Determination of Adequacy of Section 112 Authorities and Determination of Need for Additional Standards

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5984-6; Docket No. A-97-21]

RIN 2060-ZA01

Determination of Adequacy of Section 112 Authorities and

Determination of Need for Additional Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of determinations.

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SUMMARY: Today's notice provides EPA's determination that the legal

authorities contained in the provisions of section 112 of the 1990

Amendments to the Clean Air Act (Act) are adequate to prevent serious

adverse public health effects and serious or widespread environmental

effects associated with atmospheric deposition of hazardous air

pollutants (HAP) to the Great Lakes, the Chesapeake Bay, Lake

Champlain, and certain coastal waters (the Great Waters). Today's

notice also provides EPA's determination that further emission

standards or control measures under section 112(m)(6), beyond those

that can otherwise be adopted under section 112, are not necessary and

appropriate to prevent such effects. Note that these determinations are

not a conclusion that EPA has taken full advantage of the statutory

authorities under section 112, but that these authorities exist and are

adequate, based on the information available now, to prevent serious

adverse effects to public health and serious or widespread

environmental effects associated with atmospheric deposition of HAP to

the Great Waters. The two draft determinations were published on July

7, 1997, and a public comment period during which interested persons

could submit written comments in response to the draft determinations

ran through August 6, 1997. These determinations are being made

pursuant to section 112(m)(6) of the Act, as amended in 1990.

ADDRESSES: Supporting information used in developing the draft and

final determinations is contained in Docket No. A-97-21 at the Air

Docket, U.S. Environmental Protection Agency, 401 M Street, S.W.,

Washington, D.C. 20460. This docket is available for public inspection

and copying between 8:00 a.m. and 4:00 p.m., Monday through Friday,

excluding legal holidays. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Dale Evarts, Office of Air Quality

Planning and Standards (MD-15), U.S. Environmental Protection Agency,

Research Triangle Park, North Carolina 27711, telephone number (919)

541-5535.

SUPPLEMENTARY INFORMATION:

Electronic Availability

The official record for this notice, as well as the public version,

has been established for this notice under Docket No. A-97-21

(including comments and data submitted electronically as described

below). A public version of this official record, including printed,

paper versions of electronic comments, which do not include any

information claimed as confidential business information (CBI), is

available for inspection at the address in ADDRESSES at the beginning

of this document, and electronically at the following address: http://

www.epa.gov/ttn/oarpg/

The information in this notice is organized as follows:

I. Background Overview

II. Statutory Framework of the Clean Air Act Great Waters Program

III. EPA's Draft Determinations

A. Scope of Analysis

B. Definitions of Major Source and Adverse Environmental Effect

C. Listing of Pollutants and Sources

D. Regulations to Control Emissions of HAP

1. MACT and GACT Standards

2. Residual Risk Standards

E. Other Relevant Provisions of Section 112

F. Draft Conclusions

IV. Public Comments Received and EPA Responses

A. Current Air Pollution Controls are Inadequate, and EPA Should

Institute new Controls to Control HAP Emissions That Harm the Great

Waters

1. Summary of the Comments

2. EPA's Response

B. Timing of Determinations Under Section 112(m)(6)

1. Summary of the Comments

2. EPA's Response

C. Scope of Analysis

1. Summary of the Comments

a. Statutory Authorities

b. Stationary Sources of HAP

2. EPA's Response

a. Statutory Authorities

b. Stationary Sources of HAP

D. Definition of Adverse Environmental Effect

1. Summary of the Comments

2. EPA's Response

E. Regulations to Control Emissions of Pollutants

1. Summary of the Comments

a. Utility of Section 112 Emission Control Provisions

b. Timing of Implementation of Section 112 Provisions to Control

HAP Emissions

2. EPA's Response

a. Utility of Section 112 Emission Control Provisions

b. Timing of Implementation of Section 112 Provisions to Control

HAP Emissions

F. Mercury and Electric Utilities Reports to Congress

1. Summary of the Comments

2. EPA's Response

G. Solid Waste Incineration Units

1. Summary of the Comments

2. EPA's Response

H. Other Comments Regarding the Adequacy of Section 112

1. Summary of the Comments

2. EPA's Response

I. Comments Regarding the Need for Further Regulations Under

Section 112(m)(6)

1. Summary of the Comments

2. EPA's Response

J. Comments Regarding the Second Report to Congress

V. Determinations of Adequacy of Section 112 and of Need for Further

Regulations Under Section 112(m)(6)

VI. Administrative Procedures

A. Executive Order 12866

B. Regulatory Flexibility

C. Congressional Review

D. Unfunded Mandates

I. Background and Overview

Pursuant to the requirements of section 112(m)(6) of the Act, 42

U.S.C. 7412(m)(6), EPA is issuing its determination that the legal

authorities contained in the other provisions of section 112 of the Act

are adequate to

[[Page 14091]]

prevent serious adverse effects to public health and serious or

widespread environmental effects (hereinafter referred to as ``adverse

effects''), including such effects resulting from indirect exposure

pathways, associated with atmospheric deposition of HAP and their

atmospheric transformation products to the Great Waters. The EPA is

also issuing its determination that, at this time, further emission

standards or control measures under section 112(m)(6), beyond those

that can otherwise be adopted under the other provisions of section

112, are not necessary and appropriate to prevent such effects,

including the effects due to bioaccumulation and indirect exposure

pathways. The notice discusses the bases for the Agency's two draft

determinations published on July 7, 1997 (62 FR 36436), the comments

received in response to the draft determinations, EPA's responses to

those comments, and the bases for the determinations are discussed in

today's notice.

Section 112(m)(6) of the Act requires EPA to determine whether the

other provisions of section 112 provide adequate authority to prevent

serious adverse effects to public health and serious or widespread

environmental effects associated with atmospheric deposition of HAP to

the Great Waters. If EPA finds the other provisions of section 112 to

be inadequate for this purpose, section 112(m)(6) then requires the

Agency to promulgate, as necessary and appropriate, further regulations

in accordance with section 112 to prevent those effects.1

While, under the Act, EPA could have unilaterally issued its

determinations in the second Report to Congress required by section

112(m)(5), the Agency chose to conduct its analysis of the provisions

of section 112 in a more public forum that allowed interested citizens

to provide comments on EPA's preliminary views. This approach was

reflected in the consent decree entered in Sierra Club v. Browner, 96-

1680 (D.D.C.). The EPA issued its two draft determinations in

conjunction with issuing its ``Second Report to Congress on Deposition

of Air Pollutants to the Great Waters'' (EPA-453/R-97-011, June 1997),

which summarized the draft determinations. Today's notice serves as a

supplement to that Report.

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\1\ The EPA interprets this latter requirement to mandate that

EPA determine, in the first instance, whether additional regulations

are necessary and appropriate, rather than to absolutely require the

Agency to promulgate some further regulations. See, e.g.,

Environmental Defense Fund v. Thomas, 870 F.2d 892, 898-900 (2nd

Cir. 1989).

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The first draft determination pertained to the authority within the

other provisions of section 112 to take appropriate actions to address

the effects enumerated in section 112(m)(6), rather than to the

efficacy of any prior or future administrative actions under those

provisions. In addition, the scope of the draft determination focused

on the authority within section 112 to address those pollutants and

sources that can be regulated under section 112. Consequently,

pollutants that are not listed as HAP pursuant to section 112(b), and

source categories that could not be listed pursuant to section 112(c),

were not included within its scope. The EPA did note, however, that

some unlisted pollutants that are pollutants of concern for the Great

Waters are regulated by other sections of the Act (e.g., emissions of

oxides of nitrogen (NOX) are regulated pursuant to sections

108, 109, 202 and 407). Moreover, some source categories that were

outside the scope of section 112 and the determination can be regulated

under other Act provisions (e.g., mobile sources regulated under title

II of the Act). While this determination only applies to the adequacy

of section 112 to address HAP of concern to the Great Waters emitted

from stationary sources, other authorities under the Act operate in

concert with section 112 to reduce, for instance, toxic emissions from

mobile sources, NOX emissions from both mobile and

stationary sources, and particulate matter (some of which may be

toxic).

Section 112 establishes a statutory framework by which EPA

identifies HAP by whether an air pollutant may cause or contribute to

adverse effects to public health or the environment, and then develops

performance standards for the control of emissions from stationary

sources of HAP. The EPA can then adjust these control requirements as

needed to address any residual risk that may be presented by sources

even after adoption of the emission standards (section 112(f); see

footnote 3 below). The types of adverse environmental effects to be

prevented are defined in the Act and are broad in scope. An adverse

environmental effect is defined by section 112(a)(7) as ``* * * any

significant and widespread adverse effect, which may reasonably be

anticipated, to wildlife, aquatic life, or other natural resources,

including adverse impacts on populations of endangered or threatened

species or significant degradation of environmental quality over broad

areas.'' (42 U.S.C. 7412(a)(7)).

Authorities provided by section 112 that may be particularly

relevant to the Great Waters pollutants and sources include authority

to:

--Identify and list any air pollutant that may present through

inhalation or other routes of exposure a threat of adverse human health

effects or adverse environmental effects whether through ambient

concentrations, bioaccumulation, deposition, or otherwise (section

112(b)).

---Establish test methods and analytic procedures for monitoring and

measuring emissions, ambient concentrations, deposition, and

bioaccumulation of HAP (section 112(b)(5)).

--Identify and list any source category or source subcategory that

emits HAP, including sources of seven specific HAP that are of

particular concern for the Great Waters to assure at least 90 percent

of emissions of each of these seven HAP are subject to national

emission standards (section 112(c)).

--Promulgate performance standards for major sources and listed area

sources of HAP. These standards are to reflect the maximum degree of

emission reduction that is achievable, taking into consideration the

cost of achieving such reduction, non-air quality health and

environmental impacts, and energy requirements (i.e., ``maximum

achievable control technology,'' or MACT). In addition, these standards

are to apply pollution prevention measures, processes, methods systems

or techniques which reduce the volume of or eliminate emissions through

process changes, substitution of materials, enclosure of systems or

processes, and other measures (section 112(d)).

--Establish lesser quantity emission rates for determining what is a

major source of a HAP, based on several factors including potency of

the HAP, persistence in the environment, the potential to

bioaccumulate, other characteristics of the HAP, or other relevant

factors (section 112(a)).

--Require additional controls as necessary to provide an ample margin

of safety to protect public health or to prevent an adverse

environmental effect. This authority applies not only to sources

regulated under section 112(d) performance based controls, but also to

certain other source categories regulated under sections 111 and 129 of

the Act (section 112(f)).

Based on available information and EPA's analysis, and guided by

the Agency's interpretation of the statutory authorities of section

112, EPA is determining that the provisions of

[[Page 14092]]

section 112 are adequate to prevent serious adverse effects to public

health and serious or widespread environmental effects associated with

atmospheric deposition of HAP emissions to the Great Waters.

Consequently, EPA is determining that, at this time, no further

emission standards or control measures under section 112(m)(6), beyond

those that can otherwise be adopted under section 112, are necessary

and appropriate to prevent those effects. In addition, due to the state

of current scientific information concerning factors such as the

relative contribution of air emissions to adverse effects in the Great

Waters, as discussed in the first and second Reports to Congress, EPA

could not conclude confidently that such supplementary regulatory

action under section 112(m)(6) would be necessary and appropriate.

This does not mean, however, that actions under the other

provisions of section 112 or other authorities that reduce any impacts

from deposition of air pollution are not warranted, or that EPA is

concluding that air deposition of HAP does not currently cause or

contribute to adverse effects to public health or the environment. In

fact, EPA has taken and is continuing to take several actions that the

Agency expects will reduce these impacts (e.g., EPA's Nitrogen Oxides

Emission Reduction Program final rule, 61 FR 67112 (Dec. 19, 1996). In

recent years, considerable progress has been made in quantifying

emissions inventories, monitoring concentrations in air and

precipitation, and modeling total atmospheric deposition to a water

body. Studies are improving the ability to relate deposition to source

categories, and examinations are under way for viewing the total

picture relating HAP to single water bodies. Therefore, EPA reserves

its right to reconsider these determinations if future events or

additional information indicate that they are incorrect and to

promulgate any necessary and appropriate regulations under section

112(m)(6). Such events or information could include, for example, a

judicial ruling that overrules EPA's interpretation of how a particular

provision of section 112 can be employed in the effort to prevent

adverse effects from HAP deposition, or the Agency's discovery through

implementation of a section 112 provision that the authority EPA

previously believed was available to prevent such effects could not be

adequately used for this purpose.

The EPA is committed to continuing its analyses, research and

assessments of all aspects of atmospheric transport, deposition, fate

and effects of HAP emitted by section 112 sources, and to faithfully

implementing the provisions of section 112 and other authorities in

order to minimize unreasonable threats to humans and to the environment

as a result of exposure to air pollutants, whether exposure results

directly from emissions into the air, through introduction to

watersheds or water bodies, or through other pathways. The EPA will

continue to work cooperatively with the National Oceanic Atmospheric

Administration (NOAA) and the scientific community to refine methods

for measuring and estimating atmospheric transport and deposition of

HAP in order to more reliably characterize and quantify the

significance of atmospheric deposition to environmental quality.

II. Statutory Framework of the Clean Air Act Great Waters Program

In the 1990 Amendments to the Clean Air Act (Pub. L. 101-549),

Congress added a new program targeted at assessing and controlling

atmospheric deposition of HAP to the Great Waters. Section 112(m) of

the Act, as amended in 1990, 42 U.S.C. 7401 et seq., established the

Great Waters program under which EPA has ongoing responsibilities to

identify and assess the extent of atmospheric deposition of HAP to the

Great Waters. As part of this program, EPA is to monitor for

atmospheric deposition of HAP in the Great Waters, investigate the

sources of HAP deposition, research the relative contribution of

atmospheric pollutants to total loadings in the Great Waters, evaluate

adverse effects to public health or the environment caused by HAP

deposition, assess the contribution of HAP deposition to violations of

water quality or drinking water standards, and sample for HAP in biota,

fish, and wildlife of the Great Waters (42 U.S.C. 7412(m)(1)).

