CHAPTER 2 

Issue Category: Compliance Schedule 

Authorizing Provisions

Pages 2-1310 – 2-1387

Response to Public Comments

Water Quality Standards Regulatory Revisions

August 2015

40 CFR Part 131

Docket #: EPA-HQ-OW-2010-0606

This document is part of a larger document.
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

9 - COMPLIANCE SCHEDULE AUTHORIZING PROVISIONS 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

9.A - CSAP - GEN SUPP 

Comment ID 0121-A1.001.007 

Author Name: Whirley Gregory 

Organization: Virginia Department of Transportation 

(6) Provisions Authorizing the Use of Permit-Based Compliance Schedules - §131.15 

A section was added (§131.15) addressing compliance schedule authorizing provisions. This language allows for a 

state to authorize schedules of compliance for water quality-based effluent limits (WQBELs) in NPDES permits by 

including an authorizing provision in its WQS or implementing regulations. This provision is subject to EPA review and 

approval and must be consistent with the CWA. 

The Virginia WQS currently address VPDES permits and schedules of compliance specific to the Chesapeake Bay 

watershed by including a compliance schedule in accordance with implementing regulations for nutrient load limitations. 

The incorporation of an additional schedule of compliance for WQBELs allows DEQ to provide a permittee additional 

time to comply with a WQBEL beyond the date of permit issuance. 

The addition of this language will likely increase the level of effort required by DEQ, the Virginia State Water Control 

Board and permittees, in that the Virginia WQS must include a provision for compliance schedules for WQBELs and will 

add complexity to the process for securing variances. However, because the variance process is seldom used and we 

are not directly aware of any variances under which the VDOT is operating, the addition of this language does not 

appear to cause an undue burden on VDOT. 

Thank you for the opportunity to comment on EPA's proposed rule regarding Water Quality Standards Regulatory 

Clarifications. If you have any questions about these comments, please feel free to contact Tracey Harmon at (804) 

371-6834. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section C 

Comment ID 0123-A1.001.022 

08/04/2015 05:01 PM EDT 2-1310
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Author Name: Chin Ryan 

Organization: NA 

Compliance Schedule 

I agree with EPA's proposal regarding the permit-based compliance schedule, as it would clarify that individual 

schedules of compliance are not WQS but must be consistent with CWA section 502 (17), specifically that the schedule 

of remedial measures are to lead to compliance with effluent limitation, other limitations, prohibition, or standard. 

Further, it allows states or tribes to authorize schedules of compliance for water-quality-based effluent limits (WQBELs) 

in NPDES permits if the state or tribe has authorized such schedules pursuant to its own law, water quality standards, 

or implementing regulations. This clarification addresses EPA's concern that permitting authorities may be including 

compliance schedules in permits and delaying compliance with WQS-based WQBEL, even when the state or tribe has 

not authorized the use of such compliance schedules in its WQS or implementing regulations. The proposal clarifies 

that a compliance schedule authorization is allowed only when the state or tribe has authorized the use of such 

schedules in its WQS or implementing regulations, which those are subject to EPA's approval under the CWA. When 

those schedules are authorized in WQS or implementing regulations, and are approved by the EPA, this means 

compliance schedules in permits are therefore fully consistent with the requirements contemplated by CWA section 301 

(b) (1) (c), as opposed to when they are not authorized and therefore not guaranteed to be consistent with the 

requirements. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

Comment ID 0129-A2.001.017 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

6. Permit Compliance Schedules 

VAMWA believes that the new proposed section 131.15 compliance schedule regulation is appropriate and consistent 

with existing law, and we urge its adoption without additional changes. 

Response 

For response to this comment, see the following response essay(s): 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

9.a 

9.a: Section A 

Comment ID 0133-A2.001.020 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

6. Provisions Authorizing Use of Permit-Based Compliance Schedule 

a. LDEQ currently allows for compliance schedules in its WQS regulations and therefore has no issue with language 

clarifying the requirement in the national regulations. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section B 

Comment ID 0150-A1.001.016 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

Permit Compliance Schedules 

HRSD believes that the new proposed section 131.15 compliance schedule regulation is appropriate and consistent 

with existing law, and urges its adoption without additional changes. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

Comment ID 0153-A2.001.023 

Author Name: Bishop Jonathan 

08/04/2015 05:01 PM EDT 2-1312
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Organization: California State Water Resources Control Board 

VI. Compliance Schedule Authorizing Provisions. 

EPA proposes to add section 131.15 to clarify that states may issue schedules of compliance for water quality based 

effluent limitations in NPDES permits only if a state has authorized a compliance schedule in its WQS or implementing 

regulations. Any such authorizing provision (which must be consistent with CWA sections 502(17) and 301(b)(1)(C)) is 

a WQS subject to EPA review and approval. (78 Fed. Reg. 54545, col. 3.) The State Water Board supports this 

clarification, which is consistent with the State Water Boards' existing policies. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

9.a: Section B 

Comment ID 0165-A2.001.018 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

17. Compliance Schedules 

Colorado supports the proposed language at 40 CFR Part 131.15 on compliance schedule authorizing provisions in that 

it helps to ensure a state's authorization of a permittee's compliance schedule as legally binding and allowable under 

the Act. Colorado has already adopted such a provision in its WQSs rules. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

9.a: Section B 

Comment ID 0186-A1.001.013 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

• API supports the clarifying language on permit-based compliance schedules, which recognizes that such schedules 

are authorized when state WQS specifically provide for them. 

• API supports the proposed compliance schedule language, which allows states to establish the maximum compliance 

schedule duration in an NPDES permit. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

9.a: Section D 

Comment ID 0186-A1.001.031 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

Permit-based Compliance Schedules (Section III.g., 78 Fed. Reg. 54536-54537) 

API supports the clarifying language on permit-based compliance schedules, which recognizes that such schedules are 

authorized when state WQS specifically provide for them. 

Compliance schedules are essential when a "new" or revised WQBEL is included in an NPDES permit. This may occur 

when a state has revised its WQS rules to adjust a numeric criterion or has added a criterion for a new constituent to its 

rules or when a completed and approved TMDL results in reduced WQBELs for one or more effluent constituents. 

Compliance schedules have also proven useful to provide time for a discharger to pursue a site-specific numeric 

criterion for a specific effluent constituent, a common example being site-specific WQBELs for aluminum. 

API understands that it has been EPA's interpretation since the decision on In the Matter of Star- Kist Caribe, Inc. [1990 

WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD 172 (April 16, 1990)] that in order for states to authorize NPDES 

permit compliance schedules specific authorizing language must be included in a state's WQS rule or implementation 

rules. Thus, the proposed revision to Part 131.15 is clarification of long-standing policy and is not a new requirement 

and API supports this revision. 

API supports the proposed compliance schedule language, which allows states to establish the maximum compliance 

schedule duration in an NPDES permit. 

The proposed provision at 40 CFR 131.15 does not set any maximum threshold duration for compliance schedules, 

which API believes is appropriate. Compliance schedules should have authorized durations of up to 5 years, the 

maximum duration of an NPDES permit authorization before it must be renewed. 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Permittees may have to make substantial changes to their facilities, including construction of additional treatment units 

or relocation of outfalls, to comply with new or reduced WQBELs in their permits. These improvements may require 

substantial amounts of time to identify all in-plant sources of a constituent, conduct evaluations of alternative control 

methods including completion of pilot studies of effectiveness, conduct detailed engineering design, and then procure, 

install and start-up new units. Such activities can consume up to five years if major projects are involved and states 

should have the ability to authorize a compliance schedule of up to five years when a discharger can demonstrate a 

need for the duration. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

9.a: Section D 

Comment ID 0198-A1.001.014 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

Compliance schedules 

EPA's proposed revision provides that state compliance schedule authorizing provisions must be adopted as part of a 

state WQS, and, therefore, must be submitted to EPA for review and action. Additionally, the new language specifies 

that individual compliance schedules adopted pursuant to such provisions are not in themselves WQS. Consistent with 

the Starkist decision, MassDEP's WQS already explicitly allow for compliance schedules in NPDES permits (see 314 

CMR 4.03(1)) and EPA has approved MassDEP's compliance schedule regulation. MassDEP agrees with the proposed 

changes. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section B 

Comment ID 0202-A2.001.018 

Author Name: Frederick Kevin 

08/04/2015 05:01 PM EDT 2-1315
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

Compliance Schedule Authorizing Provision 

The WDEQ/WQD supports the EPA's proposed revision to 131.15 specifying that states may authorize schedules of 

compliance for water-quality based effluent limits in NPDES permits in either its water quality standards or implementing 

regulations. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

Comment ID 0217-A2.001.024 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

6. Provisions Authorizing the Use of Permit-Based Compliance Schedules 

The Alaska WQS regulations (Title 18 Alaska Administrative Code, Chapter 70) authorize compliance schedules that 

appear to comply with the proposed rule. ADEC supports this clarification in the proposed WQS rule. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section B 

Comment ID 0236-A2.001.038 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

G. 131.15 Compliance Schedules 

WDNR supports the following clarifications: 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

• 131.15 should be amended to conform to the precedence established in the Starkist decision. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

Comment ID 0249-A2.001.017 

Author Name: Calamita F. Paul
 

Organization: General Counsel on behalf of The Wet Weather Partnership et al.
 

6. Permit Compliance Schedules 

The Associations believe that the new proposed section 131.15 compliance schedule regulation is appropriate and 

consistent with existing law, and we urge its adoption without additional changes. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

Comment ID 0264-A2.001.025 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

VI. Compliance Schedule Authorization Provisions 

ACWA supports the proposed language at 40 CFR Part 131.15 on compliance schedule authorizing provisions in that it 

helps to ensure a state's authorization of a permittee's compliance schedule as legally binding and allowable under the 

Act. Compliance schedules, like variances, are important tools for achieving the goals of the Act as they set forth 

attainable goals which dischargers can reasonably reach in a limited amount of time. 

Response 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

Comment ID 0270-A1.001.009 

Author Name: Todd Andrew 

Organization: Colorado Water Quality Control Commission 

VI. Authorization of Compliance Schedules 

Colorado's water quality standards authorize the Water Quality Control Division to utilize compliance schedules in 

discharge permits, therefore the Commission does not have concerns regarding this proposed revision. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section B 

Comment ID 0271-A1.001.020 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

21. Addition of new regulatory provision in § 131.15. The Pueblo of Sandia has reviewed the proposed addition and 

agrees with the proposed language. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section A 

Comment ID 0282-A2.001.013 

Author Name: Gildersleeve Melissa 

08/04/2015 05:01 PM EDT 2-1318
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Organization: State of Washington, Department of Ecology

 6. Compliance schedules 

EPA proposed revisions to 131.15 on compliance schedule authorizing provisions clarifies that such provisions are 

subject to EPA review and approval as a water quality standard, but that individual compliance schedules are not. This 

is a good clarification. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section D 

Comment ID 0284-A2.001.013 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

6. Compliance schedules 

EPA proposed revisions to 131.15 on compliance schedule authorizing provisions clarifies that such provisions are 

subject to EPA review and approval as a water quality standard, but that individual compliance schedules are not. This 

is a good clarification. 

Response 

For response to this comment, see the following response essay(s): 

9.a 

9.a: Section D 

9.B - CSAP - GEN OPP 

Comment ID 0134-A1.001.010 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Compliance Schedules 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

State regulations - The proposed rule would add a completely new section to EPA's water quality standards regulations, 

§ 131.15, to make compliance schedules a water quality standard that must be incorporated into state water quality 

regulations and approved by EPA. EEI disagrees with this proposal. State decisions as to how and when to require 

compliance with water quality-based limits are made within the confines of the NPDES permitting process, based on the 

State's judgment as to how their standards should be implemented taking into account the particular water bodies and 

permitted activities involved. EPA should not seek to control how states make those decisions. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0145-A2.001.010 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Compliance Schedules 

State regulations - The proposed rule would add a completely new section to EPA's water quality standards regulations, 

§ 131.15, to make compliance schedules a water quality standard that must be incorporated into state water quality 

regulations and approved by EPA. EEI disagrees with this proposal. State decisions as to how and when to require 

compliance with water quality-based limits are made within the confines of the NPDES permitting process, based on the 

State's judgment as to how their standards should be implemented taking into account the particular water bodies and 

permitted activities involved. EPA should not seek to control how states make those decisions. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0146-A2.001.002 

Author Name: Kessler Katrina 

Organization: Minnesota Pollution Control Agency 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

The MPCA supports the language proposed for addition to 40 C.F.R. § 131.15. However, the MPCA does not support 

EPA's preamble language that indicates that the Clean Water Act prohibits the use of schedules of compliance in an 

National Pollutant Discharge Elimination System (NPDES) permit to obtain compliance with effluent limits based on 

water quality standards adopted prior to July 1, 1977, citing Star-Kist Caribe, Inc. (EPA 1990) ("SKC"). The MPCA 

believes that the EPA applies the SKC decision in a manner contrary to its actual holding, and that EPA's reliance on 

dicta [FN1] in that decision results in a misapplication of law and amounts to a restriction on state authority not required 

by the Clean Water Act. 

[FN1] "Dicta" are non-binding comments in a decision that are not part of the actual holding in the case. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section H 

9.b: Section I 

Comment ID 0149-A2.001.010 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

4. Compliance schedules. 

Pueblo questions whether the water quality standards regulation is the appropriate place for EPA to provide rules 

governing states' implementation of compliance schedules. As defined in the Clean Water Act, a "schedule of 

compliance" is inherently a permitting decision; it "means a schedule of remedial measures including an enforceable 

sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or 

standard." CWA § 503(17). Implementation of effluent limitations necessary to meet schedules of compliance 

"established pursuant to any State law or regulations" is explicitly authorized by Section 301(b)(1)(C) of the Act. Placing 

conditions on states' implementation of compliance schedules in the water quality standards regulation creates 

unnecessary confusion and is inconsistent with the intent of the Act. 

In particular, the Proposed Rule creates confusion by incorrectly asserting that a state's compliance schedule 

authorizing provision is itself a "water quality standard subject to EPA review and approval." Elsewhere, the regulation 

defines "water quality standards" as 

provisions of State or Federal law which consist of a designated use or uses for the waters of the United States and 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

water quality criteria for such waters based upon such uses. Water quality standards are to protect the public health or 

welfare, enhance the quality of water and serve the purposes of the Act. 

40 CFR 131.3(i). This definition does not include state regulations that implement schedules of compliance in permits 

as defined in the Act. 

The Proposed Rule creates further confusion by asserting that compliance schedules may only be authorized for waterquality-based effluent limits. This assertion is not supported by the text of the Act. 

Pueblo therefore recommends that EPA eliminate § 131.15 from its proposal. Alternatively, EPA should modify its 

proposal as follows: 

§ 131.15 Compliance schedule authorizing provisions. 

