OAH 8-2200-19971-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA POLLUTION CONTROL AGENCY
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In the Matter of the Administrative Penalty Order Issued to Michael J. Neisen |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came before Administrative Law Judge Eric L. Lipman upon an appeal by Michael J. Neisen from an Administrative Penalty Order directing Mr. Neisen to remit a fine of $5,930.00. An evidentiary hearing was held on November 21, 2008 and the hearing record closed on that day.
Ann E. Cohen, Assistant Attorney General, appeared on behalf of the Minnesota Pollution Control Agency (the Agency). Michael J. Neisen, appeared on his own behalf without counsel.
STATEMENT OF THE ISSUES
(1)
Whether or not Mr. Neisen violated
(2) If so, whether the $5,930 penalty imposed on Mr. Neisen should be affirmed or modified?
The Administrative Law Judge respectfully recommends that the Commissioner affirm the Administrative Penalty Order issued to Michael J. Neisen.
Based upon the record in this matter, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On or around the afternoon of Friday, April 18,
2008, the Minnesota Duty Officer of the Minnesota Department of Public Safety,
Division of Homeland Security and Emergency Management, received a report
regarding the unpermitted dumping of demolition waste at a private home in
Belle Plaine,
2. On or around Monday, April 21, 2008, a copy of the Minnesota Duty Officer’s report was received and reviewed by Cory Boeck, a Solid Waste Inspector for the Minnesota Pollution Control Agency.[2]
3.
On April 21, 2008, Mr. Boeck traveled to
4. At the site, Mr. Boeck discovered a pile of household and business debris adjacent to the metal commercial style building on the site. Some of the debris had been burned. By pacing off the sides of the debris, Mr. Boeck estimated that the pile contained at least 40 yards of solid waste.[4]
5. Inspecting the pile, Mr. Boeck noted that it contained a mattress, paint cans, oil jugs, Freon jugs, buckets, electronics, one television, carpet, carpet pad, caulk tubes, vinyl flooring, oil filters, automotive seats, a chair, and other miscellaneous mixed solid waste solid waste. Fearing that the burned flooring material might contain asbestos, Mr. Boeck took both samples of the debris for testing and photographs of the waste pile as it appeared on that day.[5]
6. Before leaving the site, Mr. Boeck left his name and contact information with Mr. Neisen’s tenant in the adjacent home, with the request that Mr. Neisen contact the Agency.[6]
7. The debris samples collected by the Agency tested negative for asbestos.[7]
8. Mr. Neisen does not deny that the waste was owned, deposited at the Belle Plaine site and burned by him.[8]
9.
At the direction of the Agency, Mr. Neisen
arranged for 80 yards of solid waste to be transported from the Belle Plaine
site and disposed at the Dem-Con Landfill in
10. The circumstances surrounding the April 18 Report and the materials developed through the Mr. Boeck’s later investigation, were reviewed at a July 23, 2008 team meeting of Agency personnel. The team meeting, known within the Agency as “the Forum,” is a peer review process intended to foster consistency in the application of Administrative Penalty Orders issued by the Agency.[10]
11. As part of his presentation to the Forum, Mr. Boeck recommended a penalty with three components: Application of a $3,500 “base penalty” for violation of several solid waste disposal regulations; addition of a further sanction equaling 50 percent of the base penalty, on the grounds that the violations evidenced a degree of willfulness and knowing culpability; and addition of a $680 sanction equal to the amount of economic benefit that Mr. Neisen had wrongfully sought to obtain by burning the waste instead of properly disposing of the debris.[11]
12. It was the consensus of the members of “The Forum” team meeting that the calculation of the penalty amounts were appropriate and consistent with the Agency’s determinations in other like cases. Specifically, the fact that Mr. Neisen had two recent citations for improper waste disposal practices – one issued by the Agency to Mr. Neisen’s company in January of 2003 and another issued to Mr. Neisen by the Department of Natural Resources in January of 2004 – suggested a degree of culpability and awareness regarding the regulatory violations. Under such circumstances, the Forum members reasoned, sanctions beyond the base penalty were warranted.[12]
13. Mr. Neisen testified at the evidentiary hearing that there has been very little work in his industry and he does not know how he will pay a penalty of $5,930.[13]
14. In 2003, an Administrative Penalty Order issued against Mr. Neisen’s company, M. J. Neisen Asphalt, Inc., was reduced from $10,000 to $5,000 on the grounds that the company was unable to pay such a penalty.[14]
15. 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.
2. The Agency gave Mr. Neisen proper and timely notice of the hearing and it fulfilled all procedural requirements of law and rule. This matter is properly before the Administrative Law Judge.
3. Minnesota Statutes § 116.081 forbids the disposal of solid waste at a facility which does not have the proper solid waste permits.
4. Minnesota Statutes § 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. Minnesota Rule 7035.0800 forbids the disposal of solid waste at facilities which are not permitted and authorized disposal sites.
6. The rules applicable to expedited reviews of 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.[16]
7. The Agency has proved by a preponderance of the evidence that the material that Mr. Neisen stored and burned at 28309 State Highway 25, Belle Plaine, Minnesota, in April of 2008, was solid waste within the meaning of Minnesota Statutes § 116.06, subdivision 22.
8.
The Agency has proved by a preponderance of the
evidence that the storing and burning of solid waste at 28309 State Highway 25,
Belle Plaine,
9.
10. Minnesota Statutes § 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.
11. Based upon Mr. Neisen’s history of solid waste-related violations, and the Agency’s interest in deterring future misconduct, the penalty amounts in the Administrative Penalty Order are appropriate.
12. The calculation of the penalty amounts was reasonable and consistent with the Agency’s determinations in other like cases.
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 AFFIRM the Administrative Penalty Order issued to Michael J. Neisen.
Dated: December 5, 2008
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/s/ Eric L. Lipman |
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ERIC L. LIPMAN |
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Administrative Law Judge |
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[1] Exhibit A; Testimony of Cory Boeck.
[2] Ex. I; Test. of C. Boeck.
[3] Exs. B and F; Test. of C. Boeck.
[4]
[5]
[6] Test. of C. Boeck.
[7]
[8] Testimony of Michael Neisen; Test. of M. Neisen.
[9] Exs. D and E.
[10] Exs. F, G and H; Test. of C. Boeck.
[11]
[12] Ex. F; Test. of C. Boeck.
[13] Test. of M. Neisen.
[14] Ex. F at 5.
[15]
[16]
[17]