In the Matter of: Gedney Foods Company.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1156

In the Matter of: Gedney Foods Company.

Filed April 25, 2022
Affirmed
Connolly, Judge

Minnesota Pollution Control Agency

Gary A. Van Cleve, Nic S. Puechner, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis,
Minnesota (for appellant Gedney Foods Co.)

Keith Ellison, Attorney General, Colin P. O’Donovan, Assistant Attorney General, St.
Paul, Minnesota (for respondent Minnesota Pollution Control Agency)

Considered and decided by Slieter, Presiding Judge; Connolly, Judge; and Cleary,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Relator challenges the order of respondent the Minnesota Pollution Control Agency
(the MPCA) that relator must close three impoundment ponds , arguing that the order
exceeds the MPCA’s authority, is not supported by substantial evidence , and is arbitrary
and capricious because its requirements are infeasible and unreasonable. Relator also
challenges the MPCA’s order denying relator’s request for a contested -case hearing,

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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arguing that the denial is contrary to law, unsupported by substantial evidence and arbitrary
and capricious because there are disputed material facts regarding the feasibility and the
business impact of the order’s requirements. Because bot h the MPCA’s order s are
reasonable and supported by substantial evidence, we affirm.
FACTS
Relator Gedney Food Company was authorized to discharge the process wastewater,
contact cooling water, and clean-up water from its pickle factory to three onsite treatment
surface impoundment ponds in 1957. The ponds lie in the floodplain of the Minnesota
River.
The MPCA periodically inspected the ponds , observed that relator was not
complying with the conditions of its permit to discharge, and issued a Notice of Violation
(NOV) in 2014 and another in 2018. The 2018 NOV required relator to submit a Pond
Compliance Feasibility Study to address bringing its ponds into compliance with the permit
conditions. No study was submitted.
In 2019, unauthorized releases of wastewater occurred, and the ponds flooded. In
May, the MPCA informed relator at a meeting that it “[did] not want any wastewater ponds
in any flood plain of any river in the state” and that other options would have to be found.
In August, relator informed the MPCA that it was closing its facility and would vacate it
by the end of the month. The MPCA then requested the closure plan required by the permit
and provided relator with its guidance on closure, which gave a two -year timeline for
closing the ponds and removing the waste. Relator submitted an incomplete closure plan,
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saying that the volume of solids in the ponds could not be determined until summer 2020.
In February 2020, the MPCA sent relator a list of the options for closure.
In July 2020, the MPCA requested an update on relator’s plan for the final discharge
of the ponds; in August, the MPCA requested the results of the pond sample tests and the
date for the final discharge. In September and October, the MPCA again requested an
update on the pond sample results and the timeline for the final discharge.
Relator replied that its consultant would devel op a closure plan by November 16, 2020.
The final discharge of the ponds was completed on November 14, 2020.
In December, the MPCA requested an update on the quantity of solids remaining in
the ponds and on the closure plan. In January 2021, relator s ubmitted a report on the
volume of the solids and on the results of sample tests, which indicated that the amounts
of nitrogen and sodium in the solids remaining in the ponds posed significant risks to
groundwater, surface water, and aquatic life.
In February 2021, relator and the MPCA met to discuss a closure plan. The MPCA
provided the list of options it sent in February 2020, ask ed again for a closure plan, and
denied relator’s request for a 16-week extension for the plan, saying it wanted the plan by
March 1, 2021.
In May 2021, the MPCA met with relator and received the test results of additional
samples. Based on these results, the MPCA rejected relator’s proposal to apply the solids
to land as industrial byproducts, noting that “[l]eaving the material in place or across the
site would significantly exceed nitrogen and sodium land application limits.” The MPCA
also identified a landfill four miles from the ponds that could accept all the solids.
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In June 2021, relator’s consultant met with two contractors and received their
estimates on the cost of removing the solids: one was $1,225,000; the other between
$1,200,000 and $1,500,000. Relator filed a motion for reconsideration and requested a
contested-case hearing.
In August, the MPCA issued t he two orders challenged in this appeal . One order
required a final closure plan by August 23, 2021, and extended the deadline for beginning
of removal of solids to October 1, 2021, with one-third of the removal to be completed by
December 1, 2021, another third complete by January 1, 2022, and the final third by
February 1, 2022. The second order denied relator’s motion for reconsideration and request
for a contested-case hearing. On August 23, relator submitted a closure plan that involved
bagging the high-nitrogen pond solids for one year, bagging the low -nitrogen pond solids
during the next year, and removing the bagged solids over the following three years; it said
this plan was within its financial capability.1
In September 2021, relator filed this certiorari appeal to challenge the August 2021
orders.
DECISION
“Under Minn. Stat. § 14.69 [2020], we may affirm, remand, or reverse an agency
decision if the agency’s findings of fact are unsupported by substantial evidence, arbitrary