Section 112(m) then requires EPA to establish a monitoring network

for the Great Waters. Under section 112(m)(2), the Agency is to monitor

atmospheric deposition of HAP (and other pollutants in the

Administrator's discretion) to the Great Lakes, establishing at least

one facility in each of the Great Lakes capable of monitoring

deposition of HAP in both dry and wet conditions. The EPA is to use the

data provided by the network to identify and track movement of HAP

through the Great Lakes, to determine the portion of water pollution

loadings attributable to HAP deposition, and to support remedial plans

as required by the Great Lakes Water Quality Agreement. The EPA is to

assure that such data are compatible with databases sponsored by the

International Joint Commission, Canada, and the several States of the

Great Lakes region (42 U.S.C. 7412(m)(2)). Section 112(m)(3) then

directs EPA to establish monitoring stations to assess deposition of

HAP (and other pollutants in EPA's discretion) within the Chesapeake

Bay and Lake Champlain watersheds, determine the role of air deposition

in the pollutant loadings of these two water bodies, investigate the

sources of air pollutants deposited in their watersheds, and conduct

evaluative and sampling functions as necessary to characterize health

and environmental effects of such loadings (42 U.S.C. 7412(m)(3)).

Section 112(m)(4) requires EPA to design and deploy deposition

monitoring networks for coastal waters and their watersheds and make

any information collected through them publicly available (42 U.S.C.

7412(m)(4)).

In addition, pursuant to section 112(m)(5), EPA is to provide

periodic, updated Reports to Congress describing the results of any

monitoring, studies, and investigations conducted under the Great

Waters program, addressing the same issues mentioned above and

describing any revisions to the requirements, standards, and

limitations under the Act or other Federal laws that are necessary to

protect human health and the environment from atmospheric deposition of

HAP (42 U.S.C. 7412(m)(5)). The Agency's implementation of the Great

Waters program up through the summer of 1997 is discussed in the first

two Reports to Congress issued under section 112(m)(5), respectively

entitled, ``Deposition of Air Pollutants to the Great Waters: First

Report to Congress,'' EPA-453/R-93-055 (May 1994); and ``Deposition of

Air Pollutants to the Great Waters: Second Report to Congress,'' EPA-

453/R-97-011 (June 1997). Copies of these reports can be obtained, as

supplies permit, from the Library Services Offices (MD-35), U.S.

Environmental Protection Agency, Research Triangle Park, North Carolina

27771, or, for a nominal fee, from the National Technical Information

Service, 5285 Port Royal Road, Springfield, Virginia 22161, phone: 1-

800-553-NTIS or 703-487-4650.

Finally, section 112(m)(6) requires EPA to determine, as part of

the Report to Congress, whether the other provisions of section 112 are

adequate to prevent serious adverse effects to public health and

serious or widespread environmental effects, including effects

resulting from indirect exposure pathways, associated with deposition

of HAP (and their atmospheric

[[Page 14093]]

transformation products) to the Great Waters. In making this

determination, EPA is to take into consideration the tendency of

certain HAP to bioaccumulate. If EPA determines that the other

provisions of section 112 are not adequate for this purpose, section

112(m)(6) then provides that EPA must promulgate, in accordance with

section 112, such additional emission standards or control measures as

EPA determines may be necessary and appropriate to prevent those

effects (42 U.S.C. 7412(m)(6)).

The EPA issued its first Report to Congress under the Great Waters

program in May 1994. When the Agency had not issued the second report

by 2 years after that date, three environmental groups, the Sierra

Club, the Chesapeake Bay Foundation, and the National Wildlife

Federation, filed suit in U.S. District Court for the District of

Columbia to compel EPA to take three distinct actions: (1) Issue the

second Report to Congress; (2) determine whether the other provisions

of section 112 are adequate to prevent the effects described in section

112(m)(6) and (3) promulgate further emissions standards or control

measures under section 112(m)(6) (see Complaint for Declaratory and

Injunctive Relief, Sierra Club, et. al. v. Browner, Civ. No. 96-1680

(D.D.C.)). In May 1997, the court entered a consent decree containing a

schedule for several actions as agreed upon by the parties. First,

under the decree, the Agency was required to issue the second Report to

Congress and proposed determinations regarding the adequacy of section

112 and the need for further regulations as described in section

112(m)(6) by June 30, 1997. Second, final determinations were due by

March 15, 1998. Third, if EPA determines, pursuant to section

112(m)(6), that further emission standards or control measures are

necessary and appropriate, EPA is to issue proposed regulations by

March 15, 2000, with final regulations due by November 15, 2000. The

Agency met the first set of the consent decree's requirements when it

issued the second report and the draft determinations. Today's notice

fulfills the second set of requirements under the decree.

III. EPA's Draft Determinations

In the notice publishing the Agency's draft determinations, EPA set

out its statutory analysis of the scope of the section 112(m)(6)

analytical mandate, the authority under the other provisions of section

112 relative to that mandate, and its draft conclusions regarding the

adequacy of section 112 and the need for further regulations beyond

those that can otherwise be adopted under section 112 (62 FR 36438-46,

July 7, 1997). The Agency's analysis as presented in the draft

determinations notice is summarized below. The public comments to that

analysis are summarized later, as are EPA's responses to the points

raised by commenters and EPA's conclusions.

A. Scope of Analysis

Section 112(m)(6) charges EPA to assess the adequacy of ``the other

provisions of this section (112)'' to prevent the specified effects. If

EPA finds those other provisions could not prevent those effects,

section 112(m)(6) directs the Agency to adopt additional rules ``in

accordance with this section (112)'' not otherwise specifically

mandated or authorized by the other provisions, as needed to meet the

section 112(m)(6) protective mandate. Any such additional regulations,

having to be ``in accordance with this section (112),'' would, by the

terms of section 112(m)(6), have to be limited to rules that apply to

the air pollutants and source types that are within the Agency's scope

of authority to address under section 112 (i.e., stationary sources of

HAP).

Section 112(m)(6) does not, in contrast, direct EPA to evaluate the

individual effectiveness of the particular regulatory actions that have

been taken or that are being taken under those other statutory

provisions. The EPA interprets the statutory language as calling for an

analysis of the regulatory authority EPA has for proceeding under the

provisions of section 112 to prevent the enumerated health and

environmental effects (62 FR 36436, 36438-36439, July 7, 1997). In

other words, for purposes of conducting the required statutory

analysis, EPA must presume that the provisions would be implemented in

a manner which fully meets the substantive objectives of the relevant

provisions of section 112, rather than speculate about what actual

degree of emission control might ultimately result from any specific

regulation that has been adopted (or will be adopted), and what

remaining risks will be presented after application of those

regulations.2 This interpretation is supported by the dates

by which Congress directed EPA to make this determination and

promulgate any further necessary and appropriate regulations under

section 112(m)(6), compared to the deadlines section 112 sets forth for

full implementation of the HAP program. The first Report to Congress

was due on November 15, 1993. Further regulations based on the Agency's

determinations under section 112(m)(6) were then due on November 15,

1995. In contrast, many of the regulations EPA is required by the 1990

Amendments to section 112 to promulgate are not due until much later,

and would not be expected to be completed by the date specified in

section 112(m)(6). Some regulations, for example the residual risk

standards and 10-year MACT standards, would have been in such early

stages of development that EPA could not have begun to assess their

effectiveness. Even established regulations would not yet, at that

time, have demonstrated success or failure at preventing adverse

effects. Thus, Congress could not have expected EPA to have gathered

sufficient information, at the time the adequacy determination and

decision regarding the need for further regulations were due, to judge

the scientific or technical ``adequacy'' of recently adopted or future

regulatory actions. Rather, EPA interprets section 112(m)(6) as

charging the Agency to identify and plug any gaps in authority found

based on the conclusion that those other provisions of section 112,

when eventually implemented, could not possibly prevent the enumerated

effects from HAP deposition from stationary sources.

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\2\ This latter task is required to be taken in assessing

residual risk under section 112(f).

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The EPA also considered the extent to which the adequacy

determination must encompass all sources of HAP, rather than just

domestic stationary sources that are within the scope of section 112.

Atmospheric deposition of some HAP partially results from mobile

sources, as well as transport of emissions from foreign sources.

Moreover, some HAP are continually being recycled in the environment,

long after they have been emitted or discharged by the original source.

The EPA believes that section 112(m)(6) does not direct EPA to consider

these sources in making its determination. If the other provisions of

section 112 are found inadequate, EPA is to establish further

regulations under section 112 applicable to sources that it could

regulate under section 112. Since non-section 112 sources, such as

mobile sources and foreign sources, are outside the regulatory scope of

EPA's remedial authority under section 112(m)(6), EPA does not believe

that Congress asked EPA to evaluate the adequacy of section 112

authorities to apply to those sources. On the contrary, the most

reasonable interpretation is that Congress asked EPA to assess the

adequacy of the complicated provisions added by the 1990 Amendments to

section 112 applicable to sources that

[[Page 14094]]

are within EPA's jurisdiction under section 112.

B. Definitions of Major Source and Adverse Environmental Effect

The EPA's first step in the statutory analysis in the draft

determination was to assess the relevant definitional provisions of

section 112 (62 FR 36440-36441, July 7, 1997). Section 112(a)(1)

defines the term ``major source'' as any stationary source or group of

stationary sources located within a contiguous area and under common

control that emits or has the potential to emit, considering controls,

in the aggregate, 10 tons per year or more of any HAP or 25 tons per

year or more of any combination of HAP (42 U.S.C. 7412(a)(1)). That

definition functions in part to establish the types of sources that

will be subjected to the most stringent performance-based controls

under section 112(d). The Agency explained that the provision also

explicitly allows EPA to set lower emissions thresholds for determining

whether a source is major, which would result in more source types

being subject to the more stringent performance-based controls, based

on consideration of factors that are especially relevant for the Great

Waters, including potency and persistence of the particular HAP being

emitted by the source category and the potential of the HAP to

bioaccumulate. This means that the authority in section 112(a)(1) can

be used in conjunction with other provisions of section 112

(particularly the provisions of section 112(d) and 112(f)) to impose

controls that could help prevent the effects enumerated in section

112(m)(6). For example, the factors set forth in section 112(a)(1)

could be relevant to EPA's decisions regarding the presence of residual

risks under section 112(f).3

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\3\ The Agency is directed to consider several factors in

establishing standards to prevent adverse environmental effects. In

relevant part section 112(f)(2)(A) provides: ``Emission standards

promulgated under this subsection shall provide an ample margin of

safety to protect public health in accordance with this section (as

in effect before the date of enactment of the Clean Air Act

Amendments of 1990), unless the Administrator determines that a more

stringent standard is necessary to prevent, taking into

consideration costs, energy, safety, and other relevant factors, an

adverse environmental effect.''

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The EPA then analyzed the definition of the term ``adverse

environmental effect'' contained in section 112(a)(7).4 The

EPA recognized that the language in the section 112(a)(1) definition of

``adverse environmental effect'' does not literally match the language

describing the environmental effects in section 112(m)(6). Where the

definition covers ``significant and widespread adverse effect(s),''

section 112(m)(6) addresses ``serious or widespread environmental

effects.'' However, EPA stated that it does not believe these

differences impose meaningfully different standards. The Agency argued

that the standard imposed under section 112(a)(7) is substantially the

same as that in section 112(m)(6), for purposes of the adequacy

determination. First, the legislative history of section 112(m)

suggests that Congress understood the language in section 112(m)(6) to

have the same meaning as that used elsewhere in section 112 to describe

``adverse'' environmental effects. Second, it seemed most reasonable to

interpret the ambiguous literal differences in the two sections

consistently in order to avoid the result of concluding that Congress

had charged EPA under section 112(m)(6) to prevent environmental

effects that are not actually ``adverse.'' Third, other language in

section 112(m) itself indicates that the language should be interpreted

consistently in directing EPA to establish the Great Waters program in

order to evaluate ``adverse effects to public health or the environment

caused by (HAP) deposition including effects resulting from indirect

exposure pathways'' (42 U.S.C. 7412(m)(1)(D)). Finally, EPA stated that

the use of the word ``widespread'' as a necessary prerequisite in

section 112(a)(7), while it is just one of two possible prerequisites

under a literal reading of section 112(m)(6), does not mean that in all

cases ``adverse environmental effects'' would have to occur in multiple

geographic areas, or that impacts experienced only in, for example, the

Great Lakes, the Chesapeake Bay, another Great Waters water body, or a

significant portion of such a water body would have to be excluded.

This view was partly based on how the Agency has interpreted the term

``widespread'' in other contexts to apply to economic impacts affecting

a single community, and on the fact that section 112(a)(7) itself

provides as an example of ``adverse environmental effects'' impacts on

populations of endangered species, which are often likely to occur in

only limited geographic areas. Ultimately, EPA stated that it believes

that the ``widespread'' criterion would not exclude impacts that might

occur in one of the Great Lakes, the Chesapeake Bay, another Great

Waters water body, or a significant portion of such a water body. For

example, EPA believes that it could, in appropriate cases, employ its

section 112 authorities to address adverse environmental effects in

concert with its efforts to establish total maximum daily loads (TMDL)

under the Clean Water Act. As a result, EPA stated its belief that the

other provisions of section 112 that can be used to prevent ``adverse

environmental effects'' are especially useful for addressing Great

Waters program concerns.

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\4\ 42 U.S.C. 7412(a)(7) provides: The term ``adverse

environmental effect'' means any significant and widespread adverse

effect, which may reasonably be anticipated, to wildlife, aquatic

life, or other natural resources, including adverse impacts on

populations of endangered or threatened species or significant

degradation of environmental quality over broad areas.

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C. Listing of Pollutants and Sources

The EPA then discussed the provisions of section 112(b) and 112(c)

governing the listing of air pollutants as HAP and the source

categories to be regulated under section 112 (62 FR 36441-42, July 7,

1997). In addition to the list of HAP established by Congress in

section 112(b)(1),5 EPA is authorized under Act section

112(b)(2) to revise the list, by rule, to add new pollutants which may

present, through inhalation or other routes of exposure, a threat of

adverse human health effects or adverse environmental effects whether,

through ambient concentrations, bioaccumulation, deposition, or

otherwise (42 U.S.C. 7412(b)(2)). In addition, under section 112(b)(3),

EPA is required to add substances to the list upon a showing by outside

petitioners or on the Agency's own determination that ``* * * the

substance is an air pollutant and that emissions, ambient

concentrations, bioaccumulation or deposition of the substance are

known to cause or may reasonably be anticipated to cause adverse

effects to public health or adverse environmental effects.'' (42 U.S.C.

7412(b)(3)). Moreover, section 112(b)(5) specifically allows EPA to

establish test measures and other analytic procedures for monitoring

and measuring emissions, ambient concentrations, deposition, and

bioaccumulation of listed HAP (42 U.S.C. 7412(b)(5)). The Agency stated

its belief that these provisions of section 112 provide adequate

authority to identify and formally list any HAP which has the potential

for causing the effects enumerated in section 112(m)(6) due to

atmospheric deposition.

