Reserve Mining Co. v. Herbst

expungement of the court to order power majority, but join records. We criminal In all cases following extent:

only to provide, statutes so

where expungement; empowered order

clearly scheme statutory does to which our eases extend, power is the court’s inherent not petitioner’s where the to instances

limited seriously in- rights may be constitutional It has retention of his records. fringed such serious demonstrated that been case of R. L. will result in the infringement then, authority, we statutory F. Absent order in his expungement reverse

must

case. S., R. D. K. G. E. as to

Affirmed L. F. as to R.

reversed COMPANY, Armco MINING

RESERVE Corporation, Republic Corpo- Steel Steel ration, America, United Steelworkers AFL-CIO, Bay, City City of Silver Bay, County, Lake Northeastern Beaver Association, Development Du- Minnesota Commerce, City Chamber of luth Area Babbitt, Municipalities, Range League of Association, Property Lake Owners Lax Commerce, Chamber Bay, Township of Beaver St. County, Respondents, Louis

v. HERBST, L. Commissioner

Robert Resources, Department of State Natural Minnesota, Con- Minnesota Pollution Attorney Agency, Spannaus, Warren trol General, Minnesota, Save Lake State Club, Association, Min- Sierra Group, Public Interest Research nesota Minnesota Control Environmental Association, Appellants. Citizens 47504, 47528, 47529, 47530, 47537

Nos. 47575.

Supreme Court of Minnesota.

May

«09 Spannaus, Warren Atty. Gen., James M. Schoessler, Sp. Asst. Atty. Gen., Paul, St. Morris M. Sherman Edward Moersfeld- er, Minneapolis, Herbst, for et al. Spannaus, Warren Atty. Gen., Richard Gen., Allyn, Paul, St. Sol. Kaul, Eldon G. Gen., Asst. Alan Atty. R. Mitchell John- Stensvaag, Mark Sp. Gen., Asst. Attys. Roseville, for Mn. Control, Poll. etc. Herman Dayton, Graham, & Minneapolis, Superior Lake Save Assoc. & Sierra Club. Rothenberg,

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

O. Minneapolis, C. Edward Duluth, Fride, Maclay T. Hyde, R. William Egan, Cunningham, T. Alan Minneapolis, G. Johnson, Bay, John G. G. Wayne Minneapolis, for Engberg, respondents. Plant, Mooty, Gray, Mooty & Bennett and Forslund, Minneapolis, Curtis D. amicus cu- Rodney B. Nelson, riae for for United Taft, States, Gen., R. Peter Asst. Atty. Ed- Clark, Ghiorzi, mund B. Alfred T. John Varnum, Dept, Justice, E. Washington, C., Frick, William Counsel, D. G. Gen. Quinn, Atty., Pamela P. Environmental Agency, Washington, C., Protection D. ami- cus curiae.

OTIS, Justice. arise appeals proceedings These 1974, on 18, which were initiated November Mining (Reserve) to Company Reserve permits from the obtain commissioner Department Natural Resources the Minnesota Pollution Control “The (DNR) judgments orders and of the Dis- of Lake County, trict Court (PCA) for construction of an on- Sixth Judicial Agency District, from which appeals have been disposal site at Mile Post 7 near Silver land in the above taken entitled matters are County response to man- Bay in Lake by unanimous affirmed decision of the the Federal court to discontinue dates subject conditions herein- disposal of Lake for the the use set forth. after agencies appointed as a tailings. Both “The Commissioner of Natural Re- Olson, hearing Wayne officer H. an attor- and the Minnesota sources Pollution Con- Depart- commissioner of the ney, previously Agency trol are accordingly directed to Resources, who took testi- ment of Natural permits forthwith issue an on-land 23, 1975, 18, June to March mony from facility disposal at Mile Post 7 for which 1976, 23, and on June 1976. He made find- Mining Company applied. has 26, 1976, May ings and recommended subject shall be permits to all of Such granting permits for Mile Post 7 in against heretofore conditions demanded site, an alternative preferably Mid- favor Pollution Control Agency Minnesota hereafter referred to as Mile Post 20. way, Resources, of Natural the Commissioner rejected Board these recommen- The PCA both, respects all have been 15, 1976, on June thereafter but dations Reserve, accepted Corpo- Armco Steel July its decision and on reversed ration, Republic Corporation, Steel accepting the DNR in joined including the following: (See appendix recommendations. officer’s ,“a) shall be limited to a sites.) alternative maps of for five-year specific term. “b) Republic Armco and shall be co- appeal by was taken Reserve to a An with permittees Reserve Mining Compa- three-judge panel of the District Court of ny. which received additional evi- County Lake “c) permittees The shall assume all 1976, 3, November to December from dence arising risks and liabilities from im- 1977, 28, 3, January the trial 1976. On plementation of the Mile Post 7 on-land judgments on which were filed orders court disposal system. site and 31, 1977, January directing the on entered “d) permittees The required shall be permits issue to Reserve and PCA to DNR tailings maintain the perpetually basin to this court were Appeals Post 7. for Mile integrity to insure the site of the basin February by on DNR and begun prevent deposited and to structures by appeals followed of the attorney general, tailings re-entering from the air and other intervenors. PCA and various the state. water of arguments presented were to the Oral “e) tailings except those used for All 7, 8, April April court on 1977.1 On full placed and dike construction shall be dam 1977, following the court rendered the deci- tailings during in the basin underwater opinion possi- to which this is addressed:2 to the maximum extent operations sion Plunkett, judge ing The Honorable J. Jerome schedules were shortened. Five 1. hours were court, sat as a member of this court the district in argument lawyers at which devoted to oral ten hearing pursuant the case to Minn.Const. presentations. length made Because of the 6, 2.724, subd. 2. The art. and Minn.St. Chief been available which had to the time court for Justice, Sheran, part. no Robert J. took issues and of the the fact consideration that the reaching decision, was unanimous court 7, 1977, February By each 2. member of the by copy result was announced court order on court had been furnished a briefs and the trial court. of the trial findings argument day following and the of the officer par- oral addition, In the court the Federal to deal with ties July deadline of copies transcripts provided with of testi- 1977, 7, when the use Lake for mony plementary hearings. sup- taken at both All of the disposal tailings May was to terminate. On briefs, briefs, except reply were in 26, the Federal court extended the termi- by hands of the court March 1977. At April nation date to parties, request the case was ad- argument vanced on the calendar for and brief- “i) required to permittees The shall be tailings to be ade- exposed all ble with possible. as soon as vegetated the Mile Post 7 basin structures quately monitor termination, tailings the entire ba- Upon adjacent the air and water in and totally vegetated as soon as sin shall purpose tailings disposal area for using the then best available possible enabling any any potential- reaction to technology. permittees condition. The ly hazardous of in tailings disposed shall be “f) All water monitor- establish air and shall permitted tailings on-land Post 7 the Mile the Min- ing program approved facility. permittees disposal system Agency Pollution nesota Control using allowing or prohibited shall be operate monitoring program this shall person governmental entity or any other providing informa-' capability with purpose. tailings any other to use ap- necessary rapid response “g) permittees required shall be mitigating proce- measures and plying technology best available apply the monitoring air and water dures. Such quality comply air and to maintain include, to, but is not limited shall regulations, spe- applicable laws and all counting of fibers identification including Minn.Reg. APC 1 and cifically diffraction, x-ray such methods as elec- other standards which APC 6 and such microscopy tron other methods as may apply future or in the now may specify. the PCA tailings. technology This permittees’ “j) monitoring Reasonable costs for specifically, but not exclu- include shall analysis beyond the compli- routine effec- spray water and sively, the use monitoring conducted ance PCA non-polluting chemical binders tive directed consultants the PCA shall be exposed retardants all dust and other permittees. by the borne upon all access surfaces of “k) design, Dam oper- construction and addition, only con- and haul roads. consistent with the recommenda- ations totally or indoor and covered tainerized the Minnesota Pollution tions of Control permitted out- tailings stockpiles shall be staff and the state’s consultants. Agency disposal area. side costs of such The reasonable consultants required to “h) permittees The shall be by permittees. shall be borne to technology available apply the best which conditions to 1)Any other quality comply water and to maintain agreed.” parties regulations, applicable all laws and with 14 including Minn.Reg. WPC specifically emerge on this issues basic which The standards which now or and such other follows: are as appeal applied permit- be to the may the future scope of review of 1) proper is the What tailings. technology This shall in- tees’ by the DNR and the dis- of PCA decisions exclusively, but not specifically, clude by and this court? court trict following: by finding a support the evidence 2) Does tailings system shall “1) disposal The the use of Mile DNR and PCA that operated system as a closed includ- tailings pollu- site would cause such a 7 as and sur- seepage the collection of ing air, water, destroy the impair and so to the basin. face runoff return land, natural resources and other “2) pipeline system A dual with re- Mile Post a site such as that the use of state controls, devices, spill detection quired feasible, prudent, may be mandated as 20 basins and other emergency catchment with alternative consistent and economical devices. protective public requirements reasonable “3) discharge water from Any health, safety, and welfare? shall be tailings or catchment basin construing enforcing and statutes 3) In necessary to con- to the extent treated control, dealing pollution environmen- with and future water present to all form rights they and environmental policy, tal standards. quality 814 sites, degree Mining Co., what of United v. Reserve States 408 tailings affect 1212, 1218(D.Minn.1976). F.Supp. After an find that a agency a state certainty must Reserve, million expenditure $350 safety public health hazard

potential plant began operations commercial in the the likelihood of \outweighs exists year 1956. consequences seriously detrimental representatives A conference of by its decision? those affected economy of Minnesota, and the United States States by the attached 4) Are the conditions Michigan, Wisconsin convened court, PCA, and this court to DNR, Federal Secretary September of the Interior in 1969 constructing oper- permits for granting operation that Reserve’s was determined to insure com- tailings adequate site ating a Superior Lake and asked the com polluting pollution with environmental pliance an abatement propose plan. pany in the of Mile Post 7? usq statutes control Secretary 1969the of the Interi November approved standards of water quality for adopted Superior earlier by Lake the PCA. Jurisdiction Exercised challenged the validity of Reserve those Court Federal in the District of Lake Court standards depletion high grade iron ore Upon the The trial County. court held that Water Range, Mining the Mesabi Reserve Com- 15(c)(6) Regulation Pollution Control was sought obtained year in the pany arbitrary and unreasonable as to Reserve the Water Pollution Control Commis- prescribed density light it too because Department of Conservation sion lake, to settle in the but other discharges the Pollution (predecessors Control valid as amended. We af held it wise Department of Natural Re- Agency and the ruling but reversed so much of firmed sources) permits pro- to construct a taconite required parties nego decision as cessing plant on the shore of Mining a variance. Reserve Co. v. tiate for Superior. Large quantities Lake of lake PCA, 300, 308, 294 Minn. Minnesota necessary operation water were for the (1972). N.W.2d 67,000 plant and resulted in some tons by Reserve to the Lake planA submitted being every the lake sludge returned to Enforcement Conference Janu- day. permits theory were issued on the designed tailings to “flocculate” ary trough that the would settle in a to coalesce (cause lumps) them into small deep in Superior. 900 feet Lake At a some by the conference. The Attor- rejected 17, 1947, hearing on June public con- the United was there- States ney General expressed Minnesota Conservation cerns against to commence upon asked an action proved Wilson Commissioner Chester S. enjoin pollution further of Lake he prophetic Taylor, when stated H. S. present on-going litigation Superior. of Reserve: representative then in 1972 began in Federal an the court order entered on resulted that if the you “And understand 20, 1974, discharge by enjoining the April granted discharge and the from should be tailings Superior into Lake Reserve plant the water from this should result fibers into the air as of the fol- amphibole damaging consequences contemplat- 21, day, April 1974. United lowing States ed, responsibility would be on Co., 11, Mining F.Supp. 380 21 v. Reserve company applicant compa- or on the your 22, April On the court of (D.Minn.1974). might take whatever action be nec- ny to and, stay a brief after a granted appeals remedy those conditions.” essary to 11, May granted on a 70- hearing further response, Taylor Mr. stated: In that Reserve take day stay on condition that risk in yes, we can stand “Why steps prepare implement to an “prompt have to take certain risks. any event we plan for abatement.” That appropriate * * * responsi- will a company This extended until a on the stay was recognize we will our company Mining was had. Reserve Co. v. ble merits States, (8 1974). 498 F.2d 1073 Cir. liabilities.” United legal

«15 Lake stay to vacate applications including Three the time necessary to the United States Su- presented were for the state to act on application Reserve’s 9, 1974, July and denied: 418 preme Court dispose at Mile Post 7 or some 911, 3203, 94 S.Ct. 41 L.Ed.2d 1158 U.S. acceptable other site. suggested The court 11, 802, 1974, 419 U.S. 95 (1974); October that a final administrative decision should 287, (1974); and 42 L.Ed.2d 33 March S.Ct. be reached a year within after a final appel- 1441, 31, 1975, 1000, 420 U.S. 95 43 S.Ct. late decision. If the state and Reserve (1975).3 appeals L.Ed.2d 758 The court of agree were unablé to site, on a Reserve was 8, in its decision noted that June “[u]ntil given year phase out its Silver 1973, pollu- was water essentially the case Thereafter, facilities. judge chief case, date tion abatement but on that the district court imposed the following controversy pub- to the focus of the shifted penalties against $837,500 1) Reserve:4 discharge impact lic health Reserve’s violating the terms of its discharge water particles asbestiform into the air and 2) $200,000 permits; for violating court 1073, (8 1974). water.” 498 F.2d 1074 Cir. rules and orders as discovery; 3) discharges It held that whether such result- $22,290 to reimburse city of Duluth for health was un- ed in detrimental effects furnishing interim clean water facilities. known, expo- the level asbestiform fiber Co., Mining United States v. Reserve 408 undetermined, sure and no substantial F.Supp. (D.Minn.1976); 1212 United States danger proved. had been Mining Co., v. F.Supp. Reserve 412 705 response appeal court’s remand (D.Minn.1976). The court noted: plan to consider Reserve’s abatement and to “The court has now determined all settlement, encourage voluntary the trial pending properly prov- issues within its 18, 1974, court on October entered a supple Remaining ince. is agree- resolution finding mental memorandum and order Re ment between State of Minnesota and serve to be in violation of various Wisconsin Mining Reserve Company appro- as pollution and Minnesota statutes and re priate disposal on-land taconite waste served penal consideration of the fines and accord on issue Prompt hope- site. this ties impose. which it would United States fully signal long pend- will the end of this Mining Co., v. Reserve F.Supp. acrimonious, ing, and often controversy (D.Minn.1974). The appeals, court of in re so that Minnesota and its can people re- viewing on the merits the trial court’s deci productive turn to a normal and society sion, the issue jurisdiction resolved of its preserved pub- with the environment pollution over air distinguished protected.” lic health F.Supp. pollution, Mining water Co. v. En 7, 1976, Finally, July the district court Agency, vironmental Protection 514 F.2d found: (8 1975), by note 55 Cir. stating: “Now, after almost 16 months of study, relating “As to Minnesota’s claims to air discussion, negotiation, debate, extensive emissions, believe appropriate we this is an hearings and official actions state pendent jurisdic case in which invoke agencies, agreement no has been reached: tion,” Gibbs, citing Mine Workers v. Reserve still demands Milepost 7 which 715, 725, 1130, 1138, 16 86 S.Ct. U.S. L.Ed.2d not permit, Minnesota will and Minnesota 218, 227 (1966). The Federal court affirmed Milepost offers 20 which Reserve does not jurisdiction retained determine the want.” pollution question of air under state law. appeals by holding Mining Co., The court of concluded United v. Reserve States 417 789, given F.Supp. that Reserve be a (D.Minn.1976). should reasonable 791 According- time wastes discharging ly to cease its into the court held: 11, 1974, opinion 6, 1976, January the order of 4. In an filed 3. Attached to October is the trial vigorous by Douglas. judge by replaced appeals. a dissent Mr. Justice the court of Lord, Mining 181, Co. Reserve v. 529 F.2d 188 (8 1976). Cir. 816

