Great Lakes Initiative
EPA Needs to Better Ensure the Complete and Consistent Implementation of Water Quality Standards Gao ID: GAO-05-829 July 27, 2005The virtual elimination of toxic pollutants in the Great Lakes is a goal shared by the United States and Canada. While some progress has been made, pollution levels remain unacceptably high. The Great Lakes Initiative (GLI) requires stringent water quality standards for many pollutants in discharges regulated by states administering National Pollution Discharge Elimination System (NPDES) permit programs. As requested, this report examines the (1) GLI's focus and potential impact on water quality in the Great Lakes Basin, (2) status of GLI's adoption by the states and any challenges to achieving intended goals, and (3) steps taken by the Environmental Protection Agency (EPA) for ensuring full and consistent implementation of GLI and for assessing progress toward achieving its goals.
GLI has limited potential to improve overall water quality in the Great Lakes Basin because it primarily focuses on regulated point sources of pollution, while nonpoint sources, such as air deposition and agricultural runoff, are greater sources of pollution. GLI's potential impact is further limited because it allows the use of flexible implementation procedures, such as variances, whereby facilities can discharge pollutants at levels exceeding stringent GLI water quality standards. Finally, many of the chemical pollutants regulated by GLI have already been restricted or banned by EPA and have a limited presence in point source discharges. By 1998, the eight Great Lakes states had largely adopted GLI water quality standards and implementation procedures in their environmental regulations and NPDES programs. However, EPA determined that some states had failed to adopt some GLS provisions or had adopted provisions that were inconsistent with GLI and EPA promulgated rules imposing GLI standards. Wisconsin officials, however, believe that the state cannot implement standards that are not explicitly supported by state law, and disagreements with EPA over the rules remain unresolved. As a result, GLI has not been fully adopted or implemented in the state. Finally, a major challenge to fully achieving GLI's goals remains because methods for measuring many pollutants at the low levels established in GLI do not exist. Consequently, some pollutants cannot be regulated at these levels. EPA has not ensured consistent GLI implementation by the states nor has the agency taken adequate steps toward measuring progress. For example, EPA did not issue a mercury permitting strategy to promote consistent approaches to the problems posed by mercury as it stated in GLI. In the absence of a strategy, states developed permits for mercury that vary from state to state. Attempts by EPA to assess GLI's impact have been limited because of inadequate data or information that has not been gathered for determining progress on dischargers' efforts to reduce pollutants.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-05-829, Great Lakes Initiative: EPA Needs to Better Ensure the Complete and Consistent Implementation of Water Quality Standards
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Report to Congressional Requesters:
July 2005:
Great Lakes Initiative:
EPA Needs to Better Ensure the Complete and Consistent Implementation
of Water Quality Standards:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-829]
GAO Highlights:
Highlights of GAO-05-829, a report to congressional requesters:
Why GAO Did This Study:
The virtual elimination of toxic pollutants in the Great Lakes is a
goal shared by the United States and Canada. While some progress has
been made, pollution levels remain unacceptably high. The Great Lakes
Initiative (GLI) requires stringent water quality standards for many
pollutants in discharges regulated by states administering National
Pollution Discharge Elimination System (NPDES) permit programs.
As requested, this report examines the (1) GLI‘s focus and potential
impact on water quality in the Great Lakes Basin, (2) status of GLI‘s
adoption by the states and any challenges to achieving intended goals,
and (3) steps taken by the Environmental Protection Agency (EPA) for
ensuring full and consistent implementation of GLI and for assessing
progress toward achieving its goals.
What GAO Found:
GLI has limited potential to improve overall water quality in the Great
Lakes Basin because it primarily focuses on regulated point sources of
pollution, while nonpoint sources, such as air deposition and
agricultural runoff, are greater sources of pollution. GLI‘s potential
impact is further limited because it allows the use of flexible
implementation procedures, such as variances, whereby facilities can
discharge pollutants at levels exceeding stringent GLI water quality
standards. Finally, many of the chemical pollutants regulated by GLI
have already been restricted or banned by EPA and have a limited
presence in point source discharges.
By 1998, the eight Great Lakes states had largely adopted GLI water
quality standards and implementation procedures in their environmental
regulations and NPDES programs. However, EPA determined that some
states had failed to adopt some GLS provisions or had adopted
provisions that were inconsistent with GLI and EPA promulgated rules
imposing GLI standards. Wisconsin officials, however, believe that the
state cannot implement standards that are not explicitly supported by
state law, and disagreements with EPA over the rules remain unresolved.
As a result, GLI has not been fully adopted or implemented in the
state. Finally, a major challenge to fully achieving GLI‘s goals
remains because methods for measuring many pollutants at the low levels
established in GLI do not exist. Consequently, some pollutants cannot
be regulated at these levels.
EPA has not ensured consistent GLI implementation by the states nor has
the agency taken adequate steps toward measuring progress. For example,
EPA did not issue a mercury permitting strategy to promote consistent
approaches to the problems posed by mercury as it stated in GLI. In the
absence of a strategy, states developed permits for mercury that vary
from state to state. Attempts by EPA to assess GLI‘s impact have been
limited because of inadequate data or information that has not been
gathered for determining progress on dischargers‘ efforts to reduce
pollutants.
Great Lakes Basin Area in the United States and Canada:
[See PDF for image]
[End of figure]
What GAO Recommends:
GAO recommends that EPA take three actions to better ensure full and
consistent implementation of GLI, including issuing a permitting
strategy for a more consistent approach to controlling mercury and,
resolve disagreements with the state of Wisconsin on GLI provisions.
EPA generally agreed with GAO‘s recommendations. It plans to work with
the Great Lakes states in assessing approaches for reducing mercury in
lieu of developing a mercury permitting strategy.
www.gao.gov/cgi-bin/getrpt?GAO-05-829.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact John Stephenson at (202)
512-3841 or stephensonj@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Great Lakes Initiative Has Limited Potential to Impact Overall Water
Quality:
States Have Largely Completed Adopting GLI Standards in Their
Regulatory Programs, but Measuring Some Pollutants at GLI Levels Is a
Significant Challenge:
EPA Has Not Ensured Consistent Implementation of GLI Standards or Taken
Adequate Steps Toward Measuring Progress in Achieving GLI Goals:
Conclusions:
Recommendations for Executive Action:
Appendixes:
Appendix I: Scope and Methodology:
Appendix II: Purpose and Status of Bioaccumulative Chemicals of Concern
(BCC) Identified in GLI:
Appendix III: Comments from the Environmental Protection Agency:
Appendix IV: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: BCC Discharge Limits in Great Lakes States' NPDES Permits:
Table 2: State GLI Provisions Disapproved by EPA:
Figures:
Figure 1: Area Comprising the Great Lakes Basin:
Figure 2: Number of Facilities with NPDES Permits in the Great Lakes
Basin by County:
Figure 3: Illustration of Point and Nonpoint Sources of Pollution:
Figure 4: Minnesota Mercury Emissions:
Abbreviations:
BCC: bioaccumulative chemicals of concern:
EPA: Environmental Protection Agency:
GLI: Great Lakes Initiative:
GLWQA: Great Lakes Water Quality Agreement:
NPDES: National Pollution Discharge Elimination System:
PCS: Permit Compliance System:
PMP: pollutant minimization program:
PCB: polychlorinated biphenyl:
POTW: publicly owned treatment works:
TMDL: total maximum daily load:
TRI: Toxics Release Inventory:
WET: whole effluent toxicity:
Letter July 27, 2005:
Congressional Requesters:
Millions of people in the United States and Canada depend on the Great
Lakes--the largest system of freshwater in the world--as a source of
drinking water, recreation, and economic livelihood. Over the last
several decades, the Great Lakes Basin--which includes the five Great
Lakes--Superior, Michigan, Huron, Ontario, and Erie--and a large land
area that extends beyond the lakes, including their watersheds,
tributaries, and connecting channels, has proven vulnerable to the
effects of toxic pollutants as a result of industrial, agricultural,
and residential development. During the 1970s, it became apparent that
certain toxic chemicals such as mercury and dioxin, can accumulate over
time in aquatic species, such as fish, posing risks to those species as
well as humans and wildlife that consume fish from the Great Lakes
Basin. These chemicals, known as bioaccumulative chemicals of concern
(BCC), are discharged into the basin from point sources, such as
industrial or municipal facilities' pipes and drains, or from nonpoint
sources, which include air emissions mainly from coal-fired power
plants, agricultural runoff, and sediments highly contaminated from
past industrial practices.
The United States and Canada have undertaken a variety of binational
initiatives to improve environmental conditions in the Great Lakes
Basin. In 1972, the two countries signed the first international Great
Lakes Water Quality Agreement (GLWQA) to restore and enhance water
quality in the lakes. In 1978, the parties signed a second GLWQA
reaffirming the goals of the earlier agreement and calling for
increased control over the discharge of toxic pollutants, such as BCCs,
and their virtual elimination throughout the Great Lakes Basin. While
progress has been made to control these toxic pollutants,
inconsistencies developed in the way pollutants from point sources were
controlled by the eight states bordering the Great Lakes. In 1989, to
promote consistency in Great Lakes states' environmental regulatory
programs, the eight states began developing a framework for
coordinating regional action for controlling point sources of toxic
pollution, based on the 1986 Great Lakes Toxic Substances Control
Agreement or "the Governors' Agreement." Controlling point sources of
pollution was already under way through the implementation of the
National Pollution Discharge Elimination System (NPDES) program
authorized in 1972 by the Clean Water Act. In most cases, states
administer the NPDES program, which regulates the discharge of
pollutants into surface waters of the United States from industrial,
municipal, and other facilities through permits.
In 1990, the Great Lakes Critical Programs Act amended the Clean Water
Act to require the U.S. Environmental Protection Agency (EPA) to
publish final guidance for the Great Lakes states, conforming to the
objectives and provisions of the GLWQA, on minimum water quality
standards, implementation procedures, and antidegradation policies for
protecting existing water quality. The act required states to adopt
provisions consistent with these standards, procedures, and
policies.[Footnote 1] In 1995, EPA issued the Final Water Quality
Guidance for the Great Lakes System, also known as the Great Lakes
Initiative (GLI). To control toxic substances and protect aquatic life,
wildlife, and human health, GLI sets forth water quality criteria for
29 toxic substances, including BCCs and it primarily focused on 22 BCC
pollutants, such as mercury, polychlorinated biphenyls (PCB), and
dioxin. Mercury is the most prevalent BCC in the Great Lakes Basin and
poses a significant threat to human health. GLI also contains detailed
methodologies for developing criteria for additional pollutants and
implementation procedures for developing more consistent, enforceable
water quality-based effluent limits in NPDES discharge permits for
point sources of pollution. The eight Great Lakes states--Illinois,
Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and
Wisconsin--are responsible for implementing GLI, which provides them
some flexibility in implementing water quality standards. EPA's Regions
2, 3, and 5 are responsible for ensuring the adoption and
implementation of GLI by the states. The NPDES program and the GLI are
strictly U.S. efforts and do not apply to Canada, which follows a
different approach to regulating point source pollution.
You asked us to examine (1) the focus of GLI and its potential to
impact water quality in the Great Lakes Basin; (2) the status of GLI's
adoption by the states and the challenges, if any, to achieving GLI's
intended goals; and (3) steps EPA has taken for ensuring the full and
consistent implementation of GLI and for assessing progress toward
achieving GLI's goals. Because of the prevalence of mercury in the
Great Lakes Basin, this report focuses on control of this pollutant.
