7809
Federal
Register
/
Vol.
65,
No.
32
/
Wednesday,
February
16,
2000
/
Proposed
Rules
(
3)
Secondary
service
connection
is
established
for
ischemic
heart
disease
or
other
cardiovascular
disease
under
§
3.310(
b).
(
c)
For
claims
for
secondary
service
connection
received
by
VA
after
June
9,
1998,
a
disability
that
is
proximately
due
to
or
the
result
of
an
injury
or
disease
previously
service­
connected
on
the
basis
that
it
is
attributable
to
the
veteran's
use
of
tobacco
products
during
service
will
not
be
service­
connected
under
§
3.310(
a).
(
Authority:
38
U.
S.
C.
501(
a),
1103,
1103
note)

§
3.310
[
Amended]
3.
In
§
3.310,
paragraph
(
a)
is
amended
by
removing
``
Disability''
and
adding,
in
its
place,
``
Except
as
provided
in
§
3.300(
c),
disability''.

[
FR
Doc.
00
 
3662
Filed
2
 
15
 
00;
8:
45
am]

BILLING
CODE
8320
 
01
 
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
268
[
FRL
 
6538
 
2]

RIN
2050
 
AE76
Deferral
of
Phase
IV
Standards
for
PCB's
as
an
Underlying
Hazardous
Constituent
in
Soil
AGENCY:
Environmental
Protection
Agency.
ACTION:
Proposed
rule.

SUMMARY:
EPA
is
proposing
to
temporarily
defer
a
portion
of
the
rule
applying
Land
Disposal
Restrictions
(
LDR)
under
the
Resource
Conservation
and
Recovery
Act
(
RCRA)
to
underlying
hazardous
constituents
(
UHC)
in
soils
contaminated
with
certain
characteristic
hazardous
wastes.
EPA
promulgated
this
rule
on
May
26,
1998.
Specifically,
EPA
is
proposing
to
temporarily
defer
the
requirement
that
polychlorinated
biphenyls
(
PCBs)
be
considered
a
UHC
when
they
are
present
in
soils
that
exhibit
the
Toxicity
Characteristic
for
metals.
EPA
is
proposing
this
action
because
the
regulation
appears
to
be
discouraging
generators
from
cleaning
up
contaminated
soils,
which
is
contrary
to
what
EPA
intended
when
we
promulgated
alternative
treatment
standards
for
contaminated
soils.
In
addition,
EPA
needs
more
time
to
restudy
the
issue
of
appropriate
treatment
standards
for
metalcontaminated
soils
which
also
contain
PCBs
as
UHC.
If
this
proposal
is
finalized,
the
Agency
would
still
require
generators
to
treat
these
soils
to
meet
LDR
standards
for
all
hazardous
constituents
except
PCBs.
Generators
would
also
be
required
to
treat
PCBs
if
the
total
concentration
of
halogenated
organic
compounds
in
the
soil
equals
or
exceeds
1000
parts
per
million.
DATES:
Submit
comments
on
or
before
April
3,
2000.
ADDRESSES:
Address
written
comments
on
this
proposed
rule
to
the
docket
clerk
at
the
following
address:
RCRA
Information
Center
(
RIC),
Crystal
Gateway
I,
First
Floor,
1235
Jefferson
Davis
Highway,
Arlington,
VA.
The
Docket
Identification
Number
is
F
 
2000
 
PCBP
 
FFFFF.
The
RIC
is
open
from
9:
00
a.
m.
to
4:
00
p.
m.,
Monday
through
Friday,
excluding
Federal
holidays.
To
review
docket
materials,
the
Agency
recommends
that
the
public
make
an
appointment
by
calling
(
703)
603
 
9230.
The
public
may
copy
a
maximum
of
100
pages
from
any
regulatory
docket
at
no
charge.
Additional
copies
cost
$
0.15/
page.
The
index
and
some
supporting
materials
are
available
electronically.
See
the
Supplementary
Information
section
for
information
on
accessing
them.
FOR
FURTHER
INFORMATION
CONTACT:
For
general
information,
contact
the
RCRA
Hotline
at
(
800)
424
 
9346
or
TDD
(
800)
553
 
7672
(
hearing
impaired).
In
the
Washington,
D.
C.
metropolitan
area,
call
(
703)
412
 
9810
or
TDD
(
703)
412
 
3323.
For
more
detailed
information
on
specific
aspects
of
this
rulemaking,
contact
Ernesto
Brown,
Office
of
Solid
Waste,
Mail
Code
5303W,
U.
S.
Environmental
Protection
Agency,
1200
Pennsylvania
Ave
NW,
Washington,
D.
C.
20460
 
0002,
(
703)
308
 
8608,
brown.
ernie@
epa.
gov
SUPPLEMENTARY
INFORMATION:
You
can
find
the
index
and
the
following
supporting
materials
on
the
Internet
at:
http://
www.
epa.
gov/
epaoswer/
hazwaste/
ldr/
index.
htm
Preamble
Outline:

I.
Authority
II.
Purpose
III.
How
Can
I
Influence
EPA's
Thinking
on
this
Rule?
IV.
Background
A.
Land
Disposal
Restrictions
Program
B.
Soils
Subject
to
LDR
Requirements
C.
Alternative
Treatment
Standards
for
Contaminated
Soils
D.
Underlying
Hazardous
Constituents
V.
Need
to
Defer
the
Phase
IV
Rule
A.
Why
Has
Remediation
Stopped?
B.
Why
is
EPA
Considering
Temporary
Deferral?
C.
What
is
the
Effect
of
the
Deferral?
VI.
State
Authorization
VII.
Regulatory
Assessments
A.
Executive
Order
12866
B.
Regulatory
Flexibility
Act
C.
Unfunded
Mandates
Reform
Act
D.
Paperwork
Reduction
Act
E.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
F.
National
Technology
Transfer
and
Advancement
Act
G.
Executive
Order
12898:
Environmental
Justice
H.
Executive
Order
13132:
Federalism
I.
Executive
Order
13084:
Consultation
and
Coordination
with
Indian
Tribal
Governments
I.
Authority
EPA
is
proposing
these
regulations
under
the
authority
of
sections
1006(
B),
2002,
and
3004
of
RCRA,
as
amended,
42
U.
S.
C.
6905,
6012(
a),
6921,
and
6924.

II.
Purpose
EPA
is
proposing
this
action
because
the
existing
regulation
appears
to
discourage
remediation
of
certain
contaminated
soils,
contrary
to
EPA's
intent
in
promulgating
alternative
treatment
standards
for
contaminated
soils.
In
addition,
EPA
needs
more
time
to
review
the
issue
of
appropriate
treatment
standards
for
metalcontaminated
soils
that
also
contain
PCBs
as
UHC.

III.
How
Can
I
Influence
EPA's
Thinking
on
this
Rule?

In
developing
this
proposal,
we
tried
to
address
the
concerns
of
all
our
stakeholders.
Your
comments
will
help
us
improve
this
rule.
We
invite
you
to
provide
different
views
on
options
we
propose,
new
approaches
we
haven't
considered,
new
data,
how
this
rule
may
affect
you,
or
other
relevant
information.
We
welcome
your
views
on
all
aspects
of
this
proposed
rule.
Your
comments
will
be
most
effective
if
you
follow
the
suggestions
below:
·
Explain
your
views
as
clearly
as
possible
and
why
you
feel
that
way.
·
Provide
solid
technical
and
cost
data
to
support
your
views.
·
If
you
estimate
potential
costs,
explain
how
you
arrived
at
the
estimate.
·
Tell
us
which
parts
you
support,
as
well
as
those
you
disagree
with.
·
Provide
specific
examples
to
illustrate
your
concerns.
·
Offer
specific
alternatives.
·
Refer
your
comments
to
specific
sections
of
the
proposal,
such
as
the
units
or
page
numbers
of
the
preamble,
or
the
regulatory
sections.
·
Make
sure
to
submit
your
comments
by
the
deadline
in
this
notice.
·
Be
sure
to
include
the
name,
date,
and
docket
number
with
your
comments.

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Federal
Register
/
Vol.
65,
No.
32
/
Wednesday,
February
16,
2000
/
Proposed
Rules
1
Technically,
the
soils
which
are
subject
to
LDRs,
are
a)
soil
which
contains
a
listed
hazardous
waste,
and
b)
soil
which
exhibits
(
or,
in
some
cases,
exhibited)
a
characteristic
of
hazardous
waste.
See
discussion
at
63
FR
28617
 
28619.
This
notice
applies
to
subsets
of
each
of
these
types
of
contaminated
soils,
as
explained
later
in
this
notice.
This
notice
also
uses
the
term
``
contaminated
soils''
to
refer
to
soils
which
may
potentially
be
subject
to
LDRs.
2
The
requirement
already
applied,
however,
to
soils
exhibiting
the
ignitability,
corrosivity,
reactivity,
or
organic
toxicity
characteristics.
IV.
Background
A.
Land
Disposal
Restrictions
Program
The
LDR
program
requires
that
generators
of
hazardous
wastes
pretreat
the
wastes
before
they
can
be
disposed
of
on
land.
The
treatment
must
substantially
reduce
the
toxicity
or
mobility
of
the
hazardous
waste
to
minimize
short­
and
long­
term
threats
to
human
health
and
the
environment
posed
by
the
waste's
disposal.
EPA
typically
accomplishes
this
objective
by
requiring
that
hazardous
constituents
in
the
wastes
be
treated
to,
or
be
present
at
levels
no
greater
than
levels
that
can
be
achieved
using
the
Best
Demonstrated
Available
Technology
for
the
waste.

B.
Soils
Subject
to
LDR
Requirements
The
rule
subjects
soils
contaminated
with
hazardous
wastes
to
LDR
requirements
when
a
generator
excavates
soils
from
an
area
of
contamination
and
disposes
of
it
in
a
land
disposal
unit.
(
See
RCRA
sections
3004(
d)(
3)
and
(
e)(
3);
63
FR
28602)
1.
Before
the
Agency
promulgated
LDR
Phase
IV
standards,
the
Agency
subjected
contaminated
soil
to
the
same
land
disposal
restriction
treatment
standards
that
apply
to
industrial
process
waste.
EPA,
however,
has
promulgated
different
treatment
standards
for
contaminated
soils
than
for
process
wastes.
The
Agency
did
so
because:
Soils
are
physically
different
from
process
wastes,
so
that
the
same
treatment
standards
may
not
be
technically
appropriate.
See
63
FR
28603.
When
generators
apply
treatment
standards
for
process
wastes
to
contaminated
soils,
environmentally
counterproductive
results
can
ensue,
because
generators
often
choose
not
to
undertake
remediation
such
as
the
exhumation
and
treatment
of
contaminated
soils,
even
though
the
Agency
feels
is
the
most
permanent
approach.
See
63
FR
28603
 
28604.
This
is
because
EPA
cannot
always
compel
generators
of
contaminated
soil
to
exhume,
treat
and
redispose
the
soils.
The
relevant
statutes
and
rules
often
allow
generators
to
remediate
soils
by
leaving
contaminated
soil
in
place
and
providing
controls
on
possible
human
exposure
to
those
soils,
(
for
example,
capping)
which
can
be
much
less
expensive
than
requiring
that
generators
excavate
and
treat
the
soil.
See
63
FR
28603
 
28604;
see
also
Louisiana
Environmental
Action
Network
v.
EPA,
172
F.
3d
65,
67,
70
(
D.
C.
Cir.
1999)
which
upheld
EPA's
authority
to
develop
more
lenient
treatment
standards
for
contaminated
soils
and
other
remediation
wastes
in
order
to
encourage
remediation
involving
exhumation
and
treatment
of
these
wastes,
since
``
the
agency's
authority
to
compel
high­
quality
disposition
of
such
waste
is
not
as
great
as
it
is
for
as
yet
undisposed
waste.''

C.
Alternative
Treatment
Standards
for
Contaminated
Soils
Generators
have
the
option
of
complying
either
with
the
existing
treatment
standards
for
industrial
process
waste
or
with
the
new
soil
treatment
standards.
The
purpose
for
these
new
standards
is
to
encourage
generators
to
remediate
and
treat
contaminated
soil,
and
in
particular,
to
avoid
discouraging
such
remediation
when
soil
is
contaminated
with
organic
hazardous
constituents.
See
63
FR
28603.
For
soils
contaminated
with
organic
hazardous
constituents,
this
choice
posed
special
potential
to
discourage
aggressive
remediation
because
the
Agency
treatment
standards
for
organic
hazardous
constituents
in
process
wastes
are
based
on
performance
of
combustion
technology.
Generators
often
cannot
achieve
these
standards
except
by
combusting
the
wastes
 
a
very
expensive
remedy
for
soils,
and
not
always
technically
appropriate.
See
63
FR
28603
 
28604.
In
recognition
of
this
limitation,
EPA
established
the
special
soil
treatment
standards
for
organics
at
levels
that
generators
may
achieve
by
technologies
other
than
combustion;
that
is,
EPA
established
the
standards
based
on
the
performance
of
non­
combustion
technologies.
See
63
FR
28614
 
28617.

D.
Underlying
Hazardous
Constituents
Importantly
for
the
present
proposal,
the
existing
standards
further
require
that
generators
treat
all
UHC
in
contaminated
soils.
See
63
FR
28608
 
28609;
40
CFR
268.49(
d).
A
``
UHC,''
for
this
purpose,
is
any
hazardous
constituent
that
might
be
present
in
the
soil
at
levels
exceeding
10
times
the
Universal
Treatment
Standard
for
that
constituent.
See
40
CFR
268.49(
d).
In
the
Phase
IV
rule,
EPA
imposed
this
requirement
for
the
first
time
on
soils
exhibiting
the
Toxicity
Characteristic
(
TC)
for
metals,
and
on
soils
containing
listed
hazardous
wastes.
2
PCBs
can
be
an
example
of
UHC
in
contaminated
soils,
including
metalcontaining
soils.
Where
this
occurs,
the
Phase
IV
rule
establishes
an
alternative
treatment
standard
of
100
ppm
total
PCBs
in
soil
(
10
times
the
Universal
Treatment
Standard)
or
90
percent
reduction
of
total
PCB
concentrations
in
the
soil,
whichever
is
higher.
See
40
CFR
268.49(
c).
The
other
option
available
to
generators
is
to
treat
soils
to
the
standards
applicable
to
process
wastes,
although
in
that
instance
as
well,
soils
that
exhibit
a
hazardous
characteristic
must
achieve
treatment
standards
for
UHCs
before
they
are
disposed
on
land.
40
CFR
268.40(
e).
EPA
found
that
generators
can
achieve
these
standards
without
applying
combustion
technology,
see
63
FR
28616
Table
4,
although
treatment
often
requires
that
heat
be
applied
to
the
waste,
as
occurs
with
thermal
desorption
technology.
The
statutory
provisions
potentially
address
PCBs
in
soils
in
other
way.
The
so­
called
California
list
provision,
RCRA
section
3004(
d)(
2)(
E),
provides
that
hazardous
wastes
that
contain
halogenated
organic
compounds
at
concentrations
equal
to
or
exceeding
1000
ppm
cannot
be
land
disposed.
Congress
specified
this
level
(
and
the
other
California
list
levels)
as
a
starting
point
in
the
land
disposal
prohibition
process,
prohibiting
land
disposal
of
wastes
that
pose
the
most
obvious
hazards.
See
51
FR
44718
(
Dec.
11,
1986).
PCBs
are
a
type
of
halogenated
organic
compound.
Consequently,
in
the
absence
of
the
Phase
IV
PCB
standards,
the
1000
ppm
level
would
be
the
upper
bound
of
PCBs
that
can
be
in
contaminated
soil
without
triggering
LDR
treatment
requirements
(
i.
e.,
contaminated
soils
could
not
be
land
disposed
equal
to
or
greater
than
1000
ppm).

V.
Need
to
Defer
the
Phase
IV
Rule
A.
Why
Has
Remediation
Stopped?
Unfortunately,
initial
indications
are
that
the
requirement
that
PCBs
be
treated
as
a
UHC
in
soils
exhibiting
the
TC
for
metals
is
having
an
effect
opposite
to
what
EPA
intended.
Cleanups
of
sites
with
metal
characteristic
soils
where
PCBs
are
now
a
UHC
and
where
the
remedy
was
to
involve
soil
exhumation,
treatment
and
redisposal
have
stopped,
or
been
seriously
delayed.
See
Letter
from
Phillip
Comella
Esq.
to
Steven
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Federal
Register
/
Vol.
65,
No.
32
/
Wednesday,
February
16,
2000
/
Proposed
Rules
Silverman,
EPA
Office
of
General
Counsel,
April
21,
1999
detailing
experiences
of
private
entities,
including
waste
generators,
treaters
and
disposers;
Memorandum
to
Administrative
Record,
November
2,
1999
(
detailing
experiences
of
EPA
site
managers).
As
set
out
in
more
detail
in
these
communications,
the
reason
is
that
as
a
practical
matter
a
choice
is
now
being
presented
between
combustion
and
leaving
soils
in
place.
Some
of
the
reasons
attributed
for
this
are:
·
limited
effective
non­
combustion
treatment
presently
available
for
PCBs,
and
what
there
is
involves
mobile
units
which
face
potential
permitting
delays
at
non­
Superfund
sites.
·
lack
of
State
authorization
to
implement
the
amended
soil
standards,
thus
retaining
PCBs
as
a
UHC,
without
the
option
of
treating
to
10
times
the
Universal
Treatment
Standards
or
90
percent
reduction
from
initial
concentration.
Commenters
further
note
that
at
least
some
of
these
situations
could
be
eligible
for
a
treatment
variance
under
40
CFR
268.44.
Such
situations
can
occur
when
the
standard
is
demonstrably
not
achievable
using
noncombustion
technology,
or
when
treatment
to
LDR
levels
would
discourage
aggressive
remediation.
See
LEAN
v.
EPA,
172
F.
3d
at
70
(
upholding
EPA
authority
to
issue
treatment
variances
for
remediation
wastes
where
existing
treatment
standard
discourages
aggressive
remediation).
But
there
are
undesirable
delays
attendant
in
the
variance
process,
and
EPA
in
any
case
believes
that
if
a
problem
with
a
rule
is
widespread,
it
is
appropriate
to
amend
the
rule
rather
than
issuing
variances
piecemeal.
EPA
does
not
necessarily
agree
with
all
of
these
comments,
but
does
believe
that
remediations
involving
soils
contaminated
with
both
PCBs
and
metals
are
being
delayed
or
stopped.
This
has
taken
place
after
promulgation
of
the
new
Phase
IV
requirements
respecting
these
soils,
and
it
appears
that
at
least
some
of
the
reasons
for
these
delays
are
legitimate.
Thus,
this
aspect
of
the
Phase
IV
rule
appears
to
be
having
an
environmentally
counterproductive
effect
of
delaying
cleanups
and
discouraging
aggressive
remediation.

B.
Why
is
EPA
Considering
Temporary
Deferral?
EPA
believes
it
is
appropriate
to
temporarily
defer
the
requirement
that
PCBs
be
treated
as
an
underlying
hazardous
constituent
in
TC
soils
under
RCRA
1006(
b)
in
order
to
investigate
how
best
to
integrate
the
RCRA
LDR
requirements
for
PCBs
with
the
cleanup
programs
under
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
(
CERCLA)
and
RCRA
(
both
the
specific
``
corrective
action''
requirements
of
RCRA
3004
(
u)
and
(
v)
and
3008(
h),
and
the
cleanup
requirements
applying
to
RCRA
regulated
units,
e.
g.,
during
closure).
An
additional
reason
EPA
is
considering
a
temporary
deferral
is
to
investigate
further
the
relationship
of
the
RCRA
rules
with
those
for
PCB
remediation
wastes
EPA
issued
under
the
authority
of
the
Toxic
Substances
Control
Act
(
TSCA)
not
long
after
EPA
promulgated
the
Phase
IV
rule.
See
63
FR
35384
(
June
29,
1998).
TSCA
allows
``
bulk
PCB
remediation
wastes''
including
soils
containing
50
ppm
PCBs
or
greater
to
be
disposed
without
treatment
in
a
TSCA
disposal
facility
or
an
RCRA
subtitle
C
landfill.
See
40
CFR
761.61(
b)(
2)(
i).
These
TSCA
standards,
which
allow
disposal
without
treatment
of
soils
containing
any
concentrations
of
PCBs
greater
or
equal
to
50
ppm,
were
not
established
to
represent
levels
at
which
threats
posed
by
land
disposal
of
PCB­
containing
soils
are
minimized.
Furthermore,
those
rules
require
persons
disposing
of
PCBs
to
comply
with
all
other
applicable
Federal,
State,
and
local
laws
and
regulations.
These
regulations
consequently
cannot
be
read
as
preempting
RCRA
requirements.
Nonetheless,
the
TSCA
rule
serves
a
similar
purpose
as
the
RCRA
Phase
IV
rule
 
an
attempt
to
encourage
aggressive
remediation
of
contaminated
soil
(
see
63
FR
35386)
and
reflects
the
Agency's
judgment
that
land
disposal
of
these
soils
is
reasonably
protective.
Certainly
as
an
interim
measure
EPA
believes
it
appropriate
to
seek
to
coordinate
better
the
two
sets
of
rules,
and
thus
to
defer
the
Phase
IV
rule
while
we
further
evaluate
the
workings
and
actual
effect
of
the
two
sets
of
rules.

C.
What
is
the
Effect
of
the
Deferral?
Should
EPA
adopt
a
temporary
deferral,
the
statutory
California
list
provision
mentioned
above
(
RCRA
section
3004(
d)(
2)
(
E))
would
create
an
upper
bound
on
the
concentration
of
PCBs
in
soil
that
could
be
disposed
without
treatment.
As
explained
earlier,
that
upper
bound
would
be
1,000
ppm,
the
statutory
limit
for
halogenated
organic
compounds.
This
means
that
a
temporary
deferral
would
only
affect
a
relatively
narrow
class
of
wastes:
soils
exhibiting
the
TC
for
metals
and
containing
PCBs
in
concentration
between
100
ppm
and
1000
ppm.
RCRA
allows
temporary
deferral
of
the
Phase
IV
requirement.
As
in
the
temporary
deferral
of
RCRA
requirements
to
accommodate
a
potentially
overlapping
regulatory
regime
for
underground
storage
tanks
at
issue
in
Edison
Electric
Inst.
v.
EPA,
2
F.
3d
438
(
D.
C.
Cir.
1993),
EPA
here
needs
to
investigate
further
the
relationship
of
different
sets
of
rules
addressing
PCB­
contaminated
soil
disposal.
These
soils
will
be
managed
protectively
during
a
deferral
period,
either
in
RCRA
subtitle
C
or
TSCAapproved
landfills,
and
there
is
a
reasonable
upper
bound
on
the
concentration
of
PCBs
that
could
be
disposed
of
without
treatment.
See
2F.
3d
at
452
 
53
citing
these
factors
as
a
reasonable
justification
for
a
comparable
temporary
deferral.
Moreover,
EPA
may
permissibly
alter
land
disposal
restriction
treatment
standards
for
remediation
wastes
in
order
to
encourage
aggressive
remediations.
See
LEAN,
172
F.
3d
at
69
 
70.
A
final
note:
The
Agency
is
not
contemplating
any
type
of
deferral
for
other
organic
hazardous
constituents
in
TC
metal
soils.
Nor
is
EPA
accepting
comments
on
the
requirement
to
treat
PCBs
present
as
underlying
hazardous
constituents
in
soil
exhibiting
the
TC
due
to
organics.
This
requirement
has
been
in
place
without
significant
issue
since
1994
and
so
is
unrelated
to
the
Phase
IV
rule.
The
scope
of
today's
document
thus
is
exclusive
to
soils
exhibiting
the
TC
for
metals
containing
PCBs
as
an
underlying
hazardous
constituent.
The
requirement
to
treat
PCBs
as
a
UHC
also
can
apply
to
soils
containing
a
listed
hazardous
waste,
where
the
generator
elects
to
comply
with
the
alternative
soil
standard
of
10
times
Universal
Treatment
Standard
or
90
percent
reduction
of
initial
concentrations.
See
40
CFR
268.
49(
d).
Although
the
comments
EPA
has
received
to
this
point
have
dealt
exclusively
with
situations
involving
soils
exhibiting
the
TC
for
metals,
EPA
also
solicits
comment
on
whether
PCBs
should
continue
to
be
considered
a
potential
UHC
for
listed
wastes
being
treated
to
comply
with
the
alternative
soil
standards.
It
should
be
noted,
however,
that
a
generator
would
have
the
option
of
treating
the
soil
to
the
standards
for
process
wastes,
see
40
CFR
268.49(
b),
in
which
case
there
is
no
requirement
to
treat
UHCs.
Thus,
generators
would
not
appear
to
be
facing
the
same
quandary
as
they
do
with
TC
soils
with
PCBs
as
a
UHC.

VI.
State
Authorization
Under
section
3006
of
RCRA,
EPA
may
authorize
qualified
States
to
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/
Vol.
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No.
32
/
Wednesday,
February
16,
2000
/
Proposed
Rules
administer
and
enforce
the
RCRA
hazardous
waste
program
within
the
State.
Following
authorization,
we
maintain
independent
enforcement
authority
under
sections
3007,
3008,
3013,
and
7003
of
RCRA,
although
authorized
States
have
enforcement
responsibility.
A
State
would
become
authorized
for
today's
proposed
PCB
treatment
standard
for
contaminated
soil
by
following
the
approval
process
described
under
40
CFR
271.21.
See
40
CFR
part
271
for
the
overall
standards
and
requirements
for
authorization.
Like
all
land
disposal
restriction
treatment
standards,
today's
changes
are
proposed
under
the
authority
of
3004(
g)
and
(
m)
of
RCRA.
These
statutory
provisions
were
enacted
as
part
of
the
Hazardous
and
Solid
Waste
Amendments
(
HSWA)
of
1984.
Under
section
3006(
g)
of
RCRA,
new
requirements
promulgated
under
the
authority
of
statutory
provisions
added
by
HSWA
go
into
effect
in
authorized
States
at
the
same
time
as
they
do
in
unauthorized
States
 
as
long
as
the
new
requirements
are
more
stringent
than
the
requirements
a
State
is
currently
authorized
to
implement.
However,
none
of
the
provisions
in
today's
proposed
rule
are
more
stringent
than
the
existing
Federal
requirements.
Authorized
States
are
not
required
to
modify
their
programs
when
we
promulgate
changes
to
Federal
requirements
that
are
less
stringent
than
existing
Federal
requirements.
This
is
because
RCRA
section
3009
allows
the
States
to
impose
(
or
retain)
standards
that
are
more
stringent
than
those
in
the
Federal
program.
(
See
also
40
CFR
271.1(
i)).
Therefore,
States
that
are
authorized
for
the
LDR
program
would
not
be
required
to
adopt
today's
proposed
changes,
and
these
changes
would
not
go
into
effect
until
the
State
revised
its
LDR
program
accordingly.
However,
if
EPA
finalizes
the
proposed
temporary
deferral,
we
would
encourage
States
to
allow
compliance
with
today's
proposed
PCB
treatment
standard
for
contaminated
soil
if
they
have
the
ability
under
State
law
to
waive
existing
land
disposal
restriction
treatment
standards,
or
if
they
have
adopted
them
but
are
not
yet
authorized.
Again,
if
a
State
were
not
currently
authorized
for
the
LDR
program,
we
would
implement
this
proposed
treatment
standard
in
that
State.

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

Economic
Assessment
We
estimated
the
costs
of
today's
final
rule
to
determine
if
it
is
a
significant
regulation
as
defined
by
the
Executive
Order.
The
analysis
considered
compliance
cost
savings
from
the
deferral
and
resulted
in
cost
savings.
A
detailed
discussion
of
the
methodology
used
for
estimating
the
costs,
economic
impacts
and
the
benefits
attributable
to
today's
final
rule,
followed
by
a
presentation
of
the
cost,
economic
impact
and
benefit
results
were
prepared
and
documented
in
the
following
report:
``
Economic
Assessment
of
the
Deferral
of
Phase
IV
Land
Disposal
Restriction
Treatment
Standards
for
Polychlorinated
Biphenyls
(
PCBs)
as
an
Underlying
Hazardous
Constituent
in
Contaminated
Soils.''
This
report
can
be
found
in
its
entirety
in
the
docket
for
today's
proposed
rule.
A
summary
of
the
report
is
provided
below.

Methodology
To
estimate
the
cost
savings
associated
with
today's
proposed
deferral
of
UHC
requirements
for
PCBcontaining
hazardous
soils,
the
Agency
estimated
the
difference
between
the
costs
that
would
have
been
incurred
in
the
absence
of
the
deferral
and
the
costs
estimated
under
the
post­
regulatory
environment
with
the
deferral.
The
cost
savings
are
reported
in
a
range
of
savings
based
upon
two
baseline
scenarios:
one
baseline
scenario
compels
incineration
or
other
thermal
treatment
for
TC
metal
PCB­
containing
hazardous
waste
soils
followed
by
immobilization
of
the
residue;
a
second
baseline
scenario
is
based
upon
a
number
of
compliance
alternatives,
including
(
1)
thermal
treatment
(
e.
g.,
incineration/
thermal
desorption,
other);
(
2)
nonthermal
treatment
(
e.
g.,
solvent
extraction/
soil
washing,
chemical
dechlorination,
ex­
situ
bioremediation,
immobilization);
(
3)
source
controls
(
e.
g.,
capping);
(
4)
no
site
remediation;
and,
(
5)
treatability
variances.
The
second
baseline
scenario
models
soil
washing,
chemical
dechlorination
and
immobilization
of
the
soil
for
half
of
the
affected
soils.
The
other
half
of
the
soils
are
modeled
to
be
treated
through
thermal
treatment.
This
baseline
scenario
will
result
in
lower
cost
savings
because
the
range
of
remedies
is
largely
less
expensive
than
thermal
treatment.

Volume
Results
The
procedure
for
estimating
the
volumes
of
PCB­
containing
hazardous
wastes
affected
by
today's
proposed
rule
is
detailed
in
the
background
document
``
Economic
Assessment
of
the
Deferral
of
Phase
IV
Land
Disposal
Restriction
Treatment
Standards
for
Polychlorinated
Biphenyls
(
PCBs)
as
an
Underlying
Hazardous
Constituent
in
Contaminated
Soils,''
which
was
placed
in
the
docket
for
today's
proposed
rule.
The
Agency
has
assumed
that
60
percent
of
all
TC
metal
soils
with
organic
UHCs
(
104,730
tons)
contain
PCBs.

Estimated
Cost
Savings
The
extent
of
the
cost
savings
from
the
proposed
deferral
of
LDR
treatment
standards
for
TC
metal
PCB­
containing
hazardous
waste
soils
depends
on
the
decision
whether
to
remediate
the
site,
the
decision
to
switch
to
in­
situ
cleanup
remedies
(
avoiding
LDR
treatment
standards)
and
the
decision
to
pursue
other
administrative
remedies
such
as
treatability
variances.
As
the
result,
EPA
has
estimated
the
incremental
treatment
cost
savings
attributable
to
the
deferral
of
the
Phase
IV
LDR
treatment
standards
for
PCBs
as
a
UHC
in
hazardous
soils
to
total
between
$
35.3
million
and
$
86
million
annually
for
the
thermal
treatment
baseline
 
post
regulatory
scenario
and
$
33.2
million
and
$
55.3
million
annually
for
the
multiple
remedy/
response
baseline­
post
regulatory
scenario.

B.
Regulatory
Flexibility
Act
Pursuant
to
the
Regulatory
Flexibility
Act
of
1980,
5
U.
S.
C.
601
et
seq.,
when
an
agency
publishes
a
notice
of
rulemaking,
for
a
rule
that
will
have
a
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/
Vol.
65,
No.
32
/
Wednesday,
February
16,
2000
/
Proposed
Rules
significant
effect
on
a
substantial
number
of
small
entities,
the
agency
must
prepare
and
make
available
for
public
comment
a
regulatory
flexibility
analysis
that
considers
the
effect
of
the
rule
on
small
entities
(
i.
e.,
small
businesses,
small
organizations,
and
small
governmental
jurisdictions).
The
overall
economic
impact
of
today's
proposed
rule
to
defer
LDR
treatment
standards
for
TC
metal
PCB­
containing
hazardous
waste
soils
results
in
cost
savings
ranging
from
$
33.2
million
to
$
86
million.
For
the
reasons
stated
above
in
the
estimated
cost
savings
discussion
of
section
X.
A.
3,
the
Agency
does
not
believe
that
today's
proposed
rule
will
have
a
significant
impact
on
a
substantial
number
of
small
entities.

C.
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
costeffective
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
this
rule
does
not
include
a
federal
mandate
that
may
result
in
estimated
costs
of
$
100
million
or
more
to
either
state,
local,
or
tribal
governments
in
the
aggregate.
The
rule
would
not
impose
any
federal
intergovernmental
mandate
because
it
imposes
no
enforceable
duty
upon
state,
tribal
or
local
governments.
States,
tribes
and
local
governments
would
have
no
compliance
costs
under
this
rule.
It
is
expected
that
states
will
adopt
this
rule,
and
submit
it
for
inclusion
in
their
authorized
RCRA
programs,
but
they
have
no
legally
enforceable
duty
to
do
so.
For
the
same
reasons,
EPA
also
has
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
In
addition,
as
discussed
above,
the
private
sector
is
not
expected
to
incur
costs
exceeding
$
100
million.
Thus,
today's
rule
is
not
subject
to
the
requirements
of
sections
202
and
205
of
UMRA.

D.
Paperwork
Reduction
Act
The
information
collection
requirements
in
this
proposed
rule
have
been
submitted
for
approval
to
the
Office
of
Management
and
Budget
(
OMB)
under
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
EPA
has
prepared
and
Information
Collection
Request
(
ICR)
document:
OSWER
ICR
No.
1442.15
(
LDR
PhaseIV),
and
a
copy
may
be
obtained
from
Sandy
Farmer
by
mail
at
OPPE
Regulatory
Information
Division;
U.
S.
Environmental
Protection
Agency
(
2137);
401
M
St.,
SW;
Washington,
D.
C.
20460,
by
email
at
farmer.
sandy@
epamail.
epa.
gov,
or
by
calling
(
202)
260
 
2740.
A
copy
may
also
be
downloaded
off
the
internet
at
http:/
/
www.
epa.
gov/
icr.
EPA
believes
the
changes
in
this
proposed
rule
to
the
information
collection
do
not
constitute
a
substantive
or
material
modification.
This
proposed
rule
would
not
change
any
of
the
information
collection
requirements
that
are
currently
applicable
RCRA
Land
Disposal
Restrictions
Phase
IV
except
to
possibly
reduce
those
requirements
by
requiring
fewer
references
to
PCBs.
There
is
no
net
increase
in
recordkeeping
and
reporting
requirements
(
if
anything,
there
may
be
a
slight
decrease,
as
just
noted).
As
a
result,
the
reporting,
notification,
or
recordkeeping
(
information)
provisions
of
this
rule
will
not
need
to
be
submitted
for
approval
to
the
Office
of
Management
and
Budget
(
OMB)
under
section
3504(
b)
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et.
seq.
E.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
Executive
Order
13045:
``
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks''
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
is
determined
to
be
``
economically
significant''
as
defined
under
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
proposed
rule
is
not
subject
to
the
Executive
Order
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
public
is
invited
to
submit
or
identify
peer­
reviewed
studies
and
data,
of
which
the
agency
may
not
be
aware,
that
assessed
results
of
early
life
exposure
that
may
result
from
this
activity.

F.
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(``
NTTAA''),
Public
Law
104
 
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
This
proposed
rulemaking
does
not
involve
technical
standards.
Therefore,
EPA
is
not
considering
the
use
of
any
voluntary
consensus
standards.

G.
Executive
Order
12898:
Environmental
Justice
Under
Executive
Order
12898,
``
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
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Federal
Register
/
Vol.
65,
No.
32
/
Wednesday,
February
16,
2000
/
Proposed
Rules
Populations,''
as
well
as
through
EPA's
April
1995,
``
Environmental
Justice
Strategy,
OSWER
Environmental
Justice
Task
Force
Action
Agenda
Report,''
and
National
Environmental
Justice
Advisory
Council,
EPA
has
undertaken
to
incorporate
environmental
justice
into
its
policies
and
programs.
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.
To
address
this
goal,
EPA
considered
the
impacts
of
this
final
rule
on
low­
income
populations
and
minority
populations
and
concluded.
Today's
proposed
rule
is
intended
to
encourage
aggressive
remediation
of
contaminated
soils,
and
thus,
and
to
benefit
all
populations.
As
such,
this
rule
is
not
expected
to
cause
any
disproportionately
high
and
adverse
impacts
to
minority
or
low­
income
communities
versus
non­
minority
or
affluent
communities.

H.
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''
are
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
that
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
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.
EPA
has
determined
that
this
proposed
rule,
if
adopted,
would
not
have
``
federalism
implications''
within
the
meaning
of
Executive
Order
13132.
This
is
because
the
proposal
would
not
impose
any
direct
effects
on
States,
would
not
preempt
State
law,
and
would
not
constrain
State
administrative
discretion.
In
fact,
States
need
not
even
adopt
this
proposal
as
part
of
their
authorized
programs.
Thus,
the
requirements
of
section
6
of
the
Executive
Order
do
not
apply
to
this
rule.

I.
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
by
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.''
Today's
rule
does
not
significantly
or
uniquely
affect
the
communities
of
Indian
tribal
governments.
Today's
proposal
does
not
create
a
mandate
on
State,
local
or
tribal
governments.
The
rule
does
not
impose
any
enforceable
duties
on
these
entities.
Accordingly,
the
requirements
of
section
3(
b)
of
Executive
Order
13084
do
not
apply
to
this
rule.

List
of
Subjects
in
40
CFR
Part
268
Environmental
protection,
Hazardous
waste.

Dated:
February
9,
2000.

Carol
M.
Browner,

Administrator.

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

PART
268
 
LAND
DISPOSAL
RESTRICTIONS
1.
The
authority
citation
for
part
268
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
6905,
6912(
a),
6921,
and
6924.

Subpart
C
 
[
Amended]

2.
Section
268.32
is
added
to
subpart
C
to
read
as
follows:

§
268.32
Waste
specific
prohibitions
 
California
list
waste.

Effective
[
insert
effective
date
of
final
rule],
hazardous
wastes
containing
halogenated
organic
compounds
in
total
concentrations
greater
than
or
equal
to
1,000
mg/
kg
are
prohibited
from
land
disposal.

Subpart
D
 
[
Amended]

3.
Section
268.49
is
amended
by
revising
paragraph
(
d)
to
read
as
follows:

§
268.49
Alternative
LDR
treatment
standards
for
contaminated
soil.

*
*
*
*
*

(
d)
Constituents
subject
to
treatment.
When
applying
the
soil
treatment
standards
in
paragraph
(
c)
of
this
section,
constituents
subject
to
treatment
are
any
constituents
listed
in
40
CFR
268.48
Table
UTS­
Universal
Treatment
Standards
that
reasonable
expected
to
be
present
in
any
given
volume
of
contaminated
soil,
except
flouride,
selenium,
sulfides,
vanadium,
zinc,
and
PCB's
when
present
in
soils
exhibiting
the
characteristic
of
toxicity
solely
because
of
presence
of
metals,
at
concentrations
greater
than
ten
times
the
universal
treatment
standard.
*
*
*
*
*
[
FR
Doc.
00
 
3672
Filed
2
 
15
 
00;
8:
45
am]

BILLING
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6560
 
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