Reserve Min. Co. v. Herbst, AFL-CI

CourtMinnesota Supreme Court
Writing for the CourtOTIS; YETKA; SHERAN
Citation256 N.W.2d 808
PartiesRESERVE MINING COMPANY, Armco Steel Corporation, Republic Steel Corporation, United Steelworkers of America,ity of Silver Bay, City of Beaver Bay, Lake County, Northeastern Minnesota Development Association, Duluth Area Chamber of Commerce, City of Babbitt, Range League of Municipalities, Lax Lake Property Owners Association, The Silver Bay Chamber of Commerce, The Township of Beaver Bay, and St. Louis County, Respondents, v. Robert L. HERBST, Commissioner of the Department of Natural Resources, State of Minnesota, Minnesota Pollution Control Agency, Warren Spannaus, Attorney General, State of Minnesota, Save Lake Superior Association, Sierra Club, Minnesota Public Interest Research Group, and Minnesota Environmental Control Citizens Association, Appellants.
Decision Date27 May 1977
Docket Number47528,Nos. 47504,47537 and 47575,AFL-CI,C,47529,47530

Page 808

256 N.W.2d 808
10 ERC 1114
RESERVE MINING COMPANY, Armco Steel Corporation, Republic
Steel Corporation, United Steelworkers of America, AFL-CIO,
City of Silver Bay, City of Beaver Bay, Lake County,
Northeastern Minnesota Development Association, Duluth Area
Chamber of Commerce, City of Babbitt, Range League of
Municipalities, Lax Lake Property Owners Association, The
Silver Bay Chamber of Commerce, The Township of Beaver Bay,
and St. Louis County, Respondents,
v.
Robert L. HERBST, Commissioner of the Department of Natural
Resources, State of Minnesota, Minnesota Pollution Control
Agency, Warren Spannaus, Attorney General, State of
Minnesota, Save Lake Superior Association, Sierra Club,
Minnesota Public Interest Research Group, and Minnesota
Environmental Control Citizens Association, Appellants.
Nos. 47504, 47528, 47529, 47530, 47537 and 47575.
Supreme Court of Minnesota.
May 27, 1977.

Page 811

Syllabus by the Court

1. Where the district court is acting in an appellate capacity with respect to administrative agencies, the supreme court on appeal again scrutinizes the agency decision and accords the trial court only such deference as it would give to the opinions of other appellate jurisdictions.

2. In reviewing the decisions of administrative agencies, the district court and the supreme court are governed by the provisions of the Administrative Procedure Act, Minn.St. 15.0425, and shall determine inter alia whether the agencies' findings are supported by substantial evidence and whether their conclusions are arbitrary and capricious.

3. It is error for an administrative agency to designate as "feasible and prudent" an alternative site for a tailings basin dam under Minn.St. 116B.09, subd. 2, where the undisputed evidence indicates that the site selected by the mining company will support a safe structure.

4. The designation of a tailings site within a national forest is not a feasible and prudent alternative to a site selected elsewhere by a mining company where the impact on natural resources at the two locations will not differ significantly and the intrusion of an industrial development into the national forest would be inconsistent with the purposes and uses permitted by Federal law.

5. Standards of air quality adopted by the United States Court of Appeals for the Eighth Circuit in Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 538-39 (1975), govern state and Federal administrative agencies and courts in establishing medically safe levels for the emission of carcinogenic fibers from the operation of taconite plants and tailings sites.

6. Where the evidence compels a finding that projected amphibole fiber levels to be generated by a proposed on-land tailings site may be dangerous to the health of those in the proximity of the site, it is error for an administrative agency to designate a more remote site as a "feasible and prudent alternative." Under such circumstances it is the duty of the agency to require the mining company which will use the site either to mitigate their processes further to achieve a safe level of emission or to terminate their operations altogether.

Warren Spannaus, Atty. Gen., James M. Schoessler, Sp. Asst. Atty. Gen., St. Paul, Morris M. Sherman and Edward Moersfelder, Minneapolis, for Herbst, et al.

Warren Spannaus, Atty. Gen., Richard Allyn, Sol. Gen., St. Paul, Eldon G. Kaul, Asst. Atty. Gen., Alan R. Mitchell and John-Mark Stensvaag, Sp. Asst. Attys. Gen., Roseville, for Mn. Poll. Control, etc.

