This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-1539

 

In the Matter of the Application From the

Minnesota Department of Transportation

For a Modification of the Indirect Source

Permit 96-5 to include a Light Rail Transit Line.

 

Filed April 3, 2001

Affirmed

Stoneburner, Judge

 

Minnesota Pollution Control Agency

 

Leslie Davis, 622 Lowry Avenue North, Minneapolis, MN 55411 (relator pro se)

 

Michael A. Hatch, Minnesota Attorney General, Peter L. Tester, Assistant Attorney General, Suite 900, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator Leslie Davis[1] appeals respondent Minnesota Pollution Control Agency’s decision to grant a modified indirect source permit for construction of a light rail transit line along the Hiawatha Avenue corridor, and MPCA’s denial of Davis’s request for a contested case hearing.  Because Davis has failed to show that MPCA’s decision to grant the permit was unsupported by substantial evidence or arbitrary and capricious, or that MPCA’s denial of the request for a contested case hearing was arbitrary and capricious, we affirm.

FACTS

 

            In 1982, the Minnesota Department of Transportation (MnDOT) began evaluating alternatives for improving the Hiawatha Avenue corridor, and determined that the preferred alternative was the reconstruction of trunk highway 55 (TH 55) with a light rail transit (LRT) option.  MnDOT published these findings in a final Environmental Impact Statement (EIS) in 1985.  In 1988, respondent Minnesota Pollution Control Agency (MPCA) issued an indirect source permit (ISP) to MnDOT to construct the highway component of the project.  Anyone who proposes to build an indirect source of pollution, a facility, building or structure that may attract vehicles that could contribute to levels of carbon monoxide (CO) in ambient air, must obtain an ISP from MPCA prior to construction.  Minn. R. 7023.9005, subp. 5 (1999); Minn. R. 7023.9010 (1999).  MPCA modified the permit in 1996.  In 1998, the Minnesota legislature approved funding for the LRT component of the project.  In 1999, MnDOT analyzed the impact of LRT on carbon monoxide (CO) concentrations within the entire corridor.  The results were published by MnDOT in “Reevaluation for Hiawatha Avenue (TH 55) Light Rail Transit.”  MnDOT then conducted additional analysis of CO emissions at four intersections in downtown Minneapolis, and concluded that CO emissions would not exceed state limits.[2] 

            On May 4, 2000, MnDOT applied to MPCA to modify the ISP to allow construction of an LRT line along 5th Street in downtown Minneapolis through the Hiawatha corridor, to the airport and the Mall of America.  MPCA staff reviewed the application and recommended that MPCA issue the modified ISP.  MPCA staff prepared a fact sheet and draft ISP.  On May 26, 2000, MPCA issued a public notice published in the Minneapolis Star Tribune of its intent to issue the modified ISP.

During the 30-day public comment period, MPCA received four letters, including a letter from relator Leslie Davis as President of Earth Protector, Inc.  In this letter, Davis opposed the issuance of the modified ISP on the grounds the project would cause excessive damage to public health and the environment, and requested MPCA to order a contested case hearing.  Davis stated that Earth Protector, Inc., would produce expert testimony and documents to show the project was in violation of Minnesota laws and rules, but could not produce names of experts due to potential reprisals.

At its regular monthly meeting on July 25, 2000, the MPCA Citizens’ Board reviewed and extensively discussed public comment, and heard expert explanation of the studies conducted.  As a result of remaining questions, the board requested that MPCA staff provide additional information on the project’s effects on CO and air toxics[3] emissions.  On July 28, 2000, the MPCA commissioner called for a special meeting and interested parties, including Davis, were served with notice.  The board considered additional comment and expert statements at this special meeting.

On August 4, 2000, MPCA issued the modified ISP, and denied Davis’s request for a contested case hearing.  On September 6, 2000, Davis filed this certiorari appeal.

D E C I S I O N

 

Davis argues that (1) MPCA’s decision to issue a modified ISP to MnDOT to build an LRT line along the Hiawatha corridor was unsupported by substantial evidence and arbitrary and capricious, and (2) MPCA’s denial of Davis’s request for a contested case hearing was arbitrary and capricious.

