ENVIRONMENTAL CONSERVATION LAW, ARTICLE 17; 6 NYCRR 750-757.
Article 17, Title 8 of the Environmental Conservation Law, when read together with the rules and regulations promulgated thereunder and found at 6 NYCRR 750-757, constitute adequate authority for the issuance of State Pollutant Discharge Elimination System permits to Federal facilities by the State of New York. Hon. Peter A.A. Berle Commissioner Department of Environmental Conservation
This is in response to the letter of Philip H. Gitlen, General Counsel to your Department, dated August 25, 1978, in which my opinion is requested as to whether or not the laws of this State provide adequate authority for the State to regulate Federal facilities with reference to water pollution and particularly with reference to the issuance of State Pollutant Discharge Elimination System (SPDES) permits to Federal facilities, and to carry out any entry or inspection activities in connection therewith.
The State Pollutant Discharge Elimination System is found in Article 17, Title 8 of the Environmental Conservation Law (ECL). Section 17-0803 of the Law expressly prohibits the discharge of pollutants to the waters of the State from any point source without a SPDES permit issued pursuant thereto. Section 17-0829 of the ECL provides the Department of Environmental Conservation with the requisite entry and inspection powers pursuant to said Title.
Both sections confer general regulatory powers upon the Department of Environmental Conservation and no exception is created in either section or in any other section of Article 17, Title 8, for Federal facilities.
SPDES regulations are found in 6 NYCRR 750-757. Aside from Indian activities on Indian lands under United States jurisdiction, exempted from these regulations under 6 NYCRR 750.1 (a), no other facilities relevant hereto are exempted under said regulations.
I note that the memorandum of agreement entered into between the Department of Environmental Conservation and the United States Environmental Protection Agency (EPA) on or about April 28, 1975, which agreement delegates to the State the federal authority to issue discharge permits, in no way limits the power of the State to issue SPDES permits to Federal facilities. However, deference should be given to EPA's conclusion that an amendment spelling out such authority is necessary (see third paragraph of Mr. Gitlen's letter hereinbefore referred to), and, accordingly, specific language covering the additional delegation of federal authority to the State should be inserted in the agreement.
I therefore conclude that those provisions of Article 17, Title 8, and the regulations promulgated thereunder, which provide for the issuance of SPDES permits, apply to all facilities within the State, with the exception of Indian activities on Indian lands under United States jurisdiction, and afford adequate authority for the issuance of SPDES permits to Federal facilities.