This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mississippi River Revival, Inc.,
Minnesota Pollution Control Agency,
City of St. Paul,
City of Minneapolis,
Minnesota Pollution Control Agency
File No. MN0061263
Richard B. Bates, 1985 Grand Avenue, St. Paul, MN 55105 (for relator)
Mike Hatch, Attorney General, Paul A. Merwin, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent Minnesota Pollution Control Agency)
Clayton M. Robinson, Jr., St. Paul City Attorney, Peter G. Mikhail, Assistant City Attorney, 550 City Hall & Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent City of St. Paul)
Jay M. Heffern, Minneapolis City Attorney, Corey M. Conover, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent City of Minneapolis)
Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
By writ of certiorari, Mississippi River Revival (MRR) challenges storm-water- discharge permits issued by the Minnesota Pollution Control Agency (MPCA) to Minneapolis and St. Paul. Because we conclude that the permits comply with state and federal law, we affirm.
Under federal law, cities with populations greater than 100,000 must have and comply with a National Pollution Discharge Elimination System (NPDES) permit to discharge storm water into navigable waters. See 33 U.S.C. §§ 1311(a), 1342 (1994). To continue to lawfully discharge storm water into the Mississippi River, Minneapolis applied for a permit on November 16, 1992, and St. Paul applied for a permit on May 12, 1993.
The MPCA, the state agency responsible for issuing the permits, is required to approve or disapprove the permit applications within one year. 40 C.F.R. § 122.26(e)(7)(ii) (2000). Despite this regulation, the MPCA did not act on the cities’ applications for more than six years, until October 1999, when MRR and others sued Minneapolis, St. Paul, and the EPA in federal court to enforce the federal law. See Mississippi River Revival, Inc. v. Environmental Protection Agency, 107 F. Supp. 2d 1008 (D. Minn. 2000). The plaintiffs claimed that the cities’ continuous discharge of storm water into the Mississippi River and its related waterways without complying with the permit requirements adversely affected the plaintiffs’ recreational, aesthetic, and environmental interests. Id. at 1011.
Motivated by the lawsuit, in November and December 1999, the MPCA published its notice of intent to issue permits to the cities. During the 30-day comment period, MRR and others submitted written comments on the permits to the MPCA. Also, MRR requested contested-case hearings for both permits. The MPCA met with MRR and other groups to discuss the groups’ permit concerns. At a regularly-scheduled committee and board meeting on May 23, 2000, the MPCA heard testimony on the permits, including testimony from MRR representatives. The MPCA also accepted additional written comments from MRR and the cities. As a result of the meetings and additional comments, the MPCA modified the draft permits. MRR, however, was not satisfied with the changes and did not withdraw its contested-case-hearing request.
In December 2000, the MPCA issued the storm-water-discharge permits and denied MRR’s request for a contested-case hearing. After the MPCA issued the permits, the federal district court dismissed the federal-court case against Minneapolis and St. Paul as moot. See Mississippi River Revival v. City of Minneapolis, No. Civ. 99-1596 DDA/FLN, Civ. 99-1597 DDA/FLN, 2001 WL 474319, at *4 (D. Minn. May 2, 2001). MRR appeals the MPCA’s decision to grant the permits, contending that the permits violate federal and state law. MRR does not appeal the MPCA’s denial of its contested-case-hearing request.
D E C I S I O N
This court reviews a final MPCA decision under Minn. Stat. §§ 14.63 to 14.69 (2000). Minn. Stat. § 115.05, subd. 11 (2000); In re Univ. of Minn., 566 N.W.2d 98, 103 (Minn. App. 1997). Under section 14.69, upon review, an appellate court may reverse or modify an agency decision only if the decision has prejudiced a party’s substantial rights and the decision violates the constitution, exceeds the agency’s authority, arises from unlawful procedures, is affected by error of law, is unsupported by substantial evidence, or is arbitrary and capricious. Minn. Stat. § 14.69. The party seeking review of an administrative proceeding is charged with the burden of proving that the agency decision meets one or more of the statutory criteria. Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977).
MRR argues that the MPCA’s decision to issue Minneapolis and St. Paul storm-water-discharge permits is an error of law. According to MRR, the permits violate federal law by allowing the cities to discharge non-storm water into storm sewers, and they violate state law by failing to impose numeric effluent limitations to ensure compliance with Minnesota’s water-quality standards.
When a decision turns on the meaning of words in a statute or regulation, this court is presented with a legal question. St. Otto’s Home v. Minnesota Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn. 1989). In considering questions of law, an appellate court is not bound by the agency decision, and need not defer to agency expertise. Id. But if the statutory language is technical and the agency’s statutory interpretation is one of longstanding application, the manner in which the agency has construed the statute may be entitled to some weight. Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn. 1996).
