# CHAPTER 3
Issue Category: Compliance Schedule Authorizing Provisions

Pages 3- 409 – 3- 427

Response to Public Comments

Water Quality Standard Regulatory Revisions

August , 2015

40 CFR Part 131 Docket #: EPA

- HQ

- OQ

- 2010

- 0606

This document is part of a larger document

.Chapter 3 – Response Essays 9.a – CSAP – Gen Supp



## Essay **9.a – C**  **ompliance S chedule Authorizing Provisions:**  **General Support** 

**A. General Support**

The U.S. Environmental Protection Agency ( EPA ) appreciates commenters’ support of the proposed provision at section 131.15 regarding compliance schedule authorizing provisions (CSAPs) as appropriate and consistent with existing law. EPA appreciates commenters’ support of the proposed provision as helping to ensure that permittees’ compliance schedules ( CS ) are legally binding and allowable under the Act.

EPA apprecia tes commenters’ support that section 131.15 should conform to the preceden t established in the Star

- Kist decision, and that as such, the proposed provision reflects existing and long

- standing EPA interpretation and policy since In the Matter of Star - Kist Caribe, Inc. [1990 WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD 172 (April 16, 1990)]

.


### B. Specific **Scenarios in**  **States and**  **Authorized Tribes**

Commenters from several states and authorized tribes noted that they already have adopted CSAPs

. W here EPA has already approved such provisions under 303(c) as water quality standards ( WQS )

, there is no need for states or authorized tribes to make additional changes to their WQS

. In promulgating this final rule, EPA has not evaluated specific state /aut horized tribal regulations for consistency with it. It is beyond the scope of this rulemaking for EPA at this time to conduct such a state - or authorized tribe

specific evaluation, and for that reason EPA will not express agreement or disagreement here wit h the specific situations that commenters have identified

. EPA recommends that states and authorized tribes evaluate their WQSs for consistency with the final regulation at section 131.15 and further recommends that States and authorized tribes work with t heir EPA Regional offices, which are available to assist with any questions.



### C. Level of **Effort for States and**  **Authorized Tribes**

Some commenter s stated the view that the proposed section 131.15 would likely increase the level of effort required by a state’ s e nvironment department , because it would require that the state’s WQS include an authorizing provision in its WQS. EPA points out that today’s provision at section 131.15 does not reflect a change in EPA interpretation or policy

, so there should be no increased level of effort with respect state or authorized tribal CSAPs

. Additionally, neither the proposed rule nor today’s final rule require that the CSAPs be housed in a state’s or authorized tribe’s WQS themselves. As discussed in the preamble to the final rule, a s long as a state or authorized tribe has a legally binding provision authorizing the use of CS , it is possible for EPA to take action on it under 303c as a WQS no matter where it is housed in regulation. Finally, the commenter s stated that th e proposed provision at section 131.1 5 would add complexity to the process for securing variances. The commenter s did not provide an explanation for how section 131.15 would complicate the process of securing WQS variances and so EPA is not able to respond directly to this comment

. However, EPA notes that states and authorized tribes have flexibility in how they adopt their CSAP to facilitate the use of CS when implementing variances

. Some states and authorized tribes have establish ed pollutant and water body specific CSAPs
, while others have adopted more generally applicable provisions. To the extent that states and authorizedChapter 3 – Response Essays 9.a – CSAP – Gen Supp

tribes wish to minimize the regulatory burden of adopting a provision to authorize CS at the time they adopt a WQS variance, states and authorized tribes may wish to evaluate what type of CSAP best suits their needs and could be adopted in advance of the WQS variance . S ee response essay to 8.e. for additional information on the relationship between permit CS and WQS variances.



### D. Requirements for **Individual National Pollutant Discharge Elimination System P**  **ermit Compliance Schedules** 

EPA appreciates commenters’ support of EPA’s clarification that while the authorizing provisions are considered WQS, individual CS iss ued pursuant to those provisions are not WQS. EPA deleted specific
text on this point because it appeared to add to the confusion of whether section 131.15 pertained to individual CS rather than their authorizing provisions

. While the final regulatory text does not include this clarification, the preamble specifically notes that individual CS are not WQS subject to EPA approval

. In addition, EPA’s new provision at section 131.15 does not change any of the permit CS requirements of section 122.47

.
Some commenters supported section 131.15 because in their view, it would not set a maximum duration for CS in National Pollutant Discharge Elimination System ( NPDES ) permits. EPA agrees with the factual statement that section 131.15 does not set a maximum duration for CS in NPDES permits. Some

c ommenters also said that CS should not exceed 5 years (reflecting the duration of an NPDES permit authorization). EPA points out that

, while section 131.15 does not set any specific limits on the length of a permit CS
, section 131.15 does not allow CS of excessive length either . Per the NPDES regulations at Title 40 of the Code of Federal Regulations ( CFR ) section 122.47
, CS must be designed to achieve compliance “as soon as possible,” which is situation

- specific. In some permits, a 5 - year CS may be appropriate, while in others, the appropriate schedule might be shorter or longer (s ee http://water.epa.gov/lawsregs/guidance/wetlands/upload/signed

- hanlon

- memo.pdf for additional discussion on the expectations for permit CS , even when a CS extends beyond the expiration date of the NPDES permit)

.

Some commenter s stated that CS are essential when a “new” or revised water quality

- based effluent limit ( WQBEL ) is included in an NPDES permit. The y said that this could occur when a state has revised its WQS rules to adjust a numeric criterion

, has added a criterion for a new constituent to its rule s, or when a completed and approved total maximum daily load ( TMDL ) results in more stringent WQBELs for

on e or more effluent constituents. The final regulation at section 131.15 does not speak to the specific circumstances under which individual permit CS may be granted. EPA refers any entity seeking to include a permit CS for WQBELs in an NPDES permit to the NPDES regulations at 40 CFR 122 .47 and relevant EPA guidance

.Chapter 3 – Response Essays 9.b – CSAP – Gen Opp



## Essay **9.b – C**  **ompliance Schedule Authorizing Provisions: General Opposition** 

**A. General Support**

The U.S. Environmental Protection Agency ( EPA ) appreciates comments supporting t he proposed addition of the provision at section 131.15.

EPA appreciates comments supporting EPA’s mention of the regulatory authority of states and authorized tribes to include compliance schedules ( CS ) in discharge permits and EPA’s support for using CS

. EPA agrees with comments stating that CS are important tools for achieving the goals of the Clean Water Act (CWA) as they allow dischargers a reasonable period of time to come into compliance with permit limits based on applicable water quality standards ( WQS) , particularly where states/authorized tribes need time

t o implement new or more stringent water quality

- based effluent limits (WQBELs) in National Pollutant Discharge Elimination System ( NPDES ) permit requirements. EPA also agrees with comments that p ointed to CWA 301(b)(1)(C) ( “ schedule of compliance, established pursuant to State law or regulations”) to explain that CS are an appropriate mechanism for meeting WQS . EPA agrees that a schedule of compliance can provide a mechanism for achieving WQBELs, and ultimately, WQS. EPA’s final rule does not alter the flexibility that states and authorized tribes have to use permit CS , as appropriate.

