Administrator will
consider the ground-water monitoring
information collected under paragraph
(i)(13) of this section and evaluate the
impact of a petitioned waste on ground
water.
M * * •
(5) During the review of the complete
application, the Administrator will
consider the ground-water monitoring
information collected under paragraph
(i)(13) of this section and evaluate the
impact of a petitioned waste on ground
water;
(13) Ground-water monitoring
information for a petitioned waste that
is managed in a unit for which a ground-
water. monitoring system is required
under 40 CFR part 264 or 265. The
ground-water monitoring information to
be submitted includes: a description of
site geology and hydrology; a
description of the ground-water
monitoring systems for the units in
which the petitioned waste is managed;
the results obtained from the analysis of
ground-water samples collected
'pursuant to 40 CFR part 264 or 265 or
authorized State equivalent; a
discussion of sampling and analytical
procedures followed; and an
, interpretation of the information and
data.presented. The petitioner must also
submit any. additional ground-water
information deemed necessary by the
Administrator to characterize the
petitioned waste's impact on ground-
water quality including, but not limited
to, the analysis of ground water for any
constituents deemed necessary by the
Administrator. In lieu of submitting this
information as part of the application, a
facility may specify the titles of reports
containing this information and identify
the State or EPA Regional authority who
has possession of the submitted reports.
The Agency retains the authority to
request the petitioner to submit
additional information on ground-water
monitoring necessary for the delisting
evaluation, if the reports submitted to
the State or EPA Region are not
adequate for this purpose.
* * * * * .
[FR Doc. 89-24074 Filed 10-11-69; 8:45 am]
BILLING CODE 6560-SO-M
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