The United States Environmental Protection Agency (EPA) has removed provisions to eliminate and phase out mixing zones for bioaccumulative chemicals of concern (BCCs) from the Great Lakes Water Quality Initiative (GLI). EPA also amended a procedure in the GLI to clarify that EPA will not impose effluent limits for internal facility waste streams.
Notice of the amendments to the GLI was published in the Federal Register on April 23, 1998. The amendments became effective immediately.
The actions follow the 1997 ruling by the United States Court of Appeals for the District of Columbia Circuit in American Iron and Steel Institute v. EPA (AISI), 115 F.3d 979, which struck down EPA's ban on, and phase out of, mixing zones in the GLI. In that decision, the court vacated provisions in the GLI eliminating mixing zones for BCCs. A mixing zone is the area just downstream of a discharge point where the discharge mixes with the receiving water. Typically, where the permitting authority has authorized a mixing zone, the permittee's compliance with the applicable water quality standards is assessed at the edge of the zone, subject to some exceptions.
EPA issued the GLI in March 23, 1995, under the federal Clean Water Act (CWA). The GLI includes water quality criteria which set maximum ambient levels for pollutants in the Great Lakes. Under the GLI, no new mixing zones were to be granted for new discharges of BCCs after March 23, 2007, and existing mixing zones would be phased out for existing discharges of BCCs after March 23, 2007.
In AISI, industrial groups challenged the ban and phase out of mixing zones, claiming that EPA had failed to adequately consider the costs of the provisions. EPA had estimated that the total cost of eliminating mixing zones for BCCs in the entire Great Lakes Basin would be $200,000. The petitioners, however, demonstrated that just one town, Owosso, Michigan, would incur $300,000 in costs to remove mercury from its sewage discharge in response to the mixing zone ban. The petitioners argued that the elimination of mixing zones for BCCs would not significantly reduce pollutant loadings to the Great Lakes but would inflict costs upon industry that are excessive in relation to the degree of pollution reduction achieved.
The court agreed, finding that "EPA appears to have adopted a cost estimate that can only be described as fanciful," and remanded the mixing zone provision to afford EPA the opportunity to demonstrate that the measure was cost-justified.
In its April 23, 1998 notice, EPA stated that its removal of the mixing zone provisions was in accordance with the court's decision. At the same time, however, EPA expressed its continued support for a mixing zone ban and stated that it intends to propose reinstating the provisions "in the near future." It also reminded states that, in the interim, they may adopt their own mixing zone elimination and phase-out provisions.
Under the GLI, authorized states were required to adopt rules consistent with the GLI's criteria and implementation procedures by March 23, 1997. Michigan adopted its GLI rules in July 1997. As required by the original version of the GLI, Michigan's rules contain mixing zone ban and phase-out provisions. Michigan reportedly does not plan to remove the mixing zone ban and phase-out provisions in its rules despite the AISI opinion and EPA's removal of the mixing zone provisions from the GLI.
In addition to removing the mixing zone ban and phase-out provisions, EPA amended a portion of the GLI that required internal monitoring of components of discharges where water quality based effluent limitations (WQBELs) are lower than levels that can be reliably detected at the facility discharge point. In the AISI case, the court held that this provision of the GLI exceeded EPA's authority under the CWA by improperly imposing effluent levels on internal waste streams. The court also held that this provision impermissibly interfered with each permittee's ability to choose for itself the best method of controlling pollutants within the facility before they are discharged. The AISI court upheld, and the GLI retains, provisions requiring the imposition of monitoring and reporting requirements for internal plant waste streams.
EPA stated that it never intended the GLI to impose internal WQBELs on internal waste streams, but that it decided to amend the provision to address the court's concerns and eliminate any ambiguity about how EPA intends to interpret the provision. In its amendments, EPA clarified that WQBELs would not be imposed on internal waste streams and stated that permittees retain the ability to decide how to comply with permit limits.
63 Fed. Reg. 20107 (April 23, 1998).
This article was prepared by Kenneth C. Gold, a partner in our Environmental Department, and previously appeared in the June, 1998 edition of the Michigan Environmental Compliance Update, a monthly newsletter prepared by the Environmental Department and published by M. Lee Smith Publishers.