VIA EMAIL AND
July 29, 2010
|
David P. Iverson Jill Schlick Nguyen Assistant Attorneys General Patrick Whiting Assistant Attorney General |
Mayor David Beaudet City of |
Re: In the Matter of the Appeal of Public Waters
Permit No. 2010-0117 Issued to MnDOT for Structural Load Testing; OAH Docket
No. 11-2000-21160-2
Dear Counsel/Parties:
In considering the Motion in Limine
filed by the Department of Transportation (MnDOT) in this matter, I noticed
that Minn. Stat. § 103G.315, subd. 6, states that, “[i]n permit applications,
the applicant has the burden of proving that the proposed project is
reasonable, practical, and will adequately protect public safety and promote
the public welfare.” The Department of
Natural Resources (MnDNR) did not file any response to MnDOT’s Motion in
Limine, and neither MnDOT nor Mayor Beaudet mentioned Minn. Stat. § 103G.315,
subd. 6, in their submissions relating to the motion. Before I decide the motion, it would be
helpful to know the positions of all of the parties with respect to the burden
of proof issue raised in the motion and the impact of section 103G.315, subd. 6, on that determination.
I also noted in reviewing Chapter 103G and the record
in the current matter that (1) Minn. Stat. § 103G.311, subd. 5,
authorizes a mayor to file a demand for hearing “on the application” and states
that the Commissioner of the Department of Natural Resources must hold a
hearing “and make a determination on issuing or denying the permit as though
the previous order [issuing or denying the permit] had not been made;” (2) the Notice and Order for Hearing initiating
this contested case hearing states that the issue for the hearing is “[w]hether
the proposed structural load testing in Lake St. Croix is consistent with the
applicable Minnesota statutes and Minnesota rules . . . supporting issuance of
a public waters permit;” and (3) Ms.
Shodeen’s letter to MnDOT dated February 11, 2010 (attached as Exhibit C to the
Affidavit of Patrick Whiting), indicates that the permit that had previously
been issued by MnDNR to MnDOT was “terminated” upon receipt of the hearing
demand.
Letter
to P. Whiting, D. Iverson, J. Nguyen, D. Beaudet
July 29, 2010
Page Two
Accordingly,
I will afford the parties an opportunity to submit additional argument
concerning whether Minn. Stat. § 103G.315, subd. 6, renders Minn. Rules part 1400.7300,
subpart 5, inapplicable and requires the burden to be placed on MnDOT in the
current contested case hearing. It would
also be helpful if you would discuss any similarities or differences between
the MnDNR public waters permit process and the permit process of the Minnesota
Pollution Control Agency that was involved in the cases upon which MnDOT relied
in its motion (Minnesota
Center for Environmental Advocacy v. Commissioner of Minnesota Pollution
Control Agency, 696 N.W.2d 398 (Minn.
App. 2005); and the ALJ’s Order on Motion in Limine in In the Matter of the
Saint Cloud Wastewater Treatment
Plant NPDES Permit, OAH Docket No. 7-2200-14439-2 (Dec. 17, 2003) (attached
as Exhibit D to MnDOT’s Motion in Limine)).
The record with respect to the motion will
remain open until Wednesday, August 4,
2010, for receipt of your additional submissions.
Sincerely,
s/Barbara L. Neilson
BARBARA
L. NEILSON
Administrative
Law Judge
Tel.
No.: 651-361-7845