[Federal Register Volume 62, Number 167 (Thursday, August 28, 1997)]
[Rules and Regulations]
[Pages 45568-45573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22949]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268 and 271

[FRL-5884-2]
RIN 2050-AD38


Second Emergency Revision of the Land Disposal Restrictions (LDR) 
Treatment Standards for Listed Hazardous Wastes From Carbamate 
Production

AGENCY: Environmental Protection Agency (EPA, the Agency).

ACTION: Immediate final rule.

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SUMMARY: This second emergency revision extends the time that the 
alternative carbamate treatment

[[Page 45569]]

standards are in place by one additional year. The Agency is taking 
this action because analytical problems associated with the measurement 
of constituent levels in carbamate waste residues have not yet been 
resolved.

EFFECTIVE DATES: This action becomes effective on August 21, 1997.

ADDRESSES: Supporting materials are available for viewing in the RCRA 
Information Center (RIC), located at Crystal Gateway One, 1235 
Jefferson Davis Highway, First Floor, Arlington, VA. The Docket 
Identification Number is F-96-P32F-FFFFF. The RIC is open from 9 a.m. 
to 4 p.m., Monday through Friday, except for Federal holidays. The 
public must make an appointment to review docket materials by calling 
(703) 603-9230. The public may copy a maximum of 100 pages from any 
regulatory document at no cost. Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800-424-9346 (toll-free) or 703-412-9810 locally. For 
technical information on the carbamate treatment standards, contact 
Shaun McGarvey, phone 703-308-8603. For information on analytic 
problems associated with carbamate wastes, contact John Austin on 703-
308-0436. For information on State Authorization, contact Wayne Roepe 
on 703-308-8630. For specific information about this rule, contact 
Rhonda Minnick on 703-308-8771.

SUPPLEMENTARY INFORMATION:

Availability of rule on Internet

    This Federal Register notice is available on the Internet System 
through the EPA Public Web Page at: http://www.epa.gov/EPA-WASTE/. For 
the text of the notice, choose: Year/Month/Day.

I. Background

    The Phase III final rule established treatment standards for 
hazardous wastes associated with carbamate pesticide production (61 FR 
15583; see appendix for a list of regulated constituents). The 
treatment standards were expressed as concentration levels that had to 
be monitored in the treatment residue. All constituents were placed on 
the Universal Treatment Standard (UTS) list. These regulations were 
issued on April 8, 1996 (61 FR 15663), and corrected June 28, 1996 (61 
FR 33683). The prohibition on land disposal of carbamate wastes was 
effective July 8, 1996 and the prohibition on radioactive waste mixed 
with newly listed or identified wastes, including soil and debris, was 
effective April 8, 1998.
    On November 1, 1996, the United States Court of Appeals for the 
District of Columbia Circuit, in Dithiocarbamate Task Force v. EPA (98 
F.3d 1394), vacated certain of the listings of carbamate wastes. 
Accordingly, EPA removed from the Code of Federal Regulations those 
listings vacated by the court and all references to those listings. EPA 
notes that substantial portions of the decisions made in the carbamate 
listing rule remain in effect and are not changed by the court's 
ruling. See 62 FR 32973, June 17, 1997.
    The court vacated the listings of 24 U wastes, one K-waste (K160), 
and three of the K-wastes (K156, K157 and K158) only to the extent they 
apply to the chemical, 3-iodo-2-propynyl n-butylcarbamate (IPBC). 
Twenty-three of the vacated U wastes consisted of all the 
dithiocarbamates and thiocarbamates. The other vacated U waste was 
IPBC, a carbamate.
    This notice applies only to the carbamate wastes that remain listed 
as hazardous wastes. Carbamates that were regulated as UHCs were 
unaffected by the courts decision, because the decision didn't deal 
with adding carbamates as underlying hazardous constituents.
    After promulgation of the Phase III rule on April 8, 1996, but 
shortly before the treatment standards took effect on July 8, 1996, 
several companies in the waste management industry contacted EPA, 
reporting that laboratory standards were not available for some of the 
carbamate waste constituents. The Agency confirmed this assertion, and 
realized that the waste management industry was unintentionally left in 
a quandary: they were required to certify compliance with the carbamate 
waste treatment standards, but commercial laboratories were only able 
to perform the necessary analyses for some of the newly regulated 
constituents. Thus, it was impossible to document whether the treatment 
standards were or were not achieved for those constituents which could 
not be analyzed.
    The problem was complicated by the LDR rules that pertain to 
regulation of underlying hazardous constituents (UHCs) in 
characteristic (or formerly characteristic) hazardous wastes. Because 
new constituents were added to the UTS list, they thus became potential 
UHCs. Whenever a generator sends a characteristic (or formerly-
characteristic) waste to a treatment facility, they must identify for 
treatment not only the hazardous characteristic, but also all UHCs 
reasonably expected to be present in the waste at the point of 
generation. (See 40 CFR 268.2(i).) Because of the lack of laboratory 
standards for all carbamate constituents, generators could not in all 
cases identify the UHCs reasonably expected to be present in their 
wastes, and treatment facilities and EPA could not monitor compliance 
with the standards for the carbamate UHCs. Generators also reported 
that commercial laboratories were unable to provide the recommended 
methods.