EPA acknowledges receipt of comments appreciative of EPA's clarification that CS can extend beyond a particular permit term, because the commenters view this as both necessary and welcome.

EPA appreciates comments supporting the proposed clarification regarding compliance schedule authorizing provisions (CSAPs) for WQBELs designed to be consistent with the decision in In the Ma tter of Star

- Kist Caribe, Inc.

EPA appreciates commenters’ support for the language wit hin section 131.15 that states “ [i]ndividual compliance schedules issued pursuant to such authorizing provisions are not themselves water quality standards ” and therefore not subject to review under 303(c). While EPA did not finalize this language in regulation

, this is still EPA’s policy position and EPA has made this clear in the preamble to the final rule

.
EPA recognizes a statement in c omments that the Star

- Kist opinion contains a use ful discussion of the right of s tates to develop and interpret their own WQS and appreciates the commenter’s agreement with the holding that EPA may not unilaterally amend State WQS by granting permit CS tha t were not authorized by the State.

EPA received one supportive comment stating that “...it agrees with EPA that schedules of compliance are, and have always been appropriate for compliance with WQBELs where they are allowed under state statutes or regulatio ns, either for water quality standards or NPDES permitting.” While EPA appreciates the comment, EPA would like to be clear that CS are a mechanism to provide time to meet WQBELs in an NPDES permit and not time to meet the WQS themselves. Based on the definition of CWA 502(17), CS are an enforceable sequence of actions leading to compliance with an effluent limitation. Thus, CS are not appropriate where there is uncertainty as to whether the WQS will be met or not. Rather, the appropriate t ool in that instance could be a WQS variance. EPA’s preamble to the final rule discusses the appropriate uses of both tools in more detail.Chapter 3 – Response Essays 9.b – CSAP – Gen Opp



### B. **General Opposition**

EPA disagrees with commenters’ requests to eliminate 131.15 from the final rule

. The new provi sion is important because it expressly incorporates into EPA’s regulations long

- standing EPA interpretation and policy and creates a regulatory mechanism to ensure that any permit with a CS to meet a WQBEL derives from and complies with the applicable stat e or authorized tribal WQS
, consistent with CWA section 301(b)(1)(C) and Title 40 of the Code of Federal Regulations ( CFR ) section 122.44(d) (1)(vii)(A). Without

a n authorizing provision approved by EPA pursuant to CWA section 303(c), any permit with a CS to meet its WQBEL could be vulnerable to challenge that it was inconsistent with CWA section 303(b)(1)(C) and
40 CFR 122.44(d) (1) (vii)(A) . S ee additional discussion in following sections for EPA’s response to the specific reasons commenters cited when rec ommending that EPA eliminate section 131.15.



### C. **Comments T**  **hat Compliance**  **S chedules**  **A re**  **N ot**  **W ater**  **Q uality**  **S tandards** 

EPA agrees with comments stating that it is inappropriate to characterize a CS itself as a “water quality standard” and that it is important that CS retain their nature as permitting tools

. EPA also agrees that it is not necessary for states or authorized tribes to include in their WQS specific requirements for the design and issuance of CS , that CS themselves are not included in the definitio n of a WQS at 40 CFR 131.3(i), and that CS themselves are s tate/ authorized tribal decisions made within the context of the NPDES permitting process

. EPA also acknowledges that CWA section 303(e)(3)(A) refers to “effluent limitations and schedules of compliance” as elements of state continuing planning processes (CPP) and that CWA section 303(e)(3)( F)

, another CPP provision, refers to “adequate implementation, including schedules of compliance, for revised or new water quality standards .”

However, E PA disagrees with comments saying the proposal would “make compliance schedules a WQS ,” would cause confusion

, and is inconsistent with the Act

. The propos ed rule and the final rule make explicit that EPA’s new regulation is only characterizing CSAP s for W QBELs as elements of a stat e ’s

or authorized tribe’s WQS and is clear that permit CS themselves are not WQS

.

While CS themselves are permitting mechanisms and not WQS

, NPDES permits are inextricably linked to WQS because WQBELs in such permits must derive from and comply with the applicable WQS consistent with CWA section 301(b)(1)(C) and 40 CFR 122.44(d) (1) (vii)(A)

. For a permit to lawfully include a CS delaying the date of compliance for one or more of its WQBELs , therefore, there must be an applicable
st ate or authorized tribal WQS authorizing the use of such a CS

. A ny such CSAPs are themselves WQS because they operate to authorize a delay in the otherwise applicable obligation that a n NPDES permit holder meet its WQS

- based WQBEL on the date of permit iss uance. As such a CSAP has the potential to alter and extend the implementation timeframe for that WQS in the NPDES permitting context. As a WQS, such an authorizing provision must be approved by EPA pursuant to CWA section 303(c). EPA recognizes that its d efinition of a WQS at 40 CFR 131.3(i) does not expressly include CSAPs for WQBELs

. However , the definition is not intended to be exhaustive and the failure to list CSAPs is not dispositive of the issue. For example, the definition also does not include antidegradation policies, another aspect of a
state or authorized tribe’s WQS. EPA provides guidance in the form of a f requently a sked q uestion s ( FAQ ) to explain what EPA co nsiders to be new or revised WQS subject to EPA approval, consistent with this definition. This FAQ can be found at http://water.epa.gov/scitech/swguidance/standards/cwa303faq. cfm

. EPA also explains in the preamble to the proposed and final rule why a CSAP for a WQBEL is a new or revised WQS.Chapter 3 – Response Essays 9.b – CSAP – Gen Opp

EPA agrees that provisions adopted by states or authorized tribes dealing with the specifics of permit CS based on the NPDES regulation at 122.47 are generally not WQS in and of themselves. EPA disagrees with comment s that said the proposed regulation was an attempt to control states’ authority and discretion to implement their WQS as part of a greater initiative to broaden EPA’s control of states’ decision

- making. These commenters misinterpreted EPA’s proposal as requiring either that CS themselves must be adopted as WQS

, or that all of a state’s CS

- related regulations (e.g., their state or authorized tribal analogs to section 122 .47) must be approved by EPA as WQS. As discussed earlier, this was not EPA’s intent, nor is it what EPA has finalized. EPA intends to act on and approve as a WQS only the state or authorized tribal provision authorizing schedules of compliance for WQBELs, not the permitting

- type regulations describing how the CS itself must be written or implemented. The final rule strikes an appropriate balance between relatively minimal and unobtrusive EPA involvement in approving as WQS state and authorized tribal CSAPs for WQBELs , while leaving broad discretion to states/authorized tribes regarding where the authorizing provision is housed in state/authorized tribal regulations and the nature of the permit

- specific details of CS themselves. In other words, not only do states and authorized tribes continue to have the flexibility and discretion to house their CSAP s for WQBELs in their WQS or in any other implementing regulations, but if the authorizing provision is housed in the state or autho rized tribes’ general CS regulations, EPA would only approve the explicit authorizing provision as a WQS and not the remaining CS regulatory provisions. Thus, 40 CFR 131.15 provides EPA no CWA 303(c) authority over the state or authorized tribe ’s design or use of CS themselves beyond its approval

, as a WQS
, of the state or authorized tribe’s regulatory provision authorizing their use for WQBELs in NPDES permits. The fact that EPA’s rule only applies to state or authorized tribal provisions authorizing use o f CS for WQBELs in NPDES permits does not mean that all other types of CS are prohibited. This rule is limited to provisions authorizing use of CS for WQBELs in NPDES permits because it is only those CS that must be issued consistent with the statutory
req uirements of CWA section 301(b)(1)(C) – including the July 1, 1977 deadline - and 40 CFR 122.44(d) (1) (vii)(A).



