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West Virginia: Final Determination of Partial Program Adequacy of the State's Municipal Solid Waste Landfill Permitting Program

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AGENCY:

Environmental Protection Agency.

ACTION:

Notice of Final Determination of Partial Program Adequacy for the State of West Virginia's Municipal Solid Waste Landfill Permitting Program.

SUMMARY:

Section 4005(c)(1)(B) of the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments (HSWA) of 1984, requires states to develop and implement permit programs or other systems to ensure that municipal solid waste landfills (MSWLFs) which may receive hazardous household waste or small quantity generator waste will comply with the revised federal MSWLF criteria Start Printed Page 16524(40 CFR part 258). Section 4005(c)(1)(C) of RCRA requires the U.S. Environmental Protection Agency (EPA) to determine whether states have adequate programs for MSWLFs.

On October 23, 1998, EPA published the final State Implementation Rule (SIR) which contains procedures by which EPA will approve or partially approve state landfill permit programs (63 FR 57025). Prior to that date, EPA processed state applications for EPA approval of their landfill permit programs based on draft SIR procedures. The procedures contained in the draft SIR did not significantly differ from the final SIR.

Owners/operators of MSWLFs located in states with EPA-approved permit programs can use the site-specific flexibility provided by 40 CFR part 258 to the extent the state permit program allows such flexibility. EPA notes that regardless of the approval status of a state and the permit status of any facility, the federal landfill criteria will apply to all permitted and unpermitted MSWLF facilities. However, facilities in EPA-approved states may have more flexibility in meeting those criteria.

On June 17, 1994, the State of West Virginia applied for a determination of partial program adequacy for its municipal solid waste landfill permit program under section 4005 of RCRA. West Virginia submitted relevant regulations that corresponded to all sections of 40 CFR part 258 except for specific sections of the following four subparts:

1. Subpart A—General: West Virginia (WV) was not able to adopt all of the definitions listed under 40 CFR 258.2;

2. Subpart E—Groundwater Monitoring and Corrective Action: WV was not able to adopt the requirements of 40 CFR 258.51, Groundwater Monitoring Systems; 40 CFR 258.54, Detection Monitoring Program; and 40 CFR 258.55, Assessment Monitoring Program;

3. Subpart F—Closure and Post-Closure Care: WV was not able to adopt the criteria in 40 CFR 258.60, Closure Criteria, pertaining to the time allowed to apply the final cover;

4. Subpart G—Financial Assurance Criteria: West Virginia was not able to adopt any of the sections or provisions of this Subpart.

On March 8, 1996, EPA published a tentative determination of partial program adequacy for all portions of the State of West Virginia MSWLF permitting program that satisfied the federal provisions of 40 CFR part 258, with the exceptions mentioned above (61 FR 9451-9454). EPA delayed the final determination of partial program adequacy of West Virginia's program due to litigation that affected the state's solid waste management authorities. However, these issues were resolved by the passage of West Virginia Senate Bill 178 on March 2, 1998. Based on EPA's March 8, 1996 tentative determination and the amendment of West Virginia's solid waste management authorities, as provided in Senate Bill 178, EPA is today completing its decision making process by issuing a final determination of partial program adequacy of West Virginia's MSWLF permitting program.

EFFECTIVE DATE:

This final determination of partial program adequacy for the State of West Virginia shall be effective on April 28, 2000.

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FOR FURTHER INFORMATION CONTACT:

U.S. EPA Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029, Attn: Mr. Michael C. Giuranna, mailcode 3WC21, telephone (215) 814-3298. The contact for the West Virginia Division of Environmental Protection is Mr. Larry Atha, 1356 Hansford Street, Charleston, West Virginia 25301-1401, telephone (304) 558-6350.

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SUPPLEMENTARY INFORMATION:

A. Background

On October 9, 1991, EPA promulgated revised criteria for MSWLFs (40 CFR part 258). Section 4005(c)(1)(B) of Subtitle D of RCRA, as amended by HSWA, requires states to develop permitting or other similar programs that incorporate the federal criteria under 40 CFR part 258. Subtitle D also requires in Section 4005(c)(1)(C) that EPA determine the adequacy of state MSWLF permitting programs to ensure that facilities comply with the revised federal criteria. To fulfill this requirement, the Agency promulgated the State Implementation Rule on October 23, 1998 (63 FR 57025) which provides procedures by which EPA will approve or partially approve state landfill permit programs.

