Clean Water Action Alliance of Minnesota, Appellant, vs. Minnesota Pollution Control Agency, Respondent, and Union Dairy, LLP, intervenor, Respondent.

Clean Water Action Alliance of Minnesota, Appellant, vs. Minnesota Pollution Control Agency, Respondent, and Union Dairy, LLP, intervenor, Respondent. A06-1054, Court of Appeals Unpublished, June 5, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1054

 

Clean Water Action Alliance

of Minnesota,

Appellant,

 

vs.

 

Minnesota Pollution Control Agency,

Respondent,

 

and

 

Union Dairy, LLP, intervenor,

Respondent.

 

Filed June 5, 2007

Affirmed
Klaphake, Judge

 

Stearns County District Court

File No. C4-04-4280

 

Thomas G. Dunnwald, Dunnwald & Peterson, P.A., 1150E Grain Exchange Building, 412 South Fourth Street, Minneapolis, MN  55415 (for appellant)

 

Lori Swanson, Attorney General, Robert B. Roche, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent MPCA)

 

Gerald W. Vonkorff, Roger C. Justin, Gary R. Leistico, Rinke Noonan, 400 1st Street St., Suite 300, P.O. Box 1497, St. Cloud, MN  56302 (for respondent Union Dairy)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In 2003, respondent Minnesota Pollution Control Agency (MPCA) evaluated respondent-intervenor Union Dairy, LLP's (Union Dairy) request to increase its 800-cow dairy operation in Ashley Township, Stearns County, to 2,000 cows, including expansion of a clay-lined storage basin to hold 21 million gallons of manure and waste water.  The MPCA issued an environmental assessment worksheet to consider the environmental efficacy of the project as required under Minn. R. 4410.4300, subp. 29 (2003) and to determine whether it merited further study and issuance of an environmental impact statement (EIS) under Minn. R. 4410.0200, subp. 24 (2003).[1]  Appellant Clean Water Action Alliance of Minnesota (Clean Water Action), a nonprofit environmental organization whose purpose is to improve water quality in Minnesota, participated in administrative proceedings and later sought a declaratory judgment to compel the MPCA to prepare an EIS after the MPCA determined that an EIS was unnecessary.[2]  Clean Water Action now challenges the district court's denial of its motion to supplement the administrative record and the district court's grant of summary judgment to the MPCA, claiming that the district court deferred excessively to the MPCA's evaluation of the environmental efficacy of allowing Union Dairy to expand its operation.  Because Clean Water Action did not offer a sufficient factual basis to support supplementation of the administrative record and we observe no excessive deference to the MPCA by the district court, we conclude that the MPCA decision was supported by substantial evidence and not arbitrary or capricious and affirm the district court's grant of summary judgment to respondents. 

D E C I S I O N

            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); Minn. R. Civ. P. 56.03.  The appellate court must consider the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).            A reviewing court may alter an agency decision, if, among other reasons, it is "unsupported by substantial evidence in view of the entire record as submitted" or it is "arbitrary and capricious."  Minn. Stat. § 14.69 (e), (f) (2004).  The party challenging an agency's decision "has the burden of proof on appeal."  Minn. Ctr. for Envtl. Advocacy v. Comm'r of Minn. Pollution Control Agency, 696 N.W.2d 95, 100 (Minn. App. 2005).  A reviewing court will not defer to an agency decision 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. Minn. Dep't of Agric., 528 N.W.2d 903, 907 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).   

            Clean Water Action claims that the district court erred in refusing to allow it to supplement the administrative record after the MPCA decided an EIS was unnecessary.  Evidence submitted to the district court on appeal that is outside the administrative record may be considered by the district court only when 

(1) the agency's failure to explain its action frustrates judicial review; (2) additional evidence is necessary to explain technical terms or complex subject matter involved in the agency action; (3) the agency failed to consider information relevant to making its decision; or (4) plaintiffs make a showing that the agency acted in bad faith.

 

White v. Minn. Dep't of Natural Res., 567 N.W.2d 724, 735 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  Where the evidence reveals that the agency has ignored or failed to consider "a serious environmental consequence" or "swept stubborn problems or serious criticism . . . under the rug," the district court may consider new evidence.  Id. (quotation omitted). 

            Here, the first two pieces of evidence that Clean Water Action sought to add to the record included an air quality predictive modeling report done by Gantzer Environmental for Northern Plains Dairy, and two letters from the MPCA to Northern Plains Dairy.  Clean Water Action argues that this evidence shows that Gantzer had performed inaccurate predictive modeling for Northern Plains Dairy because that dairy had experienced serious air quality problems despite Gantzer's prediction that it would not have significant problems.  Clean Water Action argues that this "demonstrable error in a mathematical model" is a proper basis for challenging the use of the same model in this case.  The district court denied admission of these documents to supplement the administrative record on the basis that they were irrelevant. 