“ * * * cor- and parent and its removal of the Reserve water. The iron con- tail- then discharge bentonite, of taconite centrate is mixed with cease de- porations hydrated, put into year balling one from drums which into Lake ings pellets approximately of 7, produce one-third July 1977.” midnight on today, at in size. In stage, of an inch the final appeals affirmed the district court of The subjected pellets extremely high if suggestion with a decision court’s which temperatures, hardens them and is settled disposal controversy the on-land changes properties their chemical litigation in the state agreement by oxide of iron magnetic to hematite. seeking “not barred from court, is Reserve Presently tailings not all of the which are order from of closure modification discharged into a delta in Lake Superior v. Reserve court.” United States district trough bottom, at the and a sub- reach Co., (8 F.2d 1212 Cir. Mining 543 number, buoyant, which remain stantial granted modification was 1976). That to circulate the lake. This is continue However, ap- the court of May 1977. activity which the Federal court has question expressly recognized that peals if an on-land is not enjoined completed site disposal an on-land site was arriving at 15, 1980. by April law over which a matter of state strictly proposes spend over Reserve mil- $300 juris- courts would not assume the Federal an building tailings disposal on-land lion diction. Post 7 modifying at Mile and in site plant to abate the emission into processing Bay Operations Present Silver amphibole ambient air of material for Mile Post 7 Proposed Plan may contain pathogenic which fibers of Mining Company jointly is asbestos. The principal change amosite Re- Corporation Armco Steel owned of ore at processing Silver will be Corporation. ex- presently It public Steel produce of facilities to the construction taconite ore from the Peter Mitchell tracts “dry called cobbing” what is high which Babbitt, Minnesota. Reserve Mine near magnetic separators will intensity isolate it (prepares the ore “beneficiates” tailings. of the ore into coarse percent process crushing, grind- a smelting) by tailings transport- gravel-size will be These concentration, magnetic producing ing, and conveyors to Reserve’s railroad which ed high grade ore which are trans- pellets of tailings haul them 7 miles to a basin to will Armco and on the Great Lakes to ported at Mile coarse located Other be Bay plant mills. The Republic Steel having sand, will tailings, consistency 10.4 tons of taconite produces about million Fifty-nine treated in similar manner. be annually, representing percent pellets tailings, consisting of fine percent taconite in the produced United States silt, will remain and will be mixed with accounting percent for about 8 pumped approximately water and 5 miles in consumption. nation’s iron ore slurry pipeline tailings 24-inch to the ba- crushing proc- mine site a At the Babbitt recycled the water will where sin begins ess which reduces the ore to rocks plant by separate pipeline. returned inches or less in size. The ore then will is, dam which contains the transported depth approxi- Re- with water to a miles railroad to filled quantity feet to reduce the processing plant city mately 10 serve’s located at the generated by the use of fugitive dust Bay. plant, crush- of Silver At further disposal site. on-land ing occurs to reduce the size of rocks to less than three-fourths of an inch. In the con- and Conclusions of Findings Pollution centrating process follows, water is Agency and Commissioner of Control system introduced into the mixture and the Department Natural Resources subjected repeated grinding, magnetic hydraulic separation, sizing, rejection appointed by officer PCA non-magnetic tailings, testimony waste material as DNR took from 160 witness-

817 1,000 exhibits, generated es, hearing and received officer in dealing with air 18,000-page transcript in the 9 months quality held that the findings of the Feder- being Reserve’s was during which courts were binding al on the proceedings findings, by His conclu- considered him. him, before and he specifically adopted were sions, adopted recommendations fugitive them. He found dust construc- agencies without further evidence by the activity, by transporting moving incorporated into resolutions orders tailings, coarse and wind action could be permits Mile 7 and at Post encour- denying by sprinkling reduced with water or chemi- at application permits Mile aging an cal treatment but could be not eliminated. Post 20. tailings Because coarse would be transfer- commenting the dam to be erected a substantial red distance from plant the to hearing basin, at Post the officer ex- Mile further fugitive the dust emissions opinion the of possibility the pressed would be created. The hearing officer and omissions in construction were errors on to went find there was no reliable time, by the passage increased and that that air (a evidence elutriation washing dams are more to build tailings difficult separate process light parti- from coarse storage conventional water dams and than cles) would significantly reduce such emis- susceptible faulty are more construction. Although sions. the estimates of emissions a lack of confidence in the He indicated made the state and Reserve were found cooperation of “close and mutual likelihood error, “optimistic” to be and subject to designer mining and the faith between state’s estimates were adequate found bedrock, found, operator.” The he would adopted were as the best information avail- in present problems no dam stability, and able. PCA estimates of fiber were content samples clay provided in area suit- significantly low but were found valid for However, able foundation. Mile Post comparing projected impact on various major, a complex engineering would be population centers with respect to the alter- resulting largest one project, in dams proposed. native sites Testimony of Dr. States, in the and would be located United Phillip M. Cook was held be reliable and Superior 3 miles from Lake vertical fiber 975,000 disclosed contents estimated at major it. failure of feet above He found per microgram tailings dust, fibers catastrophic. would be In that dam might actually high 2,900,000 be as as fibers event, eight residences below the dam microgram. per hearing officer con- affected and the be would be would justified cluded was deposited opportu- Lake with no assuming a 50-percent reduction in total nity recapture. As between Mile Post particulates suspended (TSP) at Bay consequences and a where the damsite by air elutriation. He noted that severe, hearing failure would not be so level projected of fibers in the air at Silver prudence officer concluded that would dic- comparable the levels found site, tate choice of a safer “even if the potential Federal court to be health of dam failure small.” probability hazard. He further found two streams would respect resources, With other natural be diverted site which officer a low found mineral adversely would affect their flow and tur- 7; at Mile Post potential a modest amount bidity. seepage through The amount for wildlife migrate habitat which would small, relatively dams would however. areas; the to other destruction 9.7 miles rupture pipeline adversely A might streams; area, of trout and the creation tur- although sys- affect water in the streams, bidity other well as a reduc- presented unique prob- tem no or difficult tion in their flow. lems flow would This would automatically adversely standby line in event affect anadromous fish in switched the lower Beaver rupture. such a River it was noted.

818 sites, constructing disposal alternative the hear- a site at .discussing Mile Post 20 Mile would that Post 20 ing $385,979,000 stated officer was found to be and the cost of longer pipeline, pumping more require a construction at Mile Post 7 to be considera- roads, stations, longer haul as well as bly less. While the production per costs ton longer but reason were safer dams ranged at Mile Post 7 pellets of from $19.17 quality The of water of location. their and the costs at Mile Post 20 $21.37 destroyed to be be was found which would range $22.84, from would both $20.50 than at Mile 7. Alter- elsewhere Post lower permit profitable op- sites were found a require of would no diversion native sites eration. any of degradation or result streams Finally, proceeding assumption However, expected un- other streams. operations may Reserve’s be that terminat- seepage would be lower at Mile collected permits for Mile grant- ed if Post are not The than at some alternative sites. Post 7 ed, hearing officer major outlined the stressed fact that hearing officer effects which detrimental would result Bay in suspended total increase at Silver Most of shutdown. the population (TSP) and from Mile particulates fibers Bay and substantial elements of three times as the great be Post 7 would Babbitt, Ely, and other areas of Lake and respect Mile Post 20. With increase from Louis Counties would be directly St. affect- timber resources and to the destruction 2,843 employed persons ed. Reserve wildlife, it was there was damage to felt $46,780,000. payroll total The between Mile Post 7 and little difference company purchased materials and supplies Mile Post 20. amounting to in Minnesota million. Its $37 energy officer that hearing found The tax liability total to state and local units of greater would be at the Mile consumption $7,775,000. government in 1974 was Own- Mile than at Post 7 because of Post 20 site Peter ers of the Mitchell Mine received for tail- transporting distance greater royalties in 1974 amounting to million. $16 Although he noted area at ings. that “disturbed,” had not been nei- Post 20 Mile hearing The officer up summed the im- committed other it been ther had by observing pact a shutdown use, Mile Post was not suit- whereas land psychological effects social of unem- viewpoint it planning because able from ployment could not be alleviated by unem- development new industrial major was a compensation; ployment possi- of an indus- expansion existing and not an obtaining other employment bilities was as the in what described trial use remote; process the area were corridor.” “North Shore moving other localities to seek employ- recognized that offi- hearing officer uprooting The ment would result in families and opinion were of the its losing cials of seniority, pension rights, and health shut down for would if a operations benefits; and welfare that retraining would rejected, a 7 was decision based which, required, all of combined with the However, economics. there largely on homes, value of employees’ decreased would company had deter- no evidence constitute “a bleak substitute the rela- at level which a shutdown a cost mined security provided by tive the continuation nor in triggered, hearing offi- would operations.” Reserve’s should that determine factor opinion cer’s hearing officer concluded with the prudent was a feasible and there whether following recommendations: Mile Post 7. alternative Findings on the above “Based and Con- analy- that Reserve’s financial found officer clusions, following Proposed Determi- its costs future increases in included sis nation is recommended: considering prices increases in without Implementation proposal “1. the economic benefits to and understated tailings disposal at Mile Republic proposed op- from the Post 7 would Armco sites. pollution, impairment alternative The cost cause or destruc- eration water, air, land and other during tion of the tions construction of on-land facil- natural resources located within the state ities.” substantially impair inter-

and would the Opinion Memorandum of Judges the public of ests of the in lands and waters and the District Court of Lake County beneficial public the substantial use thereof. Appeals were taken to the District Court feasible, prudent

“2. There are and County Lake from of the decisions of the proposed economical alternatives to the and DNR PCA Reserve Mining Compa- project which would be consistent with three-judge ny. panel A was convened and requirements public the reasonable received additional evidence in the PCA health, safety and welfare and the state’s 3, between appeal 1976, November and De- paramount concern the protection for 3, 28, 1976. January 1977, cember On the air, water, its land other opinion and natural re- court filed its and entered an order pollution, 1, sources impairment reversing July 1976, from or de- the decisions struction. and DNR and directing agencies PCA those issue for permits to the use of Mile Post 7 application permits

“3. Reserve’s for disposal a site Reserve. for the operation construction and of fa- disposal tailings cilities for on-land PCA, As to the the trial applied court the Mile Post location and to stabilize Minn.St.1974, 115.05, 7, subd. § and as to the delta Superior in Lake should DNR, 105.47, determining Minn.St. be denied. scope its of review was whether not the Reserve, Republic “4. Armco and agencies’ orders were “lawful and reasona- requested should applica- be to submit and “warranted” or “supported” by ble” the permits tions for to operate construct and evidence. The court opinion was of the facilities the disposal applying for on-land of tail- this test was consistent with ings Midway at the site. the Administrative Procedure Act set forth 15.0425. in Minn.St. Accordingly, the court Reserve,

“5. Republic Armco and was required held that it to in a engage required gather should adequate to * * “thorough, probing, in-depth review data and a comprehensive plan submit for judicial searching scrutiny of how and the stabilization of the tailings delta in why the agency determinations were actu- Superior. Lake ally adopted.” application “6. If permits is made for Midway alternative, for the steps discussing issues, should the the pref- court be taken develop open the opinion by and forth- its alluding hearing aced to the right relationship between Reserve “concern imaginary specu- officer’s with the state which will necessary possibilities,” to im- lative suggesting that the plement tailings disposal agencies “preoccupied on-land became at Mid- with remote way contingencies.” accomplish pass such The court delta stabiliza- declined protect public constitutionality statutory tion as on author- will health and ity taking additional evidence in the welfare. appeal PCA since it asserted the was issue Existing “7. environmental studies timely raised. adopted should be Midway greatest possible, extent with addi- to the respect possibility With of dam tional strictly studies specific limited to at Mile Post the court held that failure already areas not addressed. agencies’ findings were and conclusions

