United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
vvEPA
DIRECTIVE NUMBER:
9943.3
TITLE: Enforcement Strategy and Procedures for the
"Interim Prohibition" Section 9003 of SWDA
APPROVAL DATE: September 16, 1986
EFFECTIVE DATE: September 16, 1986
ORIGINATING OFFICE: OECM
Q FINAL
Q DRAFT
LEVEL OF DRAFT
— Signed by AA or OAA
D B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
S WER OS \NER OS WER
DIRECTIVE DIRECTIVE Dl
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CLCPA - Un'tedSta'wa^^ LU.ective Number |
**trM OSWER Directive Initiation Request 9943'3
2. Originator Information :
Name of Contact Person Mail Code C
Thomas L. Adams LE-134
Jnice, Telephone Code
UfctM 382-3050
3. Title Enforcement Strategy and Procedures for the Interim Prohibition syuu.Kg,) ot bWUA
4-suno,»is;»
effective until the promulgation of final new tank standards by the Agency under
§9003(e).
5. Keywords „ -__,.,.
§9003(e), SWDA, § 9001(1)
6a. Does This Directive Supersede Previous Directive(S) !
X No
b. Does it Supplement Previous Directlve(s)?
X No
7. Draft Level
X A - Signed by AA/DAA B - Signed by Office Director
Yes What directive (number, title)
Yes What directive (number, title)
C - For Review & Comment D - In Development
8. Document to be distributed to States by Headquarters?
X
Yes
H^^^^^
No
This Request Meets OSWER Directives System Format Standards'.
9. Signature of Lead Office Directives Coordinator
10. Name and Title of Approving Official
Date
Date
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
DIRECTIVE DIRECTIVE DIRECTIVE
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U "i i i c. — i 7 A 7 £ £ £N •» . n G Tt ,V £ N 7 A i_ P n; G T s..C T i O N AC L. N C 'i'
SEP I 6 J986
MEMORANDUM
SUBJECT!
FROM:
TO:
Enforcement Strategy and Procedures for the
Interim Prohibition, §9003(g) of SWDA
Thomas L. Adams, Jr.
Assstant Administrator
or Enforce
t and? Compliance Monitoring
J. mnstoti Pc^erT/AsrSTstant Administrator
Office of Solid Waste and Emergency Response
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Waste Management Division Directors,
Regions I, V, VII, VIII
Air and Waste Management Division Director,
Region II
Hazardous Waste Management Division Directors,
Regions III and VI
water Management Division Director, Region IV
Toxics and Waste Management Division Director,
Region IX
Hazardous Waste Division Director, Region X
INTRODUCTION
The Hazardous and Solid Waste Amendments of 1984 (HSWA)
added a new Subtitle I to the Solid Waste Disposal Act (SWDA,
commonly referred to as RCRA) for the regulation of underground
storage tanks. Section 9003(g) of Subtitle I, the "Interim
prohibition", establishes a statutory tank installation standard
which became effective on May 7, 1985 and will remain effective
until the promulgation of final new tank standards by the Agency
under Section 9003(e). Section 9003(g) prohibits the installation
of an underground storage tank, as defined in Section 9001,
unless such tank
(A) will prevent releases due to
corrosion or structural failure for the
operational life of the tank;
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(B) is cathodically protected against
corrosion, constructed of noncorrosive
material, steel clad with a noncorrosive
material, or designed in a manner to prevent
the release or threatened release of any stored
substance; and
(C) The material used in the construction
or lining of the tank is compatible with the
substance to be stored.V
Under Section 9003(g)(2) metal tanks may be installed without
corrosion protection
if soil tests conducted in
accordance with ASTM Standard
G57-78, or another standard
approved by the Administrator,
show that soil resistivity in an
installation location is 12,000
ohm/cm or more...,
but the remaining requirements regarding structural failure and
compatibility (paragraphs (A) and (C) above) still must be met..
The requirements apply to all installations of tanks, whether
new or used.
Effective enforcement of the Interim Prohibition is essential
to ensure that the environment is protected from leaking under-
ground storage tanks and that parties who do not comply with the
Interim Prohibition do not have a competitive advantage over
those who do. Therefore, EPA must act to make noncompliance as
unattractive as possible. Enforcement to encourage a high level
of compliance is also important because installation of more
leak-resistant tanks now will provide significant environmental
benefits, as well as reducing future costs to owner/operators for
corrective action. Finally, effective enforcement of the Interim
*/ Section 9001(1) defines underground storage tanks as "any one
or combination of tanks (including underground pipes connected
thereto) which is used to contain an accumulation of regulated
substances, and the volume of which (including the volume of the
underground pipes connected thereto) is 10 percent or more be-
neath the surface of the ground." Regulated substances include
CERCLA hazardous substances other than RCRA hazardous wastes, plus
petroleum, including crude oil (and including used oil). RCRA
hazardous wastes stored in tanks are regulated under Subtitle C.
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Prohibition will lay the groundwork for encouraging compliance
with che full regulatory program as it comes into effect. This
guidance serves several purposes: 1) to assist the Regions in
identifying violations of the Interim Prohibition through a co-
operative effort with the States; 2) to focus limited enforcement
resources on the most clear-cut or egregious violations; and
3) to provide enforcement procedures to follow in enforcing the
Interim Prohibition.
The Agency has published a final Interpretive Rule, 40 CFR
Part 280, in the Federal Register (June 4, 1986). (See Attachment
1.) This rule explains the Agency's legal interpretation of Sec-
tion 9003(g). The Interpretive Rule clearly states that some
common tank installation practices, such as installation of bare
steel tanks or tanks with an asphalt or paint coating but no ca-
thodic protection, are violations of the Interim Prohibition. As
noted above, an exception to the cathodic protection requirement
is found in S9003(g)(2), which provides that in certain soils,
corrosion protection need not be installed. The tank owner/oper-
ator has the burden of demonstrating that soil conditions meet
the standard of S9003(g)(2).
In addition, the Office of Underground Storage Tanks (OUST)
published in June, 1986, final technical guidance entitled, "The
Interim Prohibition: Guidance for Design and Installation of
Underground Storage Tanks." The guidance is designed to assist
Regional and State personnel and owner/operators in identifying
technologies that will achieve compliance with Section 9003(g).
