[Federal Register Volume 65, Number 234 (Tuesday, December 5, 2000)]
[Proposed Rules]
[Pages 75897-75906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29647]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6904-3]


Hazardous Waste Management System; Proposed Exclusion for 
Identification and Listing Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is 
proposing to grant a petition submitted by Heritage Environmental 
Services, LLC (Heritage) to exclude (or ``delist'') treated Electric 
Arc Furnace Dust (EAFD) produced at Nucor Steel, Division of Nucor 
Corporation (Nucor) located in Crawfordsville, Indiana from the lists 
of hazardous wastes contained in Subpart D of Part 261.
    The Agency has tentatively decided to grant the exclusion based on 
an evaluation of waste-specific information provided by Heritage. This 
proposed decision, if finalized, conditionally excludes the petitioned 
waste from the requirements of hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA).
    We conclude that Heritage's petitioned waste is nonhazardous with 
respect to the original listing criteria.

DATES: Comments. We will accept public comments on this proposed 
decision until January 19, 2000. We will

[[Page 75898]]

stamp comments postmarked after the close of the comment period as 
``late.'' These ``late'' comments may not be considered in formulating 
a final decision.
    Request for Public Hearing. Your request for a hearing must reach 
EPA by December 20, 2000. The request must contain the information 
prescribed in Sec. 260.20(d).

ADDRESSES: Comments. Please send two copies of your comments to Todd 
Ramaly, Waste Management Branch (DW-8J), Environmental Protection 
Agency, 77 W. Jackson Blvd., Chicago, IL, 60604.
    Request for Public Hearing. Any person may request a hearing on 
this proposed decision by filing a request with Robert Springer, 
Director, Waste, Pesticides and Toxics Division (D-8J), Environmental 
Protection Agency, 77 W. Jackson Blvd., Chicago, IL, 60604.
    Docket. The RCRA regulatory docket for this proposed rule is 
located at the U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 
60604, and is available for viewing from 8 a.m. to 4 p.m., Monday 
through Friday, excluding federal holidays. Call Todd Ramaly at (312) 
353-9317 for appointments. The public may copy material from the 
regulatory docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
this document, contact Todd Ramaly at the address above or at 312-353-
9317.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will Heritage manage the waste if it is delisted?
    D. When would EPA finalize the proposed delisting exclusion?
    E. How would this action affect States?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did Heritage petition EPA to delist?
    B. What information and analyses did Heritage submit to support 
this petition?
    C. How does Heritage generate the petitioned waste?
    D. How did Heritage sample and analyze the data in this 
petition?
    E. What were the results of Heritage's analysis?
    F. How did EPA evaluate the risk of delisting this waste?
    G. What other factors did EPA consider in its evaluation?
    H. What did EPA conclude about Heritage's analysis?
    I. What is EPA's final evaluation of this delisting petition?
IV. Conditions for Exclusion
    A. What are the maximum allowable concentrations of hazardous 
constituents in the waste?
    B. How frequently must Heritage test the waste?
    C. What must Heritage do if the process changes?
    D. What data must Heritage submit?
    E. What happens if Heritage's waste fails to meet the conditions 
of the exclusion?
V. Regulatory Impact
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
VIII. Unfunded Mandates Reform Act
IX. Executive Order 12875
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer And Advancement Act

I. Overview Information

A. What Action Is EPA Proposing?

    The EPA is proposing to grant Heritage's petition to have treated 
EAFD from the production of steel at Nucor excluded, or delisted, from 
the definition of a hazardous waste. Heritage petitioned EPA to 
exclude, or delist, the EAFD because Heritage believes that the 
petitioned waste does not meet the RCRA criteria for which EPA 
originally listed the waste. Heritage also believes there are no 
additional constituents or factors which could cause the waste to be 
hazardous.
    Based on our review described below, we agree with the petitioner 
that the waste is nonhazardous with respect to the original listing 
criteria. Furthermore, EPA finds no additional constituents or factors 
which would cause the waste to be hazardous. If our review had found 
that the waste remained hazardous based on the factors for which we 
originally listed the waste, we would have proposed to deny the 
petition.

B. Why Is EPA Proposing To Approve This Delisting?

    We believe that the petitioned waste does not meet the criteria for 
which the waste was originally listed and does not contain other 
constituents at levels which would cause it to be hazardous, and 
therefore, should be delisted. Our tentative decision to delist waste 
treated by Heritage at Nucor's Crawfordsville facility is based on the 
description of the process which generates the waste and the analytical 
data submitted to support today's proposed rule.
    In reviewing this petition, we considered the original listing 
criteria and the additional factors required by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). See 222 of HSWA, 42 U.S.C. 6921(f), 
and 40 CFR Part 260.22 (d)(2) through (4). We evaluated the petitioned 
waste against the listing criteria and factors cited in 
Secs. 261.11(a)(2) and (3).
    We also evaluated the waste for other factors or criteria which 
could cause the waste to be hazardous. These factors included: (1) 
Whether the waste is considered acutely toxic; (2) the toxicity of the 
constituents; (3) the concentration of the constituents in the waste; 
(4) the tendency of the hazardous constituents to migrate and to 
bioaccumulate; (5) persistence of the constituents in the environment 
once released from the waste; (6) plausible and specific types of 
management of the petitioned waste; (7) the quantity of waste produced; 
and (8) waste variability.

C. How Will Heritage Manage the Waste If It Is Delisted?

    If the petitioned waste is delisted, Heritage must dispose of it in 
a Subtitle D landfill licensed or permitted by a State to manage 
industrial waste. Heritage may also dispose of the delisted waste in a 
permitted Subtitle C landfill.

