Fred Wescott as Representative of the Responsible Rural Land Use Coalition, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1358

Fred Wescott as Representative of the Responsible Rural Land Use Coalition,
Relator,

vs.

Wabasha County Board of Commissioners,
Respondent.

Filed June 26, 2017
Affirmed
Bjorkman, Judge

Wabasha County Board of Commissioners
Resolution No. 2016-184

John A. Abress, Mark E. Utz, Wendland Utz, Ltd., Rochester, Minnesota (for relator)

Jason J. Kuboushek, Brian P. Taylo r, Iverson Reuvers Condon, Bloomington, Minnesota
(for respondent)

Considered and decided by Bjorkman, Presiding Judge; Hooten, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Relator challenges respondent’s decision that an environmental -assessment
worksheet is not needed with respect to a proposed agronomy center , arguing that the
decision is arbitrary and capricious, is not supported by substantial evidence, and that

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respondent failed to consider material evidence that the project may have the potential for
significant environmental effects. We affirm.
FACTS
On May 20, 2016, John and Lucille Sell applied for a conditional-use permit (CUP)
to construct and operate an agronomy center in Elgin (the project). The land is currently
zoned for agricultural uses, and has been use d for row-crop production. The application
indicated that the agronomy center would be operated by Progressive Ag Center, LLC, and
would provide products and services for agricultural operations in southeastern Minnesota.
During the first phase of the project, the agronomy center would store and distribute dry
crop-nutrient products. During the later phases , operations would expand to include
storage and distribution of anhydrous ammonia, liquid crop nutrients, seed, and crop-
protection products. The application states the project would meet all local and regional
building codes, and meet or exceed Minnesota Department of Agriculture (MDA)
requirements.
On July 11, relator Fred Wescott as Representative of the Responsible Rural Land
Use Coalition (Wescott), submitted a citizen petition to the Environmental Quality Board
(EQB) requesting that an environmental-assessment worksheet (EAW) be completed for
the project. The petition allege s that the land is particularly sensitive and that the project
has the potential to cause significant environmental impacts, including potential release of
hazardous chemical s, decreased air quality, increased traffic, noise, stormwater runoff,
odors, possible theft of anhydrous ammonia, and negative impact on wildlife. The EQB

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determined that respondent Wabasha County Board of Commissioners (the county board)
is the responsible government unit (RGU) to evaluate the petition.
On July 22, Wabasha County Zoning Administrator Kevin Krause issued a report
recommending that the county board deny the EAW request. Krause noted that the petition
identifies valid concerns about the area’s drinking water, but cites little to no evidence that
the project would have a significant effec t on water quality. He observed that Wescott’s
submission reveal s that the majority of the nitrates currently present in the area
groundwater result from row-crop agriculture. The project will reduce the amount of land
dedicated to row-crop production. Krause further noted that the MDA and the Minnesota
Pollution Control Agency (MPCA) would ensure the project does not pose a significant
environmental risk through licensing and permitting regulations. Krause ultimately
concluded that the EAW petition did not demonstrate the project has the potential for
significant environmental effects.
On July 26, the county boar d conducted a public hearing on the petition . Krause
explained that the petition and supporting documents identify generalized concerns about
the project’s impact on the environment but do not provide evidence linking any aspect of
the project to those concerns. And he again stressed that any environmental concerns
would be mitigated by ongoing regulatory oversight by the MDA, MPCA, and Wabasha
County. After hearing comm ents from members of the public , including Wescott , the
county board voted to issue a negative declaration on the need for an EAW . Krause sent
Wescott a notice of the county board’s decision the next day. On August 2, the county
board approved the CUP application. The CUP requires the operator to abide by all

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representations and commitments in the application, ensure delivery trucks and customers
cover loads, provide dust control for portions of the gravel driveway, and not store
ammonium nitrate. Wescott appeals by writ of certiorari.
D E C I S I O N
An EAW may be required if a citizen petition demonstrates that, because of the
nature and location of a proposed project, “there may be potential for significant
environmental effects.” Minn. Stat. § 116D.04, subd. 2a(c) (2016); see also Minn. R.
4410.1100 (2015) (governing petition process). Final decisions on whether to require an
EAW are appealable to this court by certiorari. Minn. Stat. § 116D.04, subd. 10 (2016).
Under this deferential standard of review, we consider whether an RGU’s decision reflects
an error of law, is arbitrary or capricious, or is unsupported by substantial evidence.
Citizens Advocating Responsible Dev. v. Kandiyohi Cty. Bd. of Comm’rs, 713 N.W.2d 817,
832 (Minn. 2006).
Wescott argues that the county board’s decision not to require an EAW is arbitrary
and capricious and unsupported by substantial evidence.
An agency’s decision is arbitrary or capricious if the agency
(a) relied on factors the legislature never intended it to
consider, (b) entirely failed to consider an important aspect of
the problem, (c) offered an explanation for the decision that
runs counter to the evidence, or (d) rendered a decision so
implausible that it could not be ascribed to a difference in view
or the result of agency expertise.