This strategy encourages using a mix of Federal, State, and local
inspection and enforcement authorities to achieve the widest
possible monitoring of new tank installations and enforcement
actions to ensure substantive compliance with the Interim Prohibi-
tion.
IDENTIFYING NEW VIOLATIONS THROUGH STATE/FEDERAL COOPERATIVE EFFORT
A key to effective UST inspections and enforcement in support
of the Interim Prohibition is early identification of new tank
installations so that new installations can be inspected before
the tanks are placed in the ground and covered. State and/or
local government agencies are generally in a much better position
than EPA to identify and conduct some preliminary monitoring of
new installations of underground storage tanks. Some State and
local agencies may become informed of new tank installations,
either through building permit requirements, State UST notification
requirements, or other mechanisms. In many cases, underground
storage tank installations are subject to local fire codes. . Even
though Subtitle I does not provide for State or local enforcement
of Section 9003(g), State and local inspectors may be able to
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identify new tank installations and potential violations, if they
are aware of Interim Prohibition requirements.
Notifications submitted to States pursuant to §9002 of the
existence of an underground storage tank may also provide useful
information on tank installations in violation of the Interim
Prohibition. Some owner/operators may have submitted notifica-
tions for bare steel tanks which were installed after May 7,
1985, the effective date of the Interim Prohibition, and States
should be encouraged to identify such notifications.
This approach is dependent on developing networks with State
and local governments. Regions are encouraged to work with State
and local agencies, including local fire mars halls, to identify
new tank installations and potential violations, based on notifi-
cations, permit applications, or observations in the field.
Efforts should be focused in areas where there are many new
tank installations or in environmentally sensitive areas.
States which have independent inspection authority may
conduct inspections and refer violations to EPA for enforce-
ment action. State and local inspectors nay gather evidence
and serve as witnesses for EPA. States and citizens may also
be able to enforce the'Interim Prohibition through citizen
suits (see discussion, infra, at p.9). In addition, State
UST grant funds may be used to fund inspections where the
State has adequate inspection authority.
If the State does not have independent authority or re-
sources to conduct inspections, they should be encouraged to
inform EPA of new installations so that EPA may conduct in-
spections. Facilities selected by EPA for inspection may be
based on a random sample of new installations, installations
in environmentally sensitive areas, or installations identified
efcther by State or Agency personnel or by citizen tips as po-
tential violations of the Interim Prohibition. EPA and each
State should reach agreement on the preferred approach within
a State and on- a process for notifying EPA where Agency in-
volvement is-appropriate. A sample letter to State/local
agencies explaining the* Interim Prohibition and encouraging a
cooperative approach to identifying violations and enforcement
is attached (Attachment 2).
Regions should also develop a communications plan to dis-
seminate information on the Interim Prohibition as widely as
possible to tank wholesale and retail distributors as well as
tank users. Tank sellers may also be helpful in identifying
new installations.
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The Office of Waste Programs 'Enforcement (OWPE) is exploring
several approaches to make inspection resources available to
the Regions by the beginning of FY 1987. OWPE ia drafting an
inspections checklist which we hope to make available soon.
OUST has developed a video tape on the Interim Prohibition in
coordination with the National Fire Protection Association. For
access to the tape, contact Pamela Harris in OUST (FTS 475-4614).
ENFORCEMENT INITIATIVE FOCUS
This section discusses, in order of priority, types of
Interim Prohibition violations which should be the focus of
enforcement actions by the Agency. This discussion is designed
to guide the Regions in deciding how best to allocate limited
resources in taking enforcement actions to correct violations of
the Interim Prohibition. Notwithstanding the following scheme,
situations that may pose threats to human health or the environment
are the highest priority for enforcement action (e.g., leaking
tanks near drinking water supplies). Sections 3013 and 7003 of
RCRA may be used to compel investigation and, in the case of
$7003, cleanup of spills .or leaks from underground tanks.' Such
actions should be considered regardless of whether the evidence
indicates that enforcement action for violation of the Interim
Prohibition is appropriate.
•'Enforcement actions should initially focus on the most
clear-cut violations of the Interim Prohibition, e.g.. installa-
tion of bare steel tanks or Installation of steel tanks coated
with paint or asphalt but lacking any cathodic protection in
areas where the soil resistivity is less than 12,000 ohm-cm.
Evidence of a violation may include testimony and affidavits of
witnesses who saw the tank prior to and during installation;
written reports of EPA, State or local officials who inspected
the tank installation; and information received as the result of
Section 9005 requests for information.
The second priority for enforcement actions are those viola-
tions which are clear but for which substantially more evidence
is required to prove the violation. Examples include (1) instal-
lation of a fiberglass reinforced plastic (FRP) tank which sub-
sequently ia found to be leaking due to structural failure of the
tank, and (2) installation of a tank that is later shown to leak
and the leak can be shown to have been caused by incompatibility
of the tank with the substance stored. The same types of evidence
described above for high-priority violations may be used. The
evidence must be sufficient to show that the leaks came from the
tanks in question and that those tanks leaked due to violations
of the Interim Prohibition, e.g.. failure to prevent releases due
to structural failure for the operational life of the tank, and
incompatibility of the material used in the construction or
lining of the tank with the substance stored.
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A third type of situation exists where EPA finds that the
installation is insdequate to prevent releases for the operational
life of the tank, but where the tank has not yet leaked. Viola-
tions in this category should be considered as a lower priority
for enforcement actions than the first two categories. Examples
include installation of a steel tank with inadequate cathodic
protection such that a leak due to corrosion is likely to occur
during the operational life of the tank; or an FRP tank installed
with improper backfill (e.g.. particles too large), where a leak
is likely to occur during the operational life of the tank. Ex-
pert testimony will be required in such cases to present evidence
that the tank is likely to leak in the future due to the failure
of the tank's design, construction, and/or installation to pre-
vent leaks resulting from corrosion, structural failure, and/or
incompatibility of the tank with the substance stored.
ENFORCEMENT AUTHORITY AND PROCEDURES
Section 9006 of Subtitle I provides both administrative and
judicial enforcement authority for enforcement of the Interim Pro-
hibition, as well as for enforcement of the UST program generally.
