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OAH 15-2200-20121-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE POLLUTION CONTROL AGENCY
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In the Matter of the Administrative Penalty Order Issued
to Thielen Construction Co., Inc. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for a hearing before Administrative Law Judge Beverly
Jones Heydinger on January 29, 2009, at the Pollution Control Agency,
1. Did the Respondents violate the requirements of Minnesota Rules and the National Pollutant Discharge Elimination System/State Disposal System Permit governing construction activity, as set forth in the Notice and Order for Expedited Hearing issued January 8, 2009?
2. Did the MPCA have a reasonable basis to impose an administrative penalty of $8,100?
The Administrative Law Judge recommends that the Commissioner of the
Pollution Control Agency affirm the Administrative Penalty Order of $8,100,
issued March 24, 2008, against
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
2.
Under
3.
In January 2007, Greg Bechtold and Shawn
Beauduy, both employed as Environmental Specialists for
4. As part of his presentation, Mr. Beauduy distributed permit application information, a sample permit including a SWPPP, best management practices to prevent erosion, and some photographs showing proper and improper site management.[3]
5.
Pursuant to a Joint Powers Agreement, Mr.
Beauduy administers NPDES/SDS storm water permits on behalf of
6.
On or about the end of May, 2007, the Respondents
began construction activities along
7. On June 12, 2007, the Township submitted a Wetland Project Application for the construction project to Stearns County Environmental Services. David Benkowski, Township Chair, was listed as the Applicant. A public meeting to discuss the application was scheduled for June 26, 2007.[8] It is not apparent that Mr. Beauduy was aware of the permit application.
8. On June 26, 2007, the County Environmental Services Department issued a decision, approving the Wetland Project Application with conditions. Among the conditions listed were the following: “If one acre or more of land is disturbed by this project a NPDES permit shall be obtained.” It also states, in large italics and underlined: “This decision only applies to the Minnesota Wetland Conservation Act. Additional approvals or permits from local, state, and federal agencies may be required. Check with all appropriate authorities before commencing work in or near wetlands.”[9]
9. The Township did not apply for a NPDES permit or develop a SWPPP prior to commencing construction. None of the witnesses had a clear recollection of what Sonny Thielen told them about the need to obtain permits. Ralph Hennen had the feeling that the Township had the go-ahead. After the wetlands permit was obtained, Sonny Thielen told Mr. Hennen that he had spoken with Mr. Bechtold. Jon Thielen stated that he asked his father, Sonny Thielen, if the permits for the project were in order and his father had told him that no permits were needed.
10. On July 19, 2007, Mr. Beauduy passed the construction site, observed that construction was going on, photographed the area, and observed sediment that appeared to be flowing into the wetlands from the construction site. Although Mr. Beauduy did not conduct a full investigation on that date, he observed some efforts to stabilize the ditch bottom and slope, but did not observe any evidence of “best management practices” sufficient to reduce or control the discharge of sediment from the site. [10]
11. Based on information from aerial photos and Geographic Information System (GIS), Mr. Beauduy determined that the land disturbance covered about four acres.[11]
12. Upon returning to his office, Mr. Beauduy determined that the Respondents had not applied for or obtained an NPDES permit for the construction.[12] On July 20, 2007, Mr. Beauduy sent a letter to Mr. Benkowski notifying him that county staff had observed the site on July 19, 2007, that more than one acre of land had been disturbed, and that no NPDES permit had been obtained for the construction. The Township was directed to immediately apply for the required permit.[13] Three days later, on July 23, 2007, the County Environmental Services Department notified the Township that it had violated its wetland replacement plan because it had not met the condition to obtain the necessary NPDES permit and had not implemented the required best management practices to control erosion.[14] Mr. Benkowski notified the other members of the Township Board that a NPDES permit was required.[15]
13. Mr. Beauduy met with Township representatives on July 24, 2007, to discuss the NPDES permit application and erosion control on the site.[16]
14. The Township applied for the NPDES permit and included its SWPPP. The permit was issued for the project on August 8, 2007.[17]
15. On August 16, 2007, Mr. Beauduy returned to the site to conduct an inspection for compliance with the NPDES permit. The photos taken on that date show that sediment had been discharged from the construction site to the nearby wetland, and that the accumulated sediment covered an area of approximately 1,000 square feet. The photos show the sediment, the eroded ditches, and silt deposits. Some mulch was spread on the slopes at the side of the road and some silt fencing had been installed.[18]
16. By letter dated August 17, 2007, Mr. Beauduy notified the Township of six rule and permit violations, including failure to stabilize ditches, ditch bottoms and slopes, lack of “energy dissipation” at the end of road culverts, and failure to use best management practices to prevent discharge of sediment. The letter directed the Township to install the necessary erosion control practices within five days, and requested the Township’s site inspection records.[19]
17. Sonny Thielen contacted Mr. Beauduy on August 21, 2007, to discuss steps to address the erosion on the site and the other violations.[20] There was no evidence that Mr. Thielen requested additional time to complete the necessary erosion control practices.