Watab Twp. Citizen All. v. Benton Cty. Bd. of Comm’rs , 728 N.W.2d 82, 89 (Minn. App.
2007), review denied (Minn. May 15, 2007). In determining whether a decision is
supported by substantial evidence, we consider whether the agency has taken a “hard look”

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at the salient issues and engaged in reasoned decision -making. Id. (quotation omitted).
Substantial evidence is: “1. Such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion; 2. More than a scintilla of evidence; 3. More than some
evidence; 4. More than any evidence; and 5. Evidence considered in its entirety.” Minn.
Ctr. for Envtl. Advocacy v. Comm ’r of Minn. Pollution Control Agency , 696 N.W.2d 95,
105 (Minn. App. 2005) (quotation omitted). The party challenging an agency decision has
the burden of proof. Id. at 100.
In deciding whether a project has the potential for significant environmental effects,
the county board was required to consider:
A. [the] type, extent, and reversibility of environmental
effects;
B. [the] cumulative potential effects. The RGU shall
consider the following factors: whether the cumulative
potential effect is significant; whether the contribution from
the project is significant when viewed in connection with other
contributions to the cumulative potential effect; the degree to
which the project complies with approved mitigation measures
specifically designed to address the cumulative potential
effect; and the efforts of the proposer to minimize the
contributions from the project;
C. the extent to which the environmental effects are
subject to mitigation by ongoing public regulatory authority.
The RGU may rely only on mitigation measures that are
specific and that can be reasonably expected to effectively
mitigate the identified environmental impacts of the project;
and
D. the extent to which environmental effects can be
anticipated and controlled as a result of other available
environmental studies undertaken by public agencies or the
project proposer, including other EISs.

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Minn. R. 4410.1700, subp. 7 (2015). It is undisputed that the county board addressed all
of these factors. And Wescott does not challenge any of the county board’s findings.
Rather, he argues that the county board overlooked material evidence in the record
demonstrating the project has the potential for significant environmental effects. We ar e
not persuaded.
The threshold question under the EAW statute is “whether there is material evidence
that the project may have the potential for significant environmental effects.” Watab, 728
N.W.2d at 90. Material evidence means “such evidence as is a dmissible, relevant, and
consequential to determine whether the project may have the potential for significant
environmental effects.” Id. Vague and generalized fears and concerns do not constitute
material evidence. Id.
Wescott submitted a 58-page petition with 182 pages of attachments. Many of the
concerns reflected in these materials relate to the potential environmental effects if a spill
or leak occurred at the facility or during transit to or away from the facility. But the petition
does not p resent any evidence suggesting such spills or leak s are likely to occur . The
supporting documents describe spills and leaks that have occurred at unrelated facilities
run by other companies in different locations. Wescott ’s assertion that “something could
go wrong . . . because accidents do happen” is the type of vague and generalized concern
that does not meet the material-evidence threshold under the statute. Id. Moreover, the
county board properly considered “the extent to which the environmental ef fects are
subject to mitigation by ongoing public regulatory authority.” Minn. R. 4410.1700, subp.
7(C). The county board noted that environmental effects are subject to mitigation by the

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ongoing public regulatory authority of the MDA, MPCA, Minnesota De partment of
Natural Resources, and the county. See Friends of Twin Lakes v. City of Roseville , 764
N.W.2d 378, 382 (Minn. App. 2009) (stating caselaw supports the use of “regulatory
oversight as a means of preventing significant environmental effects”). The petition
contains no evidence that these regulations will not sufficiently address any potential
negative environmental effects.
The petition also cites several generalized concerns that are allayed by project -
specific evidence presented to the cou nty board by the CUP applicant . For example, the
petition alleges that the land is particularly vulnerable because the region contains karst
landscapes. Karst landscapes form when limestone and dolomite are dissolved by
rainwater, leaving the drinking wa ter wells in the area susceptible to contamination. But
the record defeats this contention. A geotechnical evaluation performed at the location of
the project show s the landscape is, in fact, “very dense.” Wescott also singles out the
negative impact of increased traffic related to the project. But Wabasha County Highway
Engineer Dietrich Flesch reviewed the projections for the increased traffic volume and
determined the location of the project “me[t] the requirements of the Highway Department
without any warranted road improvements.” Additionally, potential air quality effects will
be mitigated by the requirements that trucks be loaded in an enclosed area and must be
covered before leaving the facility.
Finally, Wescott argues an EAW should be completed because the agronomy center
will eventually handle anhydrous ammonia. EAWs are required for f acilities that are
capable of storing 100,000 gallons or more of anhydrous ammonia. Minn. R. 4410.4300,

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subp. 10( C) (2015). At the public hearing , the county board confirmed with the CUP
applicant that the facility will store less than 100,000 gallons of anhydrous ammonia. And
the county board noted during the hearing that a revised CUP would be required if the
applicant wanted to expand to store over 100,000 gallons in the future. The possibility that
larger amounts of anhydrous ammonia may be stored at the facility in the future does not
warrant an EAW at this time.
We appreciate Wescott’s concerns about the impact o n the air, water, wildlife, and
neighboring farms. And we assume he and other members of the public will notify the
county board or the regulatory entities if the CUP conditions are violated. But at this
junction, Wescott has not established material evidence of potential signifi cant
environmental effect s associated with the project. On this record, we conclude that
substantial evidence supports the county board’s decision. And because the county board
applied the appropriate factors and thoroughly considered Wescott’s petition, its decision
that an EAW is unnecessary is neither arbitrary nor capricious.
Affirmed.