Minnesota Pollution Control Agency,
Filed May 24, 2005
Minnesota Pollution Control Agency
File No. 7-2200-14439-2
Janette K. Brimmer, Minnesota Center for Environmental Advocacy, 26 East Exchange Street, Suite 206, St. Paul, MN 55101-1667 (for relator)
Christopher M. Hood, Steven W. Nyhus, Flaherty & Hood, P.A., 525 Park Street, Suite 470, St. Paul, MN 55103 (for respondent City of St. Cloud)
Considered and decided by Willis, Presiding Judge, Stoneburner, Judge, and Crippen, Judge.
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.
challenges administrative approval of a wastewater treatment permit by
respondent Minnesota Pollution Control Agency (the agency).
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
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 and comment periods, the agency promulgated a strategy that governs other specified affects (the phosphorus strategy).
The 2000 strategy (1) states that the agency will, under the phosphorus rule, require a 1 mg/L limit on phosphorus in wastewater discharge if the discharge affects a lake or reservoir and, under certain other circumstances, require a permit applicant to provide a phosphorus management plan; (2) defines “affects” and “measurable impact” in terms of the detrimental response to phosphorus in a body of water and the individual contribution of the discharge in causing any of certain defined adverse changes; (3) defines “lake” as a water body with a lake identification number supplied by the Minnesota Department of Natural Resources (DNR) in the DNR’s Bulletin 25, “with some exceptions”; (4) recommends using water residence time (the amount of time water will spend within a given geographic feature) to determine whether navigational pools would be treated as a lake or as a river for purposes of the phosphorus rule; and (5) notes that the lake/navigational pool/residence-time aspects of the phosphorus strategy mean that the agency adopts the DNR list of lakes in Bulletin 25, with certain exceptions.
In the 2000
proceedings to renew the city’s discharge permit, the agency made a preliminary
determination to reissue the city’s permit without a 1mg/L limit on the city’s
phosphorus discharge, requiring, instead, that the city submit a phosphorus
management plan, with its next (2005) permit-renewal application. Relator sought, and the agency granted, a
contested-case hearing on whether the city’s discharge triggered the 1 mg/L
limit on phosphorus discharge by affecting a lake or reservoir under the
phosphorus rule. Relator essentially
argued that (1) the city’s discharge affects the Coon Rapids Dam Pool and
discovery, the city moved for a summary determination, arguing that the
phosphorus rule’s discharge limit does not apply because, under the rule, the
Coon Rapids Dam Pool is not a reservoir, and relator did not show that the
city’s discharge affects downstream waters.
An administrative law judge (ALJ) then proposed a summary disposition in
the city’s favor. The proposed ruling
assumed that the dam pool was a reservoir under the phosphorus rule for
purposes of the motion but indicated that relator had not shown that the city’s
discharge affects downstream waters. The
agency adopted the proposed order. On
relator’s initial appeal, this court ruled that (1) the agency had partially
misinterpreted the phosphorus rule, and a contested-case hearing was required
to determine whether, under a correct reading of the rule, the city’s discharge
“affects” downstream waters; and (2) the contested-case hearing should also
address whether the Coon Rapids Dam Pool is a reservoir for purposes of the
phosphorus rule because that fact would impact whether the phosphorus rule is
applicable to the pool. In Re City of
On remand, the parties disagreed on who had the burden of proof. The ALJ issued a prehearing order stating relator had the burden of proof under Minn. Rules 1400.7300, subp. 5 (2003). After a hearing on the merits, the ALJ issued a proposed ruling that reaffirmed its prehearing ruling that relator had the burden of proof; ruled that, for purposes of the phosphorus rule, Coon Rapids Dam Pool is not a reservoir; and ruled that relator had not traced to the city’s discharge any effects of phosphorus in downstream waters. With minor alterations, the agency adopted the proposed order.
1. Did the agency correctly rule that the Coon Rapids Dam Pool is not a reservoir?
2. Did the agency incorrectly place the burden of proof on relator?
3. Did the agency misapply the phosphorus rule in determining that relator failed to show that the city’s wastewater discharge affects downstream waters?
its reading of the phosphorus rule to define a reservoir in terms of the
residence time of the water, the agency ruled that the Coon Rapids Dam Pool is
not a reservoir because the residence time of the water, which was found to be
.44-1.9 days, is “too short to constitute a reservoir and [the Coon Rapids Damp
Pool] does not have an adequate volume of water to support treatment of this
feature as anything other than a stretch of river.” Alleging the existence of preferable
alternative methods for determining whether a body of water is a reservoir or
should otherwise be protected by the phosphorus rule’s limit on phosphorus
discharge, relator challenges the agency’s reading of the phosphorus rule. Although word meanings are generally a matter
of law, “considerable deference” is given to the agency’s construction of its
own regulations; “[i]f a regulation is ambiguous, agency interpretation will
generally be upheld if it is reasonable.”
