EPA Great lakes Guidance Hits a Squall Despite ground-breaking science, the new Great Lakes Water Quality Guidance faces an uncertain future. REBECCA RENNER
A
fter years of study, debate, and revision, EPA released this spring the final version of one of its most ambitious rulemakings: the Great Lakes Water Quality Guidance. As EPA’s first attempt to address water quality on a regional, basinwide basis, it paves the way for similar effortsfor the Gulfof Mexico and other water bodies. It also contains groundbreaking new methodologies for calculating the impact of bioaccumulative chemicals and presents a two-tiered ranking system for addressing data uncertainty. However, this innovative rule, aimed at setting up and enforcing consistent, science-basedwater quality standards to protect human health, aquatic life, and wildlife across the Great Lakes watershed (11, is already caught in a tangle of legal and legislative challenges. As with many environmental regulations,opposition centers on implementationprovisions, which are a small part of the vast initiative hut control industrial permits and enforcement decisions. The House of Representativeshas already prepared draft legislation to limit the initiative’s authority, and industry groups are challenging the rule in the courts. Even the Council of Great Lakes Governors, an initial supporter of a basinwide regulatory system, has refused to endorse the final version. Cost effectivenessis the major concern, according to industry and the governors. The Great Lakes Water Quality Coalition, an association of more than 100 businesses and municipalities,is considering litigation;it claims that despite softening of a 1993draft guidance the fmal rule imposes unnecessary and excessive costs on businesses and cities. The governors contend that by focusing enforcement on industrial discharges the rule attacks the wrong target, because industrial discharges, already highly regulated, are a relatively minor source of toxic contamination in the Great Lakes. “While the [Great Lakes Initiative] is targeted at reducing toxics from all sources, the implementation procedures affect pri4 16 A m
VOL. 29. NO. 9, 1995 I ENVIRONMENTAL SCIENCE 8 TECHNOLOGY
marily point source discharges,”the governors wrote to EPAAdministratorCarol Browner in March. “This goes against the idea of relative risk and achieving the most cost-effective environmental improvement,” they continued. Key to the governors’ skepticism was a cost effectiveness report on the draft prepared for the Council of Great Lakes Governors by DRI/McGraw Hill, economic analysts based in San Francisco, CA.The benefits of the guidance would he limited,the report concluded,in part because “the nonpoint sources, including contaminated sediments, atmospheric deposition, and leaking waste disposal sites, contribute a far greater share of these toxins than point sources contribute” (2). Although EPA disputes the DRIlMcGraw Hill report, many Great Lakes researchers also believe that tightening restrictions on industrial discharges will have only a small impact on water quality. “The Guidance will not have a significant effect on historical compounds,” says John Giesy, making a distinction between the problem of toxic compoundsused without care in the past and new compounds that could prove to he toxic. But Giesy, of Michigan State University’s Department of Fisheries and Wildlife, also insists that the Coalition’s criticism misses the point. “The Guidance uses the best scientific methods we have for screening compounds, and with the large amount of existing and future compounds, we need it,” he says. “As for point source regulation, it makes sense to first regulate the things we h o w and can control-the point sources.” In fact, the water quality goals apply to all Great Lakes waters regardless of the pollution source, says James Hanlon, Deputy Director of the EPA Office of Science and Technology. And even though the implementation regulations apply mostly to industrial and municipal water discharges, a state can improve water quality by reducing air emissions or cleaning up contaminated sediments and applying the reductions to point discharges. “Regulations would he misguided if they forced expensive tech0013-938w9510929-41809 0010 0 1995 American Chemical Society
nology on a minor discharge while ignoring significant diffuse sources,” Hanlon says. “That is neither the aim nor the intention of the Guidance.” This built-in trade-off between point and diffuse sources means that if a state shows that a diffuse pollution source will be cleaned up to reduce the total burden of a pollutant, or Total Maximum Daily Load (TMDL),then the state can use this reduction to give an industrial discharger flexibilityin compliance. This trade-off is known as a “phased TMDL“ because the contributions to the total load change over time. Many state officials welcome phased TMDLs as a major improvement in addressing significant sources of diffuse contamination. Ohio EPA Division of Surface Water Assistant Chief Ava Hottman says, “This is very important because it can provide some relief to dischargers and allow states to not hold point sources solely responsible.”