1 The MPCA claims that the plan was withdrawn in a letter relator sent to the MPCA stating
that “all decommissioning proposals . . . are hereby withdrawn.” But relator argues in its
brief that th is plan is “a reasonable and effective alternative to complete removal of all
pond solids from the site” and does not say it was withdrawn.

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or capricious, or affected by an error of law .” In re NorthMet Project Permit To Mine
Application, 959 N.W.2d 731, 749 (Minn. 2021) (quotations and citations omitted). An
agency’s order is presumptively valid because of the agency’s expertise, and cour ts give
substantial deference to agency decisions. Id. at 745.
1. Order for a Final Closure Plan and Deadlines
Relator argues that the MPCA’s order (A) exceeded its statutory authority, (B) was
unsupported by substantial evidence, and (C) was arbitrary and capricious.
A. Statutory Authority for the Order
Relator argues that “the MPCA has exceeded its statutory author ity because it has
failed to give due consideration to [ relator’s] financial condition and the impact of the
ordered [c]losure [p]lan on [its] financial condition”; “by failing to consider factors giving
rise to the necessity of decommissioning the ponds” ; and “by imposing an onerous
[c]losure [p]lan of complete removal of all pond solids from a remote, difficult to access
site under an abbreviated timeline at a cost of $2 million.”
The statutory authority on which relator relies is Minn. Stat. § 116.07 (2020):
In exercising all its powers [ the MPCA] shall give due
consideration to the establishment, maintenance, operation and
expansion of business, commerce, trade, industry, traffic, and
other economic factors and other material matters affecting the
feasibility and practicability of any proposed action . . . and
shall take or provide for such action as may be reasonable,
feasible, and practical under the circumstances.

“[S]tate agencies and courts are required by statute to consider both the econom ic impact
and the environmental impact in rendering decisions dealing with environmental matters.”
Rsrv. Mining Co. v. Herbst , 256 N.W.2d 808, 841 (Minn. 1977). Relator also relies on
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Rsrv. Mining for the proposition that the legislature imposed a duty on the MPCA “to weigh
the importance of [economic factors] against the impairment of the environment ,” id. at
828, to argue that the MPCA breached this duty by ordering removal of the solids by
February 2022 instead of adopting relator’s proposal to bag and remove them over a five -
year period.
Due consideration of a party’s economic circumstances within the mean ing of
Minn. Stat. § 116.07 does not equate to permitting that party to use whatever method of
disposing of materials it has decided is within its financial capability, particularly when the
party already had almost two years (September 2019 to August 2021 ) to provide and
execute a closure plan for removing the materials and had accomplished nothing during
that time. The MPCA’s August 9, 2021, order did not exceed its statutory authority.
B. Substantial Evidence for Order’s Reasonableness and Feasibility
[A] substantial -evidence analysis requires us to determine
whether the agency has adequately explained how it derived its
conclusion and whether that conclusion is reasonable on the
basis of the record. This princip le is rooted in the deference
we show t o matters that are properly within an agency’s
particular expertise. Our guiding principle is that if the ruling
by the agency decision -maker is supported by substantial
evidence, it must be affirmed.

NorthMet, 959 N.W.2d at 749 (quotations and citat ions omitted). The MPCA found that
the order was “both reasonable and achievable” and affirmed it. Relator argues that the
order was unreasonable and lacked support by substantial evidence because the MPCA
required adherence to a strict timeline and refused to consider reasonable alternatives.