            We observe no error in the district court's decision to deny admission of this supplemental evidence.  The operation of Northern Plains Dairy is unrelated to the project under review here, and the record shows that the mathematical modeling for Northern Plains Dairy was not inaccurate:  when air quality problems occurred there, an anaerobic digester system had not been implemented, and this system had been specified in the Northern Plains Dairy plans and was therefore included in the Gantzer model calculations.  Further, as the district court noted, Clean Water Action did not establish any link between an alleged inaccuracy in the Northern Plains Dairy Gantzer modeling and the Gantzer modeling in this case; under these circumstances, the Northern Plains Dairy evidence is irrelevant.  And finally, Clean Water Action admits that the alleged model defects in the Gantzer studies were brought to the MPCA's attention in the written and public comments to the EAW, so there is no basis for reopening the record to supplement it with this evidence.  For these reasons, the district court did not err by declining to supplement the administrative record with this evidence.                                  

            Clean Water Action also sought to supplement the administrative record with the definitions of "geologically sensitive" contained in an MPCA Petroleum Remediation Program Investigation Form, a letter to a Clean Water Action representative from hydrogeologist Stuart Grubb, and the Minnesota rules.  Clean Water Action apparently attempted to include this evidence to argue that an EIS is typically required in geologically sensitive areas and should have been required in this case.  Its brief argues that this evidence was necessary to "explain technical terms or complex subject matter."  See White,567 N.W.2d at 735.  The district court declined to add this evidence to the record because Clean Water Action failed to show any relevance of the petroleum remediation program form to the issues of this case and failed to otherwise offer evidence that would establish that requiring an EIS is standard practice in the scientific community in cases involving geologically sensitive areas.  The court's assessment is correctthe mere use of similar terminology in the proffered materials is not a sufficient basis to supplement an administrative record, and Clean Water Action did not show that the existing record was insufficient to define "geologically sensitive."  Further, as the MPCA points out, this evidence was never submitted to or received by the MPCA, and the MPCA was "not required to consider or include in the administrative record, documents never submitted to or received by it."  Nat'l Audubon Soc'y v. Minn. Pollution Control Agency, 569 N.W.2d 211, 216 (Minn. App. 1997), review denied (Minn. Dec. 16, 1997). 

            Finally, Clean Water Action sought to supplement the administrative record with a draft permit and agency replies to comments regarding NPDES (National Pollutant Discharge Elimination System) permitting that allowed the Union Dairy project to proceed following the MPCA environmental review process.  Both of these documents were prepared long after the MPCA reached its decision in this case.  Clean Water Action urges that White allows the MPCA to consider this evidence because it shows that the MPCA failed to consider information relevant to making its decision and shows the "inadequacy of the agency's analysis leading to the negative declaration on the need for further review."  The documents themselves do not support this characterization.  The replies to the comments show that regarding geoprobe monitoring at the site, the "work done by the Agency only provides information on what exists at the present time," and that "[w]ithout background ground water data to provide data on the ground water condition prior to installation of the existing basin, no absolute conclusions regarding the basin can be established."  Because the evidence was submitted after the MPCA decision and the comment does not support Clean Water Action's claim that the MPCA analysis was inadequate, we conclude that the district court properly declined to find that this evidence provided a proper basis for supplementing the record.

            Clean Water Action next claims that the district court erred in deferring to the MPCA and in failing to take the requisite "hard look" at the Union Dairy project, resulting in the grant of summary judgment to the wrong party.  Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977) (requiring reviewing court to take a "hard look" at an agency decision).  Clean Water Action also argues that the district court failed to evaluate the "agency's actions and assumed a deferential view not only of the decision, but of any and all issues raised with regard to the propriety of the agency's method and efforts in the environmental review process."  The only example that Clean Water Action gives to substantiate these claims is the district court's unwillingness to recognize that the MPCA's predictive model used to support its conclusions on air quality, the Ganzer report, was flawed, and that the court should have allowed supplementation of the record on this issue. 

            As discussed earlier, the record does not show that the Ganzer report was flawed.  Further, in view of the entire record, substantial evidence supports the MPCA's decision not to require further environmental study of the proposed project through an EIS.  The MPCA's findings and conclusions show that it considered each possible type of contamination that could arise as a result of the dairy expansion project and evaluated the possible problems related to each.  The MPCA followed applicable rules and statutes in the administrative process and proceeded with the EAW in a timely fashion.   While we may agree with Clean Water Action that on its face, construction of a 21-million gallon manure and waste water storage basin in an area containing sandy soil, a high water table, and the existence of two streams that flow into the area's watershed would seem to have "the potential for significant environmental effects," Clean Water Action has not met its burden to show that MPCA's decision is unsupported by substantial evidence or was arbitrary and capricious.  Therefore, we conclude that the district court properly granted summary judgment to respondents.

            Affirmed.

[1] An environmental impact statement must be prepared for any project that has "the potential for significant environmental effects."  Minn. Stat. § 116D.04, subd 2a (2004). 

[2] Although the MPCA determined that an environmental impact statement was unnecessary, it did require Union Dairy to implement a ground water monitoring plan subject to MPCA approval.