D. When Would EPA Finalize the Proposed Delisting Exclusion?

    HSWA specifically requires the EPA to provide notice and an 
opportunity for comment before granting or denying a final exclusion. 
Thus, EPA will not make a final decision or grant an exclusion until it 
has addressed all timely public comments (including any at public 
hearings,) on today's proposal.
    Since this rule would reduce the existing requirements for a person 
generating hazardous wastes, the regulated community does not need a 
six-month period to come into compliance in accordance with Section 
3010 of RCRA as amended by HSWA. Therefore, the exclusion would become 
effective upon finalization.

E. How Would This Action Affect the States?

    Because EPA is issuing today's exclusion under the federal RCRA 
delisting program, only states subject to federal RCRA delisting 
provisions would be affected. This exclusion may not be effective in 
states having a dual system that includes federal RCRA requirements and 
their own requirements, or in states which have received our 
authorization to make their own delisting decisions.
    EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under

[[Page 75899]]

section 3009 of RCRA. These more stringent requirements may include a 
provision that prohibits a federally issued exclusion from taking 
effect in the state. Because a dual system (that is, both federal 
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's 
waste, we urge the petitioners to contact the state regulatory 
authority to establish the status of their waste under the state law.
    EPA has also authorized some states to administer a delisting 
program in place of the federal program, that is, to make state 
delisting decisions. Therefore, this exclusion does not apply in those 
authorized states. If Heritage transports the petitioned waste to or 
manages the waste in any state with delisting authorization, Heritage 
must obtain delisting authorization from that state before it can 
manage the waste as nonhazardous in the state.

II. Background

A. What Is the History of the Delisting Program?

    The EPA published an amended list of hazardous wastes from 
nonspecific and specific sources on January 16, 1981, as part of its 
final and interim final regulations implementing Section 3001 of RCRA. 
The EPA has amended this list several times and published it in 40 CFR 
261.31 and 261.32.
    We list these wastes as hazardous because: (1) They typically and 
frequently exhibit one or more of the characteristics of hazardous 
wastes identified in Subpart C of Part 261 (that is, ignitability, 
corrosivity, reactivity, and toxicity) or (2) they meet the criteria 
for listing contained in Secs. 261.11(a)(2) or (3).
    Individual waste streams may vary depending on raw materials, 
industrial processes, and other factors. Thus, while a waste described 
in these regulations generally is hazardous, a specific waste from an 
individual facility that meets the listing description may not be.
    For this reason, 40 CFR 260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows a person to demonstrate that 
EPA should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

B. What Is a Delisting Petition, and What Does It Require of a 
Petitioner?

    A delisting petition is a request from a facility to EPA or an 
authorized state to exclude wastes from the list of hazardous wastes. 
In a delisting petition, the petitioner must show that the waste 
generated at a particular facility do not meet any of the criteria for 
listed wastes. The criteria for which EPA lists a waste are in 40 CFR 
261.11 and in the background documents for the listed wastes.
    In addition, a petitioner must demonstrate that the waste does not 
exhibit any of the hazardous waste characteristics and must present 
sufficient information for us to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste. (See Sec. 260.22, 42 U.S.C. 6921(f) and the background 
documents for a listed waste.)
    A generator remains obligated under RCRA to confirm that its waste 
remains nonhazardous.

C. What Factors Must EPA Consider in Deciding Whether To Grant a 
Delisting Petition?

    Besides considering the criteria in 40 CFR 260.22(a), 42 U.S.C. 
6921(f), and in the background documents for the listed wastes, EPA 
must consider any factors (including additional constituents) other 
than those for which we listed the waste if these additional factors 
could cause the waste to be hazardous. (See The Hazardous and Solid 
Waste Amendments (HSWA) of 1984.)
    EPA must also consider as a hazardous waste, mixtures containing 
listed hazardous wastes and wastes derived from treatment of listed 
hazardous waste. See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), called the 
``mixture'' and ``derived-from'' rules, respectively. These wastes are 
also eligible for exclusion but remain hazardous wastes until excluded.

III. EPA's Evaluation of the Waste Information and Data

A. What Wastes Did Heritage Petition EPA To Delist?

    August 3, 1999, Heritage petitioned EPA to exclude an annual volume 
of 30,000 cubic yards of K061 EAFD generated at Nucor Steel Corporation 
located in Crawfordsville, Indiana from the list of hazardous wastes 
contained in 40 CFR 261.32. K061 is defined as ``emission control dust/
sludge from the primary production of steel in electric arc furnaces.'' 
The EPA reviews a petitioner's estimated volume and, on occasion, has 
requested a petitioner to re-evaluate the estimated waste generation 
rate. EPA accepts Heritage's estimate of annual volume of waste.

B. What Information and Analyses Did Heritage Submit To Support This 
Petition?

    To support its petition, Heritage submitted (1) descriptions and 
schematic diagrams of the EAFD treatment system; (2) analyses for 
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, 
nickel, selenium, silver, thallium, vanadium, and zinc (a) for total 
concentration, (b) by the Toxicity Characteristic Leaching Procedure 
(TCLP), SW-846 Method 1311, (c) by the Multiple Extraction Procedure 
(MEP), SW-846 Method 1312, and (d) using the TCLP and MEP procedures 
while substituting neutral and basic extraction fluids for the acidic 
extraction fluids specified in the method; (3) total constituent 
analyses for sulfide, and cyanide; (4) total constituent analyses for 
semivolatile organic compounds (SVOCs); (5) total constituent analyses 
for volatile organic compounds (VOCs); (6) total polychlorinated 
biphenyls (PCBs); and (7) total oil & grease.

