7-2200-14439-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE POLLUTION CONTROL AGENCY

 

 

In the Matter of the Saint Cloud Wastewater Treatment Plant NPDES Permit.

ORDER ON MOTIONS IN LIMINE, REGARDING JURISDICTION AND REQUESTING CERTIFICATION

 

The above-entitled matter is before Administrative Law Judge Richard C. Luis on motions in limine by the Minnesota Center for Environmental Advocacy (MCEA) and the City of Saint Cloud (City).  The Minnesota Pollution Control Agency staff filed evidentiary objections as part of their prehearing brief.  These motions had been filed before the recommendation for summary disposition in this matter was made on October 31, 2002.  MCEA filed an additional motion on December 1, 2003, requesting that this matter be referred to the Board of the Minnesota Pollution Control Agency (MPCA).  According to MCEA, the referral was needed to cure a jurisdictional defect and obtain needed clarification regarding the application of an agency rule.  The City filed a response to the referral motion on December 3, 2003.

A hearing was held on these motions by telephone on December 4, 2003.  The MPCA staff filed a responsive memorandum on December 5, 2003 on the jurisdiction and clarification motion.  The record on these motions closed with the MPCA staff filings.

Robert B. Roche, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota, 55101-2127, appeared on behalf of the staff of the MPCA.  Christopher M. Hood, Flaherty & Hood, P.A., 444 Cedar Street, Suite 1200, St. Paul, Minnesota, 55101, appeared on behalf of the City of St. Cloud.  Janette K. Brimmer, Staff Attorney for the MCEA, 26 East Exchange Street, Suite 206, St. Paul, Minnesota, 55101-1667, appeared on behalf of the Minnesota Center for Environmental Advocacy.

Based upon all the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:

ORDER

IT IS HEREBY ORDERED:

 

1.               That the MCEA Motion to refer this matter to the MPCA Board on grounds of jurisdiction or for clarification is DENIED.

 

2.               That MPCA’s objection to pages 5 through 7 and Exhibit 2, section 4 of Dick Osgood’s testimony is GRANTED and the remainder of that objection is DENIED.

 

3.               That MPCA’s objection to pages 4-6 of Dr. Perry’s testimony is DENIED.  MPCA’s objection to Exhibits 2-5 to Dr. Perry’s testimony is DENIED regarding Exhibit 4, pages 16-21, and in all other respects GRANTED.

 

4.               That MPCA’s Motion to strike the testimony of John Enblom is DENIED.

 

5.               That MPCA’s objection to paragraph 5 of Exhibit 2 and Exhibits 5 and 6 to Dr. Engstrom’s testimony is GRANTED

 

6.               That MPCA’s objection to the Gerbig Affidavit is DENIED.

 

7.               That the objections of MPCA and MCEA to exclude pages 10 and 11 and Appendix 8 of the Robinson testimony are GRANTED and in all other respects the objections to the Robinson testimony are DENIED.

 

8.               That MCEA’s objection to admission of the exhibits to Dr. Erdmann’s testimony is DENIED.

 

9.               That MCEA’s objection to the Schuler reference contained in the testimony of Steve Heiskary is GRANTED and all other objections to that testimony are DENIED.

 

10.           That the City’s objection to the deposition testimony of James Klang is GRANTED.

 

11.           That the City’s objections to the testimony of Dick Osgood, Dr. Engstrom, Dr. Perry, John Enblom, Mark Ten Eyck, and Dr. Wedlund are DENIED.

 

12.           That MCEA bears the burden of proof in this proceeding that the discharge from the City’s wastewater treatment facility (WWTF) has a direct measurable impact that affects a lake or reservoir.

 

13.           That direct testimony in this matter is limited to prefiled testimony and cumulative testimony shall not be allowed.

 

14.           That the MPCA staff is not required to intervene in this matter to participate in this contested case as a full party.

 

15.           That a prehearing status conference shall be held to discuss the schedule for hearing in this matter and other outstanding issues.  The date and time of the status conference will be set after consultation with the parties.

 

Dated:  December 17, 2003.

