Great Lakes Initiative: EPA Needs to Better Ensure the Complete and Consistent Implementation of Water Quality Standards
Published: 2005-07-27T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: 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. 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.
subsections: section_title: Background
paragraphs: The Great Lakes and their connecting channels form the largest system of  freshwater on earth. 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.
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.
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. 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.
section_title: Great Lakes Initiative Has Limited Potential to Impact Overall Water Quality
paragraphs: 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.
subsections: section_title: GLI’s Primary Focus Is on Point Sources Which Are Not the Major Source of Many Toxic Pollutants
paragraphs: 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. 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.
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.
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. 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. 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.
section_title: Few Permits Contain Limits for Toxic Pollutants, and Many Toxic Pollutants Are Already Restricted or Banned
paragraphs: 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. 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.
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.
section_title: Many NPDES Permits Allow for Dischargers’ Mercury Pollutant Levels to Exceed GLI Standards
paragraphs: 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. 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. 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.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.  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.
section_title: States Have Largely Completed Adopting GLI Standards in Their Regulatory Programs, but Measuring Some Pollutants at GLI Levels Is a Significant Challenge
paragraphs: 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.
subsections: section_title: Great Lakes States Have Generally Incorporated GLI Provisions into Their Regulations and NPDES Programs
paragraphs: 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. 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.
section_title: Unresolved Matters Affecting Full GLI Adoption Remain in Several Great Lakes States
paragraphs: 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.
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. 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.
section_title: GLI Has Provided Benefits but the Inability to Measure Pollutants at Low Levels Is a Significant Challenge
paragraphs: 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.
section_title: EPA Has Not Ensured Consistent Implementation of GLI Standards or Taken Adequate Steps Toward Measuring Progress in Achieving GLI Goals
paragraphs: 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.
subsections: section_title: EPA Has Not Developed the Mercury Permitting Strategy Envisioned in GLI
paragraphs: 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.  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.
section_title: EPA’s Delayed Introduction of the GLI Clearinghouse Limited the Development of Consistent Water Quality Standards
paragraphs: 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.
section_title: EPA Has Not Determined the Overall Impact of GLI or of PMPs in Reducing Pollutant Loadings
paragraphs: 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. 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. 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. 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.
section_title: Conclusions
paragraphs: 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.
section_title: Recommendations for Executive Action
paragraphs: 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.
subsections: section_title: Agency Comments and Our Evaluation
paragraphs: 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 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.
section_title: Scope and Methodology
paragraphs: 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.
section_title: Purpose and Status of Bioaccumulative Chemicals of Concern (BCC) Identified in GLI
section_title: Comments from the Environmental Protection Agency
section_title: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
paragraphs: John Stephenson (202) 512-3841 (stephensonj@gao.gov)
section_title: Staff Acknowledgments
paragraphs: In addition to the individual named above, Kevin Averyt, Greg Carroll,  John Delicath, John Wanska, and Amy Webbink made key contributions to  this report.