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\5\ The list now contains 188 HAP, as a result of EPA's final

decision to remove the compound caprolactum from the section 112(b)

list (61 FR 30816 (June 18, 1996), codified at 40 CFR 63.60).

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The EPA then described its authority to list categories and

subcategories of major sources and area sources of HAP under section

112(c)(1), the section 112(c)(2) requirement that EPA establish

emission standards under section 112(d)

[[Page 14095]]

for listed source categories, and the provisions of this subsection

that provide particular authority relevant to the Great Waters program.

The Agency noted that section 112(c)(6) requires that EPA identify and

list for regulation sources to assure that at least 90 percent of the

aggregate emissions of each of seven pollutants of concern to the Great

Waters are subject to section 112(d) standards (42 U.S.C. 7412(c)(6)),

and that section 112(c)(5) provides broad authority to list additional

categories and subcategories of area sources of HAP any time EPA finds

they present a threat of adverse effects to human health or the

environment (42 U.S.C. 7412(c)(5)). Finally, EPA discussed the

requirements under section 112(c)(3) that the Agency first list each

category or subcategory of area sources which EPA finds present a

threat of adverse effects to human health or the environment warranting

regulation under section 112, and second, list sufficient categories or

subcategories of area sources to ensure that area sources representing

90 percent of the area source emissions of the 30 HAP that present the

greatest threat to public health in the largest number of urban areas

are subject to regulation under section 112 (42 U.S.C. 7412(c)(3)). The

EPA recognized that under the provisions of section 112(c), it may list

only stationary sources for regulation under section 112, and that the

provision does not reach mobile sources such as motor vehicles,

aircraft, nonroad engines, or locomotives. The EPA explained, however,

that other Act authorities exist that provide for regulation of those

other types of sources, and that under the section 112(c) provisions,

there would not be any basis by which a category of stationary sources

of HAP emissions of concern for the Great Waters could evade listing

for regulation under section 112.

D. Regulations to Control Emissions of HAP

The EPA then analyzed the provisions of section 112 addressing

control of HAP emissions from listed source categories (62 FR 36442-44,

July 7, 1997). There are two broad approaches available under section

112: Performance-based MACT and generally achievable control technology

(GACT) standards under section 112(d), and health-based and

environmental quality-based residual risk standards under section

112(f).

1. MACT and GACT Standards

After listing pollutants and source categories, EPA is required by

section 112(d)(2) to promulgate emission standards requiring the

maximum degree of HAP emissions reduction that is achievable, taking

into consideration costs and other factors (42 U.S.C. 7412(d)(2)).

These so-called ``MACT'' standards are required by section 112(d)(3) to

meet certain stringency criteria based on the best controlled sources

in the source category, depending on whether sources are new or

existing sources (42 U.S.C. 7412(d)(3)). The EPA noted that the Act

allows the Agency to focus these MACT standards on major sources, and

that area sources may be subject to less stringent GACT standards under

section 112(d)(5). However, EPA retains the discretion both to subject

area sources to MACT standards (e.g., 60 FR 4948, 4953, January 25,

1995) where it is appropriate to do so, and to establish lesser

quantity emissions rates (LQER) for determining whether a source is

major based on a HAP's potency, persistence, potential to

bioaccumulate, or other factors. Finally, in implementing the section

112(d) MACT and GACT programs, section 112(e) requires that all

emission standards for listed categories be promulgated by November 15,

2000, and that EPA consider known or anticipated effects of HAP on

public health and the environment when determining priorities for

promulgating section 112(d) standards (42 U.S.C. 7412(e)).

2. Residual Risk Standards

The EPA further explained that while the vast majority of

reductions in HAP emissions should be obtained through section 112(d)

programs, MACT and GACT standards are not required to achieve health-

based or environmental quality-based results. However, the provisions

of section 112 do provide another mechanism by which to protect public

health and prevent adverse environmental effects, if necessary, after

the application of MACT and GACT: the section 112(f) residual risk

program (62 FR 36443-44, July 7, 1997). Under this authority, EPA is to

adopt more stringent standards within 8 years after adoption of MACT

(and has discretion to do so after adoption of GACT), if necessary to

provide an ample margin of safety to protect public health or to

prevent an adverse environmental effect (42 U.S.C. 7412(f)(2)). The

Agency stated that it believes the residual risk provisions of section

112, which also apply to sources regulated under the solid waste

incineration provisions of sections 111 and 129, allow EPA to take

necessary action to prevent any adverse environmental effect, including

any of the enumerated effects in section 112(m)(6). In setting a

section 112(f) standard to provide an ample margin of safety to protect

public health, EPA would use a two-step process (54 FR 38083, September

14, 1989). First, the Agency would determine a ``safe'' or

``acceptable'' risk level, based solely on health factors. Then, EPA

would set the standard at a level--which may be equal to or more

stringent, but not less stringent than the ``safe'' or ``acceptable''

level--that protects the public health with an ample margin of safety.

In determining the ample margin of safety, the Agency would again

consider all of the health risk and other health information considered

in the first step. Beyond that information, additional factors relating

to the appropriate level of control would also be considered, including

costs and economic impacts of controls, technological feasibility

uncertainties, and any other relevant factors. Considering all of these

factors, the Agency would establish the standard at a level that

provides an ample margin of safety to protect public health. Finally,

in setting a more stringent section 112(f)(2) standard to prevent an

adverse environmental effect, EPA would consider costs, energy, safety,

and other relevant factors. The EPA could even tailor residual risk

standards so that the regulations address effects that are presented by

a limited number of sources over a limited geographical or situational

range. For example, EPA believes it could use its authority under the

residual risk provisions to address adverse environmental effects to

Great Waters water bodies, or other water bodies, associated with

deposition of HAP emitted by particular sources. This authority,

especially, was the key to the Agency's draft determination that the

other provisions of section 112 are adequate to prevent the effects set

forth in section 112(m)(6).

E. Other Relevant Provisions of Section 112

The EPA also discussed the urban area source program required by

the provisions of section 112(k) (which is conducted in concert with

the previously discussed section 112(c) source category listing

program), the section 112(n) provisions requiring EPA to study and

report on mercury and other HAP emissions from electric utilities and

other units, and the solid waste incineration units program under

sections 111 and 129 of the Act (which is subject to the section 112(f)

residual risk program) (62 FR 36444-45, July 7, 1997). These

provisions, EPA stated, provide further authority to prevent the

effects enumerated in section 112(m)(6).

[[Page 14096]]

For example, the urban area source program could result in significant

reduction of polycyclic organic matter (POM), one of the pollutants of

concern for the Great Waters, if POM is identified as one of the 30

most hazardous air pollutants emitted by area sources. Moreover, the

application of the section 112(f) residual risk program to the solid

waste incineration unit program (which by itself will result in

significant reductions in emissions of Great Waters pollutants of

concern, particularly lead, cadmium, mercury, dioxins and

dibenzofurans) allows EPA to target particular sources whose emissions

contribute to deposition-associated adverse effects.

F. Draft Conclusions

The EPA, therefore, stated its draft determinations that: (1) the

other provisions of section 112 are adequate to prevent serious adverse

effects to public health and serious or widespread environmental

effects associated with the deposition of HAP which are emitted by

stationary sources for which EPA has authority and jurisdiction to

regulate; and, (2) as a result, no further emission standards or

control measures under section 112(m)(6), beyond those that can

otherwise be adopted under the other provisions of section 112, are

necessary and appropriate at this time to prevent such effects. The EPA

further stated that even if the other provisions of section 112 were

found to be inadequate under section 112(m)(6), the Agency did not

believe it could conclude confidently that further emission standards

or control measures beyond those otherwise authorized by section 112

are now necessary and appropriate, due to a continuing lack of adequate

scientific information regarding the relative contribution of air

emissions to adverse effects in the Great Waters.

IV. Public Comments Received and EPA Responses

The EPA received over 450 written public comments on the draft

determinations from environmental advocacy organizations, industry

trade groups or individual companies, State governmental

representatives, members of Congress, and private citizens. The

arguments contained in these comments are organized below according to

their themes.

A. Current Air Pollution Controls Are Inadequate, and EPA Should

Institute New Controls to Control HAP Emissions that Harm the Great

Waters

1. Summary of the Comments

A majority of the comments from private citizens and environmental

advocacy groups asserted that current air pollution controls (i.e.,

current Federal and State regulatory programs) of HAP emissions are not

adequate to prevent the effects specified in section 112(m)(6). Many of

these comments seem to interpret EPA's notice as stating that no

further regulatory action ``at all'' under section 112 is needed,

beyond that which EPA has already taken. The comments argue that

adverse public health and environmental effects in the Great Waters

have occurred and continue to occur as a result of atmospheric

deposition of HAP, and that, therefore, existing controls cannot be

adequate to prevent them. Many of the comments request EPA to take

specific actions such as the following: (1) Reduce mercury emissions

from coal-burning power plants; (2) cut back on dioxin emissions from

incinerators; (3) reduce HAP emissions from steel mills; (4) eliminate

non-industrial sources of HAP such as automobiles and polluted

sediments; (5) direct hospitals and municipalities to increase source

reduction and recycling; (6) add more chemicals (such as atrazine) to

the list of Great Waters pollutants of concern; (7) curtail air

pollution from lead smelters, chemical plants, and petroleum

refineries; (8) seek greater authority to safeguard the environment

from HAP emissions released in other countries; (9) take into account

background levels of HAP that have been already released; (10) shield

the public from pesticides that evaporate from fields; (11) pursue

additional scientific information on atmospheric transport of

persistent HAP and their contribution to loadings in the Great Waters

and to known and perceived impacts; (12) support legislation that makes

it economically beneficial for industries to reduce emissions; (13)

fund campaigns to inform the public as to which companies are the worst

HAP polluters and which are looking for alternatives; (14) regulate the

use of uncovered lagoons on hog farms that contribute nitrogen to the

atmosphere; and (15) control HAP emissions from off-road vehicles such

as snowmobiles and jet skis and all terrain vehicles (ATV).

2. EPA's Response

The EPA wishes to clarify the scope and purpose of the draft

determinations. Many of the commenters interpreted the draft

determinations to amount to a decision on the Agency's part to maintain

the ``status quo'' regarding control of HAP emissions that are

deposited into the Great Waters and that no further action, under any

legal authority, is needed in order to prevent adverse impacts

associated with HAP deposition. This was not what EPA intended. Rather,

EPA's draft determinations reflect: (1) The Agency's assessment of the

strength of its existing statutory authority under Act section 112

enabling EPA to take action to prevent those effects; and, (2) whether

regulatory action under its remedial authority in section 112(m)(6), in

addition to that which EPA can otherwise take under section 112, is

necessary and appropriate to prevent those effects. Since EPA believes

the legal authority provided by the other provisions of section 112 is

strong enough to allow the Agency to prevent those effects, it also

believes that specific remedial regulations beyond those that can be

issued under the other provisions of section 112 are not needed at this

time. This does not mean that EPA believes that the status quo should

be maintained and that continued regulatory action under section 112

and other legal authorities should not be taken.

While not determinative of the issue of whether the other

provisions of section 112 are legally ``adequate'' under section

112(m)(6), in response to the many commenters' requests for specific

action, EPA wishes to point out that since the passage of the 1990

Amendments to the Clean Air Act, the Agency has taken and continues to

take many actions under section 112 that are designed and intended to

achieve many of the results the commenters' requested. For example, EPA

has issued several regulations that are currently being implemented and

phased in that will substantially reduce HAP emissions and deposition

to water bodies. The Synthetic Organic Chemical Manufacturing Industry

rule (HON), is near full implementation and reduces HAP emitted by this

industry by approximately 90 per cent (510,000 tons) from 1994

levels.6 The Municipal Waste Combustors rule, which

[[Page 14097]]

addresses sources that account for over 60 per cent of the total

estimated 1990 national dioxin emissions and almost 19 per cent of the

estimated 1990 national anthropogenic mercury emissions, is expected to

reduce dioxin emissions by 99 percent and mercury emissions by 90

percent from 1990 levels for these sources when fully implemented by

December 2000.7 Similarly, the final standards for Hospital/

Medical Infectious Waste Incinerators (62 FR 48348, September 15,

1997), when implemented by September 2002, are expected to reduce

dioxin and mercury by 94 percent and 95 percent, respectively, from

subject sources. These sources account for approximately 10 per cent of

the estimated 1990 national mercury emissions to the air and 11 per

cent of the estimated 1990 national dioxin emissions. The Primary

Aluminum Industry MACT rule (62 FR 52384, October 7, 1997) is expected

to reduce POM emitted by this industry by 50 percent, or 2000 tons per

year.

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\6\ 59 FR 19402(April 22, 1994), 59 FR 29196(June 6, 1994), 59

FR 48175(September 20, 1994), 59 FR 53359(October 24, 1994), 59 FR

54131(October 28, 1994), 59 FR 54154(October 28, 1994), 60 FR

5320(January 27, 1995), 60 FR 18020(April 10, 1995), 60 FR

18071(April 10, 1995), 60 FR 63624(December 12, 1995), 61 FR

31435(June 20, 1996), 61 FR 7716(February 29, 1996), 61 FR

64572(December 5, 1996), 62 FR 62722(January 17, 1997).

\7\ 60 FR 65387(December 19, 1995), 55 FR 5488(February 11,

1991), 60 FR 65382(December 19, 1995), 61 FR 18260(April 25, 1996),

61 FR 18260(April 25, 1996), 62 FR 45116(August 25, 1997), 62 FR

45124(August 25, 1997).

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Section 112 also requires EPA to conduct a study to evaluate the

public health impacts of emissions of HAP, including mercury and

dioxins, from power plants (section 112(n)(1)(A)). The report, released

in early 1998, provides an assessment of the health effects of HAP

emitted from power plants. Under section 112(f)(1), EPA will also

issue, in 1998, a report on the methods and significance of risks to

public health and the environment which may remain after application of

standards to sources subject to regulation under section 112(d). In

addition, EPA expects to finalize, in 1998, emission standards for

hazardous waste combustors, which includes incinerators and cement

kilns, and accounts for over 4 per cent of the estimated total national

mercury emissions (1990 baseline).