“8. development specific only meth- on unsubstantial “not evidence based acceptable ods both state Re- no on almost evidence at all.” All of but serve explored should be consulting agen- which will in- firms retained sure termination discharge the proposed to Lake had concluded that dams cies safe, greatest possible speed but the would be officer re- necessity without for ceasing opera- showing safety, of “absolute” quired rejected. court As Mile compared the trial of a site at Post 20 standard prudent 20 as a Post from impact use Mile Mile It was Post 7. undis- alternative, trial ques- that because of puted proximity feasible its to Sil- availability it because much of tioned ver selection of Mile Post 7 would United States Forest Ser- held approximately result three times the had the power the PCA vice. Since fugitive populated dust in the amount con- authority monitor oversee the Bay that area of Silver would result maintenance the dam at However, struction of Mile Post the selection was of opinion the court strongly testimony of a court relied health, safety, the welfare that projected that a reduction in state witness would be secure. people percent, of 97 plant implemented emissions stipulation by quality agreement the air some the length The court at discussed together with the storage underwater effect Post concerning evidence the of Mile tailings, would coarse achieve fiber level in the vicinity on the ambient air Silver 7 percent less than existing 75 levels. by was the that the Bay. impressed It fact possible it was not evidence indicated arriving factor in the con- A decisive at prediction an concern- unequivocal arrive clusion that there was no substantial evi- particulate levels or the ing suspended total justify rejection the dence to of Mile Post 7 fibers; that no state of asbestiform levels on the of air quality basis was the testimo- promul- has been Federal air standard Cowherd, Jr., ny Dr. Chatten a witness fibers; the and that gated amphibole At for the state. the Dr. agency hearing, essentially was fibers level of asbestiform Cowherd testified that on projection, his Bay, Hibbing, Virgin- in comparable Silver relied, which the officer estimated Range communities. The ia, and other Iron suspended particulate that total levels for hearing officer’s find- construed the court would Bay by increase 1.75 micro- Silver the elimination of all fugi- ings requiring meter grams per cubic as a result of the chemicals, by sprinkling, dust water tive proposed use of Mile Post 7. An increase of the court to be vegetation, which held microgram 1.0 from the 20 use of Mile Post A PCA witness testified unreasonable. acceptable was to be the found both plant emission control contemplated hearing officer and When he PCA. suspended par- total would reduce devices court, the trial testified before Dr. Cowherd (TSP) 65 tons to than 2 from less ticulates prior his acknowledged estimates had been per day processing plant, at the tons opinion erroneous. He revised his noted, staff the PCA was of the court microgram suspended 0.63 total project 7 that Mile Post was reasonable as a opinion particulates per cubic meter at Silver tailings imposed site if for water conditions short, the use of Mile Post 7. In quality and air fiber reduction quality pollution brought estimate of air revised tailings met were and coarse were sub- figure previ- which had level below on to merged. The court went stress acceptable found ously been the state. inaccuracy techniques of fiber-count by comparing The concluded the ulti- court errors of at least nine times on the allowed suspended mate levels of total estimated high side to one-ninth on the ac- low side in terms of cu- particulates micrograms per cording a Mayo Clinic witness in Federal 65, Duluth, 52, Paul as bic at St. meter assessing evidence bearing court. on Because Bay, anticipated Silver mass and size of fibers the ambient plant steps reduction in emissions and the air, opinion the court was of the in mitigating generation to be taken findings hearing officer’s were based on site, fugitive dust at factors assumptions which did not constitute “sub- prompted which at one time PCA evidence.” stantial permit approve issuance of a for Mile Post opinion was of the key trial then dealt with the court there was no The court evidence to impact quality reject on air substantial Mile Post 7 on issue opera- quality. construction and of air Bay generated basis court, discussing pact the impact Statement major testified that nine trial sites, at the two found resources on natural were necessary steps to acquire Federal for- in the insignificant differences effect only est land under Federal law. The not- timber, streams, fish, animals, on there was no ed assurance Mile However, great emphasis was water. available, become would and that if it were testimony adduced fact placed ultimately acquired, a period of 6 years of Mile indicated selection by the state elapse during might which either the plant “completely contrary was to the Post 20 be shut would down it would continue to of land use activi- of consolidation principle discharge tailings Superior. into Lake Ac- * * * up a third area to opening ties cordingly, the hearing finding officer’s activities.” The court stressed the mining prudent Mile Post is a feasible and alter- ancillary Mile Post was fact that was supported native held to be facility that it industrial existing evidence. substantial industry seeking to intrude into “not new that the The court found condi- area but an resources recreational a natural imposed on Reserve tions for the construc- many years.” concern on-going operation of a disposal tion and site at Mile testimony of the exec- court referred unequivocally had been by Post accepted the PCA who utive director of conceded and by Republic, the site was located Reserve Armco that wherever and as set major impact 8, 1977, have a on the envi- in our April supra. it would forth order of ronment, but that the differences would be The court held that permit those conditions that small and the environmental hazards adequate protect health, “to were the wel- by Post 7 be minimized the at Mile could fare, and and safety legitimate all concerns technology to it a best available make feasi- a public the as matter of law.” ble site. presented the issues One to this court factors, respect to economic it was With Superior by Lake Save Association and Si- hearing the of the court that opinion the erra Club was the trial court’s refusal to the inadequately probabili- assessed officer grant their motion to reopen. par- Those if ty that Reserve would be shut down claimed to ties have obtained newly discov- Mile 7. The permits denied for dollar evidence ered that wet-wall electrostatic year amounts for the had increased precipitators which had been installed payroll million, purchases of $55 a total plant to Reserve’s eliminate emission of as- supplies and material Minnesota $45 deteriorating fibers were bestos and would million, payable by and state and local taxes 97-percent the not effect reduction in to nearly $16 Reserve million. Minn.St. by emitted the plant, contrary fibers 116.01, 116D.02, 116D.03, 116.07, and subd. system being the was represented what 6, mandating were cited as greater consid- capable achieving. this to do Since had “business, commerce, trade, eration for in- implementing quality with the air stipula- traffic, dustry, and other economic factors” agreement, the court held that it was a by hearing than was accorded officer. for future matter consideration between by echoing The court concluded the concern parties. hearing officer that shutdown would have a disastrous on the eco- effect Finally, the trial court discussed at some well-being nomic dependent of families length influence the Federal district for Reserve a livelihood. court’s so-called “educational” session on officer; director, PCA considering prudent a “feasible and staff, members; and board and the DNR 116D.04, pursuant alternative” to Minn.St. It procedures staff. criticized those and 6, the trial court subd. discussed in some meetings manner which various other problems of acquisition detail the of a site by were held complying Post 20. the PCA as not entirely at Mile That area is with- statutory with the requirement open in the National Forest. The con- meetings. sultant who drafted Environmental Im- governs the denial decision that statute which from appeals was the court’s It unlawful, Post 7 was decisions, permits for 105.47, 4, par. DNR Minn.St. sub- unreasonable, supported by as follows: states evidence; issued, permits that be stantial appeal it “Upon being perfected, such conditions; agreeable mutually subject may brought be on for trial as other civil by togeth- plans submitted actions, and shall then be tried were reasona- conditions with er jury, without court determined protected ble, adequately practical, At upon the record. such trial the find- welfare; safety promoted public

public ings of fact made the commissioner meth- economical no other feasible prima facie shall evidence of the mat- reasonably is availa- mining taconite od stated, therein his orders shall be ters ble; in the plan otherwise and that prima facie reasonable. If deemed interest. public ap- the order shall determine reasonable, is lawful it from pealed Review Scope of If the affirmed. court finds shall presented in deter Two issues appealed from unjust, the order unrea- judicial ad mining scope review of sonable, evidence, supported or not First, when agency decisions. ministrative place make such order it shall to take ap acting court is itself as an the district appealed the order justified from as is respect to an adminis pellate tribunal before the record it.” same agency, is it entitled to the trative acting as a it when it is statute specifically applied deference receives court, this court confine or does appeals trial PCA decisions was Minn.St. of the administra scrutiny to the decision 115.05, subd. which read as fol- § only weight such agency, giving tive lows: as it would of district court the opinion “The shall be appeal heard and deter- precedent authority or persuasive accord by upon court mined the the issues raised any appellate of other in decisions found appeal of by the notice and return accord- Second, to extent what can jurisdiction? relating ing to the rules to the trial of appeals with from decisions dealing statutes actions, so far as applicable. civil Department of the commissioner of the motion application court of its own or on the dealing statutes Resources Natural any may, discretion, in its party take decisions the appeals from Pollution with evidence on additional issue of fact or Agency ap be reconciled with the Control novo, may try any or all such de issues the Administrative Proce provisions of peal no shall jury but trial be had. If the Act? dure shall determine court the action complicated the fact problem by is agency appealed the from is lawful and govern- the August 1976 statute before reasonable, is by the evi- warranted permitted the trial court appeals PCA ing involved, in dence case an issue of fact is evidence, whereas take additional the action shall be affirmed. Otherwise no provision. contained such statute DNR vacate may the court or suspend the ac- differences, the trial recognition of these appealed from in tion in as part, whole or opinions as to each separate wrote court may require, thereupon the case respects were although they in most agency agency matter shall remanded to the substantially identical. further action conformity for reviewing opinion that are of the We decision of the court.” this agencies decisions of administrative subsequent Effective at a date func- essentially the same performs Minn.St.1974, PCA, decision of by governed court and is as the district 115.05, 7, L.1976, repealed subd. was c. by Accordingly, the § of review. scope same 76, appeals gov and such are trial court thereafter deference to requiring rule usual apply. by provisions erned the Administra- does decisions

«23 15.0425, Act, 1974), Procedure Minn.St. which Cir. denied, tive 930, certiorari 421 U.S. 95 1655, as follows: 44 (1975); reads S.Ct. 86 L.Ed.2d O’Brien v. Bureau, Comp. Workmen’s 222 judicial review N.W.2d any proceedings “In 379 (N.D.1974). by any any agency court of decisions 15.0411, defined in section subdivision

as We have not heretofore squarely ad (including agencies those excluded from dressed role of the trial court when we agency the definition of section 15.- considering its review of agency deci 2) may subdivision the court affirm sions. Where the district court stat or agency decision of the remand the required grant ute a trial de novo' in proceedings; or it may case further appeals judicial from lower or quasi-judicial decision modify or if the sub- reverse tribunals, we applied have the “clearly erro rights petitioners stantial may standard, neous” since the trial court is prejudiced been because the admin- as acting then a court of first impression. inferences, finding, conclusion, istrative cases, infra, In a number of we have sub decisions are: or pursued policy silentio of examining agen “(a) In provi- violation of constitutional cy decisions directly, without according any sions; or particular deference to trial court’s de “(b) statutory In excess of the authori- termination. may What seem a needless jurisdiction ty agency; or or duplication of effort has been criticized and “(c) upon procedure; Made unlawful or discussed other courts but generally ad law; case, “(d) hered to. In the Knox supra, Affected other error of Appeals Court Fifth Circuit said: “(e) Unsupported substantial evi- “When, here, in view of the entire the appeal dence record as is from a submitted; judgment granting summary judgment Secretary, or affirming the

“(f) capricious.” deci- Arbitrary or Secretary, sion of the the functions of Ry. Steamship In Brotherhood of & virtually this Court are the same as those Clerks, State, Etc. v. Minn. already performed by the court, district (1975), we reviewed decision of N.W.2d but, performed nonetheless are in- district court which affirmed the con- dependently and carefully and without appointed by of a examiner clusions any presumption that the decision of the rights. commissioner of human In af- district court is correct.” Knox v. Finch, court, firming the district we referred to 919, (5 1970). 427 F.2d 920 Cir. 15.0425as to the scope Minn.St. relevant of court, appeal the district but stated that An in which the review district court had standard of was whether employee our review the reviewed an discharge by the Sec- conclusions, findings, retary and order of the dis- of Treasury the was considered in erroneous,” court were “clearly citing Polcover v. of Secretary Treasury, trict 155 U.S. Balafas, 94, 338, re Estate of 293 Minn. 198 App.D.C. (1973). In 477 1223 F.2d There (1972). 260 we Since were not re- held appeals N.W.2d that in agency court from viewing a trial de as was done in the novo decisions where there no trial de novo case, “clearly our reference to the it was scope Balafas limited to the precise of review inap- erroneous” test was inadvertent and utilized court trial without paying conclusion, reaching this we propriate. specific deference to that court’s decision. support jurisdictions in other where find 477 F.2d 1226. It observed in a footnote rejected courts have appellate “clearly that “all court of appeals decisions manifest examining pro- standard in a fresh look at erroneous” the record and an indepen- agency of decisions which have been priety judgment dent based thereon. [Citations to the district court and there appealed Only on rare occasions is the omitted.] Finch, only on the record. Knox v. opinion decided of the district court mentioned and (5 1970); F.2d 919 Cir. First Nat. Bank 427 even rarer is there a reference to whether Smith, Fayetteville (8 scope v. 508 F.2d 1371 of review it utilized was correct.” 824 legislature may 1226, constitutionally Federal court not note 5. The F.2d

477 identi- that its review was delegate judiciary to note duties which are went on court, and that the district essentially that of cal with administrative in character. We “despair for delay, expense, and duplication, consistently viewed with disfavor have stat- were inherent litigant” employee specify trials de novo and which utes interposition and that system such attempt original jurisdiction to confer on no viable seemed to serve district court policy over matters which trial courts However, the court declined purpose. responsibility legislative of the and ex- court’s re- to the district deference accord branches. The repeal ecutive of Minn.St. To agency determination. do of the view 115.05, 7, 1974, may subd. have stemmed § said, appropriate so, would not be the court recognition principle. We from limiting appellate ‘rule’ our because “[a] called repeatedly attention to the dan- of whether the to a determination review eroding the ger guarantee barriers which scope of proper utilized the district powers. separation v. Steenerson G. review, clearly (by-passing erroneous or was Co., 353, 69 Minn. Ry. 72 N.W. 713 N. difficulty application) questions Co., 57, (1897); Ry. v. G. N. 130 Minn. State either likely application amount most will (1915); 247 v. Duluth Mi. & 153 N.W. State stamp which instance we a rubber —in Co., 383, Ry. 246 Minn. 75 I. R. N.W.2d 398 shifting delay the needless merely be will case, (1956). In the we said on Steenerson ap- court to the court district reviewing a rate decision of the Railroad pres- we into the test degenerate peals —or Commission: and Warehouse 477 F.2d ently utilize.” legislature this intended to “If expressly state courts have A number the court provide put should itself in reached the same result. implication commission, try place mat Commr., 252 Ore. v. Insurance Wright State novo, and determine what are ter de rea (1969); Supply Dis- 283, P.2d 419 Farm 449 rates, regard without sonable to the find tributors, Washington v. Utilities & Inc. commission, such ings of intent can 446, Comm., 518 P.2d 83 Wash.2d Transp. out, as a statute be carried which so v. Board of (1974); Way, Inc. Guildner 1237 would be unconstitutional. The provided 70, P.2d 332 Colo.App. 35 529 Adjustment, fixing legislative of rates is a or adminis Comm., v. Oil Conservation (1974); Grace act, judicial not a one.” trative Steener 205, (1975); Tripp 531 P.2d 939 v. 87 N.Mex. Co., 353, 375, Ry. 69 Minn. son v. G. N. 72 Cal.Rptr. Swoap, 17 Cal.3d 713, 716. N.W. (1976); Piper Neighborhood v. P.2d 749 case, to the instant the PCA applied As S.D., (1976). Corps, N.W2d Youth statute, repealed, now appeal may have in accord with the views We are unconstitutionality close to perilously come expressly cases cited and by the expressed by permitting court to “take additional tac we have heretofore a rule which adopt try any issue of fact or evidence to make accepted, that it is our function itly de issues novo.” all such examination of an adminis independent and decision and agency’s record trative adhere also to the fundamental We to own conclusions as the at our arrive concept that decisions of administrative determination without ac of that propriety a agencies enjoy presumption of correct to the same any special deference cording ness, by and deference should be shown by the trial court. conducted review agencies’ expertise the courts to and their knowledge in the their discussing precise special stan field of tech Before the education, training, experience. and apply to review of administra nical which dards Corp. v. they emerged as have Boston Television F. C. agency decisions In Greater tive C., 388, decisions, U.S.App.D.G. to 143 444 F.2d 841 appropriate it is prior our denied, 408 91 govern (1970), certiorari U.S. general principles which reiterate 2229, 2233, (1971), the cases. 29 L.Ed.2d 701 dealing with all such S.Ct. courts in our

825 procedures reviewing the license court was findings “[The involv- officer’s] Communications Commis- of the Federal ing policy determinations, analysis risk sion. It stated: predictions based on the frontiers of given be not only must “Full allowance scientific knowledge must subjected be or opportunity agency, for the ‘thorough, probing in-depth re- examiners, to observe the de- least its view’ provided for the ‘lawful and witnesses, but also for the meanor of reasonable’ statutory standard. While reality agency typically matters in- must respect Court the decisions of expertise volve a kind of —sometimes the administrative agencies, nevertheless, sense, technical in a scientific sometimes searching judicial a scrutiny of how and in specialization more a matter of kinds why agency determinations were ac- regulatory programs. Expert discre- tually adopted is required by the statute. secured, crippled, not the re- is “We view that evidence, for quirements substantial find- ‘substantial evi- analysis.” ings 1) and reasoned 444 F.2d dence’ test is meant: such .relevant a evidence as reasonable might mind ac- cept adequate as support conclusion; went on observe where court signals 2) of danger there is a combination more than a evidence; scintilla of 3) has taken suggest agency evidence’; more than ‘some 4) more than problems “hard look” at the salient evidence’; ‘any 5) evidence con- genuinely engaged “has not in de- reasoned sidered in its entirety. There are correla- cision-making” duty it is the tive rules principles that must rec- intervene. F.2d 851. On the other ognized aby reviewing court, 1) such as: hand, agency if the properly performed has manifestly unless unjust, inferences must functions, the those court should exercise accepted even though it may appear affirm, if might restraint and even it contrary inferences would be better it reached a different conclusion had been 2) supported; judicial substantial defer- or policymaker. the factfinder The court ence to fact-finding processes “the stressing concluded need con- agency; 3) administrative the burden junction articulated reflec- standards and upon appellant is establish findings, tive furtherance of even-handed findings of the agency supported are not law, application impermissi- rather than record, by the evidence in the considered whim, influence, improper misplaced ble entirety.” in its zeal.” F.2d 852. We endorse Fed- views eral court’s as to circumstances As an abstract definition of “substantial may a court properly closely under which evidence” as general a recital of the decision, scrutinize an administrative apply rules which in reviewing agency deci- exercising well as its views the need for sions, the trial court’s law, statement of the judicial judicial restricting restraint and for opinion our is correct. The PCA “has no a narrow of responsibility, functions to area quarrel” this definition so far as it judgment lest it substitute its for that of agrees The DNR goes. that the “substan- See, v. agency. Gibson Civil Service tial evidence” test and the other criteria set Board, Minn. N.W.2d 712 forth Minn.St. 15.0425 are the correct (1969). judicial standards review. Save Lake Turning parties to the contentions of the Superior Association Sierra Club concur governing judicial here us scope before position. in that It contention of decisions, of review of PCA and DNR both PCA and DNR that in applying the court, noted, applied the trial as we have appeal statutes the facts of this case the the “substantial evidence” test which it trial court was to determining limited either held was correct under Minn.St. 15.- agencies’ whether the were conclusions “ar- 115.05, 7, Minn.St.1974, 0425 or subd. § bitrary capricious.” addition, In precise holding they 105.47. The of the Minn.St. court was as follows: exception position take trial