To determine the focus of GLI and its potential to affect water quality
in the Great Lakes Basin, we reviewed the finalized GLI requirements
and available data on the major sources of toxic pollutants in the
Great Lakes Basin. We obtained information on the impact of GLI from
officials of several state and other environmental organizations,
including officials that were involved in developing GLI. To determine
the status of GLI's adoption by the states, we examined EPA regulations
and analyzed documents pertaining to EPA's review of state submissions
under GLI to identify any remaining unresolved matters. To identify
challenges that might exist to achieve GLI's intended goals, we
reviewed the water quality criteria established for individual
pollutants in GLI, particularly BCCs, and analyzed information provided
by EPA and state officials to determine if any challenges existed. To
identify the steps EPA has taken for ensuring the full and consistent
implementation of GLI, we reviewed GLI to identify the activities EPA
committed to undertake and obtained information from EPA and Great
Lakes state officials on the status of implementation, including any
consequences resulting from delays in implementation. To determine the
steps taken by EPA for assessing progress toward achieving GLI's goals,
we reviewed efforts by EPA Region 5 officials to determine progress
made under GLI for improving water quality, including the agency's
analysis of available databases, and its efforts in monitoring of the
states' implementation of GLI. We performed our work from October 2004
to June 2005 in accordance with generally accepted government auditing
standards. A more detailed discussion of our scope and methodology is
outlined in appendix I.
Results in Brief:
GLI has limited potential to improve overall water quality in the Great
Lakes Basin because it focuses primarily on point sources of pollution
regulated by state NPDES programs rather than nonpoint sources, such as
air deposition and agricultural runoff, which are a greater source of
pollution. While the importance of nonpoint sources of pollution was
mentioned in GLI, they were not specifically addressed. GLI's ability
to impact overall water quality is further limited because under
certain circumstances it lets states use flexible implementation
procedures, such as variances, when issuing permits for facilities,
allowing them to discharge pollutants at levels exceeding stringent GLI
water quality standards. Thus, while mercury is the only BCC with a
significant number of permit limits established as a result of GLI, the
discharger is often allowed to exceed mercury water quality standards
in GLI because states have granted them variances, limiting GLI's
ability to impact water quality. GLI's incremental impact is also
limited by the fact that many of the BCCs regulated by GLI had already
been previously restricted or banned by EPA. For example, certain
pesticides targeted by GLI were banned in the 1970s and 1980s.
Consequently, many of these chemicals are not present or are present
only at low levels in Great Lakes point source discharges. While these
factors limit GLI's incremental ability to impact overall water quality
in the Great Lakes, its effective implementation is still important
because the virtual elimination of toxic pollutants remains a goal and
controls on point source discharges are still needed to meet this goal.
While EPA has concluded that the Great Lakes states have largely
completed adopting GLI provisions in their regulatory programs,
measuring some pollutants at GLI levels is a significant challenge to
implementing the stringent water quality standards called for in GLI.
By 1998, the eight Great Lakes states had generally incorporated
provisions consistent with GLI--including water quality criteria and
implementation procedures--into their environmental regulations and
NPDES permit programs. However, in 2000, EPA determined that six states
had either failed to adopt some GLI provisions or had adopted some
provisions that were inconsistent with GLI guidance. EPA promulgated
rules disapproving these elements of the six states' submissions and
imposing the GLI standards. In Wisconsin, however, officials believe
that the state cannot implement standards that are not explicitly
supported by state law, and disagreements over certain GLI provisions
between state and EPA officials have continued since 2000. As a result,
GLI is not fully adopted or implemented in the state. While provisions
consistent with GLI have largely been adopted in other state programs,
a significant obstacle exists to achieving GLI's intended goals.
Specifically, many of the BCCs cannot be measured at the low level of
GLI water quality criteria because sufficiently sensitive measurement
methods do not exist. It is difficult to accurately assess the need
for, or implement a permit limit for a pollutant when its presence in a
facility's discharge cannot be measured at the level established by the
water quality standard. For example, when GLI was issued, mercury could
only be measured at levels many times greater than its GLI water
quality criteria. With the development of a new measurement method, a
much more widespread and pervasive problem with mercury levels was
found, resulting in many more facilities being required to have mercury
discharge limits and monitoring requirements in their permits. In the
case of other BCCs, such as PCBs, methods to measure at low levels have
not been developed.
EPA has not ensured the consistent implementation of GLI across the
Great Lakes states or taken adequate steps to measure progress toward
achieving GLI's goals. Of particular note, to promote a uniform and
consistent approach to the problems posed by mercury, EPA stated in GLI
that it was committed to issuing a mercury permitting strategy for the
Great Lakes Basin no later than 2 years after publishing GLI. Although
EPA drafted a strategy, it was never issued because the agency
perceived a general lack of public interest, and agency resources were
directed to other GLI activities, according to EPA officials. In the
absence of an EPA strategy, individual states developed permits for
mercury that vary from state to state. For example, in Michigan,
variances for dischargers allowing them to exceed mercury water quality
standards are based on discharge levels that the state regulatory
agency considers achievable by most dischargers in the state, while in
Ohio, discharge levels are based on the level currently achievable by
the individual facility. Such different approaches fail to promote the
consistent implementation of water quality standards as envisioned by
GLI. In addition, GLI stated that EPA Region 5, in cooperation with EPA
Regions 2 and 3 and headquarters would establish a GLI Clearinghouse--
a database that would allow states to share information for developing
and updating consistent water quality standards. While development of
the Clearinghouse was initiated in 1996, because of other agency
priorities it was not made available to the states until 2005. In the
absence of the Clearinghouse, some states developed their own water
quality standards without the benefits of this shared information. As a
result, EPA cannot be assured the Great Lakes states have adequate
information to develop and update water quality standards in a
consistent manner, which is a guiding GLI principle. Finally, EPA has
been unable to sufficiently assess the impact of GLI with existing data
sources and has not gathered additional information to monitor
progress. The automated system that tracks NPDES permits does not
provide accurate information that can be used to determine whether
pollutant discharges have decreased under GLI. EPA Region 5 officials
are attempting to assess the impact of GLI by comparing individual
permits before and after GLI requirements, but this effort has yet to
yield even preliminary results. EPA has also not assessed the impact of
programs required by permits for minimizing pollutants that might
exceed GLI standards.
To better ensure the full and consistent implementation of GLI and
improve measures for monitoring progress toward achieving GLI's goals,
we are making a number of recommendations to EPA aimed at issuing a
mercury permitting strategy, fully developing a GLI Clearinghouse, and
collecting information on the impact of discharger plans to minimize
pollutants, among other actions.
In commenting on this report, EPA believes that we did not effectively
consider other benefits from GLI and that differences in how states
address mercury in NPDES permits does not result in an unacceptable
level of inconsistency. EPA plans to assist and work with the Great
Lakes states in assessing the most effective approaches for reducing
mercury loadings by dischargers. It will continue efforts to develop
the Clearinghouse, collect information on pollutant minimization
programs, and work with the state of Wisconsin to resolve outstanding
issues.
Background:
The Great Lakes and their connecting channels form the largest system
of freshwater on earth. [Hyperlink, http://www.great-lakes.net/teach/geog/intro/northamerica.html]. Covering more than
94,000 square miles, they contain about 84 percent of North America's
surface freshwater and 21 percent of the world's supply. The lakes
provide water for a multitude of activities and occupations, including
drinking, fishing, swimming, boating, agriculture, industry, and
shipping for more than 30 million people who live in the Great Lakes
Basin--which encompasses nearly all of the state of Michigan and parts
of Illinois, Indiana, Minnesota, New York, Ohio, Pennsylvania,
Wisconsin, and the Canadian province of Ontario.
Figure 1: Area Comprising the Great Lakes Basin:
[See PDF for image]
[End of figure]
During the 1970s, it became apparent that pollution caused by
persistent toxic substances, such as BCCs, was harming the Great Lakes
and posing risks to human health and wildlife. On average, less than 1
percent of the Great Lakes' water recycles or turns over each year, and
many pollutants stay in place, settling in sediments or bioaccumulating
in organisms. As a result, under the GLWQA of 1978, the United States
and Canada agreed to a policy of prohibiting the discharge of harmful
pollutants in toxic amounts and virtually eliminating the discharge of
such pollutants. The two parties also pledged to develop programs and
measures to control inputs of persistent toxic substances, including
control programs for their production, use, distribution, and disposal.
The concept of virtual elimination recognizes that it may not be
possible to achieve total elimination of all persistent toxic
substances. Some toxic substances may be produced by or as a result of
natural processes, persist at background or natural levels, or cannot
be eliminated for technological or economic reasons.
In addition to agreeing to a policy calling for the virtual elimination
of toxic pollutants, the 1978 GLWQA, as amended, also established a
process and set of commitments to address the pollutant problem. Other
joint United States and Canada toxic reduction efforts were initiated
in subsequent years, in keeping with the objectives of the agreement.
These included the 1991 Binational Program to Restore and Protect the
Lake Superior Basin--which, among other things, established a goal of
achieving zero discharge of designated persistent and bioaccumulative
toxic substances from point sources in the Lake Superior Basin. In
addition, recognizing the long-term need to address virtual
elimination, the EPA Administrator and Canada's Minister of the
Environment signed the Great Lakes Binational Toxics Strategy in 1997,
which provides a framework for actions to reduce or eliminate
persistent toxic substances, especially those that bioaccumulate in the
Great Lakes Basin.
Agreements within the two countries also addressed the problem of toxic
pollutants and the implementation of the GLWQA. In the United States,
the Governors' Agreement in 1986 developed by the Council of Great
Lakes Governors recognized that the problem of persistent toxic
substances was the foremost environmental issue confronting the Great
Lakes, and they were committed to managing the Great Lakes as an
integrated ecosystem. At that time, inconsistencies in state standards
and implementation procedures became an increasing concern to EPA and
state environmental managers. The Governors agreed to work together to,
among other things, establish a framework for coordinating regional
action in controlling toxic pollutants entering the Great Lakes Basin,
increase federal emphasis on controlling toxic pollution, and expedite
the development of additional national criteria or standards for toxic
substances to protect both the ecosystem and human health. In Canada,
the Canadian and Ontario governments entered into several agreements
with each other over the last 30 years to address environmental
problems in the Great Lakes. These agreements, each referred to as the
Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem,
included a focus on the control of toxic chemical pollution and runoff.
In addition, a 2002 agreement outlines how these two governments will
continue to work together to focus efforts to help clean up the Great
Lakes Basin ecosystem. Several priority projects are planned under the
agreement, including reducing the amount of harmful pollutants, such as
mercury, that find their way into the Great Lakes.
To further control toxic substances in the United States, efforts on
the GLI began in the late 1980s to establish a consistent level of
environmental protection for the Great Lakes ecosystem, particularly in
the area of state water quality standards and NPDES programs for
controlling point sources of pollution. As authorized by the Clean
Water Act, the NPDES permit program controls water pollution by
regulating point sources that discharge pollutants into U.S. surface
waters. Under NPDES, all facilities that discharge pollutants from any
point source into U.S. waters are required to obtain a permit that
provides two levels of control: (1) technology based limits (discharge
limits attainable under current technologies for treating water
pollution) and (2) water quality-based effluent limits (based on state
water quality standards). Point sources are discrete conveyances such
as pipes or constructed ditches. Individual homes that are connected to
a municipal system, use a septic system, or do not have a surface
discharge, do not need an NPDES permit; however, industrial, municipal,
and other facilities must obtain permits if their discharges go
directly to surface waters. As of May 2005, there were nearly 5,000
facilities in the Great Lakes Basin that had NPDES permits, and over
500 of these were considered major facilities.[Footnote 2]
Figure 2: Number of Facilities with NPDES Permits in the Great Lakes
Basin by County:
[See PDF for image]
Note: Data provided by state officials, from February through May 2005.
[End of figure]
In 1989, the Council of Great Lakes Governors agreed to join EPA in
developing GLI because it supported the goal of consistent regulations
among the Great Lakes states. The effort to develop GLI was under way
when Congress amended the Clean Water Act with the passage of the Great
Lakes Critical Programs Act of 1990. This act required EPA to publish
by June 1992, final water quality guidance for the Great Lakes System
that conformed to the objectives and provisions of the GLWQA. It
further required the states to adopt water quality standards,
antidegradation policies, and implementation procedures consistent with
the guidance no later than 2 years after it was published. If the
states failed to adopt such water quality standards, policies, and
procedures consistent with the guidance, EPA was to promulgate them not
later than the end of the 2-year period. In making such a
determination, EPA reviewed the states water quality standards,
antidegradation policies, and implementation procedures for consistency
with the guidance.
