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Federal Environmental Appeals Board Decides that NPDES Permits May Contain Compliance Schedules Exceeding the 5-Year Permit Term

04.01.2008

By Larry Kane, Attorney, Bingham Greenebaum Doll LLP

The U.S. EPA’s Environmental Appeals Board (”EAB”) recently issued a decision in an NPDES permit appeal, In re District of Columbia Water and Sewer Authority, _____ E.A.D. ____, NPDES Appeal Nos. 05-02, 07-10, 07-11, and 07-12 (E.A.B. March 19, 2008) (the “DC WASA” decision), which has potential repercussions for other CSO communities. Briefly, this decision holds that the U.S. EPA, where it is the NPDES permitting agency, must incorporate an approved compliance schedule for Long Term Control Plan (“LTCP”) implementation, even if longer than 5 years, into the community’s NPDES permit if the state water quality agency has legal authority for allowing compliance schedules of that length for attaining water quality standards. Notably, the District of Columbia had enacted a regulation requiring compliance schedules for implementation of water quality-based effluent limits in an NPDES permit of whatever length the permittee can demonstrate is warranted. This regulation was a part of the District’s water quality standards that had been approved by U.S. EPA.

While the EAB decision in DC WASA applies, strictly speaking, to NPDES decisions by U.S. EPA as the permitting authority, there appears to be no legal basis for the rationale of this decision not being equally applicable to NPDES permit decisions where a state is the NPDES permitting agency so long as the underlying factors of the DC WASA case are present. Consequently, the provisions of P.L. 54-2005, § 5, enacted by the Indiana General Assembly in 2005 as SEA 620, become relevant. This legislation requires incorporation of approved LTCP compliance schedules in NPDES permits, when requested by the permittee, even though such schedules may extend beyond a 5-year permit term. As a result, Indiana CSO communities should be eligible for the same requirement as that recognized in the DC WASA decision that such compliance schedules be included in their NPDES permits, regardless of whether the compliance schedule extends beyond the 5-year term of an NPDES permit.

It should be noted that the potential ramifications of the DC WASA decision regarding the use of enforcement orders for establishment of enforceable LTCP implementation schedules in instances where the LTCP compliance schedule is incorporated in an NPDES permit was not addressed in depth by the EAB.

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