(dissenting).
I respectfully dissent from the majority opinion. In so doing, I do not intend to deter the proper application of the Minnesota Environmental Rights Act, Minn. St. c. 116B. Rather, in order to preserve our environment, I believe it is necessary that statutes enacted to accomplish this purpose should be properly applied. To permit the misapplication of such statutes will only discredit such laudatory legislation and encourage its abuse.
In reaching their respective determinations, the majority opinion and the trial court consider the issues of noise and lead-shot pollution. This dissent will address briefly each of the aforementioned issues in order.
The majprity opinion states that the operation of the Gun Club in the Rice Lake area *784is in violation of Minn.St. 116B.02, subd. 5. This definitional statute provides:
“ ‘Pollution, impairment or destruction’ is any conduct by any person which violates, or is likely to violate, any environment quality standard, limitation, regulation, rule, order, license, stipulation agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof which was issued prior to the date the alleged violation occurred or is likely to occur or any conduct which materially adversely affects or is likely to materially adversely affect the environment; provided that ‘pollution, impairment or destruction’ shall not include conduct which violates, or is likely to violate, any such standard, limitation, regulation, rules, order, license, stipulation agreement or permit solely because of the introduction of an odor into the air.”
It is readily apparent from the language of this statute that a complaining party can establish that the conduct of a person amounts to pollution, impairment, or destruction of the environment through two possible means. The plaintiff can prove that the conduct in question violates, or may violate, any environmental quality standard, rule, or regulation of the state or any political subdivision thereof. He also may establish a violation by proving that the conduct complained of “materially adversely affects or is likely to * * * affect” the environment.
With reference to the first method of establishing that certain conduct amounts to pollution of the environment, Minn.St. 116.07, subd. 2, mandates that the Pollution Control Agency (PCA) adopt ■ statewide standards relating to the maximum levels of noise permissible in a given area:
“The pollution control agency shall also adopt standards describing the maximum levels of noise in terms of sound pressure level which may occur in the outdoor atmosphere, recognizing that due to variable factors no single standard of sound pressure is applicable to all areas of the state. Such standards shall give due consideration to such factors as the intensity of noises, the types of noises, the frequency with which noises recur, the time period for which noises continue, the times of day during which noises occur, and such other factors as could affect the extent to which noises may be injurious to human health or welfare, animal or plant life, or property, or could interfere unreasonably with the enjoyment of life or property. In adopting standards, the pollution control agency shall give due recognition to the facts that the quantity or characteristics of noise or the duration of its presence in the outdoor atmosphere, which may cause noise pollution in one area of the state, may cause less or not cause any noise pollution in another area of the state, and it shall take into consideration in this connection such factors, including others which it may deem proper, as existing physical conditions, zoning classifications, topography, meteorological conditions and the fact that a standard which may be proper in an essentially residential area of the state, may not be proper as to a highly developed industrial area of the state. Such noise standards shall be premised upon scientific knowledge as well as effects based on technically substantiated criteria and commonly accepted practices. No local governing unit shall set standards describing the maximum levels of sound pressuré which are more stringent than those set by the pollution control agency.”
It should be noted that at the time of trial the PCA had not adopted objective standards which set the maximum levels of sound pressure permissible in our state. The city of Hugo apparently did not enact objective noise pollution standards for the community because § 116.07 precludes a local government unit from establishing standards which are more stringent than those set by the PCA.1 The absence of any *785objective standards setting the maximum levels of sound pressure allowable in the state or the city of Hugo foreclosed plaintiffs from establishing a violation pursuant to the first method, since it is rather obvious a person cannot be said to have violated a nonexistent standard or regulation.
When the PCA adopts objective statewide noise pollution standards in the future, either the state or a private citizen may establish a prima facie showing of noise pollution by introducing evidence that the everyday operation of a particular enterprise violates the PCA standard.2 Without PCA action to enact statewide noise pollution standards, a private citizen may nevertheless prove a violation of our environmental statutes by introducing evidence which demonstrates that the defendant’s conduct materially adversely affects the environment.3 I believe that in order to sustain their statutory burden of proof that the defendant’s conduct materially adversely affects the environment requires the private citizen plaintiff to:
(1) Introduce evidence at trial from which the trial court can establish, in its findings of fact, a maximum objective level of sound (in decibels) which is reasonable for the area in question; and
(2) Make and introduce the results of scientific noise tests made of the defendant’s usual, everyday conduct to determine whether such conduct exceeds, and therefore violates, the previously established reasonable noise level.
