vv EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: °\C\'^}I0 -\
TITI E" Resource Conservation and Recovery Act
Loss of Interim Status Enforcement Strategy
OSWER Directive #9930.1
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
fE DIRECTIVE DIRECTIVE Di
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United Slates Environmental Prelection Agency
f^ m- ^^ 41
V>EPA OSWER
Washington
Directive
. DC 20460
Initiation
Request
Interim Directive Numoer
s~\ x~ *— *
W3),
0
'1
Originator tnlormation
Name of Contact Person
Jackie Tenusak
Lead Office f~i
LJ OUST
CD OERR Q OWPE
CD OSW -Q AA.OSWER
Mail Code Teleofione Nurnjbej
WTT _ c; T "7 • 202^^4/5^8729
Approved for Review
Signature of Office Director
See Attachment i\}C&tub
°;; ff,^
itle
Resource Conservation and Recovery Act
Loss of Interim Status Enforcement Strategy
*
OSWER Directive #9930.1
Summary of Directive
Enforcement and implementation of Loss of Interim Status Provision
o Communications
o Inventories of facilities in the permit applicant and closures
universes
o Short term enforcement
o Long term enforcement
Type of Directive (Manual, Policy Directive. Announcement, etc.)
Guidance Strategy
Status
D Draft
ED Final
I _ I
New
Revision
Yes I I No
interim"
Docs this Directive Supersede Previous Directive(s)? | | Yes [*J No Doe's It Supplement Previous Directive(s)? 0
If "Yes" to Either Question. What Directive (number, title! Federal Register notice on lOSS Of
status provision
Review Plan
CD AA-OSWER
D OERR
CD OSW
D OUST
LJ OWPE
I—I Regions
CD OECM
CD OGC
D OPPE
other (Specify! aready reviewed
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
See Attachment ' ^v| L\/,rt LD^AAff
Signature of OSWER Directives Officer
See Attachment fO?) UfPffAN
Date
Date
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Resource Conservation and Recovery Act
Loss of Interim Status Enforcement Strategy
Introduction
The Environmental Protection Agency underscored the signifi-
cance of the RCRA loss of interim status provision in the FY 1986
RCRA Implementation Plan. The Agency also has published a Federal
Reg ister Notice outlining its implementation and enforcement policy,
as well as an interpretative guidance. This guidance supplements
those documents by delineating the loss of interim status enforce-
ment strategy.
Summary
Section 3005(e)(2) of RCRA reguires interim status land disposal
facilities that desire to retain interim status (1) to submit an
operating (Part B) permit application by November 8, 1985 and (2)
to certify compliance with all applicable ground-water monitorinn
and financial responsibility reguirements by November 8, 1985.
VJhile encouraging valid certification on a facility-wide basis,
the Agency is allowing unit by unit certification. RCRA land
disposal units that do not submit Part B applications and certifi-
cations of compliance (i.e., that lose interim status jV) must
immediately cease operation and comply with applicable closure
reguirements.
The loss of interim status provision is self implementing and
imposes reguirements on owners and operators of land disposal
facilities rather than directly on EPA. Nonetheless the Agency
will aggressively implement and enforce the loss of interim status
provision and related reguirements.
There are four major elements of the loss of interim status
enforcement strategy.
First, a communications strategy will advise the public, the
Congress and regulated community of our interpretation of the loss
of interim status provision and our serious intentions to implement
and enforce the provision. Second, inventories of facilities
on a unit by unit basis will be developed. These will identify
facilities by unit that (a) certify compliance and submit a Part B
'/ Under the Agency's implementation and enforcement policy which
is set forth i'n the Federal Reg i ster, facilities such as
non-notifiers and late notifiers that technically did not
have interim status are subject to the loss of interim status
provision. Accordingly, this strategy generally will refer
to facilities that did not satisfy the provision's reguirements
as facilities that did not certify or submit a Part B; as a
short hand expression such facilities also will be referred to
as losing interim status.
