Minnesota Pollution Control Agency
Considered and decided by Kalitowski , Presiding Judge, Hudson , Judge,
and Poritsky, Judge.
1. The issuance of a general permit is proper pursuant to Minn. R. 7001.0210, where all the small municipalities with separate storm sewer systems covered by the permit ("permittees") discharge storm water and where all the permittees are subject to the same state and federal standards.
2. A general permit that does not require a public hearing before each permittee will be covered by the permit violates the Clean Water Act's public hearing requirement. 33 U.S.C. § 1342(a)(1)
3. Where there is a showing in the record that the discharges to be covered under a general permit are expanded discharges, MPCA must determine whether additional control measures are necessary under Minn. R. 7050.0185 to prevent non-degradation of state waters.
4. Where the general permit requires permittees to minimize pollutants but the federal law mandates that permits require controls to reduce pollutants, the general permit impermissibly departs from the federal standard.
5. Agency rules provide that if numerical effluent limitations are not feasible, the MPCA may rely on best management practices. The record supports MPCA's determination that numerical effluent limitations are not feasible.
6. Where the agency rule that imposes monitoring requirements for permittees contains the phrase "if applicable to the circumstances," we defer to the agency's determination that such requirements are not applicable to the circumstances.
The opinion of the court was delivered by: Poritsky, Judge*fn1
Respondent issued a general permit covering the discharge of storm water by small municipalities. On certiorari, relator challenges respondent's issuance of the general permit, arguing: (1) the issuance of the general permit violates Minn. R. 7001.0210 because the permittees are not similarly situated; (2) the issuance of the general permit denies the public notice and the ability to comment on the extension of that permit to local municipalities; (3) the issuance of the general permit allows degradation of public waters and therefore violates Minn. R. 7050.0185 and 40 C.F.R. § 131.12; (4) the general permit weakens the federal standard; (5) the general permit is impermissibly vague and violates state and federal water quality standards; (6) respondent relied on non-controlling case law in issuing the general permit; and (7) the general permit does not require appropriate monitoring. We conclude that (1) the general permit violates the Clean Water Act by denying the public notice and the ability to comment; (2) the respondent failed to make a determination of whether the general permit will cover expanded discharges of storm water requiring additional control measures; and (3) the general permit impermissibly departs from the federal standard for reducing pollutants; we reverse and remand. We affirm on all other issues.
Small municipalities that discharge storm water through municipal separate storm sewer systems (MS4s) are subject to regulation by respondent Minnesota Pollution Control Agency (MPCA). MPCA acts pursuant to powers delegated to it by the federal Environmental Protection Agency (EPA). As a result of this delegated power, MPCA has the authority to implement the federal Clean Water Act (CWA) in Minnesota.
The CWA was enacted by Congress in 1972, and it prohibits the discharge of any pollutant into navigable waters of the United States from a point source*fn2 unless the discharge is authorized by a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. § 1311(a) (2000); 33 U.S.C. § 1342(p)(3)(B) (2000); 40 C.F.R. § 122.26 (2002)). MPCA is the authority that issues NPDES permits in Minnesota. EPA initially attempted to exempt municipal storm sewer systems from the requirement to obtain an NPDES permit. But in the Water Quality Act of 1987, Congress amended the CWA to specifically cover storm water discharges from conveyances such as MS4s. 33 U.S.C. § 1342 (p) (added by Pub. L. 100-4, Title IV, Feb. 4, 1987). Section (p) governs the granting of permits for MS4s and certain other storm water systems.
As a result of the amendment to the Clean Water Act, large and medium municipalities were required to obtain permit coverage by 1993. Small municipalities, however, were not required to obtain permit coverage until 2003. The large and medium municipalities were referred to as Phase I permittees, while the small municipalities were referred to as Phase II permittees. It is the Phase II permit process that we review in this case.
Thus, in order to discharge storm water from MS4s, the small municipalities must obtain an NPDES permit from MPCA. The Clean Water Act provides that permits for such discharges:
may be issued on a system- or jurisdiction-wide basis; shall include a requirement to effectively prohibit non- stormwater discharges into the storm sewers; and shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator [of EPA] or the State determines appropriate for the control of such pollutants. 33 U.S.C. § 1342(p)(3)(B).
In early 2002, MPCA sought initial comments on a draft NPDES general permit for storm water discharges by MS4s. A general permit is a permit issued under Minnesota Rules to a "category of permittees whose operations, emissions, activities, discharges, or facilities are the same or substantially similar." Minn. R. 7001.0010, subp. 4. By using a general permit in this case, MPCA utilized a process whereby only the general permit was subject to public notice and comment and other procedures, and each individual permittee needed only to complete an application to obtain coverage under the general permit. Coverage under the permit allows permittees to begin or continue discharging storm water into the waters of the United States.
Relator MCEA submitted comments on the general permit in February 2002 and also appeared at the February 2002 MPCA Citizens Board meeting to present testimony. On March 11, 2002, MPCA published notice of the general permit in the Minnesota State Register. MCEA submitted comments in April 2002, incorporating its February 2002 comments. Also in April 2002, MCEA requested a contested case hearing.
On May 28, 2002, the Board heard testimony from MPCA staff and others regarding the general permit. One subject of comment was MPCA's approach to compliance with Minnesota's non-degradation rules. Minn. R. 7050.0180-0186. The issue was addressed as an informational item, and MCEA and other interested parties had an opportunity to comment on it. At the May 28 meeting, the Board voted to keep the record open for additional comments and submissions through June 4, 2002. MCEA submitted additional comments and materials on June 4, 2002.
MCEA's contested case request and the general permit came before the Board for final approval and hearing on June 25, 2002. At the conclusion of the June 25, 2002, meeting, the Board voted 7-0 to deny MCEA's contested case request in its entirety and 6-1 to approve the general permit as amended June 11.
The MPCA Commissioner executed the Findings of Fact, Conclusions of Law and Order denying the contested case request and approving the general permit on June 28, 2002. The MCEA filed its petition for writ of certiorari on July 25, 2002.
I. Does the issuance of the general permit violate Minn. R. 7001.0210 because the permittees are not similarly situated?
II. Does the issuance of the general permit impermissibly deprive the public of its right to notice and comment on the discharge of storm water by the MS4s regulated by the permit?
III. Does the general permit violate state non-degradation rules (Minn. R. 7050.0185)?
IV. Does the use of the word minimize in the general permit impermissibly weaken the federal standard requiring that permittees reduce ...