ELR Citation: ELR 20125
No(s). 00-4502 (6th Cir. Jun 16, 2005)

The court denied a group of agencies' and companies' petitions challenging final decisions by the U.S. Environmental Protection Agency (EPA) that Indiana's and Ohio's proposed regulatory schemes governing toxic discharges into the Great Lakes were inconsistent with the Agency's Final Water Quality Guidance for the Great Lakes System. Both states argued that their regulatory schemes are at least as protective of the environment as the guidance, if not more so. But given that Indiana's averaging of toxicity will call for fewer water effluent toxicity limitations than a system using maximum values, EPA's conclusion that the scheme would be less protective of the environment was far from being arbitrary or capricious. As for Ohio's scheme, the state's "weight of the evidence" approach to establishing toxicity limits necessarily grants the permitting authority wide discretion not afforded by the guidance. Further, Ohio's scheme would allow certain toxic discharges to go unregulated in instances where no biological data was available, thereby allowing pollution where the guidance would not. And the "scientifically indefensible" exception to the guidance does not apply to either proposal.