Alexis Strauss, Direct r

Water Division

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 of compliance schedules in National Pollutant Discharge Elimination System

(NPDES) pennits consistent with the Clean Water Act (CWA) and its implementing

regulations at 40 C.F.R. § 122.47. The use of compliance schedules in NPDES permits is

also the subject of ongoing litigation in California. The purpose of this memo is to

provide a framework for the review of permits consistent with the CWA and its

implementing regulations.

When maya permitting authority include a compliance schedule in a permit for the

purpose of achieving a water quality-based effluent limitation?

In In The Matter of Star-Kist Caribe, Inc., 3 E.A.D. 172, 175, 177 (1990), the

EPA Administrator interpreted section 301(b)(l)(C) of the 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 based on water quality standards adopted

before July 1, 1977, and 2) compliance schedules are allowed for effluent limitations

based on standards adopted after that date only if the State has clearly indicated in its

water quality standards or implementing regulations that it intends to allow them.

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What principles are applicable to assessing whether a compliance schedule for achieving

a water quality-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 and regulations ... as soon as possible, but

not later than the applicable statutory deadline under the CWA." 40 C.F.R. §

122.47(a)(1). Compliance schedules that are longer than one year in duration must set

forth interim requirements and dates for their achievement. 40 c.F.R. § 122.47(a)(3).

2. Any compliance schedule contained in an NPDES permit must be an

"enforceable sequence of actions or operations leading to compliance with a [water

quality-based] effluent limitation ["WQBEL"]" as required by the definition of "schedule

of compliance" in section 502(17) of the CWA. See also 40 c.F.R. § 122.2 (definition of

schedule of compliance).

3. Any compliance schedule contained in an NPDES 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 of a pennit

must include the final effluent limitations in the pennit in order to ensure enforceability

of the compliance schedule as required by CWA section 502(17) and 40 C.F.R. § 122.2

(definition of schedule of compliance).

5. In order to grant a compliance schedule in an NPDES 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 water quality standards" by the end of the compliance

schedule as required by sections 301(b)(I)(C) and 502(17) of the CWA. See also 40

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

6. In order to grant a compliance schedule in an NPDES 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 discharger cannot immediately comply with the WQBEL

upon the effective date of the pennit. 40 C.F.R. §§ 122.47, 122.47(a)(1).
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8. Factors relevant to whether a compliance schedule in a specific permit is

"appropriate" under 40 C.F.R. § 122.47(a) include: how much time the discharger has

already had to meet the WQBEL(s) under prior pennits; the extent to which the

discharger has made good faith efforts to comply with the WQBELs and other

requirements in its prior pennit(s); whether there is any need for modifications to

treatment facilities, operations or measures to meet the WQBELs and if so, how long

would it take to implement the modifications to treatment, operations or other measures;

or whether the discharger would be expected to use the same treatment facilities,

operations or other measures to meet the WQBEL as it would have used to meet the

WQBEL in its prior permit.

9. Factors relevant to a conclusion that a particular compliance schedule

requires compliance with the WQBEL "as soon as possible," as required by 40 C.F.R. §

I22.47(a)(I) include: consideration of the steps needed to modify or install treatment

facilities, operations or other measures and the time those steps would take. The

pennitting authority should not simply presume that a compliance schedule be based on

the maximum time period allowed by a State's authorizing provision.

10. A compliance schedule based solely on time needed to develop a Total

Maximum Daily Load is not appropriate, consistent with EPA's letter of October 23,

2006, to Celeste Cantu, Executive Director of the California State Water Resources

Control Board, in which EPA disapproved a provision of the Policy for Implementation

of Toxic Standards for Inland Surface Waters, Enclosed Bays, and Estuaries for

California.

11. A compliance schedule based solely on time needed to develop a Use

Attainability Analysis is also not appropriate, consistent with EPA's letter of February

20, 2007, to Doyle Childers, Director Missouri Department of Natural Resources, nor is a

compliance schedule based solely on time needed to develop a site specific criterion, for

the same reasons as set forth in the October 23, 2006, (referenced in Paragraph 10) and

February 20, 2007 letters.

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

contact Linda Boornazian at (202) 564-0221.