Thursday,
April 20, 2000
Part V
Department of
Defense
Department of the Army, Corps of
Engineers
33 CFR Part 323
Environmental
Protection Agency
40 CFR Part 232
Proposed Revisions to the Clean Water
Act Regulatory Definitions of "Fill
Material" and "Discharge of Fill
Material"; Proposed Rule
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Federal Rcgistcr/Vol. 65, No. 77/Thursday, April 20. 2000/ Proposed Rules
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 323
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 232
[FRL-6582-8]
Proposed Revisions to the Clean Water
Act Regulatory Definitions of "Fill
Material" and "Discharge of Fill
Material"
AGENCIES: U.S. Army Corps of
Engineers, Department of the Army,
DOD; and Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: The Department of the Army
(Army) and the Environmental
Protection Agency (EPA) today are
jointly proposing to revise their Clean
Water Act (CVVA) regulations defining
the term "fill material." At present, the
Army and EPA definitions of "fill
material" differ from each other, and
this has resulted in regulatory
uncertainty and confusion. The existing
Army definition defines "fill material"
as any material used for the primary
purpose of replacing an aquatic area
witn dry land or of changing the bottom
elevation of a water body, and
specifically excludes from that
definition any material discharged into
the water primarily to dispose of waste,
as that activity is regulated under
section 402 of the Clean Water Act. The
existing EPA definition defines "fill
material" as any pollutant which
replaces a portion of the waters of the
U.S. with dry land or which changes the
bottom elevation of such waters,
regardless of the purpose of the
discharge. Today's proposal would
amend both the Army and EPA
definitions of "fill material" to provide
a single definition of that term, and thus
ensure proper, consistent, and more
effective regulation under the CWA of
materials that have the effect of
replacing any portion of a water of tho
U.S. States with dry land or of chrtnging
the bottom elevation of any portion of
a water of tho U.S. Today's proposal
also would make a change to the
definition of tho tcrni "discharge of fill
material" in order to provide further
clarification of this issue.
DATES: Written comments must be
submitted by June 19, 2000.
ADDRESSES: Send written comments on
tho proposed rule to the Office of the
Chief of Engineers, ATTN CECW-OR.
20 Massachusetts Avenue, Washington,
DC 20314-1000.
• We request that commcnters submit
any references cited i-n their comments.
We also request that commenters submit
an original and 2 copies of their written
comments and enclosures. Commenters
that want receipt of their comments
acknowledged should include a self-
addressed, stamped envelope. All
written comments must be postmarked
or delivered by hand. No facsimiles
(faxes) will be accepted.
A copy of the supporting documents
for this proposed rule is available for
review in Room 6225 at the U.S. Army
Corps of Engineers' Pulaski Building,
located at 20 Massachusetts Avenue,
Washington, DC 20314-1000. For access
to docket materials, call (202) 761-0199
between 9 a.m. and 3:30 p.m. for an
appointment. Comments received on the
proposed rule will also be available for
examination in Corps District or
Division offices.
FOR FURTHER INFORMATION CONTACT: For
information on the proposed rule,
contact either Mr. Thaddeus Rugiel,
U.S. Army Corps of Engineers, ATTN
CECW-OR, 20 Massachusetts Avenue,
Washington, DC 20314-1000, phone:
(202) 761—0199, e-mail: Thaddeus.
J.Rugiel® HQ02.USACE.ARMY.MIL, or
Mr. John Lishman, U.S. Environmental
Protection Agency, Office of Wetlands,
Oceans and Watersheds (4502F), Ariel
Rios Building, 1200 Pennsylvania
Avenue NW, Washington, DC 20460,
phone: (202) 260-9180, e-mail:
lishman.john® epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Plain Language
In compliance with President
Clinton's June 1, 1998, Executive
Memorandum on Plain Language in
government writing, this preamble is
written using plain language. Thus, the
use of "wo" in this action refers to EPA
and the U.S. Army Corps of Engineers
(Corps), and the use of "you" refers to
the reader.
B. Potentially Regulated Entities
Persons or entities that discharge
material to waters of the U.S. that has
the effect of replacing any portion of a
water of the U.S. with dry land or
changing the bottom elevation of any
portion of a water of the U.S. could be
regulated by today's proposed rule. The
CWA generally prohibits the discharge
of pollutants into waters of the U.S.
without a permit issued by EPA or a
. State approved by EPA under section
402 of the Act, or, in the case of dredged
or fill material, by the Corps or an
approved State under section 404 of the
Act. Today's proposal addresses the
CXVA section 404 program's definitions
of "fill material" and "discharge of fill
material," which are important for
determining whether a particular
discharge is subject to regulation under
CWA section 404. In developing today's
proposal to reconcile the agencies
differing definitions, we have carefully
considered our current regulatory
practice and the terms of a 1986
Memorandum of Agreement Between
the Assistant Administrators for
External Affairs and Water, U.S.
Environmental Protection Agency, and
the Assistant Secretary of the Army for
Civil Works Concerning Regulation of
Discharges of Solid Waste Under the
Clean Water Act ("1986 Solid Waste
MOA"). The 1986 Solid Waste MOA
sets out a number of factors to help
determine whether material is subject to
the CWA under section 404 or 402.
Today's proposal does not alter current
practice, but rather is intended to clarify
what constitutes "fill material" subject
to CWA section 404. Examples of
entities potentially regulated include:
Category
Examples of potentially affected entities
State/Tribal governments or instrumentalities
Local governments or instrumentalities
Federal government agencies or instrumentalities
State/Tribal agencies or instrumentalities that discharge material that has the effect of re-
placing any portion of a water of the U.S. with dry land or changing the bottom elevation
of a water of the U.S.
Local governments or instrumentalities that discharge material that has the effect of replac-
ing any portion of a water of the U.S. with dry land or changing the bottom elevation of a
water of the U.S.