Dayton, Herman & Graham, Minneapolis, for Save Lake Superior Assoc. & Sierra Club.

Elliot C. Rothenberg, Minneapolis, for Mn. Pub. Int. Group, et al.

O.C. Adamson, II, Minneapolis, Edward T. Fride, Duluth, Maclay R. Hyde, William T. Egan, G. Alan Cunningham, Minneapolis, Wayne G. Johnson, Silver Bay, John G. Engberg, Minneapolis, for respondents.

Gray, Plant, Mooty, Mooty & Bennett and Curtis D. Forslund, Minneapolis, amicus curiae for Rodney B. Nelson, for United States, Peter R. Taft, Asst. Atty. Gen., Edmund B. Clark, Alfred T. Ghiorzi, and John E. Varnum, Dept. of Justice, Washington, D. C., G. William Frick, Gen. Counsel, Pamela P. Quinn, Atty., Environmental Protection Agency, Washington, D. C., amicus curiae.

Considered and decided by the court en banc.

OTIS, Justice.

These appeals arise from proceedings which were initiated on November 18, 1974, by Reserve Mining Company (Reserve) to obtain permits from the commissioner of the Department of Natural Resources

Page 812

(DNR) and the Minnesota Pollution Control Agency (PCA) for construction of an on-land disposal site at Mile Post 7 near Silver Bay in Lake County in response to mandates of the Federal court to discontinue the use of Lake Superior for the disposal of tailings. Both agencies appointed as a hearing officer Wayne H. Olson, an attorney, previously commissioner of the Department of Natural Resources, who took testimony from June 23, 1975, to March 18, 1976, and on June 23, 1976. He made findings and on May 26, 1976, recommended against granting permits for Mile Post 7 in favor of an alternative site, preferably Midway, hereafter referred to as Mile Post 20. The PCA Board rejected these recommendations on June 15, 1976, but thereafter reversed its decision and on July 1, 1976, joined the DNR in accepting the hearing officer's recommendations. (See appendix for maps of alternative sites.)

An appeal was taken by Reserve to a three-judge panel of the District Court of Lake County which received additional evidence from November 3, 1976, to December 3, 1976. On January 28, 1977, the trial court filed orders on which judgments were entered on January 31, 1977, directing the DNR and PCA to issue permits to Reserve for Mile Post 7. Appeals to this court were begun on February 1 by the DNR and the attorney general, followed by appeals of the PCA and various other intervenors.

Oral arguments were presented to the full court on April 7, 1977. 1 On April 8, 1977, the court rendered the following decision to which this opinion is addressed: 2

"The orders and judgments of the District Court of Lake County, Sixth Judicial District, from which appeals have been taken in the above entitled matters are affirmed by unanimous decision of the court subject to the conditions hereinafter set forth.

"The Commissioner of Natural Resources and the Minnesota Pollution Control Agency are accordingly directed to issue forthwith permits for an on-land disposal facility at Mile Post 7 for which Reserve Mining Company has applied. Such permits shall be subject to all of the conditions heretofore demanded by the Minnesota Pollution Control Agency and the Commissioner of Natural Resources, or both, which in all respects have been accepted by Reserve, Armco Steel Corporation, and Republic Steel Corporation, including the following:

"a) The permit shall be limited to a specific five-year term.

"b) Armco and Republic shall be co-permittees with Reserve Mining Company.

"c) The permittees shall assume all risks and liabilities arising from the implementation of the Mile Post 7 on-land disposal site and system.

"d) The permittees shall be required to perpetually maintain the tailings basin site to insure the integrity of the basin structures and to prevent the deposited tailings from re-entering the air and water of the state.

"e) All tailings except those used for dam and dike construction shall be placed underwater in the tailings basin during operations to the maximum extent possible

Page 813

with all exposed tailings to be adequately vegetated as soon as possible. Upon termination, the entire tailings basin shall be totally vegetated as soon as possible using the then best available technology.

"f) All tailings shall be disposed of in the Mile Post 7 permitted on-land tailings disposal system facility. The permittees shall be prohibited from using or allowing any other person or governmental entity to use tailings for any other purpose.

"g) The permittees shall be required to apply the best available technology to maintain air quality and to comply with all applicable laws and regulations, specifically including Minn.Reg. APC 1 and APC 6 and such other standards which now or in the future may apply to the permittees' tailings. This technology shall include specifically, but not exclusively, the use of spray water and effective and non-polluting chemical binders and other dust retardants on all exposed surfaces of tailings and upon all access and haul roads. In addition, only containerized or indoor and totally covered tailings stockpiles shall be permitted outside the disposal area.