 

 

/s/ Richard C. Luis

RICHARD C. LUIS

Administrative Law Judge

 

 

MEMORANDUM

 

Contested Case Status Issues

 

The City of Saint Cloud (“City”) operates a wastewater treatment facility (“WWTF”) to reduce pollutants in the wastewater discharged by the City into the Mississippi River.[1]  The operation of a WWTF requires the City to hold a National Pollutant Discharge Elimination System (NPDES) permit, issued by the MPCA.  The City applied for reissuance of its NPDES permit.[2]  A comment period was initiated as part of the permitting process and the Minnesota Department of Natural Resources (“DNR”) and MCEA submitted comments.

The MCEA requested, and the MPCA Board ordered, a contested case proceeding to determine whether the proposed discharge of phosphorus from the City’s WWTF is in amounts that will affect a lake or reservoir.  The Notice and Order for Hearing in this matter describes the issue to be determined as “whether the discharge of phosphorus from the St. Cloud wastewater treatment plant affects a lake or reservoir."

After the contested case was initiated, the City, the MCEA and the MPCA staff engaged in discovery.  Upon the conclusion of discovery, the City moved for summary disposition.  Summary disposition was recommended by the Administrative Law Judge (ALJ) and ordered by the MPCA Board.  MCEA appealed the MPCA Board’s final order to the Minnesota Court of Appeals.  The Court of Appeals reversed in part the grant of summary disposition and remanded this matter for contested case hearing.[3]  The official record was returned to the ALJ and a letter from the MPCA Board member responsible for NPDES matters indicated that no MPCA Board action would be taken to formalize the resumption of the contested case hearing.[4]  In response to an inquiry from MCEA, the MPCA Board chair wrote to the ALJ to state that no formal MPCA Board action would be taken and requesting that the contested case be resolved as expeditiously as possible.[5]

MCEA moved to return the matter to the MPCA Board for a formal order resuming the contested case process and for clarification of issues in light of the holding of the Court of Appeals decision.  The MPCA staff and the City objected to this request, maintaining that there was no need for such procedures and that the only purpose for the request was to delay the resolution of this matter.

Jurisdiction

The MCEA asserts that the ALJ lacks jurisdiction of this matter because there has been no formal MPCA Board action subsequent to the Court of Appeals remand.  The MPCA staff maintains that there is no formal action required to resume the contested case process.  The relevant portion of the Court of Appeals decision in this matter states, “We therefore remand the matter to the MPCA for a contested-case hearing on these issues.”[6]

Contested case hearings are governed by Chapter 14.[7]  Absent specific statutory exemption, agencies are required to use the process in Chapter 14 when conducting contested case hearings.[8]  The MPCA Board formally initiated the contested case hearing by authorizing the issuance of a Notice of and Order for Hearing.  The Court of Appeals determined that this contested case should proceed to hearing.  Chapter 14 contains no procedure that is required for resumption of a contested case interrupted in this fashion.

The MPCA staff maintains that the transfer of this matter to the ALJ merely follows the order of the Court of Appeals.  The MCEA maintains that transfer does not comport with the MPCA rules regarding decisions.[9]  The MPCA is explicitly required to hold a contested case hearing by the Court of Appeals order and that hearing can only be conducted by the ALJ.  There is no “decision” to be made by the MPCA Board that would require formal action.[10]  There is no procedural error in sending this matter directly to the ALJ without formal MPCA Board action to ratify the transmittal.

Clarification

The other reason cited by the MCEA for returning this matter to the MPCA Board was for “direction and guidance to MPCA staff on application of the P Rule in accordance with the Minnesota Court of Appeals opinion in this case.”[11]  The MCEA quotes the Minnesota Court of Appeals as concluding:

On the record before us, therefore, we cannot conclude the MPCA's interpretation of the phosphorus rule is reasonable as applied by the MPCA Board in granting summary disposition concerning whether the St. Cloud treatment facility discharges phosphorus in amounts that "affect" Lake Pepin and the Coon Rapids Dam Pool within the meaning of the phosphorus rule.  We therefore remand the matter to the MPCA for a contested-case hearing on these issues.[12]

Relying upon that language, the MCEA maintains that the MPCA Board must provide “guidance to the staff and the ALJ on how to now proceed.”[13]  The MPCA staff and the City object to the proposal to certify this matter to the MPCA Board.  The City asserts that the certification requested would only result in unpromulgated rulemaking.[14]  The MPCA staff maintains that the only legal issue that could be clarified is based on erroneous perception of the way that the MPCA interprets the phosphorus rule.  The MPCA staff clearly stated its position on that particular rule interpretation at the hearing on this motion.