18. On August 27, 2007, Mr. Beauduy returned to the site and took additional photos. These photos show additional erosion in the ditch, a silt fence that was partially down, and some grass growing from seeding on the road-side slopes.[21]
19. On August 28, 2007, Mr. Beauduy notified the Township of seven rule and permit violations, including failure to stabilize ditches, ditch bottoms and slopes, excessive sediment in the ditch bottoms, improper maintenance of the silt fence, sediment in the nearby wetland and impact on it, and unavailable inspection records. The Township was directed to stabilize the ditch bottoms within 24 hours and to fill and restabilize slopes where rilling had occurred immediately “or as soon as conditions allow.” It was also directed to repair all silt fences within 24 hours, and to carefully remove sediment without causing further impact to the wetland, re-establish perimeter controls and stabilize upland slopes immediately or as soon as conditions allowed. The letter also directed the Township to submit all inspection and maintenance records to Stearns County Environmental Services within 72 hours of receiving the report.[22]
20. On both August 16 and August 27, Mr. Beauduy observed that the sediment had flowed into the wetland, causing excessive suspended solids, material discoloration and degradation of the habitat. There was no evidence of erosion from the nearby farm fields, and there was evidence of erosion from the construction site. There was thick vegetation between the farm fields and the sediment, and the area where the sediment accumulated appears to be higher than the farm field.[23]
21. Sometime after August 27, 2007, the Township took photos showing improved erosion control, longer grass, rock dams, bio rolls and mulching.[24] Mr. Beauduy and Township representatives returned to the site on September 27, 2007, and Mr. Beauduy noted that remedial work had been done on the site.[25] Additional landscaping and site remediation were done in 2008.[26]
22. Beginning in late May or early June 2007, county representatives regularly inspected the construction site, but they maintained no documentation of the inspections. In July, there was over 2.5 inches of rain in the area. Because the ground was saturated, the Township was reluctant to remove sediment that had collected in the ditches, fearing that the equipment would cause additional damage.[27] The Township did not keep any records of inspection and maintenance of the construction site.[28]
23. On September 24, 2007, the MPCA sent the Township a letter, notifying it of alleged violations at the construction site, specifically, commencing construction without the required NPDES/SDS permit, failure to install erosion prevention on the perimeter of a ditch, failure to properly control sediment on “down gradient perimeters” before disturbing the land up gradient, failing to maintain inspection records, and failure to remove sediment deposited by erosion. The Township was given deadlines to comply with the cited rules.[29]
24. The Township responded on October 13, 2007, explaining that it had not obtained a permit based on statements made by Mr. Bechtold, and enclosing the pictures in Exhibit 20 that demonstrated its efforts to address the erosion at the site.[30]
25. Thereafter, MPCA staff convened an “enforcement forum” to review the violations and determine whether an Administrative Penalty Order should issue. In preparation, the “Case Development Form” was completed. It included general case information, a history of the enforcement action, including documentation of the violations and correspondence with the responsible persons, and the violations and significance of them, including the estimated discharge of sediment into the adjoining wetland south of the project area, and environmental impact. It also summarized the Respondents’ enforcement history.[31]
26. Based on their review of the information summarized on the Case Development Form, the enforcement forum agreed that an Administrative Penalty Order was appropriate.[32] State statute sets out the criteria for determining the penalty calculation.[33] The steps are outlined in the MPCA’s “Penalty Calculation Guidance.”[34]
27. In this case, the MPCA determined that the failure to apply for and receive the necessary permit prior to construction, and failure to implement appropriate and functional sediment and erosion controls were serious violations. It divided the violations into two “Violation Groups.” Group 1 included the failure to have the permit and SWPPP in place prior to beginning construction. The MPCA determined that the potential for harm from the violations was “moderate” and the deviation from compliance with the rules was “major.” In its analysis of the penalty, the MPCA noted that the permit application is the only notice of the proposed project, and without it, as in this case, the MPCA cannot assure that the proper steps are taken to avoid degradation during the construction process. The MPCA also noted that the permit itself includes self-implementing requirements such as routine inspections and record-keeping. The base penalty range for moderate potential for harm and major deviation is $2,000 to $5,000. The MPCA assigned a base penalty at the midpoint, $3,500.[35]