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(retain interim status), (b) fail to certify compliance and/or submit
a Part B (lose interim status) and (c) of those that lose interim
status, those that do not submit closure plans. These inventories
will provide an information base for program and enforcement
management in the aftermath of November 8, 1985. Third, facilities/
units with clear violations will be targeted for priority enforcement.
This will include (a) clearly inadequate facilities/units, including
facilities without wells (and without a valid waiver) or without
satisfactory financial responsibility assurances, identified before
November 8, that attempt to certify compliance, (b) facilities/units
that do not certify compliance and/or submit a Part B but continue to
operate as identified during annual inspections or by an informant,
and (c) facilities/units that do not certify compliance and/or submit
a Part B, and fail to submit closure plans. Criminal enforcement actions
are to be developed and referred to the Department of Justice where
justified on the facts; other enforcement authorities will be
used to seek proper closure of facilities/units, including some
that certified. Fourth, during FY 1986 facilities/ units that
retain interim status as well as those that submit closure plans
will be subject to evaluations of their ground-water monitoring
systems, Part B applications or closure plans as part of ongoing
programmatic activities. Instances of noncompliance will be
addressed through enforcement actions.
Elements of the Strategy
A. Commun icat ions
Each Region has advised facilities with RCRA land disposal
units of the loss of interim status provision. In addition, in
October each Region is to send a copy of the Federal Register
Notice to each such facility. This transmittal will be part of
a single RCRA section 3007 letter that will seek phased responses
from each facility on units that close, submission of closure plans,
and optionally, waste disposition. The letter is discussed below; a
model letter is set-forth in Attachment A.
After the Federal Register Notice was signed, Headquarters -
OWPE briefed the Congress and Washington, D.C. external groups
about the loss of interim status provision and of this strategy.
Each Region should adopt a communications plan regarding the
loss of interim status provision. The plan is to be oriented
toward widespread communications and should emphasize the Region's
intent to enforce the provision.
B. Inventories of Facilities (on a Unit by Unit Basis) in Operating
Permit Applicant and in Closure Universes
1. Facilities (by unit) that certify compliance and submit
Part B permit applications (operating permit universe).
The loss of interim status provision reguires owner/operators
to. submit permit applications and certify compliance with ground-
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water monitoring and financial responsibility requirements to
retain the authority to operate^/ and remain in the operating
permit applicant universe. In implementinq this provision, the
Agency has authorized owner/operators to certify compliance on a
unit by unit basis. It also has advised owner/operators to send
compliance certifications and permit applications to EPA and,
where autho'rized, the States. We expect that most certifications
will be mailed in early November. The Regions should implement
procedures to check transmittal (post mark) dates and reject
late transmissions.
Following receipt of the certifications of compliance and
Part B applications, the Regions are to develop promptly an
inventory of facilities, on a unit by unit basis, that certify
compliance and submit part B applications. The inventory should
identify each facility (with RCRA ID number) that certifies
compliance and submits a Part B and, for each such facility,
should identify the units that certified (or the facility as
a whole). This inventory of facilities in the operating permit
applicant universe will be utilized by Regional enforcement and
permitting personnel and shared with states. The inventory will
also be submitted to headquarters. The schedule for developing
the post November 8 universe of operating permit apnlicant facil-
ities by unit is set forth below. In addition the Regions are to
make a copy of each certification and place it in a separate
certification file.
2. Facilities/units that do not certify compliance and/or
submit Part B permit application (closure universe).
In the event that a land disposal facility does not submit
a Part B application and certification by November 8, 1985, it
must cease operation of its land disposal units. Those units
enter the closure universe by operation of law by that date.
The Regions are to develop a separate inventory of facilities
that do not certify compliance and/or do not submit a Part B
application. Generally, this closure universe may be developed
by listing the Regional universe of land disposal facilities as
amended in the summer of 1985 and then subtracting each facility
that certifies all units and submits a Part B application that
addresses all. The remainder are the facilities in the closure
universe. There may be some questions, however, as to identity
of all the RCRA Subtitle C land disposal units at a closing
facility. Moreover, where a facility does certify/submit a Part
B for units identified in those documents, it may be difficult to
determine with confidence whether any RCRA Subtitle C land disposal
units are not within the scope of those submissions.