The Court of Appeals did more than remand this matter for hearing.  The Court of Appeals described the proper application of the phosphorus rule as follows:

We agree with the MPCA's arguments that the Statement of Need and Reasonableness requires a measurement of individual impact prior to application of the phosphorus rule and the phosphorus rule cannot be triggered merely by measuring the cumulative impact of several discharge sources upon a lake or reservoir or by presuming a source that discharges phosphorus has a measurable effect on a lake or reservoir.[15]

No clarification is needed to apply this standard.  When this matter comes on for hearing, the parties should address the evidence that demonstrates the presence or absence of a measurement of individual impact on a lake or reservoir.  The Court of Appeals has stated expressly that the phosphorus rule is not applied where only cumulative impacts are demonstrated.  Similarly, the Court of Appeals has ruled explicitly that no presumption exists that an upstream discharger of phosphorus necessarily has a measurable effect on a downstream lake or reservoir.[16]

The order of the MPCA Board was reversed based on an interpretation of the phosphorus rule (attributed to the MPCA) that was described by the Court of Appeals as follows:

The MPCA's interpretation of the rule further strikes us as unreasonably inflexible.  There is undisputed evidence in the record that the St. Cloud treatment facility has been responsible for between 15% and 51% of the phosphorus entering the Coon Rapids Dam Pool.  Yet under the MPCA's interpretation, this contribution would not be considered a measurable "effect" warranting application of the phosphorus effluent limit unless the St. Cloud treatment facility were the sole contributor.  We believe this result is inconsistent with the goal of the phosphorus strategy to provide a workable framework for the way phosphorus concerns will be considered in the permitting process.[17]

The MPCA staff have explicitly stated that there is no such interpretation of the phosphorus rule.[18]  The City agrees that there has been no such interpretation.  The record in this proceeding shows that the level of phosphorus in the Mississippi River increases downstream of the City’s WWTF, beyond the amount of phosphorus that the City discharges.  Therefore, the City cannot be the sole contributor of phosphorus.  Indeed, since the MPCA Board referred this matter for contested case hearing as to whether the phosphorus rule was applicable, there could not have been an interpretation that only a sole contributor could trigger the rule.

As discussed in the Recommendation for Summary Disposition in this matter, the standard for application of the phosphorus rule used at that time was as follows

All of the evidence is of cumulative effects of phosphorus.  None of the evidence [identified by the MCEA] indicates a measurable effect on the level of chlorophyll a that is attributable to the individual discharge of phosphorus by the City.  As discussed above, the MPCA’s longstanding interpretation of Minn. Rule 7050.0211, subp. 1a, requires a showing of measurable effect from the discharge on the lake or reservoir to trigger the 1.0 mg/L limit.

There is no need to certify this matter to the MPCA Board to clarify that the phosphorus rule can be triggered by a discharger when that discharger is not the only source of phosphorus in the lake or reservoir.  The MPCA staff, the City, the MCEA, and the ALJ all agree that multiple sources do not prevent the application of the rule to a single contributor.  The Court of Appeals has affirmed that a ”measurement of individual impact prior to application of the phosphorus rule” is required.[19]  The standards to be met are amply clear to proceed expeditiously to hearing.

Testimonial Objections

Each of the parties has objected to some of the direct testimony filed in this proceeding.  Some of the objections relate to testimony that is now moot, since the Court of Appeals ruled that the City is not responsible for the water pumped into the Vadnais Chain of Lakes.[20]  The objections will be addressed individually, grouped by party.

MPCA - Osgood

MPCA objected to the portion of Dick Osgood’s testimony regarding methods of phosphorus control as irrelevant to the issues in this contested case.    This testimony (beginning on page 5 with “How do we stop phosphorus ….” and concluding on page 7 with the line “and published articles about this concern” and Exhibit 2, section 4) discusses the means of reducing phosphorus discharges.  The MPCA maintains that the only issue in this matter is whether the phosphorus limit of one milligram per liter (1 mg/L) in the City’s WWTF discharge is applicable.  The means of accomplishing this discharge is therefore, not relevant.  The MPCA’s assessment is correct.  The testimony relating to phosphorus control methods is irrelevant and is hereby striken.