To control toxic substances and protect aquatic life, wildlife, and
human health, GLI sets forth water quality criteria for 29 toxic
substances, such as PCBs, mercury, dioxin, and chlordane. These
criteria include standards for 9 of 22 BCCs. GLI also contains detailed
methodologies for developing criteria for additional pollutants and
implementation procedures for developing more consistent, enforceable
water quality-based effluent limits in discharge permits for point
sources of pollution. The most common of the 22 BCCs currently being
discharged from point sources in the Great Lakes Basin is mercury.
Because mercury can be highly toxic and travel great distances in the
atmosphere, it has long been recognized to have a wide range of
detrimental effects for ecosystems and human health. When mercury is
deposited within a water body, microorganisms can transform it into a
very toxic substance known as methyl mercury. Methyl mercury tends to
remain dissolved in water and can bioaccumulate in the tissues of fish
to concentrations much higher than in the surrounding water. The
primary way people are exposed to mercury is by eating fish containing
methyl mercury. Poisoning can result from eating fish contaminated with
bioaccumulated methyl mercury, which is dangerous to certain adults,
children, and developing fetuses.
Three general principles guided the development of GLI: (1) to
incorporate the best science available to protect the Great Lakes Basin
ecosystem; (2) to promote consistency in standards and implementation
procedures in Great Lakes states' water quality standards while
allowing appropriate flexibility; and (3) to reflect the unique nature
of the Great Lakes Basin ecosystem by establishing special provisions
for toxic substances, such as BCCs. Although improved consistency in
Great Lakes states' water quality standards and NPDES programs was a
primary goal of GLI, implementing and supplemental regulations
published by EPA provided flexibility to states in adopting and
implementing GLI provisions in several areas.[Footnote 3] These
regulations included relief from GLI provisions for point source
dischargers through the use of existing NPDES program provisions such
as variances, mixing zones, and compliance schedules. For example,
provisions in GLI allow the states to grant dischargers variances for
up to 5 years from GLI water quality standards, which are the basis of
a water quality based effluent limitation included in NPDES permits.
According to GLI, variances are to apply to individual dischargers
requesting permits and apply only to the pollutant or pollutants
specified in the variance.
Great Lakes Initiative Has Limited Potential to Impact Overall Water
Quality:
GLI has limited potential to incrementally improve water quality in the
Great Lakes Basin because first, it primarily focuses on point sources,
which are not the major source of certain toxic pollutants that
currently affect the Great Lakes Basin. Moreover, once GLI was
implemented, few NPDES permits included limits for BCCs because they
were not in discharges, and many of these BCCs were already regulated
or banned before the GLI guidance was issued. Finally, for mercury,
which is the BCC that is most frequently controlled in NPDES permits,
GLI provisions provide flexible implementation procedures, including
variances, that under certain circumstances are used by states to allow
dischargers relief from the more stringent water quality standards. The
stringent water quality standards may be either technically or
economically unattainable by dischargers.
GLI's Primary Focus Is on Point Sources Which Are Not the Major Source
of Many Toxic Pollutants:
A primary focus of GLI is to establish consistent water quality
standards within the Great Lakes Basin, which apply to all sources of
pollutants but mainly to point sources. Thirty-three years ago, point
sources of pollution were the basis for the establishment of the NPDES
program and the major cause of poor water quality in the Great Lakes
Basin. In implementing this program, it was recognized that controlling
point sources was an important means of reducing pollutants discharged
into waterways by requiring permits that specified allowable levels of
pollutants. Since the introduction of the NPDES program there have been
significant water quality improvements in the Great Lakes Basin.
Currently, however, nonpoint sources of certain toxic pollutants are a
significant threat to overall water quality in the Great Lakes Basin
and other areas within the United States and Canada. Nonpoint sources
of pollutants often impact overall water quality through runoff from
agricultural processes or releases into the air from industrial
facilities, which are then deposited into the Great Lakes. For example,
major sources of mercury released into the air include coal-fired power
plants, industrial boilers, and waste incinerators that burn materials
containing mercury. Much, if not most, of the mercury entering the
Great Lakes is from atmospheric deposition. EPA Great Lakes National
Program Office officials stated that air deposition is likely
responsible for more than 80 percent of mercury loadings into the Great
Lakes.[Footnote 4] Currently, nonpoint sources of pollution are more
difficult to regulate than point sources because it is more difficult
to determine the specific sources of pollutants. The dynamic nature of
various source pollution is illustrated below.
Figure 3: Illustration of Point and Nonpoint Sources of Pollution:
[See PDF for image]
[End of figure]
Several state and environmental officials commented that while GLI
resulted in states becoming more aware of the need to attain water
quality standards for BCCs from point sources, it did not specifically
address the larger problem of nonpoint sources of pollution. For
example, Minnesota officials stated that they do not anticipate any
water quality improvements from GLI for mercury, the most prevalent BCC
in the Lake Superior Basin, because GLI does not specifically address
nonpoint sources, such as atmospheric deposition. A 2004 state study
estimated that 99 percent of mercury in Minnesota lakes and rivers
comes from atmospheric deposition. The study concluded that although 30
percent of mercury atmospheric deposition in Minnesota is the result of
natural cycling of mercury, 70 percent is the result of human
activities, such as the release of trace concentrations that are
naturally present in the coal used by power plants, and in the mining
and processing of taconite ore, which is used to produce iron and
steel. Of the mercury atmospheric deposition in Minnesota, it is
estimated that 10 percent of this is from emissions within Minnesota.
The sources of mercury atmospheric deposition from within Minnesota are
shown in figure 4.
Figure 4: Minnesota Mercury Emissions:
[See PDF for image]
Note: The "other" category includes sources such as natural gas, wood,
and fluorescent lamp breakage, which each, individually, make up less
than 1 percent of the total. Due to rounding total percentage of
individual categories exceeds 100 percent.
[End of figure]
While the focus of GLI is on point sources, the importance of
controlling nonpoint sources of pollution to improve overall water
quality in the Great Lakes is recognized in GLI guidance. The guidance
states that once GLI is implemented by the states, water quality
criteria for pollutants and other provisions that are included in the
guidance would be applied to nonpoint sources. However, according to
the guidance, to be implemented, nonpoint source provisions would need
to be enforced through the states' own regulatory programs. GLI also
promotes the use of total maximum daily loads (TMDL) as the best
approach for equitably addressing both point and nonpoint
sources.[Footnote 5] TMDLs for the Great Lakes are also addressed in
the Great Lakes Strategy 2002, which was developed by the U.S. Policy
Committee for the Great Lakes.[Footnote 6] The strategy has an
objective that TMDLs for each of the Great Lakes and impaired
tributaries will be completed by 2013; but according to EPA officials,
TMDLs for BCCs have not been established for any of the Great Lakes,
and only two TMDLs for BCCs have been completed for tributaries.
Few Permits Contain Limits for Toxic Pollutants, and Many Toxic
Pollutants Are Already Restricted or Banned:
While GLI identified many toxic pollutants, few NPDES permits currently
limit the discharge of these pollutants, particularly BCCs, because
they are either not present in discharge water or the pollutants are
already restricted or banned. BCCs are still present in some
facilities' discharges and are regulated by NPDES permits, but while
there are nearly 5,000 permits for facilities in the Great Lakes Basin,
there are only about 250 discharge limits for BCCs, according to Great
Lake states' officials. Five of the eight states reported that they had
discharge limits for BCCs in the Great Lakes Basin.[Footnote 7]
Further, not only are there relatively few BCC discharge limits in
permits, but most, 185, are for mercury--with Michigan issuing the most
discharge limits of the five states. The number of BCC discharge limits
by state and pollutant is shown in table 1.
Table 1: BCC Discharge Limits in Great Lakes States' NPDES Permits:
Mercury;
Illinois: 0;
Indiana: 20;
Michigan: 83;
Minnesota: 2;
New York: 37;
Ohio: 43;
Pennsylvania: 0;
Wisconsin: 0;
Total: 185.
PCBs;
Illinois: 0;
Indiana: 1;
Michigan: 10;
Minnesota: 1;
New York: 10;
Ohio: 3[A];
Pennsylvania: 0;
Wisconsin: 0;
Total: 25.
Dioxin;
Illinois: 0;
Indiana: 0;
Michigan: 2;
Minnesota: 1;
New York: 0;
Ohio: 0;
Pennsylvania: 0;
Wisconsin: 0;
Total: 3.
Lindane;
Illinois: 0;
Indiana: 0;
Michigan: 2;
Minnesota: 0;
New York: 2;
Ohio: 0;
Pennsylvania: 0;
Wisconsin: 0;
Total: 4.
Hexachlorobenzene;
Illinois: 0;
Indiana: 0;
Michigan: 2;
Minnesota: 0;
New York: 4;
Ohio: 0;
Pennsylvania: 0;
Wisconsin: 0;
Total: 6.
Hexachlorobutadiene;
Illinois: 0;
Indiana: 0;
Michigan: 2;
Minnesota: 0;
New York: 3;
Ohio: 0;
Pennsylvania: 0;
Wisconsin: 0;
Total: 5.
Other;
Illinois: 0;
Indiana: 0;
Michigan: 2;
Minnesota: 0;
New York: 16;
Ohio: 0;
Pennsylvania: 0;
Wisconsin: 0;
Total: 18.
Total;
Illinois: 0;
Indiana: 21;
Michigan: 103;
Minnesota: 4;
New York: 72;
Ohio: 46;
Pennsylvania: 0;
Wisconsin: 0;
Total: 246.
Great Lakes Basin Permitted Facilities;
Illinois: 12;
Indiana: 150;
Michigan: 1753;
Minnesota: 89;
New York: 1275;
Ohio: 1041;
Pennsylvania: 84;
Wisconsin: 319;
Total: 4723.
Sources: GAO and state NPDES program officials.
Note: Data provided by state officials, from February through May 2005.
[A] Ohio officials provided an estimate of 1-5 PCB discharge limits in
Great Lakes Basin permits. The number "3" is used as an approximation.
[End of table]
Several of the pollutants addressed by GLI had their use restricted or
banned by EPA in the 1970s and 1980s and therefore are not used by
facilities or found in their discharges. Of the 22 BCCs covered by GLI,
at least 12 are either banned or are no longer produced in the United
States. Some of the banned BCCs, such as toxaphene and dieldrin, are
pesticides and insecticides that are likely to be present in the Great
Lakes Basin water bodies as contaminated sediments from prior
agricultural runoff rather than municipal and industrial point source
discharges. Other BCCs, such as lindane, are no longer produced in the
United States, while others, such as mirex and hexachloracyclohexane,
are no longer produced or used in the United States. See appendix II
for BCCs identified in GLI and whether they have been banned,
restricted, or are still in use.
While the preceding factors limit GLI's potential to improve overall
water quality in the Great Lakes, its effective implementation is still
important because the virtual elimination of toxic pollutants in the
Great Lakes Basin remains a goal for the United States and Canada.
Controlling point source pollution is still needed to meet this
objective. Although point source discharges of toxic pollutants are not
as widespread as nonpoint sources, point source discharges may create
localized "hot spots" of elevated concentrations of BCCs. These areas
can have potentially adverse effects on aquatic life, wildlife, and
humans. For example, while the major sources of mercury are nonpoint
sources, it is still the most prevalent BCC found in point source
discharges overall in the Great Lakes, and heavy concentrations of
mercury in these hot spots may result in its bioaccumulation in fish to
levels that are dangerous to both humans and wildlife that consume
them. Achieving GLI's objective to have consistent water quality
standards for controlling point sources of toxic pollutants may prove
difficult, however, because of flexible implementation procedures that
allow discharge of pollutants at levels greater than GLI water quality
standards.