### D. **Comment T**  **hat EPA S**  **hould E**  **dit T**  **ext for C**  **larity T**  **hat C**  **ompliance S**  **chedules A**  **re N**  **ot W**  **ater Q**  **uality S**  **tandards**

Comments suggested a specific edit to the proposed text at 131.15 to clarify that while the states’ and authorized tribes’ WQS may authorize use of CS
, individual CS are not required to be adopted as WQS

. EPA agrees that some clarity was needed in the rule and so it revised the final rule to consistently use the phrase “ authorize the use of compliance schedules for WQBELs ” and made it clear that “Such authorizing provision” was a WQS subject to EPA review and approval. EPA was concerned that t he proposed languag e c ould have been read to include, as subject to EPA approval, the schedules of compliance themselves or any other provision in a state or authorized tribe’s regulations relating to CS

. It is EPA ’s view that this particular edit provides sufficient clarifi cation in response to the comment even though the final rule text is not identical to that suggested by the comment er.



### E. **Comments T**  **hat Section 131.15 I**  **s N**  **ot N**  **eeded**

EPA disagrees with commenters who suggest that section 131.15 is not needed and that there is no need to require s tates to authorize the use of CS for WQBELs as part of their WQS because (1) these authorizing provisions are approved as part of a state's or authorized tribes’ authorized NP DES program and (2) EPA has the authority to review and , where appropriate, comment on or object to NPDES permits containing CS

.Chapter 3 – Response Essays 9.b – CSAP – Gen Opp

In regards to the first rationale, c ommenters cited the regulation at 40 CFR 122 .47 which address es CS as elements of the NPDES program , including when they are appropriate to inc lude in permits and what elements they must include. Commenters cited the regulation at 40 CFR Part 123 which discusses the requirements that a State must meet in order to be authorized b y EPA to issue NPDES permits

. One of these requirements, as set forth in s ection 123.25 (a)(18), is that the State must have the legal authority to establish schedules of compliance. Commenters concluded that therefore all States that have been authorized to administer have already been determined to have the authority to est ablish schedules of compliance, and no further regulation is necessary. One commenter provided an example of a state that incorporated EPA’s regulations at 40 CFR Part 122.47 to justify their point that CS are authorized by existing state NPDES program regulations.

Several commenters stated the opinion that EPA should not require duplicative review of CS policies under 303(c) of the Act, if they are already reviewed under section 402 of the Act. Spec ifically, commenters stated that no purpose is served by subjecting the state provisions to a second EPA review under 303(c)

, and that EPA has not articulated any basis for potentially subjecting the state's CS policy to an additional review under a differ ent section of the CWA

.
As explained in the preamble to the proposed and final rule, EPA approval as a WQS of the state’s or authorized tribe’s permit CSAP for WQBELs ensures that any NPDES permit

, whose WQBEL has a delayed effective date due to a CS
, deri ves from and complies with applicable WQS as required by CWA section 301(b)(1)(C) and 40 CFR 122.44(d)(1)(vii)(A). Because the state’s or authorized tribe’s approved WQS would then authorize extended compliance, any delay in complian ce with a WQBEL pursuant to an appropriately issued permit CS is consistent with the statutory implementation timetable in CWA section 301(b)(1)(C). If a state or authorized tribe decides to authorize permit flexibility using CS for WQBELs in NPDES permits without an authorizing provision approved under CWA section 303(c) as a WQS (i.e. relying solely on their delegated NPDES program), the permits could be subject to legal challenge. While EPA has not, before this final rule, explicitly established a regulatory provision addressing CWA section 303(c) approval of a CSAP
, this has been EPA’s longstanding position since the Star

- Kist decision, and section 122.44(d)(1)(vii) has always required that permit limits derive from and comply with the applicable WQS. Ma ny States have avoided legal vulnerability by obtaining EPA approval under CWA section 303(c) of their CSAPs

.
EPA recognizes that some states currently issue permit CS based on the authority contained in their NPDES program regulations. And it is not surpr ising that a condition of NPDES program approval is that,
per section 123.25 (a)(18), the State must have its own state legal authority to establish schedules of compliance. However, e very CS for WQBELs in an NPDES permit that is issued in a state or authorized tribe without an applicable authorizing provision that been approved by EPA as a WQS under 303(c) is potentially vulnerable to challenge on the theory that, because the delay in WQBEL i mplementation afforded by the CS does not derive from and comply with the state or authorized tribe’s CWA

- applicable WQS , it is not consistent with CWA section 301(b)(1)(C) and section 122.44(d) (1) (vii)(A). Today’s rule provides a mechanism for states and authorized tribes to protect themselves against such vulnerability by ensuring that any delay of compliance with WQBELs allowed pursuant to NPDES permit CS is consistent with the ir own WQS and thus consistent with CWA section 301(b)(1)(C) and section 122.4 4(d) (1) (vii)(A).

It is important to note that

, if states and authorized tribes have adopted CSAPs for WQBELs as part of their NPDES regulation s , there is no need for a state or authorized tribe to readopt the provision as a new or revised WQS. Rather, the state or authorized tribe may submit the legally binding provision toChapter 3 – Response Essays 9.b – CSAP – Gen Opp

EPA with a certification from its Attorney General or appropriate tribal legal authority that such provision was adopted pursuant to state or tribal law. EPA will then act on it pursuant to CWA section 303(c).

EPA also disagrees with comments that said additional approval under CWA section 303(c) is not necessary because permit CS are already subject to EPA approval as part of the NPDES permit program. Permit CS are issued by authorized s tates and authorized tribes for WQBELs in NPDES permits
, generally without EPA prior approval

. EPA does have oversight authority over authorized state and tribal NPDES permit program s; thus

, EPA has the authority to object to a permit (including any permit CS ) issued by a state or tribal permitting authority if the permit does not derive from and comply with the applicable WQS or otherwise does not meet federal requirements. EPA does not have the obligation to review and approve or disapprove each NPDES per mit as it does for WQS . Permit CS themselves are not subject to EPA approval as a WQS under 303(c)

, and EPA’s discretion to not object to a permit is not equivalent to
EPA “ approval ” of a permit or CS under any CWA authority. It is advantageous for the state and authorized tribe to eliminate any potential legal vulnerability to CS for WQBELs in their NPDES permits by seeking EPA approval of their authorizing provisions and not risk the wasted resources and time that a legal challenge to the permit wo uld incur.

