Water Boards 

State Water Resources Control Board 

May 27, 2016 

Marcela von Vacano 

U.S. Environmental Protection Agency 

Office of Regional Counsel 

75 Hawthorne Street 

San Francisco, CA 94105 

Vonvacano.marcelaepa.gov 

Dear Ms. von Vacano: 

EDMUND a BROWN JR. GOVERNOR <111...... MATTHEW RODRIOUEZ SECRETARY FOR ENVIRONMENTAL PROTECTION 

REVISED LETTER CONCERNING APPLICABILITY OF STATE WATER RESOURCES 

CONTROL BOARD'S (STATE WATER BOARD) COMPLIANCE SCHEDULE POLICY TO U.S. 

EPA'S PROPOSED SELENIUM WATER QUALITY STANDARD 

The Office of Regional Counsel has informed the State Water Board that the United States 

Environmental Protection Agency (U.S. EPA) will propose a water quality standards action 

related to selenium criteria and has sought clarification of the proposed action's interplay with 

existing state policy on compliance schedules. This letter revises my letter to you dated 

May 20, 2016, to contain a more accurate description of U.S. EPA's proposed action. The 

fundamental conclusions remain unchanged. To date, the State Water Board has had to rely on 

verbal descriptions of the proposed action, and if necessary, this analysis will be updated upon 

release of the proposed action. 

U.S. EPA plans to propose to rescind existing marine and estuarine selenium water quality 

criteria for the San Francisco Bay and Delta in the National Toxics Rule (promulgated at 40 

Code of Federal Regulations section 131.36) and to adopt new, more protective, selenium water 

quality criteria for the San Francisco Bay and Delta by amending the California Toxics Rule 

(promulgated at 40 Code of Federal Regulations section 131.38). You have asked whether the 

State Water Board's Policy for Compliance Schedules in National Pollutant Discharge 

Elimination System Permits (Cal. Code Regs., tit. 23, § 3906; State Water Board Res. No. 2008- 

0025) (Compliance Schedule Policy) will apply to the new selenium water quality criteria. The 

Compliance Schedule Policy will apply to National Pollutant Discharge Elimination System 

(NPDES) permits issued by the State Water Board and the regional water quality control boards 

that implement the new selenium water quality criteria if U.S. EPA adopts the water quality 

criteria as you have described. 

Unless a specific exception applies, the Compliance Schedule Policy authorizes compliance 

schedules regardless of whether a water board or U.S. EPA established the applicable water 

quality standard. The Compliance Schedule Policy: 

FELICIA MARCUS, CHAIR I THOMAS HOWARD, EXECUTIVE DIRECTOR 1001 I Street, Sacramento, CA 95814 I Mailing Address: P.O. Box 100, Sacramento, CA 95812-0100 I www.waterboards.ca.gov 

CI RECYCLED PAPER 
Marcela von Vacano - 2 - May 27, 2016 

authorizes a Water Board to include a compliance schedule in a permit for an 

existing discharger to implement a new, revised, or newly interpreted water 

quality objective or criterion in a water quality standard that results in a permit 

limitation more stringent than the limitation previously imposed.... 

(Compliance Schedule Policy (2008), p. 3, § 2.) 

A "Th]ew, revised, or newly interpreted water quality objective or criterion in a water quality standard' means a water quality objective or criterion in a water quality standard that is adopted, revised, or newly interpreted after the effective date of this Policy...." (Id., p. 3, § 1(d).) The 

phrases "water quality objective" and "criterion in a water quality standard" are largely 

synonymous, with the distinction being that a water board establishes "water quality objectives" pursuant to state law and U.S. EPA approves or establishes criteria in water quality standards 

as part of the federal Clean Water Act. (Compare Wat. Code, §§ 13050, subd. (h), 13241 with 

40 C.F.R. §§ 130.2(d), 131.21.) Both are limitations crafted to protect uses of water. Because 

the Compliance Schedule Policy's definitions do not limit the origin of a more stringent permit 

limitation and it can derive from either a water quality objective or criterion in a water quality standard, the Compliance Schedule Policy is available for U.S. EPA-promulgated criteria unless 

there is a specific exception. 

Section 2 of the Compliance Schedule Policy includes specific exceptions to this general rule of 

applicability. The specific exception that relates to water quality criteria promulgated in the 

California Toxics Rule provides as follows: 

Compliance schedules are not authorized under this Policy for permit limitations 

implementing criteria promulgated in the CTR, as amended (40 C.F.R. section 

131.38, revised as of July 1, 2005). Compliance schedules for existing CTR 

criteria are authorized only under the SIP. However, this Compliance Schedule 

Policy authorizes compliance schedules for permit limitations implementing CTR 

criteria that are revised by the USEPA after the effective date of this Policy. 

(Id., p. 4, § 2(c) [emphasis in original].) 

The specific exception in the above-quoted paragraph does not apply to U.S. EPA's proposal to 

adopt new selenium water quality criteria as part of the California Toxics Rule. The Compliance Schedule Policy's exception for U.S. EPA-promulgated criteria in the California Toxics Rule 

applies only to the specific water quality criteria that were in the California Toxics Rule on July 1, 2005. The proposed new water quality criteria for selenium were not part of the California 

Toxics Rule on July 1, 2005. 

Furthermore, the final sentence of the above-quoted paragraph confirms that the Compliance Schedule Policy applies to either new or more stringent water quality criteria promulgated in the 

California Toxics Rule that are revised by U.S. EPA after the Compliance Schedule Policy's December 17, 2008 effective date. The final sentence uses the plural "criteria" rather than 

referring to revisions of any individual criterion. U.S. EPA's proposed action will revise 

California Toxics Rule criteria by including new, more protective criteria for selenium. These 

revisions to the California Toxics Rule's criteria would trigger the savings clause in the last 

sentence of section 2(c) and ensure that the Compliance Schedule Policy is available for new, 

more protective selenium criteria in the California Toxics Rule. 
Marcela von Vacano - 3 - May 27, 2016 

The fact that U.S. EPA originally promulgated some selenium criteria in the National Toxics 

Rule (40 C.F.R. § 131.36) does not affect the outcome of this analysis. As with the California 

Toxics Rule, the Compliance Schedule Policy contains an exception for permit limitations 

implementing criteria promulgated for California in the National Toxics Rule. (Compliance Schedule Policy, p. 4, § 2(b).) Part of U.S. EPA's proposed action, though, would remove the 

existing, less protective criteria for selenium in the National Toxics Rule as applied to California. 

Since those criteria will no longer exist in the National Toxics Rule if U.S. EPA takes the 

proposed action, the Compliance Schedule Policy's exception for National Toxics Rule criteria 

will not apply. 

If you have any questions regarding this letter, please contact Philip G. Wyels, Assistant Chief 

Counsel, at philip.wyelswaterboards.ca.gov or (916) 341-5178. 

Sincerely, 

Michael A.M. La` iffer 

Chief Counsel 

cc: All via e-mail only 

Tom Howard, Exec 

Jonathan Bishop, Exec 

Karen Larsen, DWQ 

Philip Wyels, OCC