Land Disposal Restrictions: Revision of the Treatment Standards for Carbamate Wastes
This Rule document was issued by the Environmental Protection Agency (EPA)
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 268 and 271
Land Disposal Restrictions: Revision of the Treatment Standards for Carbamate Wastes
Environmental Protection Agency.
Direct Final Rule.
The Environmental Protection Agency (EPA or the Agency) is issuing a Direct Final Rule to revise the Land Disposal Restrictions (LDR) treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products, off-specification or manufacturing chemical intermediates and container residues that become hazardous wastes when they are discarded or intended to be discarded. Currently, under the LDR program, most carbamate wastes must meet numeric concentration limits before they can be land disposed. However, the lack of readily available analytical standards makes it difficult to measure whether the numeric LDR concentration limits have been met. Therefore, we are providing as an alternative standard the use of the best demonstrated available technologies (BDAT) for treating these wastes. In addition, this action removes carbamate Regulated Constituents from the table of Universal Treatment Standards.
This Direct Final rule will be effective August 12, 2011 without further notice, unless EPA receives adverse written comment by July 13, 2011. If adverse comments are received, EPA will publish a timely withdrawal intheFederal Registerinforming the public that the specific amendments in this Direct Final Rule for which the Agency received adverse comments will not take effect.
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2008-0332, by one of the following methods:
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-2008-0332. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
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For Further Information Contact
Mary Jackson, Office of Resource Conservation and Recovery, (MC: 5304P), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. She can also be reached by telephone on 703-308-8453 or by e-mail at email@example.com.
A. Why is EPA using a Direct Final Rule?
EPA is publishing this rule as a Direct Final Rule because we view this action as noncontroversial and we anticipate no adverse comments. In addition, we also are choosing to issue a Direct Final Rule because waste management facilities treating carbamate wastes can potentially face curtailment of operations. That is, if they cannot demonstrate waste and treatment residual concentrations meet numerical LDR treatment standards through analytical testing, these facilities can potentially be left with no other choice than to stop treating carbamate wastes. This can be a particular problem when waste management facilities treat hazardous wastes that exhibit the characteristic of ignitability, reactivity, corrosivity, or toxicity. Without an analytical standard, they cannot reliably determine which carbamate regulated constituents are present in the characteristic waste. In addition, without a way to demonstrate waste and treatment residual carbamate concentrations through analytical testing, they cannot certify that all carbamate regulated constituents reasonably expected to be present at the point of generation of such characteristic waste, have been treated to meet all applicable treatment standards (typically numeric concentration limits appearing in the Universal Treatment Standards table found in 268.48).
Based on information we have collected and on previous LDR rulemakings pertaining to carbamate wastes, which raised identical issues and did not generate adverse comment, we do not believe that there will be adverse comments on this action. However, in the “Proposed Rules” section of today'sFederal Register, we are publishing a separate document that will serve as a proposed rule should we receive adverse comments on this action. We will not institute a second proposal or allow for another comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see theADDRESSESsection of this document.
If we receive adverse comment, we will publish a timely withdrawal in theFederal Registerinforming the public that those specific amendments in this Direct Final Rule for which the Agency received adverse comment will not take effect, and the reason for such withdrawal. We would address all public comments in any subsequent final rule based on the proposed rule being concurrently published today.
If we do not receive adverse comment, the rule will take effect on August 12, 2011. Section 3010 (b) of RCRA states that rules implementing subtitle C of RCRA normally take effect six months after promulgation, but that EPA may provide for a shorter effective date for rules with which the regulated community does not need six months to come into compliance. This is such a rule, as the regulated community is able immediately to treat carbamate wastes using the designated methods of treatment.
B. Does this action apply to me?
This action applies to generators and treatment, storage and disposal facilities (TSDFs) managing EPA hazardous waste codes:
It also applies to generators and TSDFs of ignitable, corrosive, reactive and toxic hazardous wastes that are reasonably expected to contain one or more of the carbamate constituents listed above as underlying hazardous constituents at the point of the waste's generation.