St. Otto’s Home v. Minn. Dep’t of
Human Servs., 437 N.W.2d 35, 40 (
Relator argues that the phosphorus rule should protect the Coon Rapids Dam Pool because the pool fits the general-parlance definition of reservoir, the water in the pool is used for recreation, and the phosphorus rule was intended to protect state waters used for recreation. Minn. R. 7050.0211, subp. 1a, the phosphorus rule, limits phosphorus discharge to 1 mg/L if the discharge at issue “is directly to or affects a lake or reservoir,” is to be given its plain meaning. In re City of Owatonna’s NPDES/SDS Proposed Permit Reissuance, 672 N.W.2d 921, 926 (Minn. App. 2004). A plain reading of the rules shows that it applies to discharge affecting a lake or reservoir, but the rule does not include language making it relevant to assess the use to which the water in the body is put; we reject relator’s argument to the contrary. Cf. id. at 928 (noting that the agency erred by denying a contested-case hearing based in part on economic considerations because “the phosphorus rule does not take into account economic considerations”).
Relator also notes that, in implementing the phosphorus strategy, the agency changed the analysis it used to determine whether a water body is a reservoir or otherwise protected by the phosphorus rule’s discharge limit to begin considering whether the “residence time” of the water in question is at least 14 days. Relator argues that this was “a change in long-standing interpretation and practice” to an arbitrary 14-day residence-time rule. We initially note that before use of the 14-day residence-time rule of thumb, the agency used the 50-mile rule-of-thumb, and that standard would have deemed the Coon Rapids Dam Pool and waters further downstream unaffected by the city’s discharge. Thus, even if we found cause to reinstate prior practice, this would not require imposition of the discharge limit that relator seeks.
In any event, much of relator’s argument that the agency’s use of a 14-day residence period is arbitrary involves evidence that algae responds positively to phosphorus, even in moving water like a river. Therefore, relator argues, this court should reject as unreasonable the agency’s new residence-time based method of identifying the waters protected by the phosphorus rule’s phosphorus discharge limit. For four reasons, we decline to do so. First, although the rule is phrased in terms of protecting “lakes” and “reservoirs” from the effects of phosphorus, relator’s argument tries to use the possible effects of phosphorus to define bodies of water to be protected. We will not expand the coverage of the rule from “lakes” and “reservoirs” to bodies of water impacted by phosphorus. Second, the 14-day residence time standard is not absolute: consistent with case law, the agency admits that a 14-day residence-time is not a “litmus test” for determining whether a water body is reservoir and that the phosphorus strategy “is guidance only.” See id. at 926 (stating the phosphorus strategy, “by its own terms, is ‘not intended to be a rule and does not create any rights, substantive or procedural.’”). Third, the agency’s use of a 14-day residence time as a nondispositive factor in determining whether a body of water is a reservoir, shows that the agency’s method of deciding what constitutes a reservoir is sufficiently flexible that it can address water bodies on a case-by-case basis. And relator does not explain how a decision can be arbitrary when the decision is made based on generally applicable guidelines that have sufficient flexibility to allow case-by-case determinations that will, even in unusual cases, achieve the goals that the rule and the strategy are meant to attain. Fourth, because the agency’s use of a 14-day-residence-time guideline is reasonable, we are required to defer to its reading of any ambiguity in the rule. St. Otto’s Home, 437 N.W.2d at 40.
also challenges the agency’s refusal to classify the Coon Rapids Dam Pool as a
reservoir. Relator alleges that “Finding
No. 46,” which addresses the volume of the pool, is not supported by the
record, and that, in any event, the record does not show that the volume of a
body of water is relevant to whether that body of water should be protected by
the phosphorus rule. But finding 46
addresses a phosphorus study done on
The use to which water is put does not bear on the applicability of the phosphorus rule. Also, because the phosphorus rule is designed to protect lakes and reservoirs, the mere fact that water is affected by phosphorus does not necessarily require imposition of the phosphorus discharge limit of the phosphorus rule. Further, the agency’s 14-day residence-time guideline for identifying affected lakes and reservoirs is not arbitrary. Therefore, we affirm the determination that the Coon Rapids Dam Pool is not a reservoir protected by the phosphorus discharge limit of the phosphorus rule.