egulating the “freshwater oceans” Great Lakes system acts as a sink for persistent pollutants,son hich, mainly organochlorines and mercury, also bioaccumulate. le
JPERIOR
MICHIGAN
HURON
aximumdepth 1.33Oft Maximum depth:923ft Maximum dep ‘ea water: 31,700 sq. mi. Area water: 22.300 sq. mi. Area water: Z !tention time. 17Rvrr Retontion fimn.R?vrs Retention timt ERIE
Maximum deF
Economic and environmental importance Although disagreements about the Guidance abound, there is no doubt about the economic and environmental importance of the Great Lakes. The largest kshwater ecosystem on Earth, the lakescontain onefifth of the planet’s fresh surface water and 95% of U.S. fresh surface water. But despite their great size, the lakes act as a sink for persistent pollutants, some of which, mainly organochlorines and mercury, also bioaccumulate. And although toxic contamination has dropped substantially, current levels still pose a threat to the health of humans and wildlife (1). Awareness of these threats combined with Great Lakes states’ desire for a consistent process for issuing discharge permits led to the genesis of the Guidance in the late 1980s. In 1989 EPA Region V started the Great Lakes Water Quality Initiative as a cooperative effort involving states, academics, industq municipalities,environmentalgroups, and EPA (3).Since the Guidance’s inception, however, Great Lakes governors’ concern about EPA oversight has grown, says AUegra Cangelosi, a senior analyst with the Northeast-Midwest Institute, a nonprofit public policy research center. Cangelosi, who coordinates a congressional task force of House and Senate members from Great Lakes states, says governors now fear the Initiative will be used by EPA as a club to shape state water regulations, rather than as a means to ensure that the regulations are consistent and protecuve. Despite this change, Hanlnn says EI’A views the cooperative effort that produced the tiuidance as a model for future activities. And the Guidance’smajor scientific innovations-methodologies for handling bioaccumulationand data UnCertainty-Will be used nationally, he says. But. he cautions, “Thispackage was developed for Great Lakes problems. We
would never try to apply it directly to another watershed. The problems are all different and need to be studied and treated differently.” The eight Great Lakes states-Illinois, Indiana, Michigan, Minnesota, NewYork, Pennsylvania,Ohio, and Wisconsin-have two years to determine what changes to their existing regulations are necessary to conform with or be “as protective as” the Guidance. These interpretations are then subjected to a series of examinations that include public debate and review and revision by various nonpartisan committees. “This is more than just numerical standards,” says Jim Rosakis, acting regional dkctor of the Pennsylvania Department of Environmental Resources and leader of the state’s review. ‘“It’sabout how we translate the guidance into permit limits.” The Guidance breaks new regulatory ground with its treatment of uncertainty, bioaccumulation, and the inclusion of water quality standards to protect wildlife. Great Lakes state regulationshave varied, in part, because the analysis of available data led to many differentinterpretations,accordingto Joan Karnauskus, EPA Region V. This was particularly true when data were limited. Now thekuidance speci. fies differentmethodologies lo evaluate available data: Tier I for abundant data and Tier II for more limited data. lnformationon Tier I1chemicals will be updated through an innovation called the Initiative Clearing House. a database to keep states up to speed with changing research knowledge. The new bioaccumulation methodology proVOL. 29, NO. 9.1995 i ENVIRONMENTAL SCIENCE &TECHNOLOGY
4t7 A
hdustries work,” she says. The controversy is particularly intense because “there are too many amPoint sources versus umse sources ot biguities in the rule. We have to keep consulting an additional 500-page supplementary document just contamination to try to interpret the rule.” EPA has sufficient information ta estimate basinwide loadings fo But what Hottman labels ambiguous, EPA calls four contaminants:mercury, lead, cadmium, and PCBs. These diiuse source llexible. Defending the Guidance, EPA says it offers estimates are compared with point source er P based on the Perbuilt-in “off-ramps”so states can provide relief to mit Compliance System. point source dischargers.But many of the groups affected by the Guidance are skeptical. “Our memPoint ooum Difhne wurce .’oint source loadings bers have been looking for solid ‘off-ramps’since the Pollutant W n q s (k&d loadiis (k@) contribution (%) tinal version was published, but they haven’t had Mercury 347 3970-13.9ffi 7.547 much success in finding them,” says Coalition ExLead 53,322 425.955-858,! i.2-12! ecutive Director Richard Rue. Rosakis agrees: “The Cadmium 14,646 effectiveness of the off-ramps is a