The portion of Osgood’s testimony entitled Impacts to the Coon Rapids Reservoir (Exhibit 2, pages 5 and 6) is objected to by MPCA as irrelevant.  The basis for this objection is that the actual location of the measurements is UM 871.6.  The measurements are conducted at a U.S. Geological Survey (USGS) station located at this point on the Mississippi River.  The Coon Rapids Dam is located at UM 866.2.  The upstream end of the Coon Rapids Pool is downstream of the USGS station.  The information obtained from the USGS station, while not dispositive of impacts, is relevant to the foundation of any measurable impact that may be demonstrated to the Coon Rapids Pool.  The MPCA’s motion regarding this portion of Osgood’s testimony is denied.

 

 

MPCA - Perry

MPCA objected to Exhibits 2-5 of Dr. Perry’s testimony as being directed toward river impacts, not lakes or reservoirs and therefore irrelevant.  Exhibit 2, a comment for MCEA on “the St. Cloud wastewater treatment plant phosphorus question,” lacks any identification of a measurable impact from the City’s WWTF discharge.[21]  Exhibit 3 is a USGS report entitled Relation of Fish Community Composition to Environmental and Land Use Factors in Part of the Upper Mississippi River Basin, 1995-97.  This report makes no effort to identify any specific source of phosphorus.  The same is true for Exhibit 5, which sets out integrated stream quality monitoring for a variety of sites.  The content of these exhibits relates to general, cumulative stream and river impacts and is therefore irrelevant to the issues in this matter.

The exception to this characterization is in Perry Exhibit 4, pages 16-21.  Exhibit 4 is a USGS report entitled Water Quality Assessment of Part of the Upper Mississippi River Basin, Minnesota and Wisconsin – Nitrogen and Phosphorus in Streams, Streambed Sediment, and Ground Water, 1971-94.  Most of the exhibit suffers from the lack of specific information that supports excluding Exhibits 2, 3, and 5.  The portion of Exhibit 4 that contains specific information is pages 16-21.  This portion of the testimony describes modeling done on the water quality of the outflow of Lake Pepin.  This modeling purports to identify categorical sources of phosphorus in Lake Pepin.  While the modeling does not identify specific dischargers, the information is relevant for foundational purposes to the determination of “measurable impact” which is at issue in this matter.

Pages 4-6 of Dr. Perry’s testimony was objected to by MPCA staff as not disclosed in prehearing discovery.  MPCA staff has not indicated that it is in any way prejudiced by including that opinion in the record of this matter.  Many months have gone by since the direct testimony was first filed, so surprise is not a factor here.  Any basis for excluding the testimony for nondisclosure has been cured by the passage of time.  MPCA’s motion regarding pages 4-6 of Dr. Perry’s testimony is denied.  MPCA’s motion regarding Dr. Perry’s exhibits to his testimony is granted, except for Exhibit 4, pages 16-21.

MPCA - Enblom

MCEA filed testimony from John Enblom, Aquatic Biologist Senior with the Division of Ecological Services with the Department of Natural Resources (DNR).  MPCA objected to any of Enblom’s testimony being received as being contradictory to the DNR position taken in the consideration of MPCA’s phosphorus strategy.  MCEA responded that Enblom was not contradicting the DNR position, but explaining how that decision was arrived at by the DNR.