EPA interprets the requirements for states to develop “adequate” programs for permits, or other forms of prior approval, as imposing several minimum requirements. First, each state must have enforceable standards for new and existing MSWLFs that are technically comparable to EPA's revised MSWLF criteria. Next, the state must have the authority to issue a permit or other notice of prior approval to all new and existing MSWLFs in its jurisdiction. The state also must provide for public participation in permit issuance and enforcement as required in section 7004(b) of RCRA. Finally, EPA believes that the state must show that it has sufficient compliance monitoring and enforcement authorities to take specific action against any owner or operator who fails to comply with an approved MSWLF program.

EPA Regions determine whether state programs are “adequate” based on the criteria outlined above.

B. State of West Virginia

In a letter dated June 17, 1994, the West Virginia Division of Environmental Protection (WVDEP) submitted an application to EPA Region III for a determination of partial program adequacy. In response to EPA's comments on West Virginia's application, the WVDEP submitted additional information in letters dated April 10, 1995 and October 12, 1995. EPA reviewed WVDEP's application and this additional information and published a tentative determination of partial program adequacy for subparts B, C and D, and portions of subparts A, E and F of 40 CFR part 258, as described below, in the Federal Register on March 8, 1996 (61 FR 9451-9454).

A public comment period began on March 8, 1996, and ended on April 30, 1996. As announced in the notice of tentative determination, a public hearing was offered to be held on April 30, 1996, if sufficient interest was expressed by the public. Since only one commenter requested that a hearing be held, it was determined that sufficient interest did not exist, and therefore a public hearing was not held. This commenter submitted written comments which are addressed, along with all other comments, in Section C, Public Comments, of this notice. Following the close of the public comment period, WVDEP addressed all public comments which EPA received on its tentative determination. Based on WVDEP's response to comments, EPA was prepared to publish a final determination of partial program adequacy of the West Virginia MSWLF permitting program in late 1996. However, EPA delayed the final determination of partial program adequacy of West Virginia's program due to several rulings in the U.S. District Court for the Northern District of West Virginia which brought into question the implementation of portions of the West Virginia solid waste statutes. However, on March 2, 1998, the Governor of West Virginia signed into law Senate Bill 178 which corrected language in the State's solid waste laws that had previously been declared unconstitutional by the federal court rulings. The provisions of Senate Bill 178 eliminated EPA's concerns about the enforceability of West Virginia's solid waste statutes and allowed EPA to Start Printed Page 16525proceed with this final determination of partial program adequacy.

Listed below are the elements of the federal program that West Virginia's MSWLF permitting program satisfy for partial program approval. These elements of the federal program that West Virginia's MSWLF permitting program satisfy were listed in EPA's previous notice of tentative determination of partial program adequacy (61 FR 9451, March 8, 1996), and it is those corresponding provisions of West Virginia's MSWLF permitting program that are being approved by EPA today in this final determination of partial program adequacy.

Subpart A—General

Existing WVDEP requirements fully comply with 40 CFR sections 258.1, Purpose, Scope, and Applicability and § 258.3, Consideration of other Federal laws.

Subpart B—Location Restrictions

WVDEP requirements fully comply with § 258.10, Airport Safety, § 258.11, Floodplains; § 258.12, Wetlands; § 258.13, Fault Areas; § 258.14, Seismic Impact Zones; § 258.15, Unstable Areas; and § 258.16, Closure of Existing MSWLF Units.

Subpart C—Operating Criteria

WVDEP requirements fully comply with: § 258.20, Hazardous Waste Exclusion; § 258.21, Daily Cover; § 258.22, Disease Vectors Control; § 258.23, Explosive Gas Control; § 258.24, Air Criteria; § 258.25, Access requirements; § 258.26, Run-On/Run-Off Control Systems; § 258.27, Surface Water Requirements; § 258.28, Liquids Restrictions; and § 258.29, Recordkeeping Requirements.

Subpart D—Landfill Design

WVDEP requirements fully comply with: § 258.40, Design Criteria.

Subpart E—Groundwater Monitoring and Corrective Action

WVDEP requirements fully comply with: § 258.50, Applicability; § 258.53, Groundwater Sampling and Analysis requirements; § 258.56, Assessment of Corrective Measures; § 258.57, Selection of Remedy; and § 258.58, Implementation of the Corrective Action Program.

Subpart F—Closure and Post-Closure Care

WVDEP requirements fully comply with:

§ 258.61, Post-Closure Care Requirements.

In a similar manner, EPA's previous notice of tentative determination of partial program adequacy listed those elements of West Virginia's MSWLF permitting program that did not satisfy provisions of EPA's requirements at 40 CFR part 258. Those elements are again listed below and are not being approved in this notice. However, the federal program elements listed below are expected to be addressed in a future notice.

Subpart A—General

The definitions listed in § 258.2, Definitions.

Subpart E—Groundwater Monitoring and Corrective Action

The requirements of § 258.51, Groundwater Monitoring Systems; § 258.54, Detection Monitoring Program; and § 258.55, Assessment Monitoring Program.

Subpart F—Final Closure

The criteria in § 258.60, Closure Criteria, pertaining to the time allowed to apply the final cover.

Subpart G—Financial Assurance Criteria

§ 258 Subpart G, Financial Assurance requirements. This includes § 258.70, Applicability; § 258.71, Financial Assurance for Closure; § 258.72, Financial Assurance for Post-Closure Care; § 258.73, Financial Assurance for Corrective Action, § 258.74, Allowable Mechanisms and § 258.75, Discounting.

C. Public Comments

The reader is advised that West Virginia modified its numbering system for the Solid Waste Management Rule (the Rule) on June 2, 1996. Please note that within the following discussions, both old and new section numbers are provided for the Rule.

EPA Region III received written public comments on its tentative determination of partial program adequacy of the West Virginia MSWLF permitting program in April of 1996. At that time, two commenters raised several concerns over the incompatibility of the WVDEP solid waste regulations and the existing West Virginia Groundwater Protection Act, WV Code Section 22-12. Their primary concern was that the Groundwater Monitoring and Corrective Action Program portion of West Virginia's Solid Waste Management Rule at 47 Code of State Regulations (CSR) 38 section 4.11 presently 33 CSR 1 section 4.11 (as well as 40 CFR part 258, subpart E), were less protective than the West Virginia Groundwater Protection Act. WVDEP was aware of these deficiencies and had already addressed them by adding several references to the West Virginia Solid Waste Management Rule during the previous legislative rulemaking session. These references, which were added to the Solid Waste Facility Permitting Requirements of the Rule, were sections 33 CSR 1 sections 3.1e.1.D and 3.5.b, which require compliance with the West Virginia Groundwater Protection Act.

Another commenter questioned the wording of both 47 CSR 38 section 4.13.3 (presently 33 CSR 1 section 4.13.c) and 47 CSR 38 section 4.8.1.f (presently 33 CSR 1 section 4.8.a.6) of the Rule regarding leachate disposal as not conforming with the EPA requirements at 40 CFR 258.28. WVDEP was again already aware of the nonconformance in section 4.13.3 (presently section 4.13.c) and added Section 4.13.c.1.B to the Rule which incorporated the requirements of EPA regulations at 40 CFR 258.28. Section 4.8.1.f (presently section 4.8.a.6) of the Rule did not need to be revised to conform to federal requirements since this section, which covers the general practice of land application of treated leachate, is not an element of EPA regulations at 40 CFR 258.28. The leachate management provisions of 40 CFR 258.28 are limited to the placement of leachate onto or into the landfill itself for recirculation processes. This same commenter also questioned if the State's definition of a waste management facility boundary as defined in 47 CSR 38 section 4.11.1.f (presently 33 CSR 1 section 4.11.a.6.A) was in conflict with the EPA definition of the relative point of compliance for groundwater sampling purposes. The State was again already aware of this potential conflict and had revised 33 CSR 1 section 4.11.a.6.A to match the EPA regulation at 40 CFR 258.53(i)(1).

Two commenters noted that the presence of definitions for “Disposal” and “Solid Waste Disposal,” as well as “Landfill” and “Solid Waste Landfill Facility” in the State regulations could cause confusion. EPA agrees that having duplicate definitions appears unnecessary, but EPA does not believe they are in conflict with each other or with the federal definitions. Therefore, revisions to these definitions are not required. Concerning the comment that changes in some definitions may limit the rule's application to landfills only, it is noted that this is consistent with federal rules at 40 CFR part 258 which only apply to municipal solid waste landfills. Lastly, EPA does not agree with the previous commenter that West Virginia's solid waste recycling exemption previously under 47 CSR 38 section 2.53.7 (presently 33 CSR 1 Start Printed Page 16526section 2.114.g) conflicts with the definition of solid waste under the federal requirements. West Virginia's recycling exemption from solid waste refers to materials which are being recycled or reused, while EPA's definition of solid waste refers to materials which are being discarded. EPA's 40 CFR part 258 regulations apply to solid wastes destined for disposal consistent with West Virginia's rules. If waste materials are recycled or reused, by definition, they are not destined for disposal.

Finally, another commenter raised the concern that the existing WVDEP regulations on bonding and financial assurance exempt several major categories of MSWLF owners. The WVDEP, in written communication to EPA Region III, dated August 2, 1996, replied that this commenter's interpretation of a “non-commercial” facility was incorrect, and confirmed that all landfills in West Virginia which are subject to 40 CFR part 258 fall under the State's financial assurance requirements.

