Nancy Leppink, Commissioner of the Minnesota Department of Labor and Industry, et al., Respondents,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1975

Nancy Leppink,
Commissioner of the Minnesota Department of Labor and Industry, et al.,
Respondents,

vs.

Water Gremlin Company,
Appellant.

Filed June 1, 2020
Affirmed
Cochran, Judge

Ramsey County District Court
File No. 62-CV-19-7606

Keith Ellison, Attorney General, Peter Surdo, Special Assistan t Attorney General, Oliver
Larson, Colin O’Donovan, A ssistant Attorneys General, St. Paul, Minnesota
(for respondents)

Thaddeus R. Lightfoot, Timothy J. Droske, Anna K.B. Finstrom, Nur Ibrahim, Dorsey &
Whitney LLP, Minneapolis, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Cochran, Judge.
S Y L L A B U S
A “public health nuisance” un der Minn. Stat. § 145.075 (2018) is any activity or
failure to act that adversely affects the public health. An activity or failure to act affects
the public health if it affe cts a considerable number of pe rsons, even if the effects are
geographically dispersed.

2
O P I N I O N
COCHRAN, Judge
Appellant Water Gremlin Company challenge s portions of an injunction order that
require it to test for and clean up lead in the homes of its current and former employees.
We affirm.
FACTS
This action stems from the discovery of a c ohort of children with elevated levels of
lead in their blood. Each affected child has at least one parent who was employed by Water
Gremlin at the company’s plan t in White Bear Township, wh ere lead fishing sinkers and
battery terminals are manufact ured. Following multiple insp ections of Water Gremlin’s
operations, the department of labor and industry issued an order temporarily shutting down
operations at the plant on October 28, 2019.
Also on October 28, 2019, the commi ssioner of labor and industry and the
commissioner of health (respo ndents in this appeal) filed a complaint and a motion for a
“preliminary injunction” in district court.1 The complaint alleges that, following reports of
the cohort of children with el evated blood lead levels, Ra msey County conducted an
investigation that ruled out sources of lead exposure among the chil dren other than lead
from the Water Gremlin plant. According to the complaint, investigators “found incredibly
high concentrations of lead in the Water Gr emlin employees’ cars, and elevated levels in

1 Preliminary injunction is a term generally used in federal court, while the Minnesota
Rules of Civil Procedure use “temporary injunction.” See Minn. R. Civ. P. 65.02
(governing temporary injunctions).

3
certain areas of their homes, such as entryw ay floors and closets.” The complaint further
alleges that the investigators concluded that “take-home” lead dust from the Water Gremlin
plant was the source of lead resulting in the el evated blood lead levels in the employees’
children. And the complaint alleges that Ra msey County attempted to work with Water
Gremlin to improve its industrial practices, but that after many months and the discovery
of additional children with elev ated blood lead levels, Ramsey County escalated the case
to the department of health.
The complaint cites the commissioners’ and district court’s authority under
Minnesota Statutes sections 145.075 and 182.662 (2018). As relief, the commissioners
requested that operations at Water Gremlin be enjoined until it adopted measures to prevent
the migration of lead from its plant, that Wa ter Gremlin be required to facilitate notice to
affected individuals, and that Water Gremlin engage in contamination cleanup, including
testing and cleaning of employee vehicles and residences.
Following a hearing on October 31, 2019, the district court issued an order granting
a temporary injunction, enjoining operatio ns (continuing the shutdown), requiring the
parties to meet and confer on a phased reme diation plan, and contin uing the matter to
November 1, 2019. On November 1, 2019, the district court held a hearing and signed an
order that lifted the injunction against manufacturing operations on November 5, 2019, and
required Water Gremlin to co mply with enumerated phase -one requirements, including
employee training, worksite modifications, and third-party monitoring to ensure effective
workplace procedures.

4
On November 6, 2019, the district court held a hearing on the remaining phases of
the remediation plan. In a written submissi on to the district court and during the
November 6 hearing, Water Gremlin challenge d the authority of the commissioners and
the district court to require Water Gremlin to perform testing and cleanup in residences of
past and current employees. Water Gremlin argued that the commissioner of health was
not authorized to seek such injunctive re lief under Minn. Stat. § 145.075 because the
migration of lead from Water Gremlin’s plan t into a number of employee homes did not
constitute a “public health nuisance” within the mean ing of that statute. See Minn.
Stat. § 145.075 (authorizing commissioner of health to bring district court action to enjoin
a public health nuisance). And Water Gremlin argued that the commissioner of labor and
industry was not authorized to request such injunctive relief under Minn. Stat. § 182.662
because there were no “identified issues with the manufacturing process,” and neither state
nor federal law “provide any specific regulations related to the migration of lead particles
from the workplace to other locations.” See Minn. Stat. §§ 182.655 (governing adoption
and enforcement of occupational safety and he alth standards), .662 (providing procedure
for commissioner of labor and industry to se ek injunctive relief re lated to dangerous
workplace conditions) (2018).
On November 22, 2019, the district court issued an order adopting phase-two and
phase-three requirements. The November 22 order included a variety of measures designed
to reduce lead exposure in non-production area s of the plant and to prevent migration of
“take-home” lead from the plant. The order also required cl eaning of employee vehicles
as well as residential lead testing and cleanup. The only provisions of the order that Water