The relief provided in Section 9006 is essentially identical to
that in Section 3008(a) of Subtitle C. Section 9006 provides in
pertinent part
(a) Compliance Orders.-
(1) Except as provided in paragraph (2), whenever
••on the basis of any information, the Administrator de-
termines that any person is in violation of any re-
quirement of this subtitle, the Administrator inay is-
sue an order requiring compliance within a reasonable
specified time period or the Administrator may com-
mence a civil action in the United States district
court in which the violation occurred for appropriate
relief, including a temporary or permanent injunction.
• • • •
(3) If a violator fails to comply with an order
under, this subsection within the time specified in
the ord«r, he shall be liable for a civil penalty
of not more than 925,000 for each day of continued
noncompliance.
• • • •
(d) Civil Penalties.-
• • • •
(2) Any owner or operator of an underground
storage tank who fails to comply with-
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77- J ..
-7-
(C) Che provisions of section 9003(g) (enti-
tled "Interim Prohibition")
shall be subject to a civil penalty not to exceed
$10,000 for each tank for each day of violation.
The Regions may enforce the Interim Prohibition adminis-
tratively through compliance orders issued pursuant to Section
9006(a), which are signed by the Regional Administrator (or as
redelegated within the Region). Such orders parallel Section
3008(a) orders procedurally: an administrative complaint Is
issued and becomes final in 30 days unless the respondent requests
a hearing. Similarly, the hearing requirements will be satisfied
by the form of hearing provided in the Consolidated Rules of
Practice, 40 CFR Part 22.
The Agency is in the process of amending the Consolidated
Rules of Practice to include Section 9006(a) administrative
actions. Until that process has been completed, each administra-
tive complaint should append the 40 CFR Part 22 procedures and
state that the appended procedures apply to the case. Regions
should consult with the Office of Waste Programs Enforcement (OWPE)
if they wish to issue a unilateral order. In situations which -
can be resolved through negotiations, a consent order should be
issued under S9006(a). Section 9006(a) orders may be modeled
after S3008(a) orders at this time. A model Section 9006(a)
order for violations of the Interim Prohibition is currently
being developed by OWPE and OECM-Waste.
Section 9006(a) also provides judicial enforcement authority.
The same referral procedures apply for Section 9006 actions as
for other RCRA actions. OECM-Waste will distribute a model lit-
igation report in the near future to assist the Regions in pre-
paring appropriate UST judicial enforcement actions. When expe-
ditious action is required, referrals may be made orally to Head-
quarters. The Region must follow up the oral referral with a
written referral within a week and should be prepared to provide
support activities (preparation of affidavits, drafting of plead-
ings, etc.) to the U.S. Attorney's office. Regions .should forward
civil referrals to the Office of Enforcement and Compliance Moni-
toring, with a copy to the Director, RCRA Enforcement Division,
OWPE.
While initial contacts with the tank owner/operator seeking
voluntary compliance are encouraged, especially in cases where
the owner/operator may be unaware of the requirements, the Agency
should take formal enforcement action as appropriate. Where a
tank has already been installed, preliminary written contact with
the owner/operator should be made before any formal enforcement
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action is taken. A request for information may be sent under the
authority of Section 9005 to the tank owner or operator explaining
the requirements of the Interim Prohibition and seeking informa-
tion concerning the facility's compliance with S9003(g). Attach-
ment III is an example of such a letter. Section 9005 is similar
to Section 3007 of Subtitle C and may be used to request documen-
tation concerning the type of tank installed and the presence or
absence of cathodic protection. It can also be used to pinpoint
the source of a regulated substance leak. EPA can require the
owner/operators of the suspected UST leak source(s) to test their
tanks for leaks. Such information would be particularly useful in
the second category of violations, discussed in the previous section,
Administrative enforcement is generally preferable in situa-
tions where the tank has already been installed (i.e., where time
is not of the essence), including cases where the tank owner/oper-
ator agrees to take whatever action is needed to cone into com-
pliance. Clearly, if an UST is found to be leaking, immediate
enforcement action should be considered under Sections 3013 or
7003, as appropriate.
In cases where the owner/operator agrees to comply with the
Interim Prohibition after the installation has been completed,
the agreement must be reflected in a consent order or consent *
decree under Section 9006(a). In cases where the owner/operator
refuses to agree to comply, the Region should proceed directly to
unilateral enforcement action, i.e.. issue an administrative
order or refer a judicial action to Headquarters.
In cases where a tank is about to be installed or is being
installed in violation of RCRA S9003(g), it may not always be
feasible to seek voluntary compliance before taking enforcement
action. Limited informal contact with Che tank owner/operator to
obtain compliance prior to enforcement action is encouraged, but
should not be undertaken if it will delay the taking of enforce-
ment action seeking to halt the illegal tank installations.
In situations where the tank has not yet been completely
installed,'quick enforcement action is crucial because of the
short tine required to .complete installation of a tank. Clearly,
enforcement action prior to tank installation is preferred
because compliance is easier to achieve if the tank is still
exposed and accessible. In such cases, judicial enforcement
action to obtain quick relief is appropriate. Accordingly, the
Regions should refer such cases to obtain temporary restraining
orders and preliminary and permanent injunctions enjoining the
tank owner/operator from installing the tank(s) in violation of
S9003(g). Judicial enforcement in these instances is more appro-
priate because compliance orders issued under Section 9006(a)
do not become final for 30 days and then only become final if the
respondent does not request a hearing.
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In addition, under the citizen suit provision, actions may
be brought to enforce S9003(g) through RCRA S7002(a) (1) (A) .V
Although there is a recent holding in a Clean Water Act case
which finds that a State is not an appropriate plaintiff in a
citizen suit brought under the Clean Water Act, there are also
contrary court rulings.^/ Further, some States have already
filed suits to enforce other provisions of RCRA under the RCRA
citizen suit provision. Regions should encourage States and
localities to enforce their own comparable authorities where
applicable.
In accordance with the Agency policy on press releases,
issuance of administrative orders and filing of judicial actions
under §9006 should be accompanied by a press release to keep the
regulated community aware of our activities.
