[Federal Register Volume 66, Number 217 (Thursday, November 8, 2001)]
[Proposed Rules]
[Pages 56503-56507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27836]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[FRL-7098-3]


Proposed Revision to That Portion of the Approved Texas 
Underground Injection Control (UIC) Program Administered by the 
Railroad Commission of Texas (RRC)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: EPA received an application to revise portions of Texas' 
approved Underground Injection Control (UIC) program for Class III 
brine mining injection wells. After careful review of the application, 
EPA determined the revision to the RRC UIC program warrants approval. 
Further, the relevant UIC regulation at 40 CFR 145.32(b)(2) requires 
that whenever EPA determines the proposed program revision is 
substantial, EPA shall publish its decision in the Federal Register and 
in enough large newspapers to achieve statewide coverage to allow the 
opportunity for the public to comment for at least 30 days. By this 
notification, EPA advises the public of the nature of the proposed 
action, time-frame during which public comment will be taken, and the 
address where comments should be forwarded. The regulation provides an 
opportunity for the public to request a hearing. Such a hearing shall 
be held if there is significant public interest based on requests 
received. As such, this action advises the public of the hearing 
request process and opportunity to request a hearing.
    The application to revise portions of the State's UIC program, and 
public comments received in response to this document will provide EPA 
with the essential information necessary to approve, disapprove, or 
approve in part, the proposed revision submitted under Section 1422 of 
the Safe Drinking Water Act (SDWA). This action is being taken to 
ensure that the proposed revisions of the Texas UIC program which 
describe the statutes and regulations governing underground injection 
are incorporated by reference into the Code of Federal Regulations.

DATES: EPA will accept public comments and requests for hearing on the 
proposed revision to the approved RRC UIC program from November 8, 2001 
until the close of the business day of December 10, 2001.

ADDRESSES: Written public comments should be sent to the Environmental 
Protection Agency, Ground Water/UIC Section (6WQ-SG), 1445 Ross Avenue, 
Dallas, Texas, 75202, or electronically to [email protected]. Please 
include your name, address, and optionally, your affiliation with any 
public or private organization. Paper copies of the revision 
application, related correspondence, and documents are available for 
examination and duplication (for a nominal fee) between the hours of 
8:00 a.m. and 4:30 p.m. Monday through Friday at the EPA offices in 
Dallas.

FOR FURTHER INFORMATION CONTACT: Technical Information: Ray Leissner, 
Ground Water/UIC Section (6WQ-SG), Environmental Protection Agency, 
Region 6, (214)665-7183.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 1421 of the SDWA requires the Administrator to promulgate 
minimum requirements for effective State programs to prevent 
underground injection activities which endanger underground sources of 
drinking water (USDWs). Section 1422 of the SDWA allows states to apply 
to the EPA Administrator for authorization of primary enforcement and 
permitting authority (primacy) over injection wells within the State. 
Section 1422(b)(1)(A) provides that States shall submit to the 
Administrator an application which contains a showing satisfactory to 
the Administrator that the State has adopted and will implement an 
underground injection control program which meets the requirements of 
regulations in effect under Section 300h of the SDWA, and will keep 
such records and make such reports with respect to its activities under 
its underground injection control program as the Administrator may 
require by regulation. Section 1422(b)(1)(B)(2) requires, after 
reasonable opportunity for public comment, the Administrator to, by 
rule, approve, disapprove, or approve in part, the State UIC program.
    EPA's approval for primacy for the State of Texas for underground 
injection into Class I, III, IV, and V wells was published on January 
6, 1982 (47 FR 618), and became effective February 7, 1982. Elements of 
the State's primacy application, submitted through the Texas Department 
of Water Resources (TDWR), a predecessor to the Texas Natural Resource 
Conservation Commission (TNRCC), were approved and published in Title 
40 of the Code of Federal Regulations, 40 CFR 147.2200. Since that 
time, authority has been passed through to succeeding agencies. The 
TDWR became the Texas Water Commission (TWC) which was reorganized in 
1993 into the TNRCC, the agency currently charged with administering 
the UIC program for Class I, III, IV, and V wells.
    In addition to the TDWR receiving approval to administer the UIC 
program for Class I, III, IV and V injection wells, the RRC received 
approval to administer the UIC program for energy related injection 
activities in the State, effective May 23, 1982. These wells include 
Class II injection wells related to oil and gas exploration and 
production, and Class V geothermal wells. In 1985 the 69th Texas 
Legislature enacted legislation that transferred jurisdiction over 
Class III brine mining wells from the TNRCC's immediate predecessor, 
the TWC, to the RRC.
    Section 1422 of the SDWA and regulations at 40 CFR 145.32 allow for 
revision of approved State UIC programs when State statutory or 
regulatory authority is modified or supplemented. In accordance with 
those requirements, the RRC submitted an application to EPA for 
approval of that portion of the RRC's UIC program governing Class III 
brine mining wells. Other Class III injection wells remain regulated by 
the TNRCC.