EPA acknowledges comments stating that a dding a new federal regulation will not enhance clarity or consistency in discharge permits nor promote more efficient or rapid compliance. The final rule at section 131.15 is not intended to address gener al issues of clarity

, consistency
, or compliance in connection with NPDES discharge permits. Those matters are regulated by 40 CFR Part 122

. The final rule at section 131.15 only provides a mechanism for states and authorized tribes to use to help ensure
t hat their permit CS for WQBELs derive from and comply with the applicable WQS consistent with CWA section 301(b)(1)(C) and section 122.44(d) (1) (vii)(A).



### F. **Comments T**  **hat t**  **he R**  **equirements of Section**  **131.15 S hould**  **B e**  **P laced**  **in the F**  **ederal P**  **ermitting R**  **egulations**

EPA disagrees with comment s suggesting that EPA’s proposed provision at section 131.15 would be more appropriately pl aced in the NPDES permitting regulations than the WQS regulations. Section 131.15 specifically addresses EPA’s authority to revi ew CSAPs as an aspect of a state or authorized tribe’s WQS
, which authority is more logically located in 40 CFR part 131, and not p art 122, which contains requirements related to the contents of permits themselves, including the specific details of individual CS

.



### G. **Comments T**  **hat C**  **ompliance S**  **chedules and**  **C ompliance**  **S chedule**  **A uthorizing**  **Provisions A re**  **P art**  **of the Continuing Planning Process, N**  **ot W**  **ater Q**  **uality S**  **tandards**

Some comments stated that CS and compliance schedule policies are not WQS , they are implementation procedures and permitting tools that are left to the discretion of the States and that EPA’s requirement diverges from the CWA and its implementing regulations

. ( Title 33 of the U nited S tates Code ( U.S.C. ) Section 1362(11) and (17); 33 U.S.C. 1313(e)(3)( A )) The comments stated that neither CS nor CSAPs are subject to the discretionary approval of U.S. EPA, and EPA should not have any disapproval powers as along as a CS meets the definition in CWA section 501(17)

. I n response, EPA notes that it explicitly explained in the preamble to the proposal, and in the preamble to the final rule

, that individual CS in permits are not WQS. The final rule only addresses state and authorized tribal CSAPs as WQS. TheseChapter 3 – Response Essays 9.b – CSAP – Gen Opp

CSAPs (or “p olicies” as the commenter referred to) are indeed WQS. As previously noted, 40 CFR part 131.15 only pertains to authorizing the use of CS for WQBELs in NPDES permits, and leaves decisions about the specific nature of individual CS themselves to states and authorized tribes under the authority of the NPDES permitting regulation s at 40 CFR part 122.

Commenters specifically cited s ection 303( e)(3)(A) of the CWA, which mentions that “effluent limitations and schedules of compliance ” are elements of a State's CPP , and pointed out that nothing in

s ection 303 of the CWA that discuss WQS references CS

. Elsewhere in this response and in the rule’s preambles , EPA explains the legal rationale for approving CSAPs as WQS under CWA 303(c). It is not dispositive that section 303(c) does not expressly say that CSAPs are WQS

. Section 303(c) does not specifically mention “antidegradation policies” either. Just because section 303(e)(3)(A) and (F) specify that CS themselves be included, as appropriate, in a state or authorize d tribe’s CPP, that does not mean that state or authorized trib al CSAPs are not also reasonably understood to be part of a state or authorized tribe’s WQS subject to approval pursuant to CWA section 303(c). The two ideas are not mutually exclusive and can co

- exist harmoniously. Indeed, i f a state has included a provision authorizing the use of CS in its CPP, there is no reason for the state to readopt the provision or amend its regulations to place it elsewhere. Rather, the state may submit the provision to EPA along with an attorney general certification that it was adopted pursuant to state law. EPA will then act on the provision under CWA 303(c ).



### H. **Comments T**  **hat EPA H**  **as M**  **isinterpreted the Star** 

**- Kist**  **D ecision**  **r egarding**  **Provisions A uthorizing the**  **U se**  **of C**  **om pliance**  **S chedules** 

EPA disagrees with comments that said EPA has misinterpreted the Stark

- Kist decision when establishing its proposed rule language. Specifically, comments cited the Star

- Kist decision’s statement that “ EPA does not have the authority to es tablish schedules of compliance in NPDES permits that will postpone compliance with state water quality standards beyond the July 1, 1977 statutory deadline, unless the schedule is added pursuant to authorization contained in the state water quality standa rds or the State's regulations implementing the standards .” Comments stated that therefore the actual holding of the Stark

- Kist decision is not that states lack the authority to adopt implementing regulations that allow the use of schedules of compliance in NPDES permits to achieve compliance with pre

- 1977 standards, but that EPA lacks such authority when the state regulations fail to provide for it.

While the Star

- Kist decision is indeed focused on a situation where EPA was the permitting authority that included a CS where the state had not authorized the use of one, the decision clearly explains why an authorizing provision is needed and the explanat ion holds regardless of whether the permitting authority is EPA, the State or the Tribe

. In his 1990 Star

- Kist Order on Petition for Reconsideration, the Administrator noted that “By allowing the discharger to phase in compliance over time, the interim lim itations implicitly sanction pollutant discharges that violate applicable water quality standards.” The Administrator went on to say that “In my opinion, the only instance in which the permit may lawfully authorize a Permittee to delay compliance after Jul y 1, 1977, pursuant to a schedule of compliance, is when the water quality standard itself (or the state’s implementing regulation) can be fairly construed as authorizing a schedule of compliance. The Agency’s powers in this respect, as discussed below, ar e no greater than the States’. ” (See pages 4

- 5 of the decision). This principal rationale remains intact regardless of the permitting authority

.Chapter 3 – Response Essays 9.b – CSAP – Gen Opp

Some c omment er s suggested that EPA has failed to properly apply the holding of the Star

- Kist decision and 301(b )(1)(C) and that the State does not have to put its CS provisions into the WQS itself but rather just needs a clear indication that the State is authorizing use of CS

. EPA agrees that a state or authorized tribe does not need to house its provision to auth orize the use of CS in its WQS or WQS regulations

. However, the Court’s decision in the U.S. Court of Appeals for the Eleventh Circuit’s 2004 decision, Florida Public interest Research Group Citizen Lobby, Inc., et al. v EPA, 386 F.3d 1070 (11 th Cir. 2004) established that EPA has a mandatory duty to approve or disapprove new or revised WQS even if the state did not submit such new or revised WQS to EPA for review. Thus EPA’s position is that its authority and duty to evaluate whether a provision is a new or revised WQS is not dependent upon whether the provision was submitted to EPA for review and whether or not they are physically located in the state’s WQS regulations.



