McEa v. Mpca

Citation: 660 N.W.2d 427Docket: C6-02-1243

Court: Court of Appeals of Minnesota; May 6, 2003; Minnesota; State Appellate Court

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The Minnesota Court of Appeals addressed a challenge by the Minnesota Center for Environmental Advocacy against the Minnesota Pollution Control Agency (MPCA) regarding the issuance of a general permit for stormwater discharges by small municipalities. The relator raised several key arguments: 

1. The general permit violates Minn. R. 7001.0210 due to dissimilarity among permittees.
2. It fails to provide public notice and a comment period for the permit's extension to local municipalities.
3. It permits degradation of public waters, violating Minn. R. 7050.0185 and 40 C.F.R. 131.12.
4. The permit weakens federal pollution standards.
5. It is impermissibly vague and does not meet state and federal water quality standards.
6. The MPCA relied on non-controlling case law in the permit's issuance.
7. It lacks adequate monitoring requirements.

The court concluded that the general permit violates the Clean Water Act by not providing public notice and comment opportunities, failed to assess expanded stormwater discharges needing additional controls, and improperly deviated from federal pollution reduction standards. The court reversed and remanded the permit issuance while affirming the agency's position on the remaining issues. The MPCA is responsible for issuing NPDES permits under the Clean Water Act, which requires that stormwater discharges not only be permitted but also include effective controls to minimize pollution.

In early 2002, the Minnesota Pollution Control Agency (MPCA) sought comments on a draft National Pollutant Discharge Elimination System (NPDES) general permit for stormwater discharges by Municipal Separate Storm Sewer Systems (MS4s). A general permit covers a category of permittees with similar operations and allows them to discharge stormwater into U.S. waters after completing an application. The Minnesota Center for Environmental Advocacy (MCEA) submitted comments in February and April 2002 and requested a contested case hearing. During a May 28, 2002, Board meeting, MCEA and others commented on MPCA's compliance with non-degradation rules, leading the Board to keep the record open for additional comments until June 4, 2002. On June 25, 2002, the Board denied MCEA's contested case request and approved the general permit, with the MPCA Commissioner formally executing the order on June 28, 2002. MCEA filed for a writ of certiorari on July 25, 2002, raising several issues: whether the permittees are similarly situated, whether public notice and comment rights were violated, compliance with state non-degradation rules, the permissibility of the term "minimize" in the permit, vagueness in relation to water quality standards, reliance on non-controlling case law, and adherence to state monitoring requirements.

The final decisions of MPCA are reviewed under Minnesota statutes, with the court limited to checking for violations of constitutional provisions, exceeding statutory authority, unlawful procedures, errors of law, lack of substantial evidence, or arbitrariness. The relator bears the burden of proof, and agency decisions are presumed correct, with courts deferring to the agency's expertise.

In Reserve Mining Co. v. Herbst, the court affirms that agency decision-makers are presumed to have the necessary expertise to address technical matters within their authority. The court generally defers to an agency's interpretation of its rules when the language is technical, ambiguous, or has been long established. However, no deference is granted if the regulation's language is clear. The primary issue is the appropriateness of issuing a general permit under Minnesota Rule 7001.0210, which mandates that a general permit can only be issued if the agency finds permit applicants have similar characteristics regarding their operations, emissions, and monitoring requirements. 

The Minnesota Center for Environmental Advocacy (MCEA) contends that the Minnesota Pollution Control Agency (MPCA) has not met these criteria. MCEA argues procedurally that explicit findings are necessary for compliance with Rule 7001.0210, subp. 3, and substantively that the characteristics of the regulated Municipal Separate Storm Sewer Systems (MS4s) are not similar. The court finds the procedural argument unconvincing, stating that explicit findings are not a requirement for issuing a general permit, as the agency's issuance implies such findings have been made. On the substantive argument, the court notes that under paragraphs A and B of subpart 3, permittees need only share one similar characteristic, which they do by discharging storm water. Furthermore, all permittees are subject to the same state and federal standards for storm water discharge, satisfying the requirements of paragraphs C and D as well. Thus, the court concludes that the issuance of the general permit is appropriate.

The general permit mandates that small municipalities develop a Storm Water Pollution Prevention Program (SWPPP) and submit a summary to the Minnesota Pollution Control Agency (MPCA). MCEA contends that the lack of public input on individual SWPPPs violates public participation rights under the Clean Water Act, despite MPCA's assertion that public comment was sufficient at the general permit level. The Clean Water Act emphasizes public involvement, requiring permit applications and issued permits to be publicly accessible and mandating hearings before approvals. The SWPPPs, which detail compliance with the Clean Water Act, are crucial to the permit's implementation. The absence of public hearings for each SWPPP is identified as a violation of the Clean Water Act's public participation requirements.