II. Actions Related to This Rulemaking

    The RRC revision application for Class III brine mining injection 
wells was submitted for approval in its final form in May 1999. Prior 
to that submission, the RRC submitted key elements of a draft revision 
application to Region 6 for evaluation. EPA utilized the same review 
team used to evaluate the TNRCC's UIC program revision application also 
proposed for approval elsewhere in this volume. The team, consisting of 
EPA staff from the Region and EPA Headquarters, reviewed the draft 
application and found nine issues of concern. In April of 1997 EPA and

[[Page 56504]]

RRC representatives met to seek resolution of these issues. The issues 
that were raised during the evaluation period and their resolutions are 
discussed below.

(A) Protection Standard

    To be approved under Section 1422 a State must, among other things, 
show that it will implement an underground injection control program 
which meets the requirements of the federal regulations in effect under 
SDWA Section 1421. Specifically, all State programs approved under 
Section 1422 must meet the requirements of 40 CFR Part 145 and must 
have legal authority to implement each of the provisions identified in 
Section 145.11. States need not implement provisions identical to the 
provisions listed in Section 145.11, but they must implement provisions 
that are at least as stringent.
    Underground sources of drinking water (USDW) are protected under 
the UIC program and are defined in 40 CFR 144.3. That definition 
includes a clearly defined threshold of 10,000 milligrams per litre 
(mg/l) total dissolved solids (TDS). Aquifers containing water which 
supplies a public water supply (PWS) or contains a sufficient quantity 
to supply a PWS with a TDS content less than 10,000 mg/l are USDWs and 
are protected from endangerment by the SDWA and EPA regulations.
    The RRC uses the term ``fresh water'' as an equivalent regulatory 
protection standard in their UIC program. The RRC's definition of the 
term ``fresh water'' does not include a specific water quality 
threshold standard expressed in terms of TDS. Concern was raised by EPA 
over the potential to interpret the definition of ``fresh water'' to 
exclude USDWs. This primary issue formed the basis for other concerns, 
raised by EPA including fluid migration and plugging and abandonment 
standards.
    The RRC asserts that its definition of fresh water is broader in 
scope than EPA's definition of USDW and includes USDWs. Accordingly, 
the RRC provided a supplement to the Attorney General's Statement, 
signed June 2, 1998, stating the term ``fresh water'' as defined by the 
TNRCC subsumes the SDWA term ``underground sources of drinking water'' 
as defined by EPA. EPA requested additional written assurance on the 
matter and received a letter from Steven J. Seni, Ph.D., Deputy 
Director for Underground Hydrocarbon Storage and Brine Mining, dated 
October 28, 1998, sufficient to conclude the RRC's definition of fresh 
water includes USDWs as defined by the TNRCC at Title 30 of the Texas 
Administrative Code Section 331.2. TNRCC's definition includes a 
clearly defined threshold of 10,000 TDS, as found in the federal 
definition for USDWs at 40 CFR 144.3.

(B) Fluid Migration

    Section 144.12 (a) states no owner or operator shall construct, 
operate, maintain, convert, plug, abandon, or conduct any other 
injection activity that allows the movement of fluid containing any 
contaminant into USDWs, if the presence of that contaminant may cause a 
violation of any primary drinking water regulation under 40 CFR Part 
142 or may otherwise adversely affect the health of persons. The RRC's 
equivalent rule, Rule 81, prohibits injected fluid from migrating out 
of the injection zone. Both the State and Federal UIC programs have 
well construction standards that require casing and cement placement 
related to the presence of water-bearing aquifers that are protected 
under the regulations. Uncertainty was expressed by EPA that the RRC 
regulations on well casing construction were designed on the basis of 
preventing fluid migration into fresh water. At that time, given the 
existing disjunct in associating the terms ``fresh water'' and USDW, it 
was unclear to EPA that there existed a regulatory prohibition against 
fluid migration along the outside of the casing into a USDW. In 
response, the RRC provided further explanation of Commission rules 
regarding construction and mechanical testing requirements. This, 
coupled with the actions taken to relate the term ``fresh water'' to 
USDWs, were deemed by EPA to be sufficient to address this issue.