II. The Revised Carbamate Treatment Standards

    In an emergency final rule promulgated on August 26, 1996 (61 FR 
43924), EPA established temporary alternative treatment standards for 
carbamate wastes for a one-year period. EPA believed that one year was 
sufficient time for laboratory standards to be developed and for 
laboratories to take appropriate steps to do the necessary analyses for 
these wastes.
    The Phase III rule required treatment of carbamate wastes to UTS 
levels. The temporary alternative standards promulgated in the August 
26, 1996 rule provided waste handlers a choice of meeting the Phase III 
treatment levels, or of using a specified treatment technology, the 
specified standard being the technology upon whose performance the 
numerical treatment standard was based. (See 61 FR 43925, August 26, 
1996.) Combustion was the specified technology for nonwastewaters; 
combustion, biodegradation, chemical oxidation, and carbon adsorption 
are the specified technologies for wastewaters. If the wastes were 
treated by a specified technology, there was no requirement to measure 
compliance with treatment levels, thus avoiding the analytical 
problems.

III. Today's Extension of the Alternative Treatment Standard Provision

    EPA is extending the alternative treatment standards for carbamate 
wastes for one additional year. EPA and the regulated community 
initially expected that laboratory standards would be developed during 
the past year, but that appears not to be the case for all carbamate 
constituents. Furthermore, there appears to be confusion as to which 
analytical methods can be used to measure carbamate constituents. (See 
memorandum from Kevin Igli, Waste Management, Inc., to James Berlow, 
EPA, dated July 16, 1997, in the docket for this rule.)
    The waste treatment industry has begun a testing project that will 
determine whether existing analytical methods can be extended to apply 
to all carbamate constituents. (See August 8,

[[Page 45570]]

1997 letter from Kevin Igli, Waste Management, Inc., to Michael 
Petruska, EPA.) The Agency believes that much can be learned from this 
study. EPA estimates it will take four to six months to conduct this 
study, and then additional time to review the results. If the study 
verifies that analytical problems remain, EPA may issue an appropriate 
notice seeking comment, and then a final rule modifying the standard. 
This would all take approximately 1 year. If EPA finds there are no 
serious analytical difficulties, however, the Agency may consider 
reinstating the numeric standard sooner than 1 year.
    Since the analytical problems which necessitated the 1996 emergency 
rule remain, however, EPA is allowing the alternative treatment 
standards to remain in place until the study is completed and the 
results factored into a final decision on whether to retain the 
alternative treatment standards permanently or to revert to the 
exclusive numerical standards promulgated in the Phase III rule. (The 
Agency's general preference is to establish numerical treatment 
standards for hazardous wastes whenever possible because they provide 
maximum flexibility in selecting treatment technologies, while ensuring 
that the technologies are optimally operated to achieve full waste 
treatment.)
    Under the alternative treatment standards, combustion is the 
specified technology for nonwastewaters; combustion, biodegradation, 
chemical oxidation, and carbon adsorption are the specified 
technologies for wastewaters. (Descriptions of these treatment 
technologies can be found in 40 CFR 268.42, Table 1.) If the wastes are 
treated by a specified technology, there is no requirement to measure 
compliance with treatment levels.
    Because the performance of these Best Demonstrated Available 
Technologies (BDATs) were the basis of the originally promulgated 
treatment levels, EPA believes that temporarily allowing the use of 
these BDATs for an additional year--without a requirement to monitor 
the treatment residues--fully satisfies the core requirement of the LDR 
program: Hazardous wastes must be treated to minimize threats to human 
health and the environment before they are land disposed.
    The Agency is also suspending for an additional year inclusion of 
carbamate waste constituents on the UTS list at 40 CFR 268.48. Not 
including these constituents on the UTS list eliminates the need to 
identify and treat them, and monitor compliance with their UTS levels, 
when they are present as UHCs in characteristic hazardous wastes. The 
Agency believes that suspending the carbamate constituents from the UTS 
list will not have adverse environmental consequences because it will 
be in effect for only one additional year. Furthermore, EPA found in 
the Phase III rulemaking that these constituents are unlikely to occur 
in wastes generated outside the carbamate production industry (61 FR 
15584, April 8, 1996), so today's rule may not cause an adverse 
environmental impact because carbamate constituents simply are not 
present in most characteristic hazardous wastes.

