[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]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5984-6; Docket No. A-97-21]
RIN 2060-ZA01


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of determinations.

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SUMMARY: Today's notice provides EPA's determination that the legal 
authorities contained in the provisions of section 112 of the 1990 
Amendments to the Clean Air Act (Act) are adequate to prevent serious 
adverse public health effects and serious or widespread environmental 
effects associated with atmospheric deposition of hazardous air 
pollutants (HAP) to the Great Lakes, the Chesapeake Bay, Lake 
Champlain, and certain coastal waters (the Great Waters). Today's 
notice also provides EPA's determination that further emission 
standards or control measures under section 112(m)(6), beyond those 
that can otherwise be adopted under section 112, are not necessary and 
appropriate to prevent such effects. Note that these determinations are 
not a conclusion that EPA has taken full advantage of the statutory 
authorities under section 112, but that these authorities exist and are 
adequate, based on the information available now, to prevent serious 
adverse effects to public health and serious or widespread 
environmental effects associated with atmospheric deposition of HAP to 
the Great Waters. The two draft determinations were published on July 
7, 1997, and a public comment period during which interested persons 
could submit written comments in response to the draft determinations 
ran through August 6, 1997. These determinations are being made 
pursuant to section 112(m)(6) of the Act, as amended in 1990.

ADDRESSES: Supporting information used in developing the draft and 
final determinations is contained in Docket No. A-97-21 at the Air 
Docket, U.S. Environmental Protection Agency, 401 M Street, S.W., 
Washington, D.C. 20460. This docket is available for public inspection 
and copying between 8:00 a.m. and 4:00 p.m., Monday through Friday, 
excluding legal holidays. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Dale Evarts, Office of Air Quality 
Planning and Standards (MD-15), U.S. Environmental Protection Agency, 
Research Triangle Park, North Carolina 27711, telephone number (919) 
541-5535.

SUPPLEMENTARY INFORMATION:

Electronic Availability

    The official record for this notice, as well as the public version, 
has been established for this notice under Docket No. A-97-21 
(including comments and data submitted electronically as described 
below). A public version of this official record, including printed, 
paper versions of electronic comments, which do not include any 
information claimed as confidential business information (CBI), is 
available for inspection at the address in ADDRESSES at the beginning 
of this document, and electronically at the following address: http://
www.epa.gov/ttn/oarpg/
 The information in this notice is organized as follows:

I. Background Overview
II. Statutory Framework of the Clean Air Act Great Waters Program
III. EPA's Draft Determinations
    A. Scope of Analysis
    B. Definitions of Major Source and Adverse Environmental Effect
    C. Listing of Pollutants and Sources
    D. Regulations to Control Emissions of HAP
    1. MACT and GACT Standards
    2. Residual Risk Standards
    E. Other Relevant Provisions of Section 112
    F. Draft Conclusions
IV. Public Comments Received and EPA Responses
    A. Current Air Pollution Controls are Inadequate, and EPA Should 
Institute new Controls to Control HAP Emissions That Harm the Great 
Waters
    1. Summary of the Comments
    2. EPA's Response
    B. Timing of Determinations Under Section 112(m)(6)
    1. Summary of the Comments
    2. EPA's Response
    C. Scope of Analysis
    1. Summary of the Comments
    a. Statutory Authorities
    b. Stationary Sources of HAP
    2. EPA's Response
    a. Statutory Authorities
    b. Stationary Sources of HAP
    D. Definition of Adverse Environmental Effect
    1. Summary of the Comments
    2. EPA's Response
    E. Regulations to Control Emissions of Pollutants
    1. Summary of the Comments
    a. Utility of Section 112 Emission Control Provisions
    b. Timing of Implementation of Section 112 Provisions to Control 
HAP Emissions
    2. EPA's Response
    a. Utility of Section 112 Emission Control Provisions
    b. Timing of Implementation of Section 112 Provisions to Control 
HAP Emissions
    F. Mercury and Electric Utilities Reports to Congress
    1. Summary of the Comments
    2. EPA's Response
    G. Solid Waste Incineration Units
    1. Summary of the Comments
    2. EPA's Response
    H. Other Comments Regarding the Adequacy of Section 112
    1. Summary of the Comments
    2. EPA's Response
    I. Comments Regarding the Need for Further Regulations Under 
Section 112(m)(6)
    1. Summary of the Comments
    2. EPA's Response
    J. Comments Regarding the Second Report to Congress
V. Determinations of Adequacy of Section 112 and of Need for Further 
Regulations Under Section 112(m)(6)
VI. Administrative Procedures
    A. Executive Order 12866
    B. Regulatory Flexibility
    C. Congressional Review
    D. Unfunded Mandates

I. Background and Overview

    Pursuant to the requirements of section 112(m)(6) of the Act, 42 
U.S.C. 7412(m)(6), EPA is issuing its determination that the legal 
authorities contained in the other provisions of section 112 of the Act 
are adequate to

