Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency

Citations: 660 N.W.2d 427; 33 Envtl. L. Rep. (Envtl. Law Inst.) 20191; 2003 Minn. App. LEXIS 551; 2003 WL 21005985Docket: No. C6-02-1243

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

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Respondent, the Minnesota Pollution Control Agency (MPCA), issued a general permit for storm water discharges by small municipalities. Relator challenges this permit on several grounds: 

1. It violates Minn. R. 7001.0210 due to dissimilar treatment of permittees.
2. It denies public notice and comment opportunities regarding permit extensions to local municipalities.
3. It permits degradation of public waters, violating Minn. R. 7050.0185 and 40 C.F.R. 131.12.
4. It weakens federal pollutant reduction standards.
5. It is vague, infringing upon state and federal water quality standards.
6. It relied on non-controlling case law for its issuance.
7. It does not mandate sufficient monitoring.

The court concluded that the general permit contravenes the Clean Water Act by failing to provide public notice and comment, neglecting to assess whether expanded storm water discharges need additional control measures, and improperly straying from federal pollutant reduction standards. The court reversed and remanded the permit, while affirming all other issues. 

Facts indicate that small municipalities discharging storm water through municipal separate storm sewer systems (MS4s) are regulated by MPCA under authority delegated by the federal EPA, following amendments to the Clean Water Act in 1987. Small municipalities became subject to permit requirements in 2003, necessitating the acquisition of National Pollutant Discharge Elimination System (NPDES) permits to legally discharge storm water. The Clean Water Act mandates that such permits must include measures to prevent non-stormwater discharges and to reduce pollutant discharges to the maximum extent practicable.

In early 2002, the Minnesota Pollution Control Agency (MPCA) solicited public comments on a draft National Pollutant Discharge Elimination System (NPDES) general permit for storm water discharges from Municipal Separate Storm Sewer Systems (MS4s). This general permit, as defined by Minnesota Rules, allows groups of permittees with similar operations to collectively apply for coverage, streamlining the process. The permit enables permittees to discharge storm water into U.S. waters, requiring only an application for coverage rather than individual permits. The Minnesota Center for Environmental Advocacy (MCEA) submitted comments in February and April 2002 and requested a contested case hearing. A meeting on May 28, 2002, allowed further public testimony, including on compliance with Minnesota’s non-degradation rules. The MPCA Board kept 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 a vote of 6-1. The MPCA Commissioner formalized the decision on June 28, 2002. MCEA filed a petition for writ of certiorari on July 25, 2002, raising several issues regarding the permit’s validity, including claims of improper grouping of permittees, lack of public notice, non-compliance with state non-degradation rules, vagueness, and reliance on non-controlling case law. The review of MPCA's final decisions follows specific statutory guidelines that limit the court's scope to constitutional violations, excess authority, unlawful procedures, legal errors, substantial evidence support, and arbitrary actions. The burden of proof rests with the relator, and courts typically defer to the expertise of administrative agencies.

The agency decision-maker is presumed to possess the necessary expertise for technical matters within its jurisdiction. Courts typically defer to an agency's interpretation of its own rules when dealing with complex or ambiguous language, or when the interpretation has longstanding acceptance. However, if a regulation's language is clear, no deference is given. The case at hand examines the appropriateness of issuing a general permit under Minnesota Rule 7001.0210, which allows such issuance only if the agency determines that all permit applicants share similar characteristics in operations, emissions, and standards. The Minnesota Center for Environmental Advocacy (MCEA) contests the permit's issuance on procedural grounds, asserting that explicit findings are required before a permit can be issued, and on substantive grounds, claiming the regulated stormwater management systems (MS4s) lack similar characteristics.

The court finds MCEA's procedural argument unconvincing, stating that while the rule mandates a finding, it does not require it to be explicitly documented. The agency's issuance of the permit inherently indicates compliance with the rule's requirements. MCEA's substantive argument is also rejected; the court notes that under paragraphs A and B of subpart 3, permittees need only share one characteristic to meet the rule. In this case, all permittees discharge stormwater, fulfilling the requirements of A and B. Additionally, paragraphs C and D, which pertain to shared standards and monitoring requirements, are satisfied since all permittees, as MS4s, adhere to the same state and federal discharge standards.

