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State Pollutant Discharge Permit Properly Approved by DEP

The Second Department reversed Supreme Court and determined the NYS Department of Environmental Conservation properly approved the issuance of a state pollutant discharge elimination system general permit for stormwater discharges from municipal separate storm sewer systems.  Supreme Court held “the General Permit created an impermissible self-regulatory system that failed to ensure that small municipalities reduced their pollutant discharges to the “maximum extent practicable,” as required by 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c), that the General Permit failed to specify compliance schedules with respect to effluent limitations and water quality standards, as required by 6 NYCRR 750-1.14, and that the General Permit unlawfully failed to provide an opportunity for a public hearing on proposed notices of intent before they were submitted to the DEC, in violation of 33 USC § 1342(a)(1) and ECL 17-0805(1)(a)(ix).”  The Second Department disagreed, discussing its reasoning in detail:

…[T]he “[m]aximum extent practicable . . . is the statutory standard that establishes the level of pollutant reductions that operators of regulated MS4s must achieve” (64 FR 68722, 68754; see 40 CFR 122.34[a]). The “EPA has intentionally not provided a precise definition of [maximum extent practicable] to allow maximum flexibility in MS4 permitting” (64 FR 68722, 68754). It has determined that “MS4s need the flexibility to optimize reductions in storm water pollutants on a location-by-location basis” (id.). The “EPA envisions that this evaluative process will consider such factors as conditions of receiving waters, specific local concerns, . . . MS4 size, climate, implementation schedules, current ability to finance the program, beneficial uses of receiving water, hydrology, geology, and capacity to perform operation and maintenance”… . * * *

Contrary to the petitioners’ contention, the General Permit does include a variety of enforcement measures that are sufficient to comply with the maximum extent practicable standard, as described in state and federal statutes (see 33 USC § 1342[p][3][B][iii]; ECL 17-0808[3][c]). * * *

It was not arbitrary and capricious for the DEC to limit the opportunity for public hearings to those situations in which a new general permit is proposed or an existing general permit is renewed, since any modifications to a draft general permit resulting from public comment and hearings will extend to all covered entities … .  Matter of Natural Resources Defense Council Inc v NYS Dept of Envtl Conservation, 2013 NY Slip Op 07488, 2nd Dept 11-13-13

 

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