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i. Adherence to a Strict Timeline
The MPCA points out that relator “has had over 800 days and counting since it [shut
down] its operations to come up with a plan to remove its waste,” and that, although the
MPCA Guidance says removing all biosolids takes two years, relator “has not removed
any biosolids” since closing its facility more than two years ago in September 2019. One
of the estimates relator received said that the work would take 10 to 12 weeks and that it
could possibly be done in the winter, which might be preferable.
The MPCA states that relator “today has no plan to remove its waste and has not
removed any waste.” Relator does not deny this. The MPCA’s order specifying dates for
the removal of the biowaste is not unreasonable or unsupported by evidence. In any event,
all the dates the MPCA mandated have passed wit hout any of the material having been
removed.
ii. The MPCA’s alleged refusal to consider alternatives
Relator argues that the MPCA failed to consider the six alternatives it identified:

Onsite phytoremediation2 to reduce solid[] nitrogen
Further drying or treatment of the solids onsite
Use of the site for wetland creation or landscape enhancement
Land application onsite,
Leave solids in some or all ponds and
Fill and regrade the ponds in place.

The MPCA correctly notes that four of these—leaving the solids in place, filling the ponds,
leaving the solids to dry, or using them for landscape --are prohibited under Minn. R.

2 Phytoremediation is “[t]he planting of trees, grasses or other vegetation to remove or
neutralize contaminants, as in polluted soil or water.” The American Heritage Dictionary
of the English Language 1332 (5th ed. 2018).
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7035.1600 (prohibiting disposing of waste in a floodplain, wetland, or within 300 feet of a
stream) because the ponds are in a wetland next to the Minnesota River.
As to the other two alternatives, land application onsite and phytoreme diation, the
MPCA found:
47. By the time of the parties’ May 2021 meeting, [relator]
had only begun to initially analyze its most recent s ampling
results. In contrast, the MPCA walked [relator] through its
detailed analysis of the recent sampling results, compared them
with the results from eight months before, and showed why
phytoremediation and land application were not appropriate
given the results. The MPCA provided [relator] with its
spreadsheet tabulating the results of each contaminant and
showed that even if the sludge were distributed across the
entire site, it would significantly exceed nitrogen and sodium
land application limits and pose significant risks to
groundwater, surface water, and aquatic life.
48. Similarly, because of the significantly high levels of
contaminants, phytoremediation would not be able to remove
sufficient contamination and the same concerns would remain.
Moreover, since the wastewater treatment ponds are in a
floodplain, the water table is near the surface and the soil
conditions are poor for phytoremediation, especially given the
presence of fats and grease in [relator]’s waste which impedes
phytoremediation.
49. In sum, [relator] has had two years to attempt to
investigate an “innovative solution” and develop a [c]losure
[p]lan consistent with Minnesota law, but failed to do so.
(Letter at 3). . . . [F]inally ordering [relator] to use a well -
understood and effective remedy, removal, is appropriate and
fully supported by the record.