5
Gremlin challenges on appeal are those relate d to residential testi ng and cleanup. The
specific language at issue is set forth below:
Residential Testing and Cleanup

9. The Commissioners sh all provide notice of
potential residential lead contam ination to all current Water
Gremlin employees, and former employees who worked at
Water Gremlin within the past two years, including full-time,
part-time, and temporary employees. All notified employees
shall be given the option of having their homes tested for lead
contamination at no cost to them. Testing shall occur only with
the express consent of the employee-resident.

10. Water Gremlin shall, th rough the use of certified
lead abatement contractors, conduct testing of the homes of all
employees who request testing. Employees whose homes test
above the applicable residential lead standards that exist at the
time of testing shall be given the option of having their homes
decontaminated at no cost to them. Cleanup shall occur only
with the express consent of the employee-resident.

11. Water Gremlin shall, th rough the use of certified
lead abatement contractors, conduct the cleanup of the
contaminated homes of current and former full-time and
part-time employees who request cleanup. The
decontamination standard shal l be the residential lead
standards that exist at the time cleanup takes place. (See Minn.
R. 4761.2510, subp. 2.)

12. This Court may, based on testing results, expand
the scope of Water Gremlin’s cleanup duty to current and
former temporary employee homes contaminated by
above-standard levels of take-home lead.

13. All initial and post-ab atement testing results
shall be reported by the certif ied lead abatement contractors
directly to the Commissioners.

On December 10, 2019, Water Gremlin a ppealed the November 22 injunction order
and filed a motion to expedite the appeal, which this court granted. On December 27, 2019,

6
the district court issued an order staying paragraphs 10-13 of the November 22 order
pending this appeal but ordering the partie s to proceed with the notices required by
paragraph 9.
Also on December 27, 2019, the district court issued an order setting forth findings
of fact and conclusions of law related to its prior orders, which it incorporated into its prior
orders. In the order, the district court found that “Water Gremlin has failed to take the
steps necessary to prevent its employees from carrying lead off site, thereby endangering
the safety of employees’ children, subsequent occupants of contaminated residences and
vehicles, and anyone else who comes in cont act with such areas.” The court further
determined that “the migration of lead from the Water Gremlin plant into the homes and
vehicles of past and present Water Gremlin employees is a ‘public health nuisance’ within
the definition of Minn. Stat. § 145.075.”
ISSUES
I. Did the district court err by determin ing that Water Gremlin’s failure to
prevent the migration of lead from its plant to its employees’ homes is a public health
nuisance under Minn. Stat. § 145.075?
II. Should this court reach Water Gremlin ’s argument that the district court
exceeded the scope of its in junctive authority under Minn. Stat. § 145.075 by requiring
Water Gremlin to perform residential lead testing and cleanup?
ANALYSIS
This court reviews a district court decision granting injunctive relief for an abuse of
discretion. See Carl Bolander & Sons Co. v. City of Minneapolis , 502 N.W.2d 203,

7
209 (Minn. 1993) (temporary injunction); Cherne Indus., Inc. v. Grounds & Assocs., Inc.,
278 N.W.2d 81, 91 (Minn. 1979) (permanent injunction). 2 “A district court’s findings
regarding entitlement to injunctive relief will not be set aside unless clearly erroneous.”
Haley v. Forcelle , 669 N.W.2d 48, 55 (Minn. App. 2003), review denied (Minn.
Nov. 25, 2003). But we apply a de novo standard of review to statutory interpretation and
the application of a statut e to undisputed facts. State v. Minn. Sch. of Bus., Inc. ,
899 N.W.2d 467, 471 (Minn. 2017).
The crux of this appeal is the scope of the district court’s authority under Minn.
Stat. § 145.075, which provides in its entirety:
In addition to any other remedy provided by law, the
commissioner [of health] ma y in the commissioner’s own
name bring an action in the court of appropriate jurisdiction to
enjoin any violation of a statute or rule which the
commissioner is empowered to enfo rce or adopt, or to enjoin
as a public health nuisance any ac tivity or failure to act that
adversely affects the public health.

