[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54713-54717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22170]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2008-0455; SW-FRL-8713-3]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Final Rule

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is issuing a final 
rule to add the name of Structural Metals, Inc, to the exclusion 
granted to Conversion Systems Inc., (CSI) on June 13, 1995. As 
described in the exclusion issued to CSI in paragraph (1)(B), the 
Agency shall add the location of the treatment facility and the name of 
the steel mill contracting CSI's services. This rule adds the location 
of U.S. Ecology, Texas Ecology in Robstown, Texas as the treatment 
facility and Structural Metals, Inc. as the steel mill contracting the 
services of CSI. This rule also updates the 1995 exclusion to include 
Paragraphs (6) and (7), the Delisting Reopener language and 
Notification Requirements; and other updates regarding the disposal and 
submission of Quality Assurance Plan prior to submission of data for a 
new facility.

DATES: This rule is effective September 23, 2008.

ADDRESSES: The public docket for this direct final rule is located at 
1445 Ross Avenue in the FOIA Review Room, identified by Docket ID No. 
EPA-R06-RCRA-2008-0455. All documents in the electronic docket are 
listed in the http://www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the 
Environmental Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, 
TX 75202. The hard copy RCRA regulatory docket for this direct final 
rule, EPA-R06-RCRA-2008-0455, is available for viewing from 9 a.m. to 4 
p.m., Monday through Friday, excluding Federal holidays. The public may 
copy material from the regulatory docket at $0.15 per page. EPA 
requests that you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The interested 
persons wanting to examine these documents should make an appointment 
with the office at least 24 hours in advance. The public may copy 
material from any regulatory docket at no cost for the first 100 pages 
and at a cost of $0.15 per page for additional copies.

FOR FURTHER INFORMATION CONTACT: For further technical information 
concerning this document or for appointments to view the docket, 
contact Michelle Peace, Environmental Protection Agency, Multimedia 
Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 
Ross Avenue, Dallas, TX 75202, by calling 214-665-7430 or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On June 13, 1995 (60 FR 31107), EPA 
finalized a conditional multiple site exclusion to Conversion Systems 
Inc., in Horsham, Pennsylvania. In 1995, CSI petitioned EPA for a 
multiple site exclusion for chemically stabilized electric arc furnace 
dust (CSEAFD) resulting from the Super DetoxTM process as 
modified by CSI. The original Super DetoxTM

[[Page 54714]]

process was developed by Bethlehem Steel Corporation and used at its 
Johnstown and Steelton, Pennsylvania facilities. Specifically, CSI was 
granted the exclusion for CSEAFD generated at the existing Sterling, 
Illinois facility at Northwestern Steel and future facilities to be 
constructed. CSI initially planned to construct twelve other facilities 
nationwide. The resulting CSEAFD is classified as K061 hazardous waste 
by virtue of the derived from rule.
    On March 20, 2006, CSI submitted a K061 Delisting Initial 
Verification Testing Report to EPA Region 6 in accordance with 
paragraph 1(A) of the exclusion. It lists Structural Metals Inc, as the 
new source and U.S. Ecology in Robstown, TX as the treatment location. 
The data package included sampling results from four (4) representative 
composite samples of the waste. This data was reviewed by EPA and also 
evaluated using the Delisting Risk Assessment Software (DRAS) currently 
used to evaluate new petitions. All constituent concentrations are 
below the delisting levels published in the exclusion and meet the 
current DRAS delisting exit levels.
    The Agency is also taking this time to update the 1995 CSI 
exclusion to make the following corrections and additions to the 
exclusion:
    (1) The address of the CSI facility has changed from Horsham, PA 
and is now located in Willow Grove, PA;
    (2) Reports should be submitted to the appropriate Regional 
Director or his/her designee and no longer the EPA Administrator;
    (3) New facilities added to this petition should submit and get EPA 
approval of their Quality Assurance Project Plans for the verification 
testing prior to requesting addition to the existing petition; and
    (4) Paragraphs (6) and (7) are added to the exclusion language.
    The purpose of paragraph (6), the Delisting Reopener Language, is 
to require the facility to disclose new or different information 
related to a condition at the facility or disposal of the waste, if it 
is pertinent to the delisting. The petitioner must also use this 
procedure, if the waste samples fail to meet the levels found in 
paragraph (3). This provision will allow EPA to reevaluate the 
exclusion, if a source provides new or additional information to EPA. 
EPA will evaluate the information on which it based the decision to see 
if it is still correct or if circumstances have changed so that the 
information is no longer correct or would cause EPA to deny the 
petition, if presented.
    This provision expressly requires the petitioner to report 
differing site conditions or assumptions used in the petition. 
Additionally, it requires the petitioner to report within 10 days of 
discovery, instances where testing indicates that delisting levels were 
not achieved and the waste was subsequently managed as non-hazardous 
waste. If EPA discovers such information itself or from a third party, 
it can act on it as appropriate. The language being proposed is similar 
to those provisions found in RCRA regulations governing no-migration 
petitions at Sec.  268.6.
    It is EPA's position that it has the authority under RCRA and the 
Administrative Procedure Act (APA), 5 U.S.C. 551, et seq., to reopen a 
delisting decision. EPA may reopen a delisting decision when it 
receives new information that calls into question the assumptions 
underlying the delisting.
    EPA believes a clear statement of its authority in delisting is 
merited in light of EPA's experience. See the Federal Register notice 
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62 
FR 63458 (December 1, 1997) where the delisted waste leached at greater 
concentrations into the environment than the concentrations predicted 
when conducting the TCLP, leading EPA to repeal the delisting. If an 
immediate threat to human health and the environment presents itself, 
EPA will continue to address these situations on a case-by-case basis. 
Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA section 553 (b)(3)(B).
    EPA is also adding paragraph (7), Notification Requirements. The 
treatment facility is required to notify State environmental agencies 
at least 60 days before beginning the transport and disposal of 
delisted wastes. This notification would be require for the state where 
the treated waste is generated as well as states through which the 
waste is transported and disposed.

Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a 
particular facility only. Because this rule is of particular 
applicability relating to a particular facility, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this proposed rule does not have federalism implications. It 
will not 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, as specified in Executive Order 13132, ``Federalism,'' (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule. Similarly, because this rule will affect only a 
particular facility, this proposed rule does not have tribal 
implications, as specified in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 
2000). Thus, Executive Order 13175 does not apply to this rule. This 
rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not have 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. The basis for 
this belief is that the Agency used the DRAS program, which considers 
health and safety risks to infants and children, to calculate the 
maximum allowable concentrations for this rule. This rule is not 
subject to Executive Order 13211, ``Actions 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. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for

[[Page 54715]]

affected conduct. The Congressional Review Act, 5 U.S.C. 801 et seq., 
as added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report which includes a copy 
of the rule to each House of the Congress and to the Comptroller 
General of the United States. Section 804 exempts from section 801 the 
following types of rules: (1) Rules of particular applicability; (2) 
rules relating to agency management or personnel; and (3) rules of 
agency organization, procedure, or practice that do not substantially 
affect the rights or obligations of non-agency parties 5 U.S.C. 804(3). 
EPA is not required to submit a rule report regarding this action under 
section 801 because this is a rule of particular applicability.

Lists 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: August 29, 2008.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division, EPA 
Region 6.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

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


0
2. Appendix IX to Part 261, Table 2--Wastes Excluded from Specific 
Sources is amended by adding the following entry in alphabetical order 
to ``Conversion Systems Inc.,'' to read as follows:

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

* * * * *

                                 Table 2--Wastes Excluded From Specific Sources
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                Facility                            Address                        Waste description
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                                                  * * * * * * *
Conversion Systems, Inc.................  Willow Grove, PA...........  Chemically Stabilized Electric Arc
                                                                        Furnace Dust (CSEAFD) that is generated
                                                                        by Conversion Systems Inc. (CSI) using
                                                                        the Super Detox\TM\ process as modified
                                                                        by CSI to treat EAFD (EPA Hazardous
                                                                        Waste No. K061) at the following sites
                                                                        and that is disposed of in Subtitle C
                                                                        landfills:
                                                                       Northwestern Steel, Sterling, Illinois
                                                                        after June 13, 1995.
                                                                       Structural Metals, Inc. treated at U.S.
                                                                        Ecology, Robstown, Texas after September
                                                                        23, 2008.
                                                                       (1) Verification Testing Requirements:
                                                                        Sample collection and analyses,
                                                                        including quality control procedures
                                                                        must be performed using appropriate
                                                                        methods. As applicable to the method-
                                                                        defined parameters of concern, analyses
                                                                        requiring the use of SW-846 methods
                                                                        incorporated by reference in 40 CFR
                                                                        260.11 must be used without
                                                                        substitution. As applicable, the SW-846
                                                                        methods might include Methods 0010,
                                                                        0011, 0020, 0023A, 0030, 0031, 0040,
                                                                        0050, 0051, 0060, 0061, 1010A, 1020B,
                                                                        1110A, 1310B, 1311, 1312, 1320, 1330A,
                                                                        9010C, 9012B, 9040C, 9045D, 9060A, 9070A
                                                                        (uses EPA Method 1664, Rev. A), 9071B,
                                                                        and 9095B.
                                                                       (A) Initial Verification Testing: During
                                                                        the first 20 operating days of full
                                                                        scale operation of a newly constructed
                                                                        Super Detox\TM\ treatment facility, CSI
                                                                        must analyze a minimum of four (4)
                                                                        composite samples of CSEAFD
                                                                        representative of the full 20-day
                                                                        period. Composites must be comprised of
                                                                        representative samples collected from
                                                                        every batch generated. The CSEAFD
                                                                        samples must be analyzed for the
                                                                        constituents listed in Condition (3).
                                                                        CSI must report the operational and
                                                                        analytical test data, including quality
                                                                        control information, obtained during
                                                                        this initial period no later than 60
                                                                        days after the generation of the first
                                                                        batch of CSEAFD.
                                                                       (B) Addition of New Super Detox\TM\
                                                                        Treatment Facilities to Exclusion: If
                                                                        the Agency's review of the data obtained
                                                                        during initial verification testing
                                                                        indicates that the CSEAFD generated by a
                                                                        specific Super Detox\TM\ treatment
                                                                        facility consistently meets the
                                                                        delisting levels specified in Condition
                                                                        (3), the Agency will publish a notice
                                                                        adding to this exclusion the location of
                                                                        the new Super Detox\TM\ treatment
                                                                        facility and the name of the steel mill
                                                                        contracting CSI's services. If the
                                                                        Agency's review of the data obtained
                                                                        during initial verification testing
                                                                        indicates that the CSEAFD generated by a
                                                                        specific Super Detox\TM\ treatment
                                                                        facility fails to consistently meet the
                                                                        conditions of this exclusion, the Agency
                                                                        will not publish the notice adding the
                                                                        new facility.
                                                                       (C) Subsequent Verification Testing: For
                                                                        the Sterling, Illinois facility and any
                                                                        new facility subsequently added to CSI's
                                                                        conditional multiple-site exclusion, CSI
                                                                        must collect and analyze at least one
                                                                        composite sample of CSEAFD each month.
                                                                        The composite samples must be composed
                                                                        of representative samples collected from
                                                                        all batches treated in each month. The
                                                                        composite samples must be composed
                                                                        representative samples collected from
                                                                        all batches treated in each month. These
                                                                        monthly representative samples must be
                                                                        analyzed, prior to disposal of the
                                                                        CSEAFD, for the constituents listed in
                                                                        Condition (3). CSI may, at its
                                                                        discretion, analyze composite samples
                                                                        gathered more frequently to demonstrate
                                                                        that smaller batches of waste are non-
                                                                        hazardous.
                                                                       (2) Waste Holding and Handling: CSI must
                                                                        store as hazardous all CSEAFD generated
                                                                        until verification testing as specified
                                                                        in Conditions (1)(A) and (1)(C), as
                                                                        appropriate, is completed and valid
                                                                        analyses demonstrate that Condition (3)
                                                                        is satisfied. If the levels of
                                                                        constituents measured in the samples of
                                                                        CSEAFD do not exceed the levels set
                                                                        forth in Condition (3), then the CSEAFD
                                                                        is non-hazardous and may be managed and
                                                                        disposed of in Subtitle D landfills. If
                                                                        constituent levels in a sample exceed
                                                                        any of the delisting levels set in
                                                                        Condition (3), the CSEAFD generated
                                                                        during the time period corresponding to
                                                                        this sample must be retreated until it
                                                                        meets these levels, or managed and
                                                                        disposed of in accordance with Subtitle
                                                                        C of RCRA. CSEAFD generated by a new CSI
                                                                        treatment facility must be managed as a
                                                                        hazardous waste prior to the addition of
                                                                        the name and location of the facility to
                                                                        the exclusion. After addition of the new
                                                                        facility to the exclusion, CSEAFD
                                                                        generated during the verification
                                                                        testing in Condition (1)(A) is also non-
                                                                        hazardous, if the delisting levels in
                                                                        Condition (3) are satisfied.