*/This includes non-notifiers and late notifiers.
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The potential problem in defining the universe of units subject
to closure results in part from the fact that the loss of interim
status provision does not expressly require submissions regarding
individual units that must close because they lost interim status.
To fill this gap, the RCRA section 3007 letters that the Regions
are to send to facilities in October will require in part an
identification of land disposal units that are not within the scope
of a certification and part B. A model section 3007 letter,
which the Regions may modify provided that the basic information
is obtained, is set forth as Attachment A. The schedule
for mailing and response is set forth below. The results will
be collated to compile a closure universe, by facility by unit,
which includes the same classes of information as in the operating
permit applicant universe above. This universe will be provided
to permitting and enforcement personnel, as well as to states
and Headquarters. In addition, information in HWDMS will be
updated to reflect the current status of the facilities.
3. Facilities/units that do not certify and/or submit a
Part B permit application, and do not submit closure plans.
As a result of the loss of interim status provision, a large
number of facilities/units must close. Those facilities/units will
be identified in the closure universe noted above. The Regions and
States must assure that a closure plan is submitted for facilities/
units that close. In most instances, authorized states will
receive the closure plans on or shortly after November 23, 1985.
As a matter of national consistency, and to assure that closures,
which are a national priority, begin with the timely submission
of a closure plan, the Regions are to obtain information on
closure plan submission as part of the section 3007 letter to be
sent in October. The model section 3007 letter requires the
owner/operator to state when the closure plan was submitted.
Regions are to use the responses to the section 3007 letters to
develop an inventory of closing facilities that do not submit
"closure plans. This will be used for enforcement management.
C. Identify Facilities with Clear Violations and take Priority
Enforcement (Criminal or Closure)
In connection with the loss of interim status provision,
there will be several classes of clear violations that must be
given high enforcement priority by the Regions and States:
(A) facilities/ units clearly not in compliance with ground-water
monitoring and financial responsibility requirements that certify,
(B) facilities/units that are required to but do not submit closure
plans and (C) facilities/units that lose interim status that
continue to operate.
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In October, 1985 the Regions should develop lists of facilities
that should be targeted for enforcement promptly after November 8,
1985 if they certify compliance with ground-water monitoring and
financial responsibility requirements. This includes several
classes of facilities. First, facilities without monitoring wells
that lack valid waivers may not certify. Second, facilities that
lack the requisite financial assurances may not certify. There is
no prosecutorial discretion to allow these facilities to certify or
to allow these facilities (or facilities that do not certify) to
continue to operate under an order or other mechanism. Any order,
including State agency orders, that purports to do so beyond
November 8, 1985 is invalid. Unless there is a legislative
lhange for liability insurance, land disposal facilities that do
not meet financial responsibility requirements may not certify
or operate on and after November 8, 1985. Enforcement must be
directed toward closure and/or be criminal in nature for this
group of facilities. In seeking closure, temporary restraining
orders and and preliminary injunctions should be considered.
Potential criminal actions should be referrred immediately to the
Office of Criminal Investigations in the Region. Facilities where
there are substantial questions about whether RCRA Subtitle C
requirements apply may not be good candidates for criminal action.
In most cases, the facilities that certify compliance and
submit a Part B will have a monitoring well system. These cases
remain subject to the sound evaluation and enforcement discretion
of the Region. In exercizing this discretion, the Region should
consider, among other relevant factors, its view of the adequacy
of the ground-water monitoring system, an authorized State's
legitimate views, and any past representations of the adequacy
of the system. In the event that the Region believes, and an
authorized State does not substantially dispute that there is a
strong, consistent case on the inadequacy of the well system, the
complaint should seek closure and, alternatively if that relief
is denied, an upgraded system that satisfies both part 265 and
270 standards. Where the Region and the State substantially
disagree, or other factors lead to the conclusion that the hearing
official or court probably will not order closure, the complaint
.should seek an upgraded well system that satisfies both part 265
and 270 standards.