826 based on Gibson “predictions and the opinion City court’s of White Bear Lake knowledge” are of scientific the frontiers cases where the standards of the Adminis- searching judicial a more scruti- entitled trative Procedure Act were in applied. fact agen- evidence on which the than other ny Minneapolis Van decision laid to rest They argue were based. decisions cies’ confusion by caused Dahlen Transport Inc. that, predictive factfinding respect with Hahne, 218, 261 v. Minn. 112 N.W.2d 630 health, public deference to the area of in (1961), which seemed apply a test “any agencies should be even administrative evidence” or a “scintilla of evidence” in greater. reviewing agency factfinding. We said evi- Van equates Minneapolis “substantial the provisions and “reasonableness” tests with one 15.0425 of Minn.St. dence” Administrative Pro- argues Act, It adopted of “lawfulness.” Minn.St. by legislature cedure fol- 15.0425(e), refers to “substantial evi- lowing case, the Dahlen evidenced an intent dence”; 105.47, alluding to Minn.St. orders “to make uniform the scope judicial re- evidence”; by the and Minn. supported “not view of the decisions of all administrative St.1974, 115.05, 7, governing agency subd. § factfinding agencies,” including those ex- by which is “warranted the evi- action pressly excluded from the definition of dence,” properly applied by all were “agency” by 15.0411, Minn.St. subd. 2. and conform to the “substantial trial court However, even that definition does not ex- our ap- rule which decisions have evidence” either the clude DNR or PCA. Our subse- proved. quent decisions have uniformly applied the “substantial evidence” rule respect this court has reviewed years In recent findings of fact agencies. administrative increasing number of administrative decisions, In the Paul Area including St. Chamber of those Civ Commerce agency decision’, Board, supra, the Public which was a rate Service Com case decid- il Service mission, Commission, the Commissioner of Public Wel the Public ed Service we fare, Rights, of Human approval the Commissioner reiterated with what we said in Council, Quality Van, Environmental the Minneapolis distinguishing between PCA, DNR, the and the Water Resources judicial functions in reviewing factual mat- Board, v. Civil Service 285 Board. Gibson ters and the more limited latitude allowed 123, 171 (1969); Minneap N.W.2d 712 Minn. reviewing legislative decisions of admin- v. P. Van & Whse. St. Terminal Whse. olis agencies istrative where social policy is in- 294, Co., (1970); 180 288 Minn. N.W.2d 175 volved. In both cases we held that Minn.St. Distributing Quast Co. Inc. v. Trans Quinn required 216.25 the district court to deter- Inc., 442, fer, 288 Minn. 181 N.W.2d 696 mine whether the commission’s order was County Dept. Bd. v. (1970); Polk Welfare “lawful and reasonable” and in both cases Welfare, 301 Minn. 223 N.W.2d Public we found statute and the Administra- (1974); Group Mn. Pub. Int. Res. v. Mn. 137 Procedure Act to be compatible. tive Q. C., Minn., (1975); 237 N.W.2d 375 Env. permits Minn.St. 15.0425 the court to Co., Minn., Bell Tel. re Northwestern 246 or modify reverse agency decision of an (1976); City State v. of White N.W.2d rights if the substantial petitioners Lake, Minn., (1976); Bear 247 N.W.2d 901 may prejudiced have been because the ad Area C. of C. v. Minnesota Pub. Paul St. finding, inferences, ministrative conclusion Comm., Minn., (1977); 251 N.W.2d 350 Serv. law, decisions were affected errors of County Abstract Co. v. Richardson Dakota unsupported by substantial evidence in view Commr.), Minn., (Human Rights submitted, entire record as or arbi (1977); Markwardt v. Minn. N.W.2d trary capricious. Minn.St.1974, Under Bd., Minn., Resources 254 N.W.2d Water 115.05, governed subd. which then (1977). In all of these cases we have § PCA, the court shall referred to the standard of re affirm if the action of expressly agency reasonable, forth in the Administrative Proce is “lawful view set and is Act, 15.0425, except dure Minn.St. warranted evidence in case an issue

«27 respect to the involved.” With natural of fact is resources with which this state DNR, provides: 105.47 Minn.St. has been endowed. Accordingly, it is in “ * * * public interest provide court shall determine to If the an adequate appealed from is lawful remedy protect air, civil water, order land reasonable, If it shall be affirmed. and other natural resources located with- appealed that the order

the court finds in the state from pollution, impairment, unreasonable, unjust, sup- or not from is or destruction.” Minn.St. 116B.01. evidence, it shall make such by the ported “Natural resources” are defined in Minn.St. ap- place take the order order to 116B.02, subd. as follows: justified by as is the record pealed from “Natural resources shall include, but it.” before to, not be mineral, limited all animal, Reading together these statutes as we have air, botanical, water, land, timber, soil, them, construed we hold that the heretofore quietude, recreational and historical re- by the district court and scope of review sources. Scenic and esthetic resources court in the case before us is whether this also be shall considered natural resources decisions of the PCA and DNR or not the by any governmental when owned unit or reasonable, a test which we are lawful agency.” they whether or not are affect- equate with 5 of that Subd. section “pollution, defines law; and whether or not ed errors impairment or destruction” as follows: findings unsupported by are substan- their “ ‘Pollution, evidence; impairment or and whether or not their destruction’ tial any is conduct arbitrary capricious. any person or which vio- conclusions lates, likely violate, or is any environ- Legislative Policy quality standard, mental limitation, regu- years legislature lation, of Minne- rule, order, In recent license, stipulation agencies created a number of sota has agreement, state or comprehensive poli- establish conservation instrumentality, agency, or political sub- governing cies within state the activi- thereof which division prior issued business, industry, individual citi- ties the alleged the date violation occurred or zens, government. The atten- and units likely is to occur or any conduct which improving tion devoted to the environment materially adversely affects likely or is natural resources reflects a preserving materially adversely affect the environ- held commitment the state to strongly ment; provided ‘pollution, impair- air, water, wildlife, and for- protecting ment or destruction’ shall not include con- impairment from further and encroach- ests violates, violate, duct which likely Law, Rights The Environmental ment. standard, limitation, any such regulation, 116B, pur- c. sets forth its broad Minn.St. rules, order, license, stipulation agree- poses as follows: permit solely ment or because of the in- legislature “The finds and declares that troduction of odor into the air.” person by right each is entitled responsibility of the state in its sover- protection, preservation, and enhance- capacity is eign set forth in c. Minn.St. air, land, water, ment of and other natu- imposes among 116D other duties the ral resources located within the state and obligation to— person that each has the responsibility to “[pjrovide for reclamation of mined protection, preservation, contribute to the lands and assure that any mining is ac- enhancement thereof. legisla- in a complished compatible manner policy ture further declares its to create protection.” environmental Minn.St. and maintain within state conditions 116D.02, 2(o). subd. under which man and nature can exist in productive harmony present Throughout in order that the statutes are policy state- generations may enjoy recognizing and future clean ments that often there are con- water, land, productive air and and other preserving flicts between the environment ed, economy. promoting and Minn.St. whether it be at Mile Post 7 or at Mile 116D.03, 2(c), depart- subd. states that all The Post 20. difficult question threshold agencies and shall— ments which faced the hearing officer and the develop “[i]dentify and methods and environmental agencies, us, and now faces that will ensure procedures contemplated that environ- is whether the operation of values, and tailings mental amenities whether an on-land site only would not “ad- not, given will be quantified versely” least but also “materially” affect making air, water, land, in decision equal consideration and adja- natural resources along with economicand technical consid- 7, cent to Post and if so whether Mile erations.” 20 is a “feasible prudent” and alterna- PCA and tive site. DNR have in effect vein, 116D.04, that pro- Minn.St. subd. although the state held of the science of a hibits the issuance for natural inexact, is danger likelihood of management and if development resources health public proved, cannot be if the im- to have an likely impact it is adverse on the pact project is ultimately found to long as environment “so there is a feasible materially have a adverse effect on the prudent alternative.” The section con- environment, it is prudent more to minimize stating, cludes “Economic considerations impact diffusing it sparsely into a justify alone shall not such conduct.” This settled area than into one which statutes, is more policy is echoed elsewhere in the densely populated. It 116B.09, therefore Minn.St. 116B.04 and becomes subd. 2. responsibility our to examine the evidence Finally, under governing Minn.St. c. which these on conclusions are based and the Pollution Agency, legisla- Control determine whether they are well founded. following language imposes in the ture agency weigh duty importance on the economy against impairment Tailings The Basin Dams

the environment: tailings The design basin for Mile Post 7 exercising powers pollu- “In all its 22,000 contemplates 23,000 between lin- agency give control shall tion due consid- eal feet dams to enclose an area of some establishment, eration to the mainte- square miles. One will be among the 30 nance, operation expansion of busi- largest dams the world. To minimize the ness, commerce, trade, traffic, industry, fugitive dust which will emanate from the and other economicfactors and other .’ma- basin, it will be covered with 10 feet of affecting terial matters the feasibility water. After 30 years of operation it practicability action, any proposed anticipated that the basin will be filled with to, including, but not limited the burden only a small area open water municipality may tax which will remain. The rest of the basin dams therefrom, pro- result and shall take or will, by time, and dikes be covered reasonable, for such action may vide vegetation which part will be a of an feasible, practical under circum- on-going technique for reducing air pollu- 116.07, stances.” Minn.St. subd. 6. by preventing tion wind and water erosion Clearly, it legislative policy is the in the basin and on the dams and dikes. permits will, this state that of the kind here part, The basin contained sought shall be issued for industrial ridges of the bedrock Lake Superior high- development if there is substantial evidence lands. At the main largest area of the dam proposed activity 1,500 that the “is likely to ma will be the base feet thick and 190 terially adversely affect the environment.” high peak. at its slope feet The dam will be 116B.02, 116B.01 and Minn.St. subd. 5. In angle at an of 6 horizontal feet to each it the case before us is conceded all vertical The design foot. safety calls for a that an industrial parties operation 1.5, of the margin of say is to there are 50 proposed by kind Reserve will “adversely” percent resisting more forces than activat- affect the environment wherever it is ing locat- forces. basin itself will contain dikes, of which is in- each alternative.” We eight “splitter” are of the opinion that will mini- self-contained and to be tended this statute has no application where the that more than a frac- the likelihood mize safety proposed structure is undis- contents will be released of the basin’s words, In other puted. if the design, con- breach. event of a struction, and maintenance of the dams unlikely it they make will impair natu- found that coarse hearing officer resources, there is ral no need to consider in dam construc- which will be used and prudent feasible alternatives. at Never- purpose; for that that are suitable theless, dam, we note in largest passing 30 to 40 feet of site of there are if the provide suitable foundation substantial factors which clay against will militate a consolidated; expelled clay and the functioning water is effectively dam’s more at Mile underlying the basin and that bedrock Post 20 than one located at Mile Post 7. present problems no structural affect- will Post 20 would require a structure some stability. expressed prin- He four ing dam 53,000 length feet 23,000 compared to concerns in addition to location: Foun- cipal at Mile Post 7. The feet terrain at Mile material, dation, design, construction 7, 20 is flatter than Post Mile Post has Nowhere, procedures. how- construction barriers, fewer natural and the underlying ever, specify any does the officer impervious. is less predicted soil uncol- engineering problem which will increase the seepage during operation lected would beyond of dam failure that which likelihood gallons per be 750 minute compared to 180 any face such structure which is well would gallons at Mile Post 7. Post-operation un- and well built. He does conclude located seepage predicted 10,000 gal- collected catastrophe in the event of a the dam- per minute at compared lons Mile Post 20 to adjoining residences and to Lake age to gallons 500 at Mile Post 7. In the event of greater would far at Mile Post be major catastrophe 20, at Mile Post tail- 20, consequently than at Mile Post he 7 ings discharged and silt would into tribu- prudence would dictate the concludes taries of both the Cloquet River and Lake of a safer site. choice Superior. concede DNR and PCA that if the dams according to design are built and if all experts any None of the unexpected contingencies are properly met designed testified that the dam as parties agencies the dams cannot fail. Both share be unsafe.6 would We held in North Subur hearing officer’s misgivings with re- Comm., ban Sewer Dist. v. Water Pollution Reserve’s intention spect perform to ac- 524, 281 Minn. 162 (1968), N.W.2d 249 cording design. they Based on what might where the events which lead to water regard forthright as Reserve’s less than be- pollution contingencies are remote and un past, agencies in the havior assert that occur, likely to “factors which counterbal hearing officer was correct in prefer- prevail.” them The Federal court ance such as Mile ring an alternative site 460, v. Brinegar, Life of Land 485 F.2d 20.5 (9 1973),ruling pollution on a 472 Cir. water issue, 116D.04, that there was 6, held no need to con Under subd. no Minn.St. alternative granted likely where it is sider an solution “whose effect permit will impairment ascertained, of natural “so reasonably cause resources cannot be there is a long prudent feasible and implementation whose is deemed remote entirely sup- Casagrande, 5. These concerns are without 6. D. R. DNR and PCA consult- Judge ant, port engineer in the record. Edward J. Devitt in a letter to a PCA staff dated “ * * * $200,000 penalty imposed against 7, 1976, stated, July [U]nless Mining failing considerably redesigned for “bad faith conduct” in dams less safe “truthfully fully” respond interrogato- designs investigated, than the we it is utter Reserve, against speculate in the Federal court action ries nonsense to even on the conse- withholding pertinent quences information to alter- of a failure because these dams would disposal. native methods not fail.” 830 citing degree Natural Resources “reasonable” speculative,” water, air, of purity Morton, Council, Inc. v. 148 U.S. Defense and land 116.06, resources. Minn.St. subd. 827, (1972). 5, Other 458 F.2d 3,