In 1972 Congress significantly amended the Federal Water Pollution Control Act, (commonly referred to as the Clean Water Act) to create a comprehensive water-quality statute intended to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1994). To achieve this goal Congress established the NPDES permit program, requiring permits for any discharge of pollutants, including storm water, into navigable waters from a point source. Id. §§ 1311(a), 1342 (1994). A “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel * * * from which pollutants are or may be discharged.” Id. § 1362(14) (1994). The EPA defines “storm water” as “storm water runoff, snow melt runoff, and surface runoff and drainage.” 40 C.F.R. § 122.26(13) (2000). The agency identifies urban storm water discharged through point-source conveyances as a significant source of water pollution. See Natural Resources Defense Council v. United States Envtl. Protection Agency, 966 F.2d 1292, 1295 (9th Cir. 1992).
Following enactment of the Federal Water Pollution Control Act, the EPA promulgated NPDES permit implementing regulations several times. See id. at 1295-96 (describing the EPA’s difficulty in promulgating regulations). These regulations were challenged administratively and in the courts. Id. at 1296. In response to “both the environmental threat posed by storm water runoff and [the] EPA’s problems in implementing regulations,” Congress amended the law in 1987, establishing a framework for the EPA to implement the NPDES permit program for several entities that discharge storm-water, including large cities. Id.; see also 33 U.S.C. § 1342(p).
Although state-issued permits are subject to EPA review, the EPA may delegate responsibility for issuing the permits to the states. 33 U.S.C. § 1342(b) - (d); 40 C.F.R. § 123.25 (2000); see also Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 208, 96 S. Ct. 2022, 2026 (describing process of transferring authority from EPA to state government authorities). Direct review of state-issued permits is generally confined to state courts. See American Paper Inst., Inc. v. United States Envtl. Protection Agency, 890 F.2d 869, 874 (7th Cir. 1989). Under a 1974 agreement, the EPA delegated responsibility for implementing Minnesota’s permit program to the MPCA. See Mississippi River Revival, 107 F. Supp. 2d at 1012; see also Minn. Stat. § 115.03, subd. 5 (2000) (allowing MPCA to perform any and all acts necessary to comply with the Federal Water Pollution Control Act “applicable to the participation by the state of Minnesota in the National Pollutant Discharge Elimination System”).
The federal law requires permits for discharges from municipal storm sewers to include a requirement to effectively prohibit non-stormwater discharges into the storm sewers. 33 U.S.C. § 1342(p)(3)(B)(ii). It also requires 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 or the State determines appropriate for the control of such pollutants. Id. § 1342(p)(3)(B)(iii).
MRR first alleges that the cities’ storm-water-discharge permits do not “effectively prohibit” non-storm-water discharges into storm sewers because the permits allow NPDES-permitted non-storm water to enter the storm sewer system, do not cover discharges other than storm water, and state that a “separate NPDES permit may be required for these discharges.”
MRR’s argument ignores the congressional grant of power to regulatory authorities to determine the controls necessary to effectively prohibit non-storm-water discharges. Congress’s directive that the permits “effectively prohibit non-storm water discharges” must be read in conjunction with the next line of the statute, directing regulating authorities to craft the permits so that the permits “require controls to reduce the discharge of pollutants to the maximum extent practicable * * * as * * * the State determines appropriate for the control of such pollutants.” Id.
This court presumes that plain and unambiguous statutory language manifests legislative intent. Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 9, 153 N.W.2d 209, 216 (1967). When a statute is free of ambiguity, we look only at its plain language. Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986). The statute’s unambiguous language expresses Congress’s intent that regulating authorities design controls necessary for cities to “effectively prohibit” non-storm-water discharges and to incorporate those controls into the permits. See Natural Resources Defense Council, 966 F.2d at 1308 (rejecting environmental group’s challenge to EPA’s implementing regulation because the statute’s clear language allows the EPA or the state to design storm-water discharge controls).
Illustrating Congress’s directive that the EPA and state regulators design controls to effectively prohibit non-storm-water discharges, the EPA has issued guidance directing states to write permits including requirements designed to implement the non-storm-water discharge effective prohibition. See National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 48036 (Nov. 16, 1990). State-issued permits must require cities to first screen storm-water-discharge to detect illicit discharges and then develop a management plan to remove the illicit discharges and to control improper disposal to city storm-sewer systems. Id.
Complying with the statute and with EPA regulations, the MPCA-issued permits “prohibit non-storm water discharges to the storm sewer system.” To achieve this directive, the permits require Minneapolis and Saint Paul to implement a field-screening program to detect and remove illicit discharges and annually report the number of spills and unauthorized discharges occurring and the cities’ response to those spills. The permits also require the cities to “prohibit the discharge or disposal of all used motor vehicle fluids and household chemical wastes into the storm sewer system” and “take all reasonable steps to minimize any adverse impact to waters * * * resulting from all unauthorized discharges * * * of oil, toxic pollutants or other hazardous substances.”