Many NPDES Permits Allow for Dischargers' Mercury Pollutant Levels to
Exceed GLI Standards:
Many NPDES permits for facilities in the Great Lakes Basin allow the
discharge of mercury at levels greater than the GLI water quality
standard. Flexible implementation procedures such as variances are
widely used to allow dischargers to exceed the strict GLI mercury water
quality standard of 1.3 nanograms per liter of water (ng/L). GLI allows
states to grant variances for complying with the mercury and other
water quality standards under certain circumstances, such as if the
imposition of water quality standards would result in substantial and
widespread harmful economic and social impact. Variances are applicable
only to the permit holder requesting the variance for up to 5 years and
are only available for dischargers that were in existence as of March
23, 1997.[Footnote 8] New facilities are not eligible for variances and
must comply with the water quality standard for mercury established
under GLI. Officials in two states--Minnesota and Michigan--expressed
concerns that new industrial facilities that discharge mercury may not
locate in the state because of their inability to comply with the
mercury standard.
The use of variances for mercury became a more critical concern when
new methods to measure the pollutant were approved by EPA in 1999,
allowing mercury to be measured at a quantification level of 0.5 ng/L,
below the GLI water quality standard of 1.3 ng/L.[Footnote 9] This
method was 400 times more sensitive than the one previously used by EPA
and allowed the very low GLI limits to be quantified for the first
time, causing potentially widespread problems for Great Lakes Basin
dischargers that discovered for the first time that they were exceeding
the mercury water quality criteria, according to state NPDES program
officials. Using the more sensitive method, many more facilities were
found to have levels of mercury in their effluent that exceeded water
quality standards. State and EPA officials also determined that no
economically feasible treatment technologies existed to reduce mercury
to the lower level, and states were unwilling to issue permits that
placed facilities in noncompliance. Michigan officials stated that they
knew of only one permitted facility that was able to comply with the
lower standard. As a result, states issued variances under their GLI
regulations that provide for the most efficient short-term relief to
"ubiquitous" pollutants, and EPA encouraged states to consider
variances for multiple dischargers on a watershed basis, where
appropriate.[Footnote 10]EPA wanted to provide the states appropriate
flexibility in adopting and implementing GLI's requirements, while also
maintaining a minimum level of consistency. To facilitate granting
variances for numerous facilities exceeding the mercury standard, three
states--Indiana, Ohio, and Michigan--adopted procedures that expedited
and simplified the variance application and granting process.
While variances are widely used under GLI, mixing zones and compliance
schedules are also options that states may use under GLI. Mixing zones
are areas around a facility's discharge pipe where pollutants are mixed
with cleaner receiving waters to dilute their concentration. Within the
mixing zone, concentrations of toxic pollutants, such as mercury, are
generally allowed to exceed water quality criteria as long as standards
are met at the boundary of the mixing zone. Several Great Lakes states
no longer allow the use of mixing zones for BCCs in their permits, and
GLI authorization for their use by all existing BCC dischargers expires
in November 2010.[Footnote 11] Mixing zones, as with variances, are not
authorized for new dischargers. Compliance schedules are another option
and grant dischargers a grace period of up to 5 years before they must
comply with certain new or more restrictive permit limits. Similar to
mixing zones, compliance schedules are also not available to new
dischargers in the Great Lakes Basin and are only available for
existing permits reissued or modified on or after March 23, 1997.
According to state officials, Minnesota uses compliance schedules for
existing dischargers to issue permits for facilities that have mercury
levels above GLI water quality criteria. These schedules extend no
later than March 2007, and then the GLI water quality standard of 1.3
ng/L must be met, unless a variance is granted, according to a state
official.
States Have Largely Completed Adopting GLI Standards in Their
Regulatory Programs, but Measuring Some Pollutants at GLI Levels Is a
Significant Challenge:
By 1998, the Great Lakes states largely completed adopting GLI
provisions in their regulatory programs by incorporating GLI standards
in their environmental regulations and NPDES permit programs. Upon
reviewing state regulations, however, EPA found that several states had
either failed to adopt some GLI provisions or adopted provisions that
were inconsistent with GLI guidance. As a result, EPA promulgated
regulations applying certain GLI provisions to some states, but issues
surrounding the implementation of these provisions, particularly in
Wisconsin, have not been fully resolved. Further, while GLI provisions
have been adopted in most state programs, a significant obstacle exists
to achieving GLI's intended goals, in that many BCCs targeted by GLI
cannot be measured at the low level of GLI water quality criteria
because sufficiently sensitive measurement methods do not exist.
Without the ability to measure to the water quality criteria, it is
difficult to accurately determine whether there is a need for a
pollutant permit limit for a facility's discharge.
Great Lakes States Have Generally Incorporated GLI Provisions into
Their Regulations and NPDES Programs:
GLI provisions have generally been incorporated into state regulations
and NPDES programs, but this did not occur within the statutory time
frame; and, as a result, two lawsuits were filed against EPA to
implement the requirements of the Great Lakes Critical Programs Act of
1990. This act, which amended the Clean Water Act, required the Great
Lakes states to adopt standards, policies, and procedures consistent
with GLI within 2 years of its publication. The act further required
EPA to issue GLI standards by the end of that 2-year period for any
state that had failed to do so. EPA, however, did not issue GLI
standards by the required date for those states that had failed to
develop standards. Consequently, in July 1997, the National Wildlife
Federation filed a lawsuit to force EPA to take action. In response,
EPA negotiated a consent decree providing that it must make GLI
provisions effective in any state that failed to make a submission by
February 1998. EPA was never forced to take action, however, because
all of the Great Lakes states adopted GLI standards into their
regulations and submitted them to EPA for approval by the February
deadline. For example, in July 1997, Michigan modified its
administrative rules for water quality standards and added implementing
procedures to the state's administrative rules. Other states adopted
GLI into their regulations for the Great Lakes Basin area of their
states, and they later adopted aspects of the GLI provisions, or all of
them, for the entire state. For example, according to state officials,
when GLI was originally adopted by Ohio, most of its provisions only
applied to the Lake Erie Basin, but in 2002, Ohio adopted GLI aquatic
life criteria statewide. Further, Ohio applied GLI criteria for human
health only to the Lake Erie Basin and based human health criteria for
the remainder of the state on EPA national guidance. However, according
to Ohio environmental officials, the two health criteria have been
converging since the adoption of GLI.
In addition to the requirements of the Great Lakes Critical Programs
Act and the consent decree provisions, EPA's GLI regulations bound the
agency to publish a notice approving the submission within 90 days or
to notify the state that all or part of their submission was
disapproved and to identify changes required for EPA's approval.
Because EPA did not take the required actions on every state's
submission, in November 1999, the National Wildlife Federation and the
Lake Michigan Federation filed a lawsuit to force EPA to take action on
all Great Lakes states' GLI submissions.[Footnote 12] EPA negotiated
another consent decree providing that EPA would take the required
actions by July 31, 2000, for six states--Illinois, Indiana, Michigan,
Minnesota, Ohio, and Pennsylvania--and by September 29, 2000 and
October 31, 2000, for New York and Wisconsin, respectively. EPA
ultimately issued its final determinations for Michigan, Ohio, Indiana,
Minnesota, Pennsylvania, and Illinois in August 2000. Determinations
for New York and Wisconsin followed in October and November 2000,
respectively. Although a few exceptions were identified, EPA determined
that all the Great Lakes states had generally adopted requirements
consistent with GLI; however, certain matters relating to the state
submissions remained unresolved.
Unresolved Matters Affecting Full GLI Adoption Remain in Several Great
Lakes States:
While EPA determined that all the Great Lakes states had generally
adopted requirements consistent with GLI, it disapproved certain
elements of six states' submissions as less protective than GLI. EPA
promulgated final rules applying the relevant GLI provisions to the
disapproved elements. For example, EPA disapproved four states' rules
relating to determining the need for permit limits on the aggregate
toxicity of facility's discharge--termed whole effluent toxicity (WET)
reasonable potential. EPA disapproved certain elements of the state
rules because they were deemed inconsistent with GLI provisions. In
determining whether the states adopted policies, procedures, and
standards consistent with GLI, EPA evaluated whether the states'
provisions provided at least as stringent a level of environmental
protection as the corresponding provisions of the guidance. In 12
instances, EPA determined that state provisions were not as stringent
or were absent. EPA then promulgated final rules specifying which state
provisions it was disapproving as being inconsistent with GLI and
applying the relevant GLI provisions. If the state later adopted
requirements that EPA approved as being consistent with the GLI
provisions, then EPA indicated that it would amend its regulations so
that they would no longer apply for the state.
The individual provisions disapproved by EPA vary from state to state,
although the WET provisions were disapproved for four of the six states
with disapproved elements. For Michigan and Ohio, the WET reasonable
potential procedure was the only GLI provision that was disapproved.
For Indiana, EPA disapproved its WET reasonable potential procedure and
two additional provisions. Specifically disapproved were Indiana's
criteria for granting of variances from water quality standards and
provisions preventing the inclusion of discharge limits in permits when
a facility has applied for a variance. Illinois' sole disapproved
provision related to TMDL development while New York's disapproved
provisions related to chronic aquatic life criteria and mercury
criterion for the protection of wildlife. GLI provisions disapproved by
EPA are summarized in table 2.
Table 2: State GLI Provisions Disapproved by EPA:
Illinois;
TMDL development.
Indiana;
WET reasonable potential.
Criteria for granting variances.
Inclusion of discharge limits in permits with a pending variance
application.
Michigan;
WET reasonable potential.
New York;
Chronic aquatic life criteria.
Mercury wildlife criterion.
Ohio;
WET reasonable potential.
Wisconsin;
WET reasonable potential.
Consideration of intake pollutants in establishing discharge limits.
Aquatic life criteria for copper and nickel; chronic aquatic life
criteria for endrin and selenium.
TMDL development.
Source: EPA.
Note: Pennsylvania and Minnesota had no disapproved elements in their
adoption of GLI.
[End of table]
The Great Lakes states now have requirements, consistent with GLI, to
follow that are either fully incorporated into their rules or that have
been promulgated by EPA.[Footnote 13] However, in Wisconsin, the GLI
provisions promulgated by EPA have not been implemented because state
officials believe provisions that are not explicitly supported by
Wisconsin law cannot be implemented and because material disagreements
exist between state officials and EPA over the GLI provisions. This
situation has resulted in delays in issuing renewals of some NPDES
permits or issuing permits under state provisions that are inconsistent
with GLI, according to state officials.
Of the four requirements EPA found inconsistent for Wisconsin, one
significant disagreement involved certain technical and scientific
details relating to the consideration of intake pollutants and another
involved the determination of WET reasonable potential under GLI. For
the WET determination, Wisconsin Department of Natural Resources
officials stated that the GLI requirements are a misapplication of
statistical procedures and overly burdensome. Because of these
differences in determining WET reasonable potential, Wisconsin uses
both state and GLI procedures. If the Wisconsin procedures result in
the need for a WET limit, but the GLI procedures do not, then the
permit is issued with the WET limit. However, if GLI procedures result
in the need for a WET limit, but the state procedures do not, the
permit is backlogged until a solution can be negotiated. As a possible
resolution to this issue, EPA has recently provided the state with a
small grant to reevaluate their WET procedure and identify possible
changes that would be as protective as the GLI and acceptable to
Wisconsin officials. While the state has not implemented WET reasonable
potential provisions that are consistent with GLI, it has only impacted
a relatively small number of permits in the Great Lakes Basin.