Federal government agencies or instrumentalities that discharge material that has the effect
of replacing any portion of a water of the U.S. with dry land or changing the bottom ele-
vation of a water of the U.S.
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Federal Register/Vol. 65, No. 77/Thursday, April 20, 2000/Proposed Rules 21293
Industrial, commercial, or agricultural entities
Land developers and landowners
Examples of potentially affected entities
Industrial commercial, dr agricultural entities that discharge material that has the effect nf
, replacing any portion of a water of the U.S. with dry land or changing the bottom elevation
I Land developers and landowners that discharge material that has the effect of reolacinn am,
j Portion of a water of the U.S. with dry land or changing the bottom elevation of a water rf
[ ins u.o.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities that are
'likely to be regulated by this action.
This table lists the types of entities that
wo are now aware of that could
potentially bo regulated by this action.
Other types of entities not listed in the
table could also be regulated. To
determine whether your organization or
its activities are regulated by this action,
you should carefully examine the
applicability criteria in § 230.2 of Title
40 of the Code of Federal Regulations,
as well as the preamble discussion in
section II of today's proposal. If you
have questions regarding the
applicability of this action to a
particular entity, consult the persons
listed in the preceding FOR FURTHER
INFORMATION CONTACT Section.
C. Overview of Clean Water Act
The CWA is the primary federal
statute addressing the discharge of
pollutants to waters of the U.S. Section
301(a) of the CWA generally prohibits
such discharges except as may be
authorized by a permit issued under the
Act. Two different permitting regimes
are created by the Act: (1) section 404
permits, primarily administered by the
Corps, addressing the discharge of
dredged or fill material, and-(2) section
402 permits (commonly referred to as
National Pollutant Discharge
Elimination System, or "NPDES"
permits), administered by EPA and the
States, which address the discharge of
all other pollutants. The CWA defines
the term "pollutant" to include
materials such as rock, sand, and cellar
dirt that often serve as "fill material."
The CWA, however, does not define the
term "fill material," leaving it to the
agencies to adopt a definition consistent
with the statutory language and scheme.
Providing a clear and consistent
definition for the term "fill material"
under the CWA is important in
determining whether a proposed
discharge of a pollutant is subject to
regulation under section 404 or section
402.
In keeping with the fundamental
difference in the nature and effect of the
discharge that each program was
intended by Congress to address,
sections 404 and 402 employ different
approaches to regulating the discharges
to which they apply. The section 402
program is focused on (although not
limited to) discharges such as
wastewater discharges from industrial
operations and sewage treatment plants,
stormwater and the like. Sec, e.g., CWA
sections 304 (b) and (d) and 402°(p).'
Pollutant discharges are controlled '
under the section 402 program
principally through the imposition of
effluent limitations, which are
restrictions on the "quantities, rates,
and concentrations of chemical,
physical, biological and other
constituents which are discharged from
point sources into navigable waters"
(CWA section 502(11)). Section 402
permits must include effluent
limitations that reflect treatment with
available pollution, control technology,
and any more stringent limitations
necessary to meet water quality
standards for the receiving water (CWA
section 301(b)). There are no statutory or
regulatory provisions under the section
402 program designed to address
discharges that convert waters of the
U.S. to dry land. Moreover, the section
402 permitting process does not require
an evaluation of alternatives to a
proposed discharge or mitigation for
unavoidable impacts.
The section 404 permitting program
differs from the section 402 program in
several fundamental respects. First,
section 404 focuses exclusively on two
materials: dredged material and fill
material. The term "fill material" clearly
contemplates material that fills in a
water body, and thereby converts it to
dry land or changes the bottom
elevation. Fill material differs
fundamentally from the types of
pollutants covered by section 402
because the principal environmental
concern is the loss of a portion of the
water body itself. For this reason, the
section 404 permitting process focuses
on different considerations than the
section 402 permitting program. Section
404(b) of the CWA directs the Corps to
apply Guidelines promulgated under
section 404(b)(l) of the CWA, which in
turn must be based on criteria
comparable to the criteria contained in
section 403 (cj of the CWA. Among other
things, those criteria expressly require
consideration of "other possible
locations and methods of disposal" and
"land-based alternatives."
The section 404(b)(l) Guidelines do
provide for consideration of the effects
of chemical contaminants on water
quality in a number of ways, specifically
requiring compliance with applicable
State water quality standards (40 CFR
230.10(b)(l)), toxic effluent limits or
standards established under CWA
section 307 (40 CFR 230.10(b)(2)), and
appropriate use of chemical and
biological testing to evaluate
contaminant effects (40 CFR 230.11(d)
and (e); 230.60). However, because
section 404 was intended by Congress to
provide a vehicle for regulating
materials whose effects include the
physical conversion of waters to non-
waters or other physical alterations of
aquatic habitat, the section 404(b)(l)
Guidelines go beyond such a water
quality based approach to require
numerous additional considerations
before a section 404 permit may be
issued. These include careful
consideration of the effects of the
discharge on the aquatic ecosystem as a
whole, as well as evaluation of
alternatives to the discharge and
measures to minimize and compensate
for unavoidable adverse effects.
Under the section 404(b)(l)
Guidelines, discharges having
Significant adverse effects on aquatic
ecosystems are not allowable (40 CFR
230.10(c) (2) and (3)). As a result, the
Guidelines require evaluation of the
effects of discharges on the aquatic
ecosystem (40 CFR 230.11(e)), including
cumulative impacts and secondary
effects (40 CFR 230.11(g) and (h)).~The
Guidelines also set forth specific
provisions for considering impacts on
the aquatic ecosystem, including effects
on aquatic organisms in the food web
and other wildlife (40 CFR part 230,
subpart D). In addition, the Guidelines
do not allow discharges that would have
significant adverse effects on human
health, recreation, aesthetic, and
economic values (40 CFR 230.10(c) (1)
and (4)). The Guidelines set forth
specific provisions for considering such
impacts (40 CFR part 230, subpart F).