C. Table of Contents
I. Summary of This Action.
III. What are the Alternative Treatment Standards?
IV. Why are we removing these wastes from the Universal Treatment Standards?
V. State Authority
A. How are states authorized under RCRA?
B. How does this rule affect state authorization?
VI. Statutory and Executive Orders.
A. Regulatory Flexibility Act.
B. Congressional Review Act.
I. Summary of This Action
We are taking direct final action to provide alternative LDR treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products, off-specification or manufacturing chemical intermediates and container residues that become hazardous waste when they are discarded or intended to be discarded. The current LDR treatment standards for these wastes are set as numeric concentration limits that must be achieved before the waste is land disposed (see 40 CFR 268.40). Today's Direct Final Rule amends the existing treatment standards by allowing carbamate wastewaters to be treated using combustion, chemical oxidation, biodegradation or carbon adsorption (CMBST, CHOXD, BIODG or CARBN; see descriptions in the table found at 40 CFR 268.42); and allowing carbamate nonwastewaters to be treated by combustion ((CMBST); see description in the table at 40 CFR 268.42) as legally permissible alternatives to the numeric concentration limits. In addition, today's Direct Final Rule removes carbamates from the Table of Universal Treatment Standards (UTS) (40 CFR 268.48), thus eliminating the obligation to treat carbamate regulated constituents to meet numeric concentration limits in order to comply with rules requiring the treatment of underlying hazardous constituents ((UHCs), see 268.40(a)(2)(i)) that are reasonably expected to be present in a waste which exhibits a hazardous waste characteristic at the point of the waste's generation.
Under sections 3004(d) through (g) of the Resource Conservation and Recovery Act (RCRA), the land disposal of hazardous wastes is prohibited unless the wastes meet the treatment standards, as generated, or are treated to meet the treatment standards established by EPA, or otherwise meet those standards. Section 3004(m) of RCRA requires EPA to set numeric concentration limits or methods of treatment that substantially diminish the hazardous waste's toxicity or substantially reduce the likelihood of hazardous constituents migrating from the waste such that short-term and long-term threats to human health and the environment posed by the waste's landdisposal are minimized. EPA interprets this language to authorize treatment standards based on the performance of the best demonstrated available technology(ies) (BDAT) for treating hazardous wastes. This interpretation was upheld by the DC Circuit Court of Appeals in Hazardous Waste Treatment Council v. EPA, 886 F.2d 355 (DC Cir. 1989).
EPA promulgated the LDR “Phase III” final rule on April 8, 1996 that established treatment standards for 64 listed hazardous wastes associated with the production of a number of carbamates (61 FR 15583). These treatment standards were based on data for similar wastes for which EPA promulgated UTS in1994 (59 FR 47982) and on analytical detection limits compiled from sampling and analysis reports prepared to support the proposed listing of carbamate wastes as hazardous wastes on February 9, 1995. The treatment standards are expressed as numeric concentration limits that have to be met before land disposal can occur. All the carbamate waste constituents were added to the UTS table found at 40 CFR 268.48. EPA promulgated numeric treatment standards for these carbamate wastes in 1994 (59 FR 47982), and again in 1996 (61 FR 15583), because performance using BDAT for these wastes resulted in concentration levels that could be measured in the waste residue (and thus became the numeric treatment standard), or because after BDAT treatment, the carbamate constituent(s) could no longer be detected in the treatment residue (and thus the detection limit was set by EPA as the numeric treatment standard).
After promulgation of the Phase III rule on April 8 1996, but shortly before the treatment standards took effect on July 8, 1996, several companies in the waste management industry contacted EPA, reporting that analytical standards were not readily available for some of the carbamate constituents. An analytical standard is a standard reference material that is used to calibrate analytical instruments in order to confirm detection and quantification of a particular constituent. The Agency was unaware of the lack of analytical standards because the treatment standards were primarily based on analytical detection limits. We confirmed that analytical standards were not readily available for these carbamate constituents and realized that the waste management industry was unintentionally left in an unacceptable compliance situation: they were required to certify compliance with numeric LDR treatment standards, but commercial laboratories were not able to perform the necessary analyses for some of the newly regulated carbamate constituents. Thus, it was impossible to reliably document whether the LDR treatment standards were achieved for some carbamate wastes.
