STATE WATER RESOURCES CONTROL BOARD

RESOLUTION NO. 2008-0025

POLICY FOR COMPLIANCE SCHEDULES IN

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMITS

WHEREAS:

1. The State Water Resources Control Board (State Water Board) is designated as the state water pollution control agency for all purposes under the federal Clean Water Act.

2. Under section 303(c) of the Clean Water Act, the states are primarily responsible for establishing water quality standards.

3. Under section 301(b)(1)(C) of the Clean Water Act, not later than July 1, 1977, National Pollutant Discharge Elimination System (NPDES) permits must include effluent limits as stringent as necessary to achieve water quality standards.

4. For new or revised water quality standards adopted after July 1, 1977, the states can include compliance schedules in NPDES per mits to achieve effluent limitations implementing the new or revised standards when the applicable water quality standards or the states’ implementing regulations authorize compliance schedules.

5. For water quality standards adopted on or before July 1, 1977, the states can include compliance schedules in NPDES permits if the states are authorized to include compliance schedules in permits and if the states have adopted a new interpretation of the pre-July 1,

1977 standard.

6. The State Water Board recognizes that a compliance schedule may be appropriate, in some cases, when a discharger must implement actions to comply with a more stringent permit limitation, such as designing and constructing facilities or implementing new or significantly expanded programs and securing financing, if nece ssary, to comply with permit limitations implementing new, revised, or newly interpreted water quality objectives or criteria in water quality standards.

7. The State Water Board has adopted compliance schedule provisions for California Toxics Rule (CTR) criteria in the Policy for Implementation of Toxics Standards for Inland Surface Waters, Enclosed Bays, and Estuaries of California (SIP), and six of the nine Regional Water Quality Control Boards (Regional Water Boards) have adopted NPDES compliance schedule authorizations in their water quality control plans (Basin Plans). The compliance schedule authorizations vary in their coverage, authorized length, and other provisions.

8. The State Water Board has identified a need for uniform provisions authorizing compliance schedules and for statewide consistency in the implementation of these provisions in the state’s NPDES permit program. Failure to address this need will perpetuate the inefficient use of discharger, interested party, and Water Board resources, which has resulted from the lack of clear policy guidance on the appropriate use of compliance schedules. The United States Environmental Protection Agency (U .S. EPA) conducted an analysis of compliance schedule implementation by the Regional Water Boards (the U.S. EPA California Permit Quality Review Report on Compliance Schedules, issued to the State Water Board on October 31, 2007) and it found that 11 out of 12 randomly selected NPDES permits hadcompliance schedules that did not adequately document, either within the NPDES permit or the administrative record, that the schedule was as short as possible. It is the State Water Board's intent to implement the recommendations in the U.S. EPA California Permit Quality Review Report on Compliance Schedules.

9. It is the intent of the State Water Board that compliance schedules for NDPES permits only be granted when the discharger must implement actions to comply with a more stringent permit limitation, such as designing and cons tructing facilities or implementing new or significantly expanded programs and se curing financing, if necessary, to comply with permit limitations implementing new, revised, or newly interpreted water quality objectives or criteria in water quality standards, and that any schedules be granted for the minimum amount of time necessary to achieve compliance.

10. Nothing in this Policy precludes the Water Boards from authorizing compliance schedules as part of a new or revised standard that are longer than those authorized in this Policy, provided that the Water Boards adequately justify the compliance schedule length and that the State Water Board and the U.S. EPA approve the new or revised standard.

11. This Policy does not specifically authorize compliance schedules for prohibitions. The State Water Board finds that it is unnecessary to authorize compliance schedules for prohibitions because the Water Boards are authorized to adopt prohibitions that are not effective immediately, but rather at a specified future date.

12. Water Code section 13140 provides that the State Water Board shall formulate and adopt state policy for water quality control.

13. The State Water Board issued the draft Policy and Staff Report, including an environmental checklist, for public comment on December 11, 2007.

14. The State Water Board, in compliance with California Water Code section 13147, held a public hearing in Sacramento, California, on March 18, 2008 on the draft Policy and Staff Report and carefully considered all te stimony and comments received.

15. The State Water Board finds that adoption of the Policy will not have any significant or potentially significant effects on the environment and, therefore, no alternatives or mitigation measures are proposed to avoid or reduce any significant effects on the environment.

THEREFORE BE IT RESOLVED THAT:

1) Definitions. The following definitions apply to this Policy:

a) “ Compliance schedule ” means a schedule of remedial measures, including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitations, prohibition, or standard.

b) “ Existing discharger ” means any discharger who is not a new discharger. An existing discharger includes an increasing discharger (i.e., an owner or operator of an existing facility with treatment systems in place for its current discharge that is or will be expanding, upgrading, or modifying its existing permitted discharge after a new, revised, or newly interpreted water quality standard becomes applicable).