### I. **Comments T**  **hat EPA’s**  **I nterpretation**  **of Star -K**  **ist I**  **nappropriately L**  **imits C**  **ompliance S**  **chedules to W**  **ater Q**  **uality S**  **tandards A**  **dopted a**  **fter July 1, 1977** 

EPA received many comments regarding its interpretation of CWA 301(b)(1)(C), as articulated in In the Matter of Star

- Kist Caribe, Inc ., that after July 1, 1977, permits must require immediate c ompliance with (i.e., may not contain CS for) effluent limitations based on WQS adopted before July 1, 1977. While EPA’s preamble to the proposed rule reiterated the Agency’s longstanding position in this regard, neither EPA’s proposed Water Quality Standa rds Regulatory Clarifications Rule nor EPA’s final rule establish any regulatory requirements addressing this issue or change any requirements for CS themselves established in section 122.47

. In addition, EPA’s preamble to the proposed rule is not the first place EPA has articulated such a position since the Star

- Kist Caribe decision. For example, EPA articulated this position in a memo from Jim Hanlon, Director of the Office of Wastewater Management
, to Alexis Strauss, the EPA Region 9 Water Divisi on Director, about CS for WQBELs in 2007. This memo can be found at http://water.epa.gov/lawsregs/guidance/wetlands/upload/signed

- hanlon

- memo.pdf

. Therefore, thes e comments about EPA’s historical position regarding the availability of CS for WQBELs based on pre

- July 1977 WQS are outside the scope of this rulemaking

, which was limited solely to establishing a regulatory provision addressing EPA approval of state or authorized tribal compliance schedule authorizing provisions. Accordingly, EPA is not responding to the specific comments provided on this specific issue.



### J. **Comment T**  **hat t**  **he P**  **hrase “C**  **onsistent with S**  **tate L**  **aw ” I**  **s U**  **nnecessary**

Some comments said that the phrase “consistent with state law” in the proposed section 131.15 was
unnecessary, because a state only act s as authorized by state law. I f CS are not consistent with state law, they can be challenged in state court, and thus it is not necessary for EPA to specify in Federal regulations that such schedules must be consistent with state law. EPA agrees that this phrase is unnecessary, and the final rule does not include it.

EPA also agrees with comments that “If a state agency has issued a compliance schedule in violation of state law, that is a matter to be dealt with in state courts under state law.” As discussed in other sections of this response, 40 CFR Part 131.15 does not alter this paradigm but rather ensures that the applicable WQS allow a CS so as to minimize legal vulnerability.Chapter 3 – Response Essays 9.b – CSAP – Gen Opp



### K. **Comments r**  **egarding the**  **Specific S tate**  **S ituations** 

EPA acknowledges receipt of comments expressing the view that a specific state or authorized tribe’s regulations are consistent with EPA’s proposed rule at section 131.15. Other comments stated that it

was unclear what affect this rule would have on an existing, previously

- approved state program. EPA has not evaluated specific state provision s for consistency with the final rule, and will not express agreement or disagreemen t here with the specific situations that commenters point out. EPA recommends states and authorized tribes evaluate their program and state provisions for consistency with the final regulation at section 131.15. States and authorized tribes should work with their EPA Regional offices, which are available to assist states and authorized tribes with any questions about the final requirements.



### L. **Comment r**  **egarding R**  **eferences to**  **C lean Water Act**  **and National Pollutant**  **Discharge Elimination System R**  **egulation**

Some comments requested that the rule be consistent with and specifically reference the following: requirements for perm it CS in CWA s ections 502(17) and 301(b), as well as 40 CFR 122.2, 122.44, 122.47. EPA’s final rule provides the appropriate references, as necessary, to convey the requirement as it intends. While the regulatory provision at section 131.15 does not specifica lly cite to the regulations at 40 CFR p art 122, it do es not eliminate the need for any permits and CS to meet the relevant permitting requirements. EPA’s preamble also references the proper permitting regulations.



### M. **Comment T**  **hat C**  **ompliance S**  **chedule A**  **uthorizing Provisions C**  **ould L**  **imit F**  **lexibility in**  **P ermits** 

Some comments stated the concern that EPA regional offices could interpret the proposed provision at section 131.15 to mean that authorizing provisions must include not only a statement of authority but also the provisions that are included in the specific permit CS (e .g., time period, specific interim deadlines, etc.)

. The commenters were concerned that s uch requirements would severely limit a State's ability to structure a permit that is appropriate for the specific condition as they relate to that ind ividual permit. While EPA disagrees that EPA’s regulation could be interpreted in this way, EPA has made sure that the final rule language and preamble clearly articulate the intent of the regulation. T he final rule at section 131.15 does not address the specifics of the CS themselves

, and the preamble is clear that this rule does not “change any permit compliance schedule requirements at § 122.47” (S ee section N of this response essay for information regarding what detail is or is not expected in a provision authorizing CS for which EPA would take action under CWA section 303(c). ) EPA is confident that the information in the final rule, final preamble, and these responses to comments are clear regarding the intent of this regulation and will ensure that this provision is discussed in any subsequent national guidance so as to be interpreted consistently across all EPA Regional Offices and Headquarters

.



### N. **Comment r**  **egarding D**  **etail R**  **equired in**  **C ompliance**  **S chedule**  **Authorizing Provisions** 

Comments stated that based on Star

- Kist, States need only indicate or mention that they intend to authorize the use of CS in their respective WQS or implementing regulations . D etails such as “time limits or any other restrictions on compliance schedules” was not addressed by Star

- Kist and thus “ EPA has no authority to require that a State’s detailed CS provisions be submitted to the Agency for its approval.” EPA agrees that , as a general matter, state or authorized tribal regulations functioning as the analoguesChapter 3 – Response Essays 9.b – CSAP – Gen Opp

to 122.47 need not be submitted to EPA for approval as WQS. S uch details about specific CS are not subject to EPA approval. As discussed earlier, section 131.15 does not assert or create EPA authority under CWA section 303(c) over CS themselves or state and authorized tribal regulatory provisions regarding CS that go beyond authoriz ing their use.



### O. **Comment T**  **hat C**  **ompliance S**  **chedules A**  **re N**  **ot J**  **ust for**  **W ater Quality** 

**- Based**  **Effluent Limits in**  **National Pollutant Discharge Elimination System P**  **ermits**

Some comments stated that the proposed rule c reated further confusion by asserting that CS may only be authorized for WQBELs , and said that t his assertion is not supported by the text of the Act. The
commenter s misunderstand the purpose of the new rule. Neither the proposed n or final rule limit the

u se of CS to NPDES permit s or limit the use of those CS to WQBELs. The rule is only intended to provide a mechanism for EPA approval pursuant to CWA section 303(c) of state or authorized tribal provisions authorizing the use of CS for WQBELs so that such CS are consistent with and derive from and comply with CWA section 301(b)(1)(C) and 40 CFR 122.44(d) (1) (vii)(A). An authorizing provision is not necessary for CS addressing non

- WQBEL NPDES permit limits or conditions

. Response essay 9.c addresses related

com ments.