[[Page 14091]]

prevent serious adverse effects to public health and serious or 
widespread environmental effects (hereinafter referred to as ``adverse 
effects''), including such effects resulting from indirect exposure 
pathways, associated with atmospheric deposition of HAP and their 
atmospheric transformation products to the Great Waters. The EPA is 
also issuing its determination that, at this time, further emission 
standards or control measures under section 112(m)(6), beyond those 
that can otherwise be adopted under the other provisions of section 
112, are not necessary and appropriate to prevent such effects, 
including the effects due to bioaccumulation and indirect exposure 
pathways. The notice discusses the bases for the Agency's two draft 
determinations published on July 7, 1997 (62 FR 36436), the comments 
received in response to the draft determinations, EPA's responses to 
those comments, and the bases for the determinations are discussed in 
today's notice.
    Section 112(m)(6) of the Act requires EPA to determine whether the 
other provisions of section 112 provide adequate authority to prevent 
serious adverse effects to public health and serious or widespread 
environmental effects associated with atmospheric deposition of HAP to 
the Great Waters. If EPA finds the other provisions of section 112 to 
be inadequate for this purpose, section 112(m)(6) then requires the 
Agency to promulgate, as necessary and appropriate, further regulations 
in accordance with section 112 to prevent those effects.1 
While, under the Act, EPA could have unilaterally issued its 
determinations in the second Report to Congress required by section 
112(m)(5), the Agency chose to conduct its analysis of the provisions 
of section 112 in a more public forum that allowed interested citizens 
to provide comments on EPA's preliminary views. This approach was 
reflected in the consent decree entered in Sierra Club v. Browner, 96-
1680 (D.D.C.). The EPA issued its two draft determinations in 
conjunction with issuing its ``Second Report to Congress on Deposition 
of Air Pollutants to the Great Waters'' (EPA-453/R-97-011, June 1997), 
which summarized the draft determinations. Today's notice serves as a 
supplement to that Report.
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    \1\ The EPA interprets this latter requirement to mandate that 
EPA determine, in the first instance, whether additional regulations 
are necessary and appropriate, rather than to absolutely require the 
Agency to promulgate some further regulations. See, e.g., 
Environmental Defense Fund v. Thomas, 870 F.2d 892, 898-900 (2nd 
Cir. 1989).
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    The first draft determination pertained to the authority within the 
other provisions of section 112 to take appropriate actions to address 
the effects enumerated in section 112(m)(6), rather than to the 
efficacy of any prior or future administrative actions under those 
provisions. In addition, the scope of the draft determination focused 
on the authority within section 112 to address those pollutants and 
sources that can be regulated under section 112. Consequently, 
pollutants that are not listed as HAP pursuant to section 112(b), and 
source categories that could not be listed pursuant to section 112(c), 
were not included within its scope. The EPA did note, however, that 
some unlisted pollutants that are pollutants of concern for the Great 
Waters are regulated by other sections of the Act (e.g., emissions of 
oxides of nitrogen (NOX) are regulated pursuant to sections 
108, 109, 202 and 407). Moreover, some source categories that were 
outside the scope of section 112 and the determination can be regulated 
under other Act provisions (e.g., mobile sources regulated under title 
II of the Act). While this determination only applies to the adequacy 
of section 112 to address HAP of concern to the Great Waters emitted 
from stationary sources, other authorities under the Act operate in 
concert with section 112 to reduce, for instance, toxic emissions from 
mobile sources, NOX emissions from both mobile and 
stationary sources, and particulate matter (some of which may be 
toxic).
    Section 112 establishes a statutory framework by which EPA 
identifies HAP by whether an air pollutant may cause or contribute to 
adverse effects to public health or the environment, and then develops 
performance standards for the control of emissions from stationary 
sources of HAP. The EPA can then adjust these control requirements as 
needed to address any residual risk that may be presented by sources 
even after adoption of the emission standards (section 112(f); see 
footnote 3 below). The types of adverse environmental effects to be 
prevented are defined in the Act and are broad in scope. An adverse 
environmental effect is defined by section 112(a)(7) as ``* * * any 
significant and widespread adverse effect, which may reasonably be 
anticipated, to wildlife, aquatic life, or other natural resources, 
including adverse impacts on populations of endangered or threatened 
species or significant degradation of environmental quality over broad 
areas.'' (42 U.S.C. 7412(a)(7)).
    Authorities provided by section 112 that may be particularly 
relevant to the Great Waters pollutants and sources include authority 
to:

