OAH Docket No. 4-2200-15946-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE MINNESOTA POLLUTION CONTROL AGENCY

 

 

In the Matter of Solid Waste Field Citation Issued to Scott Edward Gruber, Respondent

FINDINGS OF FACT, CONCLUSIONS AND DECISION

 

Administrative Law Judge Bruce H. Johnson conducted a hearing in this administrative contested case proceeding beginning at 9:30 a.m. on Tuesday, June 29, 2004, at the offices of the Minnesota Pollution Control Agency, 520 Lafayette Road North, St. Paul, Minnesota.  The hearing record closed on June 29, 2004, when the hearing ended.

 

          Conservation Officer Jason Jensen, of the Minnesota Department of Natural Resources’ Enforcement Division, 500 Lafayette Road, St. Paul, Minnesota 55155-4047, represented the Minnesota Pollution Control Agency (the Agency) at the hearing.  The Appellant, Scott Edward Gruber, 19528 Tri Oak Circle Northeast, Wyoming, Minnesota 55092, was present at the hearing and represented himself.

 

 

NOTICES

          This Report is only a recommendation to the Commissioner of the Minnesota Pollution Control Agency and is not a final decision.  The Commissioner will make her final decision after reviewing this report and the hearing record.  In making that decision the Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation that appear in this report.

 

Under Minnesota Law,[1] the Commissioner may not make her final decision until at least five days after the receipt of this Report.  During that time the Commissioner must give the person or persons to whom the order was issued an opportunity to comment on the Report.  Parties should contact the office of Sheryl Corrigan, Commissioner of the Minnesota Pollution Control Agency, 520 Lafayette Road North, St. Paul, Minnesota 55155, to find out how to file comments.

 

The record of this contested case proceeding closes upon the filing of comments on the report with the Commissioner, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.  If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision.[2]

 

 

STATEMENT OF THE ISSUES

(1)            Whether or not Mr. Gruber violated Minnesota law[3] by disposing of solid waste at a location not authorized by law; and

(2)            If so, whether or not the $240 penalty imposed on Mr. Gruber should be affirmed or should be modified.

 

          Based upon the record in this matter, the Administrative Law Judge makes the following:

 

 

FINDINGS OF FACT

 

1.               Scott Edward Gruber lives at 19528 Tri Oak Circle Northeast, Wyoming, Minnesota 55092.[4]  Mr. Gruber’s residence is located approximately three miles from the Gordie Mikkelson Wildlife Management Area, which is real property owned by the State of Minnesota and managed by the Department of Natural Resources (the Department).[5]

2.               On July 30, 2003, James LaBarre, an Assistant Wildlife Manager employed by the Department’s Section of Wildlife, discovered a large quantity of trash at the Gordie Mikkelson Wildlife Management Area.[6]

3.               The trash that Mr. LaBarre found included four car tires, a swimming pool ladder, a bicycle, automobile parts, and other kinds of household trash.  The trash also included a bank statement bearing the name of Scott Gruber.[7]  None of the other trash bore information identifying a specific individual.[8]

4.               Mr. LaBarre took photographs of the trash[9] and had it removed from state property.  He gave the bank statement and the vehicle registration card to Conservation Officer Jason Jensen, who conducted an investigation into the source of the trash.[10]

5.               During the course of Officer Jensen’s investigation, he interviewed Mr. Gruber at Mr. Gruber’s home.  Mr. Gruber’s mother was present during the interview.  Officer Jensen asked Mr. Gruber if he had dumped the trash that was found at Gordie Mikkelson Wildlife Management Area on July 30, 2003.  Mr. Gruber denied having dumped trash at Gordie Mikkelson Wildlife Management Area and denied any knowledge of how the trash may have been placed there.[11]

6.               Officer Jensen stated that a bank statement bearing Mr. Gruber’s name had been included in the trash, but he did not produce the bank statement in question for Mr. Gruber to examine.  Mr. Gruber has been unable to account for how a bank statement bearing his name was included in the trash.[12]