Facilities/units that close and do not submit closure plans
by November 23, 1985 should be targeted for enforcement by an ; _ ,
authorized State or the Region. " . ." . •
Finally, the facilities/ units that do not certify compliance
and/or submit a Part B application and enter the closure universe
will be inspected. In the event that the inspection or other
credible information from an informant reveals that these facilities/
units operated after November 8, the case should be referred
immediately to the Office of Criminal Investigations in the
Region. Neither EPA nor State regulatory personnel may negotiate
with the facility, as this may detract from the criminal action.
This does not preclude a prompt and unequivocal filing for a
Temporary Restraining Order.
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D. Ongoing Enforcement Throughout FY 1986
Facilities/units that retain interim status and are in the
permit applicant universe, as well as facilities in the closure
universe, may not be in full compliance with applicable require-
ments, or may be appropriate candidates for corrective action.
The FY 1986 RIP, recognizing that manpower and resources must
be applied throughout the year, provides for inspections and
enforcement during the entire year.
Of those facilities/units retaining interim status, some will
have monitoring well systems that EPA and/or the State considered
marginal at the last inspection. Where the interim status well
system is marginally acceptable, the Region/State should review
the Part B application, update the inspection, and as appropriate,
take enforcement action during FY 1986 to reguire compliance
with 40 C.F.R. Parts 265 (Subpart F) and 270.14(c), or the State
analogue. Where the well system in the view of the State is
adequate to certify compliance, and notwithstanding its reservations,
the Region believes that it can not develop a successful case to
terminate interim status and force closure, the Region/State
should review the Part B application, update the inspection and,
as appropriate, take enforcement during FY 1986 to require compliance
with 40 C.F.R. Parts 265 (Subpart F) and 270.14(c), or the State
analogue.
The Region/State must take actions to reguire adequate
ground-water monitoring, a satisfactory closure plan, appropriate
corrective action and implementation of the closure plan for
those facilities entering the closure universe. These activities
will occur throughout FY 1986 in accordance with the RIP.
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LOSS OF INTERIM STATUS ENFORCEMENT STRATEGY TIMETABLE
Pre - November 8, 1985
9/18 Federal Register Notice on interpretation of provision signed
9/19 Congressional briefings and other communications begin
9/25 Federal Register notice published
9/26 Draft of this strategy to the Regions:
10/16 Final of this strategy to the Regions
Bi weekly conference calls with regions to go over guestions raised (participation
optional)
Mail responses to guestions submitted by Regions
Enforcement continues through this period.
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Lost - Nov 8 (Regions)
target dates
9/30-11/7 Regional lists identify facilities/units that are unable
to certify (e.g., no wells, no insurance, clearly inadequate
wells ("targets"))
11/8-11/19 Regions receive the vast majority of certifications
and Part Bs
11/12-11/19
11/20-11/25
11/25
11/25-12/5
Regions receive responses to §3007 letters on
noncertified units (closure universe)
Regions compile preliminary operating permit applicant and
closure universe lists by name and I.D. number of (1) all
facilities (by unit) that certify & submit Part B and (2)
all facilities (by unit) not certifying and/or submitting
Part B
Regions submit preliminary universe lists (above) to OWPE/
States; also send States answers to §3007 requests
First screen - Regions determine if targets certified:
compare list of those that certified to target
list; identify certifiers that are enforcement
targets; confer with Office of Criminal Investigations
in the Region; confer with Regional Counsel on
TROs.
11/27-12/3 Regions receive response to §3007 letters on closure plans
[11/23 is a filed
Sat; 11/28 is
Thanksgiving]
12/3-12/6 Second screen - Regions determine if facilities/units that
lost interim status filed closure plan. Amend list
of facilities (by unit) not certifying and submitting
Part B to include untimely filing or non filing of closure plan.