A State may, at its discretion and consistent with state law, authorize schedules of compliance [begin strikeout] for 

water quality based effluent limits (WQBELs) [end strikeout] in NPDES permits by including a compliance schedule 

authorizing provision in its water quality standards or implementing regulations. Any such provision [begin strikeout] is a 

water quality standard subject to EPA review and approval and [end strikeout] must be consistent with sections 502(17) 

and 301(b)(1)(C) of the Act. [begin strikeout] Individual compliance schedules issued pursuant to such authorizing 

provisions are not themselves water quality standards. [end strikeout] Individual compliance schedules must be 

consistent with CWA section 502(17), the state's [begin strikeout] EPA approved [end strikeout] compliance schedule 

authorizing provision, and the requirements of §§ 122.2 and 122.47. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section B 

9.b: Section C 

9.b: Section O 

Comment ID 0156-A1.001.017 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

6. Permit-Based Compliance Schedules [Section III.G, FR 54536, 40 CFR section 131.15] 

CASA and Tri-TAC support the proposed clarification regarding compliance schedules designed to be consistent with 

the decision in In the Matter of Star-Kist Caribe, Inc., and specifically the language within section 131.15 that states 

"[i]ndividual compliance schedules issued pursuant to such authorizing provisions are not themselves water quality 

standards." However, we do not concur that a state's compliance schedule authorizing provision "...is a water quality 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

standard subject to EPA review and approval..." Compliance schedules are an implementation provision and permitting 

tool, not WQS subject to USEPA approval. The modifications should simply state that a NPDES permitting authority 

may issue compliance schedules in NPDES permits if the State has a compliance schedule authorizing provision in 

place (whether it be policy, regulation, or statute). 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section C 

Comment ID 0157-A1.001.018 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Compliance Schedules -- 40 CFR 131.15 

The Chamber supports EPA's recognition that compliance schedules are important tools for dischargers to comply with 

water quality-based effluent limitations in NPDES Permits. However, states should be authorized to establish 

compliance schedules pursuant to their NPDES permitting procedures as a compliance schedule is not in and of itself a 

water quality standard. To this extent, the Chamber disagrees with EPA's statement that compliance schedule 

regulations must be reviewed and approved as water quality standards. (For example, Kentucky's compliance schedule 

regulation at 401 KAR 5:070 Section 2 is not part of its water quality standards and it incorporates EPA's provision for 

compliance schedules at 401 CFR 122.47, which also is not a water quality standard.) 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section C 

Comment ID 0158-A1.001.036 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

5) Compliance schedules §131.15 

KDOW believes compliance schedules are necessary tools of the Act and supports EPA's recognition of the important 

role of compliance schedules in the permitting process. However, the proposed WQS regulation at §131.14 is once 

more attempting to control States' authority and discretion to implement their water quality standards. A compliance 

schedule is not a water quality standard governed by 40 CFR Part 131 but is, rather, a tool for implementing the 

National Pollutant Discharge Elimination System permitting program set out in 40 CFR Part 122. Calling a permitting 

tool a "water quality standard" does not make it so. It very much appears as if EPA is attempting to bring all State 

decision-making pursuant to State authority granted by the Act under the rubric of "water quality standards" thus 

broadening greatly EPA's control of States' decision-making. KDOW respectfully suggests that EPA strike §131.15. 

" [begin strikeout] §131.15 Compliance schedule authorizing provisions. [end strikeout] 

[begin strikeout] A State may, at its discretion and consistent with state law, authorize schedules of compliance for 

water quality based effluent limits (WQBELs) in NPDES permits by including a compliance schedule authorizing 

provision in its water quality standards or implementing regulations. Any such provision is a water quality standard 

subject to EPA review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act. 

Individual compliance schedules issued pursuant to such authorizing provisions are not themselves water quality 

standards. Individual compliance schedules must be consistent with CWA section 502(17), the state's EPA approved 

compliance schedule authorizing provison, and the requirements of §§ 122.2 and 122.47. [end strikeout] " 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section B 

9.b: Section C 

Comment ID 0160-A2.001.018 

Author Name: West Jeff 

Organization: Xcel Energy 

[This excerpt contains red-line/strikeout text. Refer to the original document for recommended edits.] 

Xcel Energy therefore recommends that EPA eliminate § 131.15 from its proposal. Alternatively, EPA should modify its 

proposal as follows: 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

§ 131.15 Compliance schedule authorizing provisions. 

A State may, at its discretion and consistent with state law, authorize schedules of compliance [begin strikeout] for 

water quality based effluent limits (WQBELs) [end strikeout] in NPDES permits by including a compliance schedule 

authorizing provision in its water quality standards or implementing regulations. Any such provision [begin strikeout] is a 

water quality standard subject to EPA review and approval and [end strikeout] must be consistent with sections 502(17) 

and 301(b)(1)(C) of the Act. [begin strikeout] Individual compliance schedules issued pursuant to such authorizing 

provisions are not themselves water quality standards. [end strikeout] Individual compliance schedules must be 

consistent with CWA section 502(17), the state's [begin strikeout] EPA approved [end strikeout] compliance schedule 

authorizing provision, and the requirements of §§ 122.2 and 122.47. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section B 

9.b: Section C 

9.b: Section O 

Comment ID 0166-A2.001.036 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

5) Compliance schedules §131.15 

KDOW believes compliance schedules are necessary tools of the Act and supports EPA's recognition of the important 

role of compliance schedules in the permitting process. However, the proposed WQS regulation at §131.14 is once 

more attempting to control States' authority and discretion to implement their water quality standards. A compliance 

schedule is not a water quality standard governed by 40 CFR Part 131 but is, rather, a tool for implementing the 

National Pollutant Discharge Elimination System permitting program set out in 40 CFR Part 122. Calling a permitting 

tool a "water quality standard" does not make it so. It very much appears as if EPA is attempting to bring all State 

decision-making pursuant to State authority granted by the Act under the rubric of "water quality standards" thus 

broadening greatly EPA's control of States' decision-making. KDOW respectfully suggests that EPA strike §131.15. 

" [begin strikeout] §131.15 Compliance schedule authorizing provisions. [end strikeout] 

[begin strikeout] A State may, at its discretion and consistent with state law, authorize schedules of compliance for 

water quality based effluent limits (WQBELs) in NPDES permits by including a compliance schedule authorizing 

provision in its water quality standards or implementing regulations. Any such provision is a water quality standard 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

subject to EPA review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act. 

Individual compliance schedules issued pursuant to such authorizing provisions are not themselves water quality 

standards. Individual compliance schedules must be consistent with CWA section 502(17), the state's EPA approved 

compliance schedule authorizing provison, and the requirements of §§ 122.2 and 122.47. [end strikeout] " 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section B 

9.b: Section C 

Comment ID 0170-A1.001.008 

Author Name: Faggert Pamela
 

Organization: Dominion Resources Services, Inc.
 

Compliance Schedules 

The proposed regulatory changes include a new section, Section §131.15, which would make a State's rule authorizing 

compliance schedules, such as those in NPDES permits, a WQS. As a WQS, States' implementation of compliance 

schedules would then be subject to EPA review and approval. Compliance schedules are provided in NPDES permits 

by delegated States in accordance with their respective rules for implementation of WQS and are not themselves WQS. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0171-A2.001.016 

Author Name: Borkowski Winston
 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc.
 

Compliance Schedules 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Compliance schedules are an essential tool for allowing NPDES permittees the necessary time to identify, engineer and 

implement essential adjustments to treatment processes, often including the installation of costly pollution control 

equipment, in order to meet new criteria. The availability of reasonable compliance schedules continues to be critical as 

regulated facilities contend with numeric nutrient criteria and ever-more stringent human health based water quality 

criteria in the near future. 

Nearly 24 years after the fact, EPA has decided it must address the former EPA Administrator's decision styled In the 

Matter of Star-Kist Caribe, Inc., to the extent that the ruling addressed compliance schedules. The administrative order 

was issued on April 16, 1990 in response to a petition filed with EPA's Environmental Appeals Board. 

To address the 23-year-old opinion, EPA has proposed amending its regulations to mandate that state provisions 

authorizing compliance schedules must be adopted as part of a state's water quality standards and submitted to EPA 

for review and approval under § 303(c) of the Clean Water Act. This mandate would apply even if the exact same state 

provision had been approved by EPA as part of the state's EPA-approved NPDES program. 

The amended regulation, as proposed, allows states to adopt a provision authorizing compliance schedules, and that 

provision, not the individual compliance schedules resulting there from, is considered a change in water quality 

standard subject to CWA § 303(c) review. CF asserts that an identical provision approved as part of a state's NPDES 

program, need not be reviewed or approved a second time by EPA staff who happen to work with § 303 of the CWA 

instead of § 402. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section E 

Comment ID 0171-A2.001.018 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

CF does concur that individual compliance schedules should not be subject to review under § 303(c) of the CWA 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

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Comment ID 0172-A2.001.008 

Author Name: Foster Tad 

Organization: Tad S. Foster Attorney at Law on behalf of three small municipal dischargers 

[This excerpt contains additions to the proposed regulation text that are in all caps and strikeout. Refer to the original 

document for recommended edits.] 

COMPLIANCE SCHEDULES: 

Amend proposal to be clear that the state water quality standards authorize use of compliance schedules, but that does 

not mean individual compliance schedules are adopted as state water quality standards. 

At § 131.15: A State may, at its discretion and consistent with state law, authorize schedules of compliance for water 

quality-based effluent limits (WQBELs) in NPDES permits by including a compliance schedule authorizing provision in 

its water quality standards or implementing regulations. [begin new text] SUCH AUTHORIZATION [end new text] [begin 

strikeout] Any such provision [end strikeout] is a water quality standard subject to EPA review........Individual compliance 

schedules issued pursuant to such authorizing provisions are not themselves water quality standards. 

It is critical that the compliance schedule itself is not a water quality standard subject to EPA review, as that must 

remain a permitting matter, subject to EPA review. This avoids causing state rulemaking bodies to become permit 

issuers subject to the conflict of interest prohibitions where the state choses to have representatives of the regulated 

community part of the water quality standards decision making body. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section D 

Comment ID 0173-A1.001.016 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Compliance Schedules 

Compliance schedules are an essential tool for allowing NPDES permittees the necessary time to identify, engineer and 

implement essential adjustments to treatment processes, often including the installation of costly pollution control 

equipment, in order to meet new criteria. The availability of reasonable compliance schedules continues to be critical as 

regulated facilities contend with numeric nutrient criteria and ever-more stringent human health based water quality 

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criteria in the near future. 

Nearly 24 years after the fact, EPA has decided it must address the former EPA Administrator's decision styled In the 

Matter of Star-Kist Caribe, Inc., to the extent that the ruling addressed compliance schedules. The administrative order 

was issued on April 16, 1990 in response to a petition filed with EPA's Environmental Appeals Board. 

To address the 23-year-old opinion, EPA has proposed amending its regulations to mandate that state provisions 

authorizing compliance schedules must be adopted as part of a state's water quality standards and submitted to EPA 

for review and approval under § 303(c) of the Clean Water Act. This mandate would apply even if the exact same state 

provision had been approved by EPA as part of the state's EPA-approved NPDES program. 

The amended regulation, as proposed, allows states to adopt a provision authorizing compliance schedules, and that 

provision, not the individual compliance schedules resulting there from, is considered a change in water quality 

standard subject to CWA § 303(c) review. CF asserts that an identical provision approved as part of a state's NPDES 

program, need not be reviewed or approved a second time by EPA staff who happen to work with § 303 of the CWA 

instead of § 402. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section E 

Comment ID 0173-A1.001.018 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

CF does concur that individual compliance schedules should not be subject to review under § 303(c) of the CWA. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

Comment ID 0175-A1.001.030 

Author Name: Canton Steven 

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Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 

6.0 Provisions Authorizing the Use of Permit-Based Compliance Schedule 

131.15 Compliance schedule authorizing provisions 

This new section allows states and tribes to authorize compliance schedules for water quality-based limits (WQBELs) in 

NPDES permits by including a compliance schedule authorizing provision in its water quality standards or implementing 

regulations. It states that these provisions are water quality standards and subject to EPA review. 

a. We agree there should be some mention of the regulatory authority of states and tribes to include compliance 

schedules in discharge permits. However, the suggested provision would be more appropriately placed in the permitting 

rule. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section F 

Comment ID 0180-A2.001.022 

Author Name: Hobson Chris 

Organization: Southern Company 

4. Compliance Schedules 

Southern Company strongly supports the use and availability of compliance schedules, which are critical to the 

implementation of new and more stringent water quality-based permit requirements. But we do not believe that EPA's 

approach to compliance schedules in the Proposal is necessary or appropriate. 

EPA proposes to codify its reading of the Environmental Appeals Board's opinion In the matter of Star-Kist Caribe, Inc., 

NPDES Appeal No. 88-5, 3 E.A.D. 172, 1990 EPA App. LEXIS 45 (April 16, 1990). See proposed 40 CFR §131.15. 

This would mean allowing compliance schedules only if state law authorizes them ("consistent with state law"). But we 

believe that this is unnecessary, because a state can do anything only as authorized by state law. If a state authorized a 

compliance schedule that was not "consistent with state law," it could be challenged in state court. It is not necessary 

for EPA to specify that such schedules must be consistent with state law. Indeed, the existing regulation, 40 C.F.R. § 

123.25(a)(18), already says that state programs must have legal authority to implement compliance schedules. 

Response 

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For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section J 

Comment ID 0180-A2.001.024 

Author Name: Hobson Chris 

Organization: Southern Company 

More importantly, EPA would require a state to authorize compliance schedules expressly as part of state water quality 

standards. In this way, EPA would get to approve or disapprove the state's authorization. As the comments of UWAG 

and the Federal Water Quality Coalition point out, CWA §303(e)(3)(A) makes schedules of compliance part of the 

"continuing planning process" and distinct from "water quality standards" under CWA §303(a) and (c). Simply put, 

compliance schedules and water quality standards are two different things. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

9.b: Section G 

Comment ID 0182-A2.001.013 

Author Name: Hahn Martha 

Organization: The Colorado Wastewater Utility Council 

VI. Compliance Schedule Provisions 

Authorization – § 131.15: This section indicates, in part "[a]ny such provision is a water quality standard subject to EPA 

review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act." 

Although Colorado has approved compliance schedule provisions in its water quality standards regulation, we 

nonetheless believe it is inappropriate to characterize a compliance schedule as a "water quality standard." [FN3] 

[FN3] Section 31.14(4) of Regulation No. 31 states in part "Discharge permits will be issued by the Division to comply 

with basic, narrative, and numeric standards and control regulations so that all discharges to state surface waters 

protect the classified uses. For new standards, revised standards that have become more stringent, and new 

interpretations of existing standards, the Division shall include schedules of compliance in permits when it determines 

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such schedules to be necessary and appropriate." 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0184-A2.001.015 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

Comment 5: Provisions Authorizing the Use of Permit-Based Compliance Schedule 

EPA is proposing to add a new section (131.15) to the regulations. The new section addresses the incorporation of 

compliance schedules in permits issued pursuant to the National Pollutant Discharge Elimination System (NPDES). 

EPA's stated purpose for the new section 131.15 is to "clarify that a permitting authority may only issue compliance 

schedules ...if the state or tribe has authorized issuance of such compliance schedules pursuant to state or tribal law in 

its water quality standards or implementing regulations." [FR vol.78, No. 171, Page 54537, September 4, 2013]. 

WESTCAS has concluded that this addition to the regulations is unnecessary and could be applied in ways that would 

unduly restrict a state's authority and capability in this respect. 

The role, and requirements, with respect to the States' authority to establish compliance schedules in permits issued 

pursuant to NPDES are already well-documented in the CWA and in other EPA regulations. The understanding that the 

role of compliance schedules as part of the permitting program has been accepted since the adoption of the Federal 

Water Pollution Control Act Amendments of 1972. 

• Section 303(e)(3)(A) of the CWA clearly states that schedules of compliance are provided for in a State's Continuing 

Planning Process as part of the State's program to establish effluent limitations. Nothing in the parts of Section 303 of 

the CWA that discuss water quality standards references compliance schedules. 

• EPA regulations in 40 CFR Part 122 ("EPA Administered Permit Programs: The National Pollutant Discharge 

Elimination System") address compliance schedules as elements of the NPDES program. Section 122.47 describes 

when compliance schedules are appropriate and provisions to be included in a permit that includes a compliance 

schedule. 