### P. **Comment T**  **hat C**  **ompliance S**  **chedules N**  **eed M**  **ore L**  **imitations**

EPA received comments on how it should add restrictions to the use of CS in NPDES permits. Generally comments expressed concern that

, without provisions limiting the availability of CS , the proposed language may allow states and dischargers to avoid or indefinitely delay compliance with WQS

. Commenters expressed concern about allowing states to grant long delays in meeting WQBELs without direct EPA supervision, since EPA approval is not required for each CS issued by a state or authorized tribe (in contrast to variances, site specific criteria, and changes to designated uses, which must all be
approv ed by EPA as WQS). Some c omment s also expressed concern that allowing a CS on top of alre ady backlogged permits could extend the permit ’ s compliance date. In terms of specific restrictions, s ome commenters said that CS should be expressly prohibited for new and increased discharges of pollutants. Some urge d EPA to limit the length of CS to no longer than one NPDES permit term ( 5 years ) or even shorter (3 years)

. Some urged EPA to incorporate provisions which limit the availability of CS to situations where the permittee has a legitimate need for more time to comply with new, more stringent WQBELs, where compliance is required “as soon as possible,” and where specific actions are required within the schedule to come into compliance.

EPA is not responding to these suggestions for rulemaking addressing permit CS themselves because these comments are beyond the scope of this rulemaking which is focused solely on adding a provision addressing EPA approval of state and authorized tribal provisions authorizing use of schedules of compliance for WQBELs in NPDES permits. EPA did not propose or solicit c omment on other issues relating to the issuance and implementation of CS or potential revisions to the NPDES regulatory provisions that govern permit CS themselves, namely the regulations at 40 CFR 122.2 and 122.47. As clearly stated in the final rule, sec tion 131.15 does not change those longstanding regulatory requirements.

Some comment s said that Star

- Kist may allow for issuance of CS in instances that are not p ermitted under the CWA. The commenter s did not provide evidence for this assertion so EPA is u nable to provide
a response

.Chapter 3 – Response Essays 9.b – CSAP – Gen Opp



### Q **. Compliance S**  **chedules A**  **re N**  **ot A**  **llowed A**  **nymore**

Some commenters provided a variety of reasons for its position that CS for WQBELs in NPDES permits should no longer be allowed. EPA is not responding to comments requesting EPA to prohibit permit CS altogether because they are beyond the scope of this rulemaking which is focused solely on the need for
states and authorized tribes to obtain EPA approval pursuant to CWA 303(c) for their provisions authorizing schedules of complian ce for WQBELs in NPDES permits as allowed by the current regulations at 40 CFR 122.47. EPA did not propose or solicit comment on the NPDES regulatory provisions that apply to permit CS themselves

. Any blanket prohibitions to use of CS altogether would requ ire revisions to the NPDES regulations at 40 CFR p art 122 , and EPA did not propose or solicit comment on revising those regulatory provisions.

EPA refers the commenter to the Administrator’s 1990 Order on Petition for Reconsideration in Star

- Kist for further discussion of EPA’s position on the availability of CS

.Chapter 3 – Response Essays 9.c – CSAP – Specific Comments



## Essay **9.c – C**  **ompliance Schedule Authorizing Provisions: Specific**  **Comments**

**A. Comments on How Detailed Compliance Schedule Authorizing Provisions**  **Must Be**

The U.S. Environmental Protection Agency ( EPA ) agrees with the comment that the following sentence from the proposal could be construed to require that , as part of a state or tribe’s approved water quality standards ( WQS ), the compliance schedule authorizing provision (CSAP) must not only allow for permit compliance schedules (CS) but also require spec ifics of how the CS will be implemented in permits:

“ (i)ndividual compliance schedules must be consistent with CWA Section 502(17), the state's EPA

approved compliance schedule authorizing provision, and the requ irements of §§122.2 and 122.47.” It is EPA’s intent in this rule only to add a provision addressing the need for states and authorized tribes, if they desire to issue CS for water quality

- based effluent limits ( WQBELs ) in National Pollutant Discharge Elimination System ( NPDES ) permits, to adopt a provision authorizing use of such CS and that such authorizing provision be approved under Clean Water Act ( CWA ) 303(c) as a WQS. Accordingly, because the above quoted language in the proposal does more than that, EPA is removing it from the final rule. Details regarding what the design and content of individual CS is already addressed by existing language in the CWA and Title 40 of the Code of Federal Regulations ( CFR ) P art 122 , especially 40 CFR section 122.47

. EPA does not intend for this rule to chang e any of the existing CS requirements in Part 122. Please see response essay 9.b. for related information.



### B. **Comment That Supports No Specific Time**  **for a**  **Compliance Schedule**

A comment supported clarification that the use of permit CS authorized under stat e or tribal WQS will be based on 40 CFR parts 122.2 and 122.47 to achieve compliance as soon as possible, but not a specific time period for compliance. EPA notes that the comment raises issues beyond the scope of the proposed rulemaking but agrees with th e comment that permit CS authorized under state or tribal WQS are subjec t to the relevant provisions in the NPDES regulation at 40 CFR part 122, and that nothing in that regulation or the Part 131 regulation limits such schedules to a specific length.



### C. C **omment about Citations**  **to Statute and N**  **ational P**  **ollutant D**  **ischarge Elimination S**  **ystem Regulations** 

A comment suggested changing the proposed text for 131.15 to include several other citations within the NPDES regulation at 40 CFR part 122 in addition to those proposed. EPA appreciates the comment, and agrees in principle that permit CS authorized under state or tribal WQS are subject to all relevant provisions in the NPDES regulation at 40 CFR part 122. The final rule does not include a list of statutory and regulatory citations with which individual permit CS must be consistent because that is beyond th e scope of the proposal and redundant of other existing provisions in Part 122 . CWA section 502 and 40 CFR part 122 apply to individual CS , even though the final rule at 40 CFR 131.15 does not reiterate those citations. C iting those provisions could give the wrong impression that CSAPs must include the level of detail already specified in those provisions.Chapter 3 – Response Essays 9.c – CSAP – Specific Comments



### D. Comments **That Permit Compliance Schedules Are Not Only for W**  **ater Q**  **uality -B**  **ased E**  **ffluent L**  **imit s** 
EPA disagrees with s ome commenters who said that the fo llowing proposed regulatory language - “authorize schedules of compliance for water quality

- based effluent limits (WQBELs) in NPDES permits”

- could have the effect of narrowing the universe of NPD ES permits and permit requirements for which permitting authorities can include permit CS . The regulation does not narrow that universe, however, nor does it preclude other appropriate uses of permit CS as provided for i n section 122.47 . The new section 13 1.15 requirements only apply to the authorization of CS for WQBELs in NPDES permits . S uch WQBELs are designed to meet WQS established by the state or authorized tribe and approved by EPA under CWA section 303(c). ( 40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A). ) Adding this new provision to the WQS regulation will encourage the state or authorized tribe to takes the necessary steps to ensure that any NPDES permit with a permit CS for a WQBEL is consistent with the state’s or authorized tribe’s applicable WQS. Th e requirement in section 131.15 does not preclude, or apply to, use of CS for permit limitations or conditions that are not WQBELs. A permitting authority can grant a permit CS for non

WQBEL NPDES permit limits or conditions without an EPA

- approved authorizing provision, provided the permit CS is consistent with the CWA, EPA’s permitting regulation, especially sections 122.2 and 122.47, and any applicable state or tribal laws and regulations. Permitting authorities can include such permit CS without an EPA

- approved permit CS AP because such limits and conditions are not themselves designed to implement the state’s or authorized tribe’s approved WQS.