The EPA, through international organizations such as the

International Joint Commission and the United Nations Economic

Commission for Europe (UN/ECE), has taken a lead role in international

strategies to reduce HAP of concern to the Great Waters. For example,

EPA is participating in the current negotiations on international

protocols for persistent organic pollutants (which include chlordane,

DDT, dioxins and furans, dieldrin, hexachlorobenzene,

hexachlorocyclohexane (primarily lindane), and polychlorinated

biphenyls (PCB)) and for heavy metals (i.e., mercury, lead, and

cadmium) under the auspices of the Long Range Transboundary Air

Pollution working groups of the UN/ECE. In addition, on April 7, 1997,

the United States and Canada signed the Great Lakes Binational Toxics

Strategy (Binational Strategy), initiating a coordinated effort to

reduce toxic substances affecting the Great Lakes Basin. This strategy

targets several of the Great Waters pollutants (e.g., dieldrin,

chlordane, DDT, hexachlorobenzene, alkyl-lead, PCBs, dioxins and

furans, toxaphene, and mercury and mercury compounds) and includes the

goal of a 50 per cent reduction in the deliberate use of mercury and a

50 per cent reduction in the release of mercury caused by human

activity by 2006.

Building on the binational strategy, EPA is developing a

multimedia, agency wide strategy for addressing priority persistent,

bioaccumulative, and toxic (PBT) chemicals. Through this effort, EPA is

developing action plans for priority substances, namely ``Level 1''

substances found in the Binational Strategy, emphasizing pollution

prevention and enlisting the participation and involvement of all

interested stakeholders to effect reductions. This effort takes an

innovative, pollution prevention approach toward reducing persistent,

toxic substances. This effort envisages working with all the Regions to

reach all interested stakeholders (e.g., industry, environmental

groups, States, Tribes and the public) to build partnerships and to

work on voluntary reduction projects. Although pollution prevention and

voluntary approaches are the preferred method of targeting substances,

the Agency will use its full complement of regulatory and non-

regulatory tools to achieve reductions.

Furthermore, EPA is taking advantage of opportunities to reduce

multimedia contamination, such as through the pulp and paper

``cluster'' of rules developed jointly by EPA's Air and Water

Offices.8 These rules are expected to result in a 74 per

cent reduction from a 1995 baseline in dioxin releases from these

sources to water when fully implemented in 3 to 6 years.

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\8\ See 61 FR 36835, July 15, 1996, for the proposed water rule

and 61 FR 9383, March 8, 1996 for the proposed air rule. Expected

promulgation for ``cluster'' is March 1998.

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While nitrogen compounds are not listed as HAP, under the

discretionary authority provided to the Administrator under section

112(m), these compounds have been identified as pollutants of concern

in both Great Waters Reports to Congress. The EPA has taken or is

currently engaged in a number of other Act activities which will reduce

deposition of nitrogen pollution to Great Waters. For instance, EPA

recently issued a proposed rule that would significantly reduce

regional transport of NOX in the Eastern States, which if

adopted and implemented would reduce nitrogen deposition associated

with NOX emissions during the summer season (May-September),

and subsequent impacts on the Chesapeake Bay and other coastal

estuaries (62 FR 60318, November 7, 1997). In addition, title IV of the

Act reduces nitrogen deposition by establishing a 2 million ton

reduction target in NOX emissions nationwide, in combination

with other provisions of the Act (42 U.S.C. 7651(b); 61 FR 67112, 67116

(December 19, 1996)). A recent ruling was issued upholding EPA's

emission limits and January 1, 2000 compliance date for coal-fired

electric utility boilers (Appalachian Power Co. v. EPA, No. 96-1497

(D.C. Cir., February 13, 1998)). This ruling supports using multiple

public health and environmental benefits as justification for

regulatory actions under the Act. Also, implementation of EPA's

recently issued revised national ambient air quality standards (NAAQS)

for ozone and particulate matter will reduce nitrogen deposition (in

the form of NOX) to the Great Waters. One EPA estimate of

the impact of the Act activities projects up to a 30 per cent reduction

of annual nitrogen deposition to the Chesapeake Bay (U.S. EPA, (1997),

Regulatory Impact Analysis for the Particulate Matter and Ozone

National Ambient Air Quality Standards and Proposed Regional Haze Rule;

Office of Air Quality Planning and Standards; Washington, DC; docket A-

95-58, item #IV-A-13).

Furthermore, the recently issued ``Clean Water Action Plan,'' is an

aggressive plan to, among other things, reduce toxic contaminants in

our water and fish (document #EPA-840-R-98-001 (Feb.14, 1998)). The

plan identifies several key actions of EPA and other Federal agencies

that address the Great Waters pollutants:

--The EPA will evaluate the linkage of air emissions to water quality

impacts to help determine appropriate reduction actions in the context

of the ``Total Maximum Daily Load'' program which directs States to

identify all sources of pollutants to an impaired water body and to

develop a plan to remedy the impairment.

--The EPA and NOAA will conduct a national survey of mercury and other

contaminant levels in fish and

[[Page 14098]]

shellfish throughout the country during the period 1998-2000. This

effort will be coordinated with State and tribal efforts to maximize

geographic coverage.

--The EPA is considering changing the reporting requirements for

mercury and other Great Waters pollution under the Toxic Release

Inventory which could result in additional reporting of releases of the

Great Waters pollutants.

--The EPA will work with NOAA and other Federal agencies, States,

Tribes, and other interested parties to adopt, by December 1999,

nationally consistent processes for monitoring water quality and fish

tissue, and review EPA guidelines for decision-making on issuance of

fish consumption advisories. The EPA will support State actions, and,

after consultation with the State, will issue fish consumption

advisories if a State fails to do so.

--The EPA will release the Contaminated Sediment Strategy that will

coordinate its programs to address the following goals: (1) Preventing

the volume of contaminated sediment from increasing; (2) reducing the

volume of existing contaminated sediment; (3) ensuring that sediment

dredging and disposal are managed in an environmentally sound manner

consistent with the needs of waterborne commerce; and (4) developing

scientifically sound sediment management tools for use in pollution

prevention, source control, remediation, and dredged material

management.

--In 1998, EPA will initiate place-based contaminated sediment recovery

demonstration projects in five watersheds selected from those

identified in EPA's National Inventory of Sediment Quality as being of

the greatest concern. Remediation efforts will be coordinated with

Federal natural resource trustees.

--With regard to mercury, the Clean Water Action Plan states that: ``A

balanced strategy which integrates end-of-pipe control technologies

with material substitution and separation, design-for-environment, and

fundamental process change approaches is needed.'' The plan calls for

the following actions with respect to mercury, in addition to those

noted above:

--The EPA will publish new analytical methods for mercury, expand

compliance and enforcement activities for direct and indirect

dischargers of mercury into surface waters, expand outreach to publicly

owned treatment works about preventing mercury pollution in sewage

discharges, and revise water quality criteria development plans, as

appropriate.

--The EPA will seek reductions in uses of mercury. These use reduction

measures will reduce the levels of mercury in waste streams, as well as

the danger of accidental releases. Generally, EPA will look to

voluntary rather than regulatory approaches to reduce mercury use.

The EPA stresses that its continued development and implementation

of the MACT program and other programs under section 112 will

significantly reduce HAP emissions, and that today's determinations

should in no way be viewed as EPA's conclusion that no further work

under section 112, or elsewhere under the Act, needs to be done. As EPA

implements section 112 programs and other programs which address Great

Waters pollutants of concern, it will take under advisement the many

useful suggestions provided by the commenters.

B. Timing of Determinations under Section 112(m)(6)

1. Summary of the Comments

A State regulatory agency and an environmental group submitted

separate comments questioning the appropriateness of the timing of the

draft determinations, and requesting that final determinations be

deferred until after further implementation of the other provisions of

section 112. The commenters argued that it is not possible for EPA to

have made a proper determination of its regulatory success at this

point, since development of the MACT program will occur up through the

year 2000. The commenters feared that making a determination solely

regarding statutory authorities may preclude EPA from ever promulgating

remedial standards in the future.

2. EPA's Response

The EPA continues to believe that the more reasonable

interpretation of both the language of section 112(m)(6) and the

subsection's deadlines for action is as a mandate that EPA evaluate the

underlying statutory authority provided by the other provisions of

section 112 to prevent the enumerated effects, rather than an

assessment of the actual success of implementing measures to prevent

them. While the commenters are correct that any assessment of the

success of the implementation of section 112 could not occur prior to

full development of the program, EPA does not believe that this fact

prevents the Agency from fulfilling its obligations under section

112(m)(6). As stated in the draft determination notice, if, subsequent

to issuing these final determinations, it becomes apparent through

implementation of the other provisions of section 112 or other events

that the Agency was incorrect in its initial assessment of its legal

authorities, EPA could revisit and reverse them and, if necessary and

appropriate, promulgate further regulations under section 112(m)(6). In

addition, EPA's ability to accommodate the commenters' requests at this

time is significantly constrained by the consent decree entered in

Sierra Club, et al v. Browner, Civ. No. 96-1680 (D.C.C.). The schedule

for EPA actions agreed to by the parties in settlement of that case

requires EPA to issue the determinations by March 15, 1998. This date

is well in advance of full implementation of the MACT program and the

statutory deadlines for the residual risk program, and, therefore,

makes it impossible to evaluate the regulatory actions EPA is taking

under section 112 in these determinations.

C. Scope of Analysis

1. Summary of the Comments

Numerous comments were submitted in response to the draft

determination's discussion of the scope of the analysis required by

section 112(m)(6). The first area commenters addressed regarded EPA's

view that section 112(m)(6) charges the Agency to assess the underlying

statutory authorities of section 112, rather than the regulatory

programs EPA has established pursuant to those provisions. The second

area regarded EPA's focus on the ability of the Agency to use section

112 to address emissions from just domestic stationary sources of HAP,

rather than either foreign, mobile, and/or non-HAP sources.

a. Statutory Authorities. State, environmental group, and

congressional commenters questioned whether EPA's focus on the

underlying statutory provisions of section 112, rather than on the

regulatory programs that implement section 112, was appropriate and

consistent with congressional intent. They argued that an assessment of

statutory authorities serves little purpose to control HAP emissions if

not accompanied by an analysis of the adequacy of the implementation of

the regulations adopted under those authorities. Some asserted that the

statutory deadline Congress imposed for making the determination, and

the directive that the determination be made as part of the Report to

Congress, shows EPA's statutory analysis was to

[[Page 14099]]

be melded with a factual inquiry into what effects are occurring and

what measures are needed to prevent them. Some also argued that the

statutory 1995 deadline for further measures, if any, under section

112(m)(6), means that EPA was not free to defer the control of HAP

deposition to other section 112 rules that will not be in place until

later years, and that any section 112 provisions that provide

discretionary authority to act cannot be relied upon to support the

adequacy of section 112 in light of the directive language in section

112(m)(6). Some then objected to EPA's view that section 112(m)(6),

rather than imposing an absolute requirement to promulgate further

regulations, establishes a duty to determine whether any further

emission standards or control measures are necessary and appropriate.

In support of these arguments, environmental group commenters made

several assertions. First, they stated that EPA cannot substitute its

own interpretation for the plain words of the statute, and that an

agency can neither enlarge upon nor narrow the terms of a statute.

Second, they argued that the legislative history to section 112 shows

that EPA must consider the effectiveness of regulations adopted under

section 112 in the determinations. For example, one commenter cited the

House Report's statement that ``[t]his subsection is intended to

provide the Administrator with the responsibility and authority to

promptly evaluate the sufficiency of the regulatory structure provided

under section 112 * * *, giving special emphasis to the effects

associated with the bioaccumulation of hazardous air pollutants''

(H.Rep. 101-490, p. 3360), and other statements that the commenter

interprets as showing Congress assumed EPA would be in a position, by

1995, to evaluate a regulatory structure that had not yet been

established. Third, the commenters argued that the Act required EPA to

have already implemented ``the highest priority provisions'' of section

112 by November 15, 1995, and that EPA could have in fact evaluated the

effectiveness of their subsequent implementation by 1995. Fourth, some

commenters argued that the Act required EPA to regulate pursuant to

section 112(m)(6) in advance of developing the broader section 112

program. Finally, the commenters infer that the timing of actions

required under section 112 is just as much an ``adequacy'' issue as is

the Agency's ability to regulate at all.

In addition, several members of Congress sent a joint letter to EPA

objecting to the draft determinations 9 (letter to Carol

Browner dated October 3, 1997, docket item #IV-G-474). An assessment of

EPA's statutory authority under the Act is not sufficient, in their

view, since EPA may never exercise some of that authority or may do so

under a protracted time frame which may not be acceptable to their

constituents.

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\9\ This letter was signed by Senators John Glenn, Jim Jeffords,

Carol Moseley-Braun, Carl Levin, Herb Kohl, and Daniel P. Moynihan,

and by Representatives Steven LaTourette, Lane Evans, Sander Levin,

Louise M. Slaughter, John Conyers, Maurice Hinchey, James Oberstar,

Sherrod Brown, Lynn N. Rivers, Bart Stupak, and Louis Stokes.

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b. Stationary Sources of HAP. State and environmental group

commenters argued that EPA should have included a discussion of all

sources of HAP emissions that deposit to the Great Waters in the

adequacy determination. By excluding mobile sources, foreign sources,

and contaminated sediments, since they cannot be regulated under

section 112, EPA cannot make a proper analysis of section 112

authorities that apply to major and area stationary sources, they

argued. Some of these commenters disagreed with EPA's view that section

112 authorities can be applied only to domestic stationary sources, and

with EPA's reading of the section 112(m)(6) remedy to adopt further

emission standards or control measures ``in accordance with'' section

112 as meaning that such measures must be limited to domestic

stationary sources of HAP.

One commenter presented a lengthy argument that the determination

should not be limited to HAP, but should also include non-HAP

pollutants of concern for the Great Waters, such as NOX.

This view was based on the fact that EPA has the discretion to include

non-HAP in its ongoing implementation of the Great Waters program and

is directed in the section 112(m)(5) provisions regarding Reports to

Congress to focus on the effects of any air-deposited pollution into

the Great Waters. This latter provision, the commenter pointed out,

broadly requires EPA to describe any revisions to Federal statutes as

are necessary to assure protection of human health and the environment.

The commenter then claimed that since EPA has exercised its discretion

to address deposition-related impacts from NOX in its Great

Waters monitoring work and ongoing implementation of sections

112(m)(1)-(5), the Agency cannot exclude NOX from the

section 112(m)(6) determination of whether section 112 is adequate.

This commenter suggested that by not importing the section 112(m)(5)

duty to report on the need for any revisions to any Federal statutes

into the more specific section 112(m)(6) determination of the adequacy

of section 112, EPA was violating not only section 112(m) but also the

consent decree in Sierra Club v. Browner.