The disagreement involving Wisconsin's provisions for intake pollutants
that are inconsistent with GLI have a potentially greater impact and,
according to state officials, they do not have the resources to use the
more complex GLI approach. The GLI provisions for intake pollutants are
important because, according to state officials, the most prevalent
BCC, mercury, exists at levels exceeding its water quality criteria
throughout the Great Lakes Basin. GLI provisions address the condition
where pollutant levels in a water body contain "background" levels that
exceed the water quality criteria for that pollutant. Specifically,
provisions address the discharge of pollutants that are taken in
through a facility's source or intake water and are then returned to
the same water body. GLI allows facilities to discharge the same mass
and concentration of pollutants that are present in its intake water--
a concept of "no net addition"--provided the discharge is to the same
body of water and certain other conditions are met. EPA considers this
practice to be environmentally protective and consistent with the
requirements of the Clean Water Act when a pollutant is simply moved
from one part of a water body to another that it would have reached
regardless of its use by a facility.
However, EPA determined that Wisconsin's procedures allow pollutant
discharges at background levels, regardless of whether the pollutant
originated from the same body of water, a different body of water, or
the facility generated the pollutant itself. Further, EPA found that
the state's procedures would allow granting of a permit without
discharge limits in situations where one would be required by GLI. EPA
therefore determined that the state's procedure was inconsistent with
GLI because it would allow facilities to discharge pollutants that were
not previously in the water body at levels greater than the applicable
water quality criteria, which EPA believed was inconsistent with the
fundamental principles of GLI permitting procedures. Although the
procedures were disapproved, state officials continue to disagree with
EPA's determination. The disagreement has remained unresolved since
2000, and EPA's rule applying the GLI provisions to Wisconsin have not
been followed by the state. EPA Region 5 officials stated that they
have had some contacts with the Wisconsin officials, but these contacts
have not resulted in resolving the differences.
GLI Has Provided Benefits but the Inability to Measure Pollutants at
Low Levels Is a Significant Challenge:
The introduction of GLI in the Great Lakes states has produced several
benefits. GLI introduced new standards and methodologies that are based
on the best science available for protecting wildlife, deriving numeric
criteria for additional pollutants, developing techniques to provide
additional protection for mixtures of toxic pollutants, and determining
the bioaccumulative properties of individual pollutants. GLI also
formalized a set of practices and procedures for states to use in
administering their NPDES permit programs and resolved legal challenges
to provisions similar to GLI in at least one state. Through its
emphasis on BCCs, GLI played a large role in stimulating efforts to
address these particularly harmful and problematic toxic chemicals.
GLI's impact on state water quality programs has also extended beyond
the Great Lakes Basin, as a number of states have adopted GLI standards
and procedures statewide. Also, according to EPA officials, parts of
GLI have been used nationally and in other states, including
implementation methods in California, wildlife criteria in New Jersey,
and bioaccumulation factors in EPA's revised national guidance for
deriving human health water quality criteria.
While GLI has provided benefits, developing the ability to measure
pollutants at GLI water quality criteria levels remains a challenge to
fully achieving GLI goals in the Great Lakes Basin. Several GLI
pollutants cannot be measured near their water quality criteria, and
without this ability it is difficult to determine whether a discharge
limit is needed and to assess compliance. For example, if a pollutant
has a water quality criteria of 4 ng/L but can only be measured at 40
ng/L, it cannot be determined if the pollutant is exceeding the
criteria unless it is at or above the measurement level, which is about
10 times greater than the criteria level. Therefore, the ability to
accurately and reliably measure pollutant concentrations is vital to
the successful implementation of GLI water quality standards. Michigan
and Ohio officials identified 23 GLI pollutants where the water quality
criteria is lower than the level at which the pollutant's concentration
in water can be reliably measured. In addition, for Ohio, 11 of the 22
BCCs that are the central focus of GLI cannot be measured to the level
of their water quality criteria. These include two of the more
prevalent BCCs--PCBs and dioxin. Currently, using EPA approved methods,
PCBs can be detected only at levels around 65,000 times greater than
the levels established by their water quality criteria. Minnesota
officials stated that, if methods existed to measure PCBs at low
levels, it might be revealed that PCBs are as much of a problem as
mercury. At the time GLI was developed, it was envisioned that more
sensitive analytical methods would eventually be developed to allow
measurement of pollutant concentrations at or below the level
established by GLI water quality criteria, which would allow for the
implementation of enforceable permit limits based on GLI criteria.
Until this could be realized, EPA provided a provision in GLI requiring
dischargers to implement a pollutant minimization program (PMP) to
increase the likelihood that the discharger is reducing all potential
sources of a pollutant to get as close as possible to the water quality
criteria. A PMP sets forth a series of actions by the discharger to
improve water quality when the pollutant concentration cannot be
measured down to the water quality criteria.
The Great Lakes states' experience with mercury illustrates the impact
that having sufficiently sensitive measurement methods can have on
identifying pollutant discharges from point sources. Until 1999,
methods to measure mercury at low levels were generally not available.
Few mercury permit limits existed, and measurement sensitivity using
EPA approved methods was about 400 times less sensitive than the
currently used method. Then, in 1999, EPA issued a newly approved
analytical method with the capability to reliably measure mercury
concentrations down to 0.5 ng/L, well below the lowest GLI mercury
water quality criteria of 1.3 ng/L. This development had a significant
impact on discharging facilities and permitting authorities as the more
sensitive measurement methods disclosed a more pervasive problem of
high mercury levels in Great Lakes Basin waterbodies than previously
recognized. Likewise, the new measurement methods showed that many
facilities had mercury levels in their discharges exceeding water
quality criteria; and, for the first time, permits could include
enforceable discharge limits, based on these low criteria. The result
was a significant increase in the number of permits needing mercury
limits and monitoring requirements. The enhanced measurement capability
also resulted in the development of statewide mercury strategies,
including variances, to assist facilities in implementing the new
measurement methods and eventually attaining the GLI water quality
criteria. In conjunction with the use of variances for mercury, EPA
encouraged the use of PMPs so that facilities could reduce potential
sources of mercury and thus move closer to meeting the GLI water
quality standards. While the development of more sensitive methods for
measuring other BCCs may not have as significant an impact as it did
with mercury, such a development would provide for a more meaningful
assessment of comparing pollutant levels with GLI water quality
criteria.
When GLI was developed, EPA recognized that the relatively low water
quality criteria levels for many pollutants would result in instances
where limits were set below levels that could be reliably measured.
Water quality criteria levels were based on the best science available
for protecting wildlife, aquatic species, and human health whether or
not methods were available for measuring pollutants at those levels.
While EPA officials involved in developing GLI believed that
measurement methods would eventually be available, developing EPA
approved methods can be a time-consuming and costly process. EPA
officials involved in the development of measurement methods explained
that the development process is based on needs and priorities as well
as development costs and resources. EPA is currently involved in
developing a more sensitive analytical method for measuring PCBs, but
EPA officials believe it will take 4 to 5 more years before it will be
used because of the nature of the agency's approval process and
potential legal challenges. One class of pollutant that has not yet
been included as a BCC under GLI is polybrominated diphenyl ethers or
PBDEs--a flame retardant containing toxic chemicals with
bioaccumulative characteristics. The agency has allocated $60,000 to
develop an analytical method for this class of pollutant. EPA officials
did not know when a method for this class of pollutant will be approved
but may have a better idea at the end of 2005. At that point, if
results are promising and funding is available, EPA would validate the
method.
EPA Has Not Ensured Consistent Implementation of GLI Standards or Taken
Adequate Steps Toward Measuring Progress in Achieving GLI Goals:
To ensure the eight Great Lakes states implement GLI consistently, EPA
stated in GLI that it would undertake certain activities, including
issuing a mercury permitting strategy and developing and operating a
Clearinghouse for the sharing of information by states to facilitate
the development and implementation of GLI water quality standards. EPA
began work on the mercury strategy but abandoned efforts because of a
perceived lack of interest and other agency priorities. Further, EPA
has yet to fully develop the Clearinghouse. Additionally, because EPA
has not collected sufficient data, the agency cannot determine whether
GLI is reducing pollutant discharges into the Great Lakes, whether GLI
is improving water quality, or assess overall progress toward achieving
GLI goals.
EPA Has Not Developed the Mercury Permitting Strategy Envisioned in
GLI:
To promote a uniform and consistent approach to the problems posed by
mercury from point sources, EPA stated in GLI that it was committed to
issuing a mercury permitting strategy for use by the Great Lakes states
no later than 2 years after GLI's publication. Although EPA believed
that there was sufficient flexibility in GLI to handle the unique
problems posed by mercury, such as variances and TMDLs, it intended to
develop a mercury permitting strategy to provide a holistic,
comprehensive approach by the states for addressing this pollutant. In
June 1997, EPA published a draft of this strategy for public comment.
The strategy described the flexibility in developing requirements for
controls on the discharge of mercury. However, the strategy was not
implemented because, according to EPA officials, few substantive
comments were submitted on the draft strategy, and agency resources
were directed to other GLI activities. Three states--New York,
Michigan, and Wisconsin--that provided comments generally supporting
the effort each provided additional observations. For example, New York
noted that the strategy offered only administrative solutions rather
than tangible technical solutions to the mercury problem. Wisconsin
suggested that the strategy conformed to the basic framework and
principles of a previously developed state strategy and therefore
thought it unnecessary to substitute EPA's strategy for their own.
In lieu of a formal strategy, EPA participated in meetings with state
officials and has approved mercury permitting strategies submitted by
some of the Great Lakes states. However, in the absence of an EPA
strategy on implementing water quality standards for mercury, most of
the Great Lakes states developed their own approaches to ensuring that
facilities meet the water quality criteria established in GLI, but
these approaches have been inconsistent and create the potential for
states to have different mercury discharge requirements. A major goal
of GLI was to ensure that water quality standards of Great Lakes states
were consistent within this shared ecosystem, however, the mercury
permitting approaches adopted by the Great Lakes states contained
different requirements for mercury. For example, limits in Ohio were
set at 12 ng/L based on state standards existing before adoption of
GLI, and limits established in Michigan were initially set at 30 ng/L
primarily based on data from the state of Maine. EPA officials stated
that while disparities exist, the overall limits are being lowered.
Further, differences in states' strategies for reducing mercury from
point sources have emerged in states' use of variances for existing
facilities.[Footnote 14] Each state followed their own approach for
mercury based on their needs and a consideration of the approaches
taken by other Great Lakes states. While Ohio, Michigan, and Indiana
based their mercury strategies on the use of streamlined processes for
obtaining mercury variances, each state's approach varies in
significant ways. For example, Michigan uses a mercury permitting
strategy where all existing facilities in the state are granted a
variance in their NPDES permits if there is reasonable potential for
the mercury standard to be exceeded. The variance exempts a facility
from meeting the GLI water quality standard of 1.3 ng/L and establishes
this water quality standard as a goal for a PMP. The variance
establishes a universal discharge limit, based on all the facilities in
the state, rather than on a facilities' current discharge level or
discharge level it could achieve individually. Michigan chose this
approach after the new measurement method was approved in 1999,
substantially increasing sensitivity for mercury in water, and most
facilities found they could not meet the GLI water quality standard. As
a result, Michigan established an interim discharge level of 30 ng/L,
based on what could be achieved by the majority of the facilities in
the state, and dischargers are considered to be in compliance with the
mercury limit if they do not exceed the level in their permit and are
implementing a PMP.Michigan has recently lowered this discharge level
to 10 ng/L for permits issued or renewed in 2005.
Conversely, Ohio's mercury strategy requires dischargers to apply for a
variance and submit detailed studies and action plans to identify and
eliminate known sources of mercury. According to state officials,
Ohio's mercury permitting strategy allows dischargers to operate for 19
months using the new mercury measurement method to determine their
discharge levels and evaluate whether they are able to comply with the
water quality standard. If the discharger can comply with the GLI water
quality standard, then the limit is included in their permit. If the
discharger cannot comply they may request a variance. A variance
establishes a monthly permit limit, based on the level currently
achievable for that individual facility, and includes a required PMP.
