Environmental Assessment Worksheet required for parcel where previously permitted gravel mining was taking place

by Kaitlin Heinen

Duininck, Inc. v. Renville County Board of Commissioners
(Minnesota Court of Appeals, April 15, 2013)

Duininck, Inc. applied to Renville County Board of Commissioners for an interim use permit (IUP) to allow gravel mining on 44 acres of land in the County. Duininck has been mining at Molenaar site since 2000 under conditional use permits (CUPs) from the County for 39 acres of the area. The County now requires an IUP instead of a CUP for gravel mining, so Duininck applied for an IUP to expand the site by 5 acres. The County’s director of environment and community development, Mark Erickson, reviewed the application and concluded that an environmental assessment worksheet (EAW) might be mandatory under Minnesota Rules because the application encompassed more than 40 acres.

Before the county board’s next meeting, Duininck filed another application for an IUP that only covered the permitted 39 acres “to ensure that it would be able to continue existing mining operations if its CUP expired during the environmental-review process.” If the board decided to require an EAW, Duininck would pursue the 39 -acre application instead. The board voted to require an EAW for the 44-acre application, so Duininck withdrew the 44-acre application after the meeting. The County then reviewed and granted the 39-acre application. However, Duininck still appealed to the Minnesota Court of Appeals regarding the EAW and the 44-acre application.

In reviewing an EAW challenge, the Court of Appeals must determine whether the decision was “unreasonable, arbitrary or capricious, made under an erroneous theory of law, or unsupported by substantial evidence.” The Court noted, “Minnesota Rule 4410.4300 describes the types of projects for which an EAW must be prepared…Preparation of an EAW is mandatory for projects that meet or exceed the thresholds identified in rule 4410.4300…which requires preparation of an EAW in connection with a project for the ‘development of a facility for the extraction or mining of sand, gravel, stone, or other nonmetallic minerals, other than peat, which will excavate 40 or more acres of land to a mean depth of ten feet or more during its existence.'” Duininck’s project involves mining gravel on 44 acres of land, and because this falls within the definition of ” project” in 4410.4300, the Court concluded that an EAW is required with the 44-acre IUP application.

Duininck argued that the scope of the project in determining whether an EAW is required should not include the 39 acres it had been mining under CUPs since 2000. In support, Duininck cited part of the rules that provides a 3-year look-back rule for determining whether to include original project acreage in determining whether the mandatory EAW threshold is met. However, Duininck’s CUPS expired on their own terms. So Duininck filed the 44-acre application, intending to continuing and expanding its mining operations. Because all 44 acres were considered a part of the current project, the rule cited by Duininck did not apply. Duininck also argued that the county erred by treating the 5-acre expansion as a phased action. “Phased actions are multiple projects to be undertaken by the same proposer that ‘will have environmental effects on the same geographic area’ and ‘are substantially certain to be undertaken sequentially over a limited period of time.'” Though the county argued that Duininck’s expansion can be considered a phased action, the record did not reflect this as a basis for its decision. Further the rules governing phased actions do not apply again because all 44 acres are part of the current project.

Having applied the plain language of the EAW rules to ongoing mining operations, which require permit renewals whether or not the proposer has completed any particular area, the Minnesota Court of Appeals affirmed the county’s decision to require an EAW in connection with the 44-acre application.

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