Additionally, MCEA argues that the general permit contravenes Minnesota's non-degradation policy, which aims to maintain pollutant levels at or below 1988 standards to protect water quality. This rule applies to stormwater discharges and mandates that MPCA assess whether further measures are needed to minimize impacts from new or expanded discharges. MPCA has not conducted this necessary evaluation.

MCEA contends that Rule 7050.0185 necessitates MPCA to assess the need for additional control measures for storm water discharges. MPCA counters that the rule is inapplicable because the discharges are not classified as new or expanded under its definitions. A new discharge is one that did not exist before January 1, 1988, while an expanded discharge involves changes in volume, quality, or location post-1988 that lead to increased pollutant loading. The agency is required to compare the proposed discharge with the loading allowed as of January 1, 1988, to determine if it constitutes an expanded discharge. 

Although MPCA claims the discharges are not new, it acknowledges that some situations post-1988 might qualify as new or increased discharges. MCEA has demonstrated that increased populations near the affected water bodies indicate significant expanded discharges from MS4s covered by the general permit. Consequently, MPCA must evaluate whether these discharges are indeed expanded.

Regarding compliance with federal standards, the general permit mandates permittees to "minimize" pollutant discharges, which MCEA argues weakens the federal requirement to "reduce" discharges to the maximum extent practicable. MPCA asserts that the terms are semantically similar, but if there is a difference, it raises concerns about compliance with federal standards. On remand, MPCA should align the permit language with federal requirements.

Lastly, MCEA alleges that the general permit violates state and federal water quality standards, specifically citing Minn. R. 7001.1080, which requires the establishment of effluent limitations unless infeasible. MPCA determined that numerical effluent limitations were not feasible, a conclusion supported by evidence indicating that wet weather discharge pollutants are best managed through best management practices rather than numerical limits, as endorsed by the EPA.

EPA indicates that deriving numeric water quality-based effluent limitations for wet weather discharges from Municipal Separate Storm Sewer Systems (MS4s) is complex due to significant variability in model inputs, including flow rates and effluent characterization. Compliance with these numeric limitations may be hindered by practical challenges in sample collection. If the permitting authority needs to implement additional measures to protect water quality, this would likely stem from assessments based on Total Maximum Daily Loads (TMDLs) or similar analyses identifying pollutant sources and allocations. 

The Minnesota Pollution Control Agency (MPCA) is supported in its conclusion that numeric effluent limitations are not feasible, and the argument by the Minnesota Center for Environmental Advocacy (MCEA) that MPCA improperly relied on non-controlling case law (Defenders of Wildlife v. Browner) is dismissed. MPCA referenced this case solely to illustrate that the Clean Water Act does not regulate storm water through water quality standards but mandates maximum pollutant removal. The focus remains on MPCA's adherence to federal and state law, not on its citation of the case.

MCEA's challenge regarding the general permit's compliance with monitoring requirements specified in Rule 7001.1080 is addressed. While MCEA does not argue that MPCA failed to comply with Rule 7001.1080, it critiques the permit's adherence to Rule 7001.0150. This rule mandates that permits must include conditions necessary for compliance with applicable statutes and ensure adequate monitoring and testing requirements are established to yield representative data for compliance verification.

MCEA claims that the general permit is non-compliant with monitoring requirements outlined in Rule 7001.0150, particularly lacking details on the type, interval, and frequency of monitoring. MPCA argues that these specific monitoring requirements are not necessary under the current circumstances, asserting that the determination falls within the agency’s discretion. The court agrees with MPCA, affirming the agency's right to interpret its own rules and recognizing the presumption of correctness of agency decisions. MCEA has not provided compelling arguments to challenge MPCA's stance on this issue, leading the court to conclude that the general permit does not violate the monitoring requirements.

However, the court identifies significant issues with the general permit, including violations of the Clean Water Act's public participation requirement, potential expansion of storm water discharges, and the use of "minimize," which may weaken federal pollution reduction standards. Consequently, the court reverses and remands the general permit to MPCA for further proceedings. Additionally, the court notes concerns regarding the lack of review of permit applications by MPCA, which raises further issues about the general permit process.