Marcela von Vacano U.S. Environmental Protection Agency Office of Regional Counsel
75 Hawthorne Street San Francisco, CA 94105 Vonvacano.marcela@epa.gov

Dear Ms. v on Vacano:

Re: Applicability of State Water Resources Control Board’s Compliance Schedule Policy to U.S. EPA’s Proposed Selenium Water Quality Standard

The United States Environmental Protection Agency ( U.S. EPA ) plans to propose to rescind existing marine and estuarine selenium water quality criteria that were adopted as part of the National Toxics Rule ( promulgated at 40 Code of Federal Regulations section 131.36 ), and adopt new , more protective, selenium water quality criteria for aquatic life and aquatic

- dependent wildlife in the San Franc isco 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 Resources Control Board’s Resolution No.

2008

- 0025, Policy for Compliance Schedules in Nation al Pollutant Discharge Elimination System Permits (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
th e State Water Resources Control 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 proposed.

The Compliance Schedule Policy states that it “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 ... .” Compliance Schedule Policy (2008), p. 3, §

2. S ection 2 of the Compliance Schedule Policy also includes specific exceptions to this general rule of applicability. The specific exception that relates to water quality criteria promulgated in the California

Toxic s Rule provides as follows:

Compliance sc hedules 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 th e 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

. This exception applies only to the water quality criteria that were in the California Toxics Rule as the California Toxics Rule existed on July 1, 2005. The proposed new water quality criteria for selenium were not part of the California Toxics Rule on July 1, 2005. As further support, the final sentence of the paragrap h confirms that the Compliance Schedule Policy does apply to water quality criteria that are promulgated in the CaliforniaToxics Rule that are revised by U.S. EPA after the Compliance Schedule Policy’s December 17, 2008
effective date. In this particular circumstance , U.S. EPA proposes to adopt new water quality criteria, rather than revise existing water criteria, in the California Toxics Rule. It would be incongruous to conclude that the Compliance Schedule Policy applied to the latter, but not the for mer , circumstance

.

If you have any questions regarding this letter, please contact Philip G. Wyels, Assistant Chief Counsel, at philip.wyels@waterboards.ca.gov or (916) 341

- 5178.

Sincerely,

Michael A.M. Lauffer
Chief Counsel