App.D.C. defining pollution, air refers to con- reached a similar result. Port courts tamination which would interfere “unrea- Ruckelshaus, v. Assn. U.S. land Cement sonably” enjoyment with the of life or prop- 308, (1973); 486 F.2d 375 Carolina App.D.C. 116B.02, erty. 5, Minn.St. subd. in defining States, v. Study Group United Environ. refers to pollution, conduct which “ma- 416, (1975); 510 F.2d 796 No. U.S.App.D.C. terially” adversely affects likely or is Reg. v. U. Nuclear Env. Coalition S. Anna affect the environment. 116D.04, Minn.St. Comm., U.S.App.D.C. 533 F.2d 655 subd. forbids state “signifi- action which the Carolina case it was undis (1976). In cantly” affects the quality of the environ- that, although the probability of a puted As we ment. construe the hearing officer’s remote, its conse accident conclusions, nuclear adopted by the administrative catastrophic. would be The court quences agency, required he design that held: there of the construction dam “eliminate” the risk failure. There point probabil- a at which the of dam was no “There is substantial support a may finding evidence an occurrence be so low as to that the loca- ity of tion of the dam at Mile totally unworthy presented of con- Post 7 a it almost render we, public threat to significant safety, health or Neither nor the A.E.C. on sideration. record, finding and no such was lightly would treat the horri- made. this consequences of a Class 9 accident. ble apparent It is from the findings and rec- probability of the minimal Recognition ommendations of the hearing officer that equatable is not with non- event such an candor, lacked confidence in coopera- he consequences.” Caroli- recognition of its tion, faith good officials, of Reserve Study Group v. na Environ. United noted, we have questioned and as he States, 510 F.2d of their building likelihood and maintaining designed. treating the dam We have court was also with a license alluded to court’s finding a the Federal constructing power plant nuclear in that Reserve Anna, in some of Objections dealings were was derelict its with supra. North based However, we are prepared that court. not part possibility filling on the a reser- in company that the will risk the earthquake. an to assume might trigger voir persons innocent by casually lives of disre- appeal board found that the cre- agency garding responsibility to construct a fa- of the lake did not threaten to reacti- ation it, cility perpetually which will remain secure. under and that the site was vate a fault imposed issuing permits The conditions in affirming, stable In a one. Federal on-going monitoring supervi- guarantee court noted that Federal statute and state, by the and Reserve and its own- require not a sion regulations totally do risk-free all have assumed risks and liabilities siting only “adequate ers protection but operation out of the Mile Post 7. arising safety public.” health and of the No. Anna circumstances, such we hold that it Comm., v. Nuclear Under Reg. Env. Coalition U. S. deny Mile 7 that, was error to at Post although F.2d 665. The court held agencies an insofar as the based their decision guarantee there was not absolute that, reactivated, finding although a dam at Mile the fault would not on a be “[a]bso- safe, be siting lute risk-free is Post 7 would Mile Post 20 was similar to other abso- positions arguments prudent lute “feasible and alternative.” that have rejected by been the courts.” Potential, Timber, Impact on Mineral Relating the Federal rule to Minnesota Water, Wildlife, Fish, and Land Use

law, significant it is that none provi- sions in our environmental statutes considering estab- the factors which are to be that guarantees a standard weighed determining lishes “abso- whether Mile Post safety. alternative, lute” Minn.St. 116.01 refers to a prudent is a feasible and that Mile Post 7 site hearing found sometime the future.7 officer Of more im- any potential concern, however, min- not interfere mediate the opinion would was destruction of tim- development, eral officer that construction of a comparable would be which- resources basin at Mile ber Post 7 would within be chosen, loss wildlife site was ever “North so-called Shore corridor” and would Post 7 would result at Mile habitat inconsistent with development be land-use Only passing other areas. ref- migration to He pro- for that area. concluded that without com- made to wildlife was development erence at Mile posed Post 7 would not agencies two sites. The concede paring expansion an simply existing be of an in- Post and Mile Post 7 were both Mile use but would dustrial the creation of a for wildlife. only fair habitat facility. major new industrial As to Mile it Post he found that would not be 7 out miles streams at Although of 9.7 incompatible principles with land-use be- destroyed 7 which Post would Mile cause it has been committed to any streams, designated as officially trout been use, conceding, however, other that neither 5.1 at compared to miles of streams it disturbed. has been designated, have not been 20 which so Post evidence indicated that the uncontradicted been What has described as the “North miles Mile 7 actually about 2 only enjoys corridor” no official recogni- Shore fishing quality afforded protection by by regulation tion or law “fair,” while the remainder of the even unspecified area of dimensions. “very poor.” described as were are, streams course, large There industrial com- agencies turbidity that contend The now pounds located on the shores of Lake Mile waters at Post 7 would downstream Harbors, at Bay, Two affect anadromous fish in the adversely only Duluth. Mile Post 7 is miles from by point- plant River. Reserve counters Beaver present taconite at processing the Sil- Highway out a waterfall at No. 61 ing that already which is Bay, extremely ver an beyond spawning lake fish from prevents 20, large facility. industrial Mile' Post on point. hand, that remotely is the other located from any existing enjoys industrial area the lost 39 acres of lakes would be Some afforded national forest. Of protection at Mile Post 7 without such affected 7,320 acres, land at Mile Post or 84 the hand, Post 20. the loss Mile On other owned, publicly 4,420 is percent, whereas tailings drainage basin area at Mile Post 7 acres, percent, public- or 45 of Mile Post 7 is miles, square removing be 9.1 6.9 would The ly agencies owned. concede that Mile watershed, compared to 12.6 percent “highest frequency Post 20 would have the 20, removing at Mile Post square miles 36.2 impact,” say which is to it would of visual hearing of the watershed. The of- percent compared aesthetically be more obtrusive destruction, impair- that the ficer concluded visibility. Mile Post which is lower ment, or of water pollution resources would Mile less at alternative sites than at Post be testimony part There on own agencies’ witnesses that because open up entirely 20 would new Mile Post question troublesome concern- most would violate principles. area it land-use ing impact natural resources is the Those are set in the principles forth Mid planning. hearing of land-use matter way Supplement to the Environmental Im respect found in this Mile Post officer pact prepared by Barton-Asch- Statement alternative, assign- least desirable 7 was the the DNR and man Associates for PCA opera- reason the fact ing as one February 1976 as follows: mine time of the would extend in be- plan- use capacity basin, following regional land physical of the “The yond disposal appear emerging: the creation of requiring ning principles another Reserve, Klohn, Post 7 could for Earle Mile basin be made hold 7. A dam consultant years. design tailings some modifications in stated that with A Encourage supplemental consolidation of “1. statement of policy and land use manageable regional activities. purpose U.S.C.A., is found in 16 528, as § “2. eliminate further in- Minimize follows: activities into the trusion of man’s natu- policy Congress “It is the ral resource recreational oriented areas. the national forests established and or consolidate “3. Eliminate conflict- shall be administered for outdoor recrea- in the ing Voyageurs- land use activities tion, timber, watershed, range, and wild- prime shore BWCA north recre- (Italics life and fish purpose.” supplied.) corridors. ation/scenic Mile Whereas is in relatively close development “4. Minimize of re- proximity to the Silver Bay processing activity source oriented so as to maintain is plant, Post 20 some 16 miles re- the natural recreational character of Applying the moved. land-use principles to

the area. referred, which we have evidence com- “These have not principles been estab- pels finding not, that Mile Post 7 is as the specifically public lished action but held, a new officer industrial devel- by past tend to be supported emerg- it is opment, but rather the expansion of an public Applied, ing they actions. would existing industrial use. support the consolidation of pro- mineral Clearly the selection of Mile Post cessing adjacent and industrial activities principle 20 does violence of consoli existing princi- concentrations. These 7,320 dated land uses. A total of ples support protection major acres of rec- use, land would be removed from public reational corridors further en- 7,000 preserve options requiring croachment to future construction of feet of eliminating conflicting 20,000 and incompatible roads and feet of spurs. railroad (Italics supplied.) utilization.” 5,326 Wildlife habitat of acres would be destroyed, moose, removing cover for tim finding We hold that of the DNR and wolf, fisher, marten, ber spruce grouse, the Midway PCA site as a “[u]se affecting bear, as well as habitat of incompatible basin would mink, muskrat, otter, hare, principles” with land use unsupported by woodcock. substantial evidence. Consequently, It is an area which 20 or percent is conclusion that the standpoint birch, covered such aspen, hardwoods “[f]rom Mile planning, land use Post 7 is the least oak, maple, roughly and and per or 40 of all the desirable alternatives” cannot be conifers, balsam, cent consisting of white sustained. spruce, jackpine, pine, white pine. and red indicated, It has we the lowest

As deforested area of the Post 20 is entirely the Superior located within sites considered. Nation- The purposes al Forest. for which national The of a operation tailings basin at forests are established and administered are major Mile Post 20 would have a noise U.S.C.A., forth in 16 set 475: § “ * * * 3,400 acres, impact on and somewhat less national No forest shall be 2,900 impact approximately acres. Such established, except improve pro- entirely intrusions are inconsistent with the the boundaries, tect the forest within or purposes policies for which national securing purpose for favorable con- forests are created maintained. What flows, ditions of water and to furnish a Philip said in Judge Neville Izaak Walton supply of timber continuous for the use Clair, v. League of America St. 353 F.Supp. and necessities of citizens of the United (D.Minn.1973), where he States; was con purpose but it is not or intent struing the Wilderness Act as it applies to section, or of said provisions, of these Boundary Area, Waters Canoe authorize the inclusion therein of lands articu therein, philosophy lates a to which the mineral we more valuable for or subscribe. supports than It agricultural purposes, principles for forest land-use for which mini (Italics supplied.) purposes.” mize “further intrusions man’s activities

«33 recreational ori- dust natural resources emissions in the into the air. The Federal * * * to maintain the natu- thereupon accepted, ented areas and continues to retain, character area.” pendent and recreational jurisdiction ral to enforce the observed: Judge Neville laws of Minnesota governing pollution. air trial, the conclusion of mining At that wilderness “It is clear re- days incompatible. quired hearings, Wilderness exists be- are court on 20, 1974, yet enjoined upon April man has not intruded it. Reserve cause from dis- charging was settled wastes into As the United States Lake vanished, discharging wilderness disap- amphibole frontiers fibers into the air, except for effective on the peared following inaccessible other- day. The commercially injunction useless areas. As court’s as to pollution wise then air was to few true extend until Reserve showed today but wilderness areas compliance penetrated by regulations, civilization with all state including remain. Once Air Pol- activities, Regulation Control (APC) man made it cannot be lution 17. That regulation provides now regained perhaps years. hundreds of part as follows: recovery period meaningless is 17 Emission “APC Standards for As- to come. The destruction is generations bestos mining, logging off irreversible. So “(a) Definitions: The following defini- activities, they are anathema to and other phrases of words and tions are controlling values.” all wilderness purposes regulation: for the of this has been set Superior National Forest * * * * * * the forest for by Congress protect aside “(3) ‘Asbestos’ means any six natu- recreation, wildlife, and other con- outdoor rally occurring, hydrated mineral sili- We have no hesitation purposes. servation Actinolite, amosite, cates: anthophyllite, holding that the destruction or removal crocidolite, chrysotile, and tremolite. relatively 8,680 acres from such wild it in order to devote to industrial de- area ****** totally incompatible with ac- velopment “(7) ‘Manufacturing operation’ means cepted principles. land-use We confi- processing of produc- asbestos government adopt would the Federal dent any product containing asbestos, tion of exchange were view if a land similar exception with the of any process in sought. containing which an asbestos material is sprayed. Quality

Air brought the bient air of Silver Company waters of On discharge February an action in Federal district court to Lake of 2, 1972, fugitive Superior. Bay against and waste into the the United States dust The into the am- States Mining enjoin of liquid or solid. material, which exists in a “(8) ‘Particulate matter’ ^[******] other than uncombined finely divided form as a means water, Minnesota, Michigan, and Wisconsin and ^[******] groups various environmental were later “(11) purposes For of this regulation a plaintiffs alleged