In addition to providing for careful
assessment of the overall effects of the
discharge on aquatic ecosystems and
other amenities, the Guidelines do not
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allow a discharge if there are practicable
nllurn.Uivos with less adverse effects on
the aquntic ecosystem (40 CFR
230.10(n)). The Guidelines further
roquiru that if a discharge is allowed,
appropriate and practicable steps must
bo lakon to minitnizo potential adverse
offocts to the aquatic ecosystem and
mitigate for unavoidable impacts (40
CFR 230.10(d)). They also identify a
range of such potential measures for
consideration in the permitting process
(40 CFR part 230. subpart H). The
Guidelines also provide for mitigation to
compensate for unavoidable adverse
effects. Sec, February 1990
Memorandum of Agreement Between
the Environmental Protection Agency
and tho Department of the Army
Concerning the Determination of
Mitigation Under the Clean Water Act
section 404(b)(l) Guidelines.
D, Discussion of the Existing Corps and
EPA Definitions of Fill Material
Prior to 1977, both the Corps and EPA
had defined "fill material" as "any
pollutant used to create fill in the
traditional sense of replacing an aquatic
area with dry land or of changing the
bottom elevation of a water body for any
purpose. * * *" 40 FR 31325 (July 25,
1975); 40 FR 41291 (September 5,1975).
In 1977, the Corps amended its
definition of "fill material" to add a
"primary purpose test," and specifically
excluded from that definition material
that was discharged primarily to dispose
of waste. 42 FR 37130 (July 19,1977).
This change was adopted by the Corps
because it recognized that some
discharges of solid waste materials
technically fit the definition of fill
material; however, the Corps believed
that such waste materials should not be
subject to regulation under the CWA
section 404 program. Specifically, the
Corps' definition of "fill material,"
unchanged since 1977, currently reads
as follows:
(o) The term "fill material" means any
material used for the primary purpose of
replacing an aquatic area with dry land or of
changing the bottom elevation of an [sic]
water body. The term does not include any
pollutant discharged into the walor primarily
to dispose of waste, os that activity is
regulated under section 402 of the Clean
Water Act." 33 CFR 323.2(e) (emphasis
added).
EPA did not amend its regulations to
adopt a "primary purpose test" similar
to that used by the Corps. Instead, the
EPA regulations at 40 CFR 232.2
currently define "fill material" as "any
'pollutant' which replaces portions of
the 'waters of the United States" with
dry land or which changes the bottom
elevation of a water body for any
purpose" (emphasis added). EPA's
definition focuses on the effect of tho
material, rather than allowing the
purpose of the discharge to affect
whether it would bo regulated by
section 404 or section 402.
E. Problems and Issues With the
Existing Definitions
These differing definitions of the term
"fill material" havo resulted in
inconsistencies which impede the fair
and effective implementation of the
CWA in a number of ways. For example,
in the case of the Corps definition, use
of a "primary purpose test" appears to
require the Corps to make a subjective
determination about, the primary
purpose of a prospective discharge. This
subjective determination becomes even
more problematic to make where the
proposed discharge has multiple
purposes. The "primary purpose test"
also allows any prospective discharger
or project proponent to seek to affect
which regulatory regime would apply
by simply asserting a purported
purpose. This definition aisolends itself
to the possible exclusion of materials
that are most commonly used for the
very purpose of raising the elevation of
an area (i.e., of filling a water of the
U.S.) if the materials are a waste product
of some other activity.
The confusion caused by the "primary
purpose test" has also engendered
extensive litigation. We are concerned
that if the inconsistencies and
ambiguities in the regulatory definitions
of "fill material" are not corrected,
further litigation would arise and future
court decisions could reduce the ability
of the CWA section 404 program to
protect the quality of the aquatic
environment, and the overall public
interest.
The court decision that most clearly
illustrates the serious problems caused
by the "primary purpose test" is the
Ninth Circuit Court of Appeals decision
in Resource Investments Incorporated v.
U.S. Army Corps of Engineers, 151 F.3d
1162 (9th Cir. 1998) (the RII case). This
case involved a CWA section 404 permit
application for a solid waste landfill
proposed to be built in waters of the
U.S. located in the State of Washington.
The Corps' Seattle District Engineer
denied the section 404 permit, on the
grounds that a solid waste landfill at
that location could contaminate an
important "sole source" aquifer, and on
the grounds that environmentally safer
practicable alternatives were available
to handle the region's solid waste. When
the permit applicant sued, the District
Court upheld the Corps' permit denial,
but the Ninth Circuit Court of Appeals
reversed, on a number of grounds.
Ono of the Ninth Circuit's conclusions
in tho RII decision was that the
"primary purpose" test in the Corps"
definition of the term "fill material"
meant that tho Corps could not require
a CWA section 404 permit for pollutants
that the applicant proposed to discharge
into waters of tho U.S. relating to his,
proposed landfill. Based on the Corps'
definition of fill material, the Ninth
Circuit stated that no section 404 permit
was needed for the solid waste that
would be disposed of in tho proposed
landfill. Moreover, the Ninth Circuit
also determined that the layers of gravel,
low permeability soil, and synthetic
liner that would" underlie the solid
waste landfill did not constitute fill
material. The Court reasoned that the
"primary purpose" of these materials
(e.g., soil and gravel) to be placed in the
waters of the U.S. to underlie the
landfill was not "changing the bottom
elevation of a water body" or "replacing
an aquatic area with dry land." Rather, ,
the court found that its primary purpose
was the installation of a leak detection
and collection system .for that landfill.
The court did not address the material
that would be used to construct roads
and berms that were part of the project.
The Ninth Circuit's decision in the RII
case illustrates the inherent problems in
the "primary purpose" test. In RII, the
litigant was successful in excluding
from regulation under the CWA section
404 traditional fill material, by alleging
an alternative primary purpose.