--Identify and list any air pollutant that may present through 
inhalation or other routes of exposure a threat of adverse human health 
effects or adverse environmental effects whether through ambient 
concentrations, bioaccumulation, deposition, or otherwise (section 
112(b)).
---Establish test methods and analytic procedures for monitoring and 
measuring emissions, ambient concentrations, deposition, and 
bioaccumulation of HAP (section 112(b)(5)).
--Identify and list any source category or source subcategory that 
emits HAP, including sources of seven specific HAP that are of 
particular concern for the Great Waters to assure at least 90 percent 
of emissions of each of these seven HAP are subject to national 
emission standards (section 112(c)).
--Promulgate performance standards for major sources and listed area 
sources of HAP. These standards are to reflect the maximum degree of 
emission reduction that is achievable, taking into consideration the 
cost of achieving such reduction, non-air quality health and 
environmental impacts, and energy requirements (i.e., ``maximum 
achievable control technology,'' or MACT). In addition, these standards 
are to apply pollution prevention measures, processes, methods systems 
or techniques which reduce the volume of or eliminate emissions through 
process changes, substitution of materials, enclosure of systems or 
processes, and other measures (section 112(d)).
--Establish lesser quantity emission rates for determining what is a 
major source of a HAP, based on several factors including potency of 
the HAP, persistence in the environment, the potential to 
bioaccumulate, other characteristics of the HAP, or other relevant 
factors (section 112(a)).
--Require additional controls as necessary to provide an ample margin 
of safety to protect public health or to prevent an adverse 
environmental effect. This authority applies not only to sources 
regulated under section 112(d) performance based controls, but also to 
certain other source categories regulated under sections 111 and 129 of 
the Act (section 112(f)).

    Based on available information and EPA's analysis, and guided by 
the Agency's interpretation of the statutory authorities of section 
112, EPA is determining that the provisions of

[[Page 14092]]

section 112 are adequate to prevent serious adverse effects to public 
health and serious or widespread environmental effects associated with 
atmospheric deposition of HAP emissions to the Great Waters. 
Consequently, EPA is determining that, at this time, no further 
emission standards or control measures under section 112(m)(6), beyond 
those that can otherwise be adopted under section 112, are necessary 
and appropriate to prevent those effects. In addition, due to the state 
of current scientific information concerning factors such as the 
relative contribution of air emissions to adverse effects in the Great 
Waters, as discussed in the first and second Reports to Congress, EPA 
could not conclude confidently that such supplementary regulatory 
action under section 112(m)(6) would be necessary and appropriate.
    This does not mean, however, that actions under the other 
provisions of section 112 or other authorities that reduce any impacts 
from deposition of air pollution are not warranted, or that EPA is 
concluding that air deposition of HAP does not currently cause or 
contribute to adverse effects to public health or the environment. In 
fact, EPA has taken and is continuing to take several actions that the 
Agency expects will reduce these impacts (e.g., EPA's Nitrogen Oxides 
Emission Reduction Program final rule, 61 FR 67112 (Dec. 19, 1996). In 
recent years, considerable progress has been made in quantifying 
emissions inventories, monitoring concentrations in air and 
precipitation, and modeling total atmospheric deposition to a water 
body. Studies are improving the ability to relate deposition to source 
categories, and examinations are under way for viewing the total 
picture relating HAP to single water bodies. Therefore, EPA reserves 
its right to reconsider these determinations if future events or 
additional information indicate that they are incorrect and to 
promulgate any necessary and appropriate regulations under section 
112(m)(6). Such events or information could include, for example, a 
judicial ruling that overrules EPA's interpretation of how a particular 
provision of section 112 can be employed in the effort to prevent 
adverse effects from HAP deposition, or the Agency's discovery through 
implementation of a section 112 provision that the authority EPA 
previously believed was available to prevent such effects could not be 
adequately used for this purpose.
    The EPA is committed to continuing its analyses, research and 
assessments of all aspects of atmospheric transport, deposition, fate 
and effects of HAP emitted by section 112 sources, and to faithfully 
implementing the provisions of section 112 and other authorities in 
order to minimize unreasonable threats to humans and to the environment 
as a result of exposure to air pollutants, whether exposure results 
directly from emissions into the air, through introduction to 
watersheds or water bodies, or through other pathways. The EPA will 
continue to work cooperatively with the National Oceanic Atmospheric 
Administration (NOAA) and the scientific community to refine methods 
for measuring and estimating atmospheric transport and deposition of 
HAP in order to more reliably characterize and quantify the 
significance of atmospheric deposition to environmental quality.