C. How Is the Petitioned Waste Generated?

    The treated EAFD proposed for exclusion has been generated at Nucor 
since the facility began steel manufacturing in 1989. Carbon and 
stainless steel are manufactured from scrap metal using two electric 
arc furnaces. The exhaust from the furnaces is conveyed via a capture 
system designed to capture emissions from the furnaces and the 
associated building. Larger particles are removed in a dropout chamber 
while the capture system conveys the smaller particles for capture in 
air pollution control devices (i.e., baghouses). EAFD captured in the 
baghouses is conveyed by a screw conveyor system to two aboveground, 
cone bottom silos that accumulate the dust prior to introduction into 
the treatment process. The EAFD is conveyed from the accumulation silos 
either by screw conveyor or by gravity, to the treatment equipment.
    The computer controlled treatment system weighs a predetermined 
amount of EAFD into a mixing device. Treatment reagents are added 
proportionally in sequential manner to the mixing device. The mixing 
device thoroughly blends the EAFD and the treatment reagents in precise 
amounts based on certain dust characteristics. Once the mixing 
operation is completed, the waste is conveyed to a dump truck for 
transportation to a landfill.

D. How Did Heritage Sample and Analyze the Data in This Petition?

    In consultation with EPA Region 5, Heritage developed a list of 
analytical constituents based on a review of the EAFD and the treatment 
process. Three

[[Page 75900]]

randomly collected composite samples of treated carbon steel EAFD were 
collected for testing each week over a four week period for a total of 
twelve samples during an initial round of sampling. Each composite 
sample was comprised of four grab samples that were collected 
immediately after loading from a roll-off box containing treated EAFD. 
Heritage conducted a second round of random sampling over a four week 
period similar to the first round with the exception of stainless 
steel. A total of eight samples were collected during the second round 
of sampling and analysis. Treated stainless steel samples were 
collected on two days when the facility was generating EAFD from 
stainless steel production. Treated stainless steel samples were 
randomly collected during the two days of stainless steel production.
    To quantify the total constituent and extraction fluid 
concentrations, Heritage used the following SW-846 Methods: 7041/6010 
for antimony; 6010B for arsenic, barium, beryllium, cadmium, chromium, 
lead, nickel, selenium, silver, thallium, vanadium, and zinc; 7470 for 
mercury; 9012 for total cyanide; 9034 for total sulfide; 8082 for PCBs; 
8260 for volatile organic compounds, 8270 for semivolatile organic 
compounds, and 413.1 for Oil & Grease.
    During the initial round of sampling and analysis, Heritage 
demonstrated that the treated EAFD was stable when using the TCLP. 
During the second round of sampling and analysis, Heritage demonstrated 
that the treated EAFD is stable over a range of pH values (acidic, 
neutral, and basic). In addition to the TCLP, Heritage analyzed the 
second round of samples using a modified TCLP procedure, in which the 
prescribed TCLP extraction fluid was substituted with (1) a neutral 
extraction fluid of reagent water (ASTM Type II water) adjusted to pH 
6.5  0.05 using 1 N NaOH and (2) a basic extraction fluid 
consisting of reagent water to which high calcium hydrated lime was 
added to reach a pH of 12.0  0.05. Heritage removed 
dissolved oxygen from both the neutral and basic extraction fluids to 
less than 0.5 ppm by the addition of a stoichiometric amount of sodium 
hydrosulfite. Heritage believes it is appropriate to test stabilized 
waste using an oxygen depleted extraction fluid because it believes 
that the environment of a solid waste landfill is anaerobic or oxygen 
depleted. Furthermore, to more closely simulate the anaerobic 
environment of the landfill, Heritage performed the extraction 
procedure with zero headspace in the extraction vessel and performed 
the filtration step under a nitrogen blanket. Heritage submitted 
documentation to U.S. EPA supporting Heritage's belief that solid waste 
landfills are oxygen depleted. Heritage also submitted a summary of 
dissolved oxygen data for leachate from their two landfills in support 
of their assertion that the landfill environment is anaerobic. Heritage 
believes that the oxygen depleted environment of the buried waste in 
combination with appropriate stabilization reagents inhibits the 
mobilization of metallic species.
    Heritage analyzed four samples following the Multiple Extraction 
Procedure (MEP), SW 846 method 1320, but substituting the TCLP 
procedure, Method 1311 for the EP Tox test, Method 1310. Heritage also 
analyzed four additional samples following the MEP method, but using a 
neutral extraction fluid for all ten extractions.

E. What Were the Results of Heritage's Analysis?

    Table 1 presents the maximum total and leachate concentrations for 
14 metals, total cyanide, and total sulfide. The concentrations of 
metals in the extract are the maximum obtained in any of the three 
extraction fluids (acidic, neutral, and basic).
    Heritage analyzed one sample of petitioned waste for 57 volatile 
organic compounds, 72 semi-volatile organic compounds, and eight 
Arochlor mixtures of PCBs. There were no detections of these organic 
constituents in the treated EAFD samples. EPA does not generally verify 
submitted test data before proposing delisting decisions. The sworn 
affidavit submitted with the petition binds the petitioner to present 
truthful and accurate results. Heritage submitted a signed 
Certification of Accuracy and Responsibility statement presented in 40 
CFR 260.22(i)(12).