The problem was complicated when the LDR rules that pertain to meeting the treatment standards for UHCs in hazardous wastes exhibiting the characteristic of ignitability, corrosivity, reactivity, and/or toxicity were promulgated. Specifically, for characteristic wastes (or waste that at point of generation exhibited a characteristic, but that have been treated so that they no longer do so), all UHCs reasonably expected to be present in the waste at the point of generation must meet the numeric concentration limits in the 268.48 UTS table. Because of the lack of analytical standards for some of the carbamate constituents, it was impossible to identify in all cases the UHCs reasonably expected to be present in the characteristic waste at the point of generation. Likewise, treatment facilities and regulatory agencies were unable to monitor compliance with numeric LDR treatment standards for UHC carbamates.
As a result, EPA promulgated an emergency rule in 1996 (61 FR 43924, August 26, 1996) to establish temporary alternative treatment standards for several carbamate waste constituents for a one-year period, which we believed would provide sufficient time for analytical standards to be developed. The temporary alternative standards promulgated on August 26, 1996, provided the waste industry with the option of meeting the original numerical concentration limits or treating the waste by required methods of BDAT treatment: combustion for nonwastewaters, and combustion, chemical oxidation, biodegradation or carbon adsorption for wastewaters. The numeric treatment standard concentration limits were based upon the performance of these BDAT technologies, so we asserted that they would be adequate to meet the LDR treatment requirements, while avoiding the analytical problems associated with some of the carbamate constituents.
However, analytical standards were not developed as we expected during the year. Thus, in August, 1997, EPA promulgated a second emergency Direct Final Rule that extended the alternative treatment standards for one additional year (62 FR 45568, August 28, 1997). At the end of that year, the analytic problems remained unsolved so in September, 1998, we promulgated a final rule that established technology(ies) as alternative LDR treatment standards for seven carbamate wastes for which there were no analytical standards. (The rule also removed the treatment standard for one carbamate constituent (o-phhenylenediamine, because it was not able to be analyzed reliably by available analytical methods), reinstated the LDR treatment standards expressed as numerical concentration limits for 32 carbamate constituents, and provided six months for the regulated community to arrange for analysis of the 32 waste constituents that were reinstated in that rule (63 FR 47410)).
In late 2007, we also became aware of the lack of an analytical standard for yet another carbamate isomer, m-cumenyl methylcarbamate (see e-mail record from Nancy Paddock, Environmental Engineering Specialist, Veolia ES Technical Solutions to Jan Young, EPA, in RCRA Docket No. HQ-RCRA-2008-0332). An analytical standard once existed for this carbamate isomer, but it is now generally unavailable, and is too costly to specially produce. Moreover, the Agency speculates that this constituent may be phased out of production and it is neither economical nor technically feasible to continue to make an analytical standard for a constituent that soon may no longer be produced.
Given our history of promulgating alternative treatment methods for specific carbamate wastes over the years and their projected phasing out, we are convinced that the lack of analytical standards with which to calibrate analytical instruments will continue to be an endemic problem. Therefore, the Agency believes it appropriate to promulgate additional rules and provide certainty to the regulated community, and thus, are extending the alternative BDAT treatment methods to all carbamate hazardous wastes and waste constituents in today's rule. These alternative standards will apply to soil contaminated with these wastes as well. If there is no analytical standard available, then the Agency would consider that constituent “non-analyzable” and the provisions of 268.49(c)(3) would apply to the soil.
It should be noted that some of the K-listed carbamate wastes have numeric treatment standards for constituents which are not carbamates. For example, there is a numeric standard for benzene in K156 (see 268.40). Those treatment standards are unaffected by today's action. Nor is EPA reconsidering or otherwise reopening those standards for public comment.
III. What are the alternative treatment standards?
This Direct Final Rule establishes alternative BDAT treatment standards for carbamate wastes. Because the alternative treatment standards are expressed as specified technologies, they eliminate the need for analytical testing to measure compliance with the existing numeric concentration limits for the carbamate waste constituents (i.e. carbamates). However, we are retaining the numeric concentration limits for carbamates in the 268.40 Treatment Standard Table because allowing both specified treatment methods and numeric concentration limits provides maximum flexibility in the choice of treatment for these wastes. Thus, any treatment technology that is not considered impermissible dilution may be used to treat carbamate wastes to achieve the numeric treatment standards. We do not believe that there are many treatment technologies other than the ones we are promulgating as alternative treatment standards that are available for treatment of these wastes, but we are retaining the option of meeting the numeric standards should new treatment technologies be developed and/or analytical standards become available.
