Reserve Mining Co. v. Herbst

256 N.W.2d 808, 10 ERC 1114, 10 ERC (BNA) 114, 1977 Minn. LEXIS 1510
CourtSupreme Court of Minnesota
DecidedMay 27, 1977
Docket47504, 47528, 47529, 47530, 47537 and 47575
StatusPublished
Cited by327 cases

This text of 256 N.W.2d 808 (Reserve Mining Co. v. Herbst) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 10 ERC 1114, 10 ERC (BNA) 114, 1977 Minn. LEXIS 1510 (Mich. 1977).

Opinions

OTIS, Justice.

These appeals arise from proceedings which were initiated on November 18, 1974, by Reserve Mining Company (Reserve) to obtain permits from the commissioner of the Department of Natural Resources [812]*812(DNR) and the Minnesota Pollution Control Agency (PCA) for construction of an on-land disposal site at Mile Post 7 near Silver Bay in Lake County in response to mandates of the Federal court to discontinue the use of Lake Superior for the disposal of tailings. Both agencies appointed as a hearing officer Wayne H. Olson, an attorney, previously commissioner of the Department of Natural Resources, who took testimony from June 23, 1975, to March 18, 1976, and on June 23, 1976. He made findings and on May 26, 1976, recommended against granting permits for Mile Post 7 in favor of an alternative site, preferably Midway, hereafter referred to as Mile Post 20. The PCA Board rejected these recommendations on June 15, 1976, but thereafter reversed its decision and on July 1, 1976, joined the DNR in accepting the hearing officer’s recommendations. (See appendix for maps of alternative sites.)

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

Oral arguments were presented to the full court on April 7, 1977.1 On April 8, 1977, the court rendered the following decision to which this opinion is addressed:2

“The orders and judgments of the District Court of Lake County, Sixth Judicial District, from which appeals have been taken in the above entitled matters are affirmed by unanimous decision of the court subject to the conditions hereinafter set forth.
“The Commissioner of Natural Resources and the Minnesota Pollution Control Agency are accordingly directed to issue forthwith permits for an on-land disposal facility at Mile Post 7 for which Reserve Mining Company has applied. Such permits shall be subject to all of the conditions heretofore demanded by the Minnesota Pollution Control Agency and the Commissioner of Natural Resources, or both, which in all respects have been accepted by Reserve, Armco Steel Corporation, and Republic Steel Corporation, including the following:
,“a) The permit shall be limited to a specific five-year term.
“b) Armco and Republic shall be co-permittees with Reserve Mining Company.
“c) The permittees shall assume all risks and liabilities arising from the implementation of the Mile Post 7 on-land disposal site and system.
“d) The permittees shall be required to perpetually maintain the tailings basin site to insure the integrity of the basin structures and to prevent the deposited tailings from re-entering the air and water of the state.
“e) All tailings except those used for dam and dike construction shall be placed underwater in the tailings basin during operations to the maximum extent possi[813]*813ble with all exposed tailings to be adequately vegetated as soon as possible. Upon termination, the entire tailings basin shall be totally vegetated as soon as possible using the then best available technology.
“f) All tailings shall be disposed of in the Mile Post 7 permitted on-land tailings disposal system facility. The permittees shall be prohibited from using or allowing any other person or governmental entity to use tailings for any other purpose.
“g) The permittees shall be required to apply the best available technology to maintain air quality and to comply with all applicable laws and regulations, specifically including Minn.Reg. APC 1 and APC 6 and such other standards which now or in the future may apply to the permittees’ tailings. This technology shall include specifically, but not exclusively, the use of spray water and effective and non-polluting chemical binders and other dust retardants on all exposed surfaces of tailings and upon all access and haul roads. In addition, only containerized or indoor and totally covered tailings stockpiles shall be permitted outside the disposal area.
“h) The permittees shall be required to apply the best available technology to maintain water quality and to comply with all applicable laws and regulations, specifically including Minn.Reg. WPC 14 and such other standards which now or in the future may be applied to the permit-tees’ tailings. This technology shall include specifically, but not exclusively, the following:
“1) The tailings disposal system shall be operated as a closed system including the collection of seepage and surface runoff for return to the basin.
“2) A dual pipeline system with required controls, spill detection devices, emergency catchment basins and other protective devices.
“3) Any water discharge from the tailings or catchment basin shall be treated to the extent necessary to conform to all present and future water quality standards.
“i) The permittees shall be required to monitor the Mile Post 7 basin structures and the air and water in and adjacent to the tailings disposal area for the purpose of enabling any reaction to any potentially hazardous condition. The permittees shall establish an air and water monitoring program to be approved by the Minnesota Pollution Control Agency and shall operate this monitoring program with the capability of providing informa-' tion necessary for rapid response in applying mitigating measures and procedures. Such air and water monitoring shall include, but is not limited to, the identification and counting of fibers by such methods as x-ray diffraction, electron microscopy or any other methods as the PCA may specify.
“j) Reasonable costs for monitoring and analysis beyond the routine compliance monitoring conducted by the PCA or consultants directed by the PCA shall be borne by the permittees.
“k) Dam design, construction and operations consistent with the recommendations of the Minnesota Pollution Control Agency staff and the state’s consultants. The reasonable costs of such consultants shall be borne by the permittees.
1)Any other conditions to which the parties have agreed.”

The basic issues which emerge on this appeal are as follows:

1) What is the proper scope of review of decisions of the DNR and PCA by the district court and by this court?

2) Does the evidence support a finding by the DNR and PCA that the use of Mile Post 7 as a tailings site would cause such pollution and so impair or destroy the air, water, land, and other natural resources of the state that the use of a site such as Mile Post 20 may be mandated as a feasible, prudent, and economical alternative consistent with reasonable requirements of the public health, safety, and welfare?

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Bluebook (online)
256 N.W.2d 808, 10 ERC 1114, 10 ERC (BNA) 114, 1977 Minn. LEXIS 1510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reserve-mining-co-v-herbst-minn-1977.