2. EPA's Response

a. Statutory Authorities. The EPA stands by its view that section

112(m)(6) mandates that the Agency evaluate the underlying statutory

authority provided by section 112, rather than the success of

regulations adopted in implementation of the Act, in making the

adequacy determination. The EPA appreciates the comments that presented

concerns regarding the ``practicality'' of the adequacy determination,

but EPA continues to believe that the statutory language of section

112(m)(6) supports the Agency's approach. The introductory language of

section 112(m)(6) requires the Administrator to determine whether ``the

other provisions of this section'' are adequate to prevent the

enumerated effects (emphasis added). This is an explicit reference to

the other statutory subsections and paragraphs of section 112, rather

than to administrative regulations adopted pursuant to the Act. The EPA

believes that this language in the introduction of section 112(m)(6)

means that the Agency was directed to determine whether the provisions

of section 112 itself provide sufficient authority to prevent the

effects specified in section 112(m)(6). If Congress had intended EPA to

take another meaning from this language, it would have established the

mandate in such a manner as to clearly refer to subsequent regulatory

actions as being the focus of the determination, in addition to

establishing a deadline for such a determination after that regulatory

program had been established.

Moreover, even if EPA is incorrect in its interpretation of the

introductory phrase ``other provisions of this section,'' or if the

language is ambiguous and susceptible to more than one meaning, EPA

continues to believe that the rest of section 112(m)(6) supports EPA's

interpretation of the introductory phrase of this ambiguous statutory

paragraph, which is somewhat grammatically and syntactically awkward

(e.g., Appalachian Power Co. v. EPA, No. 96-1497 (D.C. Cir., February

13, 1998)). The subsection requires EPA to have made the determination

at a point in time before full development of the section 112

regulatory program. The Agency's view is also supported by the fact

that the 1990 Amendments represented a fundamental overhaul of the

approach to regulating air toxics,

[[Page 14100]]

and it was reasonable for Congress to have been uncertain as to whether

the new fleet of provisions in section 112 were sufficient to address

HAP deposition. For this reason, EPA disagrees with assertions that an

assessment of the legal authority granted by the other provisions of

section 112 serves little purpose. As stated in the draft

determination, section 112(m)(6) directed EPA to do an early, pre-full

implementation analysis of the new legal authority provided by the

substantial and complex revisions to section 112 enacted in the 1990

Amendments. If the Agency concluded those new provisions could not be

employed to prevent the enumerated effects, EPA interprets the Act as

directing it to take necessary and appropriate further regulatory

action that was not otherwise contemplated by those other provisions to

fill the identified gap by November 15, 1995. The schedule for this

analysis and the establishment of gap-filling further regulations under

section 112 ensures that if EPA concluded that the substantial rewrite

of section 112 was not sufficient to protect the Great Waters from HAP

deposition from stationary sources, EPA would be able to take

administrative action to meet this environmental objective without

having to return to Congress to seek further statutory authority.

The EPA believes that the first two Reports to Congress do reflect

a substantial factual inquiry into the effects of HAP deposition to the

Great Waters, and EPA's assessment of its legal authority under the

other provisions of section 112 was influenced by that inquiry. But EPA

disagrees with the commenters who read the regulatory deadline in

section 112(m)(6) as meaning that EPA may not rely upon either later-

in-time or discretionary authority under section 112 in support of the

section's adequacy. The language in section 112(m)(6) in no way puts

discretionary authority under section 112 off limits for purposes of

the adequacy determination. It does not follow that simply because such

action can be taken after November 15, 1995, that Congress either

excluded those provisions from the scope of the adequacy determination

or required EPA to conduct an assessment other than of the statutory

provisions of section 112. Moreover, while section 112(m)(6)

establishes a duty to determine whether it is necessary and appropriate

to take further action to prevent adverse effects from HAP deposition

to the Great Waters,10 the deadline for promulgation of any

further regulations does not imply a deadline for either achieving that

protection or for source compliance with further measures.

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\10\ One commenter misinterprets the point of EPA's citation to

Environmental Defense Fund v. Thomas, 870 F.2d 892, 898-900 (2nd

Cir. 1989). The EPA cited this case in support of the proposition

that section 112(m)(6), rather than establishing an absolute

requirement to promulgate further emission standards and control

measures, requires EPA to initially determine whether such measures

are necessary and appropriate. The EPA did not mean to imply that

EPA's action to make this determination could not be compelled under

Act section 304. However, EPA does not agree with the commenter that

EPA's determinations under section 112(m)(6)are reviewable final

actions under section 307 of the Act.

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The EPA does not find the legislative history cited by the

commenters to conflict with EPA's reading. While the quoted language in

the House Report could be interpreted as the commenter suggests, EPA

notes that the discussion in the House Report also assumed that EPA

would be issuing the report and determination within 2 years after

passage of the 1990 Amendments, and after an opportunity for public

comment (H.Rep. 101-490, p. 336). This even more abbreviated schedule

would have compounded the impossibility of assessing the adequacy of a

not-yet-adopted regulatory program, and EPA doubts that the Congress as

a whole, or even the entire House of Representatives, interpreted

section 112(m)(6) consistently with the commenter's reading. The other

passages cited by the commenter reiterate that if EPA finds the Act

does not adequately prevent adverse effects of HAP deposition, EPA is

to take further necessary and appropriate action--but, again, it is the

adequacy of section 112 itself and the existence of adverse effects

that are at issue and discussed in these passages, rather than the

post-enactment development of regulatory programs under the Act.

While some of the deadlines for some regulatory actions under

section 112(e) did fall before November 15, 1995, promulgation alone of

a standard under section 112(d) may not yield the information needed to

assess its success in actually preventing certain effects that the

standard may have been expected to achieve at promulgation. This is

because, under section 112(i), varying deadlines for compliance with

promulgated standards apply, based on whether a source is new or

existing, whether it achieves early reductions of HAP emissions,

whether additional time to install controls is needed, and other

factors as specified, for example, in sections 112(i)(1)-

(8).11 If EPA were to perform an analysis of the actual

effectiveness of its regulations in preventing effects, it would

presumably be more possible to do so after the Agency had an

opportunity to assess progress made as a result of source compliance

with the standards. Thus, even though some of the standards under

section 112(e) may have been due before, at the same time as, or soon

after 1995, the factual information needed to evaluate the actual

effectiveness of the developing regulatory programs would not be

available for several years after the deadline for the determination.

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\11\ For example, note that section 112(i)(3) provides that

existing sources may have up to 3 years to comply with new

standards, and that this period may be extended in certain cases.

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Congress clearly understood that by prescribing a schedule in which

EPA would promulgate standards over no less than 10 years, full control

of HAP emissions from covered stationary sources could not be achieved

immediately. Section 112 does not impose any barriers on EPA which

prevent it from taking actions in advance of statutorily prescribed

deadlines in those instances where the Agency believes that early

action is necessary to achieve the purpose of the section. Thus, EPA

believes that it cannot determine that the authorities available to it

under section 112 are inadequate based on possible concerns about

whether the schedule prescribed by Congress is sufficiently rapid. To

do so would implicitly raise the question as to why Congress also

directed the Agency to make the adequacy determination in section

112(m)(6).

The EPA also disagrees with commenters who argued that EPA was

directed to assess the particular authority added by section 112(m)(6)

and implement it first, before development of the broader section 112

program. Such a reading renders the duty to assess the adequacy of the

``other provisions'' of section 112 meaningless. As mentioned above,

the statute and the legislative history show that EPA is to first

determine whether the other provisions of section 112 are adequate and

whether further regulations as provided by section 112(m)(6) are

needed, before issuing any such regulations. This basic structure is

reflected in the consent decree.

Finally, EPA respectfully disagrees with the members of Congress

who commented that EPA's approach is based on a ``technicality'' in the

language of section 112(m)(6). As stated above, EPA does not agree that

section 112(m)(6) is appropriately interpreted as

[[Page 14101]]

excluding discretionary authority provided by section 112 from the

scope of the adequacy determination, since the broad, unqualified

phrase ``other provisions of this section'' does not imply that EPA

must assess only the provisions that EPA may be compelled to implement.

The EPA disagrees with the argument, which some commenters made, that

only the mandatory provisions under section 112 be included in the

adequacy determination. This is because the discretionary provisions

provide specific authority to address adverse effects and because

section 112(m)(6) itself allows EPA to exercise some discretion in

determining whether any further regulations are necessary and

appropriate, even if the other provisions of section 112 are not

adequate. Therefore, EPA continues to believe the scope of the draft

determination was correct in evaluating the statutory authorities

provided by section 112, rather than the regulatory actions taken under

the section, and EPA continues to rely on its analysis (62 FR 36438-39,

July 7, 1997).

In addition, EPA notes that interpreting section 112(m)(6) to

require an assessment of the success of EPA's regulations implementing

section 112 could frustrate the jurisdictional scheme established in

the Act for judicial review of EPA's substantive actions. Standards

under section 112 are subject to judicial review in the Court of

Appeals under section 307(b)(1) of the Act. A petition for review must

be filed within 60 days from the date notice of the final action

appears in the Federal Register. This short window of opportunity to

challenge final regulations is time limited in part so that standards

do not become the subject of review in subsequent implementation, such

as in enforcement actions or in applicability determinations, with

possibly disastrous and inconsistent programmatic consequences. If

today's action were to be treated as a referendum on EPA's individual

regulatory actions, amounting to a wholesale reopening of the

regulations themselves, the goals of section 307(b) of ensuring the

``finality'' of EPA's actions and of circumscribing the methods by

which those actions can be reviewed, could be

circumvented.12 The Agency believes that Congress could not

have intended this result, especially in light of the fact that the

determination was due under the statute in advance of the majority of

EPA's final actions under section 112 being taken and implemented.

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\12\ As noted above, EPA does not believe that today's notice,

in that it is a supplement to the second Report to Congress, is a

judicially reviewable final action under Act section 307(b). But if

a reviewing court were to find it had jurisdiction to review the

contents of the determination, and the determination regarded the

adequacy of regulatory final actions, the statute of limitations

provided by section 307(b) could be undermined.

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b. Stationary Sources of HAP. The EPA continues to believe that the

proper focus in assessing the adequacy of section 112 under section

112(m)(6) is on HAP emissions from sources that are within EPA's

jurisdiction to regulate under section 112. This means that EPA is not

required to determine whether the provisions of section 112 are

adequate to control HAP emissions from mobile sources, HAP emissions

from non-domestic sources, recycling of HAP historically introduced to

the environment that cannot be controlled though regulation of

stationary sources, or non-HAP emissions from all sources. The EPA

believes this interpretation is clear from the statutory language

directing EPA, in the case of an ``inadequacy'' determination, to issue

necessary and appropriate further regulations in accordance with

section 112, and from the fact that section 112(m)(6) directed EPA to

assess the adequacy of section 112 rather than that of the Clean Air

Act as a whole. The EPA disagrees with assertions that a proper

analysis of section 112 provisions applicable to major and area

stationary sources cannot be performed without considering emissions

from non-section 112 sources, and with the view that the section

112(m)(6) remedy may apply to sources other than domestic stationary

sources of HAP. In contrast, including non-section 112 sources within

the scope of the assessment of whether section 112 is adequate might

arguably force an ``inadequacy'' determination, since it goes without

saying that section 112 cannot be used to regulate HAP emissions from

such sources. This could then result in the confounding situation that

if HAP emissions from those non-section 112 sources cause section 112

to be inadequate, EPA would be required to establish further controls

applicable only to section 112 sources in order to remedy the

deficiency, even if doing so could not achieve the desired result.

Moreover, section 112(m)(6) provides authority to establish further

regulations only ``in accordance with'' section 112, and does not

itself enable EPA to adopt regulations applicable to sources covered by

other titles in the Act (or not covered at all by the Act). Therefore,

EPA believes that the more reasonable reading of the mandate of section

112(m)(6) that the regulatory remedy be ``in accordance with'' section

112 is as a limitation on the sources of HAP that EPA is to include

within the scope of the determination. Under EPA's reading, the scope

of Congress's question regarding the adequacy of section 112, and the

scope of the remedy Congress allowed EPA to establish if section 112 is

inadequate, are consistent, and the further regulations adopted under

section 112(m)(6) could be crafted to address whatever deficiency EPA

would have found in the other provisions of section 112 itself. If

Congress had intended EPA to include non-section 112 sources within the

scope of the determination, in order to allow EPA to apply the section

112(m)(6) remedy to the deficiency caused by the failure of section 112

to extend to such sources, Congress would not have limited its scope to

further regulations under section 112.

The EPA disagrees with arguments that Congress intended that EPA

could use section 112-like procedures to list other types of sources

and establish section 112 controls for them. The Clean Air Act

establishes a distinct separation of the stationary source and mobile

source programs, under which single sources are to be regulated under

either the mobile source or stationary source programs.13

This separation is due to the fundamental differences in approach of

the two programs. The stationary source program generally applies to

owners and operators of stationary sources, while the mobile source

program generally applies to manufacturers of engines and vehicles that

are sold in United States commerce (without generally regulating

operation of those mobile sources). Under the commenter's reading, this

separation would fall. The EPA also believes section 112(m)(6) could

not possibly be interpreted as conferring jurisdiction to regulate

sources that are outside the scope of the Clean Air Act entirely (e.g.,

foreign sources) or activities that do not fit within either of the

basic regulatory approaches of the Act (e.g., background concentrations

of HAP in the

[[Page 14102]]

environment that do not constitute either stationary or mobile

sources).

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\13\ See, e.g., section 111(a)(3), defines ``stationary source''

for purposes of section 112: ``The term `stationary source' means

any building, structure, facility, or installation which emits or

may emit any air pollutant. Nothing in title II of this Act relating

to nonroad engines shall be construed to apply to stationary

internal combustion engines.'' 42 U.S.C. 7411(a)(3), 7412(a)(3). See

also section 216(11), defining ``nonroad engine'' as ``an internal

combustion engine * * * that is not subject to standards promulgated

under section 111 * * *.'' 42 U.S.C. 7550(11).

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The EPA also disagrees with commenters who argued that the adequacy

determination should cover pollutants that are not listed as HAP. While

the other paragraphs in section 112(m) allow EPA to exercise discretion

to study and report on the impacts of deposition of non-HAP such as

nitrogen compounds, section 112(m)(6) is explicit in stating that EPA

is to determine whether section 112 is adequate to prevent effects

associated with HAP deposition, and does not require EPA to include

within the scope of the determination other pollutants the Agency has

chosen to address under other aspects of the Great Waters program. The

EPA, having exercised its discretion to address NOX under

section 112(m)(1)-(4), is required under section 112(m)(5) to report to

Congress on the results of any monitoring, studies, and investigations

regarding NOX conducted under section 112(m). That report is

required to include, among other things, a description of any revisions

to existing Federal law EPA identifies as necessary to assure

protection of human health and the environment (42 U.S.C.

