[*1]
| Matter of Riverkeeper Inc. v New York State Dept. of Envtl.
Conservation |
| 2013 NY Slip Op 50834(U) [39 Misc 3d 1231(A)] |
| 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
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.