(C) Plugging and Abandonment

    Federal plugging requirements for Class III wells are addressed at 
40 CFR 146.10. Section 146.10 requires the placement of plugs within a 
well in such a manner as to allow no movement of fluid into or between 
USDWs. The RRC has similar regulatory standards designed to protect 
fresh water. EPA's concerns over proper plugging and abandonment were 
addressed with the resolution to the fresh water/USDW issue described 
earlier, and additional language within the June 2, 1998 Supplement to 
the Attorney General's Statement, verifying the RRC's authority to 
require a cement plug across the base of the deepest USDW.

(D) Permit Application Requirements

    The EPA review revealed that the RRC forms used to collect data 
from applicants for consideration by the program Director for purposes 
of evaluating an application for a Class III brine mining well permit 
were inadequate. To resolve this issue, the RRC amended its current 
permit application form (H-2) to include all appropriate data elements.

(E) Monitoring, Compliance Tracking and Enforcement Activities

    EPA's review concluded that the program description provided in the 
draft application was insufficient to conclude the RRC maintained an 
appropriate system for monitoring injected fluid characteristics, 
tracking compliance and initiating enforcement. To address all three 
concerns, the RRC submitted supplements to the original program 
description sufficient for EPA to conclude compliance and enforcement 
activities were appropriate. The RRC also agreed to place a condition 
within each Class III brine well permit to meet the federal 
requirements for injected fluid analysis.

(F) Public Participation

    EPA's review raised concerns on RRC's opportunity for public 
hearings and eligibility for participation in these hearings. The RRC 
clarified these issues in the final program description. The RRC also 
added a provision to the Attorney General's Statement clarifying that 
the Commission cannot take a position on standing that is inconsistent 
with State law. EPA finds these clarifications sufficient to meet 
federal standards.

(G) References to State Law

    The EPA review team found references to State law within the draft 
application that appeared to be out of date due to reorganization of 
the State's statutes. The RRC submitted the formal application 
containing current references.

III. Revision Package Program Elements

    All elements of the RRC's Class III brine mining injection well 
program revision application are contained within a three-ring binder 
that combines elements of the original submission in April 1992 updated 
to the final submission May 25, 1999. Major elements include: The 
Program Description, the original February 19, 1992 Attorney General's 
Statement and Supplement dated June 2, 1998, the Memorandum of 
Agreement between EPA Region 6 and appendices which include copies of 
organizational charts, State Forms, and applicable rules and 
regulations.

[[Page 56505]]

IV. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Executive Order 13045: Children's Health Protection

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have 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 the Executive Order because it 
is not economically significant as defined in E.O. 12866, and because 
UIC programs afford protection by isolating wastes underground, 
reducing the risk of exposure equally to all age groups. Therefore, 
this action does not present a disproportionate risk to children.
    The public is invited to submit or identify peer-reviewed studies 
and data, of which the agency may not be aware, that assessed results 
of early life exposure to injected wastes.

C. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
EPA has determined that the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., does not apply to this proposed rule since limited information 
collection or record-keeping would be involved. The proposed rule would 
merely update the incorporation by reference material for which any 
information collection or record-keeping requirements have already been 
approved by OMB.

D. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA applies to rules subject to notice-and-comment rulemaking 
requirements under the Administrative Procedure Act (APA) or any other 
statute. However, under Section 605(b) of the RFA, if EPA certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities, EPA is not required to prepare a 
regulatory flexibility analysis. This rule merely proposes Federal 
approval of regulations already adopted and implemented by the State of 
Texas ensuring the protection of underground sources of drinking water. 
This proposed approval only seeks to revise the existing federally 
approved Texas UIC program, described at 40 CFR 147.2201, to reflect 
current statutory, regulatory, and other key programmatic elements of 
the program. Therefore Federal approval of these revisions, would not 
result in additional regulatory burden to or directly impact small 
businesses in Texas. Pursuant to Section 605(b) of the Regulatory 
Flexibility Act, 5 U.S.C. 605(b), the Administrator, through her duly 
delegated representative, the Regional Administrator, certifies that 
this rule, if approved, will not have a significant economic impact on 
small entities in Texas.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. This 
rule, if finalized, will not have substantial direct effects on the 
State, on the relationship between the national government and the 
State, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
This rule merely proposes Federal approval of regulations already 
adopted and implemented by the State of Texas ensuring the protection 
of underground sources of drinking water. This proposed approval only 
seeks to revise the existing federally approved Texas UIC program, 
described at 40 CFR 147.2200, to reflect current statutory, regulatory, 
and other key programmatic elements of the program. Therefore this 
action will not effect the existing relationship between the national 
government and the State, or the distribution of power and 
responsibilities among the various levels of government. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Unfunded Mandates Reform Act

    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

[[Page 56506]]

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 proposed 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 because the rule imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pubic Law No. 104-113, Section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.
    EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

H. Executive Order 12898: Environmental Justice

    Pursuant to Executive Order 12898 (59 FR 7629, February 16, 1994), 
EPA has considered environmental justice related issues with regard to 
the potential impacts of this action on the environmental and health 
conditions in low-income and minority communities. Today's proposal 
provides equal public health protection to communities irrespective of 
their socioeconomic condition and demographic make-up.

I. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
The UIC program for Indian Lands is separate from the State of Texas 
UIC program proposed for revision here. The UIC program for Indian 
lands in Texas is administered by EPA and can be found at Section 
147.2205 under the Code of Federal Regulations. Thus, Executive Order 
13175 does not apply to this proposed rule.

J. Executive Order 13211 (Energy Effects)

    This proposed rule is not subject to Executive Order 13211, 
``Action Concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 147

    Environmental protection, Indian lands, Reporting and recordkeeping 
requirements, Water supply.

    Dated: October 23, 2001.
Gregg Cooke,
Regional Administrator, Region 6.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 147--STATE UNDERGROUND INJECTION CONTROL PROGRAMS

    1. The authority citation for part 147 continues to read as 
follows:

    Authority: 42 U.S.C. 300h; and 42 U.S.C. 6901 et seq.

Subpart SS--Texas

    2. Section 147.2200 is amended by adding a new paragraph (g) to 
read as follows:


Sec. 147.2200  State-administered program--Class I, III, IV, and V 
wells.

* * * * *
    (g) Requirements for Class III brine mining wells. The UIC program 
for Class III brine mining wells in the State of Texas, except for 
those wells on Indian lands, is the State program administered by the 
Railroad Commission of Texas (RRC) approved by EPA pursuant to Section 
1422 of the SDWA. Notice of this approval was published on [date of 
publication of final rule] and effective [effective date of final 
rule]. A revision, by application of the RRC, to the program was 
approved pursuant to the requirements at Sec. 145.32 on [signature date 
of final rule]. That portion of the State of Texas underground 
injection control program, approved under Section 1422 of the SDWA, and 
administered by the RRC, consists of the following elements:
    (1) Incorporation by reference. The requirements set forth in the 
State statutes and regulations cited in this paragraph (g) are hereby 
incorporated by reference and made part of the applicable UIC program 
under the SDWA for the State of Texas. This incorporation by reference 
was approved by the Director of the Federal Register on [date of FR 
Director's approval].
    (i) Vernon's Texas Codes Annotated, Water Code, Chapter 27 (The 
Injection Well Act), and Chapter 26 Section 26.131.
    (ii) Vernon's Texas Codes Annotated, Natural Resources Code, 
Chapter 91 Sections 002, 101, 103, 104, 142, 143, and 1012.
    (iii) Title 16 of the Texas Administrative Code Part 1 Chapter 3 
Sections 3.77. Rule 81. Brine Mining Injection Wells, 3.1. Rule 1. 
Organization Report; Retention of Records; Notice requirement, 3.5. 
Rule 5. Application to Drill, Deepen, Reenter, or Plug Back, 3.13 Rule 
13. Casing, Cementing, Drilling, and Completion Requirements, and 3.14 
Rule 14.

[[Page 56507]]

Plugging (Amended effective September 14, 1998).
    (2) Other laws. The following statutes and regulations, although 
not incorporated by reference except for select sections identified in 
paragraph (g) (1) of this section, are also part of the approved State-
administered UIC program.
    (i) Vernon's Texas Codes Annotated, Natural Resources Code, 
Chapters 91, 2001, and 331. (ii) Vernon's Texas Codes Annotated, 
Government Code Title 10 Chapters 2001, 552, and 311.
    (iii) General Rules of Practice and Procedure before the Railroad 
Commission of Texas.
    (3) Memorandum of Agreement. The Memorandum of Agreement for Class 
III brine mining wells between EPA Region VI and the Railroad 
Commission of Texas signed by the EPA Regional Administrator on October 
23, 2001.
    (4) Statement of legal authority. State of Texas Office of Attorney 
General's Statement for Class III brine mining injection wells signed 
by the Attorney General of Texas, February 2, 1992 and the ``Supplement 
to Attorney Generals's Statement of February 19, 1992'' signed June 2, 
1998.
    (5) Program Description. The Program Description and all final 
elements of the revised application as approved [date of publication of 
final rule].

[FR Doc. 01-27836 Filed 11-7-01; 8:45 am]
BILLING CODE 6560-50-P