7412(m)(5)(E)). However, the separate and distinct requirement in

section 112(m)(6) that EPA determine the adequacy of section 112 refers

only to deposition of HAP, without the reference to the discretionary

authority to study non-HAP under the other provisions of section

112(m). Moreover, as discussed above, the remedy for an inadequacy

determination is further regulation under section 112, which can only

address pollutants that have been listed as HAP.14 Since the

rulemaking procedures and criteria for listing a pollutant are clearly

set forth in section 112(b), EPA does not believe it would have the

legal authority to grant HAP status to a pollutant merely by exercise

of its discretion to include a non-HAP within the scope of its

monitoring and studying functions under the Great Waters program. For a

nitrogen compound, e.g., NOX, to come within the scope of

the section 112(m)(6) determination and possible remedy, it would first

have to be listed as a HAP pursuant to section 112(b). Further, EPA

disagrees with assertions that by excluding NOX from the

scope of the adequacy determination, it is violating the consent decree

in Sierra Club v. Browner. The consent decree does nothing to extend

the language of section 112(m)(6) to cover non-HAP pollutants.

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\14\ This does not imply, however, that EPA may not assess the

need to pursue any future revisions to existing Federal law

necessary to assure protection of human health and the environment

from NOX emissions.

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Therefore, EPA continues to believe that the approach taken in the

draft determinations to focus on only domestic stationary sources of

HAP was correct. Today's section 112(m)(6) determinations consequently

are limited to consideration of the adequacy of the other provisions of

section 112 to prevent the enumerated effects associated with HAP

emissions from sources that are within the scope of EPA's section 112

regulatory authority (62 FR 36438-39, July 7, 1997).

D. Definition of Adverse Environmental Effect

1. Summary of the Comments

Environmental group commenters objected to EPA's interpretation

that the language in the section 112(a)(7) definition of ``adverse

environmental effect'' applies to as broad a set of environmental

impacts as does the language in section 112(m)(6) addressing ``serious

or widespread environmental effects'' associated with HAP deposition.

They did not agree with EPA that the language in the two subsections

functions interchangeably, primarily because section 112(m)(6) uses the

word ``or'' to link ``serious'' with ``widespread'' environmental

effects, rather than the word ``and.'' (In contrast, section 112(a)(7)

defines ``adverse environmental effect'' to mean ``any significant and

widespread adverse effect, which may be reasonably anticipated, to

wildlife, aquatic life, or other natural resources, including adverse

impacts on populations of endangered or threatened species or

significant degradation of environmental quality over broad areas.'')

The commenters argued that an environmental impact could qualify under

the former test while not under the latter, meaning that the universe

of effects under the definition of adverse environmental effect is

necessarily narrower than the universe of effects section 112(m)(6)

addresses. The commenters asserted that under EPA's interpretation, EPA

could not, for example, prevent effects of mercury deposition in the

Everglades on alligators or protect a particular ecosystem such as one

of the Great Lakes or even the Great Lakes ecosystem as a whole. The

commenters cited legislative history that they believe supports the

view that Congress deliberately used the disjunctive ``or'' in section

112(m)(6), and argue that EPA improperly relies upon case law in

support of the proposition that the use of ``or'' should not

automatically render it as applying differently than the definition of

``adverse environmental effect.''

2. EPA's Response

The EPA continues to believe that the scope of the term ``adverse

environmental effect'' defined in section 112(a)(7) applies just as

broadly as the language in section 112(m)(6) directing EPA to address

``serious or widespread environmental effects.'' The Agency recognizes

that the language of the two sections is literally different. But EPA

also urges that the presence of that difference reveals a substantial

degree of ambiguity in the statutory language that EPA, in implementing

section 112(m)(6), must reasonably interpret (Chevron U.S.A., Inc. v.

NRDC, 467 U.S. 837 (1984)).

The EPA does not agree that the use of ``or'' in section 112(m)(6),

combined with the subsection's explicit reference to indirect exposure

pathways and bioaccumulation, means that it must be interpreted as

specifically providing EPA more authority to address impacts from HAP

deposition than is provided otherwise under section 112. The EPA does

not believe that impacts resulting from indirect exposure pathways or

bioaccumulation are excluded from the scope of the definition of

``adverse environmental effect.'' This is partly because several other

provisions of section 112 reveal Congress' broader concerns with these

aspects of HAP emissions, such as the section 112(a)(1) definition of

``major source,'' 15 the section 112(b)(2) criteria for

adding pollutants to the HAP list,16 and the section

112(m)(1)(D) directive that EPA assess adverse effects to the

environment from HAP deposition.17 Since EPA is clearly

empowered to consider these factors when implementing the broader

section 112 program, the fact that section 112(m)(6) also explicitly

refers to them does not mean that it provides greater authority than

section 112 otherwise does in allowing EPA to prevent ``adverse

environmental effects.'' In fact, the broader language in section

112(a)(7) referring to ``any'' enumerated effect

[[Page 14103]]

``which may be reasonably anticipated'' evinces congressional intent to

not restrict the scope of that term to only certain specific impacts.

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\15\ As mentioned above, section 112(a)(1) allows EPA to

establish LQER for determining whether a source is major, based on

such factors as persistence, potential for bioaccumulation, or other

relevant factors.

\16\ Sections 112(b) (2) and (3) require evaluation and revision

of the list based on factors such as exposure pathways other than

inhalation, bioaccumulation, deposition.

\17\ Section 112(m)(1)(D) includes as an example of ``adverse

effects to public health or the environment'' effects that result

``from indirect exposure pathways.''

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For similar reasons, EPA disagrees that the sentence construction

in section 112(a)(7) and 112(m)(6) force a conclusion that the scope of

environmental effects in the latter is broader than that in the former

(and that the other provisions of section 112 are therefore

inadequate). In interpreting the ambiguous language of section

112(m)(6), the Agency has discovered clear evidence of congressional

intent for the two phrases to have the same meaning. First, in the

provision of section 112(m) initially establishing the Great Waters

program, section 112(m)(1) charges EPA to ``evaluate any adverse

effects to public health or the environment caused by (HAP) deposition

(including effects resulting from indirect exposure pathways).'' This

use of a variant of the language in the definition of ``adverse

environmental effect,'' as inclusive of the same types on non-direct

exposure routes as that mentioned in section 112(m)(6), suggests

Congress' use of different language in section 112(m)(6) than is used

elsewhere in section 112 may have been inadvertent.

Second, the legislative history suggests that the members of

Congress championing section 112(m)(6) understood its language to

encompass the same scope as adverse environmental effects. For example,

in describing the amendment to add section 112(m)(6), Congressman

Levine stated, ``If the EPA finds that the Clean Air Act does not

protect human health or the environment from airborne depositions, the

EPA would be required to develop regulations to prevent such adverse

effects.'' 18

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\18\ Remarks of Mr. Levine, House Debate 5-21-90, reprinted in

``A Legislative History of the Clean Air Act Amendments of 1990,''

at 2633. See also, Remarks of Mr. Bilirakis, House Debate 5-23-90,

id., at 2941 (``The amendment further grants authority to EPA to

regulate such substances should it find that the amended Clean Air

Act is inadequate to prevent serious adverse effects on human health

and the environment.''); Remarks of Mr. Lagomarsino, id., at 2946

(``If the EPA finds that other provisions of the Clean Air Act do

not adequately prevent depositions, the EPA would be authorized to

develop regulations to prevent such adverse effects.''); Remarks of

Mr. Levine, id., at 2938 (``In the event that the EPA found that

other provisions of the Clean Air Act did not adequately prevent

serious adverse impacts, the EPA would be required to develop

regulations to prevent such adverse impacts with regard to the

Pacific, Arctic, Atlantic, and eastern gulf coasts.''; Remarks of

Mrs. Lowey, id., at 2939 (``Under the Amendment, if EPA finds that

the Clean Air Act does not adequately minimize dangers to human

health and the environment from toxic depositions, EPA is authorized

to develop regulations to prevent such adverse effects.'').

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Third, EPA disagrees that the language of section 112(a)(7)

defining adverse environmental effect must be so narrowly construed as

to prevent the Agency from being able to use its various section 112

authorities to address significant impacts that occur, for example, in

only a single Great Lake (or the Great Lakes collectively) or such a

substantial water body as the Everglades. In the section 112(a)(7)

reference to ``any'' enumerated effect in the singular clearly

contemplates impacts of limited geographic scope, suggesting that the

``widespread'' criterion does not present a particularly difficult

threshold to cross. This is further supported by the fact that section

112(a)(7) provides as an example of adverse environmental effects,

adverse impacts on populations of endangered or threatened species,

which as reflective of their imperiled status are especially likely to

exist in limited geographic areas. Moreover, EPA has in other contexts

interpreted ``widespread'' to have a very localized meaning: e.g., EPA

interpreted ``widespread'' economic impacts as being those that applied

to a single community.19 Ultimately, EPA believes that the

``widespread'' criterion would not exclude impacts that might occur in

one of the Great Lakes, the Chesapeake Bay, another Great Waters water

body, or a significant portion of such a water body. For example, EPA

believes that it could, in appropriate cases, employ its section 112

authorities to address adverse environmental effects in concert with

its efforts to establish total maximum daily loads under the Clean

Water Act.

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\19\ See Final Rule, Water Quality Standards Regulation, 48 FR

51400, 51401 (November 8, 1983), codified at 40 CFR 131.10(g)(6).

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Fourth, EPA continues to believe the case law cited in the draft

determination, in addition to more recent case law, is supportive of

the Agency's approach (e.g., De Sylva v. Ballentine, 351 U.S. 570

(1956) (``the word `or' is often used as a careless substitute for the

word `and,' that is, it is often used in phrases where `and' would

express greater clarity''); Bell Atlantic Telephone Co. v. FCC, No. 97-

1432 (D.C. Cir. Dec. 23, 1997); Alarm Industry Communications Committee

v. FCC, No. 97-1218 (D.C. Cir. Dec. 30, 1997); U.S. v. Moore, 613 F.2d

1029 (D.C. Cir. 1979); U.S. v. One Rolls Royce, 43 F.3d 794 (3rd Cir.

1994); Kelly v. Wauconda Park Dist., 801 F.2d 269 (7th Cir. 1986); U.S.

v. Smeathers, 884 F.2d 363 (8th Cir. 1989)). The EPA does not believe

it is necessary to read the literal differences in the language of

section 112(a)(7) and 112(m)(6) as being determinative of the adequacy

of section 112. As shown by the legislative history, Congress did not

appear to assume it was requiring EPA to do so. The use of language

similar to that in section 112(a)(7) in establishing the general Great

Waters program shows Congress expected the scope of environmental

effects addressed by the Great Waters program to be the same as those

that would qualify as adverse under section 112. If the literally

different language absolutely forced a difference in real meaning, the

need for Congress to have asked EPA to assess the adequacy of the other

provisions of section 112 would not be apparent, since as a

definitional matter, it would have been impossible for section 112 to

be ``adequate'' for purposes of section 112(m)(6).

The EPA also believes other considerations argue against making too

much of the language differences of the two subsections. Read

literally, it is not necessarily the case that section 112(m)(6) would

reach a broader universe of impacts than does section 112(a)(7). This

is because section 112(a)(7) could be interpreted as allowing EPA to

address a singular impact that may merely be reasonably anticipated

(i.e., a lone impact that does not yet exist but that could be

rationally expected to occur), whereas section 112(m)(6) could be

interpreted to address only presently occurring impacts that exist in

the plural. In addition, while under a literal reading of section

112(m)(6), a qualifying effect could be one that is merely

``widespread'' but not ``serious,'' the fact that an impact might not

be serious could complicate the Agency's practical ability to address

it in a regulatory context, whereas under section 112(a)(7) that

``widespread'' impact would only need to be ``significant'' in order to

be plainly within the definition.20 As a result, EPA

believes that it is reasonable to reconcile the differences in the

statutory language of section 112(a)(7) and 112(m)(6) in a manner that

makes them most consistent and seems to give greatest effect to

Congress' apparent intended meaning and purpose (Bell Atlantic

Telephone Co.s v. FCC, No. 97-1432 (D.C. Cir. Dec. 23, 1997)). The

Agency continues to rely on the rationale contained in the draft

determination for this approach (62 FR 36440-41, July 7, 1997).

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\20\ See the dictionary definitions of ``serious'' as ``having

important or dangerous possible consequences,'' and ``significant''

as ``having or likely to have influence or effect'' Webster's Ninth

New Collegiate Dictionary (Merriam-Webster Inc., Springfield, MA:

1986).

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[[Page 14104]]

E. Regulations to Control Emissions of Pollutants

The EPA also received comments questioning the ability of the

provisions of section 112 relating to emission standards to control HAP

and prevent adverse impacts from deposition. Some of these comments

raised distinct questions about whether certain provisions could be

used to address the effects enumerated in section 112(m)(6), while

others focused on the timing the Act provides for implementing these

provisions, even assuming they can prevent the enumerated effects.

1. Summary of the Comments

a. Utility of Section 112 Emission Control Provisions. State and

environmental groups commented that even where airborne deposition of

HAP has serious adverse effects to public health and the environment,

EPA's ability to control emissions of those HAP under the section

112(d) MACT and GACT programs is still constrained by what current

technology can achieve. The commenters requested that EPA describe how

MACT standards will in fact be developed to prevent adverse effects.

They then argued that even though the section 112(f) residual risk

authority allows more stringent post-MACT or -GACT standards based on

environmental needs, since section 112(f) requires EPA to consider

factors such as ``costs, energy, safety, and other relevant factors''

in setting residual risk standards to prevent an adverse environmental

effect and does not explicitly address indirect exposure pathways, it

is ambiguous how much legal flexibility EPA has to actually achieve

environmental quality-based goals. Since section 112(m)(6) does not

specify these factors but does refer to indirect exposure pathways,

they argued, it must provide greater authority. Some argued that EPA's

regulatory authority contains a gap simply by virtue of the fact that

mobile sources and foreign sources emit HAP that deposit in the Great

Waters, while section 112 can only reach domestic stationary sources,

and that section 112 is inadequate to control other human activities or

other causes of HAP deposition, such as pesticide application and

revolatilization.

b. Timing of Implementation of Section 112 Provisions to Control

HAP Emissions. State and environmental groups observed that EPA is

still in the process of establishing initial MACT standards, and that

EPA may wait up to 8 more years after promulgation of MACT before

setting environment-based residual risk standards after MACT has been

established for a source category. They noted that these standards

would then likely be subject to litigation, especially due to the

requirement that EPA consider the several aforementioned factors in

setting residual risk standards. They then argued that the fact that

EPA has already missed several statutory deadlines under section 112

suggests the timing of EPA's implementation of the program may be too

protracted. Since some argued that the determination was due in 1993

and was to address the new regulatory program, with further regulations

required if EPA found section 112 to be inadequate, those further

remedial regulations were due to be established and successfully

implemented long before then.