28. Violation Group 2 included the failure to install the necessary erosion controls, to conduct the necessary inspections, and to prevent the flow into and degradation of the wetland. The MPCA determined that the potential for harm from the violations was “moderate” and the deviation from compliance was “moderate.” In its analysis, the MPCA noted that some stabilization was installed prior to the initial inspection, although it was ineffective; that the wetland was not connected to any other surface waters or waters of the state; and that the soil drained effectively. The base penalty range for moderate potential for harm and moderate deviation from compliance is $1,000 to $3,500. The MPCA imposed a base penalty of $3,500, the top end of the range, because of the duration of the violations, the amount of exposed soil draining to one location and the impact to the wetland.[36]
29. After determining the total base penalty, the MPCA may enhance or mitigate the penalty. The MPCA enhanced the base penalty by $1,100. It increased the penalty by $700 on the basis that the violations were willful because the Respondents were notified of the NPDES/SDS permit requirements at the January Township Board meeting. It increased the penalty by $400 for the avoided costs of 20 inspections, valued at $25 each. No additional adjustments were made for enforcement history or “other factors as justice may require.” Because the violations were deemed “serious,” the penalty was not forgiven.[37]
30. According to the Penalty Calculation Guidance, the MPCA may determine that a violation is willful or culpable if the Respondents knew that that their actions were illegal, or should have reasonably known. Also, the MPCA considers the actions taken by the Respondents after they were first notified of the violations. In its review of forgivability, the MPCA must forgive a violation that is neither serious nor repeated. If the violation is serious or repeated, then it may be nonforgivable.[38]
31. In determining the amount of the penalty or its forgiveness, the MPCA acknowledged that it did not take into account that Mr. Bechtold may have initially led the Respondents to believe that no permit was required. It did find a “low level” of culpability, that is, there was no determination that the Respondents had intentionally committed the violations. Also, it is standard to assess a penalty of $3,500 for the failure to get a permit and prepare a SWPPP. It is also standard to find that any amount of sediment running into a wetland will cause harm because even trace amounts may introduce pollutants, smother spawning, disrupt plants and animals, and interrupt the wetland’s filtration capacity.[39] In assessing the amount of the penalty, the MPCA did not take into account the improvements made to the site that were reflected in the photos submitted in October 2007, although Mr. Beauduy had seen the improvements when he visited the site in September.[40]
32. Respondents did not dispute that part of the area adjoining the construction site was a “water of the state,” as defined in Minn. Stat. § 115.01, subd. 22, although there was some confusion about whether the area was a “Type 2” or “Type 3” wetland. The distinction is immaterial for the purposes of this proceeding.
33. On March 28, 2008, the Respondents were issued an Administrative Penalty Order for violations of the MPCA’s rules and NPDES permit requirements, imposing a nonforgivable penalty of $8,100.[41]
34. By letter dated April 25, 2008, the Respondents requested a hearing on the Administrative Penalty Order.[42]
35. On May 19, 2008, Respondents waived their right to a hearing held within thirty days of their written request for review.[43]
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Minnesota Pollution Control Agency have jurisdiction to consider the violations against Respondents pursuant to Minn. Stat. §§ 116.072 and 14.50.
2. Respondents received proper and timely notice of the violations and of the time and place of the hearing. This matter is, therefore, properly before the MPCA and the Administrative Law Judge.
3. The MPCA has complied with all relevant procedural legal requirements.
4.
Pursuant to
5. The requirements of Appendix A in the MPCA General Permit Authorization to Discharge Storm Water Associated With Construction Activity Under the National Pollutant Discharge Elimination System/State Disposal System Permit (NPDES/SDS) Program are incorporated by reference into the rules of the MPCA, pursuant to Minn. R. 7090.0060.
6. The MPCA has shown by a preponderance of the evidence that Respondents violated Minn. R. 7090.2010, subps. 1 and 2, and Minn. R. 7090.0080, subp. 4, by conducting construction activity, as defined in Minn. R. 7090.0080, subp. 4, resulting in disturbance equal to or greater than one acre, without obtaining a construction storm water permit.
7. The MPCA has shown by a preponderance of the evidence that Respondents violated Minn. R. 7050.0210, subp. 2, by allowing sediment to flow into a wetland causing a nuisance.