Typically fill serves some purpose other
than just creating dry land or changing
a water body's bottom elevation. Thus,
if this approach to interpreting the
'Corps' "primary purpose test" were to
be taken to its extreme conclusion, the
unreasonable end result could be that
almost any traditional fill material
proposed to be placed in waters of the
U.S. does not need a section 404 permit.
Such an interpretation would be clearly
contrary to the intent of Congress
expressed in the plain words of CWA
sections 404 and 301, which require that
any "fill material" to be placed in any
wa'ter of the U.S. must be legally
authorized by a permit under CWA
section 404.
These problems can be avoided by
focusing on the effect of the material to
be discharged rather than the purpose.
For example, in the decision of the Fifth
Circuit Court of Appeals in Avoyelles
Sportsmens League v. Marsh, 715 F. 2d.
897 (5th Cir. 1983), the Court effectively
interpreted the "primary purpose test"
as an "effects based" definition of "fill
material." In the words of the Fifth
Circuit:
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21295
* * * the burying of the unburnod material.
as well as the discing, bad the effect of filling
in the sloughs on the tract and leveling the
land. The landowners insist that any leveling
was "incidental" to their clearing activities
and therefore, the material was not deposited
for the "primary purpose" of changing the
character of the land. The district court
found, however, that there had been
significant leveling * * * Certainly, the
activities were designed to "replace the
aquatic area with dry land." Accordingly, wo
hold that the district court correctly
concluded that the landowners were
discharging "fill material" into the wetlands.
(Id. At 924-925; emphasis added).
Thus, in the Avoyelles decision the
Fifth Circuit essentially held that if the
effect of material discharged into waters
of the U.S. is fill, then that material
properly is treated as fill material
needing a CWA section 404 permit.
Other litigation which reflects the
confusion caused by the ambiguities of
the "primary purpose test" originated in
the District Court for the Southern
District of West Virginia (Bragg v.
Robertson, (Civil Action No. 2:98-636,
S. D. VV. Va.)) and currently is the
subject of an appeal to the U.S. Court of
Appeals for the Fourth Circuit. The
Bragg case involves the discharge of
large volumes of rock, sand, and earth
(i.e., surface mining overburden) into
waters in West Virginia as part of the
process of "mountaintop removal"
surface coal mining. The Corps has
historically regulated this type of
discharge, commonly known as "valley
fills," under CWA section 404 general
and individual permits (permits under
the Surface Mining Control and
Reclamation Act (SMCRA) are also
required). Among several claims in
Bragg was the assertion that this rock
and soil overburden should be regulated
under CWA section 402. On December
23, 1998, a settlement agreement was
reached among the federal defendants,
West Virginia Department of
Environmental Protection and the
plaintiffs to resolve all claims against
the federal defendants. Under the
settlement agreement, the plaintiffs
agreed not to challenge Corps' authority
to regulate as "fill material" under CWA
Section 404 various types of material
(e.g., rock, sand, and earth) generated by
the coal mining industry in West
Virginia and placed in waters of the U.S.
On June 17, 1999, the District Court
approved the agreement, finding that
the agreement "accords with the law
and is fair, reasonable and faithful to the
objectives of SMCRA and CWA." 54
F.Supp.2d 653, 665 (S.D.W.Va. 1999).
However, an October 1999
Memorandum Opinion and Order by the
District Court addressing claims against
the West Virginia Department of
Environmental Protection under
SMCRA contains obiter dicta, based
upon the Corps' primary purpose tost.
indicating that the Corps lacked -
authority to regulate under CWA section
404 the placement into waters of the
U.S. of rock, sand, and earth overburden
from coal surface mining operations,
because the "primary purpose" of the
discharge was waste disposal.
In contrast to the use of a "primary
purpose test," the EPA regulations
currently define "fill material" as
"* * * any 'pollutant' which replaces
portions of the 'waters of the United
States' with dry land or which changes
the bottom elevation of a water body for
any purpose" (emphasis added). This
approach, which focuses on whether the
material would have the effect of
replacing portions of waters of the U.S.
with dry land, or of changing the bottom
elevation of such waters, is less
ambiguous and subjective than use of a
"primary purpose test." However, we
believe that this definition needs
clarification, because, read literally, it
could subject to regulation under CWA
section 404 certain pollutants that have
been, are being, and should be regulated
by the technology and water quality
based standards used in the section 402
program. For example, industrial waste
or sewage may contain suspended solids
which ultimately will settle to the
bottom following discharge. Although
this would not replace waters with dry
land, this could have effects on the
water body's bottom elevation. Where
such pollutants are covered by proposed
or final effluent limitations guidelines
and standards under section 301, 304, or
306 of the CWA or the discharge is
covered by a NPDES permit issued
under section 402 of the CWA, the
proposed rule would exclude the
discharge from the definition of fill.
II. Discussion of Proposed Rule
In order to ensure a clear, effective,
and consistent regulatory approach, the
Corps and EPA today are proposing
identical definitions of the term "fill
material." In particular, we believe that
regardless of the purpose of a
prospective discharge, the definition of
"fill material" should cover material
that has the effect of fill.
Accordingly, today's proposal would
amend both the Corps' definition of "fill
material" at 33 CFR 323.2(e) and the
EPA's definition at 40 CFR 232.2 to
provide that "fill material" means
material that has the effect of replacing
any portion of a water of the U.S. with
dry land, or changing the bottom
elevation of any portion of a water of the
U.S. At the same time, it would
specifically exclude from the definition
of fill mntcrial discharges subject to EPA
proposed or promulgated effluent
limitation guidelines and standards
under CWA sections 301, 304, and 306,
or discharges covered by a NPDES
permit issued under CWA section 402.
in the revised definition of "fill
material" wo have included examples of
certain types of material that often
constitute fill. We wish to emphasize
that these are illustrative clarifying
examples and are not intended to be an
exhaustive list. As today's rule formally
adopts the effects test, it also is
important that we clarify our intent with
respect to certain materials not
specifically listed within the definition.