2 The law generally distinguishes between temporary and permanent injunctions. See, e.g.,
State ex rel. Neighbors Organized in Support of Env’t v. Dotty, 396 N.W.2d 55, 58 (Minn.
App. 1986). Before granting a temporary inj unction, a district court must consider the
factors articulated by the supreme court in Dahlberg Bros., Inc. v. Ford Motor Co. ,
137 N.W.2d 314, 321-22 (Minn. 1965). See In re Estate of Nelson , 936 N.W.2d 897,
910-11 (Minn. App. 2019) (re versing temporary injunction issued without considering
Dahlberg factors); Dotty, 396 N.W.2d at 58-59 (rejecting argument that appellant was
entitled to temporary statutory inj unction without consideration of Dahlberg factors). A
critical distinction between temporary and permanent injunctions is that “the facts on which
the [district] court acts in granting a temporary injunction are, by the nature of the situation,
provisional and . . . the injunctive authority exercised will conti nue only until a more
scientific analysis of the problem is made possible by trial on the merits.” Dahlberg,
137 N.W.2d at 321. In this case, the district court did not apply the Dahlberg factors and
granted what is, in essence, complete relief in the form of a temporary injunction based on
provisional findings. Because Water Gremlin do es not assert error in this regard, we do
not address the propriety of the district court’s injunction proceedings.

8
Water Gremlin makes two arguments on appeal in support of its assertion that the
district court exceeded its aut hority under section 145.075. Fi rst, Water Gremlin asserts,
as it did before the district court, that the authority for the injunction in this case cannot be
based on section 145.075 because the circumst ances underlying this case do not meet the
definition of a “public health nuisance” under that statute and because there has been no
allegation or finding of any statute or rule violation.3 Second, for the first time on appeal,
Water Gremlin argues that, even if its failure to prevent the migration of lead from its plant
is a “public health nuisance,” the scope of the district court’s authority under
section 145.075 extends only to enjoining the “activity or failure to act” that constitutes the
public health nuisance, and does not extend to requiring residential testing and cleanup.
We address each argument in turn. 4

3 Water Gremlin limits its challenge in this appeal to the provisions of the order requiring
residential testing and cleanup. Counsel for Water Gremlin asserted at oral argument that
the vehicle-cleaning requirements of the orde r could be challenged on the same grounds
on which it is challenging the residential requirements, but that Water Gremlin has elected
to comply with the vehicle-cleaning requirements.
4 Water Gremlin also asserts that the injunction cannot be based on Minn. Stat. § 182.662
because the authority of the commissioner of labor and industry under that statute is limited
to conditions in the workplace. In response, the commissioners state that the district court
did not make findings and conclusions as to whether section 182.66 2 provides authority
for the challenged provisions of the injunction. They also reque st that, if this court does
not affirm under section 145.075, the matter be remanded to the district court “to develop
a record on whether section 182.662 applies.” Because we affirm under section 145.075,
we do not further address the arguments regarding section 182.662.

9
I. The district court did not err by dete rmining that Water Gremlin’s failure to
prevent the migration of lead from its plant is a public health nuisance under
Minn. Stat. § 145.075.

Section 145.075 authorizes a district court to “enjoin” a “public health nuisance,”
which it defines as “any activity or failure to act that adversely affects the public health.”
But the statute does not define “public health .” “When a statute . . . does not contain a
definition of a word or phrase, we look to the common dictionary definition of the word or
phrase to discover its plain and ordinary meaning.” Jaeger v. Palladium Holdings, LLC,
884 N.W.2d 601, 605 (Minn. 2016) (quotation omitted); see also Minn. Stat. § 645.08(1)
(2018) (providing that in construing statutes, words and phrases are to be given “their
common and approved usage”). The term “public health” is commonly understood to mean
“the health of the community at large.” Black’s Law Dictionary 835 (10th ed. 2014).
5
Thus, a “public health nuisance” within the meaning of section 145.075 is any activity or
failure to act that adversely affects the health of the community at large.
Here, the district court found that “Wat er Gremlin has failed to take the steps
necessary to prevent its empl oyees from carrying lead off site, thereby endangering the
safety of employees’ children, subsequent occupants of contaminated residences and
vehicles, and anyone else who comes in contact with such areas.” On this basis, the district

5 “Public health” is sometimes defined as a discipline, rather than a state or condition. See,
e.g., The American Heritage Dictionary of the English Language 1424 (5th ed. 2011)
(defining “public health” as “[t]he scienc e and practice of prot ecting and improving the
health of a community, as by preventive medicine, health education, control of
communicative diseases, application of sa nitary measures, and monitoring of
environmental hazards”). In the context of section 145.075, the state-or-condition
definition is more apt.