The alternative treatment standards promulgated today are: combustion ((CMBST), see description in the table 40 CFR 268.42) for nonwastewaters; and, combustion, chemical oxidation, biodegradation or carbon adsorption ((CMBST, CHOXD, BIODG or CARBN), see description in the table found at 40 CFR 268.42) for wastewaters. Because the numerical concentration limits were based upon these BDATs for treatment of carbamate wastes, we believe that they fully satisfy the core requirement of the LDR program that hazardous wastes be effectively treated to minimize short and long-term threats to human health and the environment before they are land disposed. This is the same justification for EPA's prior actions establishing these methods of treatment as alternative treatment standards for certain of the carbamate wastes, and has not been challenged or otherwise disputed.
IV. Why are we removing carbamates from the Universal Treatment standards?
Underlying hazardous constituents are defined in 268.40(a)(2)(i) as any constituent listed in Section 268.48, Table UTS—Universal Treatment Standards, except fluoride, selenium, sulfides, vanadium, and zinc, which can reasonably be expected to be present at the point of generation of the hazardous waste at a concentration above the constituent-specific UTS treatment standards. Hazardous waste constituents that are UHCs must be treated to meet the concentration limits specified in the UTS table. For hazardous wastes that are ignitable, corrosive, reactive, and/or toxic (i.e., wastes that exhibit a characteristic of hazardous waste) or wastes that at point of generation exhibit a characteristic, but that have been treated so that they no longer exhibit the characteristic, all UHCs reasonably expected to be present in the waste at the point of generation must be treated to meet the numeric concentration limits in the UTS table.
Because of the current lack of analytical standards, it is not possible to definitely determine whether carbamate constituents are reasonably expected to be present in a characteristic waste at the point of generation. Likewise, treatment facilities and regulatory agencies are unable to monitor compliance with the UTS for these constituents. To prevent situations where the generator may not realize that his characteristic waste contains carbamates as UHCs or where the treatment facility cannot certify compliance with the UTS for carbamate wastes, it is necessary to remove the carbamate constituents from the UTS table. However, because BDATs for organic wastes are generally the same as those promulgated in today's rule as alternative treatment standards for carbamate hazardous wastes, we believe that treatment of other organic wastes, if they are present in the characteristic waste, will adequately treat the carbamate constituents in the wastes.
We are also making a conforming change to the UTS table by removing footnote 6 for several hazardous waste constituents. Footnote 6 refers to the status of certain wastes during the period of August 26, 1996 to March 4, 1998, which obviously no longer applies.
V. State Authority
A. How are states authorized under RCRA?
Under section 3006 of RCRA, EPA may authorize qualified states to administer their own hazardous waste programs in lieu of the Federal program within the state. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the Federal program in that state. The Federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent Federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new Federal requirements did not take effect in an authorized state until the state adopted the Federal requirements as state law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA-related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so.
Authorized states are required to modify their programs only when EPA enacts Federal requirements that are more stringent or broader in scope than existing Federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the Federal program (see also 40 CFR 271.1). Therefore, authorized states may, but are not required to, adopt Federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous Federal regulations.
B. How does this rule affect state authorization?
Today's rule is promulgated pursuant to HSWA authority and is neither more nor less stringent. Because RCRA section 3009 allows states to be more stringent, they do not have to adopt this provision. Today's addition of alternate treatment standards for carbamate wastes is promulgated pursuant to RCRA section 3004(m), a HSWA provision. Therefore, we are adding this rule to Table 1 in 40 CFR 271.1(j), which identifies the Federal program requirements that are promulgated pursuant to HSWA and take effect in all States, regardless of their authorizationstatus. The land disposal restrictions for carbamate wastes are promulgated pursuant to RCRA section 3004(g) and (m), also HSWA provisions. Table 2 in 40 CFR 271.1(j) is modified to indicate that these requirements are self-implementing.
States may apply for final authorization for the HSWA provisions in 40 CFR 271.1(j), as discussed below. Until the States receive authorization for these HSWA provisions, EPA would implement them. The procedures and schedule for final authorization of State program modifications are described in 40 CFR 271.21.
