[Federal Register Volume 62, Number 162 (Thursday, August 21, 1997)]
[Proposed Rules]
[Pages 44430-44434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22066]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5878-4]
National Priorities List for Uncontrolled Hazardous Waste Sites,
Proposed Rule
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule; Amendment of Montrose Chemical Corporation Site
Listing.
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SUMMARY: The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (``CERCLA'' or ``the Act'') requires that the
National Oil and Hazardous Substances Pollution Contingency Plan
(``NCP''), found at 40 CFR part 300, include a list of national
priorities among the known releases or threatened releases of hazardous
substances, pollutants, or contaminants throughout the United States.
The National Priorities List (``NPL'') constitutes this list. The NPL
is found in Appendix B of 40 CFR part 300.
The principal mechanism for placing sites on the NPL is the Hazard
Ranking System (HRS). Under the HRS various conditions at a site (for
example, volumes of waste present or relative toxicity of pollutants)
are assigned numerical values to develop a total score that measures
the relative risk at a site compared with other sites. The HRS is found
in Appendix A of 40 CFR part 300. A site with a total score in excess
of 28.5 under the HRS is eligible for listing on the NPL.
The NPL is intended primarily to guide the Environmental Protection
Agency (``EPA'' or ``the Agency'') in determining which sites warrant
further investigation to assess the nature and extent of public health
and environmental risks associated with the site and to determine what
CERCLA-financed remedial action(s), if any, may be appropriate.
EPA is proposing today to add to the Montrose Chemical Corporation
National Priorities Listing certain DDT-and PCB-contaminated sediments
found on the seafloor off the coast of the Palos Verdes Peninsula in
Southern California. EPA is also soliciting comments from the public on
this proposal consistent with 40 CFR 300.425(d)(5)(i).
DATES: Comments on this proposal must be submitted (postmarked) on or
before October 20, 1997.
ADDRESSES: By Mail: Mail original and three copies of comments (no
facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. EPA;
CERCLA Docket Office (Mail Code 5201G); 401 M Street, SW; Washington,
DC 20460; (703) 603-9232.
By Overnight Mail: Send original and three copies of comments (no
facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. EPA;
CERCLA Docket Office; 1235 Jefferson Davis Highway; Crystal Gateway #1,
First Floor; Arlington, VA 22202.
By E-Mail: Comments in ASCII format only may be mailed directly to
SUPER- [email protected] E-mailed comments must be followed
up by an original and three copies sent by mail or Federal Express.
If you wish to view documents themselves, requests for appointments
or copies of the background information from the public docket should
be directed to:
Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office
(Mail Code 5201G); Crystal Gateway #1, 1st Floor; 1235 Jefferson Davis
Highway; Arlington, VA 22202. Phone: (703) 603-9232; Hours: 9:00 a.m.
to 4:00 p.m. Monday through Friday excluding Federal holidays. (Please
note this is the viewing address only. Do not mail documents to this
address.)
FOR FURTHER INFORMATION CONTACT: Carolyn Douglas, NPL Coordinator, U.S.
EPA Region 9, (415) 744-2343.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Contents of This Proposed Rule
III. Executive Order 12866
IV. Unfunded Mandates
V. Effect on Small Businesses
I. Introduction
The Palos Verdes Shelf area that is subject to this rulemaking is
an extremely important commercial and recreational fishing area and an
area of high marine productivity that has become highly contaminated
with
[[Page 44431]]
hazardous substances that have the potential to severely impact human
health and the environment. This area has been the subject of intense
investigation by federal agencies charged with protection of human
health and the environment and has generated complex litigation.
In view of the serious potential public health and environmental
risks associated with this area, EPA is proposing to add the Palos
Verdes Shelf contamination to the existing Montrose Chemical
Corporation National Priorities Listing. A discussion of background on
this issue follows.
Statutory and Regulatory Background
In 1980, Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. 9601-9675 (``CERCLA'' or
``the Act''), in response to the dangers of uncontrolled hazardous
waste sites. CERCLA was amended on October 17, 1986, by the Superfund
Amendments and Reauthorization Act (``SARA''), Public Law No. 99-499,
stat. 1613 et seq. To implement CERCLA, EPA promulgated the revised
National Oil and Hazardous Substances Pollution Contingency Plan
(``NCP''), 40 CFR Part 300, on July 16, 1982 (47 FR 31180), pursuant to
CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20,
1981). The NCP sets forth the guidelines and procedures needed to
respond under CERCLA to releases and threatened releases of hazardous
substances, pollutants, or contaminants. EPA has revised the NCP on
several occasions. The most recent comprehensive revision was on March
8, 1990 (55 FR 8666).
Section 105(a)(8)(A) of CERCLA requires that the NCP include
``criteria for determining priorities among releases or threatened
releases throughout the United States for the purpose of taking
remedial action. * * *''
Pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA
has promulgated a list of national priorities among the known or
threatened releases of hazardous substances, pollutants, or
contaminants throughout the United States. That list, which is Appendix
B of 40 CFR Part 300, is the National Priorities List (``NPL'').
CERCLA section 105(a)(8)(B) defines the NPL as a list of
``releases'' and as a list of the highest priority ``facilities.''
CERCLA section 105(a)(8)(B) also requires that the NPL be revised at
least annually. A site may undergo remedial action financed by the
Trust Fund established under CERCLA (commonly referred to as the
``Superfund'') only after it is placed on the NPL, as provided in the
NCP at 40 CFR 300.425(b)(1).
However, under 40 CFR 300.425(b)(2) placing a site on the NPL
``does not imply that monies will be expended.'' EPA may pursue other
appropriate authorities to remedy the releases, including enforcement
action under CERCLA and other laws. Further, the NPL is only of limited
significance, as it does not assign liability to any party or to the
owner of any specific property. See Report of the Senate Committee on
Environment and Public Works, Senate Rep. No. 96-848, 96th Cong., 2d
Sess. 60 (1980), quoted at 48 FR 40659 (September 8, 1983).
Three mechanisms for placing sites on the NPL are included in the
NCP at 40 CFR 300.425(c). Under 40 CFR 300.425(c)(1), a site may be
included on the NPL if it scores sufficiently high on the Hazard
Ranking System (``HRS''), which EPA promulgated as Appendix A of 40 CFR
Part 300. On December 14, 1990 (55 FR 51532), EPA promulgated revisions
to the HRS partly in response to CERCLA section 105(c), added by SARA.
The revised HRS evaluates four pathways: ground water, surface water,
soil exposure, and air.
The HRS serves as a screening device to evaluate the relative
potential of uncontrolled hazardous substances to pose a threat to
human health or the environment. Those sites that score 28.50 or
greater on the HRS are eligible for the NPL.
Under a second mechanism for adding sites to the NPL, each State
may designate a single site as its top priority, regardless of the HRS
score. This mechanism is provided by the NCP at 40 CFR 300.425(c)(2).
Statutory authority for this provision is provided in CERCLA section
105(a)(8)(B) which provides that, to the extent practicable, the NPL
include one facility designated by each State representing the greatest
danger to public health, welfare, or the environment among known
facilities in the State.
The third mechanism for listing, included in the NCP at 40 CFR
300.425(c)(3), allows certain sites to be listed regardless of their
HRS score, if all of the following conditions are met:
The Agency for Toxic Substances and Disease Registry
(ATSDR) of the U.S. Public Health Service has issued a health advisory
that recommends dissociation of individuals from the release.
EPA determines that the release poses a significant threat
to public health.
EPA anticipates that it will be more cost-effective to use
its remedial authority (available only at NPL sites) than to use its
removal authority to respond to the release.
EPA promulgated an original NPL of 406 sites on September 8, 1983
(48 FR 40658). The NPL has been expanded since then, most recently on
April 1, 1997 (62 FR 15572).
The NPL serves primarily informational purposes, identifying for
the States and the public those facilities and sites or other releases
which appear to warrant remedial actions. Inclusion of a facility or
site on the NPL does not require an owner or operator to undertake any
action, nor does it assign liability to any person. Separate government
action in the form of remedial or removal actions or enforcement
actions would be necessary in order to do so, and these actions would
be attended by all procedural safeguards required by law.
The purpose of the NPL is primarily to serve as an informational
and management tool. The identification of a site on the NPL is
intended primarily to guide EPA in determining which sites warrant
further investigation to assess the nature and extent of the public
health and environmental risks associated with the site and to
determine what CERCLA response actions, if any, may be appropriate. The
NPL also serves to notify the public of sites that EPA believes warrant
further investigation and potentially, cleanup activities.
The Palos Verdes Shelf
General History. From 1947 until 1982, Montrose Chemical
Corporation of California, Inc. (Montrose) operated a manufacturing
facility in Los Angeles for the production of dichloro-diphenyl
trichloroethane (DDT), an agricultural pesticide. During this period,
Montrose was among the largest producers of DDT in the United States.
There were numerous releases of DDT and other hazardous substances
from the Montrose plant as a result of spills of contaminated
wastewater, storage and disposal of contaminated wastewater in an
unlined pond, surface water runoff, and aerial dispersion. In addition,
Montrose discharged process wastewater containing large quantities of
DDT into the sewer system maintained by County Sanitation District No.
2 of Los Angeles County (LACSD). This contaminated wastewater flowed to
a wastewater treatment plant owned by LACSD and was discharged to the
Pacific Ocean through submarine outfalls on the Palos Verdes Shelf,
[[Page 44432]]
resulting in DDT contamination of the sediments on the Shelf.
DDT and other hazardous substances from the Montrose plant also
reached the Pacific Ocean via surface water runoff that was carried via
stormwater channels to the Consolidated Slip in the Los Angeles harbor.
EPA began investigating releases from the Montrose plant in 1982.
In 1984 EPA proposed to add the Montrose Chemical Corporation site to
the NPL. (49 FR 40320, October 15, 1984) Following further
investigation, on October 4, 1989, EPA issued a final regulation
amending the NPL to add several sites, including the Montrose Chemical
Corporation Site (Montrose NPL Site). (54 FR 41015) The administrative
record supporting the 1989 listing decision includes an EPA study
concluding that the DDT contamination on the Palos Verdes Shelf
resulted from the DDT releases at the Montrose plant:
Montrose sewer discharges (which have now been controlled) have
created a large ``reservoir'' of the pesticide in offshore sediment
* * *.
According to recent EPA estimates * * * consumption of seafood
from the Whites Point area may present an elevated health risk due
to DDT contamination.
United States EPA Region 9, Toxics and Waste Management Div.,
Investigative Report, No. C (83) E002 (April 11, 1983) at 7, included
in U.S. EPA Hazard Ranking Package and Support Document for the
Montrose NPL Site (Reference 13). Also in the administrative record for
the 1989 listing decision is an October 7, 1970, Los Angeles Times
article attributing 75% of the DDT contamination in the Santa Monica
Bay to the Montrose plant.
The PCB contamination in sediments on the Palos Verdes Shelf
originated, in part, at a plant operated in Los Angeles County by
Westinghouse Electric Corporation (Westinghouse). From 1956 to the mid-
1990's, Westinghouse manufactured and repaired electrical equipment at
this plant. Like DDT from the Montrose Chemical plant, PCBs from the
Westinghouse plant and other plants in the Los Angeles area entered the
LACSD sewer system, flowed to the LACSD treatment plant, and were
discharged to the Pacific Ocean via outfalls located on the Palos
Verdes Shelf.
In June, 1990, the United States and the State of California filed
suit in U.S. district court in California against various parties
associated with the Montrose and Westinghouse plants under Section 107
of CERCLA. United States v. Montrose Chemical Corporation of
California, et al., No. CV 90-3122-AAH(Jrx) (C.D. Cal.). Two claims are
asserted in that action. First, federal and state natural resource
trustees--e.g., the National Oceanic and Atmospheric Administration
(NOAA), the U.S. Fish and Wildlife Service, the National Park Service,
the California Department of Fish and Game, the California State Lands
Commission and the California Department of Parks and Recreation--seek
to recover natural resource damages for injury to trust resources as a
result of DDT and PCB contamination on the Palos Verdes Shelf and other
marine areas. Second, EPA is seeking compel the implementation of
response actions and to recover response costs incurred and to be
incurred by the United States under CERCLA in connection with the
releases from the Montrose plant and related operations to the soil,
groundwater, and the stormwater and sewer pathways.
Several response actions are currently underway to address these
releases. Montrose is performing an RI/FS concerning contaminated soil
and groundwater at and in the vicinity of the Montrose plant. EPA is
conducting a removal action to identify and excavate DDT-contaminated
fill in several nearby residential properties and has begun an
investigation of DDT dust that may have been released from the Montrose
plant and deposited in nearby residential and commercial/industrial
areas. EPA is also conducting an investigation of the historic and
current stormwater pathway from the Montrose plant to the Consolidated
Slip in Los Angeles Harbor. EPA is pursuing removal of DDT-contaminated
sediments in the LACSD sewer lines adjacent to and downstream from the
Montrose plant.
While EPA has been conducting response actions at and in the
vicinity of the Montrose plant, the federal and state CERCLA natural
resource trustees (the trustees) have conducted an investigation of DDT
and PCB contamination on the Palos Verdes Shelf and of the impact of
this contamination on natural resources in the area. The results of the
trustees' damage assessment investigation, including extensive expert
evaluations, were made available to EPA and the public in October 1994.
These studies indicate that there are approximately 100 metric tons
of DDT and 10 metric tons of PCBs in a well-defined deposit of sediment
covering a 16 square mile area on the shelf and adjacent continental
slope in the vicinity of the LACSD wastewater outfall. These studies
further confirm extremely elevated levels of DDT and PCBs in the tissue
of fish and eggs of birds in this offshore area.
After reviewing the federal and state natural resource trustees'
damage assessment reports, EPA in December 1994 began to consider
whether it should undertake response actions directed at the DDT and
PCB contamination on the Palos Verdes Shelf. EPA had long been
addressing DDT contamination at and emanating from the Montrose plant,
including contamination through the groundwater, through stormwater
runoff channels, into neighboring properties, through the sewer system,
and into the consolidated slip. The information in the trustees' damage
assessments confirmed that the DDT and PCBs on the Palos Verdes Shelf
pose a continuing threat to natural resources in the area.
In July 1996, EPA initiated its own CERCLA investigation of the
Palos Verdes Shelf. In a memorandum, dated July 9, 1996 and approved on
July 10, 1996, EPA decided to initiate a Superfund removal
investigation, known as an Engineering Evaluation and Cost Analysis
(EE/CA), to evaluate the need for action and to evaluate alternatives
for addressing the contaminated sediment on the Palos Verdes Shelf. \1\
This memorandum extensively documents the threat to human health and
the environment posed by the DDT and PCB contamination on the Palos
Verdes Shelf. By this memorandum, EPA staff was authorized to gather
information regarding whether response activities should be undertaken
to address the contamination on the Palos Verdes Shelf and, if so, to
evaluate possible cleanup actions.
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\1\ This memorandum is titled ``Engineering Evaluation and Cost
Analysis Approval Memorandum for Addressing Contaminated Marine
Sediments on the Palos Verdes Shelf,'' from Andrew Lincoff and
Michael Montgomery, Remedial Project Managers, to Keith Takata,
Acting Director, Hazardous Waste Management Division, EPA Region 9.
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At the same time EPA also decided that the investigation of the
Palos Verdes Shelf should be managed as part of the response activities
being conducted by EPA in connection with the Montrose NPL Site.
Finding that the majority of the DDT present on the Palos Verdes Shelf
originated at the Montrose plant, EPA concluded that a consolidated
management approach would facilitate the funding, staffing, and
administration of its investigation. The memorandum memorializing this
decision was issued at the same time as the memorandum approving the
EE/CA. \2\
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\2\ This memorandum is titled ``Management of EPA Superfund
Response Activities as Part of EPA Response Actions Taken in
Connection With the Montrose Chemical NPL Site,'' from Andrew
Lincoff and Michael Montgomery, Remedial Project Managers, to Keith
Takata, Acting Director, Hazardous Waste Management Division, EPA
Region 9.
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[[Page 44433]]
II. Contents of This Proposed Rule
EPA is proposing to amend the Montrose Chemical Corporation
National Priorities Listing to include the DDT and PCB contamination on
the Palos Verdes Shelf, discussed above. EPA's proposal is based on an
HRS score for the Palos Verde Shelf of 50, well above the HRS score of
28.50 necessary for NPL eligibility. However, rather than proposing the
Palos Verdes Shelf as a separate site, EPA is instead proposing to
amend the existing Montrose Chemical Corporation National Priorities
Listing to include the DDT and PCB contamination on the Palos Verdes
Shelf. In this regard, EPA is applying its site aggregation policy. The
site aggregation policy is discussed in a memorandum to the file, from
Carolyn Douglas, NPL Coordinator, EPA Region 9, dated August 13, 1997,
which is included in the listing package.
By this proposed rulemaking, EPA intends to make clear to the
public that the Agency believes there are immediate and serious public
health and environmental risks associated with the Palos Verdes Shelf,
as reflected in the HRS evaluation, and that the Agency believes the
Palos Verdes Shelf should be designated as part of the Montrose
Chemical Corporation National Priorities Listing.
Public Comment
The documents that form the basis for EPA's evaluation and scoring
of sites in this rule are contained in dockets located both at EPA
Headquarters and in EPA Region 9. The dockets are available for
viewing, by appointment only, after the appearance of this proposed
rule. The hours of operation for the Headquarters docket are from 9:00
a.m. to 4:00 p.m., Monday through Friday excluding Federal holidays.
The hours of operation of the Region 9 docket are from 8 a.m. to 5
p.m., Monday through Friday, excluding Federal holidays.
Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, (Mail
Code 5201G), Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis
Highway, Arlington, VA 22202, 703/603-9232.
(Please note this is the viewing address only. Mail comments to address
listed in Addresses section above.)
Carolyn Douglas SFD5, U.S. EPA, Region 9, 75 Hawthorne Street, San
Francisco, CA 94105, 415/744-2343.
The Headquarters docket for this rulemaking contains the following
information for the Palos Verdes Shelf: HRS score sheets; a
Documentation Record describing the information used to compute the
score; pertinent information regarding application of the EPA
Aggregation Policy in this matter; and a list of documents referenced
in the Documentation Record. The Region 9 docket in this matter
contains all of the information in the Headquarters docket, plus the
actual reference documents containing the data principally relied upon
and cited by EPA in calculating the HRS score for the Palos Verdes
Shelf.
The Headquarters docket also contains an ``Additional Information''
document which provides a general discussion of the statutory
requirements affecting NPL listing, the purpose and implementation of
the NPL, and the economic impacts of NPL listing.
EPA will consider all comments received during the comment period.
During the comment period, comments are placed in the Headquarters
docket and are available to the public on an ``as received'' basis. A
complete set of comments will be available for viewing in the Region 9
docket approximately one week after the formal comment period closes.
Comments received after the comment period closes will be available in
the Headquarters and Regional dockets on an ``as received'' basis. EPA
cannot delay its final decision in this matter solely to accommodate
late comments.
Comments that include or rely on complex or voluminous reports, or
materials prepared for purposes other than HRS scoring, should point
out the specific information that EPA should consider and how it
affects the individual HRS factor values. See Northside Sanitary
Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988). EPA will make its
final decision in this matter after considering the relevant comments
received during the comment period.
III. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
IV. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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. When a written statement is needed for an EPA rule, 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, giving
them meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
Today's rule contains no Federal mandates (within the meaning of
Title II of the UMRA) for State, local, or tribal governments or the
private sector. Nor does it contain any regulatory requirements that
might significantly or uniquely affect small governments. This is
because today's listing decision does not impose any enforceable duties
upon any of these governmental entities or the private sector.
Inclusion of a site on the NPL does not itself impose any costs. It
does not establish that EPA necessarily will undertake remedial action,
nor does it require any action by a private party or determine its
liability for site response costs. Costs that arise out of site
responses result from site-by-site decisions about what actions to
take, not directly from the act of listing itself. Therefore, today's
rulemaking is not subject to the requirements of sections 202, 203 or
205 of the Unfunded Mandates Reform Act.
V. Effect on Small Businesses
The Regulatory Flexibility Act of 1980 requires EPA to review the
impacts of this action on small entities, or certify that the action
will not have a significant impact on a substantial
[[Page 44434]]
number of small entities. By small entities, the Act refers to small
businesses, small government jurisdictions, and nonprofit
organizations.
While this rule proposes to revise the NPL, an NPL revision is not
a typical regulatory change since it does not automatically impose
costs. As stated above, adding sites to the NPL does not in itself
require any action by any party, nor does it determine the liability of
any party for the cost of cleanup at the site. Further, no identifiable
groups are affected as a whole. As a consequence, impacts on any group
are hard to predict. A site's inclusion on the NPL could increase the
likelihood of adverse impacts on responsible parties (in the form of
cleanup costs), but at this time EPA cannot identify the potentially
affected businesses or estimate the number of small businesses that
might also be affected.
EPA does not expect the listing of this site to have a significant
economic impact on a substantial number of small businesses.
In any case, economic impacts would occur only through enforcement
and cost-recovery actions, which EPA takes at its discretion on a site-
by-site basis. EPA considers many factors when determining enforcement
actions, including not only a firm's contribution to the problem, but
also its ability to pay. The impacts (from cost recovery) on small
governments and nonprofit organizations would be determined on a
similar case-by-case basis.
For the foregoing reasons, I hereby certify that this proposed
rule, if promulgated, will not have a significant economic impact on a
substantial number of small entities. Therefore, this proposed
regulation does not require a regulatory flexibility analysis.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous materials, Intergovernmental relations, Natural resources,
Oil pollution, Reporting and recordkeeping requirements, Superfund,
Waste treatment and disposal, Water pollution control, Water supply.
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p. 193.
Dated: August 14, 1997.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency
Response.
[FR Doc. 97-22066 Filed 8-20-97; 8:45 am]
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