The materials include wood chips, coal
mining overburden, certain forms of
solid waste, andjnaterial used to
construct solid waste landfills.
With respect to "wood chips," when
this material is scattered as a result of
the normal use of wood cutting
equipment such as chainsaws, bush
hogs, and similar equipment, the wood
chips would not have the effect of fill,
and thus would not be covered by CWA
section 404 under today's proposal.
However, some operators of heavy
mechanized equipment place or
stockpile wood chips in wetlands to use
as temporary road material, equipment
pads, or surfacing to facilitate operation
of equipment such as trucks, backhoes,
and excavation equipment. In addition,
in some cases the regular operation of
chipping equipment can result in
stockpiling or mounding of chips in
waters of the U.S. In situations such as
these, because of their quantity or
distribution, the woodchips have the
effect of fill and would be subject to
regulation under CWA section 404.
With regard to proposed discharges of
coal mining overburden, we believe that
the placement of such material into
waters of the U.S. has the effect of fill
and therefore, should be regulated
under CWA section 404. This approach
is consistent with existing practice and
the existing EPA definition of the term
"fill material." In Appalachia in
particular, such discharges typically
result in the placement of rock and
other material in the heads of valleys,
with a sedimentation pond located
downstream of this "valley fill." This
has required authorization under CWA
section 404 for the discharges of fill
material into waters of the U.S.,
including the overburden and coal
refuse, as well as the berms, or dams,
associated with the sedimentation
ponds. The effect of these discharges is
to replace portions of a water body with
dry land. Therefore, today's proposal
makes clear that such material is to be
regulated under CWA section 404. Also,
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today's proposal recognizes that
discharges from'conl mining activities
that arc covered by a proposed or final
El'A effluent guideline (See e.g., 40 CFR
part 434) are not fill material and would
remain subject to regulation under CWA
section 402. Thus, the effluent
discharged into waters of the U.S. from
sedimentation ponds currently is
regulated under CWA section 402, and
would continue to be so regulated under
today's proposal. This result would also
bo true for other types of activities that
involve various discharges, some of
which are subject to regulation under
CWA section 404 and others of which
arc subject to regulation under section
402.
In proposing today's rule, it is the
intent of the Corps and EPA to ensure
that all activities involving discharge of
pollutants into the waters of the U.S.
associated with coal mining be
regulated effectively to ensure
protection of the aquatic environment.
Consistent with the terms of the 1998
Bragg settlement agreement a
Memorandum of Understanding (MOU)
to coordinate coal mining permit
evaluations in the state was entered into
by the Office of Surface Mining, the Fish
and Wildlife Service, EPA, the Corps,
nnd the State of West Virginia,
Completed in April 1999, the MOU
describes those discharges that the
agencies believe generally should have
only a minimal effect on waters of the
U.S. and thus could be eligible for
general permit authorization by the
Corps. Prior to that MOU, agency
practice had allowed the authorization
of some discharges that probably should
have received individual permit review.
In addition, the MOU initiated
coordination procedures between CWA
and Surface Mining Control and
Reclamation Act permit reviews that
also has resulted in the development of
technical models for minimizing the
size of proposed coal discharges. The
settlement agreement included the
initiation of a comprehensive
Environmental Impact Statement (EIS)
as well. The EIS is scheduled to be
completed in December 2000 and will
assess current federal and state
authorities for regulating coal mining
discharges in Appalachia and what
measures may be necessary to ensure
protection of human health and the
environment. A draft EIS will be issued
this summer for public comment.
With respect to solid waste, it is
important at the outset to draw a clear
distinction between solid waste
discharged directly into waters of the
U.S. and sanitary solid waste landfills
(the latter is discussed further below).
Under today's proposed rule, many
forms of solid waste (including
heterogeneous solid waste such as
garbage) could fall within the definition
of "fill material" if such waste were to
bo placed directly into waters of the
U.S. This is because most forms of solid
waste, if discharged !into a water body,
would have the effect of changing the
bottom elevation of a portion of an
aquatic area, or replacing a portion of
the aquatic area with dry land.
Under today's proposal, the only
exception would be for those discharges
covered by proposed or final effluent
limitation guidelines and standards
under sections 301, 304, or section 306
of the CWA or an NPDES permit issued
under section 402 of the CWA.
Generally, under these provisions of the
CWA, EPA regulates solid waste
materials that are of a homogeneous
nature normally resulting from a single-
industry site or set of known processes.
For example, such wastes as identified
in 40 CFR part 440, subpart M (placer
mining), 40 CFR part 436, subpart R
(phosphate mining), 40 CFR part 440,
subpart E (titanium mining), 40 CFR
part 436, subpart C (sand and gravel
mining), 40 CFR part 423 (steam electric
power generation), and 40 CFR part 435
(oil and gas extraction). We welcome
comment on all aspects of today's
proposal, and especially solicit
comment on whether the proposal's
reference to discharges "covered by
proposed or final effluent limitations
guidelines and standards under sections
301, 304 or section 306 of the Clean
Water Act * * * or discharges covered
by an NPDES permit" fully
encompasses the range of discharges
properly subject to section 402 of the
Act.
Notwithstanding the fact that the
definition of fill could include many
forms of solid waste, you should not
infer from this fact that either the Corps
or the EPA believes that solid waste
(e.g., trash, debris, automobiles) is an
appropriate or legitimate form of fill
material for which CWA section 404
permits should be or will be granted. In
fact, the opposite is true. As a general
matter, we do not expect that CWA
section 404 authorizations should be, or
are likely to be, granted for proposals to
discharge of fill material consisting of
such solid waste into any water of the
U.S.