For further information concerning this guidance, contact
Elizabeth Cox (OECM-Waste Division) at FTS 382-3118 or Libby
Clemens (OWPE) at FTS 475-9313.
Attachments (3)
cc: UST Coordinators, Regions I-X
^7RCRA section 7002(a)(1)(A) provides that "any person may
commence a civil action ... against any person ... who is
alleged to be in violation of any ... prohibition ... which has
become effective pursuant to this Act." The Interim Prohibition
became effective on May 7, 1985.
**/ Section 304 of the Clean Air Act contains a citizen suit
provision which is nearly identical to Section 7002(a)(1)(A)
of RCRA. In Hancock v. Train. 426 U.S. 167, 196 (1976), the U.S.
Supreme Court stated that che Clean Air Act citizen suit provision
(Section 304) is a means for States to enforce against a violation
by a Federal facility. In addition, Section 505 of the Clean
Water Act authorizes actions by citizens, which includes persons
(Sections 505(g), 502(5)). In Commonwealth of Massachusetts v.
U.S. Veterans Administration. 541 F. 2d 119 (1st Cir. 1976), the
court held that a State may seek to enforce the provisions of the
Clean Water Act through its citizen suit provision. See also,
People of State of Illinois v. Outboard Marine Corp.. 619 F. 2d
623, 631(7th Cir.,1980) vacated and remanded on other grounds,
453 U.S. 917, (1981). and National Wildlife Federation v. Ruckels-
haus. 99 F.R.D. 558, 560 (D.N.J. 1983).But see, State of Cali-
fornia v. Department of the Navy, 631 F. Supp. 584 (N.D. Cal.
1986), where a district court held that a State is not an appro-
priate plaintiff under 5505 of the Clean Water Act.
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The Interim Prohibition is a relatively simple
requirement that the regulated community r.ust adhere to.
RCRA authorizes EPA to enforce the prohibition but does not
provide for direct authorization to the States. However,
identifying and inspecting even a small protion of new tank
installations is a task beyond EPA's limited resources.
State and local governments are in a much better position to
become aware of new tank installations through UST programs,
fire code regulations, or through other inspection programs.
Therefore we are seeking your assistance to identify new
installations and/or potential violations, where EPA should
become involved.
There are several ways which your agency may become aware of
new tank installations: through notifications under an UST
program or a building permit requirement, or through field
inspectors who may identify potential violations of the
interim prohibition in the course of their inspection rounds.
When you have appropriate inspection authorities, you may
conduct initial inspections and refer any potential violations
to EPA for enforcement action. Another approach could be to
identify environmentally sensitive areas that would benefit
from a stronger monitoring presence, and develop a cooperative
approach with our office to expand inspections of new tank
installations in that area.
We encourage state and local governments with independent
authorities to use those authorities to compel adequate new
tank•installations. In addition, where State and local
inspectors find violations of the Interim Prohibition, you
may bring citizen suits under RCRA Section 7002(a)(1)(A),
42 U.S.C. S6972(a)(l)(A).
I recognize the constraints on State resources as well as EPA's.
However, I hope that we could develop a cooperative system
for making the best use of information that may routinely be
available in your office, and for expanding the scope of EPA
and State/local inspections of new installations. This will
build a visible Federal/State effort to enforce the Interim
Prohibition and provide incentives for compliance with all
phases of US.T regulatory programs. It is also possible to
use a portion of the UST State program grant to provide
support for the interim prohibition.
Please contact to discuss the Interim Prohibition
and potential EPA and State/local enforcement and inspection
efforts. We also will be pleased to provide technical
information and assistance concerning new tank installations.
Sincerely,
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Wednesday
June 4, 1986
Part IV
Environmental
Protection Agency
40 CFR Part 2M
Hazardous Watt*; Interim Prohibition
Against Instillation of Unprotected
Underground Storagt Tanks; Intaiprttiv*
Ruto
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20418 . FedenJ Rey»ter / Vol. 51. No. 107 / Wednesday. June 4. 1968 / Rde> and'RegulaDon*
ENVIRONMENTAL WOTECDON
AGENCY
•otoction
Ag
ACT
8UMMAXY: New Subtitle I of the
Resource Conservation and Recovery
Act (RCRA). at amended. provide* for
the regulation of underground storage
tanks. Section 9003(g) of Subtitle I
establishes interim requirements for
underground storage tanks that an
installed between May 7. 1085 and the
effective date of new tank standard*
required to be promulgated by EPA
under section 9003(e). This notice seU
forth EPA's interpretation of Section
9003(j).
tOW SubaUt L HCAOB eanill M MT OM or
oMbiMM* of taakj (indwdme. miiliniiiMO' f
jMOj of r«fulJt«d nbitiaeo*. Mri *•
VOIUM of wfcfctj (oKludlo*. ott vatvmt of *•
•iiliij nl at*** opnoicud &w»te) It to
or nor* b*n«*<» BM mflta of tbt sroua4 swA
(A| Ttrm or nadnnaJ t«B* of 1.109 ptloM or
I*M ctpAdiy uMd I* (tonai motor tmi tm
(Vl T«nk «Md for nonai bctnaf oil for
e»n«umpon MM oo Ik* *TMUM« »
Kazardou* Wa*t«; taterpfettra Rut* on
the '-**rlm Pioftftrfflon AosJnsrt
Ina ion of Unpf«»»ct»d
Ur •-
PC* run-Hot
Pamela Harris. (202) 342-4/14 or Steven
Wey. (202) 475-8328. or the ROW
Superfund Hotline at (800) 424-9346
(toll free or (202) 3*2-3000 in
Washington. DC.