joined parties. The product shall be deemed to contain asbes- riv- governing violations of Federal statutes tos if a detectable amount of asbestos is pollution, and water ers U.S.C. §§ product in the present or in material jurisdiction 1160. The court invoked goes product. that into the A detectable under Federal statute 28 1345and U.S.C. §§ amount of asbestos is defined as that 1331. by detectable amount the methods of x- diffraction, progress After the trial had been in ray petrographic optical mi- time, 8, 1973, emphasis on June of croscopy, some other approved by method litigation centered on the abatement of the Director.” the order was occur) the effect of effects Since response “dose relation- plant, appeals the taconite the court of ships” (which close quantify the association be- hearing, Reserve an immediate lift granted disease-producing tween exposure levels of injunction, granted stay, a ed incidence of disease) are not chronology proceedings of which are set ascertainable on the basis of existing data. brings above. This us then to the forth F.2d 508. The court went say on to question of the extent to which our narrow “while the actual level of fibers in the air of are circumscribed decisions al unknown, functions is essentially Silver may it reached in the Federal court. On ready said that fibers are present at levels 14, 1975, appeals the court in a higher March significantly than levels found in thorough comprehensive opinion, ren another Minnesota community removed a decision on the merits of the air this air dered contamination.” 514 F.2d 511. which viable pollution community issue remains and The referred to is the so-called Mining Paul, v. Envi city Co. enforceable. control St. where the evidence ronments] Agency, Protection 514 F.2d 492 to the presented Court indicated a concen- 1975). (8 parties litigation 7,000 to the per Cir. tration of fibers cubic meter com- governed by 62,600 that per in this court decision. fibers pared to cubic meter in the Accordingly, appropriate it is to discuss in Bay area. The court Silver concurred in findings detail finding some standards court’s the trial that fibers similar appeals the court of approved in or to amosite or identical asbestos were con- to have a better understanding der of their tained in Reserve’s discharges but noted it relationship to the selection an on-land was uncertain whether the disease effects site, judicial review of which is may attributable amosite be extended to of the state courts. responsibility fibers or other whether different forms of possess asbestos pathogenic different prop- in Federal court introduced plaintiffs case, erties. In either it significant the taconite ore mined evidence impartial the court testimony indicated variety Reserve contained asbestiform discharges present Reserve’s a threat amphibole cummingtonite- mineral public health. The appeals court of went processing and that in the grunerite, hold evidence supported a were emissions ore there into ambient finding that Reserve was in violation of which had the properties air of fibers 3, 5,9 APC APC APC 116.- Minn.St. It asbestos.8 is clear from the evi- amosite However, 1. subd. rejected the court occupational some levels of dence the trial finding court’s that APC 6 had the inhalation of asbestos exposure increas- violated, been and also held that APC 17 did However, the incidence of cancer. es apply to the discharge of asbestos fibers appeals held that there was insuffi- occasioned processing iron ore. Further danger evidence of demonstrable cient violations were expressly enjoined then justify closing health to public the abatement order. Bay plant immediately. discussing evidence, the court medical noted that reviewing evidence, After the court (which values” are the levels “threshold appeals held “Reserve’s air and water below which no adverse exposure health discharges pose danger public any particle having generic hydrated A “fiber” is defined as term for a number of sili- “Amphibole” length-to-width ratio of 3 to 1. that, processed, sepa- cates when crushed or family up the mineral made silicates denotes of calcium up rate into flexible fibers made of fibrils. and, magnesium usually, and one or mineral, serpentine chrysotile amphi- and the (such manganese). metals as iron more other Cummingtonite-grunerite boles, actimolite, amosite, anthophyllite, croci- general is a name for dolite, commercially and tremolite are all used amphibole minerals which are es- of a “suite” sentially as asbestos. except quan- identical for the relative magnesium in them. The of iron tities iron-rich gruñentes, portions regulations 9. Pertinent of those are set are sometimes referred to as members although cummingtonite appendix. is to the entire suite. “Asbestos” is the word forth in the to refer used pre- of a Because state and judicial agencies action Federal justify are health The court 514 F.2d 535. governed expressly nature.” the mandates of ventive say: toon appeals, pertinent went of portions court of “ * * * air, as- respect to opinion are set With out in detail as follows: harm rests on a the risk of of sessment “Pending final action Minnesota on be- of a correlation degree proof, higher permit present application, Reserve dust and of asbestos inhalation tween take promptly steps must all necessary to here, too, But illness. subsequent comply applicable with Minnesota law to measured in terms cannot be hazard emissions, air as its outlined opin- in this must assessment but the predictability, ion. But, the proof. direct made without “Reserve, at a minimum, comply must can be the air and water in both hazard APC 1 and 5. Furthermore, with Re- terms only general the most measured use such must available technology serve resting public for the health as a concern reduce the as will asbestos fiber count in theory. medical Seri- a reasonable upon air at Silver the ambient below a hy- could result if consequences ous significant medically According level. to ulti- it is based should on which pothesis case, the record in this controls may be true. prove mately adequate which will deemed reduce the to act in powerless not “A court is to count the level ordinarily fiber found But an immediate circumstances. these air city in the ambient of a control such justified striking cannot be injunction as Paul. St. health unpredictable between a balance begins.] hereWe order Reserve [Note social clearly predictable effects to a court-fashioned meet standard that would consequences economic may exceed the which standards of ex- closing. plant follow isting pollution regulations, air control posed by to the health risk “In addition excepting APC 17. The Minnesota Pol- discharges, the district Reserve’s Agency may lution Control condition immediate termination its premised of a for issuance the emission of persistent discharges upon Reserve’s operation contaminants or the air of an alter- a reasonable implement to refusal facility, such as emission the Reserve disposal on-land of tail- plan native prevention plant, upon pollu- air * * * ings. 116.07(4a). Minn.Stat.Ann. § tion. Re- “During appeal proceedings, these defines pollution Minnesota air willingness to de- its has indicated serve * * * presence the outdoor properly on land and to posit its any air atmosphere contaminant or argu- emissions. At oral its air filter quantity, thereof in such combination willingness of a ment, advised us duration, nature and under of such plant million dollars in alter- spend to as would injurious conditions such pollu- construction halt ations * * health or welfare human *. water. Reserve’s offer of air and 116.06(3) (emphasis § [Minn.Stat.Ann. proceed to con- operations continue added).] for its disposal facilities of land struction injunction upon do so we Re- permitted By impose State this tailings, if Minnesota, conjunction duty only comply when viewed in with serve of the health quality uncertain 5 but also to take additional APC and discharges, by Reserve’s necessary, risk created to abate its steps, if ruling against a weighs heavily meaning within the pollution air immediately.” 514 plant Reserve’s closes 116.03(3). The broad Minn.Stat.Ann. § 536. F.2d policy pol- behind Minnesota’s remedial injunc- control laws authorizes lution the admonition court added Minn. scope. tive this See degree “a relief imparted harm potential 115.071(4). § this case." F.2d StatAnn. urgency [Note ends.] to make it clear that we view “We wish decree in conformity with the views ex- presenting air emission as a hazard of pressed here. We jurisdiction reserve significance than the water dis- greater any review such supplemental order. posal time-table serve as quirements cause of tween Minnesota to build an necessary permits are unable tween Reserve and Minnesota air incorporate es. We air lowed cally effectuated under the circumstanc- ning and must controls nation site or will charge. gram implementation retain such conditions vided that erations.’ tion, notice, shall be relieved from further priate “Assuming sion, modified suspend or rior, pelletizing operations at then administrative ‘However, emissions, subject emissions, reading immediately proceed site, to construct an on-land reduction Reserve decides to of whether Reserve will be al- Reserve, upon giving scheduled in this as litigation direct that the existing discharge in connection with such Accordingly, pending implementation of such reasonably impose general guideline may on air controls. If the for installation conditions to come to an close its ¶ B2 reduce, if following existing Agency and Reserve agency delay Reserve is reasonably discontinuance of or operations, to modification be- as follows: to this injunction Stipulation, pro- of this compliance pro- may reasonably may stipulation action stipulation discontinue, final with the to Lake accord for such other or substantially of emission for time re- granted on-land relating relating reasonable a determi- date, emission relating Stipula- disposal suspen- parties practi- appro- decree Supe- plan- shall dis- op- be- be- or tailings disposal sites. court of proved by the Federal court. state proceedings, Reserve Mining 529 F.2d quent opinions, the Federal court expressly trict court to deal with the following issues: disclaimed selecting one among alternative on-land tion, abatement. re-evaluation or scientific studies utable to Reserve’s discharges upon modification of time requirements for A cerning abatement of air koff11 ther should request should also be posed to Dr. Seli- vise the court concerning new scientific or medical studies which may require a lawsuit) attributa- ble to Reserve’s discharges. A similar this re-evaluation of the prehended during In that of the time district as more or less serious than “b) Consideration of any new medical “a) Supervision of any conflicts con- “Upon remand, we suggest timetable of 3 public health.” 514 approval ^[*] justify a party 514 F.2d at significant and his appeals 181, 188, court request opinion, any jurisdiction ^[*] may requirements Id. at of a tailings reassessment of the hazard group directed the Federal dis- the health hazard attrib- apply as well as in two subse- note 7 ^[*] years 539; new scientific informa- parties 540; health hazard which Dr. Brown10 to ad- for a modification ^[*] from the date of (8 F.2d 539. researchers. Ei- over the issue of specified herein may move for Cir. site was may Co. v. water ^[*] subsequent 1976), require as (either pollu- Lord, sf: ap- ap- controls based upon stipulation agree- ^{[*] [*] [*] [*] [*] [*]} ment, Minnesota may “d) either or Reserve Applications, if any, by the United apply appro- to the district court for an for additional States relief if the State of supplement injunction order to priate Minnesota and Reserve are not moving Irving 10. Dr. Arnold Brown is chairman of the De- 11. Dr. Selikoff is director of the Environ- Pathology Anatomy partment Laboratory at the mental Sciences of Mt. Sinai School Rochester, Mayo nationally recognized Clinic of Minnesota. He of Medicine. He is a authority capacity court both in the of a tech- served the in asbestos-induced disease and occu- impartial generally. pational advisor and that of an nical witness. diseases to Re- reside speed facilitate those who to closer Mile Post with deliberate discharge of its water protection serve’s termination entitled same as the resi- Id. at 538.” pollution. Bay, air dents Silver but it is inconceivable government that Federal the would tolerate indicated, previously Finally, as we the construction and maintenance of an in- Co.,543 Mining Reserve v. United in States operation dustrial within its confines which 1976), appeals the court of (8 1210 Cir. F.2d pose a serious would health to threat those to re court’s district decision affirmed forest use the for who recreation and other Superior be discharges into Lake that quire purposes. to 7, 1977, July now extended on terminated April little or no While mention is made in arguments concerning briefs the broad assessing the effect of the Federal of the Federal effect court’s decision on for proceedings on here decisions court operations, other taconite we hasten to review, significant should matters several out that point imposed standards First, court the Federal mind. borne in be not Reserve are unique to it. All other dealing pollution with water and air was plants having tailings taconite on-land dis- of the arising operation out of the problems posal face a they sites shutdown if fail to Bay. at It did existing plant taconite meet emission standards established on air project to effect attempt not reason state. No occurs to us for assuming tailings on-land site at Mile of an emissions Reserve will have any greater that Second, difficul- location. any 7 or alternative Post with ty complying environmental laws although amphibole fibers at than the levels competitors. ready used for Reserve stands in Silver were to sites various Paul, in invest over million in $300 the level which comparison with St. effort. vigilance of the Mindful of state and permissible, appeals the court of Feder- was held agencies al who will its concern the risk to not confine to did if it is found Bay. operate danger to the citizens of Silver to be a health public health, we are contrary, required compliance public it mitiga- On confident the agreements which stipulation proposed between efforts will with are be en- existing con- pollution adequate. with air tirely parties regulations statutes, none of which trol said respect we have future What should suggested that different standards to some compliance extent renders moot the different sites. We construe imposed for principal litigated. issues evidence ad- establish, decision as court the Federal agency hearing duced at at the clearly requires, single stan- quite law hearing before the district court direct- plants causing air emissions all dard First, two primarily ed matters: potentially dangerous to may be which of asbestiform fibers in the level ambient health, may they be located wherever by the existing processing plant, emitted air this state. projected level proposed and the for the basin; and, second, opinion, mitigation

In our a determination “medically significant must which we hereafter discuss of the level” of measures fiber legal meet the effective to standards concentration. Federal court recog- do, nized, bring and to the asbestos we of these we refer as neither mat- which susceptible precise in the ambient air “below count ters scientific or fiber existing level” Federal significant as the medical determination under tech- medically directed, techniques hoped 7 or Mile As it is nology. improve, whether Post measuring greater accuracy other location is chosen. We and in proposition, testing is im levels will be achieved. A accept the brief cannot state, statutes, summary applicable that the position conten- plicit dangerous public parties, findings of fibers tions of emission court, Post 20 renders it a feasible officer the district at Mile health only matters, on these prudent alternative site. Not bear follows. they policy designed states a Minn.St. 116.01 from the use of Mile Post 20. The hearing degree purity a reasonable achieve officer concluded “[sjince no safe 116.06, air, and Minn.St. subd. defines air level threshold of exposure to asbestos fi- as follows: pollution identified,” has been bers no site is free “ risk, and pollution’ presence ‘Air means the the best site is therefore the atmosphere any air con- which offers the outdoor of one the exposure. least combination taminant or thereof in such The trial court also stressed the lack of duration, quantity, of such nature and but compared standards the TSP level of 65 and under such conditions as would be micrograms per cubic meter in St. Paul welfare, to human health or injurious predicted with a TSP level in Bay Silver life, plant to property, animal or to micrograms. (There are 454 million mi- unreasonably enjoy- interfere with the crograms pound.) to a The trial court property.” of life or ment that no existing found fiber-counting meth- Law, Rights which The Environmental ods could serve as regulatory tool. It was governs quality, pollution also air defines as the influenced fact that the division of likely materially which “is quality conduct ad- air of the PCA had recommended at affect the environment.” versely Minn.St. one time the issuance of a for Mile 116B.02, permits subd. Administrative Post 7 with conditions attached to which granted agreed. not be which result in conduct had shall The court thereupon impair the likely quality of the air if that there was no held substantial evidence prudent respect a “feasible and there is alternative with to air quality to justify the with the of Mile requirements rejection consistent reasonable Post 7 aas tailings site. health, public the safety, and welfare The Federal court has accepted the testi- paramount state’s concern for the mony of Dr. William Taylor F. Mayo air, water, land, of its protection and other Clinic, court-appointed witness, who stat- pollution, resources from impair- natural ed that the burden of fibers in the air at ment, 116B.09, or destruction.” Minn.St. 62,600 Bay was per Silver fibers cubic me- necessarily 2. These statutes are subd. Although ter. subject estimate was terms, general leaving couched margin a ninefold of error and would not responsible who are agencies duty of necessarily represent average annual precisely determining what standards will at Bay, burden Silver it was used to com- policy the environmental fulfill enunciated pare fiber count with the fiber count legislature. city of the control of St. Paul. Although hearing The officer adopted the state’s 7,000 the Federal court had only the figure fugitive it, estimates of dust emissions and subsequent before tests showed as much 30,000 found PCA estimates of fiber content as fibers per cubic meter in St. Paul. comparing projected impact valid for All the evidence bearing quality on air would result which from the use of alterna- which would result from operation disposal doing, sites. In so hearing tive site was of course based entire- rejected officer Reserve’s estimate of a 50- ly projected on estimates of total fiber lev- reduction in total percent emissions The els. methods by experts used on both of air application elutriation measures and greatly sides varied and understandably improved dust collection at facilities reached results which totally were irrecon- plant. officer held processing cilable. The PCA and DNR relied on a projected levels Bay five-step process. of fibers Silver The first was to deter- mitigation applied has after been would not mine the number of fibers in a microgram the Federal court’s standards. The meet of coarse tailings dust. The step second in total suspended particulates increase was to determine the amount of all fugitive (TSP) potentially e., dust, hazardous fibers from i. dust created by wind erosion and Post 7 were found to be three times activity of machinery, which would Bay which would experience generated by opera- construction and

«39 was step The third not known because of the basin. inaccura- originat- of dust percentage counting cy of techniques. determine More signifi- tailings. step fourth coarse ing from cantly, PCA, the executive director of Peter fugitive impact to determine was Gove, repeatedly L. testified that predic- e., suspended on dust, particulates, total i. suspended tions total particulate and as- For purpose, this “cli- centers. population bestiform fiber levels at alternative sites computer model" matological dispersion possible were because of deficiencies in used, such employs data program qualifications placed data and the emis- direction, precipita- velocity, wind wind projections. sion At point, one he wrote step last is to tion, and emission rates. The no way meeting that there was the stan- one, figures steps in multiply obtained Bay dards for Silver fixed the Federal three, to determine the number of and four court because do not have any good “[w]e in air meter the ambient at per cubic fibers readings the air Paul.” Mr. Gove St. Bay. The result of this calculation Silver testified, further “The MPCA staff cannot Bay at predict that Silver there towas significance at this time determine the of 132,000 positively identified am- would difference in ambient asbestiform fiber if Mile Post 7 per fibers cubic meter phibole population levels at centers with the coarse used, 32,000 if Mile such fibers and were submerged at all sites.” were used. These results assumed Eckhardt, Gary S. chief of technical serv- as mitigating measures such water of PCA ices air division of quality, chemicals, and use of sprinkling, there testified were three methods utilized. vegetation of had been planting analysis: used fiber Electron microscopy, Reserve, hand, presented other on the diffraction, area energy selected and disper- testimony, and whose research witnesses X-ray sive detection. It was his opinion figures to the conversion of applied when enough was not that there correlation from 13,680 of projected a level expert, state one laboratory laboratory fiber Bay at per meter after cubic Silver fibers analysis used to be as a regula- reasonable applied to the mitigation, when conver- tory tool. He referred to one study which experts, of figures of one Reserve’s a sion 10,000 approximately showed per fibers cu- 7,826 figures these fibers. Both of level at “not Bay bic meter Silver too much range well within St. Paul’s were that, from other say, difference at locations level. Club acceptable fiber Sierra attacks Range in the Iron and Duluth.” Mr. Eck- computations failing to of these as ade- all hardt concluded that none of the studies content, consider such factors as silt quately designed properly, was that the studies did dikes, on dams activity traffic vehicular data, provide needed all tailings, dumping cars in acre- of railroad that could be said about the concentration areas, the exposed mitiga- effect of age of amphibole Bay fibers in Silver was that measures, the volume of coarse tail- tion 1,000 10,000,000 it was per between rate of emissions from them. ings, and the cubic meter. that a argues proper Club considera- Sierra lead to a likely of these factors would Mr. Tibor Kosa concurred in Eckhardt’s 620,800 Bay ranging at from level Silver samples view that fiber counts of the same 1,891,500 per meter to fibers. fibers cubic air Bay vary could Silver much as 10,000,000 1,000 to per from cubic meter. margin of To illustrate the enormous er- Hollenstein, hydrologist Gene chief and act- ror, testimony there was which acknowl- ing division, director of the water DNR magnitude two edged margin orders of agreed his staff could not “define the range counting, representing a in fiber significance medical incremental 10,000 1,000,000, frequent ref- some damage, the incremental differences or high to “nine times on the side to erences dangers given this air fiber at site.” quality on the low side.” The one-ninth PCA, Kosa, Cook, Phillip M. engineering chief of Tibor testi- Dr. an Environmental Pro- at Agency that concentrations of fibers Silver tection chemist fied research and a con- state, mind, ing, for the was of the same reject sultant as impermissibly high figure that differences in testifying laboratory microgram. of .63 equipment, personnel, technique can agencies advanced two reasons for differences fiber counts from produce these somewhat positions. inconsistent samples identical at different laboratories First, they argued that total suspended par- showing a variation of least as much as significance ticulates no unless the magnitude. orders of Dr. two Arnold volume of asbestiform fibers contained in Brown, placed on whom Federal court them has been established. argument, This reliance, that, testified in great that court however, runs afoul of agencies’ re- evidence, on scientific he could not based liance on TSP as a factor in fourth step the number of predict fibers in the air at fiber-projection of their process pro- predict that cancer would be 132,000 reading duced per fibers cubic say there. Nor could he what was a found at Mile meter Post 7. respect level with to a human safe carcino- Second, and more important, is that information not avail- the doc- gen because trine abbreviated phrase into a coined anyone. Mining able to Co. v. En- counsel DNR that “less is better than Agency, vironmental Protection 514 F.2d more”, that is to 1975). say, fugitive where (8 Cir. dust is known to contain carcinogens in some reaching the agen In conclusion that the amount, it is safer prudent and more justified denying were not in permits cies a site select which is the more remote from 7, we are impressed by Mile Post for populated area to be protected. In our change testimony given by Dr. Chatten opinion, this is not what is meant by a Cowherd, Jr., Midwest Research Institute’s prudent “feasible and alternative” in our principal engineer environmental called as a environmental statutes. What the applica- witness. At the PCA administrative hear tion of the “less is better than more” doc- that ing, he testified the Mile Post 7 site overlooks is trine the fact that what is micrograms would contribute 1.75 of total “less” for Silver is “more” for the users (TSP) suspended particulates per cubic me National Forest if Mile Post at Bay, ter to the ambient air Silver where 20 is selected. 20 would only as Mile Post contribute 1.0 microgram. The difference would be Unless the state is to totally find a unin- by the distances to be caused traveled from and habited uninhabitable location as a tail- agencies accepted site. The each 1.0 site, and ings Reserve’s employees are there microgram figure approving in Mile Post 20 provided special with respiratory protection, rejecting in Mile Post 7. agencies if the determine some degree precision fugitive dust at Mile hearing,