12/9 Regions submit to OWPE/State preliminary census, stating
for each facility (with RCRA ID Number): identity of
units that certified & submitted part B; units not certified
or no part B; untimely or no submission of closure plan
12/10-12/30 Verify/resolve questions in census
12/30/85 Regions submit final census to OWPE, States (final version of 12/9 Census)
NOTE: ENFORCEMENT IS TO PROCEED FROM NOVEMBER 8, -1985 AND
THEREAFTER UPON DISCOVERY OF A SIGNIFICANT VIOLATION
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ATTACHMENT A
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
[ADR]
[1]
RE: Request for Information Pursuant to §3007 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6927
Dear [NAME] :
Earlier this year, the Environmental Protection Agency sent your
Company a letter to advise you that the Resource Conservation and
Recovery Act (RCRA) had been amended by the Hazardous and Solid
Waste Amendments of 1984 (the Amendments), and in particular to
inform you of a new provision known as the loss of interim status
provision. The purpose of this letter is to provide additional
guidance relative to the loss of interim status provision
and to request information regarding your operations before and
after November 8, 1985.
The loss of interim status provision provides:
(2) In the case of each land disposal facility which
has been granted interim status under this subsection before
the date of enactment of the Hazardous and Solid Vteste
Amendments of 1984, interim status shall terminate on the
date twelve months after the date of the enactment of such
Amendments unless the owner or operator of such facility-
(A) applies for a final determination regarding
the issuance of a permit under subsection (c) for such
facility before the date twelve months after the date
of the enactment of such Amendments; and
(B) certifies that such facility is in compliance
with all applicable groundwater monitoring and financial
responsibility requirements.
The Environmental Protection Agency's interpretation of the
requirements under this provision is published at 50 Federal Register
38946 (September 25, 1985), a copy of which is enclosed. Please
read and follow this closely. In order for you to continue to place
hazardous wastes in land disposal units at your facility on and
after November 8, 1985, by that date you must (1) submit a Part B
operating permit application and (2) a certification of compliance
with all applicable qroundwater monitoring and financial responsi-
bility requirements. Certification is authorized on a facility-wide
or unit-by-unit basis. The Part B application should be mailed
or delivered before November 8, 1985 to:
and
EPA State
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The certification should be mailed or delivered before November 8, 1985 to:
and
EPA State
The owner/operator of a facility may certify compliance only if
the facility or units for which interim status is retained is
in physical compliance. Because this is a provision of federal
law, an order by any agency that has a compliance date on or beyond
November 8, 1985 does not relieve the owner/operator of the
obligation to be in physical compliance by the statutory date
when the certification is due. You may not interpret or rely on
an order or compliance schedule therein as an extension of the
November 8, 1985 deadline. Moreover, difficulties in achieving
compliance, such as obtaining insurance, are not grounds for
filing a certification if you are not in physical compliance.
If you do not certify compliance with ground-water monitoring and
financial responsibility requirements and/or you do not submit a
Part B permit application by November 8, 1985, you must cease
placement of wastes into the land disposal units in question by
that date and you must comply with all closure and post closure
requirements. This follows hy operation of law and does not
require notice from EPA.
You are hereby required, pursuant to the authority of §3007 of
RCRA, 42 U.S.C. §6927, to report to EPA information regarding
hazardous waste land disposal units that had interim status
on or before November 8, 1985 and/or received hazardous waste
after November 19, 1980. In particular, you are to submit the
information specified in Paragraphs 1-2 of Attachment I between
November 8 and 13, 1985. Information in paragraph 3 is to be
submitted between November 23 and November 27, 1985. Information
in paragraph 4 is to be submitted between January 3 and 10, 1986.
Paragraph 5 is ongoing. Each submission must identify the facility
by name, address and RCRA I.D. number, refer to the information
request number or repeat the request, be a self-explanatory and
complete response, be dated and be signed.