### -2-c) “ New discharger ” means the owner or operator of any building, structure, facility, or installation from which there is or may be a “discharge of pollutants” (as defined in 40 C.F.R. § 122.2) to surface waters of the United States, the construction of which commences after a new, revised, or newly interpreted water quality objective or criterion in a water quality standard becomes applicable.

d) “ New, 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, except that the following dates shall apply instead of the effective date of this Policy in the Regions specified below:

i) North Coast: February 27, 2006 ii) San Francisco Bay: November 13, 1995 iii) Los Angeles: February 18, 2004 iv) Central Valley: September 25, 1995 v) Santa Ana: July 15, 2002 vi) San Diego: [November 9, 2005, if U.S. EPA approves the San Diego Water Board's compliance schedule provisions, or the effective date of this Policy]

e) “ Newly interpreted water quality objective or criterion in a water quality standard ” means a narrative water quality objective or criterion that, when interpreted during NPDES permit development (using appropriate scientific information and consistent with state and federal law) to determine the permit limitations necessary to implement the objective, results in a numeric permit limitation more stringent than the limit in the prior NPDES permit issued to the discharger. Newly interpreted water quality objective or criterion in a water quality standard also includes a numeric or narrative water quality objective or criterion that is implemented with a permit limitation with which the discharger cannot comply because the pollutant was newly detected in the discharger’s effluent due to new analytical techniques that were developed after the prior permit was

issued.

f) “ Permit limitation ” means a water quality-based effluent limitation (WQBEL). A permit limitation also includes a receiving water limitation.

g) “ Single permitting action ” is an action in which a Regional Water Board incorporates all the requirements to implement a total maximum daily load (TMDL), developed pursuant to Clean Water Act section 303(d), in one NPDES permit.

h) “ Water Board(s) ” means either the State Water Board or a Regional Water Board, or

both.

2) Scope and Applicability. Except as provided in paragraph 3 of this Policy, this Policy shall apply to all NPDES permits adopted by the Wate r Boards that must comply with Clean Water Act section 301(b)(1)(C) and that are modified or reissued after the effective date of the Policy. This Policy 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 where the Water Board determines that the discharger has complied with the application requirements in paragraph 4 of this Policy and has demonstrated that the discharger needs additional time to implement actions to comply with the limitation. These actions may include, but are not limited to, designing



### -3-and constructing 1 facilities or implementing new or significantly expanded programs and securing financing, if necessary, to comply with a permit limitation specified to implement the standard. A “permit limitation more stringent t han the limitation previously imposed” includes a new permit limitation implementing a new, revised, or newly interpreted water quality objective or criterion in a water quality standard for a pollutant that was not limited in prior permits.

Compliance schedules, however, are not authorized under the following circumstances:

a) Compliance schedules are not authorized in permits for new dischargers.

b) Compliance schedules are not authorized for permit limitations implementing criteria promulgated for California in the National Toxics Rule, as amended (40 C.F.R. §131. 36, revised as of July 1, 2005).

c) 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 im plementing CTR criteria that are revised by the USEPA after the effective date of this Policy.

d) Compliance schedules for permit limitations implementing a water quality objective that is identical to a CTR criterion and that was adopted after promulgation of the CTR may not extend beyond May 18, 2010.

e) Compliance schedules are not authorized where a water quality objective or criterion in a water quality standard has been relaxed and the new permit limitations are less stringent that limitations based on the prior, more stringent objective or criterion.

f) Compliance schedules are not authorized based solely on the time needed to develop a TMDL, use attainability analysis, or site specific objective.

3) Grandfather Clause. This Policy shall not apply to existing compliance schedules in permits that are in effect on the effective date of this Policy. Under no circumstances, however, can a compliance schedule that is in effect on the effective date of this Policy exceed ten years from the initial date that the compliance schedule was first included in the permit, except where the compliance schedule is consistent with the wasteload allocations and implementation schedule or compliance sc hedule in a TMDL, which was approved by USEPA under Clean Water Act §303(c).

4) Application Requirements. A discharger who seeks a compliance schedule must demonstrate to the satisfaction of the Water Board that the discharger needs time to implement actions, such as designing and cons tructing facilities or implementing new or significantly expanded programs and se curing financing, if necessary, to comply with a more stringent permit limitation specified to implement a new, revised, or newly interpreted water quality objective or criterion in a water quality standard. In addition, the discharger must provide the following documentation:

1 Construction includes related activities such as t he purchase of property nee ded for the construction, performance of the environmental studies and reviews, identification of social and environmental mitigation, and purchase and installation of necessary equipment.



