Matter of Riverkeeper Inc. v New York State Dept. of Envtl. Conservation

[*1] Matter of Riverkeeper Inc. v New York State Dept. of Envtl. Conservation 2013 NY Slip Op 50834(U) Decided on May 21, 2013 Supreme Court, Westchester County Lefkowitz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 21, 2013
Supreme Court, Westchester County

In the Matter of the Application of Riverkeeper, Inc., SOUNDKEEPER, INC., SAVE THE SOUND, RARITAN BAYKEEPER, INC. (d/b/a NY/NJ BAYKEEPER), PECONIC BAYKEEPER, INC., HACKENSACK RIVERKEEPER, INC., and WATERKEEPER ALLIANCE, INC., Petitioners, For a Judgment Pursuant to Article 78 of the CPLR and a Declaratory Judgment Pursuant to Section 3001 of the CPLR

against

The New York State Department of Environmental Conservation, Respondent.



5052/12



ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

Attorney for respondent

120 Broadway, 26th Floor

New York, New York 10271

Attn: Kevin G. W. Olson, A.A.G.

SUPER LAW GROUP, INC.

Attorneys for petitioners 131 Varick Street, Suite 1001

New York, New York 10013

Attn: Reed W. Super, Esq.

Joan B. Lefkowitz, J.

The following documents numbered 1 to 17 were read on this motion by respondent for change of venue pursuant to sections 510 and 511 of the Civil Practice Law and Rules:

Notice of Petition (hereafter, "NOP") -

Verified Petition (hereafter, "Petition") -

Affidavit of Service1 - 3

Notice of Motion - Affidavits - Affirmation -

Exhibits - Memorandum of Law -

Affirmation of Service4 -11

Affirmation - Exhibit - Memorandum of Law -

Affirmation of Service12 - 15

Reply Memorandum of Law -

Affirmation of Service16 - 17

Upon consideration of all of the foregoing, and for the following reasons, the motion is granted.

Factual and Procedural Background

Federal and State Pollutant Discharge Elimination Permits

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 (hereafter, "ECL"),

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 [*2]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) (holding that EPA's use of general permits is allowed under the CWA as a necessary alternative to outright exemptions from NPDES permit requirements). 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 associated with industrial activities (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]).

The Instant Proceeding

In October 2012, DEC issued the latest iteration of the statewide "SPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity" (hereafter, the "General Permit"). The General Permit was promulgated and drafted in, and issued from, DEC's central office in Albany County. Prior to its issuance, public meetings concerning the General Permit were conducted in Albany County. There are thousands of point sources — in other words, facilities engaged in a wide array of industrial activities — throughout the state, including in Westchester County, which are or would be required to seek authorization to discharge pollutants under the General Permit.

On November 30, 2012, petitioners commenced the instant action by filing the NOP and Petition with the Westchester County Clerk. Petitioners seek, inter alia, judgment "[d]eclaring that Respondent DEC has abused its discretion, has acted arbitrarily, capriciously, and contrary to the law and in violation of lawful procedure by issuing a SPDES general permit for stormwater discharges associated with industrial activity that fails to conform to the requirements of federal and state law." (Petition, "WHEREFORE" clause, at 24). Petitioners designated Westchester County as the place of trial (see Petition at ¶¶18-19).

In the first of five separately stated and numbered causes of action, petitioners allege that the General Permit violates the CWA and the ECL because it fails to "ensure that industrial [*3]facilities that obtain authorization to discharge pollution under the General Permit are in fact complying with the requirements of the [CWA]." (Id. at ¶82). In their second cause of action petitioners allege that the monitoring requirements set out in the General Permit are unlawfully inadequate. In their third cause of action petitioners allege that the General Permit was issued in violation of the public participation requirements of the CWA and the ECL. In their fourth cause of action petitioners allege that the General Permit "fails to ensure compliance with applicable water quality standards and, in fact, authorizes discharges of pollutants of concern to impaired waterbodies at concentrations that cause or contribute to violations of water quality standards." (Id. at ¶88). In their fifth cause of action petitioners allege that the General Permit does not comply with New York's antidegradation policy and does not ensure that authorized discharges will comply with New York's antidegradation policy." (Id. at ¶90).

DEC has not yet served an answer to the Petition. By letter dated February 22, 2013, DEC served upon petitioners a demand pursuant to CPLR 511(b) that the action be tried in Albany County. (A copy of the letter is annexed to the Affirmation Of Kevin G. W. Olson In Support Of Motion To Change Venue [hereafter, "Olson Aff"] as Exhibit 1). Petitioners declined to consent to the change by serving upon DEC an attorney affirmation dated February 22, 2013, averring that Westchester County is a proper county for trial. (A copy of said affirmation is annexed to the Olson Aff as Exhibit 2). On March 8, 2013, DEC served petitioners with the instant motion for an order changing venue to Albany County; the motion was filed with the Chief Clerk of the Westchester Supreme and County Courts on March 19, 2013, and deemed fully submitted with the filing of DEC's reply memorandum of law on April 19, 2013.