F. How Did EPA Evaluate the Risk of Delisting This Waste?

    For this delisting determination, we used information gathered to 
identify plausible exposure routes (i.e., ground water, surface water, 
air) for hazardous constituents present in the petitioned waste. We 
used a fate and transport model to predict the release of hazardous 
constituents from the petitioned waste once it is disposed to evaluate 
the potential impact of the petitioned waste on human health and the 
environment. To accomplish this, we used a Windows based software tool, 
the Delisting Risk Assessment Software Program (DRAS), to estimate the 
potential releases of waste constituents and to predict the risk 
associated with those releases using several EPA models including the 
EPACMTP (EPA's Composite Model for leachate migration with 
Transformation Products) fate and transport model for groundwater 
releases. For a detailed description of the DRAS program and the 
EPACMTP model, see 65 FR 58015, September 27, 2000. A technical support 
document for the DRAS program is available in the public docket.
    Revisions have been made to the DRAS program in order to improve 
the modeling which are being implemented for the first time in a draft 
exclusion. Specifically, the groundwater inhalation pathway was revised 
to reflect recent advances in modeling household inhalation from home 
water use (e.g., showering). The basis for estimating the concentration 
of constituents in the indoor air is based on the mass transfer of 
constituent from water to shower air. The initial version of DRAS used 
a fate and transport model described in T.E. McKone and K.T. Bogen's 
1992 Uncertainties in Health-Risk Assessment: An Integrated Case Study 
Based on Tetrachloroethylene in California Groundwater, Regulatory 
Toxicology and Pharmacology, 15: 86-103, which predicted the highest 
waste concentration emitted from the water into the air during a given 
water use period (e.g., 10-minute shower). This method was revised to 
more accurately predict the average concentration occurring during the 
exposure event.
    The revised model used in this analysis is based on the equations 
presented in T.E. McKone's 1987 Human Exposure to Volatile Organic 
Compounds in Household Tap Water: The Indoor Inhalation Pathway, 
Environmental Science and Technology, 21(12): 1194-1201. The shower 
model estimates the change in the shower (or bathroom or household) air 
concentration based on the mass of constituent lost by the water 
(fraction emitted or emission rate) and the air exchange rate between 
the various model compartments (shower, the rest of the bathroom, and 
the rest of the house). The resulting differential equations were 
solved using finite difference numerical integration. The average air 
concentration in the shower and bathroom are obtained by averaging the 
concentrations obtained for each time step over the duration of the 
exposure event (shower and bathroom use). These concentrations and the 
durations of daily exposure are used to estimate risk from inhalation 
exposures to residential use of groundwater. Further, improvements were 
made to more accurately reflect the transfer efficiency of the waste 
constituent from

[[Page 75901]]

the groundwater to the air compartment. The fraction emitted from the 
bathroom or household water use is a function of the input transfer 
efficiency (or maximum fraction emitted) and the driving force for mass 
transfer (the differential between air saturation concentration at air/
water interface and bulk air concentration). For example, in the shower 
compartment, the constituent emission rate is estimated from the change 
in the shower water concentration as the water falls through the air. 
The shower emissions can be modeled based on falling droplets as a 
means of estimating the surface-area-to-volume ratio for mass transfer 
and the residence time of the water in the shower compartment, assuming 
the constituent concentration in the gas phase is constant over the 
time frame of the droplet fall. By assuming the drops fall at terminal 
velocity, the surface-area-to-volume ratio and the residence time can 
be determined based solely on droplet size. A droplet size of 
approximately 1 mm (0.1 cm) was selected. The terminal velocity for the 
selected droplet size is approximately 400 cm/s. The fraction of 
constituent emitted from a water droplet at any given time can then be 
calculated.
    The equations used to predict surface volatilization from a 
landfill have been modified to more accurately reflect true waste 
concentration releases. The previous version of DRAS used Farmer's 
equation to estimate the emission rate of volatiles from the surface of 
the landfill. Farmer's equation assumes that the emission originates as 
volatiles in liquids trapped in the pore spaces between solid particles 
of waste. The volatiles evaporate from the liquid and are emitted from 
the landfill following gaseous diffusion through the solid waste 
particles and soil cover to the surface of the landfill. Farmer's 
equation requires the mole fraction of a given volatile constituent in 
the liquid in order to calculate the emission. The previous version of 
DRAS used the TCLP value of a volatile constituent in the waste to 
approximate the mole fraction of a given constituent in the pore 
liquid. Since the TCLP test includes a 20-fold dilution, the 
calculation might underestimate the available concentration of 
volatiles in freshly deposited waste. The DRAS has been revised to use 
Shen's modification of Farmer's equation, described in U.S. EPA Office 
of Air Quality Planning and Standards' 1984 Evaluation and Selection of 
Models for Estimating Air Emissions from Hazardous Waste Treatment, 
Storage, and Disposal Facilities, EPA-450/3-84-020. Shen took the 
simplified version of Farmer's equation for vapor flux from a soil 
surface and converted it to an emission rate by multiplying it by the 
exposed landfill area. Shen's modification uses the total waste 
constituent concentration (weight fraction in the bulk waste) to 
approximate the mole fraction of that constituent in the liquid phase.
    In estimating the amount of a given waste constituent that is 
released to surface water and eventually becomes freely dissolved in 
the water column, previous delisting petitions and the earlier version 
of the DRAS used the maximum observed TCLP concentration in waste as 
the total amount of the waste constituent available for erosion. 
Further, the former method assumed that all of the constituent mass 
that reached the stream, based on TCLP, became dissolved in the aqueous 
phase. Assuming complete conversion to a dissolved state is overly 
conservative and not in agreement with recent Agency methodology. In 
the revised DRAS, the total waste constituent concentration is used to 
estimate the constituent mass that reaches the stream. The portion of 
the waste constituent that becomes freely dissolved is determined by an 
estimate of partitioning between suspended solids and the aqueous 
phase. This methodology is described in U.S. EPA's 1998 Human Health 
Risk Assessment Protocol for Hazardous Waste Combustion Facilities, 
Volume One. Peer Review Draft, EPA530-D-98-001A.
    Recent developments in mercury partitioning described in the 
Mercury Report to Congress, Volume III: Fate and Transport of Mercury 
in the Environment, EPA-452/R-97-005, led to another revision to the 
surface water pathway. The DRAS was modified to account for 
bioaccumulation of methyl mercury as a result of the release of mercury 
into the surface water column. The primary human health hazard posed by 
the release of mercury into surface water is through bioaccumulation of 
methyl mercury in fish followed by human consumption of the 
contaminated fish. Biological processes in surface water cause the 
conversion, or methylation, of elemental mercury to methyl mercury. In 
accordance with the Human Health Risk Assessment Protocol for Hazardous 
Waste Combustion Facilities, Volume One. Peer Review Draft, 15% of 
mercury in the water column is assumed to be converted to methyl 
mercury. This fraction is then used, along with the current 
bioaccummulation factor, to determine the predicted concentration of 
methyl mercury in fish tissue.
    The maximum allowable leachate concentrations and the point of 
exposure (POE) concentrations of concern in groundwater are also 
presented in Table 1. For inorganic constituents, the maximum reported 
leachate concentrations for metals in the treated EAFD were well below 
the health-based levels of concern used in decision-making for 
delisting. No organic constituents were detected. We believe that it is 
inappropriate to evaluate non-detectable concentrations of a 
constituent of concern in our modeling efforts if the non-detectable 
value was obtained using the appropriate analytical method. For 
constituents which are not detected in the extract but are detected as 
a total concentration, the DRAS model requires that the detection level 
be entered along with the other data. For these constituents, the DRAS 
uses one-half of the detection level to calculate risk.