IV. Good Cause for Foregoing Notice and Comment Requirements

    This final rule is being issued without notice and opportunity for 
public comment. Under the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(B), an agency may forgo notice and comment in promulgating a 
rule when, according to the APA, the agency for good cause finds (and 
incorporates the finding and a brief statement of the reasons for that 
finding into the rules issues) that notice and public comments 
procedures are impracticable, unnecessary, or contrary to the public 
interest. For the reasons set forth below, EPA believes it has good 
cause to find that notice and comment would be unnecessary and contrary 
to the public interest, and therefore is not required by the APA.
    First, although both industry and EPA have endeavored to resolve 
the problem during the past year, analytic laboratory standards will 
continue to be unavailable for a number of the carbamate waste 
constituents covered by the Phase III rule. Members of the regulated 
community thus cannot fully document compliance with the requirements 
of the treatment standard through no fault of their own. For the same 
reason, EPA cannot ascertain compliance for these constituents.
    In addition, this unavailability of analytic standards is likely to 
create a serious disruption in the production of at least some 
carbamate pesticides. Although the treatment of the restricted 
carbamate wastes through biodegradation, carbon adsorption, chemical 
oxidation (for wastewaters), and combustion is both possible and highly 
effective, certification that the treatment actually meets the 
treatment standard levels may not be possible in many instances. 
Without the certification, disposal of the residuals left after 
treatment cannot legally occur. The Agency believes this situation will 
quickly impede production of certain pesticides, since legal disposal 
of some carbamate wastes will no longer be available. See Steel 
Manufacturers Ass'n v. EPA, 27 F.3d 642, 646-47 (D.C. Cir. 1994) 
(absence of a treatment standard providing a legal means of disposing 
of wastes from a process is equivalent to shutting down that process). 
With regard to the suspension of certain carbamates as underlying 
hazardous constituents in characteristic (and formerly-characteristic) 
prohibited wastes, the Agency believes that the same practical 
difficulties described for listed carbamate wastes would be created.
    Furthermore, the Agency believes it is necessary for industry to 
complete a study project that will provide answers to the questions 
raised about the availability of analytical standards and which 
analytical methods are appropriate for carbamate wastes. This study 
will require a number of months to be completed, and then the Agency 
must make a decision about whether or not to retain the alternative 
treatment standards.
    This extension of the emergency rule preserves the core of the 
promulgated Phase III rule by ensuring that the restricted carbamate 
wastes are treated by a BDAT before they are land disposed. At the same 
time, EPA is eliminating the situation which could halt production of 
carbamate pesticides, and allowing time for a study project to be 
completed. For these reasons, EPA believes there is good cause to issue 
the rule immediately without prior notice and opportunity for comment.

V. Rationale for Immediate Effective Date

    The Agency believes that the regulated community is in the 
untenable position of having to comply with treatment standards but 
lacks analytical methods to measure compliance. To avoid this result, 
therefore, this extension needs to take effect essentially immediately. 
In addition, today's rule does not create additional regulatory 
requirements; rather, it provides greater flexibility for compliance 
with treatment standards. For these reasons, EPA finds that good cause 
exists under section 3010(b)(3) of RCRA, 42 U.S.C. 6903(b)(3), to 
provide for an immediate effective date. See generally 61 FR at 15662. 
For the same reasons, EPA finds that there is good cause under 5 U.S.C. 
553(b)(3) to waive the requirement that regulations be published at 
least 30 days before they become effective.