[[Page 54716]]

 
                                                                       (3) Delisting Levels: All leachable
                                                                        constituents for those metals must not
                                                                        exceed the following levels (ppm):
                                                                        Antimony-0.06; Arsenic-0.50; Barium-7.6;
                                                                        Beryllium-0.010; Cadmium-0.050; Chromium-
                                                                        0.33; Lead-0.15; Mercury-0.009; Nickel-
                                                                        1.00; Selenium-0.16; Silver-0.30;
                                                                        Thallium-0.020; Vanadium-2.0; Zinc-70.
                                                                        Metal concentrations must be measured in
                                                                        the waste leachate by the method
                                                                        specified in 40 CFR 261.24.
                                                                       (4) Changes in Operating Conditions:
                                                                        After initiating subsequent testing
                                                                        described in Condition (1)(C), if CSI
                                                                        significantly changes the stabilization
                                                                        process established under Condition (1)
                                                                        (e.g., use of new stabilization
                                                                        reagents), CSI must notify the Agency in
                                                                        writing. After written approval by EPA,
                                                                        CSI may handle CSEAFD generated from the
                                                                        new process as non-hazardous, if the
                                                                        wastes meet the delisting levels set in
                                                                        Condition (3).
                                                                       (5) Data Submittals: CSI must submit the
                                                                        information described below. If CSI
                                                                        fails to submit the required data within
                                                                        the specified time or maintain the
                                                                        required records on-site for the
                                                                        specified time, EPA, at its discretion,
                                                                        will consider this sufficient basis to
                                                                        reopen the exclusion as described in
                                                                        paragraph (6). CSI must:
                                                                       (A) At least one month prior to operation
                                                                        of a new Super Detox\TM\ treatment
                                                                        facility, CSI must notify, in writing,
                                                                        the EPA Regional Administrator or his
                                                                        designee, when the new Super Detox\TM\
                                                                        treatment facility is scheduled to be on-
                                                                        line. The data obtained through
                                                                        paragraph 1(A) must be submitted to the
                                                                        Regional Administrator or his designee
                                                                        within the time period specified. All
                                                                        supporting data can be submitted on CD-
                                                                        ROM or some comparable electronic media.
                                                                       (B) CSI shall submit and receive EPA
                                                                        approval of the Quality Assurance
                                                                        Project Plan for data collection for
                                                                        each new facility added to this
                                                                        exclusion prior to conducting sampling
                                                                        events in paragraph 1(A).
                                                                       (C) Compile records of analytical data
                                                                        from paragraph (3), summarized, and
                                                                        maintained on-site for a minimum of five
                                                                        years.
                                                                       (D) Furnish these records and data when
                                                                        either EPA or the State agency requests
                                                                        them for inspection.
                                                                       (E) Send along with all data a signed
                                                                        copy of the following certification
                                                                        statement, to attest to the truth and
                                                                        accuracy of the data submitted. ``Under
                                                                        civil and criminal penalty of law for
                                                                        the making or submission of false or
                                                                        fraudulent statements or representations
                                                                        (pursuant to the applicable provisions
                                                                        of the Federal Code, which include, but
                                                                        may not be limited to, 18 U.S.C. 1001
                                                                        and 42 U.S.C. 6928), I certify that the
                                                                        information contained in or accompanying
                                                                        this document is true, accurate and
                                                                        complete.
                                                                       As to the (those) identified section(s)
                                                                        of this document for which I cannot
                                                                        personally verify its (their) truth and
                                                                        accuracy, I certify as the company
                                                                        official having supervisory
                                                                        responsibility for the persons who,
                                                                        acting under my direct instructions,
                                                                        made the verification that this
                                                                        information is true, accurate and
                                                                        complete. If any of this information is
                                                                        determined by EPA in its sole discretion
                                                                        to be false, inaccurate or incomplete,
                                                                        and upon conveyance of this fact to the
                                                                        company, I recognize and agree that this
                                                                        exclusion of waste will be void as if it
                                                                        never had effect or to the extent
                                                                        directed by EPA and that the company
                                                                        will be liable for any actions taken in