You may, if you desire, assert a business confidentiality claim
covering part or all of the information requested, in the manner
described by 40 CFR §2.203(b). You should read the above-cited
regulations carefully before asserting a business confidentiality
claim, since certain categories of information are not properly
the subject of such a claim. Information covered by such a claim
will be disclosed by EPA only to the extent, and by the means of
the procedures, set forth by 40 CFR Part 2, Subpart B. If .no
such claim accompanies the information when it is received by EPA,
it may be available to the public by EPA without further notice
to you.
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Please forward the information requested to:
U.S. Environmental Protection Agency
Waste Management Division
Federal Building - Room
City/State
Attn: [2]
Failure to comply with the above request within the time frame
specified may result in an enforcement action by EPA under the
authority of §3008 of RCRA, including the assessment of penalties.
You should also be aware that knowing falsification of any
information provided pursuant to this request is a criminal
violation under §3008(d)(3) of RCRA, and other provisions and
may result in fines and imprisonment.
If you have any questions with regard to the above, or should you
need further clarification regarding your response to this letter,
please contact [Technical lead] of my staff at (617) 223-
Si ncerely,
Director,
Waste Management Division
cc: State representative
bcc: Analyst
Technical Lead
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ATTACHMENT I
For purposes of the information request, the following definitions
shall apply:
"Hazardous waste" means those solid wastes identified as hazardous
waste in 40 CFR part 261, or the authorized state program in which
a facility is located whichever is more inclusive.
"RCRA Land Disposal Units" shall include landfills, land treatment
units, surface impoundments used for storage, treatment or disposal,
waste piles and class I hazardous waste underground injection wells
subject at any time to regulations or other requirements under
subtitle C of the Resource Conservation and Recovery Act.
INFORMATION REQUEST
(1) Identify each RCRA land disposal unit at your facility by
stating the common name or identifier used by the facility and type
of unit, and by identifying the unit on a photocopy of a topographic
map attached to your response.
(2) Identify each RCRA land disposal unit at your facility which
was not within the scope of a certification of compliance with
all applicable groundwater monitoring and financial responsibility
requirements and a Part B permit application, transmitted to RPA
by November 8, 1985, by indicating for each such unit the common name or
identifier used by the facility, which unit must be identified
on the topographic map identified in response to information
request number 1 above.
(3) For each RCRA land disposal unit at your facility which war,
not within the scope of a certification of compliance with all
applicable groundwater monitoring and financial responsibility
reguirements and a Part R permit application transmitted to EPA
by November 8, 1985 (these units were to be identified in. answer
No. 2 above), state when and to whom a closure plan was submitted.
[ ITEMS 4-5 are OPTIONAL]
(4) For each RCRA land disposal unit at your facility which was
not within the scope of a certification of compliance with all applicable
groundwater monitoring and financial responsibility reguirements
and a Part B permit application transmitted to EPA by November 3,
1985:
a. State the type and average guantity of hazardous wastes
placed in each on a daily (or monthly) averaqe during
the year prior to November 8, 1985.
b. State when the unit ceased receiving hazardous waste;
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c. State whether hazardous waste was placed in the unit
at any time between November 8, 1985 and December 31, 1985;
d. State how the hazardous waste introduced into the unit
before November 8, 1985 has been treated, stored or
disposed of between November 8, 1985 and December 11, 19R7>.
If waste is stored on-site, report:
(i) the type of storage;
(ii) the quantity presently in storage; and
(iii) the rate of generation.
If waste is shipped off-site for treatment, storage or
disposal, list the name and address of the receiving
facilities utilized.
e. State how you intend to treat, store or dispose of
that hazardous waste identified in "d", in 1986,
including the identity of any off-site facility to which
you intend to ship it.
(5) If at any time in the future, hazardous waste is placed
in any unit which was not authorized by Federal
law to receive hazardous waste on or after November 3, 19R5,
a report must be submitted to EPA no later than (5) five
days after placement of waste in the unit. Such report
shall include:
(a) the data on which waste was placed in to the unit;
(b) the type and amount of waste placed in to t-.he unit; and
(c) the circumstances surrounding recommencement of
operation of the unit.
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