The agency ruled that “[a]s the party objecting to the action to be taken in this matter, [relator] has the burden of demonstrating that its proposed action is required by a preponderance of the evidence.” Relator objects to this ruling, arguing that because the city is seeking the permit, it is the city’s burden to show that the discharge limit in the phosphorus rule does not apply to its permit.
regarding administrative proceedings state that “[t]he party proposing that
certain action be taken must prove the facts at issue by a preponderance of the
evidence, unless the substantive law provides a different burden or
standard.” Minn. R. 1400.7300, subp. 5
(2003). Here, the original discharge
permit was issued in the 1970s, and the agency’s proposed draft of the permit that
would be (re)issued in these proceedings required the city to develop a
phosphorus management plan but did not impose the limit established by the
phosphorus rule; relator requested a contested-case hearing to determine, among
other things, whether the phosphorus rule applied because discharge affected a
lake or reservoir.
argues that the city failed to submit any evidence regarding the effects of its
water discharge in support of its application to reissue its permit. But the rules require the agency, after a
permit application is complete, to make a preliminary determination regarding
whether a permit will be issued.
In addressing whether phosphorus “affects” a body of water, the agency determines whether phosphorus creates a “measurable impact” in the adverse reactions to phosphorus by the lake or reservoir being considered and whether those adverse effects can be traced to a particular source of phosphorus. Relator argues that the agency’s application of “affects” is too narrow and is contrary to the agency’s recognition that algae can form in rivers before it reaches a lake or reservoir and “affect” the lake or reservoir when the river deposits the algae there. Because we affirm the decision that the Coon Rapids Dam Pool is not a reservoir for phosphorus-rule purposes, we do not address relator’s argument on this point regarding the pool.
The agency is aware that algae can grow in a river, that its current phosphorus rule and phosphorus strategy do not adequately address the impact of phosphorus on rivers, and that questions still exist on that topic: the agency admits that the 1996 phosphorus study generated recommendations that the phosphorus rule be modified to address the impact of phosphorus on rivers. But these recommendations have not been adopted as policy by the agency. That the unmodified rule did not adequately address rivers is consistent with the discussion in the phosphorus strategy stating that
[when the phosphorus rule was] crafted in the 1970s little or no attention was paid to the impact of nutrients on flowing waters (i.e., rivers) because it was believed that the very short residence time or high turnover rates did not allow algae to fully utilize available nutrients and produce nuisance blooms. In recent years, other researchers (and we) have begun to take a closer look at nutrient impacts on flowing waters and have recognized that excess nutrients will contribute to algal growth in rivers. However, questions remain on [listing various questions].
To invoke the discharge limitation of the phosphorus rule
because algae that grows in the Mississippi River between St. Cloud and Lake
Pepin affects Lake Pepin would be to (1) require the agency to apply the
phosphorus rule to a situation (river-grown algae) for which the rule was not
designed; (2) impose the discharge limit when, despite not just an opportunity
but a recommendation to apply the rule, the agency did not do so and did not do
so because, among other things, the agency believes that there are significant
unanswered questions about how phosphorus can and should be managed in rivers;
and (3) ignore the fact that between St. Cloud’s wastewater discharge and Lake
Pepin, a substantial amount of phosphorus is discharged into the Mississippi
River by the cities of Minneapolis and St. Paul. Under these circumstances, we will not
require the agency to impose the phosphorus rule’s discharge limit for lakes
and reservoirs to
We agree with the [agency’s] arguments that the Statement of Need and Reasonableness requires a measurement of individual impact prior to application of the phosphorus rule and the phosphorus rule cannot be triggered merely by measuring the cumulative impact of several discharge sources upon a lake or reservoir or by presuming a source that discharges phosphorus has a measurable effect on a lake or reservoir.
analysis addresses relator’s arguments that the tracing requirement is
“unrealistic” because certain modeling tools are not sophisticated enough to
distinguish the effects of one source of phosphorus from another.
The Minnesota Pollution Control
Agency’s method of identifying lakes and reservoirs for purposes of Minn. R.
7050.0211, subp. 1a (2003), and the phosphorus strategy are not arbitrary, and
the agency correctly refused to classify the Coon Rapids Dam Pool as a
reservoir under those authorities. Also,
because the agency correctly placed the burden of proof on remand on relator
and relator did not trace the impact of phosphorus in lakes or reservoirs
downstream from the wastewater treatment plant operated by the City of
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Relator further argues that finding 43’s
statement that the residence time for
This analysis also addresses relator’s request that the matter be remanded for
the agency to do a phosphorus-rule workup based on the impact of the city’s