• EPA regulations in 40 CFR Part 123 ("State Program Requirements") discusses the requirements that a State must 

meet in order to be delegated the authority to issue permits pursuant to the NPDES system. One of these requirements, 

as set forth in Section 123.25 (a)(18), is that the State must have the legal authority to establish schedules of 

compliance. It should, therefore, be concluded that all States that have been delegated NPDES authority have already 

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been determined to have the authority to establish schedules of compliance. 

Finally, this addition to the state water quality standard regulations is not necessary to insure compliance with EPA 

regulations regarding compliance schedules. EPA has the authority to review and approve or disapprove individual 

NPDES permits containing compliance schedules. 

If a State is required to include the authorization to issue compliance schedules in its water quality standards 

regulations, an EPA regional office could interpret this provision to include a requirement to include in the regulations 

not just a statement of authority but also the provisions that are included in the compliance schedule in the permit (time 

period, specific interim deadlines, etc.) Such requirements would severely limit a State's ability to structure a permit that 

is appropriate for the specific condition as they relate to that individual permit. 

WESTCAS recommends that the new proposed Section 131.15 not be included in the revisions to the Part 131 

regulations. It is unnecessary and could restrict a State's ability to effectively and efficiently administer its discharge 

permit program. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section B 

9.b: Section E 

9.b: Section G 

9.b: Section M 

Comment ID 0193-A2.001.011 

Author Name: Biggs Barbara 

Organization: Metro Wastewater Reclamation District 

VI. Compliance Schedule Provisions 

Authorization – § 131.15: This section indicates, in part, "[a]ny such provision is a water quality standard subject to EPA 

review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act." 

Although Colorado has approved compliance schedule provisions in its water quality standards regulation, we 

nonetheless believe it is inappropriate to characterize a compliance schedule as a "water quality standard." [FN4] 

[FN4] Section 31.14(4) of Regulation No. 31 states in part "Discharge permits will be issued by the Division to comply 

with basic, narrative, and numeric standards and control regulations so that all discharges to state surface waters 

protect the classified uses. For new standards, revised standards that have become more stringent, and new 

interpretations of existing standards, the Division shall include schedules of compliance in permits when it determines 

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such schedules to be necessary and appropriate." 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0194-A1.001.022 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

6. Compliance Schedules (40 CFR § 131.15) 

As an initial matter, this proposed regulation is unnecessary. States with water programs approved by EPA that 

authorize compliance schedules are perforce already authorized to issue compliance schedules. There is no need for a 

federal regulation to say so. Moreover, it is not a matter of federal law whether states are complying with their own laws. 

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. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section E 

9.b: Section J 

9.e 

Comment ID 0196-A1.001.022 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Compliance Schedules 

The draft rule proposes to specifically include state compliance schedules as a water quality standard subject to EPA 

review. As we noted in the anti-degradation section of these comments, implementation decisions concerning 

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compliance with water quality standards should be based on the state's judgment. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0196-A1.001.024 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Additionally, such a requirement diverges from the CWA and its implementing regulations. Specifically, Sec. 

301(b)(1)(C) of the CWA states that a "schedule of compliance, established pursuant to State law or regulations," is an 

appropriate mechanism for meeting water quality standards. Moreover, Sec. 303(e)(3)(A) states that schedules of 

compliance are part of a state's continuing planning process for achieving water quality standards but are not 

themselves water quality standards. 40 C.F.R. Sec. 123.25 expressly notes that authorized state programs may include 

compliance schedules pursuant to legal authority under state law. Pursuant to these various provisions, it is 

inappropriate to treat compliance schedules themselves as water quality standards subject to EPA review. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

9.b: Section G 

Comment ID 0200-A1.001.013 

Author Name: Covar Zak 

Organization: Texas Commission on Environmental Quality 

6. Provisions Authorizing the Use of Permit-Based Compliance Schedule. 

The EPA proposes to add a new regulatory provision at 40 CFR § 131.15. The preamble indicates that the provision is 

being added to be consistent with the decision of the EPA Administrator in In the Matter of Star-Kist Caribe, Inc. (1990 

WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD 172 (April 16, 1990)). EPA indicates in its proposal that new § 

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131.15 will clarify that a permitting authority may only issue compliance schedules for water quality-based effluent limits 

(WQBELs) in NPDES permits if the state's or tribe's regulations contain a provision authorizing the use of permit-based 

compliance schedules. EPA considers a provision authorizing the use of permit-based compliance schedules to be a 

WQS subject to EPA's approval. However, EPA also describes in its discussion as well as the proposed rule how a 

compliance schedule is a permitting tool and is not itself considered a WQS. 

The TSWQS already contain a provision in 30 Texas Administrative Code § 307.2(f) which authorizes the use of 

compliance schedules in TPDES permits. Therefore, it is the TCEQ's position that the agency's regulations are 

consistent with EPA's proposed provision. The TCEQ requests that EPA continue to provide states and tribes with the 

flexibility to use compliance schedules as a permitting tool which provides a permittee additional time to comply with 

WQBELs. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section K 

Comment ID 0201-A1.001.031 

Author Name: Godfrey Mike 

Organization: Alabama Power 

VI. Compliance Schedule Authorizing Provisions 

EPA has proposed to add 40 C.F.R. § 131.15 to the Code of Federal Regulations to codify supposed requirements set 

out in In the Matter of Star-Kist Caribe, Inc., 3 EAD 172 (April 16, 1990), relating to compliance schedules. Specifically, 

§ 131.15 would provide that a permitting authority may issue a schedule for complying with water quality-based effluent 

limitations in an NPDES permit only if the authority has properly authorized the usage of such schedules by enacting or 

promulgating applicable provisions in its WQS or implementing regulations, respectively. Any compliance schedule 

authorizing provision promulgated by a State is a WQS subject to EPA's review and approval, according to the agency. 

EPA further provides in the Draft Rule that individual compliance schedules issued pursuant to the authorizing 

provisions are not WQS and therefore are not subject to EPA's review and approval, although such individual schedules 

must be consistent with Section 502(17) of the CWA, the permitting authority's compliance schedule authorizing 

provision, as well as the requirements of 40 C.F.R. § 122.2 and § 122.47. 

Alabama Power does not agree with EPA's attempt to subject these State decisions to EPA judgment. State decisions 

as to how and when to require compliance with water quality based limits are made within the confines of the NPDES 

permitting process, based on the State's judgment as to how their standards should be implemented. EPA should not 

be able to tell States how to make those decisions. 

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Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section E 

Comment ID 0205-A1.001.014 

Author Name: Burd Charlie 

Organization: Independent Oil and Gas Association of West Virginia Inc. 

F. Permit-based Compliance Schedules 

USEPA has proposed to add new subsection 40 C.F.R. § 131.15 to its regulation to clarify that a permitting authority 

may only issue compliance schedules for water quality-based effluent limitations in National Pollutant Discharge 

Elimination System permits under 33 U.S.C. § 1342 if the state has authorized the use of such compliance schedules in 

its water quality standards or implementing regulations. Once again, IOGA-WV views this clarification as unnecessary. 

To the extent that language to this effect is included in a state's approved program under the CWA, a separate 

regulation by USEPA is not necessary to give that provision effect. Nor is it appropriate for USEPA to analyze whether a 

state is in compliance with its own laws. Accordingly, IOGA-WV encourages USEPA to reconsider this proposed 

clarification. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section E 

9.b: Section J 

Comment ID 0206-A1.001.023 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

VI. Authorizing Compliance Schedules (78 Fed. Reg. 54,536-7) 

Waterkeepers generally support EPA's proposal for compliance schedules, but urge EPA to limit the length of 

compliance schedules to no longer than a permit term: 5 years. This is consistent with the CWA and regulatory 

requirements for permit renewals. Additionally, the Proposed Rule should specifically reference, and be made 

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consistent with, the requirements for permit compliance schedules in CWA Sections 502(17) and 301(b), as well as 40 

C.F.R. §§122.2, 122.44, 122.47. [FN14] We further urge EPA to incorporate standards which limit the availability of 

compliance schedules to situations where the permittee has a legitimate need for more time to comply with new, more 

stringent WQBELs, compliance is required "as soon as possible," and specific actions are required to come into 

compliance within the schedule. 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" as required by 

the definition of "schedule of compliance" in section 502(17) of the CWA and 40 C.F.R. §122.2. 

Compliance schedules should be expressly prohibited for new and increased discharges of pollutants. We are also 

concerned that, without standards limiting the availability of compliance schedules, the proposed language may allow 

states and dischargers to avoid or indefinitely delay compliance with water quality standards. This concern is 

heightened by the fact that a compliance schedule is a permitting matter that does not require EPA approval. 

[FN14] The requirements for compliance schedules for WQBELS in NPDES permits are discussed in a May 10, 2007 

Memorandum from James Hanlon, Director of the EPA Office of Wastewater Management, which can be located at 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/signed-hanlon-memo.pdf. Although we generally support 

EPA's proposal to incorporate provisions for compliance schedules into the water quality standards regulations, we do 

not concede that the decision in Star-Kist Caribe Inc., 3 E.A.D. 172 (1990) was correctly decided in all respects as it 

may allow for issuance of compliance schedules in instances that are not permitted under the CWA. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section L 

9.b: Section P 

9.b: Section Q 

Comment ID 0207-A1.001.007 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

Compliance schedules - proposed § 131.15: 

•State regulations - We disagree that provisions authorizing compliance schedules must be incorporated into state 

water quality regulations and that such provisions are subject to EPA review and approval. 

•Pre-1977 standards - We disagree with EPA's position that a state cannot provide for compliance schedules for pre1977 standards and encourage EPA to revisit the position taken in the Star Kist case. 

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Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

9.b: Section I 

Comment ID 0211-A1.001.011 

Author Name: Lane David 

Organization: Minnesota Environmental Science and Economic Review Board 

D. Comments Pertaining to EPA's Proposal for Schedules of Compliance 

With regard to EPA's discussion of Star-Kist Caribe, [FN11] MESERB will simply comment 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 regulations, either for water quality standards or for NPDES permitting. 

[FN11] Id. at 54537. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

Comment ID 0215-A1.001.023 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

VI. Authorizing Compliance Schedules (78 Fed. Reg. 54,536-7) 

Waterkeepers generally support EPA's proposal for compliance schedules, but urge EPA to limit the length of 

compliance schedules to no longer than a permit term: 5 years. This is consistent with the CWA and regulatory 

requirements for permit renewals. Additionally, the Proposed Rule should specifically reference, and be made 

consistent with, the requirements for permit compliance schedules in CWA Sections 502(17) and 301(b), as well as 40 

CFR §§122.2, 122.44, 122.47. [FN14] We further urge EPA to incorporate standards which limit the availability of 

compliance schedules to situations where the permittee has a legitimate need for more time to comply with new, more 

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stringent WQBELs, compliance is required "as soon as possible," and specific actions are required to come into 

compliance within the schedule. 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" as required by 

the definition of "schedule of compliance" in section 502(17) of the CWA and 40 CFR §122.2. 

Compliance schedules should be expressly prohibited for new and increased discharges of pollutants. We are also 

concerned that, without standards limiting the availability of compliance schedules, the proposed language may allow 

states and dischargers to avoid or indefinitely delay compliance with water quality standards. This concern is 

heightened by the fact that a compliance schedule is a permitting matter that does not require EPA approval. 

[FN14] The requirements for compliance schedules for WQBELS in NPDES permits are discussed in a May 10, 2007 

Memorandum from James Hanlon, Director of the EPA Office of Wastewater Management, which can be located at 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/signed-hanlon-memo.pdf. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section L 

9.b: Section P 

9.b: Section Q 

Comment ID 0228-A2.001.002 

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Compliance Schedules 

The CWA unequivocally creates a mandatory duty to comply with enforceable water quality based effluent limitations 

("WQBELs") by July 1, 1977: 

In order to carry out the objectives of this chapter, there shall be achieved . . . not later than July 1, 1977, any more 

stringent limitations necessary to meet water quality standards . . . established pursuant to any State law . . . or required 

to implement any applicable water quality standard established pursuant to this chapter. 

CWA § 301(b)(1)(c), 33 U.S.C. § 1311(b)(1)(C) (emphasis added). As a result of Congress's inclusion of this deadline, 

numerous courts have held that neither the EPA nor a state has the authority to extend the deadline for compliance set 

forth in the CWA. See State Water Control Board v. Train, 559 F.2d 921, 924 (4th Cir. 1977) ("Section 301(b)(1)'s 

effluent limitations are, on their face, unconditional."); Bethlehem Steel Corp. v. Train, 544 F.2d 657, 661 (3rd Cir.1976) 

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cert. denied sub nom. Bethlehem Steel Corp. v. Quarles, 430 U.S. 975 (1977) ("Although we are sympathetic to the 

plight of Bethlehem and similarly situated dischargers, examination of the terms of the statute, the legislative history of 

[CWA] and the case law has convinced us that July 1, 1977 was intended by Congress to be a rigid guidepost."). This 

point is reinforced by Congress's adoption of CWA section 301(i), which specifically allowed for a limited extension of 

the July 1, 1977 deadline for publicly-owned treatment works. CWA § 301(i)(1)-(2), 33 U.S.C. § 1311(i)(1)-(2); see also 

United States v. Homestake Mining Co., 595 F.2d 421, 427-28 (8th Cir. 1979). Had Congress wanted to extend the date 

for compliance for other categories of dischargers, it could have done so for them in a similar fashion. CWA regulations 

also mandate compliance by CWA deadlines: "Any schedules of compliance under this section shall require compliance 

as soon as possible, but not later than the applicable statutory deadline under the CWA." 40 C.F.R. § 122.47; see also 

40 C.F.R. § 124.55(f) ("Nothing in this section shall affect EPA's obligation to comply with § 122.47. See CWA section 

301(b)(1)(C)."). 

The CWA makes no exception to the deadline for compliance even if the WQS used to set the WQBELs are established 

after July 1, 1977. Rather, Congress anticipated that new WQS would be set by requiring states to review and revise 

their WQS every three years. See CWA § 303(c), 33 U.S.C. §1313(c). Nevertheless, Congress did not draw a 

distinction between WQBELs designed to meet WQS adopted before July 1, 1977 and those after that date. Congress's 

requirements are consistent with the goals of the CWA: to eliminate the discharge of pollutants into navigable waters by 

1985 and wherever possible to make the nations' waters fishable and swimmable. CWA § 101, 33 U.S.C. § 1251. 

Although we have unfortunately failed to meet those goals yet, the CWA still requires compliance with these mandates 

in furtherance of Congress's stated goals; the provisions for compliance schedules should therefore be eliminated. 

Unfortunately compliance schedules are used widely in NPDES permits in NM. Sometimes these compliance schedules 

are very long. Under the current system in New Mexico, a water quality standard could be changed during a triennial 

review and in some cases it would not have to be met under permit conditions for 10 years. This is an unacceptable 

length of compliance time. For example, a permittee could receive a new permit immediately prior to new standards 

being put in place, they would then have 5 years of coverage under their old permit (and old standards), and up to 5 

years of a compliance period when the new one is written (New Mexico does not have a time limit on compliance 

periods in its standards). Amigos Bravos urges EPA to address this unacceptably long period (up to 10 years) of 

noncompliance with state water quality standards by requiring state's set maximum compliance schedule lengths (such 

as 3 years). 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section B 

9.b: Section P 

Comment ID 0230-A1.001.030 

Author Name: Ettinger Albert 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Authorizing Compliance Schedules (78 FR 54537) 

Proposed Section 131.15 provides for states to adopt standards that would allow the state to issue compliance 

schedules for dischargers to meet water quality standards. These compliance schedules presumably would be issued in 

cases in which the state intends for the discharger to meet water quality standards but they need time to get there. 

Compliance schedules must require compliance "as soon as possible" 40 C.F.R.122.47(a)(1). 

EPA will have to approve the standard that allows issuing compliance schedules but once the state has its provision in 

place, it can then issue compliance schedules allowing time to meet WQBELs with individual EPA approval. 