7.               Officer Jensen requested Mr. Gruber to make inquiries with his friends to try to determine how the trash had come to be on state property, but Mr. Gruber never subsequently contacted Officer Jensen with further information.[13]

8.               There is no swimming pool at Mr. Gruber’s residence, and Mr. Gruber does not personally work on automobiles.[14]

9.               After receiving no further response from Mr. Gruber, Officer Jensen issued a field citation to Mr. Gruber for unlawfully disposing of solid waste at a location not authorized by law.  Based on Officer Jensen’s recommendation, the Agency issued an Administrative Penalty Order imposing an administrative penalty in the amount of $240 on Mr. Gruber.  The amount of the penalty was based on the volume of all the trash that had been found at the Wildlife Management Area.[15]

10.           Mr. Gruber requested a hearing on the Administrative Penalty Order, and this contested case proceeding ensued.

11.           These Findings are based on all of the evidence in the record.  Citations to portions of the record are not intended to be exclusive references.

12.           The Memorandum that follows explains the reasons for these Findings, and, to that extent, the Administrative Law Judge incorporates that Memorandum into these Findings.

13.           The Administrative Law Judge adopts as Findings any Conclusions which are more appropriately described as Findings.

Based upon these Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

 

1.  Minnesota law[16] gives the Administrative Law Judge and the Commissioner authority to conduct this proceeding, to consider the issues raised here, and to make findings, conclusions, recommendations, and decisions.

2.            The Agency gave Mr. Gruber proper and timely notice of the hearing, and it has also fulfilled all procedural requirements of law and rule so that this matter is properly before the Administrative Law Judge.

3.            Minnesota Statutes, section 116.073, subdivision 1(1), authorizes conservation officers employed by the Department to issue citations to a person, among others, who:

… disposes of solid waste as defined in section 116.06, subdivision 22, at a location not authorized for the disposal of solid waste without permission of the owner of the property;

4.               Minnesota Statutes, section 116.06, subdivision 22, defines “solid waste” as:

…garbage, refuse, sludge from a water supply treatment plant or air contaminant treatment facility, and other discarded waste materials and sludges, in solid, semisolid, liquid, or contained gaseous form, resulting from industrial, commercial, mining, and agricultural operations, and from community activities …

 

5.               The material that James LaBarre found at the Gordie Mikkelson Wildlife Management Area on July 30, 2003, was solid waste within the meaning of Minnesota Statutes, section 116.06, subdivision 22.

6.               The State of Minnesota, which owns Gordie Mikkelson Wildlife Management Area, did not give anyone permission to place solid waste there on or about July 30, 2003.

7.               Minnesota law[17] authorizes the Agency’s Commissioner to issue administrative penalty orders, based on field citations, to persons who dispose of solid waste locations not authorized for the disposal of solid waste without permission of the property owners.

8.               Minnesota Statutes, section 116.072, subdivision 6, grants persons to whom the Commissioner has issued administrative penalty orders the right to an expedited administrative hearing to review whether or not the order has been issued in conformity with Minnesota law.

9.               The rules that govern expedited administrative hearings for review of an administrative penalty orders provide that the party proposing that an action be taken has the burden of supporting the proposed action by a preponderance of the evidence.[18]

10.             In this proceeding, the Agency has the burden of proving by a preponderance of the evidence that it was Mr. Gruber who deposited the solid waste that was found at the Gordie Mikkelson Wildlife Management Area on July 30, 2003.

11.             The Agency failed to prove by a preponderance of the evidence that it was Mr. Gruber who deposited the solid waste that was found at the Gordie Mikkelson Wildlife Management Area on July 30, 2003.

12.           The Memorandum that follows explains the reasons for these Conclusions, and, to that extent, the Administrative Law Judge incorporates that Memorandum into these Conclusions.

13.           The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.

 

          Based upon these Conclusions, the Administrative Law Judge makes the following:

 

 

 

RECOMMENDATION

 

          The Administrative Law Judge respectfully recommends that the Commissioner RESCIND and DISMISS the Administrative Penalty Order issued to Scott Edward Gruber.

 

 

Dated this

6th

day of

July

2004.