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

    In the 1990 Amendments to the Clean Air Act (Pub. L. 101-549), 
Congress added a new program targeted at assessing and controlling 
atmospheric deposition of HAP to the Great Waters. Section 112(m) of 
the Act, as amended in 1990, 42 U.S.C. 7401 et seq., established the 
Great Waters program under which EPA has ongoing responsibilities to 
identify and assess the extent of atmospheric deposition of HAP to the 
Great Waters. As part of this program, EPA is to monitor for 
atmospheric deposition of HAP in the Great Waters, investigate the 
sources of HAP deposition, research the relative contribution of 
atmospheric pollutants to total loadings in the Great Waters, evaluate 
adverse effects to public health or the environment caused by HAP 
deposition, assess the contribution of HAP deposition to violations of 
water quality or drinking water standards, and sample for HAP in biota, 
fish, and wildlife of the Great Waters (42 U.S.C. 7412(m)(1)).
    Section 112(m) then requires EPA to establish a monitoring network 
for the Great Waters. Under section 112(m)(2), the Agency is to monitor 
atmospheric deposition of HAP (and other pollutants in the 
Administrator's discretion) to the Great Lakes, establishing at least 
one facility in each of the Great Lakes capable of monitoring 
deposition of HAP in both dry and wet conditions. The EPA is to use the 
data provided by the network to identify and track movement of HAP 
through the Great Lakes, to determine the portion of water pollution 
loadings attributable to HAP deposition, and to support remedial plans 
as required by the Great Lakes Water Quality Agreement. The EPA is to 
assure that such data are compatible with databases sponsored by the 
International Joint Commission, Canada, and the several States of the 
Great Lakes region (42 U.S.C. 7412(m)(2)). Section 112(m)(3) then 
directs EPA to establish monitoring stations to assess deposition of 
HAP (and other pollutants in EPA's discretion) within the Chesapeake 
Bay and Lake Champlain watersheds, determine the role of air deposition 
in the pollutant loadings of these two water bodies, investigate the 
sources of air pollutants deposited in their watersheds, and conduct 
evaluative and sampling functions as necessary to characterize health 
and environmental effects of such loadings (42 U.S.C. 7412(m)(3)). 
Section 112(m)(4) requires EPA to design and deploy deposition 
monitoring networks for coastal waters and their watersheds and make 
any information collected through them publicly available (42 U.S.C. 
7412(m)(4)).
    In addition, pursuant to section 112(m)(5), EPA is to provide 
periodic, updated Reports to Congress describing the results of any 
monitoring, studies, and investigations conducted under the Great 
Waters program, addressing the same issues mentioned above and 
describing any revisions to the requirements, standards, and 
limitations under the Act or other Federal laws that are necessary to 
protect human health and the environment from atmospheric deposition of 
HAP (42 U.S.C. 7412(m)(5)). The Agency's implementation of the Great 
Waters program up through the summer of 1997 is discussed in the first 
two Reports to Congress issued under section 112(m)(5), respectively 
entitled, ``Deposition of Air Pollutants to the Great Waters: First 
Report to Congress,'' EPA-453/R-93-055 (May 1994); and ``Deposition of 
Air Pollutants to the Great Waters: Second Report to Congress,'' EPA-
453/R-97-011 (June 1997). Copies of these reports can be obtained, as 
supplies permit, from the Library Services Offices (MD-35), U.S. 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27771, or, for a nominal fee, from the National Technical Information 
Service, 5285 Port Royal Road, Springfield, Virginia 22161, phone: 1-
800-553-NTIS or 703-487-4650.
    Finally, section 112(m)(6) requires EPA to determine, as part of 
the Report to Congress, whether the other provisions of section 112 are 
adequate to prevent serious adverse effects to public health and 
serious or widespread environmental effects, including effects 
resulting from indirect exposure pathways, associated with deposition 
of HAP (and their atmospheric

[[Page 14093]]

transformation products) to the Great Waters. In making this 
determination, EPA is to take into consideration the tendency of 
certain HAP to bioaccumulate. If EPA determines that the other 
provisions of section 112 are not adequate for this purpose, section 
112(m)(6) then provides that EPA must promulgate, in accordance with 
section 112, such additional emission standards or control measures as 
EPA determines may be necessary and appropriate to prevent those 
effects (42 U.S.C. 7412(m)(6)).
    The EPA issued its first Report to Congress under the Great Waters 
program in May 1994. When the Agency had not issued the second report 
by 2 years after that date, three environmental groups, the Sierra 
Club, the Chesapeake Bay Foundation, and the National Wildlife 
Federation, filed suit in U.S. District Court for the District of 
Columbia to compel EPA to take three distinct actions: (1) Issue the 
second Report to Congress; (2) determine whether the other provisions 
of section 112 are adequate to prevent the effects described in section 
112(m)(6) and (3) promulgate further emissions standards or control 
measures under section 112(m)(6) (see Complaint for Declaratory and 
Injunctive Relief, Sierra Club, et. al. v. Browner, Civ. No. 96-1680 
(D.D.C.)). In May 1997, the court entered a consent decree containing a 
schedule for several actions as agreed upon by the parties. First, 
under the decree, the Agency was required to issue the second Report to 
Congress and proposed determinations regarding the adequacy of section 
112 and the need for further regulations as described in section 
112(m)(6) by June 30, 1997. Second, final determinations were due by 
March 15, 1998. Third, if EPA determines, pursuant to section 
112(m)(6), that further emission standards or control measures are 
necessary and appropriate, EPA is to issue proposed regulations by 
March 15, 2000, with final regulations due by November 15, 2000. The 
Agency met the first set of the consent decree's requirements when it 
issued the second report and the draft determinations. Today's notice 
fulfills the second set of requirements under the decree.