While we appreciate that such compliance schedules are already being granted and that this rule is said to merely 

codify StarKist Caribe Inc ., 3 E.A.D. 172 (1990), we have considerable misgivings regarding this procedure. As we 

understand it, states and dischargers may seek to avoid having to bring waters into compliance with 101(a)(2) 

standards in a number of ways: 

• if it is sought to not have to meet a WQS permanently, it will be necessary to change the criteria or go through a UAA 

to get the use designation removed (requires EPA approval), 

• if it is sought to avoid having to meet the standard for a number of years perhaps to allow further study, a variance 

may be sought (requires EPA approval), 

This proposal would formally add that 

• if time is sought to improve wastewater treatment over time or otherwise take action over time to bring the receiving 

water into attainment, one may apply for a compliance schedule (a permitting matter that generally does not need EPA 

approval after the state provision is approved). 

This provision is dangerous in allowing states to grant long delays without direct EPA supervision. At a minimum, it 

should be required that such compliance schedules be limited in time so as to force reconsideration as to whether they 

really require compliance "as soon as possible." 40 CFR 122.47(a)(1) We request the EPA establish a 5year (or permit 

term) maximum time period for compliance schedules. 

EPA has recently approved longer compliance schedules. For example, we are already seeing very long compliance 

schedules in Wisconsin for meeting phosphorus standards. For instance, any Wisconsin permittee that cannot 

immediately comply with their water quality based effluent limit (WQBEL) gets either a 7 or 9 year compliance schedule 

based on the stringency of their WQBEL, without any real consideration of the time it will take them to meet the 

WQBEL. These schedules generally do not require the permittee to meet lower limits than it is currently meeting during 

the years of noncompliance. 

To make matters worse, states do not have the resources to reissue permits exactly on time or are simply failing to do 

so, so many states have extensive backlogs. Where there is a backlog, or where a permit was issued just before 

adoption of a new standard, it may be a decade or more before compliance is required. Again in Wisconsin, the 

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phosphorus criteria were adopted at the end of 2010. Currently, over half of the WPDES permits are backlogged and 

are not yet subject to a compliance schedule. Based on the standard 7 to 9 year compliance schedules that the DNR is 

issuing, it is unlikely that any of these permit will require compliance before 2020 - ten years after adoption of the rule. 

States not having to obtain EPA approval of such compliance schedules are very likely to allow schedules of 

compliance that do not require compliance "as soon as possible." "As soon as politically expedient" is a frequent basis 

for setting compliance dates. Again, we request EPA establish a 5year limit on compliance schedules as part of this 

proposal. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section P 

Comment ID 0231-A2.001.034 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

Compliance Schedule Authorizing Provision (s. 131.15) 

EPA proposes to add a completely new section titled compliance schedule authorizing provision, making compliance 

schedules a WQS. Compliance schedules are State/Tribal decisions made within the boundaries of the NPDES 

permitting process, and therefore should not be subject to EPA judgment. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0234-A2.001.033 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

VII. COMPLIANCE SCHEDULES. 

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The proposed rule would add a completely new section to EPA's water quality standards regulations, § 131.15, to make 

compliance schedules a water quality standard. As we indicated above with respect to other issues, we do not agree 

with subjecting these State decisions to EPA judgment. State decisions as to how and when to require compliance with 

water quality-based limits are made within the confines of the NPDES permitting process, based on the State's 

judgment as to how their standards should be implemented. EPA should not tell States how to make those decisions. 

Section 301(b)(1)(C) of the CWA makes it clear that a "schedule of compliance, established pursuant to State law or 

regulations," is an appropriate mechanism for meeting water quality standards. Section 303(e)(3)(A) makes it clear that 

schedules of compliance are part of a State's continuing planning process for achieving water quality standards and are 

not themselves water quality standards. In recognition of the role compliance schedules play in implementing permit 

limits, 40 C.F.R. § 122.47 authorizes compliance schedules for federally administered NPDES programs, and 40 C.F.R. 

§ 123.25 notes that authorized state programs may include compliance schedules pursuant to legal authority under 

state law. Thus, compliance schedules are already appropriately addressed in federal regulations as part of State 

implementation of the CWA and no further regulation is necessary. 

EPA appears to believe that this new requirement for EPA approval of State compliance schedule provisions is 

supported by the Star-Kist decision. However, the Star-Kist decision makes it clear that decisions as to standards 

implementation, such as the issuance of compliance schedules, are up to the States to make - not EPA. Compliance 

schedules are allowed, according to that decision, "when the water quality standard itself (or the State's implementing 

regulations) can be fairly construed as authorizing a schedule of compliance." Thus, the State does not have to put its 

compliance schedule provisions into the standard itself; those provisions can be in the State's implementing regulations, 

which are not standards and therefore do not need to be submitted to EPA for approval. Moreover, according to StarKist, all that is needed in the standard or regulations is the clear indication that the State is authorizing the use of 

compliance schedules; details, such as time limits or any other restrictions on compliance schedules, are not covered 

by the Star-Kist requirement, and are therefore within the province of the State, subject to compliance with the Clean 

Water Act. EPA has no authority to require that a State's detailed compliance schedule provisions be submitted to the 

Agency for its approval. 

We further disagree with EPA's interpretation of the CWA to limit the use of compliance schedules to water quality 

standards adopted after 1977. EPA again points to Star-Kist to support its position. This opinion contains a useful 

discussion of the right of States to develop and interpret their own water quality standards and correctly holds that EPA 

may not unilaterally amend State water quality standards by applying compliance schedules that were not established 

by the State. However, the opinion misquotes, and therefore misreads, the statute with respect to a deadline for 

meeting pre-1977 water quality standards. 

With respect to the primacy of State authority, the opinion reads: 

In sum, the language, structure, and objectives of the Act, as set forth in §§ 101(a) and (b), 402(a)(3), and 510, all 

support an interpretation of § 301(b)(1)(C) that Congress intended the States, not EPA, to become the proper 

authorities to define appropriate deadlines for complying with their own state law requirements. Just how stringent such 

limitations are, or whether limited forms of relief such as variances, mixing zones, and compliance schedules should be 

granted are purely matters of state law, which EPA has no authority to override. Consequently, if a State elects not to 

include a provision for a schedule of compliance in a water quality standard, EPA has no authority to override the 

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State's authority by adding a schedule of compliance of its own invention. Star-Kist, at *19-20 (emphasis added) 

(footnote omitted). 

This paragraph correctly asserts that under section 301(b)(1)(C), States (and not EPA) may establish schedules of 

compliance for state water quality standards, including standards that were in effect before July 1, 1977. 

However, contradicting the above-quoted language, the Star-Kist opinion also asserts that: 

The caption, "Timetable for achievement of objectives," provides two keys to construing § 301(b)(1)(C). First, the 

section is part of a timetable and should be understood as such, and second, the timetable is designed to achieve the 

objectives of the Act. As for the timetable, it serves to ensure that state water quality standards are attained by a 

specified date. It is like any other timetable in the sense that it specifies a date by which something is to be achieved. 

The date itself is unambiguous: it is July 1, 1977. The "something" to be achieved is also unambiguous in most 

respects. For example, when discussing the pre-July 1, 1977 period, it is clear that § 301(b)(1)(C) required all 

permittees to meet, by no later than July 1, 1977, any more stringent limitation necessary to meet state water quality 

standards in existence at the time of permit issuance. Thus, schedules of compliance were allowed during that period, 

and they could be established by either EPA or the State where the discharge was occurring (depending on which entity 

was the permit issuing authority at the time of permit issuance). By including the July 1, 1977 deadline in the statute, 

Congress was, in effect, establishing a "grace period" as part of its timetable for implementation of the Act. Star-Kist at 

*9-10. 

This language both misconstrues and misquotes the Clean Water Act. First, it gives meaning to a caption that does not 

exist in the statute. The caption, "Timetable of Achievement of Objectives" was added by law revision counsel of the 

House of Representatives when the Clean Water Act was codified in Title 33. This caption is not part of the public law 

that was passed by Congress. See P.L. 92-500 (Oct. 18, 1972), 86 Stat. 844-845. Title 33 of the U.S. Code has not 

been codified into positive law. EPA cannot discern Congressional intent from a caption that has never been voted on 

by Congress. 

Second, this language in Star-Kist says that "§ 301(b)(1)(C) required all permittees to meet, by no later than July 1, 

1977, any more stringent limitation necessary to meet state water quality standards in existence at the time of permit 

issuance." This is a paraphrase of the statutory language. The complete phrase in the statute refers to: "any more 

stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedule of 

compliance, established pursuant to any State law or regulations." Section 301(b)(1)(C) (emphasis added). Thus, the 

statute says that by July 1, 1977, persons discharging at that time had to meet the requirements in effect under state 

law, which could include compliance schedules. Nothing in the statute says specific numeric standards must be met by 

that date. Further, discharges that commence after 1977 cannot be held to that deadline. The requirements that apply 

to such dischargers are entirely a function of the State law, which Congress recognized could include compliance 

schedules. 

EPA's conclusion that States may not establish schedules of compliance for pre-1977 standards is an unauthorized 

intrusion on State authority. The statute is clear. States may implement water quality standards through schedules of 

compliance "established pursuant to any State law or regulations." 

In summary, if States have the legal authority, under their own laws and regulations, to allow compliance schedules in 

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permits, then States may use such compliance schedules to implement both pre-1977 and post-1977 water quality 

standards. Further, if a State does not currently allow compliance schedules, it may amend its law to provide this 

implementation option. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

9.b: Section G 

9.b: Section H 

9.b: Section I 

9.b: Section N 

Comment ID 0240-A2.001.031 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

6. Provisions Authorizing the Use of Permit-Based Compliance Schedule 

131.15 Compliance schedule authorizing provisions 

This new section allows states and tribes to authorize compliance schedules for water quality-based limits (WQBELs) in 

NPDES permits by including a compliance schedule authorizing provision in its water quality standards or implementing 

regulations. It states that these provisions are water quality standards and subject to EPA review. 

a. We agree there should be some mention of the regulatory authority of states and tribes to include compliance 

schedules in discharge permits. However, the suggested provision would be more appropriately placed in the permitting 

rule. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section F 

Comment ID 0244-A2.001.022 

Author Name: Loomis Marion 

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Organization: Wyoming Mining Association 

Compliance Schedules 

EPA proposes to add a compliance schedule authorizing provision, which would make a compliance schedule a WQS. 

A compliance schedule is a State decision made within the boundaries of the NPDES permitting process, and therefore 

should not be subject to EPA judgment. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0246-A2.001.004 

Author Name: Childs David 

Organization: Hopping Green & Sams on behalf of Florida Water Environment Association Utility Council 

EPA should not subject compliance schedule policies to additional review under §303(c) of the Clean Water Act 

The FWEA Utility Council is also concerned that EPA's rule proposal newly requires that any state law which authorizes 

compliance schedules for meeting new or revised water quality standards must be approved by EPA under §303(c) of 

the Clean Water Act. [FN5] Florida's compliance schedule policy is part of its approved NPDES program. [FN6] Like the 

antidegradation proposal discussed above, it is unclear what effect this rule proposal would have on an existing, 

previously-approved state programs. EPA has not articulated any basis for potentially subjecting the state's compliance 

schedule policy to an additional review under a different section of the Clean Water Act. The FWEA Utility Council 

recommends that EPA not finalize its requirement for a duplicative review of compliance schedule policies under § 

303(c) of the Clean Water Act. 

[FN5] Proposed 40 C.F.R. § 131.15. 

[FN6] See §403.088(1)(e), Fla. Stat. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section E 

9.b: Section K 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Comment ID 0248-A2.001.023 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

6. Compliance Schedules 

There is no clear need to add a new federal regulation on compliance schedules. Compliance schedules enable states 

to provide needed flexibility for dischargers to come into compliance with WQS. EPA's proposal in effect allows 

compliance schedules only where the state has authorized issuance of compliance schedules in its WQS laws or 

implementing regulations, and would treat compliance schedule authorizing provisions as WQS subject to EPA review 

and approval. See 78 Fed. Reg. at 54,537. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0248-A2.001.025 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

Compliance schedules are already subject to EPA approval as part of the NPDES permit program. Adding a new 

federal regulation will not enhance clarity or consistency in discharge permits nor promote more efficient or rapid 

compliance. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section E 

Comment ID 0252-A2.001.035 

Author Name: Fry Eric 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Organization: Peabody Energy 

Compliance Schedule Authorizing Provision (s. 131.15) 

EPA proposes to add a completely new section titled compliance schedule authorizing provision, making compliance 

schedules a WQS. Compliance schedules are State/Tribal decisions made within the boundaries of the NPDES 

permitting process, and therefore should not be subject to EPA judgment. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

Comment ID 0257-A1.001.021 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Compliance Schedules -- 40 CFR 131.15 

The Chamber supports EPA's recognition that compliance schedules are important tools for dischargers to comply with 

water quality-based effluent limitations in NPDES Permits. However, states should be authorized to establish 

compliance schedules pursuant to their NPDES permitting procedures as a compliance schedule is not in and of itself a 

water quality standard. To this extent, the Chamber disagrees with EPA's statement that compliance schedule 

regulations must be reviewed and approved as water quality standards. (For example, Kentucky's compliance schedule 

regulation at 401 KAR 5:070 Section 2 is not part of its water quality standards and it incorporates EPA's provision for 

compliance schedules at 401 CFR 122.47, which also is not a water quality standard.) 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section C 

Comment ID 0261-A2.001.016 

Author Name: Bartlett Drew 

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Organization: Florida Department of Environmental Protection 

VI. Proposed Revisions to § 131.15 (Compliance schedule authorizing provisions). 

We support the proposed language that acknowledges the use of compliance schedules as a valid mechanism that is 

consistent with the water quality standards program. Compliance schedules are important tools for achieving the goals 

of the Clean Water Act as they allow dischargers a reasonable period of time to come into compliance with water quality 

standards. However, there is no need to require States to authorize these mechanisms as part of their water quality 

standards program, since these provisions are approved as part of a state's approved or delegated NPDES program. 

The scope of § 131.15 is limited to schedules of compliance associated with WQBELs in NPDES permits. There is no 

basis for limiting schedules of compliance to NPDES permitting. Regardless, as acknowledged in the proposed rule, the 

Clean Water Act and EPA's NPDES implementing regulations already explicitly acknowledge schedules of compliance 

as a valid permitting mechanism. Currently, 46 of the 50 States have EPA-approved NPDES permitting programs. To 

the extent that EPA has already approved the use of schedules of compliance as part of its 402 review of a State's 

NPDES program, no purpose is served by subjecting the State provision to a second EPA review under 303(c), as 

would be the case under EPA's proposed regulation. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section E 

9.b: Section O 

Comment ID 0262-A2.001.020 

Author Name: Rawlings Laurent 

Organization: Home Builders Association of Kentucky 

Compliance Schedule Authorizing Provision (Section 131.15) 

EPA proposes a completely new section, "Compliance Schedule Authorizing Provision," making compliance schedules 

a Water Quality Standard. HBAK supports EPA's recognition that compliance schedules are important tools with which 

dischargers are to comply with water quality based effluent limitations in NPDES permits. Nonetheless, HBAK opposes 

the utilization and/or definition of such as a Water Quality Standard. Furthermore, HBAK disagrees with EPA's 

statement that compliance schedule regulations must be reviewed and approved as Water Quality Standards. 