subjective deciPCBS 54 1411-3269 sion. Of course the words are there, but they are subSource: US. Environmental ProtectionAgency. “ R e g ~ l b 8EsiymbL . ~ ~ Nn ject to interpretation.The real test will be in two years’ final Great Lakes Water Qualm, Guidance.” March 1995. time when the states write the rule.” During the draft’s five-month comment period, EPA received more than 26,500 pages of comments vides a framework for calculating wildlife and hu- from some 6000 commentators, most of whom adman health standards.These are the first federal stan- dressed pennits and enforcement. The DFWMcGrawdards to protect mammals and birds from long- Hill analysis added fuel to the fire, identifying sevterm exposure to mercury, PCBs, DDT, and dioxin. eral provisions estimated to involve great cost but F’reviously states and EPA generally have used biocon- little benefit. These included the treatment of incentration figures that consider only pollution up- take water and discharges, provisions to preserve extake from water, not through the food chain. isting clean water, and the wildlife standard for merTo calculate water quality standards for com- cury. Concerning mercury, the report said the pounds that bioaccumulate, the Guidance incorpo- standard was set well below current limits of detecrates bioaccumulation factors (BAFs). Although field tion and was an attempt to “reduce concentrations measurements are preferred, the Guidance sets up of this naturallyoccurring element below levels found a hierarchy of estimated BAFs. Lab measurements to- in pristine conditions” (2). gether with a food-chain multiplier are the next opIn reaction, EPA modified all of these provisions. tion, but BAFs can also be calculated using a bioac- “The changes from draft to final version introduce cumulation model and a measure of a chemical‘s an element of realism,” says Al Bromberg, in charge hydrophobicity. However, research in this field is of New York state’sreview of the Guidance. changing so rapidly that the model incorporated in The changes also result in lower cost estimates. the draft guidance has been replaced by a new one EPA cost estimates for the draft version ranged from in the final version (4). Although this methodology $300 million to $640 million annually, whereas DIU/ can be applied to any chemical, the Guidance sin- McGraw-Hill’s estimate varied from $710 million to gles out 22 chemicals, mainly organochlorines and $2.3 billion for the worst case. EPA’s final-version esmercury, as bioaccumulative chemicals of concern. timates are $60 million to $376 million, depending Even though these new methods represent the on how the states choose to implement the rule (6). cutting edge of water management policy, critics ar- EPA attributes the bulk of these reductions to new gue that the science supporting them has not been provisions for intake water quality and the use of disfully developed. “This has resulted in the applica- solved-metals analyses instead of total-metals analtion of multiple safety factors and the setting of ex- yses when setting criteria standards.The change from tremely collservative Eer 11 values,” accordingto Dale total-metalsanalyses to dissolved-metalsanalyses rePhenicie, chair of a task force established by the in- flects a change in national policy, Hanlon says. “Disdustry-municipality coalition, speaking at a 1994 solved metals are the most bioavailable, so that is House subcommittee hearing (5). Many state offi- what we will be looking at.” cials, however, welcome the approach. “There is a However, EPA says the earlier plan would have cut huge body of scientific evidence about the bioaccu- pollution entering the lakes by up to 10.1 million mulation of toxic compounds, and it’s time for the “pound equivalents” of pollution a year (a pound regulations to take this into account,” says Rosakis. equivalent equals the toxicity of a pound of copper). The final plan is expected to cut up to 7.6 million pound equivalents. Discharges are projected to From ”guidance” to permits Scientific controversy over the Guidance centers on be just over 35 million toxic pound equivalents per its new methodologies and whether it targets the year when the Guidance is implemented in 1997. most significant pollution sources. But implemenIntake procedures, possibly the single most extation, or how the Guidance’s numbers are trans- pensive aspect of the draft Guidance, have atlated into permits and enforcement, has proven to tracted the most concern, with fears arising that inbe the most contentious topic since a draft was re- dustry will be forced to clean dirty water that merely leased in April 1993.Ohio’s Hottman says implemen- passes through a plant for purposes such as cooltation is the hot spot for two reasons. “This is where ing. However, this concern is misplaced, according permit limits are born, and permit limits affect how to Hanlon. “Simple pass-through having no con4 18 A
.