G. What Other Factors Did EPA Consider in Its Evaluation?

    We also considered the applicability of ground-water monitoring 
data during the evaluation of delisting petitions. In this case, we 
determined that it would be inappropriate to request ground-water 
monitoring data because the waste is currently disposed off-site. For a 
petitioner using off-site management, EPA believes that, in most cases, 
the ground water monitoring data would not be meaningful. Most 
commercial land disposal facilities accept waste from numerous 
generators. Any ground water contamination or leachate would be 
characteristic of the total volume of waste disposed of at the site. In 
most cases, EPA believes that it would be impossible to isolate ground 
water impacts associated with any one waste disposed of in a commercial 
landfill. Therefore, we did not request ground water monitoring data 
from Heritage. Potential impacts of the petitioned waste via air 
emission and storm water run-off are also addressed in the DRAS.

H. What Did EPA Conclude About Heritage's Analysis?

    After reviewing Heritage's petition, the EPA concludes that (1) no 
hazardous constituents are likely to be present above health based 
levels of concern in the waste generated at Nucor Steel; and (2) the 
petitioned waste does not exhibit any of the characteristics of 
ignitability, corrosivity, reactivity, or toxicity. See 40 CFR 261.21, 
261.22, 261.23, and 261.24, respectively.
    The total cumulative risk posed by the waste is approximately 
1.6 x 10 -5. Although this value exceeds the Region 5 
Delisting Program's target risk level of

[[Page 75902]]

1 x 10 -6 for delisting hazardous waste, EPA believes that 
this risk is acceptable because the estimated risk is almost entirely 
associated with a single contaminant/pathway which may be evaluated in 
more than one way. Furthermore, EPA has considered cancer risks in the 
range of 1 x 10 -4 to 1 x  10 -6 to be acceptable 
in other programs and the Region 5 Delisting Program has considered 
risks in this range acceptable if there are reasons to do so.
    In this case, exposure to carcinogenic arsenic through ingestion of 
contaminated drinking water accounted for almost all of the risk 
estimated from disposal of the petitioned waste at a Subtitle D 
landfill. If the POE target concentration was set at the Safe Drinking 
Water Act (SDWA) Maximum Contaminant Level (MCL), the maximum allowable 
waste leachate concentration would be 0.96 mg/L TCLP arsenic, over 60 
times higher than the maximum observed leachate concentration in the 
waste. EPA's July 1996 Soil Screening Guidance: User's Guide, EPA/540/
R-96/018, states that acceptable levels of contaminants in soils for 
the ground-water pathway could be derived from SDWA Maximum Contaminant 
Level Goals or MCLs. Given that the difference between the MCL for 
arsenic and the health-based POE concentration is three orders of 
magnitude and that, according to EPA's May 2000 Technical Fact Sheet: 
Proposed Rule for Arsenic in Drinking Water and Clarifications to 
Compliance and New Source Contaminants Monitoring, EPA 815-F-00-011, 
naturally occurring levels of arsenic are often higher than these 
levels, we believe that some allowance can be exercised in setting the 
allowable level for arsenic in the leachate. EPA proposes to set the 
allowable arsenic leachate level at a concentration which corresponds 
to a total waste cancer risk of 1 x 10 -4 (which is still 
within the generally acceptable range of 1Qtimes10 -4 to 
x 10 -6). Delisting levels for constituents other than 
arsenic will still be set at concentrations corresponding to the 
original Region 5 target of 1 x 10 -6. By this method, the 
delisting level for leachable arsenic in this proposed exclusion will 
be set at a value which corresponds to a POE concentration of 
approximately one-tenth of the existing MCL. The EPA has recently 
proposed to lower the arsenic MCL to one-tenth its current value and 
thus, if finalized, it would correspond well with the delisting level 
we are setting.
    The aggregate hazard index for this waste is estimated to be 0.965, 
which does not exceed the EPA Region 5 Delisting Program's target of 
1.0. The majority of this aggregate hazard index, 0.774, occurs as a 
result of migration of mercury to surface water followed by ingestion 
of fish by humans. For this reason, a delisting level for total mercury 
in the waste will also be imposed. All other delisting levels imposed 
in this exclusion are based on the concentration of constituents in 
leachate.

