EIO, Inc., Appellant, vs. Minnesota Pollution Control Agency, Respondent, Virgil Scherping, Intervenor.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

 IN COURT OF APPEALS

  C3-97-2317

EIO, Inc.,

Appellant,

vs.

Minnesota Pollution Control Agency,

Respondent,

Virgil Scherping,

Intervenor.

Filed July 14, 1998

 Affirmed

Crippen, Judge

Wright County District Court

File No. C4961827

John C. McIntosh, McIntosh Law Offices, 200 North Central Avenue, P.O. Box 331, Buffalo, MN 55313; and

Daniel J. Greensweig, Kennedy & Graven, Chartered, 470 Pillsbury Center, Minneapolis, MN 55402 (for appellant)

Hubert H. Humphrey III, Attorney General, Richard P. Cool, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for respondent)

Gregory A. Fontaine, Alexandra B. Klass, Dorsey & Whitney LLP, 1300 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for intervenor)

Considered and decided by Crippen, Presiding Judge, Davies, Judge, and Harten, Judge.

 U N P U B L I S H E D O P I N I O N

 CRIPPEN, Judge

Appellant EIO, Inc. challenges the trial court's summary judgment affirming the Minnesota Pollution Control Agency determination that a proposed dairy feedlot expansion did not require an environmental impact statement (EIS). We affirm.

FACTS

As part of his plan to expand his existing dairy feedlot from 200 to 1,670 cattle in a two-phase project, intervenor Virgil Scherping submitted information to the MPCA for the completion of an Environmental Assessment Worksheet (EAW). The EAW was issued in February 1996, followed by a 30-day public comment period. In March 1996, Wright County issued Scherping a conditional use permit for Phase I.

The MPCA Board held a public meeting in June 1996 to consider whether Scherping's project required an EIS. In a unanimous decision, the Board concluded that this additional statement was not required. Appellant challenged the conclusion in district court proceedings, moving for remand to the MPCA for reconsideration or preparation of an EIS. Respondent filed a cross-motion for summary judgment, which the trial court granted.

  D E C I S I O N

When reviewing the trial court's summary judgment affirming an agency's decision that an EIS is not required, we review the agency decision to determine if it is "unreasonable, arbitrary or capricious with review focused on the legal sufficiency of and factual basis for the reasons given." Iron Rangers for Responsible Ridge Action v. Iron Range Resources, 531 N.W.2d 874, 880 (Minn. App. 1995) (reviewing the administrative record to determine if there was substantial evidence supporting the agency finding) (citation omitted), review denied (Minn. July 28, 1995). A decision is arbitrary and capricious "if the agency relied on factors which the legislature had not intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Trout Unlimited, Inc. v. Minnesota Dep't of Agric., 528 N.W.2d 903, 907 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).

An EIS is required "[w]here there is potential for significant environmental effects." Minn. Stat. § 116D.04, subd. 2a (1996). See Minn. R. 4410.1700, subpt. 7 (1997) (criteria for deciding environmental effects include type, extent, and reversibility; cumulative effects of future projects; extent to which the environmental effects are subject to mitigation; and extent to which the environmental effects can be anticipated and controlled as a result of other environmental studies undertaken by public agencies or the project proposer, or other EIS's).

1. Application of Trout

At the core of most arguments advanced by appellant is a recitation of the holding set forth in Trout. Trout involved a determination by the Commissioner of Agriculture with respect to the pollution of a stream where this court concluded that the Commissioner had failed to presently evaluate future environmental effects. 528 N.W.2d at 909 (holding that because it was inappropriate to wait until after the project was constructed to ascertain if there would be significant impacts and then relying on monitoring or restrictive permitting to reduce or eliminate deleterious effects, an EIS was required). Appellant suggests that the MPCA similarly neglected to complete a present evaluation of the issues presented in this case and instead depended entirely on monitoring to ascertain if problems are experienced in the future.

In addressing the areas of concern that were identified as having a potential environmental impact under the standard set forth in Trout, we first note that since Trout was decided, the rule requiring attention to mitigation facts has been expanded to include "implementation of pollution prevention measures." Compare Minn. R. 4410.0200, subpt. 51 (1993), with Minn. R. 4410.0200, subpt. 51 (1997).

a. Ground Water. Appellant asserts that the MPCA erroneously "put off" full consideration of the adequacy of the ground water supply until after Scherping's project was underway. But prior to its decision that no EIS was required, the MPCA initially addressed this concern in the EAW and also conducted further investigation after the comment period, including consulting the Minnesota Department of Natural Resources (DNR). During that investigation, a DNR hydrologist evaluated two aquifers as potential water supplies and determined that at least one of those aquifers had the potential to supply the necessary ground water, but that a well would have to be drilled and tested to determine the yield. This record does not support appellant's application of Trout. Rather, the record supports a conclusion that the MPCA adequately evaluated the present potential for an environmental impact.