Response 

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For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section C 

Comment ID 0272-A2.001.027 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

VI. COMPLIANCE SCHEDULES. 

Similar to other areas addressed in EPA's proposed here, the Water Protection Groups support EPA's proposal for 

compliance schedules, 78 Fed. Reg. at 54,536-537, but believe that EPA's proposal does not go far enough in 

addressing problems with the use of compliance schedules by states and permittees. Primarily, the Water Protection 

Groups encourage EPA to limit compliance schedule to the length of a permit or 5 years. This is consistent with Clean 

Water Act and regulatory requirements for permits. Generally a compliance schedule is necessary when a new effluent 

limit is included in a permit either because of new effluent limit guidelines from EPA associated with new technologies 

or where a water quality based effluent limit requires stricter controls that had previously been imposed. It is 

understandable that a discharger will need some time to design, build, and pilot whatever new technology or processes 

might be necessary to meet stricter permit limits. However, five years should be more than adequate for any new 

technology or process. Anything longer is simply unwarranted delay. After all, the Clean Water Act dictates that 

discharges of pollutants should have been eliminated decades ago, a goal that is still very far away. There is no reason 

that permits which allow continued discharges of pollutants should not be consistently working toward compliance with 

at least the latest control technologies or techniques within a permit term. If a discharger cannot meet the requirements 

of a TMDL or WQBEL or effluent limit guideline then perhaps the discharge should not be issued a permit. There is no 

right to pollute the nation's waters. Five years is ample and consistent with the five year structure for permits. EPA 

should be absolutely clear in this regard and the Water Protection Groups urge EPA to revise the rule to include a five 

year limitation on compliance schedules. 

The necessity of this is highlighted by current activities in Washington. Washington's Department of Ecology is currently 

proposing proposal for 20 year compliance schedules for all pollutants including some of the most toxic water 

pollutants. [FN9] These compliance schedules are unnecessary and contrary to the purposes and requirements of the 

Clean Water Act. Ecology's proposals include two alternatives: a 20 year compliance schedule for TMDLs and a 20 

year compliance schedule for everyone. Both are unacceptable and EPA should make that clear in this rulemaking. The 

first is unacceptable because it is contrary to the very concept of WQBELs and TMDLs. If a state has been following 

Clean Water Act requirements, the state should have been ensuring that permits to discharge include all limits 

necessary to ensure that the discharge does not cause or contribute to a violation of water quality standards. Plainly, 

states have not been doing that. In instances where the impairment has resulted in a TMDL, the point source 

discharges will have been assigned a wasteload allocation. That WLA should be included, if not in an immediate permit 

amendment, at least in the next five-year permit incarnation (in accordance with 40 C.F.R. § 122.44(d)). While the 

TMDL goals themselves may take longer to achieve as those goals will also include non-point sources of pollution, 

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there is no provision in the Clean Water Act or EPA regulations that should allow point sources to continue to contribute 

to a problem beyond the reasonable five year period for incorporating new technology or processes. For areas where 

there is not a TMDL, the state should be, under both § 122.44(d) and antidegradation requirements, ensuring that 

permits include effluent limits necessary to meet the requirements. Again, there is no evidence supporting any 

argument that a point source discharge needs more than five years to design, build, and pilot whatever technology or 

practices are necessary to ensure that the waters are kept clean. The Water Protection Groups ask EPA to ensure, 

through this rulemaking, that proposals like that on the table in Washington State are disallowed under EPA's current 

rulemaking as contrary to the law. 

[FN9] See Department of Ecology, Water Quality Standards Rule Making Implementation Tool - Compliance Schedules, 

available at: http://www.ecy.wa.gov/programs/wq/swqs/ComplianceScheduleWhitePaper.pdf (last checked Jan. 2, 

2013) 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section P 

Comment ID 0276-A2.001.010 

Author Name: Alves James 

Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. 

Compliance Schedules 

Compliance schedules are an essential tool for allowing NPDES permittees much needed time to identify, engineer and 

implement necessary adjustments to treatment processes, often including the installation of costly pollution control 

equipment, to meet new criteria. The availability of reasonable compliance schedules is critical as regulated facilities 

address changes to water quality standards. 

Nearly 24 years after the fact, EPA has decided it must address the former EPA Administrator's decision styled In the 

Matter of Star-Kist Caribe, Inc., to the extent that the ruling addressed compliance schedules. The administrative order 

was issued on April 16, 1990 in response to a petition filed with EPA's Environmental Appeals Board. 

To address the 23 year old opinion, EPA has proposed amending its regulations to mandate that state provisions 

authorizing compliance schedules must be adopted as part of a state's water quality standards and submitted to EPA 

for review and approval under § 303(c) of the Clean Water Act. This mandate would apply even if the exact same state 

provision had been approved by EPA as part of the state's EPA-approved NPDES program. 

The amended regulation, as proposed, allows states to adopt a compliance schedule authorizing provision, and that 

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provision, not the individual compliance schedules resulting therefrom, is considered a change in water quality standard 

subject to CWA § 303(c) review. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

Comment ID 0278-A2.001.027 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Compliance Schedules 

As EPA properly acknowledges, compliance schedules are one of several tools that have proven to be critical in driving 

- and accommodating - incremental progress toward our shared water quality goals. And with the exponential increase 

in approved TMDLs over the past decade, compliance schedules serve a vital and growing role in TMDL 

implementation. For example, many TMDLs contain aggressive point source reduction requirements that cannot be 

achieved overnight and may in fact take multiple permit terms to achieve. In those circumstances, compliance 

schedules can be used to implement those reductions in an achievable, step-wise fashion. EPA's willingness to allow 

compliance schedules that extend beyond a particular permit term has proven to be both necessary and welcome. 

NACWA does not, however, believe that revisions to EPA's WQS regulation are needed in order to achieve full and 

effective use of compliance schedules. If and when a state chooses to allow a compliance schedule in a particular 

permit proceeding, EPA will have review and objection authority. If EPA believes that a state lacks the basis for such a 

schedule or has derived it in the wrong way, then EPA has direct recourse to object and thereafter work with the state to 

reconcile the problem. Thus, there is no reason to add new requirements and limitations on the use or availability of 

compliance schedules in EPA's WQS regulation. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section A 

9.b: Section E 

Comment ID 0280-A2.001.017 

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Author Name: Aspatore Amanda 

Organization: National Mining Association 

Compliance Schedules 

The draft rule proposes to specifically include state compliance schedules as a water quality standard subject to EPA 

review. As we noted in the antidegradation section of these comments, implementation decisions concerning 

compliance with water quality standards should be based on the state's judgment. 

EPA asserts inclusion of the compliance schedule requirement is supported by the case of Star Kist Caribe. However, 

that case does not require that the state put its compliance schedule provisions into a water quality standard itself, but 

instead holds that a state may include such provisions in the implementing regulations, which are not required to be 

submitted to EPA for approval. Furthermore, the Star Kist decision does not go so far as to encompass detailed 

compliance schedule provisions, and as such EPA has no authority to require that a state submit such provisions for 

EPA's approval. 

Additionally, such a requirement diverges from the CWA and its implementing regulations. Specifically, Sec. 

301(b)(1)(C) of the CWA states that a "schedule of compliance, established pursuant to State law or regulations," is an 

appropriate mechanism for meeting water quality standards. Moreover, Sec. 303(e)(3)(A) states that schedules of 

compliance are part of a state's continuing planning process for achieving water quality standards but are not 

themselves water quality standards. 40 C.F.R. Sec. 123.25 expressly notes that authorized state programs may include 

compliance schedules pursuant to legal authority under state law. Pursuant to these various provisions, it is 

inappropriate to treat compliance schedules themselves as water quality standards subject to EPA review. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

9.b: Section G 

9.b: Section H 

Comment ID 0283-A1.001.026 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

G. Permit-Based Compliance Schedules 

Compliance schedules and compliance schedule policies are not water quality standards, they are implementation 

procedures that are left to the discretion of the States and are not subject to the discretionary approval of U.S. EPA. 

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(See 33 U.S.C. §1362(11) and (17); see also 33 U.S.C. §1313(e)(3)(F)("The Administrator shall approve any continuing 

planning process.. which include,... adequate implementation, including schedules of compliance".) Compliance 

schedules are therefore, by definition, an implementation provision and a permitting tool, and so long as a compliance 

schedule meets the definition in section 502(17), EPA should not have any disapproval powers. The new rule should 

merely reiterate the findings in the Starkist decision that a permitting authority may issue compliance schedules for 

WQBELs in NPDES permits if the State or tribe has a continuing planning process ("CPP") authorizing such compliance 

schedules in its statutes, regulations, or policies. 

Response 

For response to this comment, see the following response essay(s): 

9.b 

9.b: Section C 

9.b: Section G 

9.C - CSAP - SPECIFIC COMMENTS 

Comment ID 0134-A1.001.011 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Pre-1977 standards - EPA's position that a state cannot provide compliance schedules for pre-1977 standards is not 

supported by the CWA. We encourage EPA to reverse that position as taken In the matter of Star-Kist Caribe, Inc., 

NPDES Appeal No. 88-5, 3 E.A.D. 172, 1990 EPA App. LEXIS 45 (April 16, 1990). 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.b 

Comment ID 0145-A2.001.011 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Pre-1977 standards - EPA's position that a state cannot provide compliance schedules for pre-1977 standards is not 

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9.c 

Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

supported by the CWA. We encourage EPA to reverse that position as taken In the matter of Star-Kist Caribe, Inc., 

NPDES Appeal No. 88-5, 3 E.A.D. 172, 1990 EPA App. LEXIS 45 (April 16, 1990). 

Response 

For response to this comment, see the following response essay(s): 

9.c: Section E 

9.b 

Comment ID 0146-A2.001.003 

Author Name: Kessler Katrina 

Organization: Minnesota Pollution Control Agency 

1. EPA Misapplies the SKC Decision 

The SKC case arose out of a dispute between Region II EPA and EPA Headquarters as to whether the Star-Kist 

company was entitled to a schedule of compliance in a permit issued by Region II EPA (not the state). The holding of 

the SKC decision is not problematic. In the decision, the Administrator concludes: "EPA does not have the authority to 

establish 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 standards or the State's regulations implementing the standards." 3 E.A.D. 172, 1990 WL 324290. 

Thus, the actual holding of SKC 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. 

The actual holding is that the EPA lacks such authority when the underlying state regulations fail to provide for it. The 

SKC decision does not address state authority to use schedules of compliance in NPDES permits; the SKC decision 

addresses federal authority only. 

There is no question that Clean Water Act Section 301(b)(C) allows for state use of schedules of compliance in NPDES 

permits because the language of the statute provides that "there shall be achieved . . . not later than July 1, 1977, any 

more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules 

of compliance established pursuant of any state law . . .". The term "schedule of compliance" is defined in the Clean 

Water Act § 502(17) as a "schedule of remedial measures including an enforceable sequence of actions or operations 

leading to compliance with an effluent limitation, other limitation, prohibition, or standard." There is nothing in this 

definition that limits schedules of compliance in NPDES permits to post-1977 water quality standards. Despite § 

301(b)(C)'s reference to "schedules of compliance" and its definition, the EPA Administrator appears to conclude, in 

dicta found in the SKC opinion, that the "objectives" of the Clean Water Act "would appear to rule out schedules of 

compliance after July 1, 1977, if they would delay attainment of pre-July 1, 1977 state water quality standards" and that 

"[n]either the States nor EPA would be permitted to use schedules of compliance under those circumstances." 

However, read carefully, the Administrator's comment addresses only the use of schedules of compliance "if they would 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

delay attainment of the pre-July 1, 1977 state water quality standards." This comment does not state that the water 

quality standards themselves (adopted whenever) or the state implementing regulations cannot provide for schedules of 

compliance in NPDES permits, especially when the schedules are being used as a tool to attain compliance with water 

quality standards, not delay compliance. In the absence of express statutory prohibition, the only conclusion is that 

states are allowed to adopt and use schedules of compliance in NPDES permits where the state concludes that the 

schedule would help to attain water quality standards (regardless of when adopted). 

The SKC dicta (and not the actual holding of the SKC decision) form the basis of EPA's current SKC policy, as 

enunciated in the May 10, 2007, memorandum from James A. Hanlon. Because EPA has failed to properly apply the 

actual holding of the SKC decision or the actual language of Section 301(b)(C), and has relied solely upon the dicta to 

limit the authority of states to adopt and implement schedules of compliance in NPDES permits, EPA should remove the 

reference to the SKC decision from the preamble to the present rule amendments, and use this opportunity to issue a 

memorandum clarifying its position and limiting the reach of the SKC decision to its proper scope. 

2. The Clean Water Act Does Not Restrict the Use of State Enforcement Tools 

The MPCA also disagrees with the "deadline" aspect of EPA's interpretation of the SKC decision because the 1977 

deadline and other deadlines included in the 33 U.S.C. § 1311(b)(1)(A-C) relate to "phases of regulation" under the 

Clean Water Act, and do not address enforcement considerations when permit noncompliance occurs that require 

action by states to return those permitted sources to compliance. Congress intended that noncompliance be addressed 

under Clean Water Act § 402, which governs the NPDES program. Nothing in that section of the Clean Water Act 

restricts the tools that a state program can use to abate violations of an issued permit. The Clean Water Act provides 

that a state program must have adequate authority "to abate violations of the permit or the permit program, including 

civil and criminal penalties and other ways and means of enforcement." See 33 U.S.C. § 1342 (b)(2)(b)(7). One tool that 

NPDES program administrators have to resolve permit noncompliance is the use of schedules of compliance as part of 

an enforcement action, e.g., whether the schedule is set unilaterally by the state or by negotiated agreement between 

the state and the permittee. Nothing in the Clean Water Act or federal regulations precludes state administrators from 

using a schedule of compliance to resolve noncompliance with permit effluent limits based on pre-1977 standards in 

this context. As such, it is entirely contradictory for the EPA Administrator to maintain a policy prohibiting states from 

using a schedule of compliance in a NPDES permit to ensure compliance with effluent limits based on pre-1977 

standards. 

Response 

For response to this comment, see the following response essay(s): 

9.c: Section E 

9.b 

Comment ID 0146-A2.001.004 

Author Name: Kessler Katrina 

08/04/2015 05:01 PM EDT 2-1357
 

9.c 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Organization: Minnesota Pollution Control Agency 

3. EPA's Interpretation of SKC is Bad Policy 

EPA's current and proposed SKC decision interpretation creates confusion between the states, and between permittees 

in a given state. Some states, such as Oregon and Colorado, can use schedules of compliance in NPDES permits to 

resolve any violation of NPDES permits because their standards were adopted after 1977. Others states, such as 

Minnesota, can only use schedules in NPDES permits to gain compliance with certain effluent limits related to post1977 standards. The result of this is that, in the year 2013, one permittee can be brought back into compliance with a 

schedule of compliance in its NPDES permit, and a similarly situated permittee cannot, for any logical reason. This 

would be true even if the water quality standard in question was identical between the pre-1977 state and the post-1977 

state. 

EPA's "solution" to this problem is to force states that adopted water quality standards prior to 1977 to use "variances" 

or an enforcement action when a schedule is needed to bring an existing permittee into compliance with a pre-1977 

standard. However, the alternatives–variances and enforcement actions–are not always adequate substitutes for 

schedules of compliance in NPDES permits. 

Variances are allowed by 40 CFR 131.13, but EPA has held that they are subject to 40 CFR 131.10(g) as a short term 

removal of a designated use of the water. See 63 Federal Regulations 36759. Thus, to issue a variance, the state must 

establish that certain factors (such as "substantial and widespread social impact") are present for the variance to be 

justified. As a practical matter, where the state has concluded that a permittee can come into compliance given time, it 

may be difficult to establish that these factors are present, making the variance difficult to justify. This is troublesome for 

EPA as well as for the state, because a variance from water quality standards requires EPA approval and a permit with 

a variance requires federal review. This federal review may be unnecessary when the schedule included in the 

"variance" does not truly affect attainment of state water quality standards, but is merely a tool to address the reality of 

a particular situation where time is necessary to restore compliance with an effluent limit based on a pre-1977 standard. 