MPCA staff relies on the Court of Appeals decision in National Audubon Society v. MPCA [22] to support the motion to exclude Enblom’s testimony.  In that case, the ultimate issue was whether an environmental impact statement (EIS) should be prepared as part of the environmental review of a proposed wood products plant.  The question of agency staff testimony arose when MPCA accepted the DNR official position on the EIS issue.  Opponents of the proposed plant obtained contrary positions prepared by DNR staff and asserted that MPCA acted in an arbitrary and capricious manner by not considering those contrary positions in the EIS deliberation.  The Court of Appeals resolved the issue, stating:

As the district court found, there is no evidence that the MPCA excluded adverse DNR or responsible scientific opinion from the administrative record. The MPCA sought the assistance of the DNR and relied on the official opinion of the DNR submitted during the public comment period. We acknowledge the fact that the DNR was deeply divided on the issue of whether to recommend the preparation of an EIS, but it is difficult to say, as a matter of law, that the MPCA had an obligation to seek out and include every pro-EIS and every anti-EIS opinion within the DNR. An administrative agency is not required to look beyond the official comment issued by another commenting agency. To hold otherwise would require a reviewing agency to interject itself, we think improperly, into the internal debate of the commenting agency.[23]

In this matter, MPCA has received the official opinion of the DNR for the purpose of this contested case.  A review of his testimony shows that Enblom is not contradicting the DNR position on this matter or the DNR policy on the MPCA phosphorus strategy.  Exhibit 1 to his testimony, for example, is the official DNR comment on the phosphorus strategy.  That comment asserts that MPCA should use the DNR Bulletin 25 listing of lakes to determine applicability of the phosphorus rule.  Such use would include the Coon Rapids Pool among water bodies that are protected by the phosphorus rule.  Enblom’s testimony is directed toward explaining DNR’s position on the MPCA phosphorus strategy.  There is no evidence that Enblom’s testimony contradicts any part of DNR’s policy, particularly on the status of the Coon Rapids Pool.  This participation is consistent with the acceptable use of testimony outlined by National Audubon Society.  MPCA’s motion to strike Enblom’s testimony is denied.

MPCA - Engstrom

MPCA staff objects to one paragraph of Exhibit 2 of Dr. Daniel Engstrom’s testimony as being irrelevant as an editorial on MPCA’s approach to controlling phosphorus.  That paragraph (numbered as 5 in the exhibit) contains no evidence regarding any issue presented in this contested case and is appropriately stricken.

Exhibit 5 to Dr. Engstrom’s testimony is an analysis by Dr. William W. Walker, prepared in May 2000 for the Saint Paul Regional Water Services.  This analysis, entitled Evaluation of Water Quality Controls in the Saint Paul Water Utility Watershed: Analysis of 1984-1999 Monitoring Data (“Saint Paul Study”), focused on water quality measurements in the Vadnais Chain of Lakes.  MPCA staff objected to Exhibit 5 being entered into the record as an attempt by MCEA to obtain Dr. Walker’s testimony without making him available for cross-examination.

Dr. Engstrom’s testimony was offered by MCEA in support of the assertion that the City’s WWTF discharge of phosphorus affects the Vadnais Chain of Lakes.  The Court of Appeals has ruled on this issue and excluded any such effects from this contested case proceeding, stating:

The MCEA argues the St. Cloud treatment facility discharge "affects" the Vadnais Chain of Lakes within the meaning of the phosphorus rule. We disagree, and conclude the city of St. Paul, which pumps water out of the Mississippi River approximately 70 miles downstream from St. Cloud, treats the water to remove phosphorus, and transfers the water to the Vadnais Chain via an aqueduct, is legally responsible for the water entering the Vadnais Chain.[24]

Since the testimony is directed toward an issue that has already been resolved, the testimony is irrelevant.  MPCA’s request to exclude Engstrom Exhibit 5 is granted.

MPCA staff also objected to Engstrom Exhibit 6 for the same reasons as Exhibit 5.  That exhibit, St. Paul Water Utility Water Quality Improvement: Diagnostics and Implementation 1984-1996, addresses water quality issues in the Vadnais Chain of Lakes.  As with Exhibit 5, Exhibit 6 relates entirely to a question that is no longer at issue in this matter.  MPCA’s request to exclude Engstrom Exhibit 6 is granted.

MPCA - Gerbig

MCEA introduced the Affidavit of Bruce Gerbig to place three documents into the record.  These three documents are the amended permit to allow the water level upstream of the Coon Rapids Dam to be lowered, a portion of DNR Bulletin 25, and the National Dam Safety Program Report on the Coon Rapids Dam.  MPCA staff objected to the Gerbig Affidavit and its attachments as being irrelevant to the issues in this proceedings.