                                                                        contravention of the company's RCRA and
                                                                        CERCLA obligations premised upon the
                                                                        company's reliance on the void
                                                                        exclusion.''
                                                                       (6) Reopener: (A) If, anytime after
                                                                        disposal of the delisted waste CSI, the
                                                                        treatment facility, or the steel mill
                                                                        possess or is otherwise made aware of
                                                                        any data (including but not limited to
                                                                        leachate data or ground water monitoring
                                                                        data) relevant to the delisted waste
                                                                        indicating that any constituent
                                                                        identified for the delisting
                                                                        verification testing is at a level
                                                                        higher than the delisting level allowed
                                                                        by EPA in granting the petition, then
                                                                        the facility must report the data, in
                                                                        writing, to EPA within 10 days of first
                                                                        possessing or being made aware of that
                                                                        data.
                                                                       (B) If subsequent verification testing of
                                                                        the waste as required by paragraph 1(C)
                                                                        does not meet the delisting requirements
                                                                        in paragraph 3 and the waste is
                                                                        subsequently managed as non-hazardous
                                                                        waste, CSI must report the data, in
                                                                        writing, to EPA within 10 days of first
                                                                        possessing or being made aware of that
                                                                        data.
                                                                       (C) If CSI fails to submit the
                                                                        information described in paragraphs (5),
                                                                        (6)(A) or (6)(B) or if any other
                                                                        information is received from any source,
                                                                        EPA will make a preliminary
                                                                        determination as to whether the reported
                                                                        information requires action to protect
                                                                        human health and/or the environment.
                                                                        Further action may include suspending,
                                                                        or revoking the exclusion, or other
                                                                        appropriate response necessary to
                                                                        protect human health and the
                                                                        environment.
                                                                       (D) If EPA determines that the reported
                                                                        information requires action, EPA will
                                                                        notify the facility in writing of the
                                                                        actions it believes are necessary to
                                                                        protect human health and the
                                                                        environment. The notice shall include a
                                                                        statement of the proposed action and a
                                                                        statement providing the facility with an
                                                                        opportunity to present information
                                                                        explaining why the proposed EPA action
                                                                        is not necessary. The facility shall
                                                                        have 10 days from the date of EPA's
                                                                        notice to present such information.
                                                                       (E) Following the receipt of information
                                                                        from the facility described in paragraph
                                                                        (6)(D) or (if no information is
                                                                        presented under paragraph (6)(D)) the
                                                                        initial receipt of information described
                                                                        in paragraphs (5), (6)(A) or (6)(B), EPA
                                                                        will issue a final written determination
                                                                        describing the actions that are
                                                                        necessary to protect human health and/or
                                                                        the environment. Any required action
                                                                        described in EPA's determination shall
                                                                        become effective immediately, unless EPA
                                                                        provides otherwise.
                                                                       (7) Notification Requirements: CSI or the
                                                                        treatment facility must do the following
                                                                        before transporting the delisted waste.
                                                                        Failure to provide this notification
                                                                        will result in a violation of the
                                                                        delisting petition and a possible
                                                                        revocation of the decision.
                                                                       (A) Provide a one-time written
                                                                        notification to any state Regulatory
                                                                        Agency to which or through which it will
                                                                        transport the delisted waste described
                                                                        above for disposal, 60 days before
                                                                        beginning such activities.
                                                                       (B) Update the one-time written
                                                                        notification if it ships the delisted
                                                                        waste into a different disposal
                                                                        facility.
                                                                       (C) Failure to provide this notification
                                                                        will result in a violation of the
                                                                        delisting exclusion and a possible
                                                                        revocation of the decision.
 
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[FR Doc. E8-22170 Filed 9-22-08; 8:45 am]
BILLING CODE 6560-50-P