Relator’s objection to the removal plan set out by the MPCA is that its timeline is
not “financially feasible.” But given the amount of time relator has already had and it s
failure to make any progress so far, it is not unreasonable for the MPCA to reject
alternatives to removal of the biowaste.
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C. Arbitrary and Capricious
An agency’s decision is arbitrary and capricious if it relies on factors the legislator
did not intend it to consider, fails to consider an important aspect of the problem, provides
an explanation that runs counter to the evidence, or “is so implausible that it could not be
explained as a difference in view or the result of the agency’s expertise.” In re Review of
2005 Ann. Automatic Adjustment of Charges for all Elec. & Gas Utils ., 768 N.W.2d 112,
118 (Minn. 2009) (citation omitted) (In re Review ). Relator argues that the order was
arbitrary and capricious because relator was entitled to rely on the MPCA’s “decades-long
practice” of permitting it to discharge wastewater into the ponds and because the MPCA
did not consider “the feasibility and logistical difficulties” of compliance with its order.
i. Reliance
Relator argues that, having once permitted a practice later determined to be
damaging to the environment, MPCA did not have the right to make that determination and
prohibit the practice by telling relator it would no longer permit “any wastewater ponds in
any flood plain of any river in the state,” thereby forcing relator to remove its operations
from the state. Relator relies on In re Review , 768 N.W.2d at 120 (“[A]n agency must
generally conform to its prior norms and decisions, or to the extent that departs from [them,
it] must set forth a reasoned analysis for the departure that is not arbitrary and capricious.”).
But In Re Review is distinguishable: it did not concern a departure resulting from a
determination that a practice was damaging to the environment but rather from a
determination that the financial burden resulting from a utility’s allowance of unrecovered
costs to accumulate for five years was not excessive. Id. at 122. In re Review also quoted
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and adopted language from McHenry v. Bond , 668 Fed. 2d 1185, 1192 (1 1th Cir. 1982):
“An administrative agency concerned with furtherance of the public interest is not bound
to rigid adherence to precedent.” The MPCA’s decision to stop permitting wastewater
ponds in flood plains for the good of the environment was not arbitrary and capricious.
ii. Feasibility and Logistical Difficulties of Compliance
Relator argues that, altho ugh the MPCA knew relator had “a history of not being
able to adequately access the [p]onds due to winter conditions or flooding of the access
road,” the “MPCA’s order is premised upon its refusal to take into account the logistical
and feasibility difficu lties of accessing the terrain [of the ponds] in the timeframe
provided.” MPCA notes that (1) it “issued its order in June [2021] so that [relator] could
complete the work and take advantage of the warm summer months ,” (2) “[o]n
reconsideration, . . . [the MPCA] extended its order to allow [relator] to conduct the work
over the winter” and (3) “one of [relator’s ] own estimates states definitively ‘this work
could be completed in the winter.’” MPCA also “considered [relator’s ] comments and
request for reco nsideration” and “amended its [o]rder accordingly to extend the closure
deadline by several months to allow for winter removal at a lower cost.” In any event, the
work has not yet begun and presumably will not begin during the appellate process, so
relator will not be complying with the December and January deadlines to which it objects.
There is no basis to reverse the MPCA’s amended order.
2. Motion for Reconsideration and Request for a Contested-Case Hearing
A contested-case hearing is granted i f: (1) the commissioner finds that there is a
material issue of fact, (2) the commissioner has jurisdiction to make a determination on
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that issue, and (3) holding a contested -case hearing would allow the introduction of
information that would aid the commi ssioner in making a final decision. Minn. R.
7000.1900, subp. 1. Agencies have broad discretion to determine whether a contested-case
hearing would aid the agency in making its decision, and courts defer to that discretion;
petitioners have the burden of showing their entitlement to a contested -case hearing.
NorthMet, 959 N.W.2d at 745.
Here, the commissioner’s jurisdiction is not disputed. Relator argues that there are
disputed issues of material fact as to the business impact of complying with the order and
as to the feasibility of implementing it, and that a hearing would aid the commissioner in
making a final decision on these issues.
A. Fact issues concerning the business impact of compliance
The MPCA argues that relator failed to meet its burden of identifying any witnesses
it would call at a hearing regarding its finances and any specific facts regarding its finances
for MPCA to consider. The MPCA’s view that the burden was o n relator to provide the
specific financial information, not on the MPCA to request specific financial information,
is supported by case law.
[Petitioners] failed to provide [MPCA] or this court with any
specific expert’s names or with any indication of what specific
new facts an expert might testify to at a contested case hearing.
We agree with the MPCA that petitioners have not raised any
fact issues which could be resolved in a contested case hearing
. . . . [P]etitioners have the burden of demonstrating the
existence of material facts that would aid [MPCA] before they
are entitled to a contested case hearing. They have not done
so.