Discussion

Pursuant to CPLR 510, "[t]he court, upon motion, may change the place of trial of an action where: 1. the county designated for that purpose is not a proper county." Westchester County is not a proper county for the trial of the instant action. So far as is relevant hereto, CPLR 506(b) provides that a special proceeding against a body or officer "shall be commenced in any county within the judicial district where the respondent made the determination complained of . . . , or where the material events otherwise took place, or where the principal office of the respondent is located." The determinations of which petitioners complain are DEC's promulgation, drafting and issuance of the General Permit, all of which occurred at DEC's principal office in Albany County, in the third judicial district. Westchester County is in the ninth judicial district. Consequently, Westchester County is a proper county for trial only if material events otherwise took place here or elsewhere in the ninth judicial district.

No material events within the meaning of CPLR 506(b) took place in the ninth judicial district. "The location of the material events [within the meaning of CPLR 506(b)] is the county wherein occurred the underlying events which gave rise to the official action complained of' (Matter of Daley v Bd. of Estimate, 258 App Div 165, 166 [2nd Dep't 1939] [other internal citations omitted]." Matter of Bros. of Mercy Nursing & Rehabilitation Ctr. v De Buono, 237 AD2d 907, 907-908 (4th Dep't 1997). In the instant proceeding, the official actions of which petitioners complain are the same as the determinations of which they complain, and the [*4]underlying events which gave rise to said actions and determinations comprised the decision-making process that culminated in the issuance of the General Permit. See Matter of Vigilante v Dennison, 36 AD3d 620, 621-622 (2nd Dep't 2007); Matter of New York Republican State Comm. v New York State Commn. on Govt. Integrity, 138 AD2d 884 (3rd Dep't 1988). Since no part of that decision-making process took place in any county within the ninth judicial district, Westchester County is not a proper county for the trial of this action.

Petitioners' contention that alleged discharges of pollutants from point sources located within the ninth judicial district constitute material events upon which venue may be based is unavailing. DEC issued the General Permit pursuant to its authority under the SPDES program. The purpose of the SPDES program is to regulate the discharge of pollutants into the waters of the state and the nation, and DEC is empowered to bring enforcement actions for unpermitted discharges. However, DEC's authority to issue such permits is not dependent upon or triggered by the existence of an actual discharge, nor does DEC seek out discharges and then issue a permit therefor. Indeed, there is no requirement in the CWA or ECL art. 17 that there be a discharge in fact before DEC can issue either an individual permit to a specific applicant or a general permit covering discharges from unspecified point sources within a large geographical area.[FN1]

Certainly, the existence of pollutant discharges from point sources throughout the state was a material factor in the decision-making process that culminated in DEC's issuance of the General Permit. But the premise that some fact or circumstance was a material factor informing an official's action or determination does not necessarily make that factor a material event within the meaning of CPLR 506(b). Compare, e.g., Bros. of Mercy, supra (holding that petitioner's performance in situ of medical services constituted material events because those acts precipitated the determination being challenged as to the Medicaid rate at which petitioner was reimbursed) with Matter of Wallace v New York State Bd. of Parole, 14 Misc 3d 372, 376-377 (S. Ct. New York Co. 2006) (holding that the nature of petitioner's crimes was material to the parole determination being challenged, but the location of said crimes was not a material event because it "has little connection to . . . whether parole is appropriate"). The locations of actual individual discharges has no connection to the propriety or lawfulness of DEC's determinations with respect to the promulgation, drafting and issuance of a statewide permit regulating all such discharges. Therefore, such discharges were not material events within the meaning of CPLR 506(b) and the fact that some of them took place in the ninth judicial district does not make Westchester County a proper county for trial.

Accordingly, for the forgoing reasons, DEC's motion for a change of venue is granted, and it is hereby

ORDERED that the venue of this proceeding is changed from Supreme Court, Westchester County, to Supreme Court, Albany County, and it is further [*5]

ORDERED that the Chief Clerk for the Supreme and County Courts of Westchester County is directed to transfer the papers on file in this action to the clerk of Supreme Court, Albany County, and it is further

ORDERED that the Petition in this action is hereby held in abeyance pending submission of an answer, which respondent shall serve upon petitioners and file with Supreme Court, Albany County, within thirty days of the date of service upon petitioners of a copy of this decision and order, with notice of entry, unless Supreme Court, Albany County, directs otherwise.

The foregoing constitutes the decision and order of the Court.

Dated: White Plains, New York

May 21, 2013

E N T E R:

HON. JOAN B. LEFKOWITZ

Justice of the Supreme Court Footnotes

Footnote 1:Petitioners' citation of the opinion of the Second Circuit in Waterkeeper Alliance, Inc. v United States Envtl. Protection Agency, 399 F.3d 486 (2nd Cir. 2005), in support of its contention to the contrary (see Petitioners' Memorandum Of Law In Opposition To Motion To Change Venue at 10) is ill-founded. Waterkeeper holds that absent a discharge, point sources are not obliged and can not be compelled to seek or obtain a permit, not that a permitting agency lacks authority to issue either a general permit or an individual permit upon the application therefor by a specific point source. See id., 399 F.3d at 504-506.