In the instant case, plaintiffs elected to pursue their action against the Gun Club by the second method which requires proof that defendant’s conduct is or is likely to materially adversely affect the environment. In proceeding by this means, the complaining party is required to make a prima facie showing that the conduct of the defendant “has, or is likely to cause the pollution, impairment, or destruction of the air, water, land or other natural resources located within the state.” Minn.St. 116B.04. I respectfully suggest that plaintiffs failed to establish a prima facie showing of noise pollution.
I premise this conclusion upon the sincere belief, as I stated previously, that in order for plaintiffs to make a prima facie show*786ing of pollution under § 116B.04, without benefit of an existing state or community noise pollution standard, should require the presentation of sufficient evidence upon which the trial court can establish, in its findings of fact, a maximum objective level of sound which would be reasonable for the particular locale. After establishing the sound level permissible in the area, scientific tests should have been made of the everyday conduct of the operation of defendant’s business or activity and the results of the tests introduced into evidence to determine whether such conduct exceeds the maximum noise level. Upon satisfying these two criteria, and provided the sound emanating from defendant’s activity exceeds the established standard, plaintiffs would have made a prima facie showing of noise pollution. The burden of proof would then shift to defendant to rebut the prima facie showing and, as dictated by statute, economic considerations, standing alone, are insufficient to successfully rebut the showing. Minn.St. 116B.04.
By requiring plaintiffs to meet this dual test in order to make a prima facie showing of noise pollution results in two beneficial aspects. First, the court will gain the benefit of objective criteria introduced by plaintiffs upon which it can determine and establish a maximum level of sound (in decibels) which is reasonable for the area. By setting the reasonable level of sound, the trial court will be afforded an objective standard against which defendant’s conduct can be measured to determine the existence of a violation of our environmental statutes. Under the majority opinion, the decision of whether certain conduct amounts to noise pollution must be made by the court with reference only to vagaries attendant to the words “materially adversely affects.” To permit a violation of our environmental statutes to be based solely upon such imprecise terms could lead to the manipulation of the same statutes against enterprises based upon speculative, conjectural evidence, wholly unrelated to the everyday operation of such enterprise. This is precisely what occurred in the instant case. The trial court and the majority opinion both make the statement that scientific noise studies were made of the everyday operation of the Gun Club by Mr. Alfonso Perez of the Noise Pollution Control Section of the PCA. This is an inaccurate characterization of the “tests” that Mr. Perez actually conducted and is one of the reasons that I am presently advocating a more rigorous evidentiary requirement for prospective plaintiffs in order to establish a prima facie showing of pollution.
What did occur was that in March 1974, Mr. Perez appeared at the proposed construction site at the request of the Gun Club. At that time, one shooter stood in the open field area of the proposed trap site and fired his gun while Mr. Perez took various readings at several locations. A second noise test was staged at the requests of plaintiffs. In August 1975, 16 shooters were assembled along the east property line of the Schletty property which abuts the Gun Club property. As they fired their shotguns, Mr. Perez took readings at different locations. Apparently 16 shotguns were fired to simulate the noise from the 16 trap stations at the Gun Club if all were operative at once.4
The accuracy of this particular test in providing an adequate measure of the noise that will emanate from the Gun Club in its normal operation is questionable since under no circumstances could every station be operative at the same time. The Gun Club has 12 trap stations and 4 combination trap *787and skeet stations. The evidence indicates that if a state meet were held at the Gun Club, 12 stations would be used, but in its normal operation 2 stations are generally used and 4 stations can adequately accommodate any special events that would be held at the Gun Club. Thus, noise test results premised upon the firing of 16 guns have little probative value in demonstrating the noise levels being generated by the everyday operation of the Gun Club.
For reasons unexplained in the record, scientific noise studies were not made of the operation of the White Bear Rod and Gun Club after its completion. If plaintiffs had been required to introduce evidence upon which a reasonable maximum level of sound for the particular area in question could have been established by the court and to make scientific noise studies of the normal, everyday operation of the Gun Club enterprise, the Gun Club may have then faced the possibility of a permanent closing of its facilities. However, a result attained after such a demonstration of proof would be more consistent with my concept of justice than the present decision which is based upon tests made of the Gun Club under artificial conditions and the results which were judged against the inherent vagueness of the words “materially adversely affects” in determining the existence of a violation.