In this regard, for many years the
Corps has advised the regulated public
that, as a general rule, such solid waste
is not an acceptable form of fill material
for which CWA section 404 permits can
be issued. For example, all Corps
Nationwide General Permits are subject
to General Condition Number 3, which
reads as follows:
3. Suitable material. No discharge of
drudged or fill material may consist of
unsuitable material (e.g.. trash, debris, car
bodies, etc.) and material discharged must be
free from toxic pollutants in toxic amounts
(see section 307 of the Clean Water Act.) ,(56
FR 591-tlj. Nov. 22. 1991)
In the most recent revision of the
nationwide general permit conditions.
the list of "unsuitable" forms of fill
material has boon expanded to include
"nsphalt." (See 65 FR Page 12896,
March 9, 2000).
This general condition reflects the
policy that the waters of the U.S. should
not be polluted by discharges of solid
waste, which is generally not a suitable
or appropriate form of "fill material,"
for a variety of reasons. For example,
many forms of solid waste, such as
heterogeneous solid waste, junked
automobiles, discarded Appliances, or
chemically processed solid waste (e.g.,
heap leach piles) often contain
pollutants (including toxic pollutants)
that could, over time, leach into and
contaminate both the surface waters and
ground water. Consequently, as a
general rule, members of the public
should not seek CWA section 404
authorization for the discharge of such
solid waste directly into the waters of
the U.S., because there is.no likelihood
that section 404 permits would be
granted.
Where there is no reasonable prospect
that a Corps District Engineer would
grant a section 404 permit to discharge
solid waste into a water body, it would
be a waste of time for both the applicant
and the Corps for the Corps to have to
accept and process a permit application
for such a proposed discharge. Thus, the
Corps is considering including in its
regulation a provision that would allow
the District Engineer complete
discretion to refuse to process any
permit application to discharge fill
material that the District Engineer
determines to be "unsuitable fill
material." This would allow Corps
District offices to avoid expending
limited resources processing
applications for the direct discharge into
waters of the U.S. of any form of solid
waste where the District Engineer
determines that there is no reasonable
possibility for the granting of a section
404 permit.
To accomplish this purpose, the
Corps could include within its
regulations at 33 CFR 323.2 a definition
for a new term, "unsuitable fill
material." That proposed new definition
would read generally as follows:
The term "unsuitable fill material" means
any material proposed to be discharged into
waters of the United States that would fall
under the definition of "fill material," but
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21297
which the District Engineer determines to
havu physical or chemical characteristics that
would make the material unsuitable for a
proposed discharge into waters of the United
States, so that there is no reasonable
possibility that a section 404 permit can be
granted for the proposed discharge of that
particular material. For example the District
Engineer may determine that fill material is
unsuitable because of the potential for the
leaching of contaminants from the fill
material into ground waters or surface
waters, or because the proposed fill material
is too light or unstable to serve reliably for
its intended purpose (e.g., bank stabilization
or erosion control). In most circumstances,
heterogeneous solid waste, discarded
appliances, and automobile or truck bodies
would qualify as unsuitable fill material. In
addition, material containing toxic pollutants
in toxic amounts (see section 307 of die
Clean Water Act) is unsuitable fill material.
The Corps recognizes the fact that
special and exceptional circumstances
can arise whereby material generally
deemed "unsuitable" for direct
discharge into water bodies can be
authorized for discharge, with little or
no risk to the environment, or even to
enhance environmental values. For
example, over the years the Corps has
authorized the creation of a number of
artificial reefs from various types of
discarded "waste materials." Therefore,
the new definition of "unsuitable fill
material" would not reduce in any way
the discretion of any District Engineer, to
authorize the discharge of any waste
material for a beneficial purpose.
Accordingly, we request comment on
adding a definition in the Corps
regulations for the term "unsuitable fill
material," and on changing Corps
regulations to grant the District Engineer
authority to reject, without further
processing, any permit application for
"fill material" that the District Engineer
determines to be "unsuitable fill
material."
Unfortunately, it is well known that,
upon occasion and from time to time,
individuals illegally "dump" solid
waste into wetlands and other aquatic
areas, without having sought any sort of
CWA authorization for those discharges.
Such illegal discharges of solid waste
present an enforcement problem under
the CWA. The EPA will continue to
serve as the lead enforcement agency
regarding such unpermitted discharges
of solid waste.
With respect to solid waste landfills,
our intent has been, and continues to be,
that liners, berms, and other
infrastructure that are constructed of
materials such as rock, sand, gravel,
clay, soil, plastics, and other materials
that have the effect of changing the
elevation of waters of the U.S. should be
regulated under section 404 of the CWA.
In the case of a landfill that has received
an individual Department of the Army
section 404 permit, the subsequent
disposal of solid waste into the landfill,
while subject to regulation under the
Resource Conservation and Recovery
Act (RCRA), would not be subject to"
regulation under the CWA. As with
current practice, discharges of leachate
from landfills into waters of the U.S.
would remain subject to CWA section
402.
Our approach today is consistent with
current practice and the 1986 Solid
Waste MOA between the EPA and the
Army that the agencies have continued
to follow in implementing our current
regulations. That MOA sets out a
number of factors in paragraphs 4 and
5 to help determine whether material is
subject to the CWA under 404 or 402,
and today's proposal has been drafted to
take into account factors similar to those
in the 1986 Solid Waste MOA. In
particular, the proposal's provision that
material with the effect of fill would be
subject to section 404 is similar to
paragraph B.4.C of the 1986 Solid Waste
MOA (providing that when the
principal effect of the discharge is
physical loss or modification of waters
of the U.S., this is a factor indicating
application of section 404). Similarly,
proposed language excluding from
coverage under section 404 material that
is covered by proposed or promulgated
EPA effluent guidelines or standards is
consistent with paragraph B.5 of the
1986 Solid Waste MOA (providing that
when discharges are in liquid, semi-
liquid, or suspended form or the
discharge is of homogeneous solid
material, this is a factor indicating
application of section 402).