10
court concluded that “the migration of lead from the Water Gremlin plant into the homes
and vehicles of past and pres ent Water Gremlin employees is a ‘public health nuisance’
within the definition of Minn. Stat. § 1 45.075.” Based on the plain language of
section 145.075 and the common understanding of “public hea lth,” the district court did
not clearly err in this regard . As the district court explained during the November 6
hearing: “The community that’s impacted is the community of the employees, their
families, their friends, and all those that may have contact with them or their property. The
migration of lead is an unreasonable interference with the public’s right not to be exposed
to lead.”
Relying on public-nuisance caselaw, Water Gremlin argues that lead migrating from
its plant does not adversely affect the public health because it does not affect a large enough
group of people and because the effects are ge ographically dispersed. As we note above,
“public health” is “the health of the community at large.” Black’s Law Dictionary
835 (10th ed. 2014). “Community” in turn, is defined as “[a] neighborhood, vicinity, or
locality” or “[a] society or group of people with similar rights or interests.” Id. at 338. In
the context of public-nuisance claims, the supreme court has recognized that “[a] ‘public’
nuisance does not necessarily mean one affecting the government or the whole community
of the state. Very few nuisances are thus extended in their effects. It is ‘public’ if it affects
the surrounding community generally or the people of some local neighborhood.” Village
of Pine City v. Munch , 44 N.W. 197, 197-98 (Minn. 18 90). The supreme court has also
stated that a nuisance becomes public when “a considerable number of persons” are
affected by it. City of St. Paul v. Gilfillan, 31 N.W. 49, 50 (Minn. 1886). In this case, the

11
district court found that Water Gremlin’s fail ure to prevent the migration of lead from its
plant endangered the health of its employees, their family members, subsequent occupants
of their residences, and all other members of the public who may have come in contact
with their property. 6 The impact of Water Gremlin ’s conduct extends to numerous
members of the surrounding community. We reject Water Gremlin’s argument that this
group of persons was not sufficiently large or localized to support a finding of a public
health nuisance. Id.7
Water Gremlin also argues that lead dust that has migrated to private homes cannot
constitute a public health nuis ance. But the “public health nuisance” within the meaning
of Minn. Stat. § 145.075 found by the district court was “the migration of lead” as a result
of Water Gremlin failing “to take the step s necessary to prevent its employees from
carrying lead off site.” This migration of l ead is adverse to public health because lead
exposure can have very serious health consequences, particularly for young children.8 That

6 While the full scope of the impact of Wate r Gremlin’s conduct is not currently known,
Water Gremlin’s brief to this court acknowledges that as many as 1,000 employees’ homes
may have been affected by “take-home” lead over the last two years.
7 Water Gremlin also relies on this court’s inte rpretation of the word “public” in a statute
governing recreational-use immunity, Minn. Stat. § 604A.20 (2016), in Ouradnik v.
Ouradnik, 897 N.W.2d 300, 306 (Minn. App. 2017). In that case, this court addressed an
argument that an individual was entitled to recreational-use immunity because he opened
his property to family members for recreational use. Ouradnik, 897 N.W.2d at 306. This
court held that recreational-use immunity applies only when a property owner opens up
land for use by the public, and that “public” means “community, which is more than a few
family members.” Id. at 305-06. Ouradnik involved a distinct statutory scheme.
Moreover, the lead migration in this case extended beyond a “few family members.”
8 There is no dispute in this appeal that lead exposure is dangerous for children. The district
court took judicial notice that “lead is a known neurotoxin, and is especially dangerous to
young children.” The district court also accepted as cred ible, for purposes of granting
injunctive relief, a declarati on submitted by the commissioners averring that “even low

12
the consequences of the migration may manifest in private homes does not undermine the
conclusion that Water Gremlin’s failure to take the necessary steps to prevent the migration
of lead is itself “a public health nuisance” w ithin the meaning of the statute. The phrase
“public health nuisance” includes any “ failure to act that adversely affects the public
health.” Minn. Stat. § 145.075 (emphasis added). The statute contains no limit on where
the adverse health effects must occur.
In sum, the record supports the district court’s determination that Water Gremlin’s
failure to take steps to preven t the migration of lead from its manufacturing plant to the
homes of past and present employees is a public health nuisance.
II. Water Gremlin did not properly preser ve, and we therefore do not reach, its
argument that the district court exceeded its authority under Minn.
Stat. § 145.075 by ordering Water Gremlin to conduct residential lead testing
and cleanup.