The evidence in the Gerbig Affidavit is intended to support MCEA’s contention that the Coon Rapids Pool is appropriately classified as a “lake or reservoir” within the meaning of the phosphorus rule.  The Court of Appeals expressly identified the status of the Coon Rapids Pool as an issue for contested case hearing.[25]  The Court of Appeals also noted that MCEA was relying, in part, on DNR classifications to support its argument on the issue.  The Gerbig Affidavit contains evidence directly related to the issue of the appropriate classification of the Coon Rapids Pool.  The information is relevant to an issue in this matter.  MPCA’s motion to exclude the Gerbig Affidavit is denied.

MPCA and MCEA - Robinson

The City filed testimony from Kenneth Robinson that included an assessment of the costs of imposing the 1 mg/L limit on the City’s WWTF.  MPCA staff objected to the cost assessments (located on pages 10 and 11) as being irrelevant.  MCEA joined in that objection and noted that Appendix 8 should be excluded for the same reason.  MPCA staff maintains that if the 1 mg/L phosphorus limit applies, the City is obliged to meet the standard.  MCEA pointed out that it asked for issues regarding cost impacts (or the absence of them) to be included in the contested case and that request was denied by the MPCA Board.  Whether grounds exist for a waiver of the rule is not part of this contested case proceeding.  The motion of MPCA and MCEA to exclude pages 10 and 11 and Appendix 8 of the Robinson testimony is granted.

MCEA objected to the longitudinal sampling testimony of Robinson (on pages 4-6 and appendices 2-5) as not having been disclosed in discovery.  MCEA also objected to the foundation for this sampling and maintained that it constitutes hearsay.  As discussed in the objection to Dr. Perry’s testimony, above, time has cured the failure to identify in discovery the specific information that is attached to Robinson’s testimony.  The parties will have the opportunity to inquire into the foundation for sampling testimony during cross-examination.  If that testimony does constitute hearsay, the reliability of the evidence will be assessed at that time.  MCEA’s objection to the sampling portion of Robinson’s testimony is denied.

Robinson’s testimony includes USGS survey water flow information and a summary of industrial phosphorus reductions to influent to the City’s WWTF.  MCEA objected to this testimony as irrelevant and outside the scope of this contested case.  Water flow is related to the potential for adverse impacts on lakes or reservoirs.  The objection is denied.  MCEA’s objection goes to the weight of the evidence (which will be measured accordingly), but the evidence is admissible.  Demonstrated reductions of phosphorus influents to the City’s WWTF support the City’s assertion that its phosphorus discharge has been reduced in recent years.  This evidence lends support to the City’s assertion that there are no measurable impacts on lakes or reservoirs from the phosphorus discharge from the City’s WWTF.

MCEA - Erdmann

MCEA objects to all the exhibits attached to the testimony of Dr. John Erdmann as not having been disclosed during discovery.  As with the similar objections discussed above, time has cured any surprise and afforded ample opportunity to address this information at the hearing in this matter.  MCEA’s objection to Dr. Erdmann’s testimony is denied.

MCEA - Heiskary

MCEA objects to the testimony of Steve Heiskary regarding the original promulgation of the phosphorus rule as lacking foundation.  MCEA notes that the witness has worked as an MPCA staffer “only since 1978” but the rule was promulgated in 1973.[26]  The objection is denied.  This is essentially a foundation objection.  There is no obligation on an agency to rely solely upon personnel who were present at the initiation of a policy to testify regarding that policy.  Since agency policies can outlast their staff, any other holding would be unreasonable.

MCEA also objects to Heiskary’s characterization of the reputation of the BATHTUB model in the national scientific community as lacking foundation.  This is an appropriate inquiry for cross-examination.  Similarly, MCEA objected to the bald statement by the witness that the BATHTUB model had been validated for accuracy.  That too should be inquired into on cross-examination.  The objections are denied.

Heiskary testified that David Schuler of the Saint Paul Water Utility supported the MPCA staff’s conclusion that the City’s WWTF discharge did not affect the Vadnais Chain of Lakes.  MCEA objected to this testimony as hearsay.  As noted above, the Court of Appeals has determined that the City’s discharge does not affect the Vadnais Chain of Lakes as a matter of law.  Since the issue is moot, this testimony is properly excluded.  MCEA’s objection to the Schuler reference is granted.