An annual permit limit of 12 ng/L is included as an annual discharge
requirement for all facilities with a variance. According to state
officials, Indiana's NPDES permits for major facilities may contain
monitoring requirements for mercury, and some will contain effluent
limits that must be achieved after a 3 to 5 year compliance schedule.
Additionally, Indiana developed a streamlined mercury variance rule.
This rule establishes a process for dischargers to obtain temporary
effluent limits, based on the level of mercury currently in their
effluent, and requires dischargers to develop and implement a PMP in
conjunction with a mercury variance.
Other states have developed different mercury permitting approaches.
Minnesota includes a discharge limit in permits, based on the standard
of 1.3 ng/L and implemented through a compliance schedule allowing the
facility up to 5 years to meet the limit. According to state officials,
if dischargers are unable to meet the limit at the expiration of the
compliance schedule, they will be required to apply for a variance on
an individual basis. State officials also reported that Minnesota
recently developed a draft statewide TMDL for mercury as a response to
the mercury problem. Wisconsin has not granted variances, but it has
granted PMP's for about 20 facilities that are unable to comply with
the mercury standard. According to a Wisconsin official, the state
considers that granting PMPs without a limit is in essence a variance.
However, it is referred to as an "alternative mercury limitation," and
the state official explained that, if it were an official variance, the
discharge limit would actually be in the permit, and the variance would
be a part of that limit. New York and Pennsylvania only recently began
using the more sensitive mercury testing method and therefore have yet
to address how facilities will be granted variances.
EPA's Delayed Introduction of the GLI Clearinghouse Limited the
Development of Consistent Water Quality Standards:
To promote a more consistent and shared approach to developing water
quality standards among the Great Lakes states, EPA stated in GLI that
Region 5 would develop a GLI Clearinghouse. As envisioned in GLI, this
Clearinghouse would be a database containing all the information on the
criteria and data used by the Great Lakes states in developing water
quality standards. The Clearinghouse was to be developed in cooperation
with EPA Headquarters, Regions 2 and 3, and the Great Lakes states. As
envisioned, data included in the Clearinghouse could be quickly shared
between the states to assist them in developing or updating numeric
water quality criteria for toxic chemicals for aquatic life, wildlife,
and human health. It could also be used to share data on any new
pollutants that might be designated a BCC. When EPA developed GLI, it
assumed that more chemicals would emerge as BCCs in the future and
require development of additional water quality standards. GLI allows
the Great Lakes states to designate additional chemicals for BCC
controls without EPA sponsoring a public review and comment process.
EPA was concerned that inconsistencies could arise among states when
they identified future BCCs and believed the Clearinghouse would
minimize this possibility. As envisioned in GLI, EPA Region 5 would
operate the Clearinghouse, and if new information indicated a pollutant
was a potential BCC, this information would be reviewed by EPA and the
states and placed in the Clearinghouse to alert all the other Great
Lakes states. Once alerted, states could then notify the public of any
revisions to their water quality standards or permit requirements.
The development of the Clearinghouse did not proceed as envisioned in
the GLI. The Clearinghouse development effort was initiated in 1996 and
EPA began entering data into the database at that time. However, the
database was not available for use by the states until recently,
because of other EPA priorities. Meanwhile, states developed their own
water quality criteria for some GLI pollutants without centralized
access to information from other states, likely resulting in longer
development time and potential for inconsistencies among states.
According to Minnesota state officials, without a GLI Clearinghouse,
developing numeric criteria has been a problem since information on
toxic chemicals or criteria are not readily available from other Great
Lakes states. Currently, Minnesota is not close to developing criteria
for all GLI pollutants. Officials stated that the availability of the
Clearinghouse will help them in developing these criteria. Ohio
officials expressed disappointment that EPA had not developed the
Clearinghouse so many years after the guidance was issued because of
its importance as a resource for developing water quality criteria. EPA
renewed its efforts to complete the development of the Clearinghouse in
late 2004. In early 2005, EPA Region 5 officials held conference calls
with officials from the eight Great Lakes states, resulting in an
agreed approach for jointly populating and maintaining the
Clearinghouse. It is unclear, however, whether the Clearinghouse was
jointly developed as planned with the active participation of EPA
Regions 2 and 3, headquarters, and the eight Great Lakes states. As of
April 2005, the Clearinghouse was still in the testing stage and,
according to EPA Region 5 officials, by July 2005, all states had
access to its information. However, currently, the states are not able
to make additions or modifications to the data in the Clearinghouse.
States were also providing comments to EPA Region 5 on the
Clearinghouse's operation, and EPA planned to make modifications based
on these comments. EPA has yet to determine the most efficient approach
for maintaining and updating information in the database. Until the
database is fully operational and utilized, however, EPA cannot be
assured that the Great Lakes states have adequate information for
developing and updating consistent water quality standards.
EPA Has Not Determined the Overall Impact of GLI or of PMPs in Reducing
Pollutant Loadings:
While monitoring the impact of GLI on water quality and pollutant
loadings may be difficult and not required by the Critical Programs Act
or GLI, it is important to determine if progress is being made toward
GLI goals and the virtual elimination of toxic substances in the Great
Lakes Basin. Currently, the effect of GLI in improving water quality
and reducing loadings of toxic pollutants is unclear because EPA has
been unable to assess GLI's impact with existing data sources and has
not gathered additional information to monitor progress on plans to
reduce future loadings. EPA's primary data source for the NPDES permits
program is the Permit Compliance System (PCS), an automated system used
for tracking compliance with individual permits. Information is entered
into the system by states administering the program, and the system
tracks when a permit is issued and expires, how much a facility is
allowed to discharge, and what a facility has discharged. The system is
useful for identifying noncompliance with GLI-based effluent limits by
major NPDES dischargers through quarterly noncompliance reports.
However, the system is inadequate for determining whether GLI has
reduced pollutant loadings.
EPA Region 5 officials attempted to use PCS to estimate the trends of
point source loadings for specific pollutants in the Great Lakes Basin,
but frequent errors occurred because of system limitations. These
errors resulted from missing or inaccurate data, which distorted a
clear estimate of pollutant loadings by facilities. For example,
discharge quantities for some pollutants were reported as zero in some
instances when they do not require monitoring, resulting in lower
estimated total discharges. In addition, PCS data are primarily for
major facilities, so calculated pollutant loadings do not reflect the
sizeable universe of minor facilities. Inconsistencies in PCS also
occur from the way state discharge monitoring report data are entered
into the system. Because of these data limitations, EPA's attempt to
identify trends in point source loadings did not produce firm
conclusions, rather, it produced only speculation as to why actual
loadings increased or decreased in certain states. In addition, loading
data that compared the years 1999 through 2000 to the years 2000
through 2001 was considered too short a time frame for comparative
analysis since most of the permits had not been modified or reissued to
reflect the new GLI standards during these time periods. Further
hampering this effort was a lack of baseline data for loadings before
GLI, which prevented comparisons between pollutant loadings before and
after GLI implementation. The overall limitations of PCS to support the
NPDES program were first recognized by EPA as an agency weakness in
1999. While EPA has attempted to modernize the system, the costs and
time to complete the project have escalated significantly, as reported
by the EPA Office of Inspector General.[Footnote 15] As of June 2005,
the modernization project had not been completed.
Officials from EPA Region 5 made two other attempts to determine GLI's
impact on Great Lakes water quality. One attempt involved using Toxics
Release Inventory (TRI) data.[Footnote 16] However, EPA officials
stated that for a number of reasons TRI did not lend itself to
assessing the changes in water quality attributed to GLI. For example,
TRI does not include information from publicly owned treatment works
(POTW). Based on this effort, EPA concluded that any improvements in
water quality resulting from GLI could not be isolated from the many
other initiatives undertaken to improve water quality in the Great
Lakes Basin. A second effort is currently under way and involves
comparing a sample of individual permits before and after GLI
implementation to determine its impact on permit limits. However, this
effort has yet to yield preliminary results. Further, even when this
effort is completed, EPA will only be able to make limited conclusions
about how certain permit requirements have changed, and may incorrectly
assume that the changes were a result of implementing GLI. This latest
effort will not provide an ongoing monitoring of the impact of GLI, and
EPA officials stated that in order to do a good analysis of GLI, all
relevant data would have to be stored in a central database for
analysis. Currently different types of information are stored in a
variety of areas.
In addition to attempts by EPA Region 5 to determine GLI's impact, as
part of its oversight of the NPDES program, regional staff review a
sample of major NPDES permits issued by the six Great Lakes states in
the region. The criteria for selecting permits for review varies from
year to year and is typically based on issues that concern EPA staff.
One factor in the selection of permits is whether the facility
discharges within the Great Lakes Basin, thus requiring compliance with
GLI. EPA officials stated that permits are reviewed in accordance with
applicable federal rules and policies, including GLI implementation
procedures. For selected permits issued by the state of Michigan, EPA
specifically reviews the implementation of GLI requirements. For the
other states, compliance reviews addressing GLI requirements are being
phased in and will take significant time to fully implement, according
to EPA officials. EPA's reviews have not included a determination of
whether GLI is being implemented consistently among states, but rather,
focus on issues of compliance.
Finally, EPA is not gathering information on how the implementation of
PMPs or other GLI provisions is reducing pollutant discharges in the
basin. EPA officials in Region 5 stated that GLI was intended to make
the standards and goals of the Great Lakes states more consistent and
implementing an elaborate monitoring scheme was not its intent. Without
some type of monitoring, however, it is difficult to determine whether
the standards and goals are having the desired environmental effect and
whether GLI is being implemented consistently. This is particularly
important because the use of flexible implementation procedures, such
as variances and PMPs, adds uncertainty as to when facilities'
discharge levels will ultimately attain GLI water quality standards.
For PMPs, EPA Region 5 and the states cooperatively developed mercury
PMP guidance for POTWs.[Footnote 17] This guidance was finalized in
November 2004 and provides information on what elements should be in
PMPs, including reporting of progress by the facility to the state in
achieving PMP goals. The reported information, however, is not reviewed
by EPA, and, therefore, the agency cannot determine what overall
progress is being achieved. When EPA reviews a state-issued permit
under a compliance review the agency checks only to see if PMP
requirements are recorded appropriately in the permits and it does not
determine if progress is being made to reduce pollutants under PMPs.
EPA Region 5 officials stated that they could get a better
understanding of GLI implementation if PMP data were collected and
analyzed. Region 5 has not yet initiated a regional review process for
these programs, but it will be developing a strategy to do so in its
NPDES Program Branch. This strategy would involve working with the
states on review criteria and compliance determination issues. Region 5
officials stated that their efforts are for the six states in their
region. They do not have responsibility to gather information on PMPs
or other activities regarding GLI implementation for New York or
Pennsylvania, which are in EPA regions 2 and 3, respectively.
Conclusions:
While GLI has limited potential to improve overall water quality in the
Great Lakes Basin because of its focus on point source pollution, it is
important that GLI's goals be achieved because they assist in the
virtual elimination of toxic pollutants called for in the GLWQA.
Several factors, however, have undermined progress toward achieving
GLI's goal of implementing consistent water quality standards. First,
EPA has taken steps to implement GLI by ensuring that states adopt GLI
standards or by issuing federal rules in the absence of state standards
but has yet to resolve long-standing issues with the state of Wisconsin
regarding the state's adoption and implementation of GLI provisions.
Second, EPA chose not to issue a mercury permitting strategy that it
committed to do in GLI, and subsequently mercury was addressed in NPDES
permits in different ways. Third, EPA's efforts to complete the
development of the GLI Clearinghouse have only recently been renewed,
reflecting a lethargic approach to implementing actions it committed to
in GLI. Finally, while EPA has made efforts to assess GLI's impact on
water quality, we believe additional efforts are needed to obtain
information on the progress in implementing GLI and on reducing
pollutant discharges from point sources in the Great Lakes Basin. In
particular, information is needed to gauge dischargers' progress in
using PMPs to address pollutants that are exceeding GLI standards.