### E. **Other**

With regard to the comments that disagree with EPA’s position that CS are not available for WQBELs based on WQ S adopted prior to July 1, 1977, see response essay 9.b.

With regard to the comments that section 131.15 is not needed, and that neither CS nor CSAPs are WQS that must be submitted to EPA, see response essay 9.b.

Wi th regard to the comments that section 131.15 would require states and authorized tribes to re

- adopt existing CSAPs as part of its WQS, see response essay 9.b.

With regard to the comments that EPA does not have authority to act on a state’s or authorized t ribe’s detailed CS regulations, see response essay 9.b.

With regard to the comments that EPA has misapplied or misinterpreted the Star

- Kist decision, see response essay 9.b.Chapter 3 – Response Essays 9.d – CSAP – Other General



## Essay **9.d – C**  **ompliance Schedule Authorizing Provisions: General**  **Comments**

**A. General Support**

The U.S. Environmental Protection Agency ( EPA ) appreciates comments in support of permit compliance schedules ( CS ) as tools that can be useful to states a nd authorized tribes in achieving water quality standards ( WQS ).

EPA appreciates comments in support of EPA’s proposed clarification of the requirement for states and authorized tribes seeking to use CS for water quality

- based effluent limits ( WQBELs ) in Nati onal Pollutant Discharge Elimination System ( NPDES ) permits to adopt an a uthorizing provision and have that provision approved under Clean Water Act ( CWA ) 303(c).



### B. **Comments r**  **egarding Permit Compliance Schedules and Other Mechanisms**  **to Achieve W ater**  **Q uality**  **S tandards** 

Some comments suggested that EPA should also make clear in its rules that states must issue CS as CS and not use any other mechanisms, such as admin istrative orders, to achieve the same purpose. These
comments are outside the scope of this rulemaking, as the rulemaking only addresses compliance schedule authorizing provisions (CSAPs)

. EPA does not think it appropriate to dictate how a state or authorized tribe use a dministrative orders and other judicial mechanisms

.

Some comments suggest ed that EPA make clear states ar e to evaluate whether a CS could be used prior to pursuing a variance. Th ese comment s are outside the scope of this particular provision. Moreover, EPA disagrees. There is no CWA or regulatory requirem ent that states or authorized tribes consider whether a CS could be used prior to pursuing a variance

, and there is no compelling reason to add such a requirement

. Permit CS and variances are different tools intended to be used for different purposes. In

m any circumstances it may not be appropriate to consider a permit CS before pursuing a variance . For example, if it is unknown what concrete actions need to be taken in order to achieve the WQBEL , a permit CS would not be appropriate. For more information o n EPA’s expectations regarding appropriateness of permit CS , see the memorandum from James A. Hanlon, EPA, to Alexis Strauss, EPA Region 9, Re: Compliance Schedules for Water Quality

- Based Effluent Limitations in NPDES Permits (May 10, 2007) ( http://www.epa.gov/npdes/pubs/memo_complianceschedules_may07.pdf ). As discussed in the WQS variance section of EPA’s preamble, CS and variances are not mutually exclusive, and i n some

cases a CS may be needed during the term of a variance. S ee response essay 8.e. and 8.f.i. for additional information on the relationship between CS and variances

.

EPA understands that commenters ’ concern is whether EPA’s proposed variance rules will really lead to incremental water quality improvements
, and the commenter’s general opinion is that CS are better positioned than variances to ensure progress is made. EPA revised its final variance rules in response to some of these comments. S ee EPA’s f inal rule preamble for more detailed discussion on how EPA revised the final variance rule to ensure progress in achieving WQS

.Chapter 3 – Response Essays 9.d – CSAP – Other General



### C. **Comments r**  **egarding the**  **U niverse**  **of N ational**  **P ollutant**  **D ischarge**  **Elimination S ystem**  **P ermits to**  **W hich Section**  **131.15 A pplies** 

Some c ommenter s requested clarification on the universe of NPDES permits and permit requirements to which EPA’s new regulation at section 131.15 applies

. Some comment s suggested that EPA clarify that the proposed CS regulations are limited to numeric WQBEL s. Others recommended that EPA clarify in the preamble that CS can be used not only for classic point source NPDES permits but also stormw ater permits . EPA discusses this issue in detail in section F of its preamble. Specifically, it says “ The new § 131.15 requirements only apply to the authorization of compliance schedules for WQBELs in NPDES permits. Such WQBELs are designed to meet WQS established by the state or authorized tribe and approved by EPA under CWA section 303(c). 1 Adding this new provision to the WQS regulation will ensure that the state or authorized tribe takes the necessary steps to ensure that any NPDES permit with a permit compliance schedule for a WQBEL is consistent with the state’s or authorized tribe’s
app licable WQS. The requirement in § 131.15 does not preclude, or apply to, use of compliance schedules for permit limitations or conditions that are not WQBELs. A permitting authority can grant a permit compliance schedule for non

- WQBEL NPDES permit limits o r conditions without an EPA

approved authorizing provision, provided the permit compliance schedule is consistent with the CWA, EPA’s permitting regulation, especially §§ 122.2 and 122.47, and any applicable state or tribal laws and regulations. Permitting authorities can include such permit compliance schedules without an EPA

approved permit compliance schedule authorizing provision because such limits and conditions are not themselves designed to implement the state’s or authorized tribe’s approved WQS. ” For example, for a municipal separate storm sewer system ( MS4 ) permit in which the effluent limitations are not WQBELs, the state does not need to have authorized itself to give permit CS for these kinds of limits , since the limits are not derived from WQS

. EPA has revised the final regulatory text to make this clear

. It is also important to note that the key factor to consider is whether the limit to which the CS applies is intended to meet the WQS

, not whether the limit is numeric or narrative.



### D. Comment **s r**  **egarding the 2007 EPA Memo on Compliance Schedules for**  **Water Quality**

**- Based Effluent Limitations in N**  **ational P**  **ollutant D**  **ischarge Elimination S**  **ystem Permits** 

A comment suggested that all aspects of the memorandum from James A. Hanlon, EPA, to Alexis Strauss, EPA Region 9, Re: Compliance Schedules for Water Quality

- Based Effluent Limitations in NPDES Permits (May 10, 2007) should be incorporated into the final regulation. This comment is beyond the scope of the proposed rulemaking whose limited purpose was to establish a regulatory provision regarding CSAPs

. Th at memo randum articulates EPA policy guidance regarding use of CS and many elements of the memorandum reflect provisions of the N PDES permitting regulations at part 122, which are already themselves legally binding requirements

.