City - Klang

MCEA offered the deposition of James Klang, an MPCA Engineer, as testimony in this matter.  The City objected to the Klang testimony as irrelevant to any issue in this contested case.  At the deposition, both the City and MPCA staff made the same objection.  All of the Klang testimony relates to nutrient trading for the purposes of setting total maximum daily load (TMDL) discharges of wastes.  TMDLs apply to dischargers when the discharge is affecting an impaired water.[27]  MCEA has not shown that evidence regarding TMDL discharges or nutrient trading has any relation to any issue in this matter.  The objections to the Klang testimony are granted, and his testimony is excluded.

City Motion in Limine

The City moved to exclude the testimony of MCEA’s witnesses Dick Osgood, Dr. Engstrom, Dr. Perry, John Enblom, Mark Ten Eyck, and Dr. Wedlund on a variety of grounds.  According the City, the testimony is, variously: cumulative, irrelevant, or unsupported by scientific consensus.  The City’s objection regarding cumulative testimony is insufficiently detailed to support excluding any particular testimony.

The City’s relevance objection relies upon MPCA having defined “reservoir” and “affects” in the Phosphorus Strategy.  The Phosphorus Strategy is not a promulgated rule.  While the document does express MPCA policy regarding how the phosphorus rule is applied, the Phosphorus Strategy does not have the force and effect of law.  Therefore, contrary to the City’s assertion, residence time of fourteen days is not a requirement for a water body to fall within the definition of reservoir.  Residence time is a factor, to be considered with other factors, in determining whether a particular water body is a reservoir.  The testimony of MCEA’s witnesses is relevant to the issue of whether the Coon Rapids Pool is a lake or reservoir within the meaning of the phosphorus rule.  The relevance objection is denied.

The City objected to the testimony of Dick Osgood, Dr. Engstrom, and Dr. Perry as being based on principles not supported by the general scientific community.  The background for such objections was recently set out by the Minnesota Supreme Court as follows:

In our decision in State v. Kolander, 236 Minn. 209, 221-22, 52 N.W.2d 458, 465 (1952), we adopted the standard for the admissibility of evidence obtained from new scientific techniques that was set forth in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), which requires “general acceptance in the particular field in which [the scientific principle or discovery] belongs.” Frye, 293 F. at 1014.  Subsequently, we stated in our decision in State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980), that “the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.”  We stated that the particular evidence must have a foundation that is scientifically reliable.[28]

When a Frye-Mack challenge is made to scientific evidence, the Minnesota Supreme Court has set out the standards that must be met as follows:

As a result of Frye and Mack, a two-pronged standard has emerged in Minnesota that must be satisfied before scientific evidence may be admitted.  First, a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community, and second, the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable.  Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn. 2000) (reaffirming adherence to Frye-Mack standard after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).  Put another way, the Frye-Mack standard asks first whether experts in the field widely share the view that the results of scientific testing are scientifically reliable, and second whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls.  State v. Jobe, 486 N.W.2d 407, 419 (Minn. 1992).

The trial court determines whether the Frye-Mack standard has been satisfied by means of a pretrial hearing.  When the scientific technique that produces the scientific evidence is no longer novel or emerging, then the pretrial hearing should focus on the second prong of the Frye-Mackstandard.  See Jobe, 486 N.W.2d at 420.[29]

In this matter, the City has introduced no evidence to suggest that the scientific technique of analyzing samples to determine the level of phosphorus present is in any way novel or not widely accepted in the scientific community.  The appropriate focus on the City’s challenge should be on whether the appropriate standards are being applied to the testing.

The City asserts that the witnesses are propounding a number of unsupported principles in reaching their conclusions.  These principles include: 1) existence of an inevitable direct, positive correlation between total phosphorus and algal growth; and, 2) existence of a lake management “rule of thumb” that one pound of phosphorus contributes to the growth of 500 pounds of algae.

The City’s first principle, regarding the inevitable correlation between total phosphorus and algae, has not been shown to be espoused by the MCEA’s witnesses.  Every witness, when asked, notes that other factors matter in algal growth.  The witnesses have stated that often phosphorus is the limiting factor, meaning that there is no impairment in algal growth in a particular surface water caused by limits on the other factors necessary for algal growth.  The principle actually held by the MCEA’s witnesses appears to be widely accepted in the scientific community.