Recommendations for Executive Action:
To better ensure the full and consistent implementation of the Great
Lakes Initiative and improve measures for monitoring progress toward
achieving GLI's goals, we are recommending that the EPA Administrator
direct EPA Region 5, in coordination with Regions 2 and 3, to take the
following three actions:
* issue a permitting strategy that ensures a more consistent approach
to controlling mercury by the states,
* ensure the GLI Clearinghouse is fully developed, maintained, and made
available to the Great Lakes states to assist them in developing water
quality standards for pollutants covered by GLI, and:
* gather and track information that can be used to assess the progress
of implementing GLI and the impact it has on reducing pollutant
discharges from point sources in the Great Lakes Basin. In particular,
EPA should consider collecting better information on the impact of
discharger programs to minimize pollutants that are exceeding GLI
standards.
In addition, we recommend that the EPA Administrator direct EPA Region
5 take the following action:
* increase efforts to resolve the disagreements with the State of
Wisconsin over the implementation of provisions to ensure the equitable
and timely implementation of GLI among all Great Lakes states.
Agency Comments and Our Evaluation:
GAO provided EPA with a draft of this report for its review and
comment. The agency generally agreed with the findings and
recommendations in the report, but stated that our draft report has
overlooked significant results or benefits of GLI, such as establishing
a consistent and scientifically sound method to derive point source
permit limits for mixtures of toxicants. We acknowledge the many
benefits of GLI in our report, however, our review focused on the
potential impact of GLI on water quality, implementation of GLI, and
the steps taken by EPA to ensure consistent implementation and
assessing progress toward achieving GLI goals. EPA also stated that
while our report recognizes that many of the Great Lakes water quality
problems are due to nonpoint sources, the benefits from GLI point
source implementation procedures are not fully recognized in the
report. Further, EPA stated that it was never expected that GLI would
address nonpoint source discharges, and it is not authorized to develop
and implement programs for nonpoint discharges. However, our report
recognizes the importance of controlling point source pollution and
that under the GLWQA of 1978, the United States and Canada agreed to a
policy of prohibiting harmful pollutants in toxic amounts and virtually
eliminating the discharge of such pollutants. GLI was an effort by the
United States to further control these substances. Moreover, as we note
above, our review focused on the potential impact of GLI on water
quality and therefore, we note as a factual matter in our report that
nonpoint sources are not addressed.
Regarding the differences in the Great Lakes states approaches to
mercury and our recommendation for EPA to develop a mercury permitting
strategy, the agency stated that some differences exist in mercury
requirements for individual facilities. However, EPA did not believe
these differences represented an unacceptable level of inconsistency
and believed that state approaches were similar. Further, EPA compares
pre-GLI standards to post-GLI standards to illustrate the consistency
in addressing mercury. While consistent standards are an expected
outcome of GLI, the guidance does not ensure consistent implementation,
particularly with the use of variances and PMPs by states in lieu of
compliance with the stringent GLI water quality standards. EPA Region 5
has issued guidance for consistency in development of PMPs by the
states for publicly owned treatment works, but states are not required
to follow the guidance, and the regional guidance does not apply to the
two Great Lakes states that are outside of the geographic boundaries of
Region 5. EPA further states that mercury variances are temporary
measures allowing time to transition to the stringent GLI standards.
However, facilities with NPDES permits can apply to have a variance
renewed with a permit renewal and, therefore, variances can be approved
by the states for a 5-year period, which may be in addition to a
previous 5-year variance. It is also not evident that time frames exist
for when facilities are to meet these stringent GLI standards. EPA
stated that a mercury permitting strategy would not improve consistency
and, rather than focusing on a strategy, it would work with the states
and provide assistance on the most effective approaches for reducing
mercury loadings by point source dischargers. The agency, however,
committed itself in the GLI to developing a strategy. An overall goal
of GLI is to have consistency among the Great Lakes states, and mercury
is clearly the most important pollutant regulated in NPDES permits.
Regarding our recommendation on the GLI Clearinghouse, EPA stated that
the Clearinghouse has a vital role to play in the GLI implementation.
In early 2005, Region 5 and the eight Great Lakes states reached
agreement for populating and maintaining the Clearinghouse. After
further information updates and revisions by EPA, the states will
review the Clearinghouse for accuracy and thoroughness, and then it
will be functional, according to EPA.
Regarding our recommendation on the need to gather and track
information to assess the implementation of GLI, EPA stated that it
will be working with the states to develop PMP oversight tools, and it
will be tracking the permits issued for mercury requirements and
biosolids data regarding trends in mercury levels. For resolving its
differences with the state of Wisconsin regarding GLI, EPA stated that
Region 5 is working with the state to resolve outstanding issues.
Further, the state is evaluating its whole effluent toxicity reasonable
potential procedures, and then EPA will work with the state to ensure
that its procedures are at least as protective as EPA's. EPA also
provided specific comments on the draft report, and we have made
changes in our report to reflect many of these comments. The full text
of EPA's comments is included in appendix III.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to appropriate Congressional Committees, the EPA Administrator, various
other federal and state departments and agencies. We also will make
copies available to others upon request. In addition, the report will
be available at no charge on the GAO Web site at [Hyperlink,
http://www.gao.gov].
If you or your staff have any questions, please call me at (202) 512-
3841. Contact points for our Offices of Congressional Relations and
Public Affairs may be found on the last page of this report. GAO staff
who made major contributions to this report are listed in appendix IV.
Signed by:
John B. Stephenson:
Director, Natural Resources and Environment:
List of Congressional Requesters:
The Honorable Mike DeWine:
The Honorable Russell D. Feingold:
The Honorable Carl Levin:
The Honorable Debbie Stabenow:
The Honorable George V. Voinovich:
United States Senate:
The Honorable John Conyers, Jr.:
The Honorable John D. Dingell:
The Honorable Rahm Emanuel:
The Honorable Vernon J. Ehlers:
The Honorable Marcy Kaptur:
The Honorable Dale Kildee:
The Honorable Ron Kind:
The Honorable Mark Kirk:
The Honorable Dennis Kucinich:
The Honorable Steven C. LaTourette:
The Honorable Sander M. Levin:
The Honorable Candice S. Miller:
The Honorable James Oberstar:
The Honorable Bart T. Stupak:
House of Representatives:
[End of section]
Appendixes:
Appendix I: Scope and Methodology:
To determine the focus and its potential to affect water quality in the
Great Lakes Basin we analyzed the published final rule on the Great
Lakes Initiative (GLI), including its methodologies, policies, and
procedures. Specifically, we reviewed the flexible implementation
procedures allowed under GLI, such as those allowed for mercury, the
most common bioaccumulative chemical of concern (BCC) regulated in
permits for point sources of pollution. We also obtained opinions on
GLI's impact from officials representing environmental organizations
that were involved in the formulation of GLI, such as the Lake Michigan
Federation and the Great Lakes Water Quality Coalition. We also
gathered and analyzed available data on the major sources of toxic
pollutants in the Great Lakes Basin from water quality permit officials
in the Environmental Protection Agency's (EPA) Region 5, and state
environmental agency officials in each of the Great Lakes states--
Illinois, Indiana, Ohio, Michigan, Minnesota, New York, Pennsylvania,
and Wisconsin. Specifically, for each state agency, we obtained
information from state National Pollution Discharge Elimination System
(NPDES) permit databases regarding the location and number of NPDES
permits covered under GLI in each state, including those permits that
included BCCs. We questioned officials knowledgeable about the data and
systems that produced them and determined the data were sufficiently
reliable for the purposes of this report. In two instances where we
noticed inconsistencies in the data, we verified with state officials
the correction of the data.
To determine the status of GLI's adoption by the states, we analyzed
the Clean Water Act, as amended by the Great Lakes Critical Programs
Act of 1990, and its requirements for the Great Lake states to adopt
standards, policies, and procedures consistent with GLI. We also
gathered and analyzed documentation from EPA on its approval process
for states' submissions of their standards, policies, and procedures
and whether they reflected GLI requirements; and we interviewed EPA
Region 5 and Great Lakes states' officials on any unresolved matters
regarding EPA's rulings on state submissions. To identify any
challenges that might exist to achieving GLI's intended goals, we
reviewed the water quality criteria established for pollutants in the
GLI, particularly BCCs, and interviewed EPA Region 5 and state
officials to determine how many pollutants covered by GLI did not have
methods and water quality criteria yet developed. We also collected and
analyzed data from officials of EPA's Office of Science Technology to
determine EPA's current efforts in developing new methods for BCCs.
To identify the steps EPA has taken for ensuring the full and
consistent implementation of GLI, we reviewed the GLI to see what
actions EPA had committed itself to taking. We obtained information
from EPA Region 5 and EPA Headquarters on the status of these
activities, such as the establishment of a database clearinghouse and
mercury permitting strategy. We collected and analyzed opinions from
several of the eight Great Lakes states on the need for these GLI
requirements and any consequences resulting from delays in their
implementation. To determine the steps EPA has taken for assessing
progress toward achieving GLI's goals, we interviewed EPA Region 5
officials on its processes for determining progress made under GLI in
improvements to water quality, including the agency's use of available
databases in this exercise, and its monitoring of the states'
implementation of GLI.
We performed our work from October 2004 to June 2005 in accordance with
generally accepted government auditing standards.
[End of section]
Appendix II: Purpose and Status of Bioaccumulative Chemicals of Concern
(BCC) Identified in GLI:
Chemical: Chlordane;
Purpose: Pesticide;
Status: Uses banned.
Chemical: 4,4'-DDD; p,p'-DDD; 4,4'-TDE;
Purpose: Pesticide;
Status: Uses banned.
Chemical: 4,4'-DDE;
p,p'-DDE;
Purpose: No commercial use;
Status: Chemical by-product--not deliberately manufactured.
Chemical: 4,4'-DDT;
p,p'-DDT;
Purpose: Pesticide;
Status: Uses banned.
Chemical: Dieldrin;
Purpose: Pesticide for crops like cotton and corn;
Status: Uses banned.
Chemical: Hexachlorobenzene;
Purpose: Pesticide, fireworks, synthetic rubber;
Status: No longer used commercially.
Chemical: Hexachlorobutadiene; hexachloro-1, 3-butadiene;
Purpose: To make rubber compounds and lubricants; used as a solvent;
Status: Still in use.
Chemical: Hexachlorocyclohexanes (HCH); benzene hexachlorides or BHCs;
Purpose: Insecticide;
Status: No longer produced or used in the United States.
Chemical: alpha-Hexachlorocyclohexane; alpha-BHC;
Purpose: One of eight chemical forms that comprise technical grade HCH;
Status: No longer produced in the United States.
Chemical: beta-Hexachlorocyclohexane; beta-BHC;
Purpose: One of eight chemical forms that comprise technical grade HCH;
Status: No longer produced in the United States.
Chemical: delta-Hexachlorocyclohexane; delta-BHC;
Purpose: One of eight chemical forms that comprise technical grade HCH;
Status: No longer produced in the United States.
Chemical: gamma-Hexachlorocyclohexane; gamma BHC or Lindane;
Purpose: Insecticide on fruit and vegetable crops. Still used as a
treatment for lice;
Status: Not produced in the United States since 1977, but is still
imported to the United States.
Chemical: Mercury;
Purpose: Metallic mercury to produce chlorine gas and caustic soda and
used in thermometers, dental fillings, and batteries;
Status: Still in use.
Chemical: Mirex;
Purpose: Control of fire ants; flame retardant in plastics, rubber,
paint, paper and electrical goods;
Status: No longer manufactured or used.
Chemical: Octachlorostyrene;
Purpose: Not available;
Status: Chemical by-product--not deliberately manufactured.
Chemical: PCBs; polychlorinated biphenyls;
Purpose: Products made before 1977 that may still contain PCBs include
electrical equipment, such as transformers and capacitors;
Status: Manufacture and certain uses banned.