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VI. Analysis Under Executive Order 12866, the Unfunded Mandates 
Reform Act of 1995, the Regulatory Flexibility Act, and the 
Paperwork Reduction Act

    This final rule does not create new regulatory requirements; 
rather, it provides a temporary alternative means to comply with the 
treatment standards already promulgated. Therefore, this final rule is 
not a ``significant'' regulatory action within the meaning of Executive 
Order 12866.
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, 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 $100 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.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector, and does not impose any Federal 
mandate on State, local, or tribal governments or the private sector 
within the meaning of the Unfunded Mandates Reform Act of 1995. This 
final rule does not create new regulatory requirements; rather, it 
provides a temporary alternative means to comply with the treatment 
standards already promulgated. EPA has 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. Thus, today's rule is 
not subject to the requirements of sections 202 and 205 of the UMRA. 
For the same reasons, EPA has determined that this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments.
    EPA has determined that this rule will not have a significant 
economic impact on a substantial number of small entities. EPA 
recognizes that small entities may own and/or operate carbamate 
pesticide manufacturing operations or TSDFs that will become subject to 
the requirements of the land disposal restrictions program. However, 
since such small entities are already subject to the requirements in 40 
CFR part 268, this rule does not impose any additional burdens on these 
small entities, because this rule does not create new regulatory 
requirements. Rather, it provides a temporary alternative means to 
comply with the treatment standards already promulgated.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this final rule will not have a significant 
economic impact on a substantial number of small entities. It does not 
impose any new burdens on small entities. This rule, therefore, does 
not require a regulatory flexibility analysis.
    Today's rule does not contain any new information collection 
requirements subject to OMB review under the Paperwork Reduction Act of 
1980, 44 U.S.C. 3501 et seq. Because there are no new information 
collection requirements in today's rule, an Information Collection 
Request has not been prepared.

VII. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedure Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.

VIII. State Authority

A. Applicability of Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA program within the State. Following 
authorization, EPA retains enforcement authority under sections 3008, 
3013, and 7003 of RCRA, although authorized States have primary 
enforcement responsibility. The standards and requirements for 
authorization are found in 40 CFR part 271.
    Prior to HSWA, a State with final authorization administered its 
hazardous waste program in lieu of EPA administering the Federal 
program in that State. The Federal requirements no longer applied in 
the authorized State, and EPA could not issue permits for any 
facilities that the State was authorized to permit. When new, more 
stringent Federal requirements were promulgated or enacted, the State 
was obliged to enact equivalent authority within specified time frames. 
New Federal requirements did not take effect in an authorized State 
until the State adopted the requirements as State law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new 
requirements and prohibitions imposed by HSWA take effect in authorized 
States at the same time that they take effect in unauthorized States. 
EPA is directed to carry out these requirements and prohibitions in 
authorized States, including the issuance of permits, until the State 
is granted authorization to do so.
    Today's rule is being promulgated pursuant to section 3004(m), of 
RCRA (42 U.S.C. 6924(m)). Therefore, the Agency is adding today's rule 
to Table 1 in 40 CFR 271.1(j), which identifies the Federal program 
requirements that are promulgated pursuant to HSWA. States may apply 
for final authorization for the HSWA provisions in Table 1, as 
discussed in the following section of this preamble.

B. Effect on State Authorization

    As noted above, EPA will implement today's rule in authorized 
States until they modify their programs to adopt these rules and the 
modification is approved by EPA. Because today's rule is promulgated 
pursuant to HSWA, a State submitting a program modification may apply 
to receive interim or final

[[Page 45572]]

authorization under RCRA section 3006(g)(2) or 3006(b), respectively, 
on the basis of requirements that are substantially equivalent or 
equivalent to EPA's. The procedures and schedule for State program 
modifications for final authorization are described in 40 CFR 271.21. 
All HSWA interim authorizations will expire January 1, 2003. (See 
section 271.24 and 57 FR 60132, December 18, 1992.)
    In general, EPA recommends that States pay close attention to the 
sunset date for today's rule. If States are adopting the Phase III rule 
before the sunset date of today's rule, and applying for authorization, 
EPA strongly encourages these States to adopt today's rule when they 
adopt the April 8, 1996, Phase III rule. States should note that after 
the sunset date, the provisions of this rule may be considered less 
stringent if the Agency decides to disallow use of the alternative 
treatment standards. If so, States would be barred under section 3009 
of RCRA from adopting this rule after August 26, 1998, and would not be 
able to receive authorization for it. States that are planning to adopt 
and become authorized for today's rule and the Phase III rule should 
factor the sunset date into their rulemaking activities.