8. The MPCA has shown by a preponderance of the evidence that Respondents violated Minn. R. 7090.2010, subp. 3, by failing to comply with storm water discharge design requirements, construction activity requirements and other requirements of NPDES Permit Part III for storm water pollution prevention plans.
9. The MPCA has shown by a preponderance of the evidence that Respondents violated NPDES Permit Part IV. B. 3, by failing to stabilize the normal wetted perimeter of drainage ditches that discharge into wetlands.
10. The MPCA has shown by a preponderance of the evidence that Respondents violated NPDES Permit Part IV. C. 2, by failing to establish sediment control practices on all down gradient perimeters before up gradient land disturbing activities begin and maintaining them until final stabilization has been established.
11. The MPCA has shown by a preponderance of the evidence that Respondents violated NPDES Permit Part IV. E. 1 and 2, by failing to routinely inspect the construction site once every seven days during active construction and within 24 hours after a rainfall event greater than 0.5 inches in 24 hours, and recording inspections and maintenance in writing, retained with the SWPPP.
12. The MPCA has shown by a preponderance of the evidence that Respondents violated NPDES Permit Part IV. E. 4. c, by failing to inspect for evidence of sediment deposited by erosion and removing the sediment deposited in surface waters including drainage ways, and restabilizing the areas where sediment removal resulted in exposed soil.
13. The MPCA has shown by a preponderance of the evidence that, based on the factors set forth in Minn. Stat. § 116.072, subd. 2, the nonforgivable penalty of $8,100 for the violations is reasonable.
14. Any of the Findings of Fact more properly designated Conclusions are hereby adopted as such.
Based upon these Findings of Fact and Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
The Administrative Law Judge recommends that:
The Commissioner of the Pollution Control Agency affirm the
Administrative Penalty Order of $8,100, issued March 24, 2008, against
Dated: March 20, 2009
/s/ Beverly Jones Heydinger
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Beverly Jones Heydinger Administrative Law Judge |
Reported: Digitally Recorded
A-bjh-0129-09
This report is a recommendation, not a
final decision. The Commissioner of the
Pollution Control Agency will make the final decision after a review of the
record. The Commissioner may adopt,
reject or modify these Findings of Fact, Conclusions, and Recommendations. Under
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 under
Under Minn. Stat. § 14.62, subd. 1, the agency is required
to serve its final decision upon each party and the Administrative Law Judge by
first class mail or as otherwise provided by law.
The MPCA has the authority to require NPDES/SDS permits prior to construction activity, to assure that the activity is conducted in accordance with the permit and applicable rules, and to assess a penalty for violations of the permit and rules. The administrative law judge must affirm the penalty unless the MPCA fails to prove that the violations occurred and that the amount of the penalty is reasonable.[45] The amount of the penalty shall be set aside only if it represents a clear abuse of the agency’s discretion.[46]
Respondents do not dispute that they commenced construction prior to obtaining the necessary NPDES/SDS permit. Rather, they assert that their failure to do so was the result of misleading or inaccurate statements by Stearns County Environmental Services employee, Greg Bechtold.
It is undisputed that Greg Bechtold met with Sonny Thielen at the work site prior to the start of construction. The Respondents maintain that Mr. Bechtold told Mr. Thielen that only a wetlands permit was required for work on the site, but Respondents did not call either Mr. Bechtold or Mr. Thielen to testify in support of that claim. Mr. Hennen, a member of the Township Board at the time, stated that the “feeling” was that the Township had the go-ahead, and that he believed Mr. Thielen had been told that no permits were necessary. Jon Thielen testified that his father told him that the permits were in order. This is inconclusive evidence of what representations Mr. Bechtold may have made. Regardless of what Mr. Bechtold said to Mr. Thielen, the Wetland Project Recommendations and Decision issued on June 26, 2007, clearly directs the Township to obtain an NPDES permit if more than one acre of land would be disturbed by the project. Any reliance on Mr. Bechtold’s alleged statements after June 26, 2007, the date that the Decision was issued, was not reasonable. Moreover, that decision also directed the Township to follow “Best Management Practices” to stabilize disturbed areas within 14 days of disturbance.
Once that decision issued, the Respondents had specific notice that a NPDES permit was required. It is not disputed that the construction disturbed more than one acre of land.