In any event, if EPA allows variances and enforcement actions to extend compliance deadlines for effluent limits 

derived from pre-1977 standards, EPA has itself undermined the alleged principle of SKC, which is that Congress did 

not intend to provide for flexibility in the matter of meeting water quality standards under Section 301 of the Clean Water 

Act. [FN2] Where a variance or an enforcement action to allow a discharger time to comply, there is no principled 

reason not to allow a schedule of compliance to be included in an NPDES permit. 

[FN2] EPA also allows schedules of compliance in NPDES permits to be used if the pre-1977 standard in question is 

"newly interpreted" as being applicable to a particular discharger. See November 29, 2006 memorandum to Tom 

Howard, Acting Executive Director of the California State Water Resources Control Board from Alexis Strauss, Director, 

Water Division, EPA. This view may also be seen as undermining SKC. 

Response 

For response to this comment, see the following response essay(s): 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

9.c 

9.c: Section E 

9.b 

Comment ID 0146-A2.001.005 

Author Name: Kessler Katrina 

Organization: Minnesota Pollution Control Agency 

Conclusion 

For the reasons given above, Minnesota urges EPA to delete reference to the SKC decision in the rule preamble, and 

instead to clarify that the Clean Water Act does not restrict state authority to use schedules of compliance in NPDES 

permits where reasonable to return a permittee to compliance with state water quality standards. 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.b 

Comment ID 0177-A2.001.012 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

(6) Compliance Schedule Authorizing Provisions 

EPA proposes to revise 131.15 to clarify that a permitting authority may only issue compliance schedules for WQBELs 

in discharge permits if the state has authorized use of such schedules in state standards or implementing regulations. 

Further, EPA would require that such provisions be approved by EPA as WQS. 

NYSDEC seeks confirmation from EPA that where a state, such as New York, includes schedules of compliance in its 

state permitting regulations (in New York, State Pollutant Discharge Elimination System regulations at 6 NYCRR Part 

750), the state would not have to also include the schedule of compliance regulation in its water quality standards 

regulations. However, NYSDEC acknowledges that, through this proposed rulemaking, EPA is seeking to require EPA 

approval of the schedule of compliance regulation as a water quality standard, and that such would be in addition to 

EPA's authority with respect to approval of New York's SPDES regulations and oversight of the SPDES permits. 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

NYSDEC seeks clarification from EPA as to the requirement for a state to have the "alternative compliance" section of 

40 CFR 122.47 in their regulations. 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.b 

Comment ID 0180-A2.001.025 

Author Name: Hobson Chris 

Organization: Southern Company 

Finally, EPA takes Star-Kist Caribe to establish as law that after July 1, 1977, NPDES permits could no longer have 

compliance schedules for limits based on water quality standards adopted before July 1, 1977. But as UWAG and the 

Federal Water Quality Coalition point out in their comments, the Star-Kist Caribe decision is founded on two errors. 

First, its interpretation of CWA §301(b)(1)(C) is based on a mere caption (namely the word "timetable"), which was not 

enacted by Congress but was inserted by editors when the statute was codified. It is not defensible to make a caption, 

which Congress never saw, determine the meaning of a statute. 

Second, Star-Kist Caribe misquotes the statute. The Star-Kist Caribe opinion says that CWA §301(b)(1)(C) required 

permittees to meet by July 1, 1977, any more stringent limitation "necessary to meet state water quality standards." The 

statute actually says that not later than July 1, 1977, there shall be achieved any more stringent limitation, including 

those necessary to meet water quality standards, treatment standards, or "schedules of compliance." 

Thus, we respectfully submit that EPA is mistaken in its interpretation that states may not set schedules of compliance 

for permit limits based on water quality standards existing before July 1, 1977. 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.b 

Comment ID 0194-A1.001.023 

Author Name: Stonestreet Robert 

08/04/2015 05:01 PM EDT 2-1360
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Organization: West Virginia Chamber of Commerce 

The Chamber also opposes the notion that a state law provision authorizing a compliance schedule is itself a water 

quality standard that must be approved by EPA. West Virginia's provision authorizing compliance schedules is not set 

forth in West Virginia's water quality standards. The proposed rule could be interpreted to require West Virginia to readopt its authorizing provision as part of its water quality standards and obtain approval from EPA before it could 

continue to exercise its long standing authority to issue compliance schedules, which would effectively rewrite West 

Virginia law - something EPA lacks the power to do. 

The proposed rule is further flawed because compliance schedules are in no way water quality standards. Clean Water 

Act § 303 clearly distinguishes between water quality standards and a "schedule of compliance." A "water quality 

standard" consists of designated uses and water quality criteria (CWA § 303(c)(2)(A)). "Schedule of compliance" is 

defined in § 502(17) as a "schedule . . . including an enforceable sequence of actions or operations." In short, a 

"schedule of compliance" and a "water quality standard" are two different things. EPA cannot properly declare by fiat 

that something is a water quality standard that does not meet the statutory definition. 

* * * 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.b 

9.e 

Comment ID 0196-A1.001.023 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

EPA asserts inclusion of the compliance schedule requirement is supported by the case of Star Kist Caribe. However, 

that case does not require that the state put its compliance schedule provisions into a water quality standard itself, but 

instead holds that a state may include such provisions in the implementing regulations, which are not required to be 

submitted to EPA for approval. Furthermore, the Star Kist decision does not go so far as to encompass detailed 

compliance schedule provisions, and as such EPA has no authority to require that a state submit such provisions for 

EPA's approval. 

Response 

For response to this comment, see the following response essay(s): 

08/04/2015 05:01 PM EDT 2-1361
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

9.c 

9.c: Section E 

9.b 

Comment ID 0200-A1.001.014 

Author Name: Covar Zak 

Organization: Texas Commission on Environmental Quality 

TCEQ objects to the last sentence in the proposed new §131.15 which states "Individual compliance schedules must be 

consistent with CWA Section 502(17), the state's EPA-approved compliance schedule authorizing provision, and the 

requirements of §§122.2 and 122.47." This sentence could be construed to require that the provision in the water quality 

standards not only allows compliance schedules, but also requires the specifics of how the compliance schedules will 

be implemented in permits. EPA should remove this sentence so States and tribes will be afforded the flexibility to use 

the compliance schedule as a permitting tool to address case-by-case circumstances. 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section A 

Comment ID 0201-A1.001.032 

Author Name: Godfrey Mike 

Organization: Alabama Power 

EPA cites the Star-Kist Caribe decision as support for its proposed requirement that States' compliance schedule 

provisions be made subject to EPA approval. Yet, the Star-Kist Caribe decision clearly provides that decisions as to 

standards implementation, such as the issuance of compliance schedules, are exclusively within the States' purview. 

According to EPA's Environmental Appeals Board ("EAB") in Star-Kist Caribe, compliance schedules are allowed "when 

the water quality standard itself (or the State's implementing regulations) can be fairly construed as authorizing a 

schedule of compliance." Id. (emphasis added). This statement unambiguously provides that compliance schedule 

provisions may properly be enumerated in States' water quality regulations and need not be set out in the actual WQS 

in all instances to comply with the CWA. Because States' implementing regulations are not actual WQS, they are 

therefore not subject to EPA review and approval. The Star-Kist Caribe decision also supports a conclusion that States 

need only indicate or mention that they intend to authorize the use of compliance schedules in their respective WQS or 

implementing regulations. Indeed, there is no discussion in that EAB decision requiring the specifics of the authorized 

compliance schedules to be enumerated in these rules. 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.b 

Comment ID 0203-A1.001.030 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

C. Permit Limits Based on Water Quality Standards Created after July 1, 1977 

Finally, EPA takes Star-Kist Caribe to establish as law that after July 1, 1977, NPDES permits could no longer have 

compliance schedules for limits based on water quality standards adopted before July 1, 1977. But as the Federal 

Water Quality Coalition points out in its comments, the Star-Kist Caribe decision is founded on two errors. First, its 

interpretation of § 301(b)(1)(C) is based on a mere caption (namely the word "timetable"), which was not enacted by 

Congress but was inserted by editors when the statute was codified. It is not defensible to make a caption, which 

Congress never saw, determine the meaning of a statute. 

Second, Star-Kist Caribe misquotes the statute. The Star-Kist Caribe opinion says that § 301(b)(1)(C) required 

permittees to meet by July 1, 1977, any more stringent limitation "necessary to meet state water quality standards." The 

statute actually says that not later than July 1, 1977, there shall be achieved any more stringent limitation, including 

those necessary to meet water quality standards, treatment standards, or "schedules of compliance." 

Thus, EPA is mistaken in its interpretation that states may not set schedules of compliance for permit limits based on 

water quality standards existing before July 1, 1977. 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.b 

08/04/2015 05:01 PM EDT 2-1363
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Comment ID 0207-A1.001.024 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

D. Compliance schedules. 

Section 301(b)(1)(C) of the CWA makes it clear that a "schedule of compliance, established pursuant to State law or 

regulations," is an appropriate mechanism for meeting water quality standards. Section 303(e)(3)(A) makes it clear that 

schedules of compliance are part of a state's continuing planning process for achieving water quality standards (which 

is subject to EPA approval), and are not themselves water quality standards. 

In recognition of the role compliance schedules plays in implementing permit limits, 40 C.F.R. § 122.47 authorizes 

compliance schedules for federally administered NPDES programs and 40 C.F.R. § 123.25 notes that authorized state 

programs may include compliance schedules pursuant to legal authority under state law. Thus, compliance schedules 

are appropriately addressed in federal regulations as part of state implementation of the CWA. 

The proposed rule would add a completely new section to EPA's water quality standards regulations, § 131.15, to make 

authority to include compliance schedules in NPDES permits part of a water quality standard. We disagree that this new 

section is appropriate. It is important to maintain the distinction between water quality standards and implementation of 

the same. Water quality standards are established by states and approved by EPA. However, under the cooperative 

federalism structure of the CWA, implementation of water quality standards, and the many choices involved, are left to 

states, subject only to EPA's state program approval process under 40 C.F.R. Part 123 and the continuing planning 

process under § 303(e) of the CWA. 

We further disagree with EPA's interpretation of the CWA to limit the use of compliance schedules to water quality 

standards adopted after 1977. EPA points to the Environmental Appeals Board opinion, In the Matter of Star-Kist 

Caribe, Inc. (NPDES Appeal No. 88-5), 1990 EPA App. LEXIS 45 (April 16, 1990) (Star-Kist), to support its position. 

This opinion contains a useful discussion of the right of states to develop and interpret their own water quality standards 

and correctly holds that EPA may not unilaterally amend state water quality standards by applying compliance 

schedules that were not established by the state. However, the opinion misquotes, and therefore misreads, the statute 

with respect to a deadline for meeting pre-1977 water quality standards. 

With respect to the primacy of state authority, the opinion reads: 

In sum, the language, structure, and objectives of the Act, as set forth in §§ 101(a) and (b), 402(a)(3), and 510, all 

support an interpretation of § 301(b)(1)(C) that Congress intended the States, not EPA, to become the proper 

authorities to define appropriate deadlines for complying with their own state law requirements. Just how stringent such 

limitations are, or whether limited forms of relief such as variances, mixing zones, and compliance schedules should be 

granted are purely matters of state law, which EPA has no authority to override. Consequently, if a State elects not to 

include a provision for a schedule of compliance in a water quality standard, EPA has no authority to override the 

State's authority by adding a schedule of compliance of its own invention. 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Star-Kist, at *19-20 (emphasis added) (footnote omitted). This paragraph correctly asserts that under section 

301(b)(1)(C), states (and not EPA) may establish schedules of compliance for state water quality standards, including 

standards that were in effect before July 1, 1977. 

However, contradicting the above-quoted language, the Star-Kist opinion also asserts that: 

The caption, "Timetable for achievement of objectives," provides two keys to construing § 301(b)(1)(C). First, the 

section is part of a timetable and should be understood as such, and second, the timetable is designed to achieve the 

objectives of the Act. As for the timetable, it serves to ensure that state water quality standards are attained by a 

specified date. It is like any other timetable in the sense that it specifies a date by which something is to be achieved. 

The date itself is unambiguous: it is July 1, 1977. The "something" to be achieved is also unambiguous in most 

respects. For example, when discussing the pre-July 1, 1977 period, it is clear that § 301(b)(1)(C) required all 

permittees to meet, by no later than July 1, 1977, any more stringent limitation necessary to meet state water quality 

standards in existence at the time of permit issuance. Thus, schedules of compliance were allowed during that period, 

and they could be established by either EPA or the State where the discharge was occurring (depending on which entity 

was the permit issuing authority at the time of permit issuance). By including the July 1, 1977 deadline in the statute, 

Congress was, in effect, establishing a "grace period" as part of its timetable for implementation of the Act. 

Star-Kist at *9-10. This language both misconstrues and misquotes the Clean Water Act. First, it gives meaning to a 

caption that does not exist in the statute. The caption, "Timetable of Achievement of Objectives" was added by law 

revision counsel of the House of Representatives when the Clean Water Act was codified in Title 33. This caption is not 

part of the public law that was passed by Congress. See P.L. 92-500 (Oct. 18, 1972), 86 Stat. 844-845. Title 33 of the 

U.S. Code has not been codified into positive law. EPA cannot discern Congressional intent from a caption that has 

never been voted on by Congress. 

Second, this language in Star-Kist says that "§ 301(b)(1)(C) required all permittees to meet, by no later than July 1, 

1977, any more stringent limitation necessary to meet state water quality standards in existence at the time of permit 

issuance." This is a paraphrase of the statutory language. The complete phrase in the statute refers to: "any more 

stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedule of 

compliance, established pursuant to any State law or regulations." Section 301(b)(1)(C) (emphasis added). Thus, the 

statute says that by July 1, 1977, persons discharging at that time had to meet the requirements in effect under state 

law, which could include compliance schedules. Nothing in the statute says specific numeric standards must be met by 

that date. Further, discharges that commence after 1977 cannot be held to that deadline. The requirements that apply 

to such dischargers are entirely a function of the state law, which Congress recognized could include compliance 

schedules. 

EPA's conclusion that states may not establish schedules of compliance for pre-1977 standards is an unauthorized 

intrusion on state authority. The statute is clear. States may implement water quality standards through schedules of 

compliance "established pursuant to any state law or regulations." 

In summary, if states have the legal authority, under their own laws and regulations, to allow compliance schedules in 

permits, then states may use such compliance schedules to implement both pre-1977 and post-1977 water quality 

standards. Further, if a state does not currently allow compliance schedules, it may amend its law to provide this 

implementation option. 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.b 

Comment ID 0245-A2.001.006 

Author Name: Krapas Douglas 

Organization: Inland Empire Paper Company 

3. Schedules of Compliance 

Inland supports the clarification that schedules of compliance authorized under the state water quality standards will be 

based on §§ 122.2 and 122.47 to achieve compliance "as soon as possible" but not a specific time period for 

compliance. Washington has recognized that some TMDL compliance schedules must be longer than the current state 

limit of ten years for a compliance schedule under WAC 173-201A-510. In 2009 the Legislature enacted RCW 

90.48.605 that allows compliance schedules longer than ten years to implement load allocations in a TMDL where 

appropriate. This flexibility will be very important to implementing the anticipated human health criteria in the state of 

Washington and should be preserved in final rule here. 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section B 

Comment ID 0251-A2.001.022 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

V) Comment regarding Schedules of Compliance (40 CFR §131.15) 

EPA should ensure that its preamble discussion and rule regarding schedules of compliance comport with the language 

used in 40 CFR 122 and the Clean Water Act. 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

The proposed schedule of compliance provision allows states to develop compliance schedule authorizing provisions in 

its water quality standards to authorize schedules of compliance for water quality basedeffluent limits (WQBELs). The 

schedule of compliance provision differs from the definition of schedule compliance at 40 CFR §122.2 and the schedule 

of compliance provision at 40 CFR §122.47, which states that a "permit may, when appropriate, specify a schedule of 

compliance leading to compliance with CWA and regulations." Other provisions in 40 CFR §122.47 discuss authorizing 

schedules of compliance to meet NPDES "requirements," but not specifically WQBELs. Section 502(17) of the Clean 

Water Act defines schedule of compliance as "a schedule of remedial measures including an enforceable sequence of 

actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard." Based 

on this definition, schedules of compliance could be issued for meeting either WQBELs or other limitations, such as 

best available technology limits. 