Appendix to the Preamble--List of Regulated Constituents

K156--Organic waste (including heavy ends, still bottoms, light 
ends, spent solvents, filtrates, and decantates) from the production 
of carbamates and carbamoyl oximes. (This listing does not apply to 
wastes generated from the manufacture of 3-iodo-2-propynyl n-
butylcarbamate)
K157--Wastewaters (including scrubber waters, condenser waters, 
washwaters, and separation waters) from the production of carbamates 
and carbamoyl oximes. (This listing does not apply to wastes 
generated from the manufacture of 3-iodo-2-propynyl n-
butylcarbamate.)
K158--Bag house dust, and filter/separation solids from the 
production of carbamates and carbamoyl oximes. (This listing does 
not apply to wastes generated from the manufacture of 3-iodo-2-
propynyl n-butylcarbamate.)
K159--Organics from the treatment of thiocarbamate wastes.
K161--Purification solids (including filtration, evaporation, and 
centrifugation solids), baghouse dust, and floor sweepings from the 
production of dithiocarbamate acids and their salts. (This listing 
does not include K125 or K126.)
P203  Aldicarb sulfone
P127  Carbofuran
P189  Carbosulfan
P202  m-Cumenyl methylcarbamate
P191  Dimetilan
P198  Formetanate hydrochloride
P197  Formparanate
P192  Isolan
P196  Manganese dimethyldithiocarbamate
P199  Methiocarb
P066  Methomyl
P190  Metolcarb
P128  Mexacarbate
P194  Oxamyl
P204  Physostigmine
P188  Physostigmine salicylate
P201  Promecarb
P185  Tirpate
P205  Ziram
U394  A2213
U280  Barban
U278  Bendiocarb
U364  Bendiocarb phenol
U271  Benomyl
U279  Carbaryl
U372  Carbendazim
U367  Carbofuran phenol
U395  Diethylene glycol, dicarbamate
U373  Propham
U411  Propoxur
U387  Prosulfocarb
U410  Thiodicarb
U409  Thiophanate-methyl
U389  Triallate
U404  Triethylamine

    Additional chemicals from carbamate production regulated in 40 
CFR 268.48
Butylate
EPTC
Dithiocarbamates, total
Molinate
Pebulate
o-Phenylenediamine
Vernolate

List of Subjects

40 CFR part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR part 271

    Environmental protection, Administrative practice and procedure, 
Hazardous materials transportation, Hazardous waste, Penalties, 
Reporting and recordkeeping requirements.

    Dated: August 21, 1997.
Carol M. Browner,
Administrator.
    For the reasons set forth in the preamble, title 40, chapter I of 
the Code of Federal Regulations is amended as follows:

PART 268--LAND DISPOSAL RESTRICTIONS

    1. The authority citation for part 268 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

SUBPART D--TREATMENT STANDARDS

    2. Section 268.40 is amended by revising the dates in paragraph (g) 
to read ``Between August 26, 1997 and August 26, 1998''.
    3. Section 268.48(a) is amended by revising the dates in footnote 6 
to the table--Universal Treatment Standards to read ``Between August 
26, 1997 and August 26, 1998''.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    4. The authority citation for part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 9602; 33 U.S.C. 1321 and 1361.

SUBPART A--REQUIREMENTS FOR FINAL AUTHORIZATION

    5. Section 271.1(j) is amended by adding the following entry to 
Table 1 in chronological order by date of publication in the Federal 
Register to read as follows:


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

                                   Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984                                  
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         Promulgation date                Title of Regulation               Federal Register reference                       Effective date             
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
August 28, 1997....................  Second Emergency Revision of   62 FR [Insert page numbers]..............  August 26, 1997 until August 26, 1998.   
                                      the Land Disposal                                                                                                 
                                      Restrictions (LDR) Phase III                                                                                      
                                      Treatment Standards for                                                                                           
                                      Listed Hazardous Wastes from                                                                                      
                                      Carbamate Production.                                                                                             
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
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[FR Doc. 97-22949 Filed 8-27-97; 8:45 am]
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