VOL. 29. NO. 9,1995 I
ENVIRONMENTAL SCIENCE & TECHNOLOGY
tact with a plant’s processing operations has never been subject to restrictions in any verireat lakes Water Quality Guidance: sion of the Guidance,”he says. In situations in Bioaccumulative Chemicals of Concern (BCCs) which water does come into contact with processing operations but there is “no reasonable potential” to cause specific contamination, he says, there is also no restriction-for instance, in instances in which an industry works with metals but the pollutant of conPentachlorobenzen cern is a pesticide. But intake water still becomes a problem in Polychlorinated biphenyls (PCBs the eyes of the Coalition when a manufacturHexachlorocyclohexane (BHC) 2.3.7.8-TCDO (Dioxin) ing process creates a specific contaminant and a-Hexachlorocyclohexane (a-BHGi 1.2.3,4-Tetrachlorobenzene treats its waste stream to reduce this contamp-Hexachlorocyclohexane (p-BHC) 1.2.3.5-Tetrachlorobenzene < , I ination. Under the draft guidance, the water yclohexane IC n‘c”‘ leaving the plant must meet water quality standards for the suecific Dollutant. a s could require operators to treat exiting water to levels cleaner Hill also is conducting a follow-up study to examthan when it came into the plant. The final version ine the impact of the revised Guidance. gives states 10years after implementation to put this The Great Lakes Water Quality Guidance is an amlast practice into place, however. bitious, ground-breaking endeavor. The first water quality regulation to tackle the problems of an entire region, it also introduces a new sdence-based apNew mercury standard Perhaps the largest numerical change from the draft proach to establishing water quality standards. Yet to the 6nal Guidance is the wildlife criterion for mer- its major rational-benefits to humans, aquatic life, cury. The final value, 1.3 pptr, is more than 7 times and wildlife--may be undermined by cuuent scienthe draft d u e of 0.18pptr. But the new value is still tific research on the causes of Great Lakes pollubelow the detection limitsfor routine laboratoryanal- tion as well as antiregulatory fervor. “We’re at the ysis, which has drawn complaints from industry and point where we don’t know enough about the overmunicipalities. “The limits are unrealistic,” says an all contamination in the Great Lakes to say which indusiq consultant. “Theymake false positives a sig- somes are most important,”says one researcher. “But nificant problem.” On the other hand, many states within two years, we’ll be trying to tackle contamialready have such standards in place, says Jim Grant, nation from the atmosphere and sediments. Those who represented Michigan throughout the Guid- are the tough problems.” ance development process. “We set up the permit so that the value for compliance evaluation is the level References of detection. Then we put in other conditions to en(11 “Great takes Water Quality hitiative, A Summary”; US. courage the industry to minimize or prevent poUuEnvironmental Protection Agenqr Washington, DC, 1995; EPA-820-S-95-001. tion. Such standards do not require exotic technol(2) DRIIMcGraw-W. “The Great Iakes Water Quality IniIiaogies,” he says. five. CoSf-PfTective Measures To Enhance Emimnmental As a major new environmental rule, the GuidaualityandFegonalCo&~nes3”; Repttpreparedror ance has not escaped notice from the antiregulacouncil Of Great lakes Governors; September 1993. tion proponents in Congress. Wisconsin Republi- (31 Donahue, M. I.. Great lakes Commission executive director, prepared statement to House of Representatives can RepresentativeThomas Petri recently succeeded Committee on Merchant Marine and Fisheries. “Overin amending the Clean Water Act reauthorization to sight of the Great lakes P r o m and Its Applicabilityto other Regional pmgrams”;March 24,1994; Serial No.103give states more discretion in applying the Guidt Office: Washington, DC, 98; U.S. G ~ e r n m e n Printing ance. The Petri amendment declares that a state’s pol1994. icies will be considered consistent with the Guid- (4) Gobas, FAEC. Ecol. Model. 1993.69, 1-17. ance if they are based on scientifically defensible (51 Phenicie, D., Great lakes Water Quality Coalition Environmental Policy Advisory Group Chair, prepared statejudgments and provide an overall level of protecment to House of Representatives Committee o n Mertion comparable with the Guidance. chant Marine and Fisheries. “Oversightof the Great lakes EPA hopes to follow the Guidance with a toxics Program and Its Applicability to Other Regional Programs”;March 24, 1994; Serial No. 103-98: US.Governreduction program focused specifically on nonment printing Office: Washington, DC, 1994. point sources, despite the current regulatory re(61 ‘‘Regulatory Impact Analysis of the Final Great lakes Waueat. In the meantime, active research, including an ter Quality Guidance”; US. Environmental Protection Agency:Washington. DC, 1995: EPA-820-8-95-011. EPA-sponsored mass balance study of Lake Michigan scheduled to produce results within two years, continues to address the significanceof point somes R e h Renner is a@!nnce science uniter based in wilversus diffuse sources of pollution. DRI/McGraw- liamsport, PA. LI
-.-.
VOL. 29.
NO. 8,19951 ENVIRONMENTAL SCIENCE &TECHNOLOGY rn 419 A
