This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-98-2203

Interim Permit for the Planning, Construction

and Operation of an Animal Feedlot and/or

Manure Storage Area.

Filed May 25, 1999

Affirmed; motion granted

Willis, Judge

Minnesota Pollution Control Agency

Gary A. Van Cleve, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for relator Stearns Alliance for Water and Air Quality)

Mike Hatch, Attorney General, Jocelyn F. Olson, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Minnesota Pollution Control Agency)

Sherry A. Enzler, Mark J. Hanson, Doherty, Rumble & Butler, P.A., 2800 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for respondent Kenneth D. Gruenes)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Relator Stearns Alliance for Water and Air Quality (Stearns Alliance) petitioned for a writ of certiorari, challenging the issuance of an interim permit by respondent Minnesota Pollution Control Agency (MPCA) to respondent Kenneth D. Gruenes for the operation of an animal feedlot in Stearns County. We affirm.

FACTS

On October 29, 1997, Gruenes submitted an application to the MPCA for the construction and operation of an animal feedlot. Gruenes sought to construct two confinement barns, which would house a total of 2,000 finishing pigs. The proposed facilities provided for the collection and storage of manure in poured concrete pits. Gruenes planned to empty the two pits once a year, using the manure as fertilizer. Stearns Alliance, a non-profit association whose members own real property in Stearns County, opposes the proposed feedlot.

The MPCA issued Gruenes a certificate of compliance on February 17, 1998, authorizing him to proceed with the construction and operation of the feedlot. Because the first certificate referenced only one confinement barn, the MPCA issued Gruenes a revised certificate of compliance on March 24, 1998.

On September 17, 1998, Gruenes proposed to modify the configuration of the two confinement barns. The MPCA therefore replaced Gruenes's revised certificate of compliance with an interim permit on October 7, 1998. Stearns Alliance petitioned for a writ of certiorari, and this appeal follows.

D E C I S I O N

I. Issuance of Interim Permit

Stearns Alliance appeals pursuant to Minn. Stat. § 606.01 (1998) (providing for review by petition for writ of certiorari to court of appeals). It claims that the MPCA erred in issuing an interim permit to Gruenes for the planning, construction, and operation of an animal feedlot.

In a certiorari appeal involving a quasi-judicial agency decision not subject to the Administrative Procedure Act, we review the merits of the decision to determine whether it "was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it." Rodne v. Commissioner of Human Resources, 547 N.W.2d 440, 445 (Minn. App. 1996) (citation omitted). But such decisions

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.

Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977). But see Resident v. Noot, 305 N.W.2d 311, 312 (Minn. 1981) (stating that courts need not defer when language employed or standards delineated are clear and unambiguous).

The MPCA rules provide that

[t]he owner of a proposed or existing animal feedlot for greater than ten animal units shall make application to the commissioner for a permit when any of the following conditions exist:
A. a new animal feedlot is proposed; [or]
B. a change in operation of an existing animal feedlot is proposed.

Minn. R. 7020.0500, subpt. 1 (1997). Gruenes submitted an application to the MPCA for a proposed animal feedlot on October 29, 1997.

On September 17, 1998, Gruenes proposed a design modification, placing the two confinement barns end-to-end, rather than side-by-side, with a garage/office between the barns. Gruenes proposed no other changes. But because the design modification connected the barns under one roof, the MPCA considered the separate storage pits as one pit with a capacity exceeding 500,000 gallons. See id., subpt. 2(C) (1997) (requiring plans for manure-storage structures with capacity of 500,000 gallons or more to be prepared or approved by registered professional engineer or soil conservation service employee).

As a result of the proposed design modification, the MPCA identified Gruenes's proposed facilities "as a potential pollution hazard if not constructed correctly." The MPCA therefore replaced the revised certificate of compliance with an interim permit that required construction in accordance with design plans and specifications approved by a registered professional engineer. Either the potential pollution hazard would be corrected within ten months after issuance of the interim permit or the permit would expire. See Minn. R. 7020.0500, subpt. 4(B)(1) (1997) (providing "interim permit shall be issued by the commissioner when the potential pollution hazard will be corrected within ten months of the date of permit issuance"); Minn. R. 7020.0300, subpt. 13 (1997) (defining interim permit).