III. EPA's Draft Determinations

    In the notice publishing the Agency's draft determinations, EPA set 
out its statutory analysis of the scope of the section 112(m)(6) 
analytical mandate, the authority under the other provisions of section 
112 relative to that mandate, and its draft conclusions regarding the 
adequacy of section 112 and the need for further regulations beyond 
those that can otherwise be adopted under section 112 (62 FR 36438-46, 
July 7, 1997). The Agency's analysis as presented in the draft 
determinations notice is summarized below. The public comments to that 
analysis are summarized later, as are EPA's responses to the points 
raised by commenters and EPA's conclusions.

A. Scope of Analysis

    Section 112(m)(6) charges EPA to assess the adequacy of ``the other 
provisions of this section (112)'' to prevent the specified effects. If 
EPA finds those other provisions could not prevent those effects, 
section 112(m)(6) directs the Agency to adopt additional rules ``in 
accordance with this section (112)'' not otherwise specifically 
mandated or authorized by the other provisions, as needed to meet the 
section 112(m)(6) protective mandate. Any such additional regulations, 
having to be ``in accordance with this section (112),'' would, by the 
terms of section 112(m)(6), have to be limited to rules that apply to 
the air pollutants and source types that are within the Agency's scope 
of authority to address under section 112 (i.e., stationary sources of 
HAP).
    Section 112(m)(6) does not, in contrast, direct EPA to evaluate the 
individual effectiveness of the particular regulatory actions that have 
been taken or that are being taken under those other statutory 
provisions. The EPA interprets the statutory language as calling for an 
analysis of the regulatory authority EPA has for proceeding under the 
provisions of section 112 to prevent the enumerated health and 
environmental effects (62 FR 36436, 36438-36439, July 7, 1997). In 
other words, for purposes of conducting the required statutory 
analysis, EPA must presume that the provisions would be implemented in 
a manner which fully meets the substantive objectives of the relevant 
provisions of section 112, rather than speculate about what actual 
degree of emission control might ultimately result from any specific 
regulation that has been adopted (or will be adopted), and what 
remaining risks will be presented after application of those 
regulations.2 This interpretation is supported by the dates 
by which Congress directed EPA to make this determination and 
promulgate any further necessary and appropriate regulations under 
section 112(m)(6), compared to the deadlines section 112 sets forth for 
full implementation of the HAP program. The first Report to Congress 
was due on November 15, 1993. Further regulations based on the Agency's 
determinations under section 112(m)(6) were then due on November 15, 
1995. In contrast, many of the regulations EPA is required by the 1990 
Amendments to section 112 to promulgate are not due until much later, 
and would not be expected to be completed by the date specified in 
section 112(m)(6). Some regulations, for example the residual risk 
standards and 10-year MACT standards, would have been in such early 
stages of development that EPA could not have begun to assess their 
effectiveness. Even established regulations would not yet, at that 
time, have demonstrated success or failure at preventing adverse 
effects. Thus, Congress could not have expected EPA to have gathered 
sufficient information, at the time the adequacy determination and 
decision regarding the need for further regulations were due, to judge 
the scientific or technical ``adequacy'' of recently adopted or future 
regulatory actions. Rather, EPA interprets section 112(m)(6) as 
charging the Agency to identify and plug any gaps in authority found 
based on the conclusion that those other provisions of section 112, 
when eventually implemented, could not possibly prevent the enumerated 
effects from HAP deposition from stationary sources.
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    \2\ This latter task is required to be taken in assessing 
residual risk under section 112(f).
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    The EPA also considered the extent to which the adequacy 
determination must encompass all sources of HAP, rather than just 
domestic stationary sources that are within the scope of section 112. 
Atmospheric deposition of some HAP partially results from mobile 
sources, as well as transport of emissions from foreign sources. 
Moreover, some HAP are continually being recycled in the environment, 
long after they have been emitted or discharged by the original source. 
The EPA believes that section 112(m)(6) does not direct EPA to consider 
these sources in making its determination. If the other provisions of 
section 112 are found inadequate, EPA is to establish further 
regulations under section 112 applicable to sources that it could 
regulate under section 112. Since non-section 112 sources, such as 
mobile sources and foreign sources, are outside the regulatory scope of 
EPA's remedial authority under section 112(m)(6), EPA does not believe 
that Congress asked EPA to evaluate the adequacy of section 112 
authorities to apply to those sources. On the contrary, the most 
reasonable interpretation is that Congress asked EPA to assess the 
adequacy of the complicated provisions added by the 1990 Amendments to 
section 112 applicable to sources that

[[Page 14094]]

are within EPA's jurisdiction under section 112.