EPA's proposed rule states that, "A State may...authorize schedules of compliance for water quality-based effluent 

limits (WQBELs) in NPDES permits .... DEQ expects this wording may be an oversight on EPA's part. However, such 

an oversight may result in significant implications as EPA and states continue to evaluate permitting scenarios where 

compliance schedules could be used. DEQ requests that EPA ensure this provision is consistent with the language of 

the CWA and the permitting provisions at 40 CFR §122. 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section D 

Comment ID 0268-A2.001.063 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

9. Add § 131.15 to subpart B to read as follows: 

A State may, at its discretion and consistent with state law, authorize schedules of compliance for water quality-based 

effluent limits (WQBELs) in NPDES permits by including a compliance schedule authorizing provision in its water quality 

standards or implementing regulations. Any such provision is a water quality standard subject to EPA review and 

approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act. Individual compliance schedules 

issued pursuant to such authorizing provisions are not themselves water quality standards. Individual compliance 

schedules must be consistent with CWA section 502(17), the state's EPA-approved compliance schedule authorizing 

provision, and the requirements of §§ [begin new text] 122.2, 122.44(d), 122.44(d)(1)(vii)(A), [end new text] and 

122.47. 

08/04/2015 05:01 PM EDT 2-1367
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section C 

Comment ID 0269-A2.001.012 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

(6) Compliance Schedule Authorizing Provisions 

EPA proposes to revise 131.15 to clarify that a permitting authority may only issue compliance schedules for WQBELs 

in discharge permits if the state has authorized use of such schedules in state standards or implementing regulations. 

Further, EPA would require that such provisions be approved by EPA as WQS. 

NYSDEC seeks confirmation from EPA that where a state, such as New York, includes schedules of compliance in its 

state permitting regulations (in New York, State Pollutant Discharge Elimination System regulations at 6 NYCRR Part 

750), the state would not have to also include the schedule of compliance regulation in its water quality standards 

regulations. However, NYSDEC acknowledges that, through this proposed rulemaking, EPA is seeking to require EPA 

approval of the schedule of compliance regulation as a water quality standard, and that such would be in addition to 

EPA's authority with respect to approval of New York's SPDES regulations and oversight of the SPDES permits. 

NYSDEC seeks clarification from EPA as to the requirement for a state to have the "alternative compliance" section of 

40 CFR 122.47 in their regulations. 

Response 

For response to this comment, see the following response essay(s): 

9.c 

9.c: Section E 

9.D - CSAP - OTHER GENERAL 

Comment ID 0128-A1.001.016 

Author Name: Boon Richard 

Organization: California Stormwater Quality Association 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

F. Compliance Schedules 

Consistent with CASQA's broader comment about the unique legal and regulatory standards applicable to MS4 permits, 

USEPA should clarify that the proposed compliance schedule regulations are limited to numeric WQBELs. Most MS4 

permits do not contain numeric WQBELs because Section 402(p)(3)(B)(iii) does not require strict compliance with water 

quality standards. MS4 permits are designed to implement a program that will, over time, achieve compliance with 

water quality standards. Given the unique nature of stormwater discharges, for many pollutants, it will take decades to 

achieve applicable standards. Therefore, it is crucial that the proposed regulations allow MS4 permits to continue to 

address issues over the timeframe and at the scale that the problem demands, and not be subject to arbitrary limits not 

reflective of the nature of the problem and the available tools to address the issue. 

Recommendations: Clarify the application of compliance schedule provisions only to numeric WQBELs. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section C 

Comment ID 0135-A1.001.003 

Author Name: Hofmann John 

Organization: Brazos River Authority 

Our other concern is in regards to how compliance schedules are included in discharge permits. USEPA's intent 

appears to be addressing compliance schedules that exceed one year; the rulemaking requires a schedule which would 

set forth interim requirements and dates for achievement of the interim requirements. The BRA supports the inclusion of 

interim requirements in compliance schedules, but is concerned that those requirements appear to be date-dependentonly. We strongly recommend that states have the flexibility to decide whether compliance schedules interim 

requirements be implemented on a date requirement, a flow based requirement, pollutant stream loading, or a 

combination of these. 

BRA appreciates the opportunity to provide comments on this proposed rulemaking. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section E 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Comment ID 0161-A2.001.011 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

9. §131.15 Compliance schedule authorizing provisions states, "A State may, at its discretion and consistent with state 

law, authorize schedules of compliance for water quality-based effluent limits (WQBELs) in NPDES permits by including 

a compliance schedule authorizing provision in its water quality standards or implementing regulations. Any such 

provision is a water quality standard subject to EPA review and approval and must be consistent with sections 502(17) 

and 301(b)(1)(C) of the Act. Individual compliance schedules issued pursuant to such authorizing provisions are not 

themselves water quality standards. Individual compliance schedules must be consistent with CWA section 502(17), the 

state's EPA-approved compliance schedule authorizing provision, and the requirements of §§122.2 and 122.47." 

• The Iowa Department of Natural Resources understands that §131.15 recognizes that Iowa's current authorizing 

provisions and implementing regulations have been in place for some time and are not subject to further approval as a 

water quality standard. If the language in §131.15 suggests that Iowa's authorizing provisions and implementing 

regulations would now require approval from EPA, we would disagree and suggest the language be changed to reflect 

that Iowa's situation does not require additional approval. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section F 

9.b 

Comment ID 0176-A2.001.016 

Author Name: Lazarus Jay 

Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) 

Compliance schedule authorizing provisions 

DPNM support development of compliance schedules as a procedure to establish discharge limitations in Discharge 

Permits. We encourage EPA to recognize that schedules are often modified due to events outside of the discharger's 

control or authorization and release of government funds such as EQIP. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

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9.d: Section E 

Comment ID 0178-A2.001.020 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

V. Compliance Schedule Authorization Provisions 

Idaho already has EPA approved provision for permit compliance schedules in its water quality standards. So this is a 

non-issue for Idaho. 

We do recommend that EPA clarify in the preamble that compliance schedules can be used not only for classic point 

source NPDES permits but also stormwater permits. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section C 

Comment ID 0183-A1.001.008 

Author Name: Rich Eric 

Organization: Navajo Nation Environmental Protection Agency 

Provisions Authorizing the Use of Permit-Based Compliance Schedule 

The USEPA is proposing to add a new regulatory provision at 40 CFR 131.15 to clarify that a permitting authority may 

only issue Water Quality Based Effluent Limits in NPDES Permits if the state or tribe has authorized issuance of such 

compliance schedules pursuant to state or tribal law in its water quality standards or implementing regulations. 

NNEPA Water Quality/NPDES Program Comment: 

The Navajo Nation Clean Water Act is the implementing regulation for the Navajo Nation and has permit based 

compliance schedules in Section 201(e) - Water Quality Standards - Compliance Schedules, and Section 303 - Surface 

Water Discharges and Pretreatment Requirements - Schedules of Compliance. This should not affect the Navajo Nation 

Surface Water Quality Standards 

What is the process USEPA will use to evaluate if a state or tribe has compliance schedules in law? 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section F 

Comment ID 0188-A2.001.011 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

9. §131.15 Compliance schedule authorizing provisions states, "A State may, at its discretion and consistent with state 

law, authorize schedules of compliance for water quality-based effluent limits (WQBELs) in NPDES permits by including 

a compliance schedule authorizing provision in its water quality standards or implementing regulations. Any such 

provision is a water quality standard subject to EPA review and approval and must be consistent with sections 502(17) 

and 301(b)(1)(C) of the Act. Individual compliance schedules issued pursuant to such authorizing provisions are not 

themselves water quality standards. Individual compliance schedules must be consistent with CWA section 502(17), the 

state's EPA-approved compliance schedule authorizing provision, and the requirements of §§122.2 and 122.47." 

• The Iowa Department of Natural Resources understands that §131.15 recognizes that Iowa's current authorizing 

provisions and implementing regulations have been in place for some time and are not subject to further approval as a 

water quality standard. If the language in §131.15 suggests that Iowa's authorizing provisions and implementing 

regulations would now require approval from EPA, we would disagree and suggest the language be changed to reflect 

that Iowa's situation does not require additional approval. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section F 

9.b 

Comment ID 0189-A1.001.030 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Authorizing Compliance schedules 

To consistent with CWA and regulatory requirements for permits, we encourage EPA to limit compliance schedule to 

the length of a permit or 5 years. A compliance schedule may be necessary when a new effluent limit is included in a 

permit, either because of new effluent limit guidelines from EPA associated with new technologies, or where a water 

quality based effluent limit (WQBEL) requires stricter controls than had previously been imposed. We can understand 

that a discharger will need some time to design, build, and pilot any new technology or processes that might be 

necessary to meet stricter permit limits. However, five years should be more than adequate for any new technology or 

process. If a discharger cannot meet the requirements of a TMDL or WQBEL or effluent limit guideline, then perhaps 

the discharger should not be issued a permit. There is no inherent right to pollute the nation's waters. EPA should be 

absolutely clear in this regard and the Bands urge EPA to revise the rule to include a five year limitation on compliance 

schedules. 

Thank you for this opportunity to provide you our input. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section E 

Comment ID 0195-A1.001.031 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Authorizing Compliance schedules 

The NTWC encourages EPA to limit compliance schedule to the length of a permit or 5 years, which would be 

consistent with CWA and regulatory requirements for permits. A compliance schedule may be necessary when a new 

effluent limit is included in a permit, either because of new effluent limit guidelines from EPA associated with new 

technologies, or where a water quality based effluent limit (WQBEL) requires stricter controls than had previously been 

imposed. We can understand that a discharger will need some time to design, build, and pilot any new technology or 

processes that might be necessary to meet stricter permit limits. However, five years should be more than adequate for 

any new technology or process. If a discharger cannot meet the requirements of a TMDL or WQBEL or effluent limit 

guideline, then perhaps the discharge should not be issued a permit. There is no inherent right to pollute the nation's 

waters. EPA should be absolutely clear in this regard and the NTWC urges EPA to revise the rule to include a five year 

limitation on compliance schedules. 

Thank you for this opportunity to provide you our input. 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section E 

Comment ID 0197-A1.001.017 

Author Name: Garrison Naoh 

Organization: Natural Resources Defense Council 

Compliance Schedule Periods Should be Limited to Five Years 

The Proposed Rule would add a new provision under 40 C.F.R. § 131.15 [FN6] that would "clarify that a permitting 

authority may only issue compliance schedules for WQBELs in NPDES permits if the state or tribe has authorized 

issuance of such compliance schedules pursuant to state or tribal law in its water quality standards or implementing 

regulation." (78 Fed. Reg. at 54,537.) The authorizing provision would be subject to EPA review and approval. While 

NRDC believes that, like variances, compliance schedules often serve to delay efforts to meet WQS or other goals, we 

generally support EPA's efforts to clarify the requirements for a state or tribe to approve or issue a compliance 

schedule. However, NRDC urges EPA to limit the potential for compliance schedules to unduly delay compliance with 

WQS or other provisions. In particular, we urge EPA to clearly limit the timeframe for which a compliance schedule may 

be granted to the length of a Clean Water Act Permit, or no more than 5 years. 

[FN6] See In the Matter of StarKist Caribe, Inc., 3 EAD 172, 1990 WL 324290 (April 16, 1990). 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section A 

9.d: Section E 

Comment ID 0199-A1.001.018 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

6) Provisions Authorizing the Use of Permit-Based Compliance Schedules 

EPA is proposing. to add a new provision at 40 CFR § 131.15 to comply with the EPA Administrator's decision in In the 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Matter of StarKist Caribe, Inc. [FN11] The provision will "clarify that a permitting authority may only issue compliance 

schedules for WQBELs in NPDES permits if the state or tribe has authorized issuance of such compliance schedules 

pursuant to state or tribal law in its water quality standards or implementing regulation." [FN12] This authorizing 

provision will be subject to EPA review and approval. We support EPA's decision to clarify that prior to issuing 

compliance schedules, a state or tribe must have an authorizing provision that is considered a WQS and subject to EPA 

review and approval. EPA should additionally limit the timeframe for compliance schedules to the length of CWA 

permits or 5 years. 

[FN11] 1990 WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD 172 (April 16, 1990). 

[FN12] 78 Fed. Reg. at 54,537. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section A 

9.d: Section E 

Comment ID 0224-A1.001.015 

Author Name: Ternieden Claudio 

Organization: Water Environment Federation 

2. Consistency of Individual Compliance Schedules with EPA Regulations 

The last sentence to the proposed new §131.15 states that individual compliance schedules "must be consistent with . . 

. the requirements §§ 122.2 and 122.47" of EPA's NPDES permit program regulations. As in the Star-Kist Caribe 

decision, in further considering changes to Part 131, EPA must recognize and conclude that only the States possess 

the legal authority to authorize compliance schedules as included in Section 303(e)(3)(F). Therefore, the Agency should 

immediately further review §§122.2 and 122.47 that limit the States' authority to establish schedules under the Agency's 

NPDES permit regulation, and, if not, whether §§122.2 and 122.47 must be repealed or modified to be consistent with 

law. 

Therefore, WEF recommends that the proposed §131.15 not be approved by EPA and that the Agency include only a 

coordinating reference in Part 131 that recognizes the States' authority to establish compliance or implementation 

schedules implemented through NPDES permits and other management or implementation actions in order to give full 

EPA recognition to the states' authority under the Act including Section 303(e), consistent with the EPA Star-Kist Caribe 

decision. 

Response 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section E 

Comment ID 0255-A2.001.012 

Author Name: Quaempts Eric 

Organization: Confederated Tribes of the Umatilla Indian Reservation 

Compliance Schedules 

Compliance plans and schedules should be limited to the length of a permit or five years. Allowing continued noncompliance beyond that time should only considered under the most problematic circumstances, following a rigorous, 

public review and re-assessment. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section E 

Comment ID 0268-A2.001.043 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

G. Provisions Authorizing the Use of Permit-Based Compliance Schedule 

We agree with EPA that states may not understand what is necessary to issue a compliance schedule and that EPA's 

rules should be clarified to reflect In the Matter of Star-Kist Caribe, Inc. Id. at 54537. We suggest that EPA should also 

make clear in its rules that states must issue compliance schedules as compliance schedules and not use any other 

jerry-rigged mechanisms, such as administrative orders, to ostensibly achieve the same purpose. We further suggest, 

as mentioned above, that EPA make clear states are to evaluate whether a compliance schedule could be used prior to 

pursuing a variance. Last, EPA should ensure 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 proposed rules. 

Response 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section B 

9.d: Section D 

8.e 

8.f.i 

Comment ID 0274-A2.001.011 

Author Name: Yeaton Violet 

Organization: Region 10 Regional Tribal Operations Committee 

6. Compliance Schedules 

The Tribal Caucus support the Proposed Rules language for compliance schedules, but it should be amended to limit 

the length of compliance schedules to no longer than a permit term of five years. This is consistent with the Clean 

Water Act's requirements for permit renewals. Moreover, clarification should be provided that compliance schedules are 

prohibited for new and increased discharges of pollutants. 

