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Minnesota Center for Environmental Advocacy v. Commissioner of Minnesota Pollution Control Agency

May 24, 2005

MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, RELATOR,
v.
COMMISSIONER OF MINNESOTA POLLUTION CONTROL AGENCY, RESPONDENT, CITY OF ST. CLOUD, RESPONDENT.



Minnesota Pollution Control Agency File No. 7-2200-14439-2.

SYLLABUS BY THE COURT

1. The Minnesota Pollution Control Agency's use of its phosphorus strategy, which suggests a minimum water residence time of 14 days before a body of water is deemed a lake or reservoir for purposes of phosphorus-control rules, is not arbitrary and capricious.

2. Because, under a pertinent rule, a party proposing an action by an agency generally has the burden of proof in administrative proceedings, this burden is properly placed on a party asking the Minnesota Pollution Control Agency to include in a wastewater treatment plant permit a limit on phosphorus discharge established by rule.

3. A failure to trace the effect of phosphorus on a lake or reservoir to a particular discharge of phosphorus is a failure to show that the discharge "affects" the lake or reservoir within the meaning of the governing rule.

The opinion of the court was delivered by: Crippen, Judge

Affirmed

Crippen, Judge*fn1

Considered and decided by Willis, Presiding Judge, Stoneburner, Judge, and Crippen, Judge.

OPINION

This appeal challenges administrative approval of a wastewater treatment permit by respondent Minnesota Pollution Control Agency (the agency). Relator Minnesota Center for Environmental Advocacy argues that (1) the agency changed its construction of Minn. R. 7050.0211, subp. 1a (2003) (phosphorus removal rule), in a manner that is arbitrary, resulting in the Coon Rapids Dam Pool not being protected as a reservoir; (2) the agency's test for determining whether allowing the treatment plant would affect the reservoir is too narrow; and (3) the agency improperly put the burden of proof on those opposing the permit rather than on the applicant, and the applicant did not carry that burden. We affirm.

FACTS

Excessive amounts of algae can decrease water quality, and phosphorus can prompt the growth of algae. In the 1970s, the agency adopted a rule stating that "[w]here the discharge of effluent is directly to or affects a lake or reservoir, phosphorus removal to one milligram per liter [1mg/L] shall be required." Minn. R. 7050.0211, subp. 1a (2003). The rule does not define "affect," nor does it define "reservoir." In its initial applications of the phosphorus rule, the agency (1) interpreted "affect" to require a measurable impact on the water in question; and (2) used a 50-mile rule of thumb, under which bodies of water more than 50 miles downstream from a wastewater discharge site were deemed not affected by the discharge.

Also in the 1970s, respondent City of St. Cloud (the city) obtained a permit to operate a water treatment plant that discharges wastewater into the Mississippi River. The discharge occurs more than 50 miles upstream from the Coon Rapids Dam Pool, a pool created by a dam on the Mississippi River at Coon Rapids. The city's permit must be renewed every five years, and the phosphorus rule is involved in the repermitting process. Lake Pepin and Spring Lake, other water bodies involved in these proceedings, are downstream from Coon Rapids.

As the result of the agency's 1996 study of the impact of phosphorus on the state's water systems, a 1997 task force report recommended that the phosphorus rule be modified to address the impact of phosphorus on rivers. The agency board did not vote on whether to adopt, as agency policy, the task force's recommendations. Although the agency has not formulated a policy on discharge affects on flowing river water, in March 2000, after various public meetings ...


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