The Respondents imply that the MPCA should be estopped from enforcing the penalty because of Mr. Bechtold’s representations. However, a party alleging equitable estoppel against the government bears a heavy burden. To prevail, the party must demonstrate that the government entity engaged in wrongful conduct, that the party reasonably relied upon that conduct, that it suffered a detriment because of its reliance, and that a balancing of the equities favors estoppel.[47]
The Respondents have failed to meet the test. There is insufficient evidence to conclude that the government engaged in wrongful conduct. Even if Mr. Bechtold told Mr. Thielen that a permit was not required, and that has not been proven by a preponderance of the evidence, the oral statement of an administrative officer is insufficient to establish an estoppel claim. There is no evidence that Mr. Bechtold had the authority to make such a statement, and the case law has established that persons who deal with the government are expected to know the law and may not rely on the conduct of government agents to the contrary.[48] Even the written representation of a government official may not be sufficient to establish estoppel.[49] In light of Mr. Beauduy’s presentation to the Township Board, with written information about the separate need for a NPDES/SDS permit, and the specific direction included in the wetlands permit to obtain an NPDES permit, Respondents’ reliance on what Mr. Bechtold may have said to Mr. Thielen was not reasonable. Moreover, Mr. Bechtold’s statements could not be interpreted to excuse the Respondents from implementing sufficient erosion protections to prevent sediment from washing out of the construction site. Jon Thielen testified that he had been on the site during each phase of the construction, that he had received NPDES/SDS permit and SWPPP training, and that he had “site management’ certification. Thus, he was aware of the best management practices to prevent erosion and discharge into the wetland.
The resulting Administrative Penalty Order is the only detriment to Respondents attributable to the alleged misrepresentation. This is not a case where a party incurred expenses, devoted resources, or undertook an obligation in reliance upon an erroneous government action. The only detriment is the penalty for failing to comply with the law.
For similar reasons, the Respondents’ argument that Mr. Bechtold’s statements offset the willfulness of the violation for not seeking a permit is not persuasive. At most, the Respondents could be excused only up to the date that the wetlands permit decision was received. Thereafter, there was no basis to rely upon an oral statement that was inconsistent with the written permit signed by Mr. Bechtold.
Respondents contend that the MPCA did not consider the Respondents’ corrective actions in its determination of the willfulness of the violation. Included among the factors the MPCA will consider is the response after the agency begins to seek compliance.[50] The MPCA acknowledged that some efforts were made to address the erosion after the first inspection.[51] However, it is apparent that from the first letter of July 20 until at least August 27, the corrective actions were insufficient to prevent continued erosion at the site.
It is significant that the Respondents offered no evidence refuting the alleged violations for failing to comply with storm water discharge design requirements, failing to prevent sediment from flowing into the wetland, failing to stabilize the normal wetted perimeter of drainage ditches, or failing to establish adequate sediment control practices, either prior to starting construction or between July 20 and August 27, 2007. Even if the Respondents misunderstood the need for a permit, there was no explanation for failing to implement these erosion control precautions. To the contrary, Jon Thielen testified that he had received SWPPP training, that he was a certified site manager, and that he was frequently at the construction site.
The MPCA also had a reasonable basis to assess $400 for the economic benefit of the avoided inspections. The Respondents apparently do not challenge the $400 penalty since they have conceded that, although inspections were done, no records were kept.
In their posthearing brief, Respondents assert that Mr. Bechtold explained to the Respondents that if the project was conducted in phases, a storm water permit was not necessary. According to Mr. Beauduy, Mr. Bechtold admitted at a meeting in June 2008 that he told Mr. Thielen in 2007 that if the project was completed in phases that affected less than one acre, no NPDES permit would be needed. Respondents do not dispute that the work affected more than one acre. The wetlands permit clearly stated that a NPDES permit would be required if the work affected more than one acre. Thus, the Respondents have failed to demonstrate that, even if Mr. Bechtold told them that the project could be conducted in phases without a permit, that they performed the work in compliance with that understanding.
The MPCA contends that the Respondents knew or should have known that Mr. Bechtold had no authority to discuss the NPDES/SDS permit requirements with the Respondents, and that, because of Mr. Bechtold’s position, the Respondents reliance upon his statements was unreasonable. Although they discussed separate permit requirements, both Mr. Bechtold and Mr. Beauduy were employed by Stearns County Environmental Services. Although Mr. Bechtold’s alleged statements are an insufficient basis to excuse the Respondents from seeking the required permit given the other facts presented, it is easy to understand why the distinct, separate duties of the two county employees were not obvious to the Respondents.