1 40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A).Chapter 3 – Response Essays 9.d – CSAP – Other General



### E. Comments **r egarding**  **Limitations on and Conditions of Permit Compliance Schedules** 

EPA received multiple c omments regarding the requirements at sections 122 .2 and 122.47 for CS themselves. These comments included reconsidering how interim requirements and dates for their achievement are established in CS , limiting CS to 5 years or a permit term, addressing when a CS may be modified, prohibiting CS for new and increased discharges of pollutants, and whether EPA’s regulations should provide any limitations on the States’ authority to establish CS

. EPA is not responding to suggestions for rulemaking regarding the components or implementation of permit CS themselves because these comments are beyond the scope of this rulemaking which is focused solely on the need for states and authorized tribes to obtain EPA approval as a WQS of the state or authorized tribe’s provisions to authoriz e use of schedules of c ompliance for WQBELs in NPDES permits. EPA did not propose or solicit comment on the regulatory provisions that apply to permit CS themselves, namely the regulations at Title 40 of the Code of Federal Regulations ( CFR ) sections 122.2 and 122.47. As clearly stated in the final rule, section 131.15 does not change those regulatory requirements.

S ee also response essay 9.b for a discussion about why section 131.15 is needed even though there are federal permitting requirements for CS themselves, and even thoug h states and authorized tribes have the authority to decide whether or not to authorize permit CS

.



### F. **Comments on Specific**  **State and A**  **uthorized Tribal S**  **ituations**

Multiple commenters remarked that specific states or authorized tribes already have CSAPs that they believe are consistent with the proposed requirement. Other commenters remarked that specific states

or authorized tribes have programs that they believe would not be affected by a requirement for CSAPs

. Other commenters remark ed that a specific state or authorized tribe’s current regulations are already in place and are not subject to further action under 303(c). It is beyond the scope of this rulemaking for
EPA to evaluate specific states for consistency with the final rule, and EPA will not ex press agreement or disagreement here with the specific situations that commenters point out. EPA recommends states and authorized tribes evaluate their program for consistency with the final regulation at 131.15. States and authorized tribes should work with their EPA Regional offices, which are available to assist states and authorized tribes with any questions about the final requirements. S ee response essay 9.b for additional discussion about the need for 303(c) approval by EPA of existing CSAPs and how EPA approval does not require re

- adoption of the provision by the state

.
One commenter asked what process EPA will use “ to evaluate if a state or tribe has compliance schedules in law. ” EPA interprets this question as referring to whether a state or authorized tribe has an approved CS authorizing provision. The EPA regional offices will work with states and authorized tribes to determine whether any additional action is necessary in order to be consistent with the final rule.Chapter 3 – Response Essays 9.e – CSAP – Legal



## Essay **9.e – C**  **ompliance Schedule Authorizing Provisions: EPA’s Legal**  **Authority**

**A. General Support**

The U.S. Environmental Protection Agency ( EPA ) appreciates comments supporting the general purpose of the addition of the provision at section 131.15.



### B. **Com ments**  **That Section 131.15**  **Is Not Needed**

For a response to comments suggesting that section 131.15 is not needed and should be eliminated, see response essay 9.b. section E.



### C. **Comments r**  **egarding t**  **he Need**  **for Re**

**- Approval**  **of a Compliance Schedule Authorizing**  **Provision as W**  **ater Q**  **uality S**  **tandards**

For comments regarding the need to re

- approve compliance schedule authorizing provisions (CSAPs) since states have been issuing compliance schedules (CS) legally up until this point, see response essay 9.b. section E.



### D. Comments **r egarding Permit Compliance Schedules**  **for W ater**  **Q uality**  **S tandards**  **Adopted a**  **fter July 1, 1977** 

For a comments reflecting concern with EPA’s interpretation of the Star -K ist Caribe decision and permit CS for water quality

- based effluent limits ( WQBELs ) based on water quality standards ( WQS ) adopted after July 1, 1977, see response essay 9

. b. section I.



### E **. Comments r**  **egarding the**  **Appropriateness /**  **Authority for Section 131.15** 

For comments regarding EPA’s authority to e stablish these requirements, concer n about the detail of CSAPs and concern that EPA is placing limitations on the implementation of CS , see response essay 9.b. section N and 9.c section A

.
For comments regarding EPA’s authority to require that provisions authorizing CS be submitted to EPA for review and approval or disapproval, see response essay 9.b section C.

For comments that the Federal regulations already authorize CS , see response essay 9.b. section E.

Some commenters stated that w hether a state agency is issuing CS without proper authorization in state law or state regulation is an issue for the state legislature or state courts to address, not an issue subject to oversight by a federal agency. Whether a state has authority to issue CS in permits would be a matter of interest to the state legislature and possibly state courts. EPA ’s regulations at Title 40 of the Code of Federal Regulations ( CFR ) section 123.25(a)(18) make it a program authorization requirement that state programs have legal authority to implement, among other things, EPA’s regulatory requirements at 122.47 regarding schedules of compliance. If, however, a state issues CS for WQBELs in National Pollutant Discharge Elimination System ( NPDES ) permits without an authorizing provision approved byChapter 3 – Response Essays 9.e – CSAP – Legal

EPA pu rsuant to Clean Water Act ( CWA ) 303(c) as part of the state’s WQS, the state runs the risk that someone might challenge such CS as inconsistent with CWA 301(b)(1)(C) and 40 CFR. 122.44(d)(1)(vii)(A). It was to help states avoid that risk that EPA issued to day’s rule. For additional discussion on how permit CS relate to state law, see response essay 9.b section J.

Some comments also state d that schedules of compliance for implementing or achieving WQS standards are a matter for states/tribes and not for EPA. They cited to CWA sections 303(e) and 510 and certain quotes from the Star -K ist Caribe, Inc. Decision. For a discussion of EPA’s authority for section 131.15, how it relates to CWA section 303(e) and continuing planning processes (CPPs) , and comments regarding the Stark -Ki st Caribe, Inc

. decision, see response essay 9.b.



### F **. Compliance Schedule Authorizing Provisions Should Not**  **B e**  **in W ater**  **Q uality**  **S tandards** 

For comments that CS or CSAPs should not be a part of WQS, see response essay 9.b sections C- G, J
, and M.



### G. **Comments r**  **egarding Confusion about**  **Whether Compliance Schedules Can Be Authorized**  **for Anything Other**  **than W ater**  **Q uality**  **-B ased**  **E ffluent**  **L imit**  **s**
With regard to commenters noting confusion about whether CS can be authorized for anything other than WQBELs, see response essay 9.b section O and 9.c section D.



### H **. Compliance Schedules Are Part**  **of the Continuing Planning Process**  **, Not**  **W ater**  **Q uality**  **S tandards** 

With regard to commenters noting that CS are part of the CPP , not WQS, see response essay 9.b section G.

One commenter said that the CWA does not give EPA authority to rename part of the CPP as a WQS
, such as the CSAPs

. They said that “...then EPA could rename any requirement of state law, call it a part of “water quality standards,” and make it subj ect to EPA’s approval. ” EPA has not arbitrarily determined that CSAPs are WQS that must be reviewed and approved or disapproved by EPA while individual CS are not. EPA’s final rule preamble at section F discusses why a provision authorizing the use of CS i s a WQS and why EPA approval of such provision as a WQS helps ensure the legality of including such CS in an individual permit. S ee also response essay 9.b section E.