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OAH 11-2200-21433-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF THE POLLUTION CONTROL AGENCY
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In the Matter of the Administrative Penalty Order Issued to Alan Odenthal |
FINDINGS OF FACT,
CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter initially came
on for hearing before Administrative Law Judge Barbara L. Neilson on September
9, 2010, at 9:30 a.m. at the Office of Administrative Hearings,
The Respondent also failed to appear for the November 3, 2010, hearing. On November 4, 2010, the Minