[Federal Register Volume 75, Number 139 (Wednesday, July 21, 2010)]
[Proposed Rules]
[Pages 42342-42346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17790]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2007-1033; FRL-9177-7]
Approval and Disapproval and Promulgation of Air Quality
Implementation Plans; Colorado; Revisions to Regulation 1
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to partially approve and partially disapprove
a State Implementation Plan (SIP) revision submitted by the State of
Colorado regarding its Regulation 1. Regulation 1 provides certain
emission controls for opacity, particulates, carbon monoxide and sulfur
dioxide. The revision involves the deletion of obsolete, the adoption
of new, and the clarification of ambiguous provisions within Regulation
1. The intended effect of this proposed action is to make federally
enforceable the revised portions of Colorado's Regulation 1 that EPA is
proposing to approve and to disapprove portions of the regulation that
EPA deems are not consistent with the Clean Air Act. This action is
being taken under section 110 of the Clean Air Act.
DATES: Comments must be received on or before August 20, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-1033, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Callie Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129.
Hand Delivery: Callie Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-1033. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA, without going through www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to Section I. General
Information of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mark Komp, U. S. Environmental
Protection Agency, Region 8, Air Program, Mail Code 8P-AR, 1595 Wynkoop
Street, Denver, Colorado 80202-1129, (303) 312-6022, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. What is the purpose of this action?
III. Background Information Regarding Colorado's Submittal
IV. EPA's Evaluation of State's Submittal
V. Consideration of Section 110(l) of the CAA
VI. Proposed Action
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VII. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean
Air Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials SIP mean or refer to State Implementation
Plan.
(iv) The words State or Colorado mean the State of Colorado,
unless the context indicates otherwise.
(v) The words Provision or Regulation refer to Colorado's
Regulation 1.
(vi) The initials SO2 mean or refer to sulfur dioxide, HC mean
or refer to hydrocarbons and CO mean or refer to Carbon Monoxide.
(vii) The initials RACT mean or refer to Reasonably Available
Control Technology.
I. General Information
A. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. What is the purpose of this action?
EPA is proposing to partially approve and partially disapprove
revisions to Colorado's Regulation 1 adopted by the State of Colorado
on August 16, 2001 and submitted to EPA on July 31, 2002. The revisions
involve the deletion of obsolete, adoption of new, and clarification of
ambiguous provisions. Colorado's Regulation 1 governs opacity, and
particulate, sulfur dioxide, and carbon monoxide emissions from
sources. After our review of these revisions, we believe that some of
the revisions are consistent with the Act and should be approved while
some of the revisions are not and should be disapproved.
EPA is soliciting public comments on the issues discussed in this
document. These comments will be considered before taking final action.
Interested parties may participate in the Federal rulemaking procedure
by submitting written comments to the EPA Regional office listed in the
Addresses section of this document.
III. Background Information Regarding Colorado's Submittal
On July 31, 2002, the State of Colorado submitted a formal revision
to its SIP. The July 31, 2002 revision deleted obsolete provisions in
Sections II.A.6, A.7, and A.9 \1\ regarding, respectively, alfalfa
dehydrating plant drum dryers, wigwam burners, and the static firing of
Pershing missiles. The provisions were deleted from the regulation
because these sources no longer exist in the State.
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\1\ All references in this notice to particular section numbers
are to the designated sections within Regulation 1.
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Colorado added language to its open burning provisions (Sections
II.C.2.d and C.3) to clarify that the open burning of animal parts and
carcasses are not exempt from permit requirements. However, a special
allowance to conduct open burning activities without a permit is
provided where the State Agricultural Commission declares a public
health emergency or a contagious or infectious outbreak of disease that
imperils livestock is evident. Such activities require a telephone
notice to State and local health departments prior to conducting such
open burning activities. All necessary safeguards must be used to
minimize impacts on public health or welfare.
The State revised the method in Section III.A.1.d for calculating
emissions from multiple fuel burning units ducting to a common stack.
Emissions are to be calculated on a pound per million British thermal
unit (lbs/mmBtu) input and must be based on a weighted average of the
individual allowable limits for each unit.
The State added clarifying language in several provisions of
Regulation 1 stating that alternative performance test methods may be
used with approval from the State. It also specified that ASTM or
equivalent methods approved by the State may be used for fuel sampling
from sources subject to Regulation 1.
In sections VI A.3.e. and VI.B.4.g. regarding SO2
emissions, the State changed the overall emission limit for petroleum
and oil shale refineries from 0.3 lbs per barrel of oil processed per
day to 0.7 lbs per barrel of oil processed per day. The State also
added new language that modifies the method for calculating compliance
with emission limits for petroleum refining and cement manufacturing.
The State deleted Section VI.B.5, which stipulates that new sources of
SO2 emissions that do not fall in specific source categories
are subject to a 2 ton per day emission limit and are to utilize best
available control technology.
IV. EPA's Evaluation of State's Submittal
We have evaluated Colorado's July 31, 2002 submittal regarding
revisions to the State's Regulation 1. We propose to approve some of
the revisions but also propose to disapprove other revisions.
Proposed Approvals
We propose approval of the deletion of emission limits in Sections
II.A.6, A.7, and A.9 of Regulation 1 for alfalfa dehydrating plant drum
dryers, wigwam burners, and Pershing missiles because these sources no
longer exist in the State and the emission limits have effectively
become obsolete. For the same reasons, we propose to approve the
revision to Section III.C.2 regarding the deletion of process weight
emission standards for alfalfa drum dryers.
We also propose to approve clarifying language in Sections II.C.2.d
and II.C.3 regarding the incineration of animal parts to prevent the
outbreak of disease during a public health emergency. The clarification
provides for the prompt notification of both State and local health
officials and the use of all
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necessary safeguards to minimize the impact of emissions from the
burning on public health and welfare.
Finally, we propose to approve the State's revision to the method
of computing compliance with emission limits for cement manufacturing
and petroleum refining (Sections VI.A.3.e, VI.A.3.f., VI.B.4.e, and
VI.B.4.g(ii)). The revised method more accurately reflects the daily
processed-based SO2 emissions limits by using actual hours
of operations as an averaging time when the facility does not operate
for an entire 24-hour period. The State also revised the method in
Section III.A.1.d for calculating particulate matter emission rates for
two or more fuel burning units connected to a common opening.
Previously, the method summed the allowable emissions from the fuel
burning units; the revised method uses a weighted average of the
individual allowable limits. The revised method more accurately ensures
compliance with emission limits, and we, therefore, propose to approve
it.
There are several provisions within Regulation 1 that we propose to
disapprove. Our reasons are described below. As described separately
below, we also propose to partially approve and partially disapprove
specific portions of Section V regarding electric arc furnace shops at
iron and steel operations.
Director's Discretion
EPA reviewed the July 31, 2002 Regulation 1 SIP revision submittal
and found several instances throughout the sections within Regulation 1
where we believe ``director's discretion'' provisions provide the State
with the ability to modify requirements for stationary sources. Such
provisions are inconsistent with sections 110(a) and 110(i) of the CAA
which provide for the review and approval of SIP revisions by the
Administrator. Section 110(i) specifically prohibits States, except in
certain limited circumstances, from taking any action to modify any
requirement of a SIP with respect to any stationary source, except
through a SIP revision.
For this submittal, we propose to disapprove the revised sections
within Regulation 1 that contain director's discretion provisions. The
revised sections are as follows:
Sections III.A.2 and III.C.3. Performance Tests
EPA proposes to disapprove the revisions to these sections, which
specify particulate matter performance tests for fuel burning equipment
(III.A.2) and manufacturing processes (III.A.C). Previously, the
sections specified certain EPA-approved methods for performance tests.
The revisions add the phrase `` * * * or other credible method approved
by the Division to determine compliance with this subsection of this
regulation.'' EPA believes these are instances of director's discretion
that are inconsistent with section 110(i) of the CAA, because they
allow the State to modify stationary source requirements of the SIP
without a SIP revision and without corresponding requirements such as
public notice and comment and EPA approval.
Section VI.C. Fuel Sampling
EPA proposes to disapprove the revision to this section. The
revision allows for the use equivalent test methods approved by the
Division in fuel sampling plans. EPA believes that this is an instance
of director's discretion that is inconsistent with section 110(i) of
the CAA, because it allows the State to modify stationary source
requirements of the SIP without a SIP revision and without
corresponding requirements such as public notice and comment and EPA
approval.
Section VI.F. Alternative Compliance Procedures
The State added Section VI.F to Regulation 1. This section provides
for alternative compliance procedures to those in Section VI.
Specifically, it provides for alternative test methods, methods of
control, compliance periods, emission limits, and monitoring schedules.
Section VI.F.3 states that Colorado shall obtain concurrence from EPA
prior to approving an alternative test method. However, EPA believes
that Section VI.F is inconsistent with section 110(i) of the CAA, as it
allows the State to modify stationary source requirements without a SIP
revision and without corresponding public notice and comment.
Therefore, we propose to disapprove Sections III.A.2, III.C.3, VI.C,
and VI.F.
The State may retain some flexibility through the authorities under
40 CFR 70.6(a)(1)(iii) and the policy in EPA's White Paper No. 2.\2\
These authorities allow adoption of enabling language in a SIP to
provide for use of alternative, equally stringent requirements in the
Title V permitting process so that source specific SIP revisions are
not needed.
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\2\ Under regulations in 40 CFR 70.6(a)(1)(iii) and policy
expressed in EPA's March 5, 1996 Guidance Memorandum, ``White Paper
Number 2 for Improved Implementation of the Part 70 Operating
Permits Program'' by Lydia N. Wegman, a State may adopt enabling
language in the SIP that allows the State to apply equivalent or
more stringent limits, monitoring techniques, or recordkeeping and
reporting requirements through the Title V permitting process.
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Sulfur Dioxide Emission Limits
Colorado revised Section VI (pertaining to sulfur dioxide emission
regulations) by modifying emission limits for petroleum refineries
(Section VI.B.4.e) and shale oil refineries (Section VI.B.4.g(ii)). The
existing SIP approved rules for these sources limit SO2
emissions to 0.3 pounds per barrel of oil processed per day. The State
has revised the daily limit to 0.7 pounds per barrel of oil processed
per day. Section 110(l) of the CAA provides that we cannot approve a
revision to a SIP if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress or
any other applicable requirement of the CAA. There has been no
demonstration that the proposed relaxation of the SO2
emission limits satisfies the requirements of Section 110(l). We
believe these proposed changes pose a problem under Section 110(l)
because they may result in an increase in SO2 emissions
within the State. The relaxation of SO2 emission limits may
also have an impact on the attainment status for other pollutants.
Sulfur dioxide is a known precursor to the formation of particulate
matter. As a result, the proposed changes may interfere with attainment
of the NAAQS or other applicable requirements of the CAA. We therefore
propose to disapprove the relaxation of the SO2 emission
limits in Sections VI.B.4.e and VI.B.4.g(ii).
Colorado later revised Section VI pertaining to sulfur dioxide
emission regulations with regard to emission limits for petroleum
(Section VI.B.4.e) and refining oil produced from shale (Section
VI.B.4.g(ii)). The State revised the daily limit back to 0.3 pounds per
barrel of oil processed per day. The State submitted this revision to
Regulation 1 via the Governor's designee's letter dated August 8, 2006.
We are not acting on the August 8, 2006 submittal with today's action
but will act on the submittal in a separate action.
In the July 31, 2002 submittal we propose to act on, the State also
deleted Section VI.B.5, which stipulates that new sources of
SO2 emissions that do not fall in specific source categories
are subject to a 2 ton per day emission limit and are to utilize best
available control technology. This deletion is a relaxation of the
SIP's requirements. As we stated before, Section 110(l) of the CAA
provides that we cannot approve a revision to a SIP if the revision
would interfere with any applicable requirement concerning attainment
and
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reasonable further progress or any other applicable requirement of the
CAA. There has been no demonstration that the proposed deletion will
satisfy the requirements of Section 110(l). We believe the deletion of
Section VI.B.5 poses a problem under Section 110(l) because it may
result in an increase in SO2 emissions within the State and
interfere with attainment of the NAAQS or other applicable requirements
of the CAA. Therefore, we propose to disapprove the deletion of Section
VI.B.5.
Emission Limits for Existing Iron and Steel Operations
Colorado's Regulation 1 Section V provides for specific opacity and
emission limits for gas-cleaning devices associated with electric arc
furnace shops. Other sources of particulate emissions at iron and steel
plants must comply with emission limits set forth in the Smoke and
Opacity section of Regulation 1 (Section II). In the revision submitted
July 31, 2002, the State deleted language from Section V regarding
emission limits for existing iron and steel plant operations, because
operations other than electric arc furnaces at the single existing iron
and steel plant within the State have ceased, rendering the limits
obsolete. EPA proposes to approve the submitted provisions with the
following exception.
For the July 31, 2002 submittal, the State added in Section V.A.2 a
director's discretion clause regarding the sampling methodology the
source may use to determine that the mass emission rate does not exceed
0.00520 grains per dry standard cubic foot. As revised by the State,
the source may use a credible method approved by the State. As
discussed earlier in this proposal, this director's discretion
provision provides the State with the ability to modify stationary
source requirements in the SIP without going through the SIP revision
process and without corresponding public notice and comment and EPA
approval. EPA therefore proposes to disapprove the phrase ``or by other
credible method approved by the Division.''
Locomotive Opacity Limits
Although Colorado did not revise Section II.B, which sets opacity
limits for locomotives, EPA is taking this opportunity to note that the
provisions in Section II.B appear to be preempted. Under section
209(e)(1)(B) of the CAA, all state standards or other requirements
relating to the control of emissions from new locomotives or new
engines used in locomotives are expressly preempted. Under section
209(e)(2), state standards or other requirements relating to the
control of emissions from all other locomotives or locomotive engines
are impliedly preempted, with the following exception. EPA can
authorize California to adopt such standards under certain
circumstances; if EPA does so, other states may adopt identical
standards.
Section II.B of Colorado's SIP imposes opacity limits on
locomotives. These limits would appear to be a standard relating to
control of emissions. Therefore, under section 209(e)(1)(B), the
standards would be preempted as they relate to new locomotives or new
engines used in locomotives, and, as EPA has not authorized California
to adopt opacity limits for other locomotives or locomotive engines,
the Colorado standards would appear to be preempted as they apply to
such sources.
EPA's concern regarding Colorado's opacity limits should not be
interpreted to mean that Colorado would be prohibited by the Clean Air
Act from regulating the use and operation of locomotives and locomotive
engines, although any such regulation would need to be evaluated. As
described in 40 CFR Part 89, Appendix A to Subpart A:
``EPA believes that States are not precluded under section 209 from
regulating the use and operation of non-road engines, such as
regulations on hours of usage, daily mass emission limits, or sulfur
limits on fuel; nor are permits regulating such operations precluded,
once the engine is no longer new.''
V. Consideration of Section 110(l) of the CAA
Section 110(l) of the Clean Air Act states that a SIP revision
cannot be approved if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
toward attainment of the National Ambient Air Quality Standards (NAAQS)
or any other applicable requirement of the Act. We believe that those
portions of the revision to Colorado's Regulation 1 that we propose to
approve satisfy section 110(l), because those portions do not relax
existing SIP requirements. Instead, the portions of the July 31, 2002
submittal EPA proposes to approve either increase stringency of
existing requirements, clarify those requirements, or remove obsolete
requirements. Therefore, section 110(l) is satisfied.
VI. Proposed Action
For the reasons expressed above, we are proposing to approve
revisions to the following provisions in Regulation 1: (1) Sections
II.A.6, II.A.7, and II.A.9 regarding the deletion of emission limits
for sources that no longer exist in the State; (2) Sections II.C.2.d.
and II.C.3 regarding the burning of diseased animal carcasses to
prevent a public health emergency; (3) Section III.A.1.d involving the
State's method for calculating emissions from multiple fuel burning
units ducted to a common stack; (4) Section III.C.2 regarding the
deletion of process weight emission standards for alfalfa drum dryers;
(5) Section V regarding emission standards for electric arc furnaces,
except for the director's discretion provision provided for in Section
V; (6) Sections VI.A.3.e, VI.A.3.f, VI.B.4.e, and VI.B.4.g(ii)
regarding the methods used for the averaging of emissions over a 24
hour period.
For reasons expressed above, we propose to disapprove revisions to
the following provisions in Regulation 1: (1) Section III.A.2. and
Section III.C.3 involving director's discretion regarding the method
for conducting performance tests; (2) the director's discretion
provision in Section V regarding the method used to determine
compliance with electric arc furnaces' emission standard; (3) Sections
VI.B.4.e and VI.B.4.g(ii) regarding changes in the SO2
emission limits for petroleum and oil shale refining; (4) VI.B.5
regarding SO2 emission limits for new sources not falling in
specified source categories; and (5) Sections VI.C. and VI.F. regarding
the use of director's discretion for alternative methods to show
compliance with fuel sampling plans and alternative compliance
procedures respectively.
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions
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of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 12, 2010.
Carol Rushin,
Deputy Regional Administrator, Region 8.
[FR Doc. 2010-17790 Filed 7-20-10; 8:45 am]
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