b. Surface Water. Appellant contends that the MPCA's inclusion of ongoing phosphorus monitoring does not support its decision to forego an EIS. Requiring ongoing monitoring was based on management plans and analyses documenting the nature and quantity of manure the project would generate and the number of acres required for application of the manure. It is apparent that the MPCA considered the potential effect of over-application, imposed standard soil-testing requirements, and appropriately determined that there was no significant potential environmental impact.

c. Odor Impacts. Contrary to appellant's assertion that the MPCA chose to deal with this problem by ignoring it, the record includes technical data on available methods for minimizing odors that the MPCA considered. The MPCA then made a reasoned analysis utilizing that data: a determination that this court should assume was an appropriate exercise of the MPCA's discretion. See Iron Rangers, 531 N.W.2d at 881 (where there are technical disputes and uncertainties, the court must assume that the agency has exercised its discretion appropriately).

d. Land Availability. Asserting that by stating that Scherping would be subject to annual reporting the MPCA failed to address this problem, appellant fails to recognize that the MPCA considered the number of acres required for the project and ascertained that Scherping had sufficient acreage. Appellant does not offer and it is otherwise unclear what additional information the MPCA should have considered.

e. Traffic Effects. Relying on Carl Bolander v. City of Minneapolis, 502 N.W.2d 203 (Minn. 1993), appellant points to the MPCA's statement that any special agreements regarding road maintenance "would need to be worked out between the project proposer and the county" as another indication of the MPCA's "willingness to defer difficult decisions to other governmental agencies." But unlike Carl Bolander, where the issue was whether an EAW was required, in this case an EAW was completed that included an evaluation of the estimated traffic flow. The Wright County Department of Highways submitted information on road safety and road wear impacts. Further, although the MPCA based its final conclusion on the installation of a solids separator, which would reduce operation-related traffic, that is just one of the factors the MPCA considered.

f. Mitigation. The MPCA considered the likely environmental effects and then incorporated specific mitigation measures including: obtaining a DNR water appropriation permit that includes provisions in case of well interference or water conflicts; complying with MPCA feedlot rules that include ongoing soil testing; a stormwater construction permit; and approval of an odor management plan. These measures are more than mere vague statements of good intention. Iron Rangers, 531 N.W.2d at 881. Furthermore, Scherping complied with the requirements necessary to obtain a conditional use permit and must submit to extensive state regulations of feedlots. See id. (project compliance with state law and local permit controls "weigh[ed] heavily in favor of a finding of no significant impact for an EIS").

In sum, we do not find support in this record for the application of Trout in the several instances argued by appellant.

2. Cumulative Effects

Minn. R. 4410.1700, subpt. 7B requires a governing agency to consider "related or anticipated future projects." Appellant confuses the existence of other agricultural operations in the area with the cumulative effect of future operations. There is no evidence of the latter and thus, the MPCA, in considering both phases of the Scherping project, properly considered the cumulative effect of this project. See Trout, 528 N.W.2d at 908 (cumulative effects were not adequately considered where there was evidence that future stages of irrigation projects were planned or likely).

3. Other Environmental Studies Undertaken or EIS's

The record includes abundant evidence that there is a high level of staff expertise in this area, including documentation that the MPCA staff has frequently dealt with similar issues. The MPCA relied not only on its own technical data but also on technical studies from other governmental entities. There is no basis for appellant's assertion that the MPCA relied on undefined studies or that there needs to be specific recitation to prior studies that are dispositive in the present case.

4. Prior Violations

Appellant contends that MPCA's report evidences its belief that Scherping's history of regulatory violations at other farming sites is irrelevant. But appellant offers no factual basis for its assertion that Scherping has a history of noncompliance. Rather, the evidence shows that where Scherping was in violation of a permit he is actively working with the MPCA to achieve compliance. This is nothing more than a speculative concern that the MPCA considered and appropriately dismissed.

5. Fact-finding

The record in this case includes detailed findings including: an adequate supply of ground water; adequate availability of land for application of manure; an insignificant odor impact consistent with odors normally associated with dairy operations; no need for installing traffic warning signs; the capacity of the road to handle the additional traffic; and no evidence of noncompliance by the project proposer at his existing feedlot operations. Although the MPCA failed to make findings on the surface water impact, appellant made no showing of potential problems or the inadequacy of the prescribed setback.

In light of this record, we conclude that the basis of the MPCA's decision is readily discernable and that remand is unnecessary. People for Envtl. Enlightenment and Responsibility, Inc. v. Minnesota Envtl. Quality Council, 266 N.W.2d 858, 872 (Minn. 1978). Moreover, appellant failed to present any facts that contradicted the MPCA's findings or raise any issues of material fact. Iron Rangers, 531 N.W.2d at 881 (a governing agency "cannot be compelled to prepare an EIS on the basis of speculative factors"); Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (nonmoving party must show that genuine issues of fact exist to preclude summary judgment).

 Affirmed.