Response 

For response to this comment, see the following response essay(s): 

9.d 

9.d: Section E 

9.E - CSAP - LEGAL 

Comment ID 0160-A2.001.017 

Author Name: West Jeff 

Organization: Xcel Energy 

4. Compliance schedules. 

Xcel Energy questions whether the water quality standards regulation is the appropriate place for EPA to provide rules 

governing states' implementation of compliance schedules. As defined in the Clean Water Act, a "schedule of 

compliance" is inherently a permitting decision; it "means a schedule of remedial measures including an enforceable 

sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or 

standard." CWA section 503(17). Implementation of effluent limitations necessary to meet schedules of compliance 

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"established pursuant to any State law or regulations" is explicitly authorized by Section 301(b)(1)(C) of the Act. Placing 

conditions on states' implementation of compliance schedules in the water quality standards regulation creates 

unnecessary confusion and is inconsistent with the intent of the Act. 

In particular, the Proposed Rule creates confusion by incorrectly asserting that a state's compliance schedule 

authorizing provision is itself a "water quality standard subject to EPA review and approval." Elsewhere, the regulation 

defines "water quality standards" as 

provisions of State or Federal law which consist of a designated use or uses for the waters of the United States and 

water quality criteria for such waters based upon such uses. Water quality standards are to protect the public health or 

welfare, enhance the quality of water and serve the purposes of the Act. 

40 CFR 131.3(i). This definition does not include state regulations that implement schedules of compliance in permits 

as defined in the Act. 

The Proposed Rule creates further confusion by asserting that compliance schedules may only be authorized for waterquality-based effluent limits. This assertion is not supported by the text of the Act. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section E 

9.e: Section F 

9.e: Section G 

9.b 

Comment ID 0170-A1.001.009 

Author Name: Faggert Pamela 

Organization: Dominion Resources Services, Inc. 

Compliance schedules are a State responsibility and should not be subject to EPA review and approval. The proposed 

regulatory changes would also prohibit the use of compliance schedules for water quality standards that were in effect 

before 1977. Compliance schedules for pre-1977 WQS are allowable under the CWA and the decision to allow 

compliance schedules for pre-1977 WQS should rest with the States. We request that Section §131.15 be removed 

from the proposed regulation. 

Response 

For response to this comment, see the following response essay(s): 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

9.e 

9.e: Section C 

9.e: Section D 

9.b 

Comment ID 0171-A2.001.017 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

CF questions the need for such a provision at this point in time, and the legal exigency, in that EPA and the states have 

been issuing compliance schedules legally as part of the NPDES program for decades. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section C 

9.e: Section E 

9.b 

Comment ID 0173-A1.001.017 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

CF questions the need for such a provision at this point in time, and the legal exigency, in that EPA and the states have 

been issuing compliance schedules legally as part of the NPDES program for decades. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section C 

9.e: Section E 

9.b 

Comment ID 0180-A2.001.023 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Author Name: Hobson Chris 

Organization: Southern Company 

Nor is it appropriate, or authorized by statute, for EPA to be reviewing state regulations and determining if they are 

consistent with state law. That is the function of the state courts. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section E 

9.b 

Comment ID 0201-A1.001.033 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Instead, details such as time limits or other case-specific restrictions are within the exclusive province of the State, 

subject to compliance with the CWA, and EPA has no authority to require States to submit detailed compliance 

schedule provisions to the agency for its approval. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section E 

9.e: Section F 

9.b 

Comment ID 0203-A1.001.029 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

VII. State Regulations Authorizing Compliance Schedules in Light of Star-Kist Caribe 

A. Compliance Schedule Regulations "Consistent with State Law" 

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EPA proposes to codify its reading of the Environmental Appeals Board's opinion In the matter of Star-Kist Caribe, Inc., 

NPDES Appeal No. 88-5, 3 E.A.D. 172, 1990 EPA App. LEXIS 45 (April 16, 1990). See proposed § 131.15. This would 

mean, first, allowing compliance schedules only if state law authorizes them ("consistent with state law"). 

This is unnecessary, because a state can do anything only as authorized by state law. If a state authorized a variance 

that was not "consistent with state law," it could be challenged in state court. It is not necessary for EPA to specify that 

state variances must be consistent with state law. Indeed, the existing regulation, 40 C.F.R. § 123.25(a)(18), already 

says that state programs must have legal authority to implement compliance schedules. 

Nor is it appropriate, or authorized by statute, for EPA to be reviewing state regulations and determining if they are 

consistent with state law. That is the function of the state courts. 

B. EPA Review and Approval of Compliance Schedules 

More important, EPA would require a state to authorize compliance schedules expressly as part of state water quality 

standards. In this way, EPA would approve or disapprove state law compliance schedule regulations. 

As the comments of the Federal Water Coalition point out, § 303(e)(3)(A) makes schedules of compliance part of the 

"continuing planning process" and distinct from "water quality standards" required by §§ 303(a) and (c). By statute, 

schedules of compliance are not "water quality standards." "Schedule of compliance" is defined in § 502(17) as a 

"schedule ... including an enforceable sequence of actions or operations." A "water quality standard" consists of 

designated uses and water quality criteria (CWA § 303(c)(2)(A)). Schedules and water quality standards are two 

different things. 

EPA recognizes this distinction half-heartedly by providing that individual schedules in permits are not water quality 

standards but state regulations authorizing compliance schedules are. But nothing in the Clean Water Act gives EPA 

authority to rename part of the continuous planning process as a "water quality standard." If this were to work, then EPA 

could rename any requirement of state law, call it a part of "water quality standards," and make it subject to EPA's 

approval. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section E 

9.e: Section H 

9.b 

Comment ID 0224-A1.001.014 

Author Name: Ternieden Claudio 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

Organization: Water Environment Federation 

G. Provisions Authorizing the Use of Permit-Based Compliance Schedules. 

EPA Proposal: 

EPA is proposing to add a new Section 131.15, Compliance Schedule Authorizing Provisions to the Agency's Water 

Quality Standards ("WQSs") Regulation. This proposed rule addition would recognize the use of schedules of 

compliance for WQSs. 

According to federal register notice, this water quality standards rule proposal is "to be consistent with the decision of 

the EPA Administrator under In the Matter of Star-Kist Caribe, Inc. (1990 WL 32490 (EPA), 1990 EPA App. LEXIS 45, 3 

EAD172 (April 16, 1990)) ("the EPA Star-Kist Caribe decision")." The Administrator's Star-Kist decision holds that the 

authority for implementation or compliance schedules for water quality standards is reserved to the States in Section 

303(e) of the Clean Water Act ("CWA" or "Act"). 

WEF Comments: 

1. In General – Schedules of Compliance Are Only a State/Tribe Matter Under Section 303(e) of the Clean Water Act 

Schedules of compliance for implementing or achieving water quality standards are clearly a matter for only the 

States/Tribes as authorized in §303(e) of the Act for state continuing planning processes. Section 303(e)(3) directs : 

"The Administrator shall approve any continuing planning process submitted to him under this section which will result 

in plans for all navigable waters within such State, which include, but are not limited to, the following: . . . (F) adequate 

implementation, including schedules of compliance, for revised or new water quality standards, under subsection (c) of 

this section; . . ." EPA does not possess such authority. The states' authority was clearly recognized by the EPA 

Administrator in the Star-Kist Caribe decision which states at page 12: 

With respect to schedules of compliance specifically, the Act keeps them in the hands of the States, not EPA, as part of 

a continuing planning process for water quality under §303(e) of the Act, subject only to EPA review and approval. 

Section 303(e) is the States Continuing Planning Process for pursuing water quality through actions to implement state 

water quality standards. EPA does not possess such authority under the CWA. 

Further authority for state implementation or compliance schedules is supported by Section 510 of the Clean Water Act: 

STATE AUTHORITY 

SEC. 510. Except as expressly provided in this Act, nothing in this Act shall (1) preclude or deny the right of any State 

or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting 

discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent 

limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in 

effect under this Act, such State or political subdivision or interstate agency may not adopt or enforce any effluent 

limitation, or other limitation, effluent standard, prohibition, pretreatment standard , or standard of performance which is 

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less stringent than the effluent limitation, or other limitation, effluent standard prohibition, pretreatment standard, or 

standard of performance under this Act; or (2) be construed as impairing or in any manner affecting any right or 

jurisdiction of the States with respect to the waters (including boundary waters) of such States. 

(33 U.S.C. 1370) 

The Star-Kist Caribe decision further concludes that: 

In summary, the language, structure, and objectives of the Act, as set forth in §§101(a) and (b), 402(a)(3), and 510, all 

support an interpretation of 301(b)(1)(C) that Congress intended the States, not EPA, to become the proper authorities 

to define appropriate deadlines for complying with their own state law requirements. Just how stringent such limitations 

are, or whether limited forms of relief such as variances, mixing zones, and compliance schedules should be granted 

are purely matters of state law which EPA has no authority to override. 

EPA, In the Matter of Star-Kist Caribe, Inc., Petitioner, NPDES Appeal No. 88-5, April 17, 1990 at page 15-16 

(emphasis supplied). 

EPA's proposal discussed the application of Sec. 301 (b)(1)(C) including the application of the July 1, 1977 date. The 

Star-Kist decision addressed the 1977 date in Sec. 301(b)(1)(C) on page 21 including footnote 1 as follows: 

. . . By including the July 1, 1977 deadline in the statute, Congress was, in effect, providing a "grace period" as part of a 

timetable for implementation of the requirements of the Act. Once the grace period has lapsed, EPA must ensure that 

all permits contain limitations necessary to meet whatever state water quality standards are in effect at the time of 

permit issuance, regardless of when the standards were adopted or revised. 21/ 

Footnote 21 states in part: 

21/ In other words, after the grace period has run, the statute would be read and applied in the same manner as if the 

deadline had never appeared in the statute . . . . 

Therefore, under the Act, and as recognized by the Administrator's decision in Star-Kist Caribe, there is no distinction, 

and never has been a distinction, between pre- and post- 1977 water quality standards after 1977, as to the application 

of WQSs implementation or compliance schedule. WEF believes Part 131 should clearly state this for all regulatory and 

enforcement purposes to ensure authoritative, fair, clear and effective implementation of the Act. EPA's providing such 

clarity now in the instant rulemaking for Part 131 is particularly important recognizing (1) the confusion over the 

availability of compliance schedules exceeding a five-year permit term, and (2) that the EPA enforcement function has 

asserted a different view on this matter. WEF recommends that EPA recognize this State authority in this rulemaking 

process for Part 131 to assure consistency and compliance with the Clean Water Act and the national clean water 

program. 

Response 

For response to this comment, see the following response essay(s): 

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9.e 

9.e: Section E 

9.b 

Comment ID 0231-A2.001.035 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

Further, compliance schedules are already properly addressed under federal regulations 40 C.F.R. s. 122.47 

(authorizing compliance schedules for federally administered NPDES programs) and 40 C.F.R. s. 123.25 (noting that 

authorized state programs may include compliance schedules pursuant to legal authority under state law). EPA has no 

authority to require that a State's detailed compliance schedule provisions be submitted to EPA for its approval. And 

EPA's conclusion that States may not establish schedules of compliance for pre-1977 standards is an unauthorized 

intrusion on State authority. If States have the legal authority under their own laws and regulations to allow compliance 

schedules in permits, then States may use such compliance schedules to implement both pre-1977 and post-1977 

WQS. If a State does not currently allow compliance schedules, it may amend its law to provide this implementation 

option. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section B 

9.e: Section D 

9.e: Section E 

9.b 

Comment ID 0237-A2.001.010 

Author Name: Tucker James 

Organization: Idaho Power Company 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

6. There is nothing in the CWA that requires compliance schedules to be part of any state or tribal water quality 

standard. A compliance schedule is an enforcement tool. Many, if not most, states already have the authority to require 

compliance schedules. Requiring the states to change their source of legal authority may require legislative action and 

certainly will require formal rulemaking, with its attendant costs, time and effort. It is inappropriate to require as a matter 

of law that the source of the authority for compliance schedules be in the state's water quality standards. If the concern 

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Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

is that the states have adequate legal authority to require compliance schedules before implementing them, the 

regulation should say so. EPA's proposed new section should read as follows: 

§ 131.15 Compliance schedule authorizing provisions. 

A State may, at its discretion and consistent with state law, authorize schedules of compliance for water quality-based 

effluent limits (WQBELs) in NPDES permits. [begin strikeout]by including a compliance schedule authorizing provision 

in its water quality standards or implementing regulations. Any such provision is a water quality standard subject to EPA 

review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act. [end strikeout] Individual 

compliance schedules [begin strikeout] issued pursuant to such authorizing provisions [end strikeout] are not 

themselves water quality standards. Individual compliance schedules must be consistent with CWA section 502(17), 

[begin strikeout] the state's EPA-approved compliance schedule authorizing provision [end strikeout] state law, and the 

requirements of §§ 122.2 and 122.47. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section B 

9.e: Section C 

9.e: Section E 

9.b 

Comment ID 0244-A2.001.023 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

Further, compliance schedules are already properly addressed under federal regulations. EPA has no authority to 

require that a State's compliance schedule provisions be submitted to EPA for its approval. And EPA's conclusion that 

States may not establish schedules of compliance for pre-1977 standards is an unauthorized intrusion on State 

authority. If the State has the legal authority under their own laws and regulations to allow compliance schedules in 

permits, the State may use such compliance schedules to implement both pre-1977 and post-1977 WQS. If a State 

does not currently allow compliance schedules, it may amend its law to provide this implementation option. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section B 

9.e: Section D 

08/04/2015 05:01 PM EDT 2-1385
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

9.e: Section E 

9.b 

Comment ID 0248-A2.001.024 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

This proposal seems to reach a state law issue outside of EPA's purview. Whether a state agency is issuing compliance 

schedules 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. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section E 

9.b 

Comment ID 0252-A2.001.036 

Author Name: Fry Eric 

Organization: Peabody Energy 

Further, compliance schedules are already properly addressed under federal regulations 40 C.F.R. s. 122.47 

(authorizing compliance schedules for federally administered NPDES programs) and 40 C.F.R. s. 123.25 (noting that 

authorized state programs may include compliance schedules pursuant to legal authority under state law). EPA has no 

authority to require that a State's detailed compliance schedule provisions be submitted to EPA for its approval. And 

EPA's conclusion that States may not establish schedules of compliance for pre-1977 standards is an unauthorized 

intrusion on State authority. If States have the legal authority under their own laws and regulations to allow compliance 

schedules in permits, then States may use such compliance schedules to implement both pre-1977 and post-1977 

WQS. If a State does not currently allow compliance schedules, it may amend its law to provide this implementation 

option. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section B 

08/04/2015 05:01 PM EDT 2-1386
 
Chapter 2 - Comment Documents Compliance Schedule Authorizing Provisions 

9.e: Section D 

9.e: Section E 

9.b 

Comment ID 0262-A2.001.021 

Author Name: Rawlings Laurent 

Organization: Home Builders Association of Kentucky 

And, EPA has no authority to require that Kentucky's detailed compliance schedule provisions be submitted to EPA for 

approval. HBAK supports States' Primacy in their authority to implement compliance schedules under the Clean Water 

Act. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section E 

9.b 

Comment ID 0276-A2.001.011 

Author Name: Alves James 

Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. 

FCG-EC supports this approach but questions the need for re-approval insofar as approval of a state compliance 

schedule law already has been approved under the states' NPDES program. EPA and the states have been issuing 

compliance schedules as part of the NPDES program for decades. 

Response 

For response to this comment, see the following response essay(s): 

9.e 

9.e: Section C 

9.b 

08/04/2015 05:01 PM EDT 2-1387