Water Gremlin next argues that the district court exceeded the scope of its injunctive
authority under Minn. Stat. § 145.075 by ordering Water Grem lin to conduct residential
testing and cleanup to address the public health nuisance found by the district court. Water
Gremlin contends that the district court’s au thority under Minn. Stat. § 145.075 to enjoin
“a public health nuisance” is limited to enjo ining only an “activity or failure to act” by
Water Gremlin and does not extend to ordering it to test for and clean up lead in its

blood lead levels can cause learning di sabilities and problems with cognition and
attention.” And Water Gremlin admitted in its answer to the commissioners’ complaint
that “lead can have neurotoxic effects, including in children.”

13
employees’ homes.9 Water Gremlin makes this argument “separately and independently”
from its primary argument addressed above. The commissioners argue that Water Gremlin
failed to make this argument to the district c ourt and that this court should not address it.
We agree.
“It is an elementary principle of appellate procedure that a party may not raise an
issue or argument for the first time on appeal and thereby seek appellate relief on an issue
that was not litigated in the district court.” Doe 175 ex rel. Doe 175 v. Columbia Heights
Sch. Dist., ISD No. 13 , 842 N.W.2d 38, 42 (Min n. App. 2014) (citing Thiele v. Stich ,
425 N.W.2d 580, 582 (Minn. 1988)); see also Thayer v. Am. Fin. Advisers, Inc. ,
322 N.W.2d 599, 604 (Minn. 1982), abrogated on other grounds by Onvoy, Inc. v. SHAL,
LLC, 669 N.W.2d 344 (Minn. 2003); Thompson v. Barnes , 200 N.W.2d 921, 927
(Minn. 1972). “Nor may a party obtain review by raising the same general issue litigated
below but under a different theory.” Thiele, 425 N.W.2d at 582. This principle “applies
whether the question is one of fact or of law.” Doe 175, 842 N.W.2d at 43 (quoting In re
Judicial Ditch No. 1 , 167 N.W. 124, 125 (Minn. 19 18)). Moreover, although not
“ironclad,” Putz v. Putz , 645 N.W.2d 343, 350 (Minn. 2002) (quotation omitted), the
principle is regularly observed by both the supreme court and this court. See Doe 175 ,
842 N.W.2d at 43 n.1 (collecting Minnesota cases and noting consistency with federal
caselaw); cf. Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 584 n.2 (Minn. 2010) (“We have

9 Water Gremlin acknowledges that section 145. 075 also authorizes a district court to
enjoin certain statute and rule violations, but emphasizes that there has been no allegation
or finding that Water Gremlin has violated any statute or rule.

14
reserved the right in rare cases to examine such an issue not considered by the [district]
court as the interests of justice may require.” (citing Minn. R. Civ. App. P. 103.04)).
Before the district court, Water Grem lin’s argument with respect to Minn.
Stat. § 145.075 was limited to its assertion that the migration of lead from its plant and into
employee homes did not constitute “a public health nuisance” within the meaning of the
statute. Water Gremlin did not argue any other basis for limiting the district court’s
authority to issue injunctive re lief under Minn. Stat. § 145.075. In other words, the only
argument that Water Gremlin made to the di strict court regarding the scope of Minn.
Stat. § 145.075 is the argument that we have addressed in section I.
The commissioners argue in their appellate brief that Water Gremlin’s failure to
raise its alternative argument regarding th e district court’s authority under Minn.
Stat. § 145.075 precludes our consideration of that issue on appeal. In its reply brief, Water
Gremlin does not dispute that it failed to raise the issue below. Nor does it respond to the
commissioners’ argument that the issue has been waived. Because Water Gremlin did not
raise this second argument to the district court, and because it has articulated no basis for
this court to depart from the principle agains t reviewing issues that have not been so
preserved, we do not reach this issue in this appeal.10
D E C I S I O N
The district court did not err by determini ng that the migration of lead out of Water
Gremlin’s plant and into employee homes constitutes a public health nuisance under Minn.

10 We do, however, recognize that the parties have differing views on the merits of this
issue. We express no opinion as to the merits.

15
Stat. § 145.075. Water Gremlin failed to pr eserve for appellate review an alternative
argument regarding the scope of the district court’s authority under Minn. Stat. § 145.075.
Because our determination of the only issue properly preserved for appellate review does
not provide a basis for reversing the district court’s injunction order, we affirm.
Affirmed.