I. What Is EPA's Final Evaluation of This Delisting Petition?

    We have reviewed the sampling procedures used by Heritage and have 
determined they satisfy EPA criteria for collecting representative 
samples of the treated EAFD. The descriptions of the hazardous waste 
treatment process and the analytical data, together with the proposed 
verification testing requirements, provide a reasonable basis for EPA 
to grant the exclusion. We believe the data submitted in support of the 
petition show that the waste will not pose a threat when disposed of in 
a Subtitle D landfill. We therefore, propose to grant Heritage an 
exclusion for the EAFD generated at Nucor.
    If we finalize this proposed exclusion, the Agency will no longer 
regulate the petitioned waste under 40 CFR Parts 262 through 268 and 
the permitting standards of Part 270.

IV. Conditions for Exclusion

A. What Are the Maximum Allowable Concentrations of Hazardous 
Constituents in the Waste?

    The following table summarizes delisting levels for Nucor's waste. 
The EPA calculated maximum allowable concentrations in the extract for 
detected constituents using the DRAS program. The allowable leachate 
concentrations were derived either from the health-based calculation 
within the DRAS program, from MCLs, treatment technique (TT), or 
toxicity characteristic values, whichever resulted in a lower delisting 
level, with the exception of arsenic as discussed in Section III. H. of 
this preamble. In addition, the concentration of total mercury in the 
waste shall not exceed 1 mg/kg.

      Table 1.--Constituent Concentrations and DRAS Maximum Allowable Leachate and Point of Exposure Levels
----------------------------------------------------------------------------------------------------------------
                                                                                                      Maximum
                                                    Maximum \1\     Maximum \1\       Maximum        Allowable
                                                     Observed        Observed        Allowable       Point of
                   Constituent                         Total         Leachate        Leachate        Exposure
                                                   Concentration   Concentration   Concentration   Concentration
                                                      (mg/kg)       (mg/L TCLP)     (mg/L TCLP)      (mg/L in
                                                                                                   groundwater)
----------------------------------------------------------------------------------------------------------------
Antimony........................................         25               0.0082      \2\ 0.206       \2\ 0.006
Arsenic.........................................         30               0.015           0.0936          0.005
Barium..........................................         56               0.83       \2\ 55.7         \2\ 2.0
Beryllium.......................................         10               0.002       \2\ 0.416       \2\ 0.004
Cadmium.........................................        130               0.001       \2\ 0.15        \2\ 0.005
Chromium........................................      2,880               0.11        \2\ 1.55        \2\ 0.1
Lead............................................      4,600               2.4         \3\ 5           \2\ 0.015
Mercury.........................................          0.72            0.002       \2\ 0.149       \2\ 0.002
Nickel..........................................        130               0.020          28.3             0.753
Selenium........................................          8.8             0.056       \2\ 0.58        \2\ 0.05
Silver..........................................         47               0.023           3.84            0.187
Thallium........................................         30               0.05        \2\ 0.088       \2\ 0.002
Vanadium........................................        160               0.01           21.1             0.263
Zinc............................................    240,000               2.7           280              11.25
Cyanide.........................................          0.23           NR              NA           \2\ 0.2

[[Page 75903]]

 
Sulfide.........................................         31              NR              NA             NA
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest constituent concentration found in any sample and are not necessarily the
  specific levels found in any one sample.
\2\ The concentration is based on the MCL or TT action level.
\3\ The concentration is based on the toxicity characteristic level in 40 CFR 261.24.
 The constituent was not detected at the stated concentration.
NA Not applicable
NR Analysis not run.

B. How Frequently Must Heritage Test the Waste?

    Heritage must demonstrate on a monthly basis that the constituents 
of concern in the petitioned waste do not exceed the levels of concern 
in section IV.A. above. Heritage must collect two representative 
samples of the treated EAFD per month and analyze the samples using a) 
the TCLP method, b) the TCLP procedure with an extraction fluid of pH 
12  0.05 standard units and c) SW-846 Method 7470 for 
mercury. The alkaline extraction fluid will consist of reagent water to 
which high calcium hydrated lime is added to reach a pH of 12.0 
 0.05. Appropriate detection levels and quality control 
procedures are required.

C. What Must Heritage Do if the Process Changes?

    If Nucor significantly changes the manufacturing process or 
Heritage significantly changes the treatment process or the chemicals 
used in the treatment process, Heritage may not handle the EAFD 
generated from the new process under this exclusion until it has 
demonstrated to the EPA that the waste meets the levels set in Section 
IV.A and that no new hazardous constituents listed in Appendix VIII of 
40 CFR Part 261 have been introduced. Heritage must manage wastes 
generated after the process change as hazardous waste until Heritage 
has received written approval from EPA.

D. What Data Must Heritage Submit?

    Heritage must submit an annual summary of the data obtained through 
monthly verification testing to U.S. EPA Region 5, Waste Management 
Branch (DW-8J), 77 W. Jackson Blvd., Chicago, IL 60604, by February 1 
of each year for the prior calendar year. Heritage must compile, 
summarize, and maintain on site for a minimum of five years records of 
operating conditions and analytical data. Heritage must make these 
records available for inspection. All data must be accompanied by a 
signed copy of the certification statement in 40 CFR 260.22(i)(12).