Next, MRR argues that the permits do not effectively prohibit non-storm water discharge in contravention of federal law because the permits continue to allow the cities to use combined sewer systems. Combined sewer systems allow, during wet weather conditions, a combination of sanitary wastewater and storm water to overflow into the Mississippi River, rather than storm water alone. See In re Authorization to Discharge and Construct Wastewater Treatment Facilities, 366 N.W.2d 118, 120 (Minn. App. 1985). During wet weather, the combined sewer system overflows pollute the river and can cause other problems such as sewage backup into homes and localized flooding. Id. To eliminate these problems, both cities have steadily converted combined sewer systems to separated sewer systems, preventing untreated sanitary wastewater from flowing into the Mississippi. Id. In 1985, Minneapolis had converted 87% of its sewers and St. Paul 40%. Id. At oral argument, MRR conceded that St. Paul has converted all of its combined sewer systems to separate systems and that Minneapolis has or will soon complete the conversion.
Although combined sewer systems allow non-storm-water discharge, MRR’s argument that the permits violate 33 U.S.C. § 1342(p) because they allow combined sewer overflows fails because the statute does not apply to combined sewer systems. See 33 U.S.C. § 1342(p)(1), (2)(C)-(D), (4)(A)-(B) (requiring cities serving populations of 100,000 or more to obtain permits for separate sewer systems, not combined sewer systems). The cities must, nonetheless, obtain a separate NPDES permit for the combined sewer overflow systems. 33 U.S.C. § 1342(a)(1); 40 C.F.R. § 122.26(a)(7) (2000) (“Conveyances that discharge storm water run-off combined with municipal sewage are point sources that must obtain NPDES permits.”). In compliance with this regulation, Minneapolis has obtained an NPDES permit allowing it to continue to operate its combined sewer system.
MRR also contends that the permits violate state law. Because of “variability of runoff events and weather conditions,” the MPCA decided that establishing numerical limits on pollutants would not be feasible, and instead the permits allow the cities to use “best management practices” to regulate and monitor the amount of pollutants flowing into the river. MRR has not alleged that the MPCA’s decision to allow the best management practices in lieu of effluent limitations is unreasonable, but instead argues that state law requires the MPCA to incorporate effluent limitations into the permits.
In making the decision to require best management practices instead of effluent limitations, the MPCA relied on the EPA’s recommendation. See Questions and Answers Regarding Implementation of an Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits, 61 Fed. Reg. 57425 (Nov. 6, 1996) (advocating best management practices to provide for attainment of water-quality standards because of the “nature of storm water discharges, and the typical lack of information on which to base numeric water quality-based effluent limitations”). The EPA’s decision to incorporate best management practices into NPDES permits rather than numeric effluent limits does not violate federal law. See Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999).
Like federal law, state regulations prohibit the discharge of pollutants into state waters without an NPDES permit. Minn. R. 7001.1030 (1999). Under state law, to maintain water-quality standards, the MPCA must “establish effluent limitations, standards, or prohibitions for each pollutant to be discharged from each * * * discharge point * * * .” Id. 7001.1080, subp. 2 (1999). But, if the MPCA “finds that it is not feasible to establish an effluent limitation, standard, or prohibition using a numerical value, the commissioner shall establish permit conditions requiring the implementation by the permittee of best management practices.” Id., subp. 3 (1999). Thus, state law allows the MPCA to incorporate best management practices into the cities’ NPDES storm-water discharge permits in lieu of effluent limitations.
MRR points to several other rules that prohibit pollution of state waters, contending that these rules do not allow the cities to discharge storm water into the Mississippi river with or without an NPDES permit. See Minn. R. 7050.0210, subps. 1 (“No untreated sewage shall be discharged into the waters of the state. Effective disinfection of any discharges, including combined flows of sewage and storm water, will be required where necessary to protect the specified uses of the waters of the state.”); 2 (“No sewage, industrial waste, or other wastes shall be discharged from either point or nonpoint sources into any waters of the state * * * .”); 3 (“Existing discharges of inadequately treated sewage, industrial waste, or other wastes shall be abated, treated, or controlled so as to comply with the applicable standards.”); 6c (“The requirements of this chapter * * * are in addition to any requirement imposed on a discharge by the Clean Water Act * * * .”); 13 (“No sewage, industrial waste, or other wastes shall be discharged from either a point or nonpoint source into the waters of the state in such quantity or in such manner alone or in combination with other substance as to cause pollution as defined by law.”). But these rules are general in nature, collected in a chapter entitled “General Standards for Discharges to Waters of the State.” Minn. R. 7050.0210 (1999). Thus, these rules are subject to the rule allowing pollutant discharges as long as an NPDES permit has been obtained.
Because the storm-water-discharge permits issued by the MPCA to Minneapolis and St. Paul comply with federal and state law, we affirm.