 

 

s/Bruce H. Johnson

BRUCE H. JOHNSON

Administrative Law Judge

 

 

 

NOTICE

 

          Under Minnesota law,[19] the Division must serve his final decision upon each party and the Administrative Law Judge by first-class mail.

MEMORANDUM

Sufficiency of the Record

Minnesota Statutes, section 14.60, subdivision 2, provides, in part, that “[n]o factual information or evidence shall be considered in the determination of the case unless it is part of the [hearing] record.”  In this proceeding, Conservation Officer Jason Jensen represented the Agency at the hearing, as well as gave evidence as the Agency’s only witness.  The ALJ understands that the process in cases like this was intended to be informal, and that having a conservation officer appear alone is a common practice in cases of this type.  But it appeared that the decision to have Officer Jensen represent the Agency had never been communicated to him before the hearing.  Additionally, Officer Jensen indicated that he had never been previously involved in an administrative penalty order hearing, and knew nothing about the hearing process.  Mr. Gruber was not represented by counsel, and also knew nothing about the hearing process.   Both of these facts made conducting the hearing somewhat difficult.[20]

Because of Officer Jensen’s unfamiliarity with his prosecutorial role, some material documentary evidence was not available for introduction into the hearing record, including: the bank statement that allegedly bore Mr. Gruber’s name, the vehicle registration card that purportedly bore the name of Mr. Gruber’s mother, the field citation issued to Mr. Gruber, the Administrative Penalty Order that the Agency issued to Mr. Gruber, and Mr. Gruber’s request for a hearing to review that Order.  None of that evidence had been previously made part of the record of this proceeding by being attached to the Notice of Hearing.

In preparing this report, the ALJ has accepted Officer Jensen’s sworn statement at the hearing as evidence of the existence of the bank statement, the vehicle registration card, and the fact that a field citation was issued.  However, the ALJ noted that Mr. Gruber had never been given an opportunity to see the bank statement in question and to determine whether it, in fact, once belonged to him.  In preparing this report, the ALJ also inferred from Mr. Gruber’s appearance at the hearing that an Administrative Penalty Order had previously been issued to him, that the Order had advised him of his right to seek review of the Order in this proceeding, and that Mr. Gruber had, in fact, requested an administrative hearing. 

In short, the ALJ concluded that the hearing record, at best, only marginally met the requirement in Minnesota Statutes, section 14.60, subdivision 2.  However, as discussed below, the ALJ also concluded that even if all of the evidence described above had been properly placed into the hearing record, the Agency still would have failed to establish by a preponderance of the evidence that Scott Gruber was the individual who deposited the solid waste that was found at the Gordie Mikkelson Wildlife Management Area on July 30, 2003.

Sufficiency of the Evidence

The only evidence tending to establish that Scott Gruber was the individual who deposited the solid waste that Mr. LaBarre found at the Gordie Mikkelson Wildlife Management Area was the presence of a bank statement bearing Mr. Gruber’s name among the trash.  In other words, the Agency’s charge is based solely on the inference that the presence of that bank statement in the trash necessarily means that it was Mr. Gruber who placed the trash there.  However, when the evidence justifies an inference that supports a charge but also justifies conflicting inferences that do not support the charge, which of the inferences is most valid becomes a matter of speculation and conjecture, and the supporting inference cannot meet the preponderance of the evidence burden.[21]

Here, one could infer that Mr. Gruber dumped that trash at the Wildlife Management Area from the fact that a bank statement with his name on it was found among the trash.  But one could also infer that Mr. Gruber’s mother or some other member of his family dumped the trash from the fact that a vehicle registration card with her name on it was found among the trash.  The evidence at the hearing also established that another item of trash found at the site was a ladder for a swimming pool, but that there is no swimming pool at the Gruber family home.  The same problem exists with respect to the automobile parts.  So, one could also infer from those facts that all or part of the trash was dumped at the site by someone unrelated to the Grubers who does have a swimming pool.  In short, the inference that Mr. Gruber was the individual who dumped the trash in question is simply not strong enough to exclude other conflicting inferences, and the evidence cannot, therefore,  sustain the charge.

B.H.J.