Chair Draper noted that the next item on the agenda is an appeal of a Clean Water Act related permit for which certain Board members may not participate, pursuant to Title 38 Section 341-C(8)(A). Chair Draper designated Mr. Duchesne to preside over the remainder of the meeting. Board members Draper, Lessard, and Dubois recused themselves and left the meeting.
4. Appeal of General Permit for Discharge of Stormwater from Small Municipal Separate Storm Sewer Systems (MS4 General Permit) by Friends of Casco Bay (decision)
Staff: Gregg Wood, Bureau of Water Quality
Mr. Hinkel introduced the appeal by summarizing Friends of Casco Bay’s (FOCB) objections to the Commissioner’s decision and the procedure for deciding an appeal, including the Board’s consideration of and vote on whether or not to hold a hearing in response to FOCB’s request for a hearing.
Mr. Hinkel noted that the U.S. EPA Region I; the Bangor Area Stormwater Group; the Interlocal Stormwater Working Group and the Southern Maine Stormwater Working Group; and Conservation Law Foundation submitted comments on the appeal. The U.S. EPA’s comments to the Department stated 018 Board of Environmental Protection June 17, 2021 Draft Pending Board Approval Page 5 of 6 that the final MS4 General Permit contains modifications from the draft General Permit that are inconsistent with the Clean Water Act and implementing regulations. The Bangor Area Stormwater Group, the Interlocal Stormwater Working Group, and the Southern Maine Stormwater Working Group’s comments to the Board were in opposition to FOCB’s appeal. Conservation Law Foundation’s comments to the Board were in support of FOCB’s appeal and the comments by the U.S. EPA Region I.
Mr. Hinkel noted that FOCB did not offer proposed supplemental evidence in its appeal. However, the appeal includes references to documents that are not in the Department’s licensing record, such as a report entitled “Scientific Assessment of Climate Change and its Effects in Maine,” Small Municipal Separate Storm Sewer Systems permits issued for the states of Massachusetts and New Hampshire, and a U.S. Environmental Protection Agency document entitled “Compendium of MS4 Permitting Approaches.”
Prior to the Board’s consideration of the appeal, the Presiding Officer ruled that all references to documents such as these, which are neither within the Department’s record nor attached to the appeal as proposed supplemental evidence, are struck and will not be considered by the Board.
Mr. Hinkel also noted that the Presiding Officer struck all electronic links provided in the appeal, and that the Presiding Officer admitted Interlocal Stormwater Working Group and the Southern Maine Stormwater Working Group’s proposed supplemental evidence Attachment 2–DEP emails regarding Chapter 500 updates.
Casco Baykeeper Ivy Frignoca discussed FOCB’s objections and challenges to the Commissioner's decision.
Attorney Brian Rayback, representing the Interlocal Stormwater Working Group and the Southern Maine Stormwater Working Group, addressed the issues raised on appeal by FOCB.
City of Lewiston Project Engineer John Kuchinski commented on the appeal. No other members of the public commented on the appeal.
Department staff Gregg Wood presented the proposed Board Order and answered Board questions. Department staff’s recommendations were that the Board remand the Commissioner’s Order to the Commissioner for further proceedings to modify Part IV.C.5.b and Part IV.E of the Final Permit. Assistant Attorney General Laura Jensen noted that the proposed Board Order contains a typographical error in the reference to Section IV.B.5.b. Mr. Wood confirmed that the correct reference should be to Section IV.C.5.b.
Ms. Frignoca offered a rebuttal to support her arguments on appeal following the staff presentation. 019 Board of Environmental Protection June 17, 2021 Draft Pending Board Approval Page 6 of 6
The Board voted (4-0-3-0) on a motion by Steve Pelletier and seconded by Robert Sanford to deny FOCB’s request to hold a hearing on the issues raised on appeal. Mark Draper, Mark Dubois, and Susan Lessard recused themselves and were not present for the vote.
The vote was taken pursuant to 38 M.R.S. § 341-D and 06-096 C.M.R. 2, § 24.
Following deliberations, the Board voted (4-0-3-0) on a motion by James Parker and seconded by Steve Pelletier to accept the staff recommendation, with an amendment to correct the reference to Part IV.C.5.b of the MS4 General Permit in the Board Order proposed by staff, to remand the Commissioner’s Order to the Commissioner for further proceedings to modify Part IV.C.5, Part IV.E, and the Response to Comments portion of the Final Permit.
The vote was taken pursuant to 38 M.R.S. § 341-D and 06-096 C.M.R. 2, § 24(G). Mark Draper, Mark Dubois, and Susan Lessard recused themselves and were not present for the vote.
(The meeting adjourned at approximately 2:00 p.m.)
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