•umCMCMTAJtV MPOftMATIOIC
I latroductioa: The Hazardous aad Solid
WasH* Amendment* of 1994
On November 6. 1984. the President
signed into lew the Hazardous and Solid
Waste Amendments of 1964. Public Law
96-616. These Amendment! extend tad
strengthen the prevision* of the Solid
Waste Disposal Act of 1970 as amended
by RCRA. A major portion of this new
legislation, Subtitle L provides for the
development aad Implementation of a
regulatory program for underground
storage tank* used to contain regulated
•dbstances. which include petroleum
and substajaces defined as hazardous
substance* under section 101(14) of th*
Comprehensive Environmental
Response. Compensation aad Liability
Act (OERCLA).*
Among tka provisionj of new Subtitle
. .L-tectien 0003 require* EPA to .- • -;
' proTBulsiFe regulations pertaiatng te me '
detecoon. prevention. and correction of .
reiesMi froa underground stora^v taaks
a* may b« necessary to protect humaa
health and the environment' Sertioa. ,• ;
9003(c] sets forth minimum rcqaasaxats
that must be promulgated for aH ' • • .'• • s
underground storage tank* aad section '.
9003(e) sets forth additional
requirement* that must be promulgjtid
for new underground storage Uaks.
Regulations under both section* 9009 (c)
and (e) for tanks containing petroleum
products are to be effective by May 9, .
1987. With respect to tanks cootsJaiaj -*
baurdous substances, regulations trndar"
section 9003( e) for new tanks are to be '
effective by November 6. lav aad . • •
regulations under section 90D3(c) hr ; '•'•
existiag tanks are to be effective by '
November 8. 1968.
UnQl new tank standards pronrulgatad
under section 9003(e) become effee«v%
section 9003(g)(l) establishes tnUrlm ...
requirements for any tank iastalled oa
or after May 7.198S. That sectioa .
provide* as followt:
. . . (N]e penoa auy iniuD aa undcrsrouBo!
storsrt uoc for the purpOM of •lerlasj
rtfulsud tubtuacM ualew »ueb Uai
(wtttfior of smfie or double walled
(A) »UI prrvoet relesM* due to oorroiioa
or (tructural lailur* for the operauoaal life of
ttetaak:
(C Sirf oc tae«.
(Dl MptliM ftdUtjr (ladudiai t*tkona| BBM)
01 TW Nttvil Cu RptUa* Softty Act of UBS.
(HI Tkt KuArtfow Uqvd Kptlia* S»fo«y Aa et
?»(«UACAw «W. 01 *o*i. or
(li) WhicB I* u •VMUU plpviiAt (tdBly
dm fuu Uwt uup^nnbto w <*»
oat oT U« rvsimd • • d*wo (I) or (ill of
0B Swf M» »pniiii<*M«t pit pearf or
(F) Sura wear or w**t§ *tur ooUoeMn
(HI U* sonil]
(A| Aay OMOOUM* «tfl
It* rnmpnbarnni bwooitMUl I
CoM«MM»m oatf Uab«ll9 Act of USD (tart Ml
oiriiKlirn toy *iihin*n» roful*to*1 M 4 1
(I) fwolni*. Md*du«
01
ntw* uri pr»«Mii (SO
k) oMtoorf
(Bl U lUiliodJctUy proi»ci*d «iitn*t
CDrrotioe. eaajmeud of Boocorrooiv*
ttnti ite*l did wlib « Doocorro«tv*
•utt.til or dmprt la i ataocr to prevtnt
• tD4 r*!e*M or thnittoed nit«M of «ay
•iortd (ubtuooe: aad
.- {C) tn« B*ttr1*J iL»od la tht eoaitnjetioa or
OBini of the unk I* corned bit with ih*
•subtuac* to b« (land
• As a limited exception, section
9003(g)(2) allows the Initallation of
tanks without correiion protection in
soil with a resistivity of 12,000 ohm-cm
or more. Under that provUion. soil tests
BUS! be conducted in accordance with
Americaa Sodety for Testing and
.Materials (ASTM) Standard C37-78.
U Purpoe* of the Interpretive Rule
An interpretive rule is a statement
Issued by aa agency to advise the public
of the agency's construction of the
statute* aad rules that It administers. An
interpretive rule simply construe* the
language of the statute or regulation aad
does not impose additional obligations.
, Such rules are exempt from the notice
aad comment requirements of the
.Administrative Procedure* Act 8 U.S.C.
8S3(b)(A) (1982). A substantive rule.
such as the new tank standards
authorized by section 9003(e). is a rait
that is issued by an agency pursuant to
statutory authority that implement* the
statute. EPA Intends this nooce to be aa
interpretive rule, not a substantive rule.
Sectioe 9003(g] establishes statutory
requirements that took effect oa May 7.
1985 without prior action oa the part of
EPA. Several of the requirements set
forth under sectioa 9003(|) are la the
form of performance standards. EPA
believes that the interpretive rule
clarifies obligations of the regulated
community la complying with the
Interim prohibition. The rule also puts
the regulated commuaity oa notice of
tht drcumataacM uader which tht
Agency will proceed with enforcement
for aoaooBplnDOt*
Wff«e* vtior or MhMirtia* ooll*.
m. Otbt* lUated OA AetfvlliM
OB July IS. im EPA codified tht
statutory language of section 9003{sj ia
la regulirtioaa tt 40 CFt ml
EPA ia prepariag a guldaaee
document that Is available la draft form
to the Regional OBcta. This document
discusses methods aad technologies for
preventing releases froa tanks due to
oorrosioa. structural failure, or tat
stortg* of materials that art
lacompetible with the taaks1
eoastruetiofi or Uaiag. This guidance will
assist tank user* ta determiaing
effective approaches to Boot the
performance staadards m section
-------
Federal Ea^ta to*'/ Vol 31. Ko ic? / Wedaetday, jure 4 1965 / RuJts ajxi Re^sona 20419
90*3(1)
Many nf ttx ttor*f« Itni an^wkms
no* conutnec1 le SubHir*!. (adorfia|
tection 9003(j). had* Aelr trigwe m a btfi
introd-jcad by Sena tor rXmAq|« an
Febroary S. 1884 t* an amendment to
the Safe Drinking Water Act. 130 Coeg,
ftec. S»2» (Feb. 0. WM]- Among tbwe
provtaSeru ww a nqritoertt **< EPA
promulgate new taAk Kai»dardi wfthtn
ninemo*th*oftb*d**<7feri«cBBeelof .
the propo4«d aawMteenti. Suck
•fandarda war* to mdwd* a ptoHbition
on bare sieel lank* Id at S302B. The
provitiont eslaMi*a«d an exception
from the bare tteel tank ban "whew tbt
Adcuniatrttor fade, there (a nnaal
danger of corraiion." Id. In detcribenf
that provision. Senator Dftrenbergtr
etated that InaUUatioo of common bet
lest adequate tanfc« thox aude of
bare Heel— would b* prohibited unices
the bydrogeology of th* area U lucb that
there ii a minimal danger of corrosion."