"h) The permittees shall be required to apply the best available technology to maintain water quality and to comply with all applicable laws and regulations, specifically including Minn.Reg. WPC 14 and such other standards which now or in the future may be applied to the permittees' tailings. This technology shall include specifically, but not exclusively, the following:

"1) The tailings disposal system shall be operated as a closed system including the collection of seepage and surface runoff for return to the basin.

"2) A dual pipeline system with required controls, spill detection devices, emergency catchment basins and other protective devices.

"3) Any water discharge from the tailings or catchment basin shall be treated to the extent necessary to conform to all present and future water quality standards.

"i) The permittees shall be required to monitor the Mile Post 7 basin structures and the air and water in and adjacent to the tailings disposal area for the purpose of enabling any reaction to any potentially hazardous condition. The permittees shall establish an air and water monitoring program to be approved by the Minnesota Pollution Control Agency and shall operate this monitoring program with the capability of providing information necessary for rapid response in applying mitigating measures and...

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360 practice notes
  • In re Minn. Power for Auth. to Increase Rates for Elec. Serv. in Minn., No. A11–0352.
    • United States
    • Supreme Court of Minnesota (US)
    • October 31, 2013
    ...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). While we review legal questions de novo, we review factual determinations made within the scope of the agency's statutor......
  • In re Cities of Annandale and Maple Lake, No. A04-2033.
    • United States
    • Supreme Court of Minnesota (US)
    • May 17, 2007
    ...be correct, and we ordinarily accord deference to an agency in its field of expertise." Id. at 771 (citing Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977)). But the court went on to conclude that "[b]ecause the interpretation of a federal regulation is a question of law, we ne......
  • Johnson v. Elkin, No. 9341
    • United States
    • United States State Supreme Court of North Dakota
    • February 16, 1978
    ...Comp. Bureau, 250 N.W.2d 249, 250 (N.D.1977): "after many conferences." The comprehensive opinion in Reserve Mining Co. v. Herbst, Minn., 256 N.W.2d 808 (1977), indicates that we haven't been alone in our agony. As long as we permit it, the Legislature, the administrative agencies, the lawy......
  • In re 401 Water Quality Certification, No. A12–1661.
    • United States
    • Court of Appeals of Minnesota
    • November 13, 2012
    ...Minn.Stat. § 14.69(d)-(f)). The agency's decision “ ‘enjoy[s] a presumption of correctness.’ ” Id. (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977)). We give “ ‘deference ... to the agencies' expertise and their special knowledge in the field of their technical trainin......
  • Request a trial to view additional results
360 cases
  • In re Minn. Power for Auth. to Increase Rates for Elec. Serv. in Minn., No. A11–0352.
    • United States
    • Supreme Court of Minnesota (US)
    • October 31, 2013
    ...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). While we review legal questions de novo, we review factual determinations made within the scope of the agency's statutor......
  • In re Cities of Annandale and Maple Lake, No. A04-2033.
    • United States
    • Supreme Court of Minnesota (US)
    • May 17, 2007
    ...be correct, and we ordinarily accord deference to an agency in its field of expertise." Id. at 771 (citing Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977)). But the court went on to conclude that "[b]ecause the interpretation of a federal regulation is a question of law, we ne......
  • Johnson v. Elkin, No. 9341
    • United States
    • United States State Supreme Court of North Dakota
    • February 16, 1978
    ...Comp. Bureau, 250 N.W.2d 249, 250 (N.D.1977): "after many conferences." The comprehensive opinion in Reserve Mining Co. v. Herbst, Minn., 256 N.W.2d 808 (1977), indicates that we haven't been alone in our agony. As long as we permit it, the Legislature, the administrative agencies, the lawy......
  • In re 401 Water Quality Certification, No. A12–1661.
    • United States
    • Court of Appeals of Minnesota
    • November 13, 2012
    ...Minn.Stat. § 14.69(d)-(f)). The agency's decision “ ‘enjoy[s] a presumption of correctness.’ ” Id. (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977)). We give “ ‘deference ... to the agencies' expertise and their special knowledge in the field of their technical trainin......
  • Request a trial to view additional results

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