At the district court Post Dr. Cow- 7 has not been reduced acknowledged that in below a arriving medically herd at his significant level after neglected proposed he had all the estimates to consider ade- miti- gation measures have quately implemented, the silt and moisture content of been require the solution is to degree handling and the mitigation de- further plant. them to close the positing Consequent- into the basin. The alternative is not ly, he revised his estimates to to substitute one community conclude that for another as microgram target exposure Post 7 would contribute .63 Mile to a health if hazard TSP, 20, microgram and Mile Post .15 here, one is found exist. But no risk has Bay. Notwithstanding proved by the air Silver evidence, been substantial no agencies previously approved had medically significant fact level of dust has been microgram determined, 1.0 an increase of for Mile Post and no standards for emission now, they after the administrative hear- have been established.12 specifies yet available, Federal court standard which that no 12. The accurate tests are not- withstanding agencies’ at St. Paul has never levels found been estab- fig- claim of a low 7,000 precision per it lished with because is conceded ure of fibers cubic meter at St. Paul acknowledges that We have previously DNR indicated analysis the art of fiber state of present agencies that state and courts are required spe does not science medical by statute to consider both the economic signifi of the medical determination cific impact and the environmental impact shown differences of the incremental cance rendering dealing decisions with environ air-quali compare relative which in exhibits 116.07, 6; matters. mental Minn.St. subd. the vari anticipated from impacts to be ty 116B.04; 2; 116B.09, 116D.02, 1; subd. subd. PCA has consideration. sites under ous 116D.03, 116D.04, 2(c); subd. subd. 6. that, given present position taken Where, here, potential evidence of counting fibers and eval of science state to public health is detriment unsubstantial health, possi it is effect on uating their inconclusive, and there is evidence that at a standard that would establish ble mitigate measures to pollution effective air to the amount of fibers a number tach taken, we must will be take into considera- exist in the ambient air. safely can inevitably tion human factors which bear undisputed evidence light of the having a decision figures personal emission on serious conse- on which dust projections are based Post 7 have been reached Mile in the lives quences well-being of those data and are imprecise unreliable on problem. closest As we construe the er immensely large margins of subject statutes, apart statute, if there of a determination ror, in the absence substantial were evidence Reserve’s significant medically what constitutes tailings site at Mile proposed Post 7 would generated by dust fugitive levels significantly adverse medical effects officer’s we hold residents of Bay, on the Silver no further impact pollution of air finding that given would be consideration the eco- selection of Mile Post 20 Bay by the consequences of a total nomic shutdown and unsupported by preferable it a site makes rejected. would be are the site We not free evidence.13 the the health to barter of residents at Silver their Bay security, for economic even if Bay Impact Silver Economic intention, their that were which it is not. in some detail have discussed We where the only danger It is likelihood of assessment of the sobering hearing officer’s is remote public speculative that plant effects a shutdown economic adverse impacts which devastating economic employees on the of Reserve would may weighed certain be in the balance other residents of the welfare of and on environmentally to arrive at an sound deci- pub- of Reserve have Bay. Officers Silver sion. of Reserve announced the intention licly parent companies to close the Silver Mile Post 20 is selected. That plant if Availability by confirmed formally has been

intention Although we have directed the PCA and open court in these for Reserve counsel grant permits Reserve DNR to for the con- accept and we must that proceedings a tailings of basin at Mile Post struction may be enter- whatever doubts premise, not, course, guarantee order does of by others. that tained 30,- Bay, figure high of which the Federal court has reliance on a ordered re- and Reserve’s 000 fibers. It is of significance some that un- parties figure which to a estimate to duced Safety Occupational and Health Act the der the per fibers .007 and .03 cubic cen- be between permis- Secretary has established as a of Labor timeter. per occupational exposure 5.0 fibers cubic sible centimeter compared reading to a of .0626 at 13. The cases and statutes we have cited and Bay. assuming mar- Even the ninefold dealing safety, supra, with dam discussed by Taylor accepted gin Dr. William of error of equal apply force to the resolution of the testimony, Mayo in his Federal the the Federal Clinic necessary quality issue. We do not find it air occupational government’s own again per authorities. those fibers cc. is almost 10 times to cite standard of 5.0 per higher cc. at Silver than the .0626 fibers 842 those actually available for lows: Lands owned or site is controlled by

that the Re- acres; serve, 3,115 Nor is there assurance purposes. privately-owned other would acres; 20 had been selected it 1,880 Post land, if Mile land in the state trust located eventually be available. That site is acres; fund, 320 land by held state for For- within the National entirely conservation, acres; and land which is of require exchange would land. est and county use, forfeited and held 3,600 tax for Torrence, James F. by furnished Evidence Based on these figures, acres. the state forest, indicated it would supervisor approximately 47 of percent site, owns years, least 2 and more realisti- require owns or controls approximately 33 months, negotiations to conclude cally site, private percent other own- forest service. Reserve would with the have title to the remaining percent ers obliged other ac- property first be to find owners, site. One of such Dr. Rodney to both the forest service ceptable Nelson, 1,240 owns B. acres within and ad- affected. An environmental county boards site, jacent including all by forest prepared would be statement Lake Bear which has an area of approxi- service, Corps Engineers and the would mately 100 acres.14 Dr. Nelson intends to analysis. apprais- An consulted their be eminent proceedings resist domain which have to be made of both of- al would have to will be instituted Reserve to and the selected land. It would fered land part acquire property. of his He contends necessary archeo- to conduct mineral and be 117.46, Minn.St. which authorizes taco- surveys. proposal then logical would mining companies acquire private nite Reser- to the National Forest submitted property condemnation for use as a tail- Commission, consists vation site, ings unconstitutionally private takes Secretary Army, Secretary private property purposes. Although Interior, Agriculture, Secretary two opinion we intimate no as to merits of Senators, and United United States two contentions, recognize Nelson’s we Dr. Congressmen among Titles others. States litigating validity may of the statute be examined counsel for the then would consuming. be time remaining well Agriculture and defects cor- Department privately-owned property will also have to title insurance could be rected so negotiation acquired by condemna- obtained. tion. government no is under obli- The Federal 11, 10, art. Minn.Const. authorizes pro- § provide Reserve with a gation ceedings for exchange public the of land for 20, assur- Post and there is no site at Mile purposes with private the unanimous ap- Supervi- be inclined do so. it would ance governor, attorney the proval gener- that he never testified had Torrence sor al, and the state auditor. Minn.St. 94.341 government permitting a min- the heard of designates these constitutional officers as disposal site a national forest ing waste Exchange Minnesota Land the Board. whether “very questionable” it was and felt 9.011 Minn.St. creates the State Executive pur- would be available for that the forest Council, governor, which consists of the authority has no to condemn Reserve pose. governor, secretary state, lieutenant period property, during the government auditor, treasurer, state state attor- Bay plant would negotiations, the general. ney appears It that state trust by shut down Federal court either be bemay exchanged lands sold discharge wastes into fund only continue would 7, Superior. approval As to Mile the unanimous Lake Land ownership Exchange indicated divided as fol- evidence Board. Although period years. may over a it is not clear the record how of some 20 It be Dr, actually appropriate land will be tak- much of Nelson's to observe that we are not insensi- many damaged, problems he to lose by en or stands which tive confront him which an isolated lakeshore retreat benefits of the basin. construction family developed enjoyed he and his Mitigation to obtain state-ac- Agreements for Reserve

In order and Other land, the DNR com- (conservation) quired Conditions Which Have Been as designate property no must missioner by Accepted Reserve. the DNR.- It is then by longer needed January 8,1973, On the PCA entered into adminis- the commissioner of reviewed quality stipulation an air agreement with depart- it to other state tration, offers who which Reserve was subsequently expanded it, accepts If none agencies. ments 21, 1975, amended on May and Decem- Council must determine Executive State ber 1975. These agreements dealt with state land which is surplus it is whether measures to be taken Reserve to reduce exchange private or sale to available particulate emissions and improve air quali- unanimity requirement for No purchasers. ty. agreements specify in detail the contained Executive Council is State measures Reserve must take to the statute. modi- operations fy plant to achieve a goal of are held the state Tax lands forfeited percent 99.6 reduction in particulate emis- taxing they districts where in trust compliance sions. In with the ap- court of They may surplus too be sold as located. peals’ decision Reserve agreed to install provided in procedures under Minn.St. land fabric filters on hood must exhaust and of tax forfeited land waste Sales 94.09. commissioner as well gas machines, DNR stacks of its approved pelletizing or to of administration and the commissioner utilize wet-wall electrostatic precipitators Executive Council. The Environ- the State exploit or other devices to the best technol- Impact estimates that mental Statement ogy which is economically feasible and exchange of state trust fund land would addition, available. agreed a year; 6 months to while the take from furnish fabric filters on various other (conser- exchange state-acquired or sale stacks, bins, and buildings with a view to vation) land would take 6 months and the with all state complying and Federal stat- land, months, of forfeited as- purchase ordinances, utes, regula- administrative suming necessary of course that all admin- tions. has been obtained. approval istrative appeals One of the before us deals with procedural other hurdle must be One court’s reopen the district refusal to finally site ap- before overcome newly record to receive discovered evidence navigable empty- Because streams proved. concerning malfunctioning of the wet- affected, Lake will be ing into precipitators. wall electrostatic Sierra Club processing plant water from the will warm asserts that this evidence support lends rate of over returned to lake efficacy the claim of these mitigat- minute, 100,000 Reserve must re- gallons ing is open measures to serious doubt and Corps Engi- from the U.S. permits ceive impeach tends to the credibility of Re- U.S.C.A., to 33 1251 et pursuant §§ neers serve’s witnesses who testified that process may and 1344. That seq., delay process the commencement of con- would be effective. further site. struction The record before us includes Re the We cannot assess relative merits of serve’s memorandum brief for the trial availability two on the basis of

the sites fully disclosing court the difficulties it ex that, fact if it is so beyond the obvious perienced experimenting with precipita- inclined, 7 the state can make Mile Post tors. Reserve advised the that court these expeditiously than the more Fed- available problems indicated that additional research government likely respect is to act with eral development would be necessary to suc Mile Post 20. To the extent that the to cessfully operate proposed dust control fa discharges Superi- of into Lake termination cilities, gave steps assurance that would by the selection of Mile will be hastened overcome be taken to the maintenance opinion we are of the that Mile Post be the less desirable alternative. which problem 20 would had arisen. Under these trial circumstances, Mining the Company whether or Reserve will install and discretion, we operate exercised its technically tight start to on as properly court that the exclusion opinion possible as pollution the schedule control are prejudicial evidence was not equipment over three million cubic additional already made had been minute per trial feet contaminated air in their since effec- put processing plant. pollu- which in doubt of facts This aware system precipitators. control represents the best tiveness technology experience in our available to extend this not undertake will We According to my knowledge, field. this by describing all unduly in detail opinion mining company other in the no world to agreed has which Reserve the measures such pollution efficient installed control mitigate emissions and minimize to pursue their equipment pelletizing machines. tailings site dust from the fugitive time, present equipment theAt installa- steps will plant. major Pour processing progressing on schedule tion is on other emis- to contain dust in efforts taken be sources. areas, roads, dikes, dam exposed from sions very “A partic- substantial reduction in tailings silt. coarse deposits fiber emission from the processing ulate submerging, are water measures These place will take plant after all control binding, and chemical sprinkling, water in operation.” equipment noted, course As we all have vegetation. submerged in silt fine will be tailings and in mind Having that the PCA Board ini- reaches until the basin of water feet rejected tially hearing officer’s recom- as dikes and At that time and capacity. of 5 to we are mendations vote they permanent are made structures dam that opinion testimony of its di- permanent to vegetated provide Gove, rector, be will Peter is particularly relevant: minimize designed will be cover analysis “After extensive by the PCA There is and soil erosion. emissions dust considering only staff the environmental be success- tailings coarse can that evidence sites, of all parameters Midway is the ultimately will they and that fully seeded alternative. preferred of nature. In interim to a state revert recognizes, however, “The PCA staff proc- a continual proposes utilize the environmental benefits of a site binding sprinkling and with of water ess analyzed in light of other must consid- and a chloride calcium chemicals such Hearing If the erations. Officer finds product as Coherex. known commercial prudent there no feasible and is biode- the latter is evidence There site, pursu- the Mile Post 7 alternatives non-toxic, injurious and not gradable, Chapter to Minnesota Statutes ant in- Dr. Cowherd testified life. plant 116(d).046, staff, MPCA on the basis percent from creasing moisture data, recommend of available could rate the emission would lower percent aof for Mile Post 7 issuance pounds per per ton to .003 pounds .068 previous conditions described in testi- As we ton, percent reduction. a 95 mony. indicated, control pollution previously Department “The of Natural Resources abating emissions planned for equipment Hearing have recommended to the staff plant is ex- at the processing from stacks reject- that the Mile Post 7 site Officer emis- of such to reduce volume pected Post 7 site is not the PCA’s ed. to less than 2 per day tons from 65.8 sions site from an preferred environmental day. per tons However, standpoint. the MPCA staff agreement referring stipulation Hearing not recommend to the does Offi- Kosa, who Tibor quality, air governing Midway cer that alternative estimates, testified: above made alternatives is more the other feasible [PCA, modified DAQ prudent Division than Reserve’s summary, “In opinion plan. Quality] is of the Post 7 Air are substantial differences imposed “There be- been Reserve, Armco, and Re- tween the sites under consideration with public and to which they have formally parameters. to certain There will respect agreed. permits granted to be under impacts at be environmental all the sites Minn.St. 116.081must be reviewed and re- under consideration. We believe when every years. newed The three companies combining parameters all various to agree assume all risks and liabilities aris- however, sites, the differences between ing operation out of the of Mile Post 7. the sites are small. They are committed perpetual mainte- nance of the site to responsibilities prevent pursuant tailings