The second benefit which would follow from the requirement of establishing a maximum level of sound for the area is that defendant would be afforded an objective standard to conform the operation of its business. The majority opinion states that, under the present decision, the defendant may modify its activities to comply with the Minnesota Environmental Rights Act and then apply to have the injunction lifted. If an objective maximum level of noise would have been established for the Rice Lake area in this case, defendant would have been presented with a definite standard to place the conduct of its business within and eventually resume the use of its property. However, it is beyond my comprehension how defendant could modify its existing facilities and definitely know that such modification would allow the Gun Club to resume its operation without the presence of an objective standard to determine the need for any given change.
I also must take issue with the finding of the trial court and its affirmance by the majority opinion that plaintiffs established a prima facie showing that the noise generated by the everyday operation of the Gun Club will materially adversely affect the environment in the Rice Lake area. In so doing, I do not dispute the testimony of numerous individuals concerning their estimation of the sound which the conduct of the Gun Club produces. However, as I stated previously, there were not any scientific noise tests of the actual, everyday operation of the Gun Club. I am unaware of any instance in the history of this state where an enterprise has been permanently enjoined from operating on data wholly unrelated to its everyday business operation. The mere existence of this fact renders the present decision to permanently enjoin the White Bear Rod and Gun Club from operating in the Rice Lake area unjust.
One of the goals established in § 116D.02, subd. 2(q), is to minimize noise, particularly in urban areas. As the majority opinion notes, quietude is a natural resource under § 116B.02, subd. 4. However, § 116D.02, subd. 2(d), seeks to preserve important historic, cultural, and natural aspects of our national heritage and maintain, whenever practicable, an environment that supports diversity and variety of individual choice. Thus, it is apparent that the existence of a gun club, as well as other private, individual activities, in any area necessarily requires a balancing approach so as to achieve maximum enjoyment and protection of our resources consistent with the diversity and variety of individual choice.
Both the majority opinion and the trial court make the general statement that the Rice Lake area is a quiet, serene place. This statement does not comport with the evidence introduced at trial. Thus, the erroneous characterization of the Rice Lake area as quiet and serene may have contributed to placing a greater weight in favor of *788the environmental quality of the Rice Lake area when balancing the area’s beneficial aspects with any possible adverse impact occasioned by the operation of the Gun Club. The entire shoreline of Rice Lake, except for a very small area in the northeast corner, is owned by Paul Hugo Farms, Inc., as part of its 320-acre holdings. One of the purposes of acquiring the property was to provide duck-hunting facilities for the members of the organization. In addition, the members occasionally engage in trap shooting on the property. Admittedly, this shooting is substantially less in degree than what occurs at a gun club. Nevertheless, the trial court did express concern over the inconsistent position of the members of Paul Hugo Farms who testified in opposition to the White Bear Rod and Gun Club. One can only speculate that their opposition was not related to environmental matters. The effect of the existence of the Gun Club in close proximity to their hunting area cannot escape notice.
The Bald Eagle Sportmen’s Association operates a rod and gun club located 1½ miles south of the White Bear Rod and Gun Club. It does not operate as many shooting stations as the Gun Club, but an outdoor rifle range exists at the Bald Eagle facilities. The evidence discloses that the noise generated by the Bald Eagle rifle range is greater than that from the Gun Club trap and skeet stations where shotguns are used. Also, the Wild Wings Game Farm is situated approximately 2 miles southeast of Rice Lake where shooting occurs on a large tract of land on a year-round basis.
The operation of the aforementioned gun clubs within close proximity to Rice Lake indicates that the area is presently subjected to several infringements on its quietude. This fact is both relevant and material to a consideration of the propriety of the trial court’s remedy of totally enjoining the operation of the Gun Club. Quietude is a quality, which by its very nature, should be considered in relation to the surroundings in which it is measured. While a particularly noisy activity may not be appropriate in a residential neighborhood, it may be acceptable in an industrial area. This is to suggest that characterizing Rice Lake as a quiet location not only is inconsistent with the evidence in this case, but also may have led the trial court to impose an unusually harsh remedy when compared to the degree of noise intrusion caused by the operation of the Gun Club.