### -4-a) Diligent efforts have been made to quantify pollutant levels in the discharge and the sources of the pollutant in the waste stream, and the results of those efforts;

b) Source control efforts are currently underway or completed, including compliance with any pollution prevention programs that have been established;

c) A proposed schedule for additional source control measures or waste treatment;

d) Data demonstrating current treatment facility performance to compare against existing permit effluent limits, as necessary to determine which is the more stringent interim permit effluent limit to apply if a schedule of compliance is granted.

e) The highest discharge quality that can reasonably be achieved until final compliance is

attained;

f) The proposed compliance schedule is as short as possible, given the type of facilities being constructed or programs being implemented, and industry experience with the time typically required to construct similar facilities or implement similar programs; and

g) Additional information and analyses to be determined by the Regional Water Board on a case-by-case basis.

5) Review of Application. The Water Board is responsible for thoroughly evaluating the information submitted by the discharger in its application and, in particular, for ensuring that the discharger has adequately demonstrated the need for time to implement actions, such as designing and constructing facilities or implementing new or significantly expanded programs and securing financing, if necessary, to comply with a more stringent permit limitation specified to implement a new, revised, or newly interpreted water quality objective or criterion in a water quality standard.

6) Maximum Compliance Schedule Length and Conditions for Renewal of Compliance

Schedules. If the Water Board determines that an existing discharger has met the application requirements for a compliance schedule, then the Water Board has the discretion to include an appropriate schedule in the permit.

a) Any compliance schedule must require compliance as soon as possible, taking into account the amount of time reasonably required for the discharger to implement actions, such as designing and constructing facilities or implementing new or significantly expanded programs and securing financing, if necessary, to comply with a more stringent, permit limitation specified to impl ement a new, revised, or newly interpreted water quality objective or criterion in a water quality standard.

b) The duration of the compliance schedule may not exceed ten years from the date of adoption, revision, or new interpretation of the applicable water quality objective or criterion in a water quality standard, except as provided in paragraph (c.) below.

c) A Water Board may establish a compliance schedule that exceeds ten years in a permit that either: (1) is a single permitting action, as defined in this Policy, or (2) has a permit limitation that implements or is consistent with the waste load allocations specified in a TMDL that is established through a Basin Plan amendment, provided that the TMDL implementation plan contains a compliance schedule or implementation schedule.



### -5-Notwithstanding 1.e. above, a Water Board may include a compliance schedule in an implementation plan for a TMDL that is established to achieve either a numeric or narrative objective in a water quality standard.

i) The TMDL implementation plan shall include a maximum length for compliance schedules for attaining water quality based effluent limitations based on the assumptions of waste load allocations in the TMDLs.

ii) The compliance schedule in the permit must be as short as possible. The compliance schedule in the permit cannot, under any circumstances, exceed the maximum length for compliance schedules or implementation schedules contained in the TMDL implementation plan.

7) Interim Permit Requirements and Dates.

a) If the Water Board authorizes a compliance schedule in the permit, the Water Board shall include interim requirements and dates for their achievement.

b) If the compliance schedule exceeds one year , the Water Board shall establish interim numeric limitations for the pollutant in the permit; and may also impose interim requirements to control the pollutant, such as pollutant minimization and source control measures. Numeric interim limitations for the pollutant must, at a minimum, be based on current treatment facility performance or on existing permit limitations, whichever is more stringent. If the existing permit limitations are more stringent, and the discharger is not in compliance with those limitations, the noncompliance under the existing permit must be addressed through appropriate enforcement action before the permit can be reissued, unless the anti-backsliding provisions in Clean Water Act section 402(o) are met.

c) There shall be no more than one year between interim dates. The interim requirements shall state that the discharger must notify the Water Board, in writing, no later than 14 days following each interim date, of its compliance or noncompliance with the interim requirements.

8) Final Permit Limitation Requirements. The entire compliance schedule, including interim requirements and final permit limitations, s hall be included as enforceable terms of the permit, whether or not the final compliance date is within the permit term.

9) Permit Findings : The permit shall include appropriate findings that the compliance schedule is necessary, as provided in paragraphs 4 and 5, and that the schedule requires compliance as soon as possible, as provided in paragraph 6. The permit fact sheet shall adequately describe the basis for these findings.

10) Over-Riding Considerations. Nothing in this Policy shall prevent a Water Board from requiring immediate compliance with permit limitations if a Board finds that immediate protection of beneficial uses of waters of the United States or California is in the best interest of the people of the state. However, in such an event, the Water Board shall make a finding stating the beneficial uses and specific interests of the people of the state that are being protected or promoted.



### -6-11) Supersession. This Policy supersedes all existing provisions authorizing compliance schedules in Basin Plans, except for existing compliance schedule provisions in TMDL implementation plans that are in effect as of the effective date of this Policy.

CERTIFICATION

The undersigned, Clerk to the Board, does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the State Water Board held on April 15, 2008.

AYE: Chair Tam M. Doduc Vice Chair Gary Wolff, P.E., Ph.D Charles R. Hoppin Frances Spivy-Weber

NAY: None

ABSENT: Arthur G. Baggett, Jr.

ABSTAIN: None

Jeanine Townsend

Clerk to the Board



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