B. Definitions of Major Source and Adverse Environmental Effect

    The EPA's first step in the statutory analysis in the draft 
determination was to assess the relevant definitional provisions of 
section 112 (62 FR 36440-36441, July 7, 1997). Section 112(a)(1) 
defines the term ``major source'' as any stationary source or group of 
stationary sources located within a contiguous area and under common 
control that emits or has the potential to emit, considering controls, 
in the aggregate, 10 tons per year or more of any HAP or 25 tons per 
year or more of any combination of HAP (42 U.S.C. 7412(a)(1)). That 
definition functions in part to establish the types of sources that 
will be subjected to the most stringent performance-based controls 
under section 112(d). The Agency explained that the provision also 
explicitly allows EPA to set lower emissions thresholds for determining 
whether a source is major, which would result in more source types 
being subject to the more stringent performance-based controls, based 
on consideration of factors that are especially relevant for the Great 
Waters, including potency and persistence of the particular HAP being 
emitted by the source category and the potential of the HAP to 
bioaccumulate. This means that the authority in section 112(a)(1) can 
be used in conjunction with other provisions of section 112 
(particularly the provisions of section 112(d) and 112(f)) to impose 
controls that could help prevent the effects enumerated in section 
112(m)(6). For example, the factors set forth in section 112(a)(1) 
could be relevant to EPA's decisions regarding the presence of residual 
risks under section 112(f).3
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    \3\ The Agency is directed to consider several factors in 
establishing standards to prevent adverse environmental effects. In 
relevant part section 112(f)(2)(A) provides: ``Emission standards 
promulgated under this subsection shall provide an ample margin of 
safety to protect public health in accordance with this section (as 
in effect before the date of enactment of the Clean Air Act 
Amendments of 1990), unless the Administrator determines that a more 
stringent standard is necessary to prevent, taking into 
consideration costs, energy, safety, and other relevant factors, an 
adverse environmental effect.''
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    The EPA then analyzed the definition of the term ``adverse 
environmental effect'' contained in section 112(a)(7).4 The 
EPA recognized that the language in the section 112(a)(1) definition of 
``adverse environmental effect'' does not literally match the language 
describing the environmental effects in section 112(m)(6). Where the 
definition covers ``significant and widespread adverse effect(s),'' 
section 112(m)(6) addresses ``serious or widespread environmental 
effects.'' However, EPA stated that it does not believe these 
differences impose meaningfully different standards. The Agency argued 
that the standard imposed under section 112(a)(7) is substantially the 
same as that in section 112(m)(6), for purposes of the adequacy 
determination. First, the legislative history of section 112(m) 
suggests that Congress understood the language in section 112(m)(6) to 
have the same meaning as that used elsewhere in section 112 to describe 
``adverse'' environmental effects. Second, it seemed most reasonable to 
interpret the ambiguous literal differences in the two sections 
consistently in order to avoid the result of concluding that Congress 
had charged EPA under section 112(m)(6) to prevent environmental 
effects that are not actually ``adverse.'' Third, other language in 
section 112(m) itself indicates that the language should be interpreted 
consistently in directing EPA to establish the Great Waters program in 
order to evaluate ``adverse effects to public health or the environment 
caused by (HAP) deposition including effects resulting from indirect 
exposure pathways'' (42 U.S.C. 7412(m)(1)(D)). Finally, EPA stated that 
the use of the word ``widespread'' as a necessary prerequisite in 
section 112(a)(7), while it is just one of two possible prerequisites 
under a literal reading of section 112(m)(6), does not mean that in all 
cases ``adverse environmental effects'' would have to occur in multiple 
geographic areas, or that impacts experienced only in, for example, the 
Great Lakes, the Chesapeake Bay, another Great Waters water body, or a 
significant portion of such a water body would have to be excluded. 
This view was partly based on how the Agency has interpreted the term 
``widespread'' in other contexts to apply to economic impacts affecting 
a single community, and on the fact that section 112(a)(7) itself 
provides as an example of ``adverse environmental effects'' impacts on 
populations of endangered species, which are often likely to occur in 
only limited geographic areas. Ultimately, EPA stated that it believes 
that the ``widespread'' criterion would not exclude impacts that might 
occur in one of the Great Lakes, the Chesapeake Bay, another Great 
Waters water body, or a significant portion of such a water body. For 
example, EPA believes that it could, in appropriate cases, employ its 
section 112 authorities to address adverse environmental effects in 
concert with its efforts to establish total maximum daily loads (TMDL) 
under the Clean Water Act. As a result, EPA stated its belief that the 
other provisions of section 112 that can be used to prevent ``adverse 
environmental effects'' are especially useful for addressing Great 
Waters program concerns.
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    \4\ 42 U.S.C. 7412(a)(7) provides: The term ``adverse 
environmental effect'' means any significant and widespread adverse 
effect, which may reasonably be anticipated, to wildlife, aquatic 
life, or other natural resources, including adverse impacts on 
populations of endangered or threatened species or significant 
degradation of environmental quality over broad areas.
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C. Listing of Pollutants and Sources