“[D]ecisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education and experience.”  City of Moorhead v. Minnesota Pub. Utils. Comm’n, 343 N.W.2d 843, 846 (Minn. 1984) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977)).  A court will not substitute its judgment for that of an administrative body when the finding is properly supported by the evidence.  Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963).

1.  Issuance of Permit

            This court may reverse or modify an agency decision if the substantial rights of the petitioner may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are

(a) In violation of constitutional provisions; or

(b) In excess of the statutory authority or jurisdiction of the agency; or

(c) Made upon unlawful procedure; or

(d) Affected by other error of law; or

(e) Unsupported by substantial evidence in view of the entire record as submitted; or

(f) Arbitrary or capricious.

 

Minn. Stat. § 14.69 (2000).  The party seeking review of an administrative proceeding has the burden of proving the agency decision meets one or more of the statutory criteria.  Info Tel Communications, L.L.C. v. Minnesota Pub. Utils. Comm’n, 592 N.W.2d 880, 883 (Minn. App. 1999), review denied (Minn. July 28, 1999). 

Davis argues first that MPCA’s decision to issue the ISP is unsupported by substantial evidence.  Generally, great deference is given to administrative fact finding.  Id. at 884.  Substantial evidence is defined as:

1.      Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;

2.      More than a scintilla of evidence;

3.      More than some evidence;

4.      More than any evidence; and

5.      Evidence considered in its entirety. 

 

Cable Communications Bd. v. Nor-west Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn. 1984) (quotation omitted).  A reviewing court should evaluate the evidence relied upon by the agency in view of the entire record, and if the agency engages in reasoned decision-making, the court will affirm.  Id. at 668-69.

            MPCA must issue a permit if the agency determines that the indirect source of pollution will not:

A. violate a control strategy of the Minnesota Implementation Plan to Achieve National Ambient Air Quality Standards [NAAQS]; or

 

B. violate state standards for carbon monoxide in a region or portion thereof.

 

Minn. R. 7023.9040 (1999).  MnDOT compared projected CO concentrations at four points in downtown Minneapolis with and without LRT for 1999, 2005, and 2014.  The Reevaluation report and testimony presented at the public meetings show that even in the worst case scenario, CO emissions will not violate federal or state standards.  MPCA did not conduct an independent analysis, but MPCA examined the studies carefully, verified that the studies made sense, and determined that the methods used were generally accepted by the scientific community.

            Davis has not presented any evidence to contradict these findings.  Davis argues that the amount of recorded traffic flow in the traffic models used by MnDOT does not appear to add up.  An expert testified that traffic counts are inconsistent because they are conducted over a period of time, not in one day.  Davis also argues that MnDOT incorrectly assumes that vehicle traffic will decrease as a result of LRT, but Davis offers no evidence to support a contrary conclusion.  Davis has not shown that MPCA’s findings are unsupported by the evidence.

            Davis also argues that MPCA’s decision to issue the modified ISP was arbitrary and capricious.  The mere existence of more than one reasonable opinion does not make an agency’s decision arbitrary or capricious.  In re Continental Tel. Co., 358 N.W.2d 400, 403 (Minn. App. 1984), aff’d in part, rev’d in part, 389 N.W.2d 910 (Minn. 1986). 

An agency ruling will be deemed 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. 

 

In re Space Ctr. Transp., 444 N.W.2d 575, 581 (Minn. App. 1989) (citation omitted), review dismissed (Minn. Oct. 19, 1989). 

            Minnesota law provides that no permit will be granted where it is likely to cause impairment of the natural resources “so long as there is a feasible and prudent alternative.”  Minn. Stat. § 116D.04, subd. 6 (2000).  Before MPCA is required to determine whether a feasible and prudent alternative exists, Davis must show that “pollution, impairment, or destruction” of natural resources will result from the action of issuing the ISP.  See id.; see, e.g., In re Winona County Mun. Solid Waste Incinerator, 442 N.W.2d 344, 348 (Minn. App. 1989), rev’d on other grounds sub. nom. City of Winona v. Minnesota Pollution Control Agency, 449 N.W.2d 441 (Minn. 1990).  The meaning of “pollution” under the Minnesota Environmental Policy Act is

any conduct  * * * which violates or is likely to violate any environmental quality standard, limitation, rule, order, license, stipulation agreement or permit of the state or any instrumentality, agency, or political subdivision thereof which was issued prior to the date the alleged violation occurred or is likely to occur or any conduct which materially adversely affects or is likely to materially adversely affect the environment * * *. 

 

Minn. Stat. § 116D.04, subd. 1a(b) (2000) (incorporating by reference Minn. Stat.           § 116B.02, subd. 5 (2000)).

            Davis argues that the project will likely cause pollution, impairment, or destruction of natural resources by allowing an increase in air toxics.  Davis presents a 1999 letter written by Dr. Gregory Pratt, MPCA’s expert on air toxics, questioning the adequacy of the 1985 EIS when better methods for monitoring air toxics have been developed since that EIS was issued.[4]  Dr. Pratt, however, testified at the August 4, 2000 hearing that air toxic levels should decrease along with CO levels as the number of automobile trips is reduced.  During his testimony, Dr. Pratt opined that building LRT is “a step in the right direction.”  An MPCA supervisor also explained at the August hearing that an ISP does not regulate air toxics, because there are no acceptable scientific methods to evaluate air toxic emissions on a project by project basis.  Dr. Pratt’s earlier concerns on a tangential subject do not overcome the evidence presented at the later hearings that air toxics from the proposed project will not violate quality standards or materially adversely affect the environment.  Davis has not shown that pollution, impairment, or destruction of natural resources will likely result from the issuance of the modified ISP. 

2.  Contested Case Hearing

Davis argues that MPCA’s denial of his request for a contested case hearing was arbitrary and capricious.  Davis is entitled to a contested case hearing if MPCA found:

A. there is a material issue of fact in dispute concerning the matter pending before the agency;

 

B. the agency has jurisdiction to make a determination on the disputed material issue of fact; and

 

C. there is a reasonable basis underlying the disputed material issue of fact or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the agency in resolving the disputed facts in making a final decision on the matter.

 

Minn. R. 7000.1900, subp. 1 (1999).  MPCA denied the request for a contested case hearing on the basis that Davis had presented no material issues of fact, and failed to show how a contested case hearing would aid in resolving the disputed facts.  It is not enough to raise issues without some showing that evidence can be produced.  In re Solid Waste Permit for NSP Redwing Ash Disposal Facility, 421 N.W.2d 398, 404 (Minn. App. 1988) (noting petitioners “failed to provide the agency or this court with any specific expert’s names or with any indication of what specific new facts an expert might testify to at a contested case hearing.”), review denied (Minn. May 18, 1988).  Petitioners have the burden of demonstrating the existence of material facts that would aid the agency at a contested case hearing.  Id. 

Davis’s request for a contested hearing states:

[W]e will produce expert testimony (we cannot produce names due to reprisal potential by certain participants) and documents to support that the proposed project is in violation of Minnesota laws and rules.

 

In addition to failing to provide names of experts who would testify at a contested case hearing, Davis did not specify the subject matter to which the experts would testify, or which laws or rules the ISP purportedly violates.  Davis has failed to raise with specificity any material facts and has failed to show that a hearing is necessary to resolve these facts.

            Affirmed.

 



[1] Leslie Davis is the President of Earth Protector, Inc.  Because Davis is not an attorney, he cannot represent a corporation, and therefore, he brings this appeal as an individual. 

[2] The state standard for carbon monoxide is 30 parts per million in a one-hour period and nine parts per million in an eight-hour period.  Minn. R. 7009.0080 (1999).

[3] Although “toxics” is not a term in the dictionary, it is used by the parties and therefore, in this opinion.

[4] Although not clear from the face of the letter, it appears that Dr. Pratt was referring to the original 1985 EIS, the subject of a separate lawsuit in Hennepin County involving the need for a supplemental EIS.  That lawsuit involves issues irrelevant to the issues in this case.