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Friday, June 13, 1997
Court Rules in Favor of EPA in GLI Lawsuit
The District of Columbia Court of Appeals, in a June 6 opinion, upheld EPA's authority to require states to impose a number of new water quality regulations on industrial and municipal toxic pollution sources under the Great Lakes Water Quality Initiative (GLI). Various industry groups, including the American Iron & Steel Institute and Great Lakes Water Quality Coalition, sued EPA over the guidance last year. AMSA had also been a party to the lawsuit but withdrew from the case in March 1996 following EPA issuance of clarifications to the guidance that addressed nearly all of the Association's concerns regarding flexibility in implementing the guidance in a cost-effective manner by tailoring solutions to local conditions.
The industry groups basic arguments included: EPA issued the guidance as a binding regulation; EPA wrongfully interpreted the law as allowing the Agency to require Great Lakes States to develop water quality standards, antidegradation policies, and GLI implementation procedures that are "consistent with" those in the guidance; EPA exceeded its authority by establishing uniform basin-wide criteria; and the guidance unlawfully restricts state authority because it only allows less-stringent, site-specific wildlife criteria when states can establish that bioaccumulation at a particular location is lower that elsewhere.
A summary of the court rulings include:
Upheld EPA in the central issue of the case relating to whether Section 118 of the Clean Water Act authorizes the Agency to issue the guidance as a regulatory mandate or limits use of it as an informal advisory document for states.
Rejected industry's argument that EPA exceeded its authority by establishing uniform basin-wide criteria. The ruling noted that establishing uniformity across the Great Lakes was one of the primary purposes of the statute.
Rejected industry's argument that EPA should allow site-specific criteria on other grounds when states can establish that bioaccumulation at a particular location is lower than elsewhere.
Upheld guidance provisions that require permitting authorities to establish an effluent limit for a pollutant when a discharge of the pollutant has a "reasonable potential" to cause a violation of a water quality standard.
Overturned the guidance's pollutant minimization program which would have regulated internal waste stream discharges from certain industrial facilities.
Remanded to EPA whether elimination of bioaccumulation chemical of concern (BCC) mixing zones is cost-effective.
Concluded that several issues were "unripe" for an opinion, including whether dischargers should be regulated for a return of pollutants to the body of water from which they were withdrawn.
TMDL Advisory Committee Reviews Options
This past week, EPA's Total Maximum Daily Load (TMDL) Advisory Committee met for 2 ½ days in Milwaukee, Wisc. to review options being developed by its four workgroups to improve management and implementation of the TMDL program. Since the Committee's last meeting in February, the four workgroups; listing, criteria for approval, management and oversight, and science & tools, have been developing five papers which summarize each phase of the TMDL process, highlight "hot button" issues, and propose options for program improvement. In its discussions, the Committee did not come to final consensus on any one issue; however, general or majority agreement was reached on a number of concepts, and several issues were delegated back to the workgroups for further discussion and refinement.
Issues highlighted in the discussions included: whether to include "threatened" waters on 303(d) lists; whether EPA review and approval are required for TMDLs developed for waters impaired by nonpoint sources only; when waters should be removed from 303(d) lists; priorities for science & tool development which include monitoring, modeling, training, and decision-making under uncertainty; conceptual agreement on a 7-step hierarchial approach to TMDL approval; and whether identification of implementation measures must be part of a TMDL. The next meeting will be held Sept. 3-5 in Portland, OR.
Summer Conference Reminder . . . Members who have not yet registered for the Summer Conference in Seattle, WA are reminded that the hotel cutoff date for registration at the Madison Renaissance is June 23.