### Alexis Strauss, Direct r WaterDivision EPA Region 9

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460



### MAY 10 'iJJJ7

MEMORANDUM OFFICE OF WATER



### SUBJECT:

FROM:


### TO:

Recently, in discussions with Region 9, questions have been raised concerning the use ofcompliance schedules in National PollutantDischarge Elimination System (NPDES) 

### pennits consistent with the Clean Water Act (CWA) andits implementing 

### regulations at 40 C.F.R. § 

### 122.47. The use ofcompliance schedules in NPDES permits is also the subject ofongoing litigation in California. The purpose ofthis memo is to provide a framework for the review ofpermits consistent with the CWA andits implementing regulations. When maya permitting authority include a compliance schedule in apermitfor the purpose ofachieving a water quality-based effluent limitation? In 

### In The MatterofStar-Kist Caribe, Inc., 3 E.A.D. 172, 175, 177 (1990), the EPA Administrator interpreted section 301(b)(l)(C) ofthe CWA to mean that 1) after July 1, 1977, pennits must require immediate compliance with 

### (i.e., may not contain compliance schedules for) effluent limitations basedon waterquality standards adopted before July 1, 1977, and 2) compliance schedules are allowed for effluent limitations based on standards adopted after that date only ifthe State has clearly indicated in its water quality standards or implementingregulations thatit intends to allow them.

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What principles are applicable to assessing whethera compliance schedule for achieving a waterquality-based effluent limitation is consistent with the CWA and its implementing regulations? 

### 1. "When appropriate," NPDES permits may include "a schedule of compliance leading to compliance with CWA andregulations

... as soon as possible, but not later than the applicable statutory deadline under the CW

### A." 40 C.F.R. § 122.47(a)(1). Compliance schedules that are longer than one year in duration must set forth interimrequirements and dates for their achievement. 40 c.F.R. § 122.47(a)(3). 

### 2. Any compliance schedule containedin an NPDES permitmustbe an "enforceable sequence ofactions or operations leading to compliance with a [water quality-based] effluent limitation ["WQBEL"]" as required bythe definition of"schedule ofcompliance" in section 502(17) ofthe CWA. 

### See also 40 c.F.R. § 122.2 (definition of schedule ofcompliance). 3. Any compliance schedule contained in an NPDES pennit must include an enforceable final effluent limitation and a date for its achievement that is within the timeframe allowed by the applicable state or federal law provision authorizing compliance schedules as required by CWA 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)(I)(vii)(A). 4. Any compliance schedule that extends past the expiration date ofapennit must include the final effluent limitations in the pennit in orderto ensure enforceability ofthe compliance schedule as required by CWA section 502(17) and 40 C.F.R. § 122.2 (definition ofschedule ofcompliance). 5. In orderto grant acompliance schedule in an NPDES pennit, the pennitting authority has to make a reasonable finding, adequately supported by the administrative record, that the compliance schedule "willlead[] to compliance with an effluent limitation

... " "to meet waterquality standards" by the end ofthe compliance schedule as required by sections 301(b)(I)(C) and 502(17) ofthe CWA. See also 40 C.F.R. §§ 122.2, 122.44(d)(1)(vii)(A). 6. In order to grant acompliance schedule in an NPDES pennit, the permitting authority has to make a reasonable 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 that compliance with the final WQBEL is required "as soon as possible." See 40 C.F.R. §§ 122.47(a), 122.47(a)(I). 7. In order to grant a compliance schedule in an NPDES pennit, the permitting authority has to make a reasonable finding, adequately supported by the administrative record, that the dischargercannotimmediately comply with the WQBEL upon the effective date ofthe pennit. 40 C.F.R. §§ 122.47, 122.47(a)(1).3


### 8. Factors relevant to whether acompliance schedule in a specific permit is "appropriate" under40 C.F.R. § 122.47(a) include: how much time the discharger has already had to meet the WQBEL(s) underpriorpennits; the extent to which the 

### discharger has made good faith efforts to comply with the WQBELs and other requirements in its priorpennit(s); whether thereis any need for modifications to treatment facilities, operations or measures to meet the WQBELs and 

### ifso, how long would it take to implement the modifications to treatment, operations or other measures; 

### or whether the discharger would be expected to use the same treatment facilities, operations or othermeasures to meet the WQBEL as it would have used to meet the WQBEL in its prior permit. 

### 9. Factors relevant to aconclusion that aparticularcompliance schedule requires compliance with the WQBEL "as soon as possible," as required by40 C.F.R. § 

### I22.47(a)(I) include: consideration ofthe steps needed to modify orinstall treatment facilities, operations or othermeasures and the time those steps would take. The pennitting authority should not simply presume that acompliance schedule be based on the maximum time period allowed by a State's authorizing provision. 10. Acompliance schedule based solely on time needed to develop aTotal Maximum Daily Load is not appropriate, consistent with EPA's letter ofOctober 23, 2006, to Celeste Cantu, Executive Director ofthe California State WaterResources Control Board, in which EPA disapproved aprovision ofthe Policy for Implementation ofToxic Standards forInland Surface Waters, Enclosed Bays, and Estuaries for California. 11. A compliance schedule based solely on time needed to develop aUse Attainability Analysis is also not appropriate, consistent with EPA's letterofFebruary 20, 2007, to Doyle Childers, DirectorMissouri Department ofNatural Resources, noris a compliance schedule based solely on time needed to develop a site specific criterion, for the same reasons as setforth in the October23, 2006, (referenced in Paragraph 10) and February 20, 2007 letters. 

### Ifyou have any questions, please contactme at (202) 564-0748 orhave your staff contactLinda Boornazian at (202) 564-0221.