Additionally, EPA received a comment which expressed concern over “weaknesses” in the WVDEP groundwater monitoring program. EPA was aware that the State's groundwater monitoring program was not in compliance with EPA requirements under 40 CFR 258.51, Ground Water Monitoring Systems; 40 CFR 258.54, Detection Monitoring Program; and 40 CFR 258.55, Assessment Monitoring Program. This is why EPA did not propose to approve those portions of West Virginia's Groundwater Monitoring program in its tentative determination and why EPA is not including these components in today's final determination of partial program adequacy. However, the Rule has since been amended to correct those weaknesses, and EPA plans to publish a separate Federal Register notice addressing the above-referenced regulatory revisions to West Virginia's groundwater monitoring program.

D. Decision

As discussed in the “Public Comment” section of this notice, WVDEP has responded to the public comments received in response to EPA's notice of tentative determination of partial program adequacy. EPA is satisfied that all of the comments and related concerns raised as a result of the tentative determination of partial program adequacy have been resolved to EPA's satisfaction by the WVDEP. Therefore, EPA is granting a final determination of partial program adequacy of West Virginia's MSWLF permitting program, for 40 CFR part 258, subparts B, C and D, and portions of subparts A, E and F as described in Section B of the “Supplementary Information Section” of this notice.

Section 4005(a) of RCRA provides that citizens may use the citizen suit provisions of section 7002 of RCRA to enforce the federal MSWLF criteria in 40 CFR part 258 independent of any state enforcement program. As explained in the preamble to the final MSWLF criteria, EPA expects that any owner or operator complying with provisions of a state program approved by EPA should be considered to be in compliance with the federal criteria (56 FR 50978, 50995, October 9, 1991).

Compliance With Executive Order 12866—Regulatory Planning and Review

The Office of Management and Budget has exempted today's action from the requirements of Executive Order 12866.

Compliance With Executive Order 12898—Environmental Justice

EPA is committed to addressing environmental justice concerns and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities, and all people live in clean and sustainable communities. EPA does not believe that today's action will have a disproportionately high and adverse environmental or economic impact on any minority or low-income group, or on any other type of affected community.

Compliance With Executive Order 13045—Children's Health Protection

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) the Office of Management and Budget determines is “economically significant” as defined under Executive Order 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 rule is not subject to E.O. 13045 because it is not an economically significant rule as defined by E.O. 12866, and because it does not involve decisions based on environmental health or safety risks.

Compliance With Executive Order 13084—Consultation and Coordination With Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies with consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

This rule is not subject to E.O. 13084 because it does not significantly or uniquely affect the communities of Indian tribal governments. West Virginia is not authorized to implement the MSWLF permitting program in Indian country.

Compliance With 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.”

Under Section 6 of Executive Order 13132, EPA may not issue a regulation Start Printed Page 16527that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

This approval does not have federalism implications. It will not have a substantial direct effect on 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, because this rule affects only one State. This action simply approves portions of West Virginia's MSWLF permitting program that the State has voluntarily chosen to operate. Thus, the requirements of Section 6 of the Executive Order do not apply.

Certification Under the 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 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 action on small entities, small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (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.

After considering the economic impacts of this approval on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that are owners or operators of municipal sold waste landfills are already subject to the regulatory requirements under the State laws which EPA is now approving. This action merely approves for the purpose of RCRA 4005(c) those existing State requirements.

Compliance With the 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 today's document 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 today's action in the Federal Register. Today's action is not a “major rule” as defined by section 5 U.S.C. 804(2).

Compliance With the 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 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.

EPA has determined that section 202 and 205 requirements do not apply to today's action because this rule does not contain a federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. Costs to State, local and/or tribal governments already exist under the West Virginia program, and today's action does not impose any additional obligations on regulated entities. In fact, EPA's approval of state programs generally may reduce, not increase, compliance costs for the private sector. Further, as it applies to the State, this action does not impose a federal intergovernmental mandate because UMRA does not include duties arising from participation in a voluntary federal program.

The requirements of section 203 of UMRA also do not apply to today's action because this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may own or operate municipal solid waste landfills, they are already subject to the regulatory requirements under the existing State laws that are being approved by EPA, and, thus, are not subject to any additional significant or unique requirements by virtue of this program approval.

Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.

Compliance With the National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Sec. 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus Start Printed Page 16528standards 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 action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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List of Subjects in 40 CFR Part 258

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Authority: This notice is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a).

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Dated: March 14, 2000.

Bradley M. Campbell,

Regional Administrator, Region III.

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[FR Doc. 00-7624 Filed 3-28-00; 8:45 am]

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