Thus, I believe that the trial court decision regarding noise pollution should be reversed for two reasons. Initially, I believe that plaintiffs, in order to make a prima facie showing of noise pollution, should be required to—
(1) Introduce evidence upon which the trial court can establish in its findings of fact a maximum objective level of sound (in decibels) which is reasonable for the particular area; and
(2) Conduct and introduce the results of scientific noise tests of the usual, every day operation of the enterprise in question so that the trial court can determine whether defendant’s activity violates the previously established reasonable standard.
Secondly, I believe that the remedy of a permanent injunction is excessive in this case given the presence of several infringements on the area’s quietude before the construction of the Gun Club.
I also question the propriety of the trial court decision concerning the pollution of Ricé Lake caused by the random showering of lead shot from the Gun Club property when in use. I believe that the remedy imposed by the trial court of totally enjoining the operation of the Gun Club is disproportionate to the actual problem presented when the evidence introduced at trial discloses a much simpler remedy.
Dr. James Cooper, testifying for plaintiffs, stated that in a short time waterfowl hunters in Minnesota will be required to use steel shot instead of lead so as to reduce the possibility of lead poisoning.5 I cannot per*789ceive of any reason why such a restriction could not be imposed here, if in fact a lead-poisoning problem does exist. Such a remedy is more consistent with my concept of justice than that imposed by the trial court and approved by the majority opinion.
I would reverse and remand this case to the trial court for the establishing of a reasonable sound level standard for the area and a determination of whether defendant’s conduct violates the standard. In the final analysis, this case involves the imposition of a remedy which is completely disproportionate to the degree of harm established by the evidence. Further, more simply stated, it is the wrong remedy at the wrong time.
. When granting the White Bear Rod and Gun Club a special use permit to operate on the Rice Lake site, the city of Hugo also established a maximum noise limit of 40 decibels which the Gun Club could not exceed and still comply with the permit. The problem with this *785particular attempt by the city to limit the amount of noise from the Gun Club property is twofold. First, as Mr. Justice Kelly describes in his dissent, the 40-decibel requirement is a totally unrealistic limitation since even the sound produced by normal vocal conversation (66 decibels) would exceed this noise level. Secondly, the city faces the obvious problem that a local governmental unit is prohibited from adopting maximum levels of sound pressure which are more stringent than those established by the PCA pursuant to the provisions of Minn.St. 116.07, sub. 2. Thus, given this statutory language, it would indeed be ludicrous to allow the city to adopt and enforce the unrealistic limitation included in the special use permit merely because of the absence of PCA action in enacting statewide sound level standards.
. Furthermore, when state sound level standards are adopted by the PCA, they must apply to all gun clubs within the state with appropriate variations for existing geographical differences as required by statute. Recently, in Reserve Mining Company v. Herbst, Minn., 256 N.W.2d 808, 837 (filed May 27, 1977), we held that air pollution standards affecting one taco-nite plant must apply to all taconite plants in the state: “We construe the Federal court decision to establish as the law quite clearly requires, a single standard for all plants causing air emissions which may be potentially dangerous to health, wherever they may be located in this state.”
I fail to perceive any distinction in the present case. The statute mandates that the PCA shall adopt statewide noise pollution standards. I would assume that the standards, once adopted, would apply to all gun clubs in the state with such modifications as geographical differences dictate.
. Once the PCA adopts standards setting the maximum levels of sound permissible for certain activities, I would assume that the PCA standards would preempt the citizen’s right under our present laws to prove a violation of the environmental statutes by demonstrating that the defendant’s conduct materially adversely affects the environment. I reach this conclusion because to permit a private individual to pursue a cause of action by this method rather than by proving a violation of the statewide standard could lead to the absurd result of allowing a citizen to enforce a more exacting noise level standard than that deemed reasonable by the PCA in adopting the statewide standard.
. In addition, the firing of 16 shotguns to simulate the everyday conduct of the Gun Club ignores the physical realities of the actual nature of a gun club in operation. It is undisputed that during the vast majority of the time the Gun Club is operating, only 2 to 4 of the 16 gun stations available are actually used. It- is equally obvious that only one shooter can fire a gun at a time at each station. He will fire at either a single or double target. When he is finished, the next shooter will step forward and fire his gun. The fact that 5 shooters are physically present at each, station does not mean they all fire their guns at the same time since this would necessitate firing at the same target which would defeat the purpose behind trap and skeet shooting.
. It is a matter of public knowledge that in the immediate future the Department of Natural Resources will require steel shot to be used in 12-gauge shotguns in a large part of the State of Minnesota.