“Our to the reentering the air and Policy Minnesota Environmental water Act re- and have agreed to all of the quire mitigation an evaluation of all parameters of measures we discussed, using each While we see site. certain best environ- technology addition, available. In advantage mental at Midway companies and the agree sites, comply only at the with Babbitt same time we existing must laws and regulations agency but those recognize may additional cost which for the com- adopted in the future. pany to construct at Monitoring these sites. The air and any water for subject potentially MPCA staff concludes that hazardous condi- tions will be conducted at company expense conditions stated the MPCA’s water will include fiber counting by quality quality X-ray and air staffs and confir- diffraction, electron microscopy, by any feasibility, mation of safety and fiber other method which specifies. PCA placing reduction from tailings coarse water, under that Mile Post 7 is a reason- Although DNR and question PCA Re- tailings deposition. able site for sincerity serve’s and its capacity to achieve believe, however, “We that both Mile mitigation goals proposes, it we are not Midway could form the basis persuaded that Reserve will risk an invest- of this for resolution case. These sites ment of over $300 million if it has are feasible sites for which we believe the reason believe that when the project is minimized, environmental hazards can be it completed will not have met standards

providing required by that the best available technol- state and Federal laws and ogy diligently applied. regulations, Selection of and that consequently it will permitted the sites can not be discharge either of end the continue operations its Superior, Bay. into Lake at issue that has been paramount with our Agency since 1969.” Other issues have been by appel- raised expense lants and have been locating The additional considered However, we they court. find Mile Post 20 to which Mr. do not affect Gove referred require results further estimated the state discussion. to be million $80 and Reserve to be million. Reserve $140 Summary prepared spend is now over million $300 tailings for an on-land site at Mile Post The resolution of principal issues represent- of which counsel for Reserve has litigation in this raised may be summarized company to the court the ed is committed to as follows:

applying reducing million in $42 con- 1. With exception of testimony in- taining fiber emissions from processing troduced at the district court hearing, be- plant. permitted proceed If it is cause we are reviewing agencies’ deci- construction, given Reserve has assurances court, sion and not that of the trial we have percent that in 27 months 40 of its examined the record to determine only will removed from lake and in 33 whether the hearing officer’s findings are discharges months all will terminate. supported by the evidence or are affected It is difficult to conceive of more strin- by errors of law. We have not accorded the gent guaranteeing acceptable conditions for special deference to the court’s findings to quality air and water than those which have it would be acting entitled were it impression important rather than as an Paul. These critically of first facts are a yet tribunal. to be determined with appellate scientific and precision. medical DNR, together read We have 2. PCA, governing judicial APA statutes and holding In 7. that there is no substantial be consistent with and find them to

review support evidence to finding a Mile Post to case. applied this another as one public 20 is less hazardous to health than will now appeals of review in all such scope do we not rule on the nature or APA, provisions governed be potential danger degree created emis- 15.0425. Minn.St. sions of fibers asbestiform at either site. only our decision We base on principle the undis- premised on decision

3. Our and that residents users of of Reserve’s both sites operation are evidence puted protection to Bay equal against and entitled plant Silver latent processing taconite disposal site without and that dangers on-land neither group of an should the use have generate carcino- mitigation will preference avoiding adequate them. dangerous which are fibers amphibole genic we are of the Finally, opinion 8. exposed who are to those health grant PCA DNR and should Reserve them. put opportunity to into effect mitiga- holding that PCA and DNR must described, measures we tion without permits to for the construc- Reserve issue discrediting its to comply effort with the at Mile Post 7 we do of a basin agreed, to conditions which it has and with- permitted suggest that Reserve will be causing Bay plant out the Silver taconite to mining operations in a man- to conduct on down of imprecise be shut basis and a to public threat health. poses which ner speculative projections, with all the hard- contrary, it, strictly be will held theOn to residents of ships community which imposed this court and to conditions attend such a would decision. court, by the Federal imposed standards costs or disbursements are allowed No laws, pollution Federal and state and both any parties. Regulations. Control Air Pollution by the Affirmed. others, standards, among 5. The forth shall adhere are set Reserve which (a) compliance court as Federal APPENDIX 5; (b) a level of asbestos 1 and and APC provides part: “APC 1 ambient air at in the fibers level; medically significant (c) a below “(a) ‘primary’ air quality standards ordinarily found in the ambient air level pollutants which, of air are levels above Paul; (d) city of St. level present knowledge, health the basis haz- such duration is not of a nature and which impairment may produced. or ards or wel- injurious human health as to be Health hazards include not only production, 116.07, in violation of Minn.St. subd. fare possible production aggravation of dis- modification because of de- Subject to

4a. ease, but also interference with function. use by litigation, of ex- occasioned lay impairment sensory Health includes irrita- stipulations between the State of isting impairment being by tion and of well such relating to air emis- Minnesota as odor. The phenomena ‘secondary’ air guideline used as for time shall sions quality standards levels which are desir- requirements. protect public able welfare from anticipated effects, known adverse such testimony found no 6. We have livestock, injury agricultural crops the level at which fiber emis- establishes damage to or deterioration medically significant property, dan- an- constitute sions person, sensory nuisance of noyance there health. Nor reliable evi- ger obstruction, per impairment fibers cubic or hazards to of the number dence St, city ground transportation. air in the in the ambient air meter operating permit. New operating permits persons required operating emis- any pollutant emit shall person “(b) No where operating permit sources an sion has a manner as or in such an amount in such 31, 1972, January been issued before unless standard quality air ambient any exceed operating is in said violation of Agency air line, property person’s such beyond herein rules, regulations quality and standards. regula- emission to whether respect without control pollution air other stated tions provides part: “APC being also Agency are regulations Provisions. “(a) General violated. part: provides

“APC “(1) regulation applies any opera- This Operating tion, activity except Permits process, burning “(a) Installation Sources, Fuel-Burning prod- for indirect where the Stationary heating of fuel Refuse-Burning Equipment directly combustion do not contact ucts of Equipment, materials, except Equipment. process burning refuse Control “(2) Operating Permit % ^{[*] [*] [*] [*] [*]} al. process burning salvageable materi- operate “(aa) person any No shall sta- fuel-burning equipment,

tionary process, “(5) Any existing emission source which refuse-burning equipment, equip- or control particulate equipment has collection with a obtaining oper- without an therefore ment efficiency percent by weight collection of 99 provi- in accordance with the ating permit new emission source which is install- 1971, Chapter Minnesota Laws sions particulate equipment ed with collection “(bb) existing percent efficiency in- person operating by weight A 99.7 shall be meeting provisions a source of air contami- which is considered of this stallation pollution apply regulation.” air shall for an nants

«48 YETKA, Justice (concurring specially). years ago, made even in the lake was light of knowledge at that time it The seems in Federal courts have held already retrospect it was an incredible decision. For even monumental environmental error plant to locate the at in 1947 the Department State Conservation Bay Silver and tailings to allow to be dumped limiting into Lake was the use which landowners bor- Superior. Of that there can be no doubt. dering along lakes and streams could make Although the decision permit the use of property, and their 1950’sit was contemplated from four times least cottage for a owner extremely difficult Post 7. place some sand on his Mile get even creeks, lakes, and rivers (3) Some Yet Reserve beach, one truckload. even only at Mile Post involved 67,000 tons of would dump permitted Post Mile 4 at waste, amounting to thousands of truck- each loads, king of fresh waters (4) headwaters of at least two river into would be affected at Mile Lake was sold Post 20. every day. systems away for dollars ago years (5) Post 20 Mile would involve 20 miles of —bartered of dollars hundreds of millions albeit jobs, pipelines to haul the waste from rails jobs. thousands basin in all kinds weather, summer or winter. However, the fact is that Reserve was Post 20 would use (6) Mile 327 billion to build and to use Superior; allowed Lake energy year each BTUs than Mile more built, cities have since been thousands energy when at a time conservation people employed, many have invest- absolutely crucial concern of state and is an ed their lives and fortunes in their commu- policy. national parties nities. All of the acknowledge those (7) difficulty The cost and monitoring facts, why and that is it is apparent that no greater basin at Mile Post 20 is than at lawsuit party to this has indicated its desire Post 7. down Reserve. to close The DNR at oral (8) effect on is at least as wildlife argument said that Reserve should be greater at Mile Post 20 than at great Mile to use Post forced and if it closes 7. Post Mile because it will site, down not use that fugitive dust is admit- (9) amount The consequence is a that must be faced. But greater Mile Post 20 at tedly great as counsel also added he did not think that argument Post 7. The was Mile than.at an event would happen agrees such and however, people that there are fewer made, the result would be horrendous. would be affect- living Mile Post who at ed, of the dust in the disbursement No, do not come before us to and appellants in levels at result lower Silver closed to air would that Reserve should be but argue of Mile Post 20 than if the use Bay with Post 20 is a more feasible Mile argue that Bay. outside 7 were used Silver Post Mile a basin as an alternative to location a consolation to hardly to me it is seems It They ask that we reverse the Post 7. Mile the Mile Post 20 area to be living people that Mile finding Post 7 court district peo- than important are less they told that Mile Post 7 would best be utilized. should living elsewhere. ple people people who live and serve —the (10) The people area and all the granting within the conditions listed in the work are sufficient to grant what- state. this to the public health protection ever is need- only consideration the Were the extra ed. using Mile Post 20 in to Reserve cost (11) quality standards of air If the if of its threat to shut down forced to spite of Reserve required pursuant so, pre- Mile Post 20 would be the then do met, cannot decision it is doubtful court’s However, only choice. cost is one ferable operation in any mining northeastern Min- court, and not the considered this factor comply could nesota with those standards reasons com- primary factor. primary every operation such because involves drill- rejection of Mile Post 20 are: pelling blasting, hauling, ing, crushing. and Post 20 would involve use of (1) Mile that Reserve should It is said not be able Forest, Superior National inside the lands tailings its own to dictate site. That is previously exposed never up lands opening the case here. hardly pro- Reserve first ravages mining operations. to continue to use posed to Lake and dump into the deep trough to greater 20 would entail dam Post (2) Mile offshore, not go disposal and to land seepage and result in problems construction

«51 go litigate, had to position litigate, was if it and litigate second all. Its some more. had, They moreover, use the site. The Palisades land it would been pol- on found lake, encouraged luting admin- finally violating the company terms of their of this to consider permit, state even agencies hampering istrative the trial of the and, finally by withholding when Reserve vital Post issues evidence Mile so, Federal conditions district courts. very stringent agreed to do Following the use placed were thereof. cannot But the state be said to be free of acceptance those condi- company’s Thirty years ago it encouraged fault. Re- tions, good that still wasn’t it was told locate in serve to Minnesota and allowed it it enough ought and that to now consider Superior. Moreover, use Lake it has Mile Post 20. litigate zeal to Reserve, the same shown animosity between forth, the factors set the state Applying agen- all above Reserve is ill-disguised. only 7 is selection which is cies It Mile Post is our however, ignore duty, environmentally sound, animosities, economically and the mistakes of the ignore past, best health— protect which can at- tempt to arrive at a physical people on reasonable decision mental as well as the—of today. I think court directly has done most involved. that. the North Shore review The standard of to be used this Just as is Reserve not dictating the terms an issue in this case. No really court is permit, it its own cannot be said that the urged on the court matter what standard of northeastern people Minnesota should reasoned impartial application the sole voice determining have conclusion requires me reach the facts permit. However, of a terms latter sup- substantial that there is no evidence greater have a voice in the should final finding or recommendation port than either decision Reserve or people liv- a tailings a feasible site for Mile Post 20 is ing people elsewhere. However, ample there is evidence to basin. of other northeastern Minnesota com- finding by the district support joined labor, munities been indus- 7 is a site. Mile Post feasible try, and business leaders in a near united use of seeking the front Local fact is the that in Not to be discounted unions at steelworkers and Bab- shows that the PCA and 1974 the record own experts hired their test bitt to the the negotiating for use of Reserve were safety proposed of the site and the effect of 7, terms were and and conditions members, operation they on its its and out; spring that as late as the worked that Mile Post 7 is a satisfied feasible site. Gove, director, Peter L. did 1976 the PCA 7 but rather the use Mile Post oppose Thus, the wishes and the people desires of acceptable. Gove’s testi- it Mr. considered work, live, and play who in northeastern adequate is the officer mony before should, reasonable, if at all be Minnesota of that fact. proof great Moreover, they are given weight. the going plant who are to have ones the Why all the problem? the Then what is their backyard basin in for many of a We can over selection site? dispute years. the is not clear only guess, because record However, possi- it is happened. as to what might appear It attractive to some that staff, in to undo agency attempting ble in no human life exist Minne- northeastern years ago, was deter- all, what was done at so the area could used sota be as a this overly tough in case to mined to be and recreational area to come playground public how serious Minnesota convince leave enjoy again and then to enjoy new stance. in its environmental day. would be But someone another must there target fires, Reserve on easy fight pick It was to select up forest garbage debris, shown Reserve had itself pay this issue because taxes for other the mainte- years Thus, more than past to be of the area. an over the nance such ideal is the courtroom arena and willing to enter unrealistic. compelled to comment on several This is the fourth past

I feel time in the 5 years problem court indicated that The district the Reserve points: other has been before First in grounds 1972, claim- this court: may have for Reserve Mining PCA, Co. v. Minnesota process. years litiga- lack of due 294 Minn. ing 300, 200 (1974); N.W.2d then in early least if point to at one fact fall of should question over of a change denied of ven- nothing proc- else—no one was due ue; later again in year, over the proceedings. these in all ess scope of review be exercised the trial Reserve, its by reason of conditions of court court. This has been briefed on the hearings after original permits granted dispute and facts in on the issues raised by polluted the water Lake has in since the appeals stages all initial of the supplies and as the water Superior, a result appeal agencies from administrative in of communities that have of a number of 1976. the summer Due to the time limi- supplies from the lake their water drawn orders, decreed Federal tations a large it affected. I believe to be rea- been have physical portion of the resources of this expect they be found re- sonable has been diverted from our regular cleanup Lake sponsible this case period calendar for a of over 9 water of the various Min- supplies months so that we fully cognizant would be municipalities that draw their water nesota of the prior of all facets case to oral argu- lake. from April ment held 7 and be able to make an example case should serve as This early decision. This court has done all generations for several lessons: future apply that it can law and reason to find long to this solution drawn out and acrimo- (1) has been a wasteful user of nat- Man dispute. nious clouds of gen- smoke rapa- resources. He has been most ural litigation, erated all appears it ever to walk the animal face cious many forgotten times that that the must be Greater controls exercised earth. objective getting Reserve out of Lake in selecting future location Superior onto a suitable on-land disposal complexes. industrial large reach. site is within I believe this decision (2) necessity an absolute There objective. is consistent established uniform national air there be standards, and quality water that those MR. CHIEF JUSTICE SHERAN took no uniformly through- enforced standards part in the consideration or decision of this prevent industry nation to out case. blackmailing lowering one state into with the threat it will move else- standards the state fails to comply. if

where than

(3) A decision other that made penalize case would not Reserve as

this public general. as the If Reserve

much state, cleanup would the how lake left THEROS, al., Frank Appellants, et begin? taxpayers footing With the v. heavy paying price Reserve is costs? Elly PHILLIPS, Individually, and as Trus- being practices. compelled It is past its the Trusts tee of Created under the Last hundreds of millions dollars for spend Will and Testament of Nicholas B. Phil- disposal cease and to the use of Deceased, lips, Respondent. dumping as a area. It can Lake pay damages violation No. forced has had to permits. accept It a site Supreme Court Minnesota. strongly opposed it and has originally July 15, 1977. imposed conditions on its use of Mile had very stringent will be 7 which constantly monitored. is for an 5-year period only.

initial

Case Details

Case Name: Reserve Mining Co. v. Herbst

Court Name: Supreme Court of Minnesota

Date Published: May 27, 1977

Citation: 256 N.W.2d 808

Docket Number: 47504, 47528, 47529, 47530, 47537 and 47575

Court Abbreviation: Minn.