The Township requested that the heavy July rainfall be taken into account when considering its difficulty implementing best management practices to control erosion. Although heavy rain in July may have contributed to the erosion, the photos show that Respondents did not install bio rolls and rock berms or adequately support the silt fencing until after the August 27 inspection. If heavy rains fell, erosion controls should have been installed prior to that date. Because there are no inspection and maintenance records, it can not be determined when inspections took place and what actions were taken after rainfall.
Based on the record, the calculation of the base penalty, the increase of 10 percent ($700) for willfulness, and an additional $400 for the avoided costs of inspection are consistent with the criteria established in Minn. Stat. § 116.072, subd. 2, and are reasonable.
Respondents also contend that some or all of the penalty should be forgiven because they have no prior history of enforcement actions, and because they made a good faith effort to comply with the MPCA’s requirements. It is unclear from Ms. Woog’s testimony whether serious violations are ever deemed forgivable by the agency, but it was clear on the facts of this case that the agency did not believe that forgiveness was appropriate. Minnesota Statutes § 116.072, subd. 5 (b) states: “For a repeated or serious violation, the commissioner … may issue an order with a penalty that will not be forgiven after the corrective action taken.”[52] Although the site was later remediated, there was significant flow of sediment from the construction site, including sediment in a nearby wetland, which was the result of the Respondents’ actions. Also, the MPCA considers the failure to obtain a permit a serious violation because it is at the heart of its enforcement efforts. Its decision not to forgive the penalty was a reasonable decision.
B. J. H.
[1]
[2] Testimony (Test.) of Shawn Beauduy; Test. of Ralph Hennen, Township Supervisor.
[3] Test. of S. Beauduy; See Exhibits (Exs.) 1-4.
[4] Test. of S. Beauduy.
[5] Test. of Lisa Woog.
[6] Ex. 15; Test. of R. Hennen.
[7] There was no direct evidence of the meeting, but the MPCA apparently concedes that it occurred.
[8] Ex. 8.
[9] Ex. 9.
[10] Test. of S. Beauduy; Exs. 5a-5d (photographs taken on July 19, 2007); Ex. 19 (explanation of Group #2 violations).
[11] Test. of S. Beauduy.
[12] Test. of S. Beauduy.
[13] Ex. 6.
[14] Ex. 7.
[15] Test. of R. Hennen.
[16] Ex. 17, § 5.
[17] Test. of S. Beauduy.
[18] Exs. 10A, 10C, 10D and 12A.
[19] Ex. 11.
[20] Ex. 17.
[21] Ex. 10B, 12B and 12C.
[22] Ex. 13.
[23] Exs. 10A-10D, 12A-12C; Test. of S. Beauduy, Exs. 20 H and I.
[24] Exs. 20A through 20K. Compare, specifically, Exs. 12B and 12C with Exs. 20 A and 20 J; Ex. 23 (Aug. 27) with Ex. 20 C and G; and Ex. 24 (Aug. 27) with Exs. 20 B, F and I. Mr. Benkowski was uncertain when the photos in Exhibit 20 were taken, but a comparison with the photos taken on August 27 shows that Mr. Benkowski’s photos were taken at a later date.
[25] Test. of S. Beauduy.
[26] Test. of R. Hennen.
[27] Test. of R. Hennen.
[28] Test. of S. Beauduy; Test. of R. Hennen.
[29] Ex. 14.
[30] Ex. 15.
[31] Ex. 17.
[32] Test. of L. Woog.
[33]
[34] Ex. 18.
[35] Exs. 18 and 19.
[36] Exs. 18 and 19; Test. of L. Woog.
[37] Ex. 19; Test. of L. Woog.
[38] Ex. 18.
[39] Test. of L. Woog.
[40] Test. of L. Woog; Test. of S. Beauduy.
[41] The Administrative Penalty Order is attached to the Notice and Order for Expedited Hearing Under Revenue Recapture Rules, issued Jan. 8, 2009.
[42] Attached to the Notice and Order for Expedited Hearing Under Revenue Recapture Rules, issued Jan. 8, 2009.
[43] Notice and Order for Expedited Hearing Under Revenue Recapture Rules, para. 14, issued Jan. 8, 2009.
[44] See also Minn. Stat. § 115.03, subd. 1.
[45]
[46] In re Henry Youth Hockey Ass’n, 511
N.W.2d 452, 456 (
[47]
[48] See Westling Manufacturing, 442 N.W.2d
328 (
[49] Mesaba Aviation, Inc. v.
[50] See Ex. 18.
[51] See Ex. 19 (Violation Group #2, Deviation from Compliance).
[52] Emphasis added.