The second principle, that a rule of thumb exists as to algal growth per pound of phosphorus discharged into surface water, is not a critical aspect of any portion of any testimony submitted by MCEA.  Indeed, the City has presented no scientific evidence in support of its contention that there is no such “rule of thumb.”[30]  At a bare minimum, some credible scientific opinion must be presented to support a party’s contention that a concept is outside of accepted scientific procedure.  Under these circumstances, application of the Frye-Mackstandards to exclude MCEA’s expert witnesses is inappropriate.  The City’s Motion in Limine, with the exception of the Klang testimony discussed above, is denied.

Burden of Proof

MCEA moved for a clarification that the City bears the burden of proof in this proceeding.  The City and MPCA staff objected to the motion, maintaining that MCEA has requested this contested case hearing and, therefore, MCEA appropriately bears the burden of proof.

The burden of proof in contested case proceedings is governed by Minn. Rule 1400.7300, subp. 5, which states:

Subp. 5. Burden of proof. The party proposing that certain action be taken must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden or standard. A party asserting an affirmative defense shall have the burden of proving the existence of the defense by a preponderance of the evidence. In employee disciplinary actions, the agency or political subdivision initiating the disciplinary action shall have the burden of proof.

In this matter, the City applied for a NPDES permit and MPCA staff proposed that the permit be granted.  MCEA requested that a contested case hearing be held to determine whether the City’s WWTF phosphorus discharge affects a lake or reservoir.  MPCA staff recommended that the contested case request be denied.  The MPCA Board approved the contested case request and described the issue of the proceeding as follows:

The purpose of the hearing will be to receive and consider evidence bearing upon the issue of whether the discharge of phosphorus from the St. Cloud wastewater treatment plant affects a lake or reservoir.[31]

MPCA staff concluded that the City had shown it was entitled to the NPDES permit.  The MPCA Board did not deny the City’s request for a permit.  Such a denial would trigger the City’s appeal right where the City would bear the burden of proof.  With the MPCA Board granting the MCEA’s request for a contested case hearing without denying the permit application, the MCEA is the “party proposing that certain action be taken” within the meaning of Minn. Rule 1400.7300, subp. 5.[32]  To hold otherwise would place the City in the position of having to “prove a negative” which is inconsistent with the rules governing contested cases and fundamental concepts of due process.

Direct Examination of Witnesses

The prehearing order in this matter established that direct testimony would be filed before the hearing and the witnesses would be cross-examined at the hearing.  MCEA has requested that this order be revisited to provide for direct examination of witnesses at the hearing.  MPCA staff and the City opposed this request.  The purpose of prefiled testimony is to afford parties the opportunity to examine the evidence and efficiently determine what is at issue.  There is no benefit to be obtained, particularly given the volume of evidence filed, from reiterating the content of those filings from the witness stand.

The usual practice in complex cases (such as this one) is to afford the witness a short period at the hearing before cross-examination to summarize their testimony or respond briefly (absent a round of rebuttal testimony) to other witnesses’ direct testimony.  Additionally, redirect examination is typically not strictly limited to the scope of cross-examination.  The other limitations (such as relevance and prohibition against cumulative testimony) do apply and will be enforced at the hearing.

Party Status of MPCA Staff

In its Motion in Limine, MCEA objected to MPCA staff participating in this contested case hearing without clarification as to their status.  MCEA argued that having MPCA staff participating without formal intervention as a party would create a conflict resulting in prejudice.

Almost invariably, contested cases are handled by agency staff representing the agency position in the proceeding.  The only requirement for nonparticipation is that the ultimate agency decisionmaker be separate from the advocacy staff participating in the case.  The ultimate decisionmaker can be delegated the task, thereby allowing the agency head to participate in the advocacy of the proceeding.[33]   MCEA has not cited any case or identified any fact that suggests that the MPCA Board, which is the ultimate decisionmaker in this matter, is deviating from the normal contested case process just outlined.  MCEA’s request for clarification on this issue is denied.

R.C.L.