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In re Solid Waste P ermit for the NSP Red Wing Ash Disposal Facility , 421 N.W.2d 398,
404 (Minn. App. 1988). The MPCA says the same is true here: relator’s references to its
“limited resources” in the petition were not the specific financial information that would
have entitl ed relator to a contested -case hearing. Moreover, as the MPCA notes,
information from two years ago as to relator’s financial status would not help the MPCA
decide whether relator is able to comply with its order now, so the third criterion for a
contested-case hearing was not met.
Relator argues that “the MPCA had been put on notice of [relator’s] financial
viability, but did not request financial information from [relator].” But relator offers no
support for its view that the burden was on the MPCA to obtain the financial information,
rather than on relator to provide it. Relator cites Rsrv. Mining, 256 N.W.2d at 841, for the
proposition that “the MPCA is required by statute to consider both the economic impact
and the environmental impact” of its decisions, but Rsrv. Mining does not concern a party
that failed to provide its own financial information for the MPCA to consider. In that case,
a hearing officer appointed by the MPCA and the Department of Natural Resources had
received information as to how much the regulated party was planning to spend to build a
disposal site and to change its processing, 256 N.W.2d at 816, the number of its employees,
the size of its payroll, the amount the party spent on supplies in Minnesota, and the amount
of tax it paid, id. at 818, and the effect that the shutdown would have on the economic
well-being of those affected by it. Id. at 821. There is no indication that the regulated party
expected the regulating entities to seek its financial information for themselves. Moreover,
relator had already shut down almost two years before the MPCA issued its orders;
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information on its finances at the time it shut down would have been outdated and
irrelevant.
Relator also relies on In re Hibbing Taconite Co., 431 N.W.2d 885, 892 (Minn. App.
1988), citing it for the proposition that the MPCA may “not take official notice of the
specific facts relating to [the regulated party’s] financial viability .” B ut the issue in that
case was whether “foreign parent corporations [were] entitled to a contested case hearing”
before being named as parties to a permit. Id. at 889. Hibbing Taconite did not concern a
company’s refusal to comply with MPCA rules for alleged financial reasons, nor does it
support the view that the MPCA is responsible for seeking financial information of a party
that alleges financial reasons for noncompliance.
Relator has not show n that the MPCA erred in not seeking relator’s financial
information.
B. Fact issues concerning feasibility
Relator argues that both the contractors’ estimates, or proposals, 3 and the
consultant’s letter reporting on the meeting with the contractors de monstrate the
infeasibility of MPCA’s order. The MPCA argues that these documents demonstrate the
feasibility, not the infeasibility, of its order.
The consultant’s letter raises eight concerns about the project. The first is site
access; it mentions the narrow drive and limited area near the ponds as well as limited

3 The order denying reconsideration refers to these documents as proposals; relator argues
that they are cost estimates, not proposals. That appears to be a distinction without a
difference: both documents are the contractors’ responses to a question of what the project
would cost.
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hours of operation at the landfill . The second is the grade of the hill and the turnaround
space, which limits the type of trucks that can be used. The third is water remaining in the
ponds, which will need to be moved so the ponds can be cleaned out. The fourth is the
moisture content of the pond solids, because they are much lighter when dry. The fifth is
access to the landfill and a limited dumping area. The sixth is traffic buildup at the river
crossings, which adds time to the trip to the landfill . The seventh is the volume of the
solids, which cannot be accurately measured until the work is near completion, and the
eighth is possible damage to the road, which the contractors coul d not be responsible for
unless they were paid for it.
The commissioner disagreed with relator’s view that each of these concerns
“necessitates reconsideration” at a contested -case hearing, noting that each one “is
common information that the MPCA would expect to be included in any plan and which
should have been considered and resolved long ago” and that “the fact that [relator] is only
now looking into these issues after closing in 2019 and considers them a challenge further
supports the MPCA issuing its [o]rder and setting deadlines.” The order further stated:
34. Issues 1 and 2 deal with access and just note that
because it is narrow and the material is moist certain types of
trucks will have to be used over others.

35. Issues 3 and 4 deal with pond water and make the rather
obvious observation that any remaining wastewater will have
to be disposed of . . . .

36. Issue 5, landfill access, proves that the MPCA’s remedy
is feasible. One of the contractors “has been hauling pond
solids removed fro m stormwater ponds this year to the . . .
landfill,” which is exactly what the MPCA has ordered in this
matter.
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37. Issues 6, 7, and 8 relate to the cost to complete the
project, not its feasibility. . . .

38. . . . [C]ontrary to [relator’s] position that removal is
infeasible, the contractors’ proposals show that the MPCA’s
[o]rder can be accomplished, on the timeframe the MPCA
identified, and for a reasonable cost. . . .

39. . . . [T]he two proposals . . . were from competitors and
approximately the same amount, $1.2 – 1.5 million. . . . [T]he
MPCA considers those to be reasonable, if not low, for the
work that needs to be completed at a site of this size. . . .

40. The proposals confirm the MPCA’s own analysis and
show that the [o]rder is feasible, reasonable, and can be done
on the schedule the MPCA ordered, if done diligently.

Thus, relator’s claim that “[t]he MPCA finding grossly mischaracterizes the
communications received from the two contractors,” is not accurate.
Relator h as not demonstrated a basis for reversing t he denial of the petition for
reconsideration and a contested-case hearing.
Affirmed.