The members of Congress who objected to the draft adequacy

determination were troubled by the lack of focus on the amount of time

that it would take to achieve the Great Waters goals under the other

provisions of section 112 (letter to Carol Browner, dated October 3,

1997, docket item #IV-G-474). Those members asked EPA to inform

Congress of the Agency's specific plan and time frame for using section

112, and stated that if the required protection can be provided but not

in a ``timely fashion,'' section 112 is not adequate.

2. EPA's Responses

a. Utility of Section 112 Emission Control Provisions. The Agency

recognizes that MACT and GACT standards promulgated pursuant to the

provisions of section 112(d) are not required to achieve specified

health-based results or to prevent specified environmental effects.

However, section 112(d)(2) does contemplate that EPA would take into

account measures that are consistent with ``pollution prevention''

principles when setting standards. For example, the introductory

language to section 112(d)(2) directs EPA to establish standards that,

where achievable, prohibit emissions of HAP, and paragraph (A) of that

subsection anticipates that MACT will either reduce or ``eliminate''

such emissions.

In addition, EPA disagrees that the factors EPA is required to

consider in setting health- or environment-based residual risk

standards under section 112(f) would limit EPA's ability to prevent

adverse effects resulting from HAP deposition to any greater degree

than would be the case if EPA were to adopt standards under section

112(m)(6). As explained in the draft determinations, EPA has

substantial discretion in determining how to evaluate those factors and

what weight to give them, and need not value any single factor above

the others or above the need to prevent an adverse environmental

effect.21 While section 112(m)(6) does not refer to factors

such as those specified in section 112(f)(2), under the Great Waters

provision, the Agency is directed to establish such further regulations

``as may be necessary and appropriate to prevent'' adverse effects from

HAP deposition to the Great Waters. Congress' use of such language

indicates that EPA is expected to weigh considerations in addition to

the need to prevent adverse effects when establishing regulations under

section 112(m)(6). Such further regulations would need to be both

``necessary'' and ``appropriate'' to achieve their purpose, and the

factors that EPA traditionally considers when establishing binding

regulations (e.g., costs, technological feasibility, lead time, safety,

energy) would naturally come into play. The EPA also disagrees with the

assertion that residual risk regulations could only be developed in

consideration of direct exposure pathways. Nothing in the statutory

language of section 112(f) implies such a limitation on the utility of

the residual risk program. And, in light of the fact that other

provisions of section 112 such as the definition of major source at

section 112(a)(1) and the section 112(b) HAP listing provisions permit

EPA to consider indirect exposure pathways, consideration of such

effects would not be precluded under the residual risk program.

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\21\ New York v. Reilly, 969 F.2d 1147, 1150 (D.C. Cir. 1992)

(citing Center for Auto Safety v. Peck, 751 F.2d 1336, 1342 (D.C.

Cir. 1985), Weyerhauser Co. v. Costle, 590 F.2d 1011, 1045 (D.C.

Cir. 1978) (Congress ``left EPA with discretion to decide how to

account for the consideration of factors, and how much weight to

give each factor.''); Appalachian Power Co. v. EPA, No. 96-1497

(D.C. Cir., February 13, 1998).

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The EPA also disagrees that section 112, simply due to its limited

reach of applying only to domestic stationary sources, is inadequate.

Congress could not have assumed that the adequacy question could be

answered so easily, since it was common knowledge that the section 112

authorities could only apply to stationary sources. The commenters have

not identified any inadequacies in the provisions of section 112

themselves that would prevent EPA from addressing adverse impacts from

deposition of HAP emitted by domestic stationary sources, and therefore

EPA disagrees that section 112 contains a gap in authority. In sum, EPA

continues to believe it has sufficient legal authority through the

implementation of section 112(d) and

[[Page 14105]]

112(f) to achieve the preventative mandate of section 112(m)(6), and

continues to rely upon the rationale contained in the draft

determinations (62 FR 36442-44, July 7, 1997).

In addition, EPA wishes to point out two additional provisions of

section 112 that support the Agency's conclusion that it is adequate

under section 112(m)(6). First, section 112(d)(4) provides that, with

respect to pollutants for which a health threshold has been

established, the Administrator may consider such threshold level, with

an ample margin of safety, when establishing emission standards under

section 112(d)(42 U.S.C. 7412(d)(4)). If EPA invokes this provision, it

must assure that any emission standards would not only result in

ambient concentrations that would protect the public health with an

ample margin of safety, but that the standards would also be sufficient

to protect against the threat of adverse environmental effects (62 FR

33631, June 20, 1997). Second, under section 112(l), states may develop

and submit to EPA for approval their own programs for implementation

and enforcement of emission standards for HAPs (42 U.S.C. 7412(l)(1)).

The EPA has previously stated its view that section 112(l) provides

authority to approve state programs that contain elements for

controlling the potential-to-emit (PTE) of source HAP emissions (61 FR

36295, 36296-7, July 10, 1996). Under such a program, a state could,

for example, issue a prohibitory rule applicable to source HAP

emissions, or a federally enforceable state operating permit applicable

to a specific source to control its HAP PTE.

b. Timing of Implementation of Section 112 Provisions to Control

HAP Emissions. The fact that EPA has missed some of the statutory

deadlines established in the Act is not relevant to the subject of the

adequacy of section 112 to prevent adverse effects from HAP deposition.

If anything, the Clean Air Act's provision of a mechanism under section

304 by which citizens can enforce these statutory deadlines and seek to

compel EPA to implement the provisions of section 112 (a failure which

is only ``temporary'' in that it does not preclude ultimate

implementation of the underlying statutory authority) supports EPA's

confidence in the substantive utility of section 112. The EPA also

disagrees with the interpretation that the November 15, 1995 deadline

in section 112(m)(6) for establishing any necessary and appropriate

further regulations compels a conclusion that the other provisions of

section 112 that provide later deadlines are either inadequate or are

irrelevant for purposes of the determination. Nowhere in section

112(m)(6) does it specify at what point in time sources would be

required to comply with such further regulations, or at what point the

environmental goals of section 112(m)(6) would have to be achieved

(e.g, Appalachian Power Co. v. EPA, No. 96-1497 (D.C. Cir., February

13, 1998)). It is certain that Congress, in enacting the complicated

provisions of section 112 in the 1990 Amendments, understood that full

development of the HAP program would take a significant amount of time,

and that, in addition, full source compliance with the new program

would not occur immediately upon the establishment of the program. The

schedules for development and compliance contained in section 112(e)

and 112(i), for example, are clear evidence of this understanding. In

light of this, if Congress had in fact intended that any regulations

adopted under section 112(m)(6) would be immediately implemented and

enforced, with successful results, upon their promulgation, it would

have been unnecessary to ask whether the other provisions of section

112 that employed the more detailed and longer implementation schedules

are adequate, since they clearly could not have been. Rather, EPA

believes that the specific timetables for implementation of the other

section 112 provisions, contrasted with the bare deadline in section

112(m)(6) for promulgating any necessary and appropriate further

regulations, actually do more to assure timely achievement of the

intended results, as a statutory matter, than does section 112(m)(6).

Therefore, EPA rejects the reading that section 112(m)(6) requires the

actual prevention of adverse effects from HAP deposition to be achieved

in advance of when the other provisions of section 112 could be

employed to prevent them.

The EPA recognizes that the time frame for implementation of

section 112 is also a concern of the members of Congress who objected

to the draft adequacy determination, and who requested EPA to set forth

the Agency's specific plan and schedule for implementing section 112.

In response, EPA first refers attention to section 112(c)-(f), which

establishes several deadlines for EPA action.22 In addition,

there have been several consent decrees entered by the district courts

establishing new deadlines in cases where EPA has missed the statutory

deadlines.23 Finally, EPA has included in the docket for

today's notice a document that sets forth in detail EPA's most up-to-

date expected schedule for implementation of the general section 112

program which has also been forwarded, along with a copy of this

notice, to the individual members of Congress who signed the letter

commenting on the draft determination.

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\22\ In summary, section 112(c)(3) in concert with section

112(k)(3)(B) requires EPA by November 15, 1995, to have listed

categories and subcategories of area sources sufficient to ensure

that 90 percent of area source emissions of the 30 HAP that present

the greatest threat to public health in large urban areas are

subject to regulations promulgated by November 15, 2000; the same

deadlines apply under section 112(c)(6) for listing and regulating

sources of emissions of seven specified HAP that are pollutants of

concern for the Great Waters Program; section 112(d)(2) provides a

detailed schedule for the regulation of coke ovens; section

112(e)(1) establishes deadlines for promulgation of MACT and GACT

standards ranging from November 15, 1992, though November 15, 2000;

section 112(f)(2) provides the deadlines for establishing residual

risk standards after promulgation of standards under section 112(d);

and section 112(i) sets forth the detailed schedules for when

certain types of sources are required to comply with promulgated

standards.

\23\ Docket number A-97-21; item II-B-2 for 2 year and 4 year

MACT schedules.

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F. Mercury and Electric Utilities Reports to Congress

1. Summary of the Comments

In comments supporting the discussion of the section 112(n)

provisions governing reports to Congress on mercury emissions and

emissions from electric utilities in the draft determinations, an

industry commenter stated that attempting to regulate electric utility

steam generating units under section 112(m)(6)(assuming the Agency

concluded that the other provisions of section 112 are inadequate)

would thwart Congress' intent that regulation of such units under

section 112 could occur only if EPA had found under section

112(n)(1)(A) that regulating these sources is necessary and

appropriate. Especially if regulation under section 112(m)(6) were

attempted in advance of the completion of the section 112(n)(1)(A)

utility study, they argued, section 112(n)(1)(A) would be rendered

irrelevant.

An environmental group commenter, on the other hand, argued that

since at the time of the draft determinations neither the mercury nor

the utility reports were completed, and EPA had not made any decision

regarding whether it is necessary and appropriate to regulate HAP

emissions (particularly mercury) from electric utility steam generating

units, EPA is obligated under section 112(m)(6) to ``immediately''

promulgate further regulations to reduce mercury emissions from coal-

burning power plants. In the alternative, they

[[Page 14106]]

demanded that EPA immediately complete the mercury and utility reports

and promulgate measures to reduce mercury from power plants such that

adverse health effects from mercury in the Great Waters, and resulting

fish consumption advisories, are eliminated.

2. EPA's Response

The EPA agrees that section 112(n)(1)(A) is the primary provision

of section 112 pursuant to which the Agency could determine whether it

is appropriate to regulate HAP emissions from electric utilities. The

EPA will be making the determination of whether it is appropriate and

necessary to regulate such emissions in the context of fulfilling the

Agency's responsibilities under section 112(n)(1). If EPA concludes

that such regulation is necessary and appropriate, the full range of

authority contained in section 112 would be available to address HAP

emitted by electric utilities.

The EPA disagrees that the then-pending status of the mercury and

utility reports established an immediate duty for EPA to regulate

mercury emissions from electric utilities under section 112(m)(6). The

environmental group's position is based on its view that section

112(m)(6) requires EPA to regulate all HAP emissions under that

provision pending development of the broader regulatory program under

the other provisions of section 112. The EPA does not believe that

section 112(m)(6) trumps the statutory schedule for development of the

section 112 program. The EPA also notes that the demand that EPA

``immediately'' promulgate controls under section 112(m)(6) for mercury

emissions from utilities conflicts with the schedule reflected in the

consent decree entered in Sierra Club, et al v. Browner, under which

any further emissions standards would not be due until November 15,

2000.

G. Solid Waste Incineration Units

1. Summary of the Comments

An environmental group commented regarding EPA's discussion of its

authority under section 112(f) and 129 to regulate HAP emissions (and

emissions of other pollutants) from solid waste incineration units such

as medical and municipal waste incinerators. In essence, these comments

object to the standards EPA has already developed under section 129 for

controlling emissions from these sources, and demand that EPA explain

exactly how the Agency will implement the residual risk program to

address any remaining impacts that may exist. They list several

specific things that the commenter believes revised standards under

section 129 must achieve or incorporate. These include setting a goal

of zero discharge of dioxin for all medical waste incinerators, and

other such regulatory actions to achieve the preventative goals of

section 112(m)(6).

2. EPA's Response

The comments objecting to the stringency of the current section 129

standards for medical and municipal waste incinerators are not within

the scope of today's determination of whether the statutory authorities

provided by section 112 are adequate. These regulations were adopted

pursuant to the procedural requirements of section 307(d) of the Act.

The proper forum for challenging the sufficiency of a particular

regulation is either: (1) The rulemaking action establishing the

standard itself (either in comments on the proposed regulation or in a

petition for review of the final action rulemaking action under section

307(b)); or, (2) a petition for reconsideration of the final rule (and

possible petition for review of the Agency's final action in response

to the petition). Today's notice is not the appropriate place to

address comments objecting to the substance of the regulations adopted

pursuant to section 129. Rather, EPA notes that the commenter does not

dispute EPA's view that the section 112(f) residual risk authority

applicable to sources regulated under section 129 provides a valuable

statutory tool for preventing adverse effects from HAP emissions

depositing into the Great Waters.

H. Other Comments Regarding the Adequacy of Section 112

1. Summary of the Comments

Several other miscellaneous comments regarding the adequacy of

section 112 to prevent adverse effects from HAP deposition were

submitted. Some argued that section 112 cannot be adequate in light of

the fact that EPA recently signed the Great Lakes Binational Toxics

Strategy (Canada/U.S.--April 7, 1997). Similarly, some argued that

initiatives such as the Great Lakes Water Quality Guidance indicate

that additional legal authorities beyond section 112 are needed to

protect public health and the environment. Others commented that while

NOX is not a listed HAP and thus not within the scope of the

section 112 regulatory reach of the section 112(m)(6) remedy, there is

mounting evidence that NOX and sulfur dioxide

(SO2), precursors to acid rain, may act synergistically to

exacerbate the problems caused by certain HAP, such as mercury by

lowering the alkalinity of receiving waters. Since EPA has no authority

under section 112 at all to regulate pollutants other than HAP, the

commenter argued, and since a comprehensive approach to remedying

adverse impacts from deposition of mercury may arguably require

additional regulation of NOX and SO2 emissions,

section 112 cannot be adequate. Another commenter demanded that EPA's

action to issue the determinations serve as a vehicle for particular

substantive actions, such as reducing ongoing emissions of PCB emitted

by utilities and landfills, creating an inventory of pesticide use in

the United States, developing a Great Lakes pesticide initiative, and

preventing air revolatilization of HAP in implementing the Assessment

and Remediation of Contaminated Sediments program. This commenter

stated that EPA did not explicitly address whether section 112 is

adequate to prevent adverse effects to especially sensitive segments of

the populations, such as children, and why, if adequate authority

exists, the Agency has allegedly not applied it to eliminate the

``environmental injustice'' of these effects. The commenter noted that

fish consumption presents more acute risks for people especially

vulnerable to toxics, such as nursing women and unborn children, and

then observed that EPA in the first Report to Congress stated that

since certain sub-populations such as Native Americans are more likely

to consume greater amounts of Great Lakes fish and, therefore, be more

exposed to toxic chemicals, their effects need to be considered in

decision making on toxic substances control. The commenter asserts that

since the draft determinations did not separately or explicitly address

environmental justice issues, EPA is in violation of Executive Order

12898, ``Federal Actions to Address Environmental Justice in Minority

Populations and Low-Income Populations.'' Another commenter argued that

additional pollutants, particularly dieldrin, a Great Waters pollutant

of concern, must be listed as a HAP under section 112(b), due to its

effects as discussed in the second report. Since dieldrin is not

currently listed, the commenter notes, EPA cannot currently regulate it

under section 112 and address its deposition impacts.