Id. atS2027.
On July 25. 19S4. Senator Durenbecger
offered a modified version of hit storage
tank provitiona ai in amendment to
RCRA. 130 Cong. Rec. S91M (July a.
1954). Hut amendment wat paaaad by
the Senate. Id at Sam. tn thJi modified
vcnioa the deadllna for— new tank
atandardi wat extended and the bar*
alee! ban was convened Into ar interim
requirement that new tankj b« Initallcd
in accordance with enforced national
coatensus coda." Thij raquimant waa
to go into affect ninety day* afUr the bill
wai patavd aad remain enacttvt until
EPA promulgated new tank itaadard*.
Id at San«3-M.
On th« HOUM of Reprwaniatfvea tida,
amendaenu to RCRA wan paitedbut
did not contain provitioat {or tht
regulatioo of underground itorag* Unki.
130 Cooc. R*c K91M (Novaobtr a.
1983). On AugM«t 10. 19M. bowevet the
House patted an underground itor*|t
^ank bill aa an amendnwrrt to CZPCLA.
130 Cong Rec. HB93& H90T (Aaajvat M,
19ft4). Tbt Houaa bill contain**) an
interim prohtbtooo ibd pimrtdod M
follows:
Until the effective data oftba rtfulatfoaa
proaulfited by the Adauuantor uadar
awtwtcuoa (a) and alter 110 daye after the
date of the enactment of thia ntle. ao penoa
aMy iaatall or befia uaiag an ondarffBuad
aionfc taak for the purpot* of itonntj
BAurdou* eubttafleat ualett inch tank, of
either ttngie or double wtU coutructtoa. la
cathodjcaily protected againat conoaion. .
ooBJtnicted of ooacorroeiv* aMtenal. atoal-
clad wua a noncorroaive aatenal which
would prtvtat eorroaiov for the operaooeal
afe of the tank, or contained IB a manner
o*»4Bed to prevent the releiM or threatened
iM of any ttortd haxardoua tubataaoe
and toJeti mail &••*• tkc o>tv«n«J
lh« oon>Tuoioo or Uaini of iba <*«k «
eocTp*£blt w*h At lubklutu to b« itonrd
id «1 KSBI.
Subtequendy. a Con/erenca
Commlttte wat formed to eonrtder the
RCRA amendmeott patted by me
Senate and the Houtc. Althougb the
HOUK CE^CLA bill wat nol offidally
under conaidenb'on by the RCRA
Conference Coesittee. the confertaa
adopted the language of that biffs
interim prohibition with aevaraJ-
aigruflcint modiflcationa. 190 Cong. Rec.
H11121 (Oct 3.19M). Tbete
modiftcaBont Included the requiraaient
that every new tank prevent releaaas
due to "StnctoraJ faihira" for it»
"operational We* (lection *30S(|ffAD
and the exception tivin uunutlon
praHctioo it^uiiemfnti for tuiks
located m toU wtth a rciialtvity of 12.000
ohm/on or more. The Conference)
Report described me reported provltioa
aa fouo^rir
FoUewuc inaetataL ta* avtUllatiaB «rf
b«rt tteel untt. i-«. lhot< whick provide
little or oo prottcfiaa t|tiait corrouoa. wfD
be preKtbttH «tU me Adtolaimtor
i far inertiattan. Ben tt»tl i
may be eatalM (penrfiaa, proew
E7A fwrtiaOaae.) oah
eonducue1 toil taau tftow KMitavwy at liOtO
oKat/ca or men. T&U pronwa rvtiQM the
provitioa in the Seoate amaadmeat which
prohibit! l&juBtQoa of ban tteel laaka
except IB etatet thai enforce a aatioaal
ceoMOAtu eoae.
130 Cong. Rtc. 11139 (OcL 3.19M).
Tht bill at reported by tha
Conferac* Ccoinat*. altimttoly
patted both house* aad waa sigBtd by
tht Pretidnl OB Novtabcr 1 tttC
The legitbtive history of section
9003(f] rtvaais thai, as orsjiaalry
intndiMtd ia tbt Seaata. the sactiea
was aiawd at prtvtatinf the iaatallamoB
of steel tank systsm* witkAtf oorromoa
prattetioa. Ultunstaly, howtw. section
9003(g) was expended aot otJy to
prohMtt iattollatiaB of bart steal toafca,
out also to iMUda rtquiremonia
ptrtsiatng to tbt structural integrity of
all atwly uwuikd taaki aad tko
eompatibility of tbt substances stored
with tht mattrfala used in tbt
construction and lining of such tanks.
V. EPA's lalarprttattoa of
EPA reviewed the etatutory lanfuag*
of Mcnon 9003(4) and ita Itfitlaflvt
hiatory. Baaed upon thia review. EPA'a
conduiioni art att forth below.
Section 9003(|) (codified as 40 CTR
Z80.2) etublitbat thra* reouiramanu
that must be Mtaafitd by all
underground itoragc tank* (including
underground pi pet eerm«tred to the
tankt) inttalled benrven Uay 7. iv&s
and the effectr** date af nrw Lank
ttandtrdi prosa^'^f under RCRA
tecfeon 90D3(*l. wiik th« exception of
tanki qutltfViog for tha exemption frora
corrotioti protactton rvquimoentt under
aection »OG3(|)f7}. TVn requireinentt
are: (1) That the tank and underground
piping b* dcttgned. constructed, and
initaOed to present releate* due to
corrotion for tbc operational life of the
Unk and the piping-. (2) that the tank and
underground piping bw deiigned.
conatroeted. and mr»Ued to prevent
releatet du* to ttrocmral failure for the
operational lift of the tank and the
piping; and (3) that the material! u«ed in
the conatnction or lining of the tank and
iU underground piping be compatible
with the aubatanc* to b* atored in the
Tht first two of the abovt
reouiraaxau art established by aection
9003(g)(l)(A). which premdet that tankj
must "pre»ent rtlaaaea due to comawo
or itrucraral failure for the oaaevtional
lift of the tank." Tht third r*o.uirem*m
ia etUc4»htd by ttctm 90Q3(g)(lttQ.