The general permit requires small municipalities to create and submit a Storm Water Pollution Prevention Program (SWPPP) summary to the Minnesota Pollution Control Agency (MPCA) when applying for coverage. MCEA contends that because individual SWPPPs outline compliance methods for the general permit, and there is no public opportunity to comment on them, this process undermines public notice and comment rights. MPCA argues that public comment was available for the general permit itself, but not for individual SWPPPs. Public participation is emphasized under the Clean Water Act, which mandates that permit applications and issued permits be available to the public and that hearings occur before permit approval. The SWPPPs hold the essential details for compliance with the Clean Water Act, and MPCA acknowledges their centrality to the general permit. However, there is no public notification or hearing for SWPPPs prior to their implementation. Although annual reporting and public meetings are required post-implementation, these do not replace the need for pre-implementation public hearings. Consequently, the general permit process is deemed to violate public participation standards. MCEA also argues that the general permit contravenes Minnesota's non-degradation policy, which aims to prevent water quality degradation by capping pollutant levels at 1988 standards. This policy mandates MPCA to assess whether further measures are necessary to mitigate impacts from new or expanded significant discharges.

MPCA has not determined whether additional control measures are necessary for storm water discharges, which MCEA contends falls under Rule 7050.0185. MPCA maintains that the rule does not apply, as the discharges in question are neither new nor expanded, defining a new discharge as one that did not exist before January 1, 1988, and an expanded discharge as one that has changed in volume, quality, or location since that date. MCEA has argued that increased populations near affected water bodies suggest that there are expanded discharges from MS4s covered by the general permit, prompting the conclusion that MPCA must assess the nature of these discharges under subpart 2(B). Even if expanded discharges are confirmed, MPCA retains discretion regarding additional control measures as outlined in subpart 4.

Further, MCEA challenges the general permit's language, asserting that the term "minimize" instead of "reduce" weakens compliance with federal standards, which require maximum practicable pollutant reduction. MPCA counters that the distinction is semantic but acknowledges that if a difference exists, the permit might not meet federal requirements. On remand, MPCA is advised to ensure the permit aligns with federal standards.

Lastly, MCEA claims that the general permit contravenes state and federal water quality standards, specifically pointing to Minn. R. 7001.1080, which mandates effluent limitations unless infeasible. MPCA found it impractical to establish numerical limitations, a conclusion supported by evidence, including an EPA statement favoring management measures for controlling pollutants from wet weather discharges.

EPA identifies challenges in applying current methodologies for numeric water quality-based effluent limitations to wet weather discharges from Municipal Separate Storm Sewer Systems (MS4s), noting significant variability in model inputs such as flow rates and effluent characterization. Compliance with these numeric limitations may be hindered by practical sample collection issues. Any need for more specific measures to protect water quality would stem from Total Maximum Daily Load (TMDL) assessments that address pollutant sources and allocations.

The Minnesota Pollution Control Agency (MPCA) is upheld in its determination that numerical effluent limitations are unfeasible, with deference to its expertise. MCEA's argument against MPCA's reliance on the Ninth Circuit case Defenders of Wildlife v. Browner is dismissed, as it is clarified that MPCA's reference to the case merely indicates that the Clean Water Act does not regulate stormwater through water quality-based regulations but requires pollutant removal to the maximum extent practicable. The relevance of MPCA’s citation is deemed inconsequential to the legality of the general permit's issuance.

Additionally, the validity of the general permit concerning monitoring requirements is examined. While Rule 7001.1080 mandates specific monitoring conditions, MCEA does not contest MPCA's adherence to this rule. Instead, the focus shifts to Rule 7001.0150, which outlines necessary permit conditions for compliance with applicable statutes and includes monitoring and testing requirements to ensure representative data for compliance verification.

MCEA claims the general permit infringes monitoring rules by failing to outline the type, interval, and frequency of monitoring, as required by Rule 7001.0150. MPCA argues that these monitoring requirements do not apply to the current situation. The ruling emphasizes that the agency has the expertise to determine the applicability of additional monitoring requirements. MPCA’s stance that the specific monitoring requirements in Rule 7001.0150, subp. 2 are inapplicable to storm water is deemed a valid interpretation, deserving of deference and presumption of correctness. MCEA has not provided sufficient grounds to challenge MPCA's interpretation. Consequently, it is determined that the general permit complies with the monitoring rules. However, the general permit is remanded due to violations of the Clean Water Act regarding public participation, concerns over potential expanded discharges, and the permit's wording—specifically the use of "minimize"—which may undermine federal pollutant reduction standards. The court notes that the general permit process allows for coverage with minimal application review by MPCA, raising concerns about the adequacy of the permit issuance procedure. The decision is reversed and remanded for further proceedings.