E. What Happens if Heritage Fails To Meet the Conditions of the 
Exclusion?

    If Heritage violates the terms and conditions established in the 
exclusion, the Agency may start procedures to withdraw the exclusion.
    If the monthly testing of the waste does not meet the delisting 
levels described in Section IV.A above, Heritage must notify the Agency 
according to Section IV.D. The exclusion will be suspended and the 
waste managed as hazardous until Heritage has received written approval 
for the exclusion from the Agency. Heritage may provide sampling 
results that support the continuation of the delisting exclusion.
    The EPA has the authority under RCRA and the Administrative 
Procedures Act, 5 U.S.C. 551 (1978) et seq. (APA), to reopen a 
delisting decision if we receive new information indicating that the 
conditions of this exclusion have been violated.

V. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions.
    The proposal to grant an exclusion is not significant, since its 
effect, if promulgated, would be to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. This 
reduction would be achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous wastes, thus enabling a facility 
to manage its waste as nonhazardous.
    Because there is no additional impact from today's proposed rule, 
this proposal would not be a significant regulation, and no cost/
benefit assessment is required. The Office of Management and Budget 
(OMB) has also exempted this rule from the requirement for OMB review 
under Section (6) of Executive Order 12866.

VI. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an 
agency is required to publish a general notice of rulemaking for any 
proposed or final rule, it must prepare and make available for public 
comment a regulatory flexibility analysis which describes the impact of 
the rule on small entities (that is, small businesses, small 
organizations, and small governmental jurisdictions). No regulatory 
flexibility analysis is required, however, if the Administrator or 
delegated representative certifies that the rule will not have any 
impact on small entities.
    This rule, if promulgated, will not have an adverse economic impact 
on small entities since its effect would be to reduce the overall costs 
of EPA's hazardous waste regulations and would be limited to one 
facility. Accordingly, the Agency certifies that this proposed 
regulation, if promulgated, will not have a significant economic impact 
on a substantial number of small entities. This regulation, therefore, 
does not require a regulatory flexibility analysis.

VII. Paperwork Reduction Act

    Information collection and record-keeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned 
OMB Control Number 2050-0053.

[[Page 75904]]

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
EPA generally must prepare a written statement for rules with federal 
mandates that may result in estimated costs to state, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year.
    When such a statement is required for EPA rules, under section 205 
of the UMRA EPA must identify and consider alternatives, including the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. EPA must select that alternative, 
unless the Administrator explains in the final rule why it was not 
selected or it is inconsistent with law.
    Before EPA establishes regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, EPA must develop under section 203 of the UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, giving them meaningful and timely input in 
the development of EPA regulatory proposals with significant federal 
intergovernmental mandates, and informing, educating, and advising them 
on compliance with the regulatory requirements.
    The UMRA generally defines a federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon state, local, or 
tribal governments or the private sector.
    The EPA finds that today's delisting decision is deregulatory in 
nature and does not impose any enforceable duty on any state, local, or 
tribal governments or the private sector. In addition, the proposed 
delisting decision does not establish any regulatory requirements for 
small governments and so does not require a small government agency 
plan under UMRA section 203.

IX. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of state, local, and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

X. Executive Order 13045

    The Executive Order 13045 is entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997). This order applies to any rule that EPA determines (1) is 
economically significant as defined under Executive Order 12866, and 
(2) the environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This 
proposed rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866.

XI. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments.
    If the mandate is unfunded, EPA must provide to the Office of 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments ``to meaningful and timely input'' in the 
development of regulatory policies on matters that significantly or 
uniquely affect their communities of Indian tribal governments. This 
action does not involve or impose any requirements that affect Indian 
Tribes. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

XII. National Technology Transfer and Advancement Act

    Under Section 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless doing so would be 
inconsistent with applicable law or otherwise impractical.
    Voluntary consensus standards are technical standards (for example, 
materials specifications, test methods, sampling procedures, business 
practices, etc.) that are developed or adopted by voluntary consensus 
standard bodies. Where EPA does not use available and potentially 
applicable voluntary consensus standards, the Act requires the Agency 
to provide Congress, through the OMB, an explanation of the reasons for 
not using such standards.
    This rule does not establish any new technical standards, and thus 
the Agency has no need to consider the use of voluntary consensus 
standards in developing this final rule.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: November 8, 2000.
Willie H. Harris,
Acting Director, Waste, Pesticides and Toxics Division.
    For the reasons set out in the preamble, 40 CFR Part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:


    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

Appendix IX of Part 261--[Amended]

    2. In Table 2 of Appendix IX of Part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

[[Page 75905]]

Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and 260.22

* * * * *

                                 Table 2.--Wastes Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
             Facility                               Address                            Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Heritage Environmental Services,   Crawfordsville, Indiana..................  Treated electric arc furnace dust
 LLC., at Nucor Steel.                                                         (EAFD), K061, that is generated
                                                                               by Heritage Environmental
                                                                               Services, LLC (Heritage) and
                                                                               Nucor Steel, Division of Nucor,
                                                                               Corporation (Nucor) at Nucor's
                                                                               Crawfordsville, Indiana plant at
                                                                               a maximum annual rate of 30,000
                                                                               cubic yards per year and disposed
                                                                               of in a Subtitle D landfill,
                                                                               after (insert publication date of
                                                                               the final rule).
                                                                              (1) Delisting Levels:
                                                                              (A) The constituent concentrations
                                                                               measured in either of the
                                                                               extracts specified in Paragraph
                                                                               (2) may not exceed the following
                                                                               levels (mg/L): Antimony--0.206;
                                                                               Arsenic--0.0936; Barium--55.7;
                                                                               Beryllium--0.416; Cadmium--0.15;
                                                                               Chromium (total)--1.55; Lead--
                                                                               5.0; Mercury--0.149; Nickel--
                                                                               28.30; Selenium--0.58; Silver--
                                                                               3.84; Thallium--0.088; Vanadium--
                                                                               21.1; Zinc--280.0.
                                                                              (B) Total mercury may not exceed 1
                                                                               mg/kg.
                                                                              (2) Verification Testing: On a
                                                                               monthly basis, Heritage or Nucor
                                                                               must analyze two samples of the
                                                                               waste using the TCLP method, the
                                                                               TCLP procedure with an extraction
                                                                               fluid of pH 12  0.05
                                                                               standard units and SW-846 Method
                                                                               7470 for mercury. The constituent
                                                                               concentrations measured must be
                                                                               less than the delisting levels
                                                                               established in Paragraph (1).
                                                                              (3) Changes in Operating
                                                                               Conditions: If Nucor
                                                                               significantly changes the
                                                                               manufacturing process or
                                                                               chemicals used in the
                                                                               manufacturing process or Heritage
                                                                               significantly changes the
                                                                               treatment process or the
                                                                               chemicals used in the treatment
                                                                               process, Heritage or Nucor must
                                                                               notify the EPA of the changes in
                                                                               writing. Heritage and Nucor must
                                                                               handle wastes generated after the
                                                                               process change as hazardous until
                                                                               Heritage or Nucor has
                                                                               demonstrated that the wastes
                                                                               continue to meet the delisting
                                                                               levels set forth in Paragraph (1)
                                                                               and that no new hazardous
                                                                               constituents listed in Appendix
                                                                               VIII of Part 261 have been
                                                                               introduced and Heritage and Nucor
                                                                               have received written approval
                                                                               from EPA.
                                                                              (4) Data Submittals: Heritage must
                                                                               submit the data obtained through
                                                                               monthly verification testing or
                                                                               as required by other conditions
                                                                               of this rule to U.S. EPA Region
                                                                               5, Waste Management Branch (DW-
                                                                               8J), 77 W. Jackson Blvd.,
                                                                               Chicago, IL 60604 by February 1
                                                                               of each calendar year for the
                                                                               prior calendar year. Heritage or
                                                                               Nucor must compile, summarize,
                                                                               and maintain on site for a
                                                                               minimum of five years records of
                                                                               operating conditions and
                                                                               analytical data. Heritage or
                                                                               Nucor must make these records
                                                                               available for inspection. All
                                                                               data must be accompanied by a
                                                                               signed copy of the certification
                                                                               statement in 40 CFR
                                                                               260.22(i)(12).
                                                                              (5) Reopener Language--(A) If,
                                                                               anytime after disposal of the
                                                                               delisted waste, Heritage or Nucor
                                                                               possesses or is otherwise made
                                                                               aware of any data (including but
                                                                               not limited to leachate data or
                                                                               groundwater monitoring data)
                                                                               relevant to the delisted waste
                                                                               indicating that any constituent
                                                                               identified in Paragraph (1) is at
                                                                               a level in the leachate higher
                                                                               than the delisting level
                                                                               established in Paragraph (1), or
                                                                               is at a level in the groundwater
                                                                               higher than the maximum allowable
                                                                               point of exposure concentration
                                                                               predicted by the CMTP model, then
                                                                               Heritage or Nucor must report
                                                                               such data, in writing, to the
                                                                               Regional Administrator within 10
                                                                               days of first possessing or being
                                                                               made aware of that data.
                                                                              (B) Based on the information
                                                                               described in paragraph (5)(A) and
                                                                               any other information received
                                                                               from any source, the Regional
                                                                               Administrator will make a
                                                                               preliminary determination as to
                                                                               whether the reported information
                                                                               requires Agency action to protect
                                                                               human health or the environment.
                                                                               Further action may include
                                                                               suspending, or revoking the
                                                                               exclusion, or other appropriate
                                                                               response necessary to protect
                                                                               human health and the environment.
                                                                              (C) If the Regional Administrator
                                                                               determines that the reported
                                                                               information does require Agency
                                                                               action, the Regional
                                                                               Administrator will notify
                                                                               Heritage and Nucor in writing of
                                                                               the actions the Regional
                                                                               Administrator believes are
                                                                               necessary to protect human health
                                                                               and the environment. The notice
                                                                               shall include a statement of the
                                                                               proposed action and a statement
                                                                               providing Heritage and Nucor with
                                                                               an opportunity to present
                                                                               information as to why the
                                                                               proposed Agency action is not
                                                                               necessary or to suggest an
                                                                               alternative action. Heritage and
                                                                               Nucor shall have 30 days from the
                                                                               date of the Regional
                                                                               Administrator's notice to present
                                                                               the information.
                                                                              (D) If after 30 days Heritage or
                                                                               Nucor presents no further
                                                                               information, the Regional
                                                                               Administrator will issue a final
                                                                               written determination describing
                                                                               the Agency actions that are
                                                                               necessary to protect human health
                                                                               or the environment. Any required
                                                                               action described in the Regional
                                                                               Administrator's determination
                                                                               shall become effective
                                                                               immediately, unless the Regional
                                                                               Administrator provides otherwise.
 

[[Page 75906]]

 
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                                                        *
----------------------------------------------------------------------------------------------------------------

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[FR Doc. 00-29647 Filed 12-4-00; 8:45 am]
BILLING CODE 6560-50-P