In addition, aectioo «S(|)U*BJ atts
forth mnuaua r»o,niremeoti (or taak
dengn aad eonatrartoev Uadcr aection
9003(gKD(B). Umks m«*t b* either
cathodBsalr/ protoetad agviajt corroeion.
conatructtd of aonoccrotrve aatarial.
stttl dad with a ooaeorrotivt matertal
or designed • a manner to prevent tht
releate or thrtattnad rtlaaat of any
stored subat
In addition to ctthodJcally protected
tanks and tanks constructtd or dad
with norxorfosirt matarialj. atetion
9003(i)fl)(B) would permtt tht use of
other type* of tanks and protective
matures if they art "dtslfntd ia a
manner to prtvent tbt release or
threatened rtltaat of any stored
substanca.' Inttrastod parties may
consult with EPA OB a cast-by-cast
basis concerning tht effectivenett of
particular techncJogies for preventing
rtltaaaa.
Thtrt art stvtral exsmplts of tanks
that do not satisfy tht requirement of
section 9003(j)(lKA) that thty prevent
rtltasts dut to corrosion for tht
operational lift of tht tank. A stttl tank
whose only corrosion protection is a
coating of noncorroaive materials that ia
applied in such a way that it will not
prevent rtltasts dut to corrosion for the
operstional lift of tht tank it not
adtquatt. Similarly, a cathodieally
protected tank wheat cathodic
protection ia not designed to prtvent
rtleasts for tht operstional lift of the
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2CM20 Federal Regiiter / Vol. 51. No. 107 / Wednesday, fune 4, 19M / RuJes and Re&idatjons
tank will not be deemed to hive
satisfied this requirement
Paint aad aipbalt costing* trt aot
adequate for cathodic protection.
Asphalt paintt an soluble in • aufflber
of regulated substances that an
normally stored la tank*, including
aolvenu and hydrocarbons, such as
gasoline. Application* of both asphalt
paints and lead paiau are thin, easily
damaged during installation and easily
worn away duhn| use. They do not
provide • complete seal for the tan*.
•uch paint or aipbalt coatings do aot
provide eorroiioo resistance for th«
operational life of the tank and,
therefore, do not comply with the
interim prohibition.
Tank* that sstisfy the requirement of
aectioB 9003(g)(l)(A) to prevent releases
due to corrosion oust still satisfy the
requirements that they prevent release*
due lo "atrucrurmJ failure" and that the
materials used In the construction of the
tank be compatible with the substances
to be stored. For example, a tank
constructed of ooneorrosive material
that Is subject to structural failure
because of it* design or installation
would not satisfy the requirements of
section 9003(j)(l). Similarly. • uak
whose construction materials an not
compatible with the product to b* stored
would not satisfy the requirements of
aection 9003(j)(l) because, althougn it
satisfies the corrosion protection
requirement of section 9003(g)(l)(A). It
does not satisfy the compatibility
requirement of section 9003(jM')(C).
Section 9003(j)(i) provides taat "DO
person may install an underground
storage tank" unless such »"> satisfies
the requirements of sections 9003(j)(l)
(A). (B). tnd (C). EPA interpret* the term
"DO person may install an underground
storage tank" to encompass any persona
responsible for having a tank installed.
including among others owners,
operators and installers. EPA alao
Interprets section 9003(j) as applying to
all new installations, including
installation of previously used tank* and
to any new installation of underground
piping associated with underground
tanki rubfect to the prohibition. When
the new taiuUiton It only piping, only
the new piping would be subject to the
standards in section 9003(g).
With respect to the exemption from
corrosion protection requirement*.
provided by section 9003(g}(2). EPA
Interprets tail provision as permitting
the installation of a tank without
corrosion protection if a person, prior to
installation, demonstrates by means of
•oil testing conducted in accordance
with ASTM Standard G97-M that the
soil at the location where the tank if to
be installed does not have a resistivity
of less than IZOOO ohm-cm.
A tank exempted from corrosion
protection requirements under this
section, however, must still satisfy the
requirement that the tank be designed,
constructed, and installed to prevent
nleases due to the structural failure of
the tank and that the materials used in
the construction or U"i"f of the tank be
compatible with the substances to be
stored in the tank. Thus, for example. •
•teel tank without any type of corrosion
protection may be installed at a location
where the soil continues la have •
resistivity of 11000 ohm-cm during the
operational life of the tank. However, if
the tank is constructed or installed so
that it suffers structural failure or I* not
compatible with the stored product and
releases Its contents, the tank would aot
be in compliance with section 9003CI).
VI Summary of Supporting Analysee
1. fxecvbve Orris? 222H
Executive Order 12291 [46 FR13103.
February 9. 1901] requires that a
regulatory agency determine whether a
new regulation will be "major"
regulation and b* so, that a Regulatory
Impact Analysis be conducted. A major
rule ia deftna-d as regulation which la
likely to result in:
(1) An annual effect on the economy
of fl 00 million or more:
(2) A major increase m coats or price*
for consumers, individual Industriee.
Federal State, and local government
ageacies. or geographic region*:
(3) Significant advene effects on
competition, employment. invettm
productivity. Innovation, or on the
ability of United Sutei-baied
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
Tb t rule do' lot have any of the
Isr vts lister ve. The Agen^« did
c tact an t -'— «c» sis of.
t tnU*rim p •
hazardous V . : >m:
Final Codific* jthe
Federal Keglsu ,_> .1ft .t
Regulatory Impact Analysis Concludes
that upper bound coat estimates for the
Interim Prohibition an under $10 million
per year.
The interpretive rule has been
submitted to the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291.
t Regulatory fltx/bitity Act
Pursuant to the Regulatory Flexibility
Act ft U.S.C an •/ see> whenever an
agency publishes • general notice of
rulemaking for any proposed or final
rule, it must pnpan and make available
for public comment a regulatory , '
flexibility analysis that describes the
impact of the rule on small entires (Le..
small businesses, small organisations. -•
•mall governmental jurisdictions). Tne
Administrator may certify, however. ^^
that the rule will not have a significant
economic impact on a substantial
number of small entitie*.
