May 10, 2007

MEMORANDUM

SUBJECT: Compliance Schedules for Wa ter Quality-Based Effluent Limitations in

NPDES Permits

FROM: James A. Hanlon, Director Office of Wastewater Management

/s/

TO: Alexis Strauss, Director

Water Division EPA Region 9

Recently, in discussions with Region 9, ques tions have been raised concerning the use of compliance schedules in National Pollutant Discharge Elimination System (NPDES) permits consistent with the Cl ean Water Act (CWA) and its implementing regulations at 40 C.F.R. § 122.47. The use of compliance schedules in NPDES permits is also the subject of ongoing litig ation in California. The purpose of this memo is to provide a framework for the review of pe rmits consistent with the CWA and its implementing regulations.

When may a permitting authority include a compliance schedule in a permit for the purpose of achieving a water qual ity-based effluent limitation?

In In The Matter of Star-Kist Caribe, Inc ., 3 E.A.D. 172, 175, 177 (1990), the EPA Administrator interpreted section 301(b)(1 )(C) of the CWA to mean that 1) after July 1, 1977, permits must requir e immediate compliance with ( i.e. , may not contain compliance schedules for) effluent limitations based on water quality standards adopted before July 1, 1977, and 2) compliance schedu les are allowed for effluent limitations based on standards adopte d after that date only if the State has clearly indicated in its water quality standards or implementing regul ations that it intends to allow them.

What principles are applicable to assessing whether a compliance schedule for achieving a water quality-based effluent limitation is c onsistent with the CWA and its implementing regulations?1. “When appropriate,” NPDES permits may include “a schedule of compliance leading to compliance with CWA and regulations . . . as soon as possible, but not later than the applicable statutor y deadline under the CWA.” 40 C.F.R. § 122.47(a)(1). Compliance schedules that are lo nger than one year in duration must set forth interim requirements and dates for th eir achievement. 40 C.F.R. § 122.47(a)(3).

2. Any compliance schedule contained in an NPDES permit must be an “enforceable sequence of actions or operations leading to compliance with a [water quality-based] effluent limitation [“WQBEL”]” as required by the definition of “schedule of compliance” in section 502(17) of the CWA. See also 40 C.F.R. § 122.2 (definition of schedule of compliance).

3. Any compliance schedule contained in an NPDES permit must include an

enforceable final effluent limitation and a date for its achievement that is within the timeframe allowed by the applicable Stat e or federal law provision authorizing compliance schedules as required by CW A sections 301(b)(1)(C); 502(17); the

Administrator’s decision in Star-Kist Caribe, Inc. 3 E.A.D. 172, 175, 177-178 (1990); and EPA regulations at 40 C.F.R. §§ 122.2, 122.44(d) and 122.44(d)(1)(vii)(A).

4. Any compliance schedule that extend s past the expiration date of a permit

must include the final effluent limitations in the permit in order to ensure enforceability of the compliance schedule as required by CWA section 502(17) and 40 C.F.R. § 122.2 (definition of schedule of compliance).

5. In order to grant a compliance schedule in an NPDES permit, the permitting authority has to make a reasona ble finding, adequately supported by the administrative record, that the compliance sche dule “will lead[ ] to compliance with an effluent limitation . . . ” “to meet water qual ity standards” by the end of the compliance schedule as required by sections 301 (b)(1)(C) and 502(17) of the CWA. See also 40

C.F.R. §§ 122.2, 122.44(d)(1)(vii)(A).

6. In order to grant a compliance schedule in an NPDES permit, the permitting authority has to make a reasona ble finding, adequately supported by the administrative record and described in the fact sheet (40 C.F.R. § 124.8), that a compliance schedule is “appropriate” and th at compliance with the final WQBEL is required “as soon as possible.” See 40 C.F.R. §§ 122.47(a), 122.47(a)(1).

7. In order to grant a compliance schedule in an NPDES permit, the permitting authority has to make a reasona ble finding, adequately supported by the administrative record, that the discharger cannot immediately comply with the WQBEL upon the effective date of the permit. 40 C.F.R. §§ 122.47, 122.47(a)(1).

8. Factors relevant to whether a comp liance schedule in a specific permit is “appropriate” under 40 C.F.R. § 122.47(a) include: how much time the discharger has already had to meet the WQBEL(s) under prior permits; the extent to which thedischarger has made good faith efforts to comply with the WQBELs and other requirements in its prior permit(s); whether there is any need for modifications to treatment facilities, operations or measures to meet the WQBELs and if so, how long would it take to implement the modifications to treatment, operations or other measures; or whether the discharger would be expect ed to use the same treatment facilities, operations or other measures to meet the WQBEL as it would have used to meet the WQBEL in its prior permit.

9. Factors relevant to a conclusion th at a particular compliance schedule requires compliance with the WQBEL “as soon as possible,” as required by 40 C.F.R. § 122.47(a)(1) include: consideration of the steps needed to m odify or install treatment facilities, operations or other measures and the time those steps would take. The permitting authority should not simply presume that a compliance schedule be based on the maximum time period allowed by a State’s authorizing provision.

10. A compliance schedule based solely on time needed to develop a Total Maximum Daily Load is not appropriate, c onsistent with EPA’s letter of October 23, 2006, to Celeste Cantu, Executive Director of the California State Water Resources Control Board, in which EPA disapproved a provision of the Policy for Implementation

of Toxic Standards for Inland Surface Wa ters, Enclosed Bays, and Estuaries for

California.

11. A compliance schedule based sole ly on time needed to develop a Use Attainability Analysis is also not appropriate , consistent with EPA’s letter of February 20, 2007, to Doyle Childers, Director Missouri De partment of Natural Resources, nor is a compliance schedule based solely on time needed to develop a site specific criterion, for

the same reasons as set forth in the Oct ober 23, 2006, (referenced in Paragraph 10) and February 20, 2007 letters.

If you have any questions, please contact me at (202) 564-0748 or have your staff contact Linda Boornazian at (202) 564-0221.