Natural Res. Def. Council ,Inc. v. New York State Dep't of Envtl. Conservation
| Citation | 2012 N.Y. Slip Op. 22057,940 N.Y.S.2d 437,35 Misc.3d 652 |
| Parties | In the Matter of the Application of NATURAL RESOURCES DEFENSE COUNCIL, INC., Riverkeeper, Inc., Waterkeeper Alliance, Inc., Soundkeeper, Inc., Save the Sound, Peconic Baykeeper, Inc., Hudson–Raritan Baykeeper, Inc. (d/b/a NY/NJ Baykeeper), and Hackensack Riverkeeper, Inc., Petitioners, v. The NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent. |
| Decision Date | 10 January 2012 |
| Court | United States State Supreme Court (New York) |
OPINION TEXT STARTS HERE
Lawrence M. Levine, New York, for petitioner, Natural Resources Defense Council, Inc.
Reed W. Super, New York, Attorney for petitioners, Riverkeeper, Inc., Waterkeeper Alliance, Inc., Soundkeeper, Inc., Save the Sound, Peconic Baykeeper, Inc., Hudson–Raritan Baykeeper, Inc., and Hackensack Riverkeeper, Inc.
Eric T. Schneiderman, Attorney General of the State of New York, Kevin G.W. Olson, A.A.G., New York, Attorney for respondent.JOAN B. LEFKOWITZ, J.
The Petition is granted in part and denied in part.
The Federal Water Pollution Control Act (also known as the Clean Water Act [hereafter, “CWA”] ) (see 33 USC § 1251, et seq.), inter alia, created the national pollutant discharge elimination system (hereafter, “NPDES”) (33 USC § 1342), whereby the point source discharge of water pollution to surface waters was prohibited except in compliance with a permit therefor issued by the Administrator of the United States Environmental Protection Agency (hereafter, “EPA”) or by a state agency authorized to do so by the EPA.
Article 17 of the Environmental Conservation Law, create[d] a state pollutant discharge elimination system (SPDES) to insure that the State of New York shall possess adequate authority to issue permits regulating the discharge of pollutants from new or existing outlets or point sources into the waters of the state, upon condition that such discharges will conform to and meet all applicable requirements of the [CWA], and rules, regulation, guidelines, criteria, standards and limitations adopted pursuant thereto ..., and to participate in the [NPDES] created by the [CWA].
ECL 17–0801. In 1975, EPA authorized New York to issue such permits through the state's SPDES program, which is administered by respondent, New York State Department of Environmental Conservation (hereafter, “DEC”).
The CWA contemplates the issuance of an individual permit for each applicant who seeks permission to discharge pollutants. However, due to the vast number of separate point sources from which pollutants may be discharged into the nation's waterways and water bodies, and the intolerable task that would be involved in considering and determining an individual application for each one, EPA regulations also provide for the issuance of a “[g]eneral permit[, which is] an NPDES permit' issued under [40 CFR] § 122.28 authorizing a category of discharges under the CWA within a geographical area.” 40 CFR § 122.2; see also Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1380–1382 (D.C.Cir.1977) (). The provisions of section 122.28 are applicable to state NPDES programs, such as New York's SPDES program, “[p]rovided that States which do not seek to implement the general permit program under § 122.28 need not do so.” 40 CFR § 123.25(a)(11).
New York has chosen to implement the general permit program.
Thus, pursuant to ECL 70–0117(6), (a) Under the [SPDES] program, [DEC] may issue a general permit ... to cover a category of point sources of one or more discharges within a stated geographical area which (i) involve the same or substantially similar types of operations, (ii) discharge the same types of pollutants, (iii) require the same effluent limitations or operating conditions, (iv) require the same or similar monitoring, and (v) which will result in minimal adverse cumulative impacts.
(b) General permits can only be issued ... if, by virtue of their nature and location, [DEC] determines such discharges are more appropriately controlled under a general permit than under individual permits.
The CWA requires a NPDES permit, and therefore the ECL requires a SPDES permit, for the discharge of storm water from a municipal separate storm sewer system (hereafter, “MS4”) (see 33 USC § 1342[p]; ECL 17–0808), and CWA rules authorize a permitting agency to issue general permits for such discharges (see 40 CFR § 122.26[a][5]; 40 CFR § 122.28[a][2][i] ).
In January 2003, DEC issued the first statewide “SPDES General Permit For Stormwater Discharges from Municipal Separate Storm Sewer Systems (MS4s), Permit No. GP–02–02,” ( [hereafter, the “2003 MS4 Permit”], a copy of which has not been provided to the Court). By its terms, the 2003 MS4 Permit became effective on January 8, 2003, and was to expire in 2008. DEC commenced the renewal process in 2007. The permit was renewed for two years in 2008 (see [hereafter, the “2008 MS4 Permit”], a copy of which is reproduced at pages S2450–S2541of the Certified Record 1), then for five years in 2010 (see [hereafter, the “2010 MS4 Permit”], a copy of which is annexed to the Petition as Exhibit 7 and is reproduced as Rec Ex at 1–116).