Section 271.21(e)(2) of EPA's State authorization regulations (40 CFR part 271) requires that States with final authorization to modify their programs to reflect Federal program changes and submit the modifications to EPA for approval. The deadline by which the States would need to modify their programs to adopt this regulation is determined by the date of promulgation of a final rule in accordance with section 271.21(e)(2). Once EPA approves the modification, the State requirements would become RCRA Subtitle C requirements.
States with authorized RCRA programs already may have regulations similar to those in this final rule. These State regulations have not been assessed against the Federal regulations finalized today. Thus, a State would not be authorized to implement these regulations as RCRA requirements until State program modifications are submitted to EPA and approved, pursuant to 40 CFR 271.21. Of course, States with existing regulations that are similar to those promulgated today may continue to administer and enforce their regulations as a matter of State law. In implementing the HSWA requirements, EPA will work with the States under agreements to avoid duplication of effort.
VI. Statutory and Executive Order Reviews
As explained above, this action augments existing LDRs by establishing alternative treatment standards expressed as technologies that may be used to treat the carbamate hazardous waste under the LDR program. For that reason, this action:
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as (1) a small business that is primarily engaged in hazardous waste treatment and disposal as defined by NAICS code 562211 with annual receipts of less than 12.5 million dollars (based on Small Business Administration size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This rule will not have a significant economic impact on a substantial number of small entities because its merely establishes alternative treatment standards expressed as technologies that may be used to treat the carbamate hazardous waste under the LDR program. These carbamate hazardous wastes already are subject to numeric treatment standards under the LDR program, and thus, this rule will have no new impacts. Therefore, we hereby certify that this rule will not add any new regulatory requirements to small entities, and does not require a regulatory flexibility analysis.
B. Congressional Review Act
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. EPA will submit a report containing this Direct Final Rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A Major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
List of Subjects
40 CFR Part 268
Environmental protection, Hazardous waste, Land disposal restrictions.
40 CFR Part 271
Environmental protection, Hazardous waste.
Dated: June 7, 2011.
Lisa P. Jackson,
For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
Part 268 Land Disposal Restrictions
1. The authority citation for part 268 continues to read as follows:
42 U.S.C. 6905, 6912(a), 6921, and 6924.
2. Section 268.40, the Table of Treatment Standards in paragraph (b) is amended by revising the entries for “K156”, “K157”, “K158”, “K159”, “K161”, “P127”, “P128”, P185”, “P188”, “P189”, “P190”, “P191”, “P192”, “P194h”, “P196”, “P197”, “P198”, “P199”, “P201”, “P202”, “P203”, “P204”, “P205”, “U271”, “U278”, “U279”, “U280”, “U364”, “U367”, “U372”, “U373”, “U387”, “U389”, “U394”. “U395”, “U404”, “U409”, “U410”, and “U411” to read as follows:
3. Section 268.48, the Table of UTS—Universal Treatment Standards is amended by
a. Removing the entries for Aldicarb sulfone, Barban, Bendiocarb, Benomyl, Butylate, Carbaryl, Carbenzadim, Carbofuran, Carbofuran phenol, Carbosulfan, m-Cumenyl methylcarbamate, Dithiocarbamates (total), EPTC (Eptam), Formetanate hydrochloride, Methiocarb, Methomyl, Metolcarb, Mexacarbate, Molinate, Oxamyl, Pebulate, Physostigmine, Physostigmine salicylate, Promecarb, Propham, Propoxur, Prosulfocarb, Thiodicarb, Thiophanate-methyl, Triallate, Triethylamin, and Vemolate; and
b. Removing and reserving footnote 6.
Part 271 Requirements for Authorization of State Hazardous Waste Programs
4. The authority citation for part 271 continues to read as follows:
42 U.S.C. 9602; 33 U.S.C. 1321 and 1361.
Subpart A—Requirements for Final Authorization
5. Section 271.1(j) is amended by adding the following entry to Table 1 in chronological order by promulgation date in theFederal Register, and by adding the following entry to Table 2 in chronological order by effective date in theFederal Register, to read as follows:
§ 271.1 Purpose and scope.
* * * * *
(j) * * *
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[FR Doc. 2011-14594 Filed 6-10-11; 8:45 am]
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Date Posted: Jun 13, 2011
RIN: Not Assigned
CFR: 40 CFR Parts 268 and 271
Federal Register Number: 2011-14594
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