Stearns Alliance argues that the MPCA's failure to require Gruenes to submit a new application before issuing him an interim permit was contrary to MPCA rules. It asserts that the proposed design modification should be treated as a new animal feedlot or, alternatively, as a change in operation of an existing feedlot, requiring Gruenes to reapply to the commissioner for a permit. See Minn. R. 7020.0500, subpt. 1 (describing circumstances under which application to commissioner is required).

But Gruenes satisfied the requirements of Minn. R. 7020.0500, subpt. 1, on October 29, 1997, when he submitted a permit application to the commissioner for a "new animal feedlot," which the MPCA rules define as

an animal feedlot constructed and operated at a site where no animal feedlot existed previously or where a preexisting animal feedlot has been abandoned or unused for a period of five years or more.

Minn. R. 7020.0300, subpt. 15 (1997). Nothing in the MPCA rules requires a new permit application for a proposed design modification after an initial permit application has been submitted to the commissioner but before a feedlot begins operations.

Neither did Gruenes propose a change in the operation of an existing animal feedlot. Rather, he sought to modify the design of a proposed animal feedlot. And in any event, Gruenes's proposed design modification affected only the configuration of the two confinement barns. Such a design modification does not constitute a "change in operation." See id., subpt. 7 (1997) (defining term as "a change in the construction operation of an animal feedlot that would affect the storage, handling, utilization, or disposal of animal manure").

Stearns Alliance also argues that the MPCA's failure to require Gruenes to submit a new application to the commissioner before issuing an interim permit was arbitrary and capricious. Such a decision is arbitrary and capricious if it represents the agency's will, not its judgment, "or if the decision is `based on whim or is devoid of articulated reasons.'" In re Proposal by Lakedale Tel. Co. to Offer Three Additional Class Servs., 561 N.W.2d 550, 553 (Minn. App. 1997) (quoting Mammenga v. State, Dep't of Human Servs., 442 N.W.2d 786, 789 (Minn. 1989)).

The MPCA identified Gruenes's proposed facilities, including the proposed design modification, as a potential pollution hazard only if constructed improperly. To avoid such a hazard, the MPCA, consistent with its permit procedures, replaced Gruenes's revised certificate of compliance with an interim permit that required construction in accordance with plans approved by a registered professional engineer. See Minn. R. 7020.0300, subpt. 13 (explaining that interim permit expires within ten months after date of issuance), .0500, subpt. 2(C) (requiring plans for manure-storage structures with capacity of 500,000 gallons or more to be prepared or approved by registered professional engineer or soil conservation service employee), .0500, subpt. 4(B)(1) (providing interim permit shall be issued by commissioner when potential pollution hazard will be corrected within ten months after date of issuance).

Stearns Alliance also asserts that the MPCA violated its duty of candor by its "after-the-fact disclosure" of the issuance of the interim permit, citing Minn. R. 7000.0300 (1997) (requiring agency to act in good faith and with complete truthfulness, accuracy, disclosure, and candor). But even if the MPCA violated its duty of candor here, and we need not make that determination, Stearns Alliance provides no authority for the proposition that such a violation renders an agency's decision arbitrary and capricious. See State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that issue unsupported by argument or authority is waived and will not be considered on appeal).

Finally, Stearns Alliance argues that because of the proposed design modification, Gruenes should have submitted a new permit application to Stearns County. See Minn. R. 7020.1500-.1900 (1997) (providing for processing of permit applications by counties). But Stearns County Animal Feedlot and Manure Management Ordinance 202 became effective September 18, 1998. Gruenes submitted his application to the MPCA on October 29, 1997. Furthermore, like the MPCA rules, nothing in Ordinance 202 requires a new permit application for a proposed design modification after an initial permit application has been submitted but before a feedlot begins operations.

The MPCA followed its rules, and we conclude that its decision was neither based on an erroneous theory of law nor arbitrary and capricious. Thus, the MPCA did not err in issuing an interim permit to Gruenes for the planning, construction, and operation of an animal feedlot.

II. Motion to Strike

Stearns Alliance moves to strike Gruenes's December 16, 1998, affidavit as outside the record on appeal. In a certiorari appeal, our review is limited to an inspection of the record before the administrative body. Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996). Gruenes's affidavit is not part of the record on appeal, and all references to the affidavit are stricken. We have not considered Gruenes's affidavit in reaching our decision on the merits.

Affirmed; motion granted.