Additionally, as provided for in
paragraph B.2 of the 1986 Solid Waste
MOA, in cases of unpermitted
discharges of solid waste into waters of
the U.S., EPA will continue to serve as
the lead enforcement agency.
Consistent with the above described
revisions to the definition of "fill
material," we also are proposing to
revise the definition of the term
"discharge of fill material" to further
clarify the issue of section 404
applicability with regard to materials
used to construct solid waste landfills
and placement of coal mining
overburden. In particular, we believe
placement of these materials in waters
of the U.S. is properly subject to
regulation under section 404 of the
CWA. Accordingly, we are proposing a
clarification to the regulations on this
point by adding these placement
activities to the list of examples set out
in the regulations defining the
"discharge of fill material" at 33 CFR
323.2(f) and 40 CFR 232.2.
III. Administrative Requirements
•A. Paperwork Reduction Act
This action does not impose any new
information collection burden or alter or
establish now record keeping or
reporting requirements. Thus, this
action is not subject to the Paperwork
Reduction Act.
B. Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4, 1993), we must
determine whether the regulatory action
is "significant" and therefore subject to
review by the Office of Management and
Budget (OMB) and the requirements of
the Executive Order. The Order defines
"significant regulatory action" as one
that is likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more, or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a "significant regulatory
action." As such, this action was
submitted to OMB for review. Changes
made in response to OMB suggestions or
recommendations will be documented
in the public record.
C. Executive Order 13132 (Federalism)
Executive Order 13132, entitled
"Federalism" (64 FR 43255, August 10,
1999), requires us to develop an
accountable process to ensure
"meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications." "Policies that have
federalism implications" is defined in
the Executive Order to include
regulations that have "substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government."
Under section 6 of Executive Order
13132, we may not issue a regulation
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Federal Register/Vol. 65, No. 77/Thursday, April 20, 2000/Proposed Rules
that hns federalism implications, that
imposes subst.inti.il direct compliance
costs, and thai is not required by statute,
unless the Federal government provides
the funds necessary to pay the direct
compliance costs incurred by State and
local governments, or we consult with
State and local officials early in the
process of developing the proposed
regulation. We also may not issue a
regulation that has federalism
implications and that preempts State
law, unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
This proposed rule does not have
federalism implications. It will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Currently.
under the CWA, any discharge of
pollutants into waters of the U.S.
requires a permit. Today's proposal
relates solely to whether a particular
discharge is appropriately authorized
undor section 402 or section 404 of the
Act. Moreover, the proposed allocation
of authority between these programs is
consistent with existing agency practice.
Thus, the requirements of section 6 of
the Executive Order do not apply to this
rule.
D, Regulatory Flexibility Act (RFA) as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. GOT. etseq,
The RFA generally requires an agency
to prepare a regulatory flexibility
analysis of any rule subject to notice
and comment rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations and small
governmental jurisdictions.
The proposed rule does not impose
any new requirements. Currently, under
the CWA, any discharge of pollutants
into waters of the U.S. requires a permit.
Today's proposal relates solely to
whether a particular discharge is
appropriately authorized under section
402 or section 404 of the Act. Moreover,
the proposed allocation of authority
between these programs is consistent
with existing agency practice. After
considering the economic impacts of
today's proposed rule on small entities,
we certify that this action will not have
a significant economic impact on a
substantial number of small entities.
E. Unfunded Mandates Reform Act
Title II of the Unfrmded Mandates
Reform Act of 1995 (UMRA), Public
Law 104—1, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State, local,
and Tribal governments, in the
aggregate, or to the private sector, of
5100 million or more in any one year.
Before promulgating an EPA rule for
which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
We nave determined that this rule
does not contain a Federal mandate that
may result in expenditures of $100
million or more for State, local, and
Tribal governments, in the aggregate, or
the private sector in any one year. The
proposed rule does not impose any new
requirements. Currently, under the
CWA, any discharge of pollutants into
waters of the U.S. requires a permit.
Today's proposal relates solely to
whether a particular discharge is
appropriately authorized under section
402 or section 404 of the Act. Moreover,
the proposed allocation of authority
between these programs is consistent
with existing agency practice. Thus,
today's rule is not subject to the
requirements of sections 202 and 205 of
the UMRA. For the same reasons, we ,
have determined that this rule contains
no regulatory requirements that might
significantly or uniquely affect small
governments. Thus, today's rule is not
subject to the requirements of section
203 of UMRA.
F. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (the NTTAA), Public Law
104-113, section 12(d) (15 U.S.C. 272
note), directs us to use voluntary
consensus standards in our regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices etc.) that are adopted
by one or more voluntary consensus
standards bodies. The NTTAA directs
us to provide Congress, through OMB,
explanations when we decide not to use
available and applicable voluntary
consensus standards.
As part of a larger effort, EPA is
undertaking a project to cross-reference
existing voluntary consensus standards
in testing, sampling, and analysis, with
current and future EPA test methods.
When completed, EPA will use this
project to assist in identifying
potentially applicable voluntary
consensus standards that can then be
evaluated for equivalency and
applicability in determining compliance
with future EPA regulations.
This proposed rulemaking does not
involve technical standards. Therefore,
we are not considering the use of any
voluntary consensus standards. We
Welcome comments,on this aspect of the
proposed rulemaking and specifically,
invite the public to identify any
potentially applicable voluntary
consensus standards and to explain why
such standards should be used in this
regulation.
C. Executive Order 13045
Executive Order 13045, entitled
Protection of Children From
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23,1997),
applies to any rule that we determine [1]
is economically significant as defined
under Executive Order 12866, and (2)
concerns an environmental health or
safety risk that we believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
we must evaluate the environmental
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21299
health or safety effects of the planned
rule on children and explain why the
planned regulation is preferable to other
potentially effective and reasonably
feasible alternatives that we considered.