The 2010 MS4 Permit “authorizes discharges of stormwater from small [MS4s] as defined in 40 CFR 122.26(b)(16).” (2010 MS4 Permit, Part I.A.1, Rec. Ex. at 6) 2. Certain small MS4s were not authorized to discharge under the 2003 MS4 Permit but were required to gain coverage under the 2008 MS4 Permit (see 2008 MS4 Permit, Part II.B, Rec. Ex. at S2455–S2456), and small MS4s covered under the 2008 MS4 Permit were required to gain coverage under the 2010 MS4 Permit (see 2010 MS4 Permit, Part II.C, Rec. Ex. at 8). DEC contends that there are hundreds of small MS4s in New York State and it elected to use a general permit, rather than issue individual permits, “[b]ecause covered MS4s involve many of the same or similar issues.” (Respondent's Memorandum Of Law In Opposition To Petitioners' Verified Petition [hereafter, “MOL Opp.”] at 3) 3.
On June 28, 2010, petitioners commenced the instant proceeding in which they “request that the Court declare portions of the [2010 MS4 Permit] to be inconsistent with ... legal requirements ... and ... remand it to [DEC], with instructions to modify it consistent with all applicable legal requirements.” (Petition at 2; see also “WHEREFORE” clause, id. at 26). As alleged in the Petition, petitioner, Natural Resources Defense Council, Inc., “is a not-for-profit organization existing under the laws of the state of New York,” which “has members in New York State who use and enjoy water bodies in the state, such as Long Island Sound and Atlantic coastal waters, which are polluted by stormwater runoff discharged by MS4s in Westchester, Nassau, and Suffolk Counties that are covered by the [2010 MS4 Permit].” ( Id. at 3). Each of the eight other petitioners is allegedly an “organization” or “corporation”—seven of which are described as “not-for-profit” or “non-profit”—existing under the laws of New York State, and which has members who use and enjoy waterways or water bodies which are polluted by storm water runoff discharged by MS4s in one or more counties that are covered by the 2010 MS4 Permit. (See id. at 3–6). In support of the Petition petitioners have submitted the affidavits of eight persons who are allegedly members of the various petitioner organizations and corporations, reside in the state, and use and enjoy waterways or water bodies which are polluted by storm water runoff discharged by MS4s in one or more counties that are covered by the 2010 MS4 Permit.
In the first of four separately stated and numbered causes of action, petitioners allege that the 2010 MS4 Permit violates 33 USC § 1342(p)(3)(B)(iii) and ECL 17–0808(3)(c) because it fails to require MS4s to reduce their discharges of pollutants to the maximum extent practicable. In their second cause of action petitioners allege that, in violation of ECL 17–0811(5) and 17–0813, the 2010 MS4 Permit fails to ensure compliance with water quality standards. In their third cause of action petitioners allege that, in violation of 33 USC § 1318(a) and ECL 17–0815(8), the 2010 MS4 Permit fails to require MS4s to conduct any monitoring of their storm water discharges. In their fourth cause of action petitioners allege that the 2010 MS4 Permit violates the public participation requirements of 33 USC §§ 1251(e) and 1342(a)(1) and (j).
By Verified Answer (hereafter, “Answer”), which was served and filed in January 2011, DEC opposes the Petition and alleges as its sole affirmative defense that the determinations which petitioners challenge “are reasonable and rational and fully consistent with law.” (Answer at 12). DEC does not contest the standing of any of the petitioners to challenge its determinations or object to the venue in which petitioners have brought said challenge. The instant proceeding was deemed fully submitted with the filing in March 2011 of Petitioners' Reply To New Matters Asserted In Respondent's Answer.
This Court's review of the determinations which petitioners challenge is limited to “whether [said] determination[s were] made in violation of lawful procedure, [were] affected by an error of law[—i.e., unlawful—]or [were] arbitrary and capricious or an abuse of discretion.” CPLR 7803(3).
The 2010 MS4 Permit is unlawful...
To continue reading
Request your trial
-
Natural Res. Def. Council, Inc. v. N.Y. State Dep't of Envtl. Conservation
...federal and state law.2 Equating NOIs with applications for individual SPDES permits, Supreme Court granted partial relief to NRDC (35 Misc.3d 652, 940 N.Y.S.2d 437 [Sup.Ct., Westchester County 2012] ). The Appellate Division, as relevant here, rejected NRDC's federal and state law challeng......
-
Natural Res. Def. Council, Inc. v. N.Y. State Dep't of Envtl. Conservation
...federal and state law.2 Equating NOIs with applications for individual SPDES permits, Supreme Court granted partial relief to NRDC (35 Misc.3d 652, 940 N.Y.S.2d 437 [Sup.Ct., Westchester County 2012] ). The Appellate Division, as relevant here, rejected NRDC's federal and state law challeng......
-
Kweh v. Edmunds
...LINDLEY, AND MARTOCHE, JJ.MEMORANDUM: [93 A.D.3d 1247] Plaintiffs commenced these negligence and wrongful death actions stemming from [940 N.Y.S.2d 437] a motor vehicle accident that occurred when a vehicle operated by decedent Juty Kweh [93 A.D.3d 1248] (Kweh) collided with a vehicle opera......