2. EPA's Response

The EPA disagrees that the fact that EPA has entered into the

Binational Toxics Strategy and other such initiatives demonstrates that

section 112 is inadequate to prevent adverse effects

[[Page 14107]]

from HAP deposition of domestic stationary source emissions. The EPA

has never in any such action insinuated that its underlying statutory

authority to control emissions from these sources is wanting, and there

is no basis for concluding that EPA's determinations regarding the

adequacy of section 112 are in conflict with the Agency's participation

in these initiatives. On the contrary, EPA has used and will continue

to use its authority under section 112 to further the goals of

strategies such as the Binational Toxics Strategy. The EPA also

disagrees that the exacerbating effects NOX and

SO2 may have on HAP deposition impacts compels an inadequacy

determination. The EPA can still use its section 112 authority to

address the HAP emission component of such impacts, and while unlisted

pollutants such as SO2 and NOX may not be

regulated under section 112, there are ongoing efforts under the Clean

Air Act to control non-HAP emissions. The EPA referred to this

authority in the draft determination partly in order to highlight the

fact that while certain pollutants cannot be controlled under section

112, that does not automatically render section 112 inadequate to

control emissions of pollutants that are HAP. The EPA sees no

restriction in section 112 that would preclude the Agency from

preventing impacts caused by HAP that are enhanced by the presence of

other pollutants. The comments that request EPA to take particular

actions are not directly relevant to the question of whether the other

provisions of section 112 are adequate to prevent adverse effects from

HAP deposition. Moreover, charges that EPA has failed to comply with

Executive Order 12898 because the draft determination did not

explicitly discuss effects on particularly sensitive segments of the

population do not recognize that EPA stated it believes that section

112 is adequate to prevent any of the enumerated adverse effects from

HAP deposition. This necessarily includes qualifying adverse effects

that are experienced by sensitive population segments, such as children

and nursing mothers, and those experienced by segments of the

population that experience greater exposure to environmental toxics,

such as Native Americans. The EPA's assessment of its legal authority

under section 112 was not limited to whether the Agency can act to

prevent adverse effects experienced only by a ``majority'' of citizens.

Indeed, the definition of adverse environmental effect in section

112(a)(7), and the relevant provisions of section 112(f)(2) directing

EPA to protect the public health with an ample margin of safety, are in

no way so limiting. Finally, EPA notes that the Executive Order applies

to EPA's implementation of section 112 and to the regulatory actions

EPA takes under its provisions, thus ensuring that environmental

justice issues will be taken into consideration as the various section

112 programs are developed. In response to the request that dieldrin be

listed as a HAP, EPA notes that interested citizens may petition the

Agency to add substances to the section 112(b) HAP list, and the

commenter is welcome to do so. Today's notice would not be a proper

forum for conducting this rulemaking exercise.

I. Comments Regarding the Need for Further Regulations under Section

112(m)(6)

Many comments objected to EPA's draft determination that, since EPA

believes the other provisions of section 112 are adequate, no further

regulations under section 112(m)(6), beyond those that can otherwise be

adopted under section 112, are necessary and appropriate at this time.

These objections flow from the objections to the draft adequacy

determination. In addition, several comments were submitted concerning

the issue of the need for further regulations under section 112(m)(6),

notwithstanding the issue of the adequacy of section 112.

1. Summary of the Comments

An environmental group specifically objected to EPA's statement

that even if section 112 were found to be inadequate under section

112(m)(6), further regulations under that subsection are not necessary

and appropriate at this time in light of the fact that much scientific

information is still lacking concerning issues such as the relative

contribution of air emissions of HAP to adverse effects in the Great

Waters. The commenter argued that the Agency's Report to Congress under

the Great Waters program, as well as information gathered in support of

EPA's actions implementing section 112, show the need to act under

section 112(m)(6) and indicate which sources are responsible for

adverse impacts. Moreover, the commenter argued that EPA should have

set forth data and analysis in support of its draft determination that

further regulations under section 112 are not necessary and appropriate

at this time. The commenter claimed that EPA has failed to fulfill its

duties under administrative law to provide the public with sufficient

information upon which to comment meaningfully.

On the other hand, industry commenters interpreted the second

report as indicating that the science does not yet exist to connect air

deposition of HAP to actual environmental or public health effects, or

to connect air deposition of HAP to individual facilities. As a result,

they argued, EPA does not have an adequate technical basis for imposing

further regulations under section 112(m)(6) to address HAP deposition.

In addition, they argued, since water quality in the Great Waters is

improving, further measures under section 112(m)(6) are not needed.

They also argued that current data are limited and unclear, and that

there is too much uncertainty regarding several scientific issues for

EPA to be able to support further regulations.

2. EPA's Response

Since EPA is determining that the other provisions of section 112

are adequate under section 112(m)(6), it therefore follows that further

regulations under section 112(m)(6), beyond those that can otherwise be

adopted under section 112, are not necessary and appropriate. However,

EPA does wish to respond to the points raised above in order to clear

up any confusion caused by the Agency's statement in the draft

determinations. In response to comments concerning the factual basis

for today's determinations, EPA's statement should not be interpreted

as meaning that EPA concludes that adverse effects associated with HAP

deposition are not presently occurring or that further research and

action is not necessary. In fact, EPA believes that the first and

second reports clearly indicate that atmospheric deposition of toxic

and other pollutants is often an important factor affecting the

environmental conditions of the Great Waters and can contribute to

adverse ecological and human health effects. As the industry groups

observed, water quality does appear to be generally improving. However,

the rate of improvement in recent years is declining, and therefore

EPA's continued implementation of its section 112 authorities is

necessary to ensure continued improvements in water quality.

While EPA believes that it has sufficient authority under section

112, it is true that EPA's technical information base is such that the

Agency is not presently in a position to conclude confidently that

further, unique regulations under section 112(m)(6), beyond those that

can be adopted under the other provisions of section 112, would be

appropriate. The EPA is not presently able to determine what

[[Page 14108]]

additional types of regulations beyond those authorized by section 112,

and what domestic stationary sources they would apply to, would be

necessary and appropriate to prevent adverse effects from HAP

deposition. The EPA's understanding of these issues is, however,

improving. For example, in recent years, considerable progress has been

made in quantifying emission inventories, monitoring concentrations in

ambient air and deposition, and modeling total atmospheric deposition

to a waterbody. Studies are improving the ability to relate deposition

to source categories, and these techniques are being refined in order

to better link effects to individual sources of pollution. Examinations

are under way for the total picture relating HAP to a single waterbody

(e.g., air deposition, waterborne and sediment inputs, comparing

current sources, historic deposits, and natural sources, and tracking

cycling among components of the system). Such examinations are expected

to contribute to EPA's ability to obtain more focused information on

the impacts of individual sources. The EPA is currently drafting the

Report to Congress, under section 112(f)(1), on the methods and

significance of risks to public health and the environment which may

remain after application of standards to sources subject to regulation

under section 112(d). As these risk evaluations are developed, they can

be applied to sources and pollutants to determine the appropriate

additional actions that may be needed.

The EPA's air, water, solid waste, pesticides, and research

offices, working with State agencies, universities and others are

moving forward on several fronts to better characterize multimedia

movements and effects of pollutants. Several projects are under way and

will produce data-sets and analyses within the next 1 to 6 years. An

extensive emissions inventory of individual sources which release air

toxics is nearing completion in the eight Great Lakes States and the

Province of Ontario and is expected to be publicly available in the

summer of 1998. The USA and Canada cooperative monitoring network for

air quality around the Great Lakes is completing its review of the

first 6 years and is defining an active program for the next 6 years.

The Lake Michigan Mass Balance project has obtained several years of

air-monitoring data, which are expected to be released this year, and

has begun using advanced computer models of air, water, watershed,

sediment, and biota to characterize movements and fates of four

selected pollutants in the ecosystem. Large scale modeling to calculate

``airsheds'' where emissions significantly impact each estuary has

begun for the Atlantic and Gulf of Mexico estuaries. A 6-year study of

``urban plumes'' in Lake Michigan and Chesapeake Bay is just being

completed to quantitatively evaluate the impacts of cities on nearby

large water bodies via air transport. Research projects are under way

to improve scientific understanding of air and water exchanges of

pollutant metals and organic compounds at the air-water boundary.

Finally, in response to the criticism that the draft determination

did not provide sufficient opportunity for meaningful public comment,

thereby allegedly causing the Agency to fail to meet its

responsibilities under administrative law, the Agency was not required

by the Administrative Procedure Act (APA) or by section 307(d) of the

Act to make these determinations through a notice and comment process,

and these determinations are not rulemakings that establish new binding

requirements. The EPA could have made the determinations unilaterally

and without public input in its Report to Congress, but chose instead

to invite public participation by first issuing the determinations in

draft and then supplementing the report with today's notice. The EPA

provided a full opportunity for review and comment on the draft

determinations at the time EPA released the second Report to Congress.

Moreover, having done so does not make the APA and provisions of the

Act regarding procedural requirements or judicial review applicable to

the determinations or to other aspects of the second report. In any

event, EPA believes that the factual bases for EPA's conclusion that it

is not at this time necessary and appropriate to establish further

regulations under section 112(m)(6) are fully presented in the report

itself.

J. Comments Regarding the Second Report to Congress

The EPA received numerous comments addressing aspects of the second

report apart from the section 112(m)(6) draft determinations. Many of

these related to specific technical or scientific issues, or to the

Agency's method of addressing the elements of section 112(m)(5). Since

today's notice concerns only the determinations under section

112(m)(6), it has focused on the points raised in comments regarding

the draft determinations discussed in the July 7, 1997, notice. While

today's notice of determinations supplements the second report, the

Agency is not otherwise using this notice to update or revise the

second report. Rather, the methods for achieving these purposes are the

periodic reports themselves, and EPA will be considering public

comments submitted on its second report in the third report due in June

1999. However, EPA does summarize some of the comments received on the

second report in the Response to Comments Document contained in the

docket for today's notice and presents some preliminary responses.

V. Determinations of Adequacy of Section 112 and of Need for

Further Regulations Under Section 112(m)(6)

Based on available information, the analyses contained in the first

and second Reports to Congress and the draft determinations published

at 62 FR 36436 (July 7, 1997), and guided by EPA's interpretation of

the statutory requirements of section 112(m) of the Act, EPA determines

that the other provisions of section 112 are adequate to prevent

serious adverse effects to public health and serious or widespread

environmental effects associated with the deposition of HAP to the

Great Waters. As a result of this determination, EPA determines that,

based on information available to the Agency, no further emission

standards or control measures under section 112(m)(6), beyond those

that can otherwise be adopted under the other provisions of section

112, are necessary and appropriate to prevent such effects. Due to the

state of current scientific information concerning factors such as the

relative contribution of air emissions to adverse effects in the Great

Waters, as discussed in the first and second Reports to Congress, EPA

could not conclude confidently that unique further regulatory actions

to reduce HAP under the remedial authority of section 112(m)(6) would

be necessary and appropriate. As discussed earlier in this notice, this

does not mean that actions under the other provisions of section 112 or

other authorities that reduce any impacts from deposition of air

pollution are not warranted, or that EPA is concluding that air

deposition of HAP does not currently cause or contribute to adverse

effects to public health or the environment. If future events or

additional information indicate that the determinations are not

correct, EPA retains its discretion to promulgate any necessary and

appropriate regulations under section 112(m)(6).

[[Page 14109]]

VI. Administrative Procedures

A. Executive Order 12866

Executive Order 12866 (58 FR 51735, October 4, 1993) requires

agencies to determine whether regulatory actions are ``significant''

and therefore subject to Office of Management and Budget (OMB) review.

It has been determined that today's notice of determinations is not a

``significant'' regulatory action, since it does not establish new

requirements or lead to likely regulatory requirements (and therefore

is not a regulatory action) and is a supplement to the second Report to

Congress under the Great Waters program. A draft of this notice was

submitted to OMB for review. Changes made in response to OMB

suggestions or recommendations will be documented in the public record.

B. Regulatory Flexibility

The EPA has determined that it is not necessary to prepare a

regulatory flexibility analysis in connection with these determinations

since they are not rules of general applicability for which EPA is

required to publish a notice of proposed rulemaking under the

Administrative Procedure Act or any other statute. Moreover, these

determinations that section 112 is adequate to prevent adverse effects

from HAP deposition and that, therefore, no further regulations under

section 112(m)(6) are necessary and appropriate, could not by their

nature impose any direct or binding requirements on any person, and,

therefore, could not impose any economic impacts on the regulated

community or small entities.

C. Congressional Review

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, does not

apply because this action is not a rule, as that term is defined in 5

U.S.C. 804(3). Today's notice serves as a supplement to EPA's second

Report to Congress under the Great Waters program and does not

establish any binding rules of general applicability. Pursuant to the

consent decree entered in Sierra Club v. Browner, Civ. No. 96-1680

(D.D.C.), EPA shall deliver to Congress a copy of the notice as a

supplement to the second Report.

D. Unfunded Mandates

Today's determinations establish no Federal mandates. That is, they

impose no enforceable duties on State, local or tribal governments, or

on the private sector, since they do not establish binding regulations.

Therefore, the requirements of the Unfunded Mandates Reform Act of 1995

do not apply to today's notice.

Dated: March 13, 1998.

Carol M. Browner,

Administrator.

[FR Doc. 98-7488 Filed 3-23-98; 8:45 am]

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