    The EPA then discussed the provisions of section 112(b) and 112(c) 
governing the listing of air pollutants as HAP and the source 
categories to be regulated under section 112 (62 FR 36441-42, July 7, 
1997). In addition to the list of HAP established by Congress in 
section 112(b)(1),5 EPA is authorized under Act section 
112(b)(2) to revise the list, by rule, to add new pollutants which may 
present, through inhalation or other routes of exposure, a threat of 
adverse human health effects or adverse environmental effects whether, 
through ambient concentrations, bioaccumulation, deposition, or 
otherwise (42 U.S.C. 7412(b)(2)). In addition, under section 112(b)(3), 
EPA is required to add substances to the list upon a showing by outside 
petitioners or on the Agency's own determination that ``* * * the 
substance is an air pollutant and that emissions, ambient 
concentrations, bioaccumulation or deposition of the substance are 
known to cause or may reasonably be anticipated to cause adverse 
effects to public health or adverse environmental effects.'' (42 U.S.C. 
7412(b)(3)). Moreover, section 112(b)(5) specifically allows EPA to 
establish test measures and other analytic procedures for monitoring 
and measuring emissions, ambient concentrations, deposition, and 
bioaccumulation of listed HAP (42 U.S.C. 7412(b)(5)). The Agency stated 
its belief that these provisions of section 112 provide adequate 
authority to identify and formally list any HAP which has the potential 
for causing the effects enumerated in section 112(m)(6) due to 
atmospheric deposition.
---------------------------------------------------------------------------

    \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.
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    \15\ As mentioned above, section 112(a)(1) allows EPA to 
establish LQER for determining whether a source is major, based on 
such factors as persistence, potential for bioaccumulation, or other 
relevant factors.
    \16\ Sections 112(b) (2) and (3) require evaluation and revision 
of the list based on factors such as exposure pathways other than 
inhalation, bioaccumulation, deposition.
    \17\ Section 112(m)(1)(D) includes as an example of ``adverse 
effects to public health or the environment'' effects that result 
``from indirect exposure pathways.''
---------------------------------------------------------------------------

    For similar reasons, EPA disagrees that the sentence construction 
in section 112(a)(7) and 112(m)(6) force a conclusion that the scope of 
environmental effects in the latter is broader than that in the former 
(and that the other provisions of section 112 are therefore 
inadequate). In interpreting the ambiguous language of section 
112(m)(6), the Agency has discovered clear evidence of congressional 
intent for the two phrases to have the same meaning. First, in the 
provision of section 112(m) initially establishing the Great Waters 
program, section 112(m)(1) charges EPA to ``evaluate any adverse 
effects to public health or the environment caused by (HAP) deposition 
(including effects resulting from indirect exposure pathways).'' This 
use of a variant of the language in the definition of ``adverse 
environmental effect,'' as inclusive of the same types on non-direct 
exposure routes as that mentioned in section 112(m)(6), suggests 
Congress' use of different language in section 112(m)(6) than is used 
elsewhere in section 112 may have been inadvertent.
    Second, the legislative history suggests that the members of 
Congress championing section 112(m)(6) understood its language to 
encompass the same scope as adverse environmental effects. For example, 
in describing the amendment to add section 112(m)(6), Congressman 
Levine stated, ``If the EPA finds that the Clean Air Act does not 
protect human health or the environment from airborne depositions, the 
EPA would be required to develop regulations to prevent such adverse 
effects.'' 18
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    \18\ Remarks of Mr. Levine, House Debate 5-21-90, reprinted in 
``A Legislative History of the Clean Air Act Amendments of 1990,'' 
at 2633. See also, Remarks of Mr. Bilirakis, House Debate 5-23-90, 
id., at 2941 (``The amendment further grants authority to EPA to 
regulate such substances should it find that the amended Clean Air 
Act is inadequate to prevent serious adverse effects on human health 
and the environment.''); Remarks of Mr. Lagomarsino, id., at 2946 
(``If the EPA finds that other provisions of the Clean Air Act do 
not adequately prevent depositions, the EPA would be authorized to 
develop regulations to prevent such adverse effects.''); Remarks of 
Mr. Levine, id., at 2938 (``In the event that the EPA found that 
other provisions of the Clean Air Act did not adequately prevent 
serious adverse impacts, the EPA would be required to develop 
regulations to prevent such adverse impacts with regard to the 
Pacific, Arctic, Atlantic, and eastern gulf coasts.''; Remarks of 
Mrs. Lowey, id., at 2939 (``Under the Amendment, if EPA finds that 
the Clean Air Act does not adequately minimize dangers to human 
health and the environment from toxic depositions, EPA is authorized 
to develop regulations to prevent such adverse effects.'').
---------------------------------------------------------------------------

    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).