Chemical: Pentachlorobenzene;
Purpose: Used to make pentachloronitrobenzene, a fungicide and used as
a; fire retardant;
Status: Still in use.
Chemical: Photomirex;
Purpose: Created from the decomposition of mirex when exposed to
sunlight;
Status: Chemical by-product--not deliberately manufactured.
Chemical: 2,3,7,8-TCDD; dioxin;
Purpose: Formed during chlorine bleaching process at pulp and paper
mills, during chlorination by water treatment plants, and are released
in emissions from municipal and industrial incinerators;
Status: Chemical by-product--not deliberately manufactured.
Chemical: 1,2,3,4-Tetrachlorobenzene;
Purpose: Used as a dielectric fluid and as an organic intermediate;
Status: Still in use.
Chemical: 1,2,4,5-Tetrachlorobenzene;
Purpose: Used as an intermediate or building block to make herbicides,
insecticides, defoliants, and other chemicals;
Status: Still in use.
Chemical: Toxaphene;
Purpose: Insecticide primarily used on agricultural crops and livestock
and to kill unwanted fish in lakes;
Status: Banned.
Sources: GAO, EPA, and the Agency for Toxic Substances and Disease
Registry, Center for Disease Control.
[End of table]
[End of section]
Appendix III: Comments from the Environmental Protection Agency:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
OFFICE OF WATER:
WASHINGTON, D.C. 20460:
JUL 19 2005:
Mr. John B. Stephenson:
Director:
Natural Resources and Environment:
U.S. Government Accountability Office:
Washington, DC 20548:
Thank you for the opportunity to review and comment on the Government
Accountability Office (GAO) draft report Great Lakes Initiative: EPA
Needs to Better Ensure the Complete and Consistent Implementation of
Water Quality Standards (Report). This letter provides EPA's comments
and perspectives on the Report, and characterizes how we would address
each of its recommendations.
I am particularly concerned, however, that the Report fails to
effectively consider the significant results of the Great Lakes
Initiative (GLI) which include:
* The GLI has advanced the science of surface water protection (e.g.,
wildlife criteria, bioaccumulation factors) resulting in more
scientifically rigorous and consistent water quality criteria and
implementation procedures across the Great Lakes states.
* The GLI Tier 2 methods allow States and Tribes to control hundreds of
pollutants that would not otherwise have been regulated because of the
lack of data to derive criteria.
* The GLI, for the first time, established a consistent and
scientifically sound method to derive point source pen-nit limits for
mixtures of toxicants.
As the Report recognizes, many of the Great Lakes water quality
problems are due to nonpoint sources, including air deposition. The GLI
stems from the Great Lakes Critical Programs Act (GLCPA) and the Clean
Water Act (CWA). Since neither the CWA nor the GLCPA authorize EPA to
develop and implement permitting programs for nonpoint source
discharges, it was never expected that the GLI would address those
sources of pollution. Instead, it was recognized that states would need
to continue to rely on their own authorities to regulate these sources
to achieve water quality standards.
The benefit of the point source implementation procedures in the Great
Lakes System is not fully recognized in the Report. Point source
contributions of pollutants to the Great Lakes have been reduced over
the years. The implementation procedures of the GLI lock in this
progress. Part of the purpose of the GLI was to reduce inconsistencies
between states and to fonnalize these requirements in regulations to
ensure a level playing field for all Great Lakes states and to prevent
erosion of this progress.
Another conclusion of the Report is that an undue level of
inconsistency remains among the states in implementing GLI,
particularly for mercury. EPA acknowledges there are some differences
in mercury requirements for individual facilities, but does not believe
the differences amount to an unacceptable level of inconsistency. Some
differences in mercury limits result from the normal development and
derivation of applicable effluent limits. However, even when variances
are factored in, EPA believes the different state approaches result in
very similar effluent limits. Finally, I would emphasize that the
relief mechanisms (e.g., variances, compliance schedules, and mixing
zones for bioaccumulative pollutants) discussed in the Report are
temporary. The purpose of these relief mechanisms was to allow time for
transitioning to more stringent post-GLI requirements.
The Report notes that EPA has not assessed the effectiveness of
Pollutant Minimization Programs (PMPs) in reducing mercury loadings.
EPA acknowledges the recent focus on the guidance for PMP development
to ensure consistency in the structure and content of these programs.
EPA Region 5 will develop a regional review process for these programs.
Region 5 has also gathered baseline data and will track the effects of
PUT implementation on mercury levels in biosolids and effluents.
EPA Responses to GAO's Recommendations:
The need for a mercury permitting strategy. In developing the GLI, EPA
noted a range for mercury criteria in state water quality standards
from 500 to 2400 parts per trillion (ppt). After GLI, all states across
the basin have wildlife criteria of 1.3 ppt (three orders of magnitude
lower than the previous criteria). Although there are some minor
differences among mercury criteria for human health and aquatic life,
the level of protection is the same across states. EPA believes there
is a high level of consistency in mercury criteria among the Great
Lakes states.
GAO focuses on differences among permit limits that are derived from
water quality standard variances, noting that limits based on variances
may range from 12-30 ppt, a difference of 18 ppt. If limits were
derived directly from the pre-GLI criteria, they would range from 500
to 2400 ppt (or greater if a state used mixing zones and dilution pre-
GLI). Thus, EPA regards the post-GLI range to be significantly smaller
than the pre-GLI range. EPA believes that even with variances, states
will have very similar mercury controls. At least four of the states
establish a process for setting variance-based limits based on a lowest
achievable concentration that will be within a few parts per trillion
of each other. They also require PMPs to move permittees towards the
water quality based effluent limits that would apply in the absence of
a variance. The activities needed to reduce mercury loadings to and
from publicly owned treatment works will be essentially the same across
the region, regardless of the calculated lowest achievable
concentration. EPA believes that a permitting strategy would not be
effective in improving the consistency of mercury permit limits.
Rather than focusing on a permitting strategy, Region 5 states have
requested assistance and support for implementation efforts, such as
evaluating and determining compliance with PMPs, and assessing the most
effective approaches for reducing mercury loadings by point source
dischargers. EPA will continue to work with the states on these
matters, and to provide oversight regarding proper implementation of
mercury requirements in state-issued permits.
The need to ensure the GLI Clearinghouse is fully developed,
maintained, and made available to the states. EPA agrees that the
Clearinghouse has a vital role to play in GLI implementation. All eight
states currently have access to the information in the Clearinghouse.
EPA Region 5 periodically updates the states and EPA Regions 2 and 3 on
revisions to the Clearinghouse and requests input from them, where
necessary. The Clearinghouse currently has Tier 1 criteria for almost
60 pollutants and Tier 2 criteria for almost 200 chemicals. In early
2005, EPA Region 5 and all eight Great Lakes states agreed to an
approach for jointly populating and maintaining the Clearinghouse. EPA
is currently updating the information in the Clearinghouse and is
making minor revisions to its structure. After all eight states review
the Clearinghouse content for accuracy and thoroughness, the
Clearinghouse will be functional.
The need to gather and track information that can be used to assess the
progress of implementing the GLI and the impact it has on reducing
pollutant discharges from point sources in the Great Lakes Basin. EPA
agrees this is an important goal. With respect to mercury, we will be
working with the states to develop PMP oversight tools, and will be
tracking pen-nit issuance with mercury requirements, as well as
effluent and biosolids data regarding trends in mercury levels. As we
develop these tools and approaches, we agree that additional
quantitative measures of progress should be considered.
In addition, we recommend that the EPA Administrator direct EPA Region
S to increase efforts to resolve the disagreements with the state of
Wisconsin over implementation of provisions that EPA found inconsistent
with the GLI to ensure the equitable and timely implementation of GLI
among all the Great Lakes states. Region 5 is working with Wisconsin to
resolve the outstanding issues. The Wisconsin Department of Natural
Resources (WDNR) is developing a rule package to correct the errors in
aquatic life criteria for four pollutants. WDNR is evaluating its whole
effluent toxicity reasonable potential procedures to detennine what
changes are necessary to assure the procedures are at least as
protective as EPA's procedures. Region 5 will work with WDNR to resolve
requirements for intake credits; to date we do not believe that these
have had a practical effect on permit determinations in Wisconsin.
I appreciate the opportunity to comment on this Report. I hope you will
consider these comments as you prepare the final report. If you have
any questions or would like additional information, please do not
hesitate to contact me or Ms. Jo Lynn Traub, Director of Region 5's
Water Division at (312) 353-2147.
Sincerely,
Signed by:
Benjamin H. Grumbles:
Assistant Administrator:
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
John Stephenson (202) 512-3841 ([Hyperlink, stephensonj@gao.gov]:
Staff Acknowledgments:
In addition to the individual named above, Kevin Averyt, Greg Carroll,
John Delicath, John Wanska, and Amy Webbink made key contributions to
this report.
(360515):
FOOTNOTES
[1] EPA has interpreted the term "consistent with GLI" to mean as
environmentally protective as GLI. The Court of Appeals for the D.C.
Circuit has upheld this interpretation as reasonable under the Clean
Water Act. American Iron and Steel Inst. v. EPA, 115 F.3d 979 (D.C.
Cir. 1997).
[2] Major dischargers include municipalities with capability to
discharge greater than one million gallons per day and certain
industrial facilities based on ratings by EPA and the states.
[3] 60 Fed. Reg. 15366 (Mar. 23, 1995).
[4] The Clean Water Act established the Great Lakes National Program
Office within EPA, charging it to, among other things, develop and
implement specific action plans to carry out responsibilities under the
GLWQA.
[5] TMDLs are limits for identified pollutants in impaired water bodies
identified by the states as required by the Clean Water Act.
[6] The U.S. Policy Committee is a group of senior level
representatives from federal, state, and tribal government agencies
with environmental protection or natural resource responsibilities in
the Great Lakes Basin.
[7] The information presented is based on data reported from Great
Lakes states' permit officials. The states of Illinois, Pennsylvania,
and Wisconsin reported that none of their permits in the Great Lakes
Basin establish discharge limits for BCCs.
[8] Variances may be renewed along with the renewal of a NPDES permit,
which may be issued for up to 5 years.
[9] A quantification level is the lowest concentration of a contaminant
that can be quantitatively measured using a specific laboratory
procedure.
[10] Final Water Quality Guidance for the Great Lakes System:
Supplementary Information Document (SID), EPA, 1995, 820-B-95-001.
[11] EPA's initial 1995 mixing zone provision under the GLI was vacated
by the U.S. Court of Appeals for the District of Columbia Circuit in
American Iron & Steel Institute v. EPA, 115 F.3d 979 (D.C. Cir. 1997)
and was remanded to EPA for further consideration. EPA promulgated a
final rule in 2000 in response. 65 Fed. Reg. 67638 (Nov. 13, 2000).
[12] The Lake Michigan Federation changed its name to the Alliance for
the Great Lakes, effective April 14, 2005.
[13] None of the states with rules promulgated by EPA have amended
their rules and regulations to resolve inconsistencies; and there is no
requirement that they do so, as long as they are following the EPA
promulgated rules. However, Michigan and New York are attempting to
change their rules and regulations to have the federally imposed GLI
requirements withdrawn.
[14] New facilities constructed after 1997 are not eligible for
variances under GLI.
[15] Memorandum Report: EPA Should Take Further Steps to Address
Funding Shortfalls and Time Slippages in Permit Compliance System
Modernization Effort, EPA, OIG Rpt. No. 2003-M-00014, May 20, 2003.
[16] TRI is a database that contains information on releases and
transfers of certain toxic chemicals from industrial facilities, and
waste management and source reduction activities.
[17] POTWs collect wastewater from homes, commercial buildings, and
industrial facilities and transport it via a series of pipes, known as
a collection system, to the treatment plant. POTWs remove harmful
organisms and other contaminants from the sewage so it can be
discharged safely into the receiving stream. Generally, POTWs are
designed to treat domestic sewage only. However, POTWs also receive
wastewater from industrial (nondomestic) users.
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