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In re Decision on Petition Requesting Preparation of an Environmental Assessment Worksheet

Court of Appeals of Minnesota

June 3, 2013

In the Matter of the Decision on the Petition Requesting the Preparation of an Environmental Assessment Worksheet on the Proposed Full Circle Organics/Good Thunder Compost Facility in Lyra Township, Blue Earth County, Minnesota.

UNPUBLISHED OPINION

Minnesota Pollution Control Agency

James P. Peters, Law Offices of James P. Peters PLLC, Glenwood, Minnesota (for relators)

Lori Swanson, Attorney General, Ann E. Cohen, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)

Full Circle Organics, LLC, Minneapolis, Minnesota (respondent)

Considered and decided by Halbrooks, Presiding Judge; Larkin, Judge; and Rodenberg, Judge.

HALBROOKS, Judge

Relators challenge a decision by respondent Minnesota Pollution Control Agency (MPCA) not to require environmental review in relation to the construction of a source- separated compost facility. Because the MPCA's decision is supported by substantial evidence and is not arbitrary or capricious, we affirm.

FACTS

This case arises out of the construction by respondent Full Circle Organics, LLC, of a source-separated compost facility in the City of Good Thunder (the project). The facility processes source-separated organic compostable materials (SSCM), including food waste, non-recyclable paper, plant materials, and animal bedding.

A solid-waste permit from the MPCA was among the approvals required for the project. Upon receiving Full Circle's application for the permit, the MPCA noticed a public-comment period, during which it received eight comments and a petition to hold a contested-case hearing. Following the close of the public-comment period, the MPCA scheduled a meeting of its Citizens' Board to consider whether to hold a contested-case hearing and whether to grant the permit. One day before the scheduled hearing, the Minnesota Environmental Quality Board (EQB) received a citizen petition seeking an environmental-assessment worksheet (EAW) in relation to the project. Relators Sandra Speck and Curtis Speck were among more than 100 citizens who signed the petition. Upon becoming aware of the EAW petition, the MPCA tabled consideration of the contested-case hearing petition and permit approval pending resolution of the EAW issue.

The petition raised numerous environmental issues regarding the project, including concerns about: (1) stormwater runoff and the potential for ground-water contamination; (2) the structure of the building, which has a fabric roof; (3) odors emanating from the facility; (4) the release of airborne pollution and its impact on surrounding air quality; (5) pests and rodents; (6) the ability of surrounding roads to handle the increased traffic and pollution that would be caused by this traffic; (7) the absence of natural buffers around the facility site; (8) the lack of an environmental study on the impacts of source-separated composting; and (9) the incompatibility of the facility with existing land uses. The petition attached a statement from two of the petitioners attesting to the drainage problems near the facility site; numerous photographs of the facility site; excerpts from MPCA's draft permit and responses to comments received about the permit; excerpts from a geotechnical report prepared in connection with the project; articles about potential risks of composting facilities; a PowerPoint presentation from the Compost Council of Canada; and a copy of the Minnesota Supreme Court's decision in Sletten v. Ramsey County, 675 N.W.2d 291 (2004).

The EQB forwarded the petition to the MPCA, the responsible government unit (RGU) in relation to the project, for a determination of whether an EAW should be prepared. At a subsequent Citizens' Board meeting, MPCA staff made a presentation and recommended denying the petition for an EAW, denying the petition for a contested-case hearing, and issuing the permit. MPCA staff expressed their opinions that (1) the project did not meet any of the regulatory thresholds for mandatory completion of an EAW or environmental-impact statement (EIS) and (2) the environmental concerns raised by petitioners had been addressed through the permitting process, the petitioners had not demonstrated that the project, as conditioned by the permit, "may have the potential for significant environmental effects" and thus "the criteria for ordering the preparation of ...


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