The Regulatory Impact Analysis for
the Final Codification Rule alao
eddnsses the impact of the Interim
Prohibition on small entities and
conclude* that the Interim Prohibition
will not have a significant economic
impact on a substantial number of small
entitie*. This interpretive rule doe* not
therefore, requin a regulatory flexibility
analytia.
Date* May & 1ML
UasCYVeaiea,
Adoututtntttr.
(m Doc B*-UOB Piled
-------
SAMPLE LETTER TO STATE/LOCAL GOVERNMENT AGENCIES
State UST Agency
Sfate RCRA o*: Groundwater Agency
County UST Agency
Dear ,
As you are aware, the 1984 amendments to the Resource Conservat
and Recovery Act (RCRA) added a new Subtitle I for the regulation
of underground storage tanks (UST). Section 9003(g) of Subtitle
I, 42 U.S.C.S , the Interim Prohibition, establishes a statutory
tank installation standard pending the promulgation of final new
tank standards by the U.S. Environmental Protection Agency under
Section 9003(e). Section 9003(g) prohibits the installation of
an underground storage tank, as defined in Section 9001, unless
such tank
•
(A) will prevent releases due to corrosion or
structural failure for the operational life of the tank;
(B) is cathodically protected against corrosion,
constructed of noncorrosive material, steel clad with
a noncorrosive material, or designed in a manner to
prevent the release or threatened release of any
stored substance; and
(C) the material used in the construction or lining
of the tank is compatible with the substance to be stored. -
Under Section 9003(g)(2), metal tanks may be installed
without corrosion protection,
if soil tests conducted in accordance
with ASTM Standard G57-78, or another
approved by the Administrator, show
that soil resistivity in an instal-
lation location is 12,000 ohm/cm or
more...,
but the remaining requirements regarding stuctural failure and
compatibility (paragraphs (A) and (C) above) still must be met.
The Agency has published an Interpretive Rule in the Federal
Register setting forth its legal interpretation of Section 9003(g)
(see Attachment).
Our estimates are somewhat imprecise, but there are approximately
one million storage tanks subject to Subtitle I and approximately
40,000 new installations of tanks subject to the Interim
Prohibition each year. This is an enormous regulated universe,
and the success of the UST regulatory program will depend, in
large part, on State and local governments taking an active
role in program implementation.
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4WD-WC
,' UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
r»«-v . R E 610 N IV
^f"P l8 1985 . 345COUHTUAMO VT»teT
• ATLANTA CCO«CiA J0385
RETURN RECEIPT RSQJbbTLD
Mr. Wendell Roberson
Roberson Farms
FRO *3
Tifton, Georgia 31794
Dear Mr. Rbberson
It has come to the attention of this agency that your facility nay
have installed or may plan to install a bare metal underground storage
tank. This tank would allegedly contain a regulated substance defined by
40 CFR 280.1. If you have installed such a tank, it is a violation of
40 CFR 280.2.
Until national standards are adopted, no new underground storage
tank may be installed for the purpose of storing a regulated substance
unless such tank (whether of single or double wall construction):
a) will prevent releases due to corrosion or structural failure for
the operational life of the tank;
*
b) is cathodically protected against corrosion* constructed of
noncorrosive material, steel clad with a noncorrosive material, or designed
in a manner to prevent the release or threatened, release of any stored
substance; and
e) the material used in the construction or lining of the tank is
compatible with the substance to be stored.
Any owner who installs a tank which does not meet the above standards
is in violation of the standards and is subject to an administrative order
requiring compliance and a civil penalty not to exceed $10,000 for each
tank for each day of violation* - . •
This letter is to advise you of your responsibility to comply with the
requirements concerning tank installation and to solicit the required
information on the design and use of the tank. Pursuant to $9005 of the
Resource Conservation and Recovery Act (RCRA) Subpart I, you are hereby
required to submit whatever documents or information you may possess
pertaining to your actual or proposed tank installation and its contents
within fifteen (15) days of your receipt by certified mail of this letter.
Failure to submit the required information within the specified time will
subject your facility to administrative or judicial enforcement action.
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-2-
Please submit the requested informaticn to:
Mr. Janes H. Scarbrough, Chief
Residuals Management Branch
U. S. Environmental Protection Agency
345 Courtland Street
Atlanta,. Georgia 30365
*
. Enclosed with this letter is a copy of the applicable regulations
to aid your understanding of the basis for this action. If you should
desire an informal conference to discuss the requested information,
please contact Mr. Allan Antley at 404/881-4552.
Sincerely yours,
l/j. Winston Porter
Assistant Administrator of Solid Waste
and Emergency Response
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i ., i, LA Vi : K w
•
• INSPECTIONS. MONTTOniNC. AND TESTING
JOOS. (eJ -FURNISHING INFORM ATlON.-For the purposes of develoain? or
j • tissisting in~ihc'l3c'vcTopm'cnt of any rerulntions. conducting any study, or enforcvr; t.le
provisions of this subtitle, any owner or operator of an underground storage t&nk (or tnv
lark subject to study under section 3000 !J>aMs useO for storing rcguloreC su6>:anc«)
jhaJJ .upon request.of any officer, employee or representative of Ihc Environnenisl
P r o t ccllon Agencyj Cu \j dcsicnoteu by Ifrc Ad'minlal r a lor, or upon rcqurtl of »ny duly
cd^fficer^ c_rnqjoyce. or rcprcscntoUve^ofli jiotc witrTq/i approved pr>;rsn'
informati'en"fe1oting~lo such looks. ihei'r"is&ociatcd equipment, ine\f conier.vt.
conduct monitoring or lesUng, nnd pcrmil such officer at ftll rc&sonoBle limes 10 h«ve
• cecsa to, ofio_to copy aU re_cofQS, re
aurv to such LOOKS. For the purposes et
t . or a^sisUnc~Tn"iHc dcvclopm'efu'of *»y regulaUen, ecnducUng any^tudy. Of enforcer*,
' employees, or rcprcacntativcs nre aullieriien
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