This regulation is not subject to
Executive Order 13045 because, as
previously discussed, it does not
constitute an economically significant
regulatory action as defined by
Executive Order 12866. Furthermore, it
does not concern an environmental
health or safety risk that we have reason
to believe may have a disproportionate
effect on children.
H. Executive Order 13084
Under Executive Order 13084, we
may not issue a regulation that is not
required by statute, that significantly or
uniquely affects the communities of
Indian Tribal governments, and tliat
imposes substantial direct compliance
costs on those communities, unless the
Federal government provides the funds
necessary to pay the direct compliance
cost incurred by the Tribal governments,
or we consult with those governments.
If we comply by consulting, Executive
Order 13084 requires us to provide
OMB, in a separately identified section
of the preamble to the rule, a
description of the extent of our prior
consultation with representatives of
affected Tribal governments, a summary
of the nature of their concerns, and a
statement supporting the need to issue
the regulation. In addition, Executive
Order 13084 requires us to develop an
effective process permitting elected
officials and other representatives of
Indian Tribal governments "to provide
meaningful and timely input in the
development of regulatory policies on
matters that significantly or uniquely
affect their communities."
Today's rule does not significantly or
uniquely affect the communities of
Indian Tribal governments, nor does it
impose significant compliance costs on
them. Today's proposal relates solely to
whether a particular discharge is
appropriately authorized under section
402 or section 404 of the Clean Water
Act. Moreover, the proposed allocation
of authority between these programs is
consistent with existing agency practice.
Accordingly, the requirements of
section 3(b) of Executive Order 13084
do not apply to this rule.
/. Environmental Documentation
As required by the National
Environmental Policy Act (NEPA), the
Corps prepares appropriate
environmental documentation for its
activities affecting the quality of the
human environment. The Corps has
made a preliminary determination that
today's proposed rule does not
constitute a major Federal action
significantly affecting the quality of the
human environment, and thus does not
require the preparation of an
Environmental Impact Statement (EIS).
Among the reasons for this conclusion
is the fact that the Corps prepares
appropriate NEPA documents, when
required, covering specific permit
situations. The implementation of the
procedures prescribed in this proposed
regulation would not authorize anyone
(e.g., any landowner or permit
applicant) to perform any work
involving regulated activities in waters
of the U.S. without first seeking and
obtaining an appropriate permit
authorization from the Corps. In
addition, this proposed regulation
merely revises and clarifies the Corps'
and EPA's respective definitions of the
terms "fill material" and "discharge of
fill material" to allow more objective
determinations, and is consistent with
current practice. Accordingly, the Corps
expects to prepare an environmental
assessment (EA) for the rule.
List of Subjects
33 CFR Part 323
Water pollution control, Waterways.
40 CFR Part 232
Environmental'protection,
Intergovernmental relations, Water
pollution control.
Corps of Engineers
33 CFR Chapter II
Accordingly, as set forth in the
preamble 33 CFR part 323 is proposed
to be amended as set forth below:
PART 323—[AMENDED]
1. The authority citation for part 323
continues to read as follows:
Authority: 33 U.S.C. 1344.
2. Amend § 323.2 as follows:
a. Paragraph (e) is revised.
b. In paragraph (f), in the second
sentence, add the words "placement of
fill material for construction or
maintenance of liners, berms, and other
infrastructure associated with solid
waste landfills; placement of coal
mining overburden;", after the words
"utility lines;".
The revision reads as follows:
§323.2 Definitions.
*****
[e)(l) Except as specified in paragraph
(e)(2) of this section, the term////
material means material (including but
not limited to rock, sand, and earth) that
has the effect of:
(i) Replacing any portion of a water of
the United States with dry land; or
(ii) Changing the bottom elevation of
any portion of .a water of the United
States.
(2) The term fill material does not
include discharges covered by proposed
or final effluent limitations guidelines
and standards under sections 301, 304
or section 306 of the Clean Water Act
(see generally, 40 CFR part 401), or
discharges covered by an NPDES permit
issued under section 402 of the Clean
Water Act.
Dated: April 17, 2000.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works),
Department of the Army.
Environmental Protection Agency
40 CFR Chapter I
Accordingly, as set forth in the
preamble 40 CFR part 232 is proposed
to be amended as set forth below:
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Federal Register/Vol. 65, No. 77/Thursday, April 20, 2000/Proposed Rules
PART 232—{AMENDED]
1. The authority citation for part 232
continues to road as Follows:
Authority: 33 U.S.C. 1344.
2. Amend § 232.2 as follows:
a. The definition of "Fill material" is
revised.
b. In tho definition of "Discharge of
fill material," in paragraph (1), add the
words "placement of fill material for
construction or maintenance of liners,
berms. and other infrastructure
associated with solid waste landfills;
placement of coal mining overburden;",
after the words "utility lines;".
The revision reads as follows;
§232.2 Definitions.
* * * * ', *
Fill material. (I) Except as specified
in paragraph (2) of this definition, the
terms //// material means material
(including but not limited to rock, sand,
and earth) that has the effect of:
(i) Replacing any portion of water of
the United States with dry land; or
(ii) Changing the bottom elevation of
any portion of a water of the United
States.
(2) The term//// material does not
include discharges covered by proposed
or final effluent limitations guidelines
and standards under sections 301, 304
or section 306 of the Clean Water Act
(see generally, 40 CFR part 401), or
discharges covered by an NPDES permit
issued under section 402 of the Clean
\Vater Act.
Dated: April 17, 2000.
Carol M. Browner,
Administrator, Environmental Protection
Agency.
[FR Doc. 00-9940 Filed 4-19-00: 8:45 am]
BILLING CODE 6560-50-P
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