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[[Page 14104]]

E. Regulations to Control Emissions of Pollutants

    The EPA also received comments questioning the ability of the 
provisions of section 112 relating to emission standards to control HAP 
and prevent adverse impacts from deposition. Some of these comments 
raised distinct questions about whether certain provisions could be 
used to address the effects enumerated in section 112(m)(6), while 
others focused on the timing the Act provides for implementing these 
provisions, even assuming they can prevent the enumerated effects.
1. Summary of the Comments
    a. Utility of Section 112 Emission Control Provisions. State and 
environmental groups commented that even where airborne deposition of 
HAP has serious adverse effects to public health and the environment, 
EPA's ability to control emissions of those HAP under the section 
112(d) MACT and GACT programs is still constrained by what current 
technology can achieve. The commenters requested that EPA describe how 
MACT standards will in fact be developed to prevent adverse effects. 
They then argued that even though the section 112(f) residual risk 
authority allows more stringent post-MACT or -GACT standards based on 
environmental needs, since section 112(f) requires EPA to consider 
factors such as ``costs, energy, safety, and other relevant factors'' 
in setting residual risk standards to prevent an adverse environmental 
effect and does not explicitly address indirect exposure pathways, it 
is ambiguous how much legal flexibility EPA has to actually achieve 
environmental quality-based goals. Since section 112(m)(6) does not 
specify these factors but does refer to indirect exposure pathways, 
they argued, it must provide greater authority. Some argued that EPA's 
regulatory authority contains a gap simply by virtue of the fact that 
mobile sources and foreign sources emit HAP that deposit in the Great 
Waters, while section 112 can only reach domestic stationary sources, 
and that section 112 is inadequate to control other human activities or 
other causes of HAP deposition, such as pesticide application and 
revolatilization.
    b. Timing of Implementation of Section 112 Provisions to Control 
HAP Emissions. State and environmental groups observed that EPA is 
still in the process of establishing initial MACT standards, and that 
EPA may wait up to 8 more years after promulgation of MACT before 
setting environment-based residual risk standards after MACT has been 
established for a source category. They noted that these standards 
would then likely be subject to litigation, especially due to the 
requirement that EPA consider the several aforementioned factors in 
setting residual risk standards. They then argued that the fact that 
EPA has already missed several statutory deadlines under section 112 
suggests the timing of EPA's implementation of the program may be too 
protracted. Since some argued that the determination was due in 1993 
and was to address the new regulatory program, with further regulations 
required if EPA found section 112 to be inadequate, those further 
remedial regulations were due to be established and successfully 
implemented long before then.
    The members of Congress who objected to the draft adequacy 
determination were troubled by the lack of focus on the amount of time 
that it would take to achieve the Great Waters goals under the other 
provisions of section 112 (letter to Carol Browner, dated October 3, 
1997, docket item #IV-G-474). Those members asked EPA to inform 
Congress of the Agency's specific plan and time frame for using section 
112, and stated that if the required protection can be provided but not 
in a ``timely fashion,'' section 112 is not adequate.
2. EPA's Responses
    a. Utility of Section 112 Emission Control Provisions. The Agency 
recognizes that MACT and GACT standards promulgated pursuant to the 
provisions of section 112(d) are not required to achieve specified 
health-based results or to prevent specified environmental effects. 
However, section 112(d)(2) does contemplate that EPA would take into 
account measures that are consistent with ``pollution prevention'' 
principles when setting standards. For example, the introductory 
language to section 112(d)(2) directs EPA to establish standards that, 
where achievable, prohibit emissions of HAP, and paragraph (A) of that 
subsection anticipates that MACT will either reduce or ``eliminate'' 
such emissions.
    In addition, EPA disagrees that the factors EPA is required to 
consider in setting health- or environment-based residual risk 
standards under section 112(f) would limit EPA's ability to prevent 
adverse effects resulting from HAP deposition to any greater degree 
than would be the case if EPA were to adopt standards under section 
112(m)(6). As explained in the draft determinations, EPA has 
substantial discretion in determining how to evaluate those factors and 
what weight to give them, and need not value any single factor above 
the others or above the need to prevent an adverse environmental 
effect.21 While section 112(m)(6) does not refer to factors 
such as those specified in section 112(f)(2), under the Great Waters 
provision, the Agency is directed to establish such further regulations 
``as may be necessary and appropriate to prevent'' adverse effects from 
HAP deposition to the Great Waters. Congress' use of such language 
indicates that EPA is expected to weigh considerations in addition to 
the need to prevent adverse effects when establishing regulations under 
section 112(m)(6). Such further regulations would need to be both 
``necessary'' and ``appropriate'' to achieve their purpose, and the 
factors that EPA traditionally considers when establishing binding 
regulations (e.g., costs, technological feasibility, lead time, safety, 
energy) would naturally come into play. The EPA also disagrees with the 
assertion that residual risk regulations could only be developed in 
consideration of direct exposure pathways. Nothing in the statutory 
language of section 112(f) implies such a limitation on the utility of 
the residual risk program. And, in light of the fact that other 
provisions of section 112 such as the definition of major source at 
section 112(a)(1) and the section 112(b) HAP listing provisions permit 
EPA to consider indirect exposure pathways, consideration of such 
effects would not be precluded under the residual risk program.
---------------------------------------------------------------------------

    \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