This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
In the Matter of:
Metropolitan Council Seneca Wastewater Treatment Plant
Permit No. 03700043-001.
Minnesota Pollution Control Agency
Leslie Davis, 622 Lowry Avenue North, Minneapolis, MN 55411-1441 (pro se relator)
Mike Hatch, Attorney General, Kathleen L. Winters, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent Minnesota Pollution Control Agency)
Robert E. Cattanach, Dorsey & Whitney, LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402-1498; and
Mark D. Thompson, Metropolitan Council, Mears Park Centre, 230 East Fifth Street, St. Paul, MN 55101-1634 (for respondent Metropolitan Council)
Considered and decided by Minge, Presiding Judge, Wright, Judge, Mulally, Judge*.
By writ of certiorari, relator Leslie Davis appeals pro se a decision by the Minnesota Pollution Control Agency (MPCA) to reissue an air emission permit to the Metropolitan Council for the Seneca Wastewater Treatment Plant (Seneca) in Eagan, Minnesota. Relator argues that the decision to reissue the permit is not supported by substantial evidence because the permit does not limit the amount of sewage sludge that can be incinerated and does not require the Metropolitan Council to apply 40% of the sludge to the land, as provided in a 1989 development agreement between the Metropolitan Council and the City of Eagan. Relator also contends that the MPCA’s denial of a request by John Westley on behalf of All for the Earth, Inc., for an additional public informational meeting and contested hearing on the permit was not supported by substantial evidence and was arbitrary and capricious. Because the MPCA’s decision to reissue the permit is supported by substantial evidence, and the MPCA’s denial of a request for an additional public informational meeting and contested hearing is not properly before the court, we affirm.
On an average day Seneca processes 34 million gallons of sewage sludge. Seneca currently incinerates the sludge in two multi-hearth furnaces. An alternative method for sludge processing known as N-Viro produces a fertilizer-like pellet for use as a land application product. Seneca primarily used the N-Viro process during most of the 1990s while the Metropolitan Council retrofitted the incinerators with odor control equipment.
The Metropolitan Council retrofitted the Seneca incinerators in response to a 1989 stipulation with the MPCA. The stipulation between the Metropolitan Council and the MPCA addressed citizens’ concerns about odors from Seneca and resolved odor control rule violations. Under the stipulation, the Metropolitan Council also developed an odor control program and commissioned the Residual Solids Management Study (RSMS). This study determined that the N-Viro process was the best means of continuing sludge processing while the incinerators were shut down to install the odor control equipment.
To best address Seneca’s compliance with odor control rules and its expansion to house the N-Viro equipment, the City of Eagan and the Metropolitan Council entered into a development agreement in March 1989. By the spring of 1992, the N-Viro equipment was nearly ready for operation; accordingly, the City of Eagan and the Metropolitan Council amended the development agreement to address the completion of the N-Viro facilities and the use of the N-Viro equipment.
The Seneca expansion and modifications also required the Metropolitan Council to obtain an air emissions permit from the MPCA. The MPCA issued the permit on October 14, 1991. The permit authorized the use of the N-Viro equipment and identified the N-Viro process as a means of continuing sludge processing during the installation of the odor control equipment. The 1991 air emissions permit expired in 1996 and the Metropolitan Council timely applied for a new permit from the MPCA.
Before reissuing a permit, the MPCA is required to give adequate public notice, including specific information about the facility, environmental compliance, and contacts for further information. Following public notice, the MPCA must provide at least a 30-day public comment period. Minn. R. 7007.0850, subp. 2 (2001).
In February of 1999, the MPCA held a public informational meeting addressing plant operations and the permit process. The draft permit was put on hold after the public informational meeting, prior to the public comment period, pending the resolution of an EPA enforcement action against another Metropolitan Council wastewater treatment plant. The public comment period for the draft permit was from December 5, 2001, to January 4, 2002. During this period, John Westley, director of All for the Earth, requested another public informational meeting on the draft permit.
The MPCA denied the request for a public informational meeting, stating that:
· The MPCA held a public informational meeting that was not well attended.
· No major concerns or issues were raised at the public informational meeting.
· No new air issues have arisen with the facility since the public informational meeting.
· Requirements added to the draft permit since the public informational meeting [have] made the permit more restrictive.
· There does not seem to be any interest from other residents, the city, or the Metropolitan Council to hold another public informational meeting.
· A public informational meeting is not needed to clarify or resolve issues regarding the terms of the draft permit.
Westley also requested a contested hearing. The MPCA denied this request because “All for the Earth’s contested case hearing request [did] not dispute a material fact.” Rather it was determined to be a request for a general review of the accuracy and reliability of the information used in the permit granting process. The MPCA further concluded that “it would not be assisted in making its decision on the facility permit” by holding a contested hearing.
The draft permit was brought before the MPCA Citizens Board for a public meeting on March 26, 2002. The MPCA heard testimony about the proposed permit. Relator, who is not a lawyer, attended the meeting and, speaking on behalf of John Westley, reiterated Westley’s request for an additional public informational meeting and a contested case hearing. On March 28, 2002, the MPCA reissued the air emissions permit and denied the request for an additional public informational meeting and contested hearing.
Relator contends that, because the MPCA’s decision to reissue Seneca’s permit was arbitrary and capricious and not supported by substantial evidence, this court should reverse and remand the permit back to the MPCA. Administrative agency decisions enjoy a presumption of correctness, and this court shows deference to agency expertise and special knowledge in the field of their technical training, education, and experience. City of Moorhead v. State Pub. Utils. Comm’n, 343 N.W.2d 843, 846 (Minn. 1984). This court will not substitute its judgment for that of an administrative body when the evidence properly supports the findings and the findings are not arbitrary or capricious. Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963); see Minn. Stat.
§ 14.69 (2000). The party seeking review of an administrative proceeding has the burden of proving the agency’s decision is not supported by substantial evidence or is arbitrary and capricious. Info Tel Communications, LLC v. State Pub. Utils. Comm’n, 592 N.W.2d 880, 884 (Minn. App. 1999), review denied (Minn. July 28, 1999).
Substantial evidence is
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 P’ship, 356 N.W.2d 658, 668 (Minn. 1984). This court evaluates the evidence the agency relied on in view of the entire record; and if the agency engaged in reasoned decision-making, the court will affirm. Id. at 668-69.
Agency conclusions are not arbitrary and capricious so long as there is a “rational connection between the facts found and the choice made.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001) (quotation omitted). The agency’s ruling is arbitrary and capricious if it (1) “relied on factors not intended by the legislature”; (2) “failed to consider an important aspect of the problem”; (3) offered an explanation unsupported by evidence in the record; or (4) made a decision “so implausible that it could not be explained as a difference in view or the result of the agency’s expertise.” White v. State, Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997) (citation omitted), review denied (Minn. Oct. 31, 1997).
Relator argues the permit should be remanded to the MPCA because the permit fails to include, as a special condition, provisions contained in the 1989 development agreement between the Metropolitan Council and the City of Eagan, the stipulation between the Metropolitan Council and the MPCA, and the RSMS. The relator seeks inclusion of the N-Viro process as a condition of the permit. The RSMS determined that the N-Viro process was the best means of continuing sludge processing while the incinerators were shut down for installation of the odor control equipment. But relator seeks to require, as a special condition of the permit, the implementation of a 40/60 split procedure, so that the N-Viro process is utilized 40% of the time and waste solids are incinerated 60% of the time. However, the record shows that neither the 1989 stipulation, the development agreement, nor the RSMS required a 40/60 split during the installation of the odor control equipment or thereafter. The record establishes that Seneca presently meets all MPCA permit requirements without utilizing the N-Viro process.
Relator fails to show that the agreements and the RSMS are applicable requirements or special conditions for permit issuance. The MPCA issues or reissues permits when, inter alia, all public participation procedures are met; the permit complies with all applicable requirements of Minn. R. 7007.0100, subp. 7 (2001); the MPCA anticipates the applicant will comply with all permit conditions; and all provisions and rules of Minnesota Statutes, chapter 116D have been fulfilled. Minn. R. 7007.1000, subp. 1 (2001). This court defers to the agency when reviewing its conclusions regarding conflicts in testimony, the weight given to expert testimony, and the inferences to be drawn from the testimony. In re Blue Cross & Blue Shield, 624 N.W.2d at 278 (citing Quinn Distrib. Co. v. Quast Transfer, Inc., 288 Minn. 442, 448, 181 N.W.2d 696, 700 (1970)).
The MPCA found that Seneca met all preconditions for issuance of the permit as enumerated in Minn. R. 7007.1000, subp. 1, and all “applicable requirements” to which Seneca is subject. The MPCA argues that even if the agreements and the RSMS are honored, requiring Seneca to apply 40% of the sewage sludge to the land is not an “applicable requirement” for the air control permit. “Applicable requirements” for emissions units in a stationary source consist of the various standards the EPA has promulgated or approved under the Clean Air Act. Minn. R. 7007.0100, subp. 7. There are 21 of these standards that must be included in the permit if applicable to the environmental process involved. After receiving all of the testimony and evidence, the board found that the Seneca permit includes all applicable requirements. Our review of the record supports this finding.
In addition, the agreements and the RSMS are not appropriate “special conditions” for permit reissuance. “Special conditions” are conditions above and beyond the applicable requirements that the MPCA determines are “necessary to protect human health and the environment.” Minn. R. 7007.1000, subp. 2 (2001). The MPCA found that the permit’s conditions exceeded environmental and health requirements. This finding is supported by substantial evidence.
The MPCA’s findings and conclusions show a thorough review of supporting documents and expert testimony. After a review of all relevant agreements and studies, the MPCA decided to reissue Seneca’s permit because all procedural requirements and preconditions were met. See Minn. R. 7007.1000, subp. 1. The MPCA’s decision to reissue the Seneca permit was based on substantial evidence. Its decision not to include the N-Viro process as a special condition or applicable requirement of the permit was not arbitrary and capricious, and relator has failed to prove otherwise.
Relator also challenges the MPCA’s refusal to grant the request of John Westley on behalf of All for the Earth, Inc. for an additional public informational meeting and contested hearing. MPCA argues that, since relator is not an attorney, he cannot raise issues in this court on behalf of John Westley and All for the Earth. We agree. A non-lawyer is barred from representing others in a court of law. In re Conservatorship of Reibel, 625 N.W.2d 480, 481 (Minn. 2001); Minn. Stat. § 481.02, subd. 1 (2000). This court has previously dismissed appeals brought by non-lawyers to prevent the unauthorized practice of law. See, e.g., Gonsior v. Alternative Staffing, Inc., 390 N.W.2d 801, 804-05 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986).
It was John Westley, not relator, who requested the additional public informational meeting and the contested case hearing within the comment period. Relator did not join in Westley’s request letter, and Westley did not file an appeal to this court. This court previously issued an order limiting the scope of relator’s appeal to issues he raised, pro se, and excluding issues relator sought to raise on behalf of Westley and Earth Protector, an organization with which relator is affiliated. The MPCA’s denial of Westley’s request for an additional informational meeting and contested case hearing, therefore, is not properly before this court.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
In 1994, the Metropolitan Waste Control Commission was abolished by statute and its duties were transferred to the Metropolitan Council. 1993 Minn. Laws ch. 249, § 49. For purposes of clarity, we refer to the Metropolitan Waste Control Commission as the Metropolitan Council.