[Federal Register Volume 63, Number 56 (Tuesday, March 24, 1998)]
[Notices]
[Pages 14090-14109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7488]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ This latter task is required to be taken in assessing
residual risk under section 112(f).
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
\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.''
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.''
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
\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.'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\19\ See Final Rule, Water Quality Standards Regulation, 48 FR
51400, 51401 (November 8, 1983), codified at 40 CFR 131.10(g)(6).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
[[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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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]
BILLING CODE 6560-50-P