CALIFORNIA 

Water Boards 

EDMUND G. BROWN JR. GOVERNOR <11411, MATTHEW RODRIQUEZ SECRETARY FOR ENVIRONMENTAL PROTECTION State Water Resources Control Board 

May 20, 2016 

Marcela von Vacano 

U.S. Environmental Protection Agency 

Office of Regional Counsel 

75 Hawthorne Street 

San Francisco, CA 94105 

Vonvacano.marcela(@epa.gov 

Dear Ms. von Vacano: 

APPLICABILITY OF STATE WATER RESOURCES CONTROL BOARD'S (STATE WATER 

BOARD) COMPLIANCE SCHEDULE POLICY TO U.S. EPA'S PROPOSED SELENIUM 

WATER QUALITY STANDARD 

The United States Environmental Protection Agency (U.S. EPA) plans to propose new, more 

protective, selenium water quality criteria for aquatic life and aquatic-dependent wildlife in the 

San Francisco Bay and Delta by amending the California Toxics Rule (promulgated at 40 Code 

of Federal Regulations section 131.38). You have asked whether the State Water Board's 

Policy for Compliance Schedules in National Pollutant Discharge Elimination System Permits 

(Cal. Code Regs., tit. 23, § 3906; State Water Board Res. No. 2008-0025) (Compliance 

Schedule Policy) will apply to the new selenium water quality criteria. The Compliance 

Schedule Policy will apply to National Pollutant Discharge Elimination System (NPDES) permits 

issued by the State Water Board and the regional water quality control boards that implement 

the new selenium water quality criteria if U.S. EPA adopts the water quality criteria as proposed. 

Unless a specific exception applies, the Compliance Schedule Policy authorizes compliance 

schedules regardless of whether a water board or U.S. EPA established the applicable water 

quality standard. The Compliance Schedule Policy: 

authorizes a Water Board to include a compliance schedule in a permit for an 

existing discharger to implement a new, revised, or newly interpreted water 

quality objective or criterion in a water quality standard that results in a permit 

limitation more stringent than the limitation previously imposed.... 

(Compliance Schedule Policy (2008), p. 3, § 2.) 

A "Iniew, revised, or newly interpreted water quality objective or criterion in a water quality 

standard' means a water quality objective or criterion in a water quality standard that is adopted, 

revised, or newly interpreted after the effective date of this Policy...." (Id., p. 3, § 1(d).) The 

phrases "water quality objective" and "criterion in a water quality standard" are largely 

synonymous, with the distinction being that a water board establishes "water quality objectives" FELICIA MARCUS, CHAIR I THOMAS HOWARD, EXECUTIVE DIRECTOR 1001 I Street, Sacramento, CA 95814 I Mailing Address: P.O. Box 100, Sacramento, CA 95812-0100 I www.waterboards.ca.gov 

to. RECYCLED PAPER 
Marcela von Vacano - 2 - May 20, 2016 

pursuant to state law and U.S. EPA approves or establishes criteria in water quality standards 

as part of the federal Clean Water Act. (Compare Wat. Code, §§ 13050, subd. (h), 13241 with 

40 C.F.R. §§ 130.2(d), 131.21.) Both are limitations crafted to protect uses of water. Because the Compliance Schedule Policy's definitions do not limit the origin of a more stringent permit 

limitation and it can derive from either a water quality objective or criterion in a water quality standard, the Compliance Schedule Policy is available for U.S. EPA-promulgated criteria unless there is a specific exception. 

Section 2 of the Compliance Schedule Policy includes specific exceptions to this general rule of applicability. The specific exception that relates to water quality criteria promulgated in the California Toxics Rule provides as follows: 

Compliance schedules are not authorized under this Policy for permit limitations 

implementing criteria promulgated in the CTR, as amended (40 C.F.R. section 

131.38, revised as of July 1, 2005). Compliance schedules for existing CTR 

criteria are authorized only under the SIP. However, this Compliance Schedule 

Policy authorizes compliance schedules for permit limitations implementing CTR 

criteria that are revised by the USEPA after the effective date of this Policy. 

(Id., p. 4, § 2(c) [emphasis in original].) 

The specific exception in the above-quoted paragraph does not apply to U.S. EPA's proposal to adopt new selenium water quality criteria as part of the California Toxics Rule. The Compliance Schedule Policy's exception for U.S. EPA-promulgated criteria in the California Toxics Rule applies only to the specific water quality criteria that were in the California Toxics Rule on July 1, 2005. The proposed new water quality criteria for selenium were not part of the California Toxics Rule on July 1, 2005. 

Furthermore, the final sentence of the above-quoted paragraph confirms that the Compliance Schedule Policy applies to either new or more stringent water quality criteria promulgated in the California Toxics Rule that are revised by U.S. EPA after the Compliance Schedule Policy's December 17, 2008 effective date. The final sentence uses the plural "criteria" rather than 

referring to revisions of any individual criterion. U.S. EPA's proposed action will revise 

California Toxics Rule criteria by including new, more protective criteria for selenium. These revisions to the California Toxics Rule's criteria would trigger the savings clause in the last 

sentence of section 2(c) and ensure that the Compliance Schedule Policy is available for new, 

more protective selenium criteria in the California Toxics Rule. 

The fact that U.S. EPA originally promulgated some selenium criteria in the National Toxics 

Rule (40 C.F.R. § 131.36) does not affect the outcome of this analysis. As with the California Toxics Rule, the Compliance Schedule Policy contains an exception for criteria contained in the National Toxics Rule. (Compliance Schedule Policy, p. 4, § 2(b).) Part of U.S. EPA's proposed action, though, would remove the existing, less protective criteria for selenium in the National Toxics Rule as applied to California. Since no criteria for selenium will remain in the National Toxics Rule if U.S. EPA takes the proposed action, the Compliance Schedule Policy's exception for National Toxics Rule criteria will not apply. 
Marcela von Vacano - 3 - May 20, 2016 

If you have any questions regarding this letter, please contact Philip G. Wyels, Assistant Chief 

Counsel, at philip.wyelswaterboards.ca.qov or (916) 341-5178. 

Michael A.M. Lauffer 

Chief Counsel 

cc: All via e-mail only 

Tom Howard, Exec 

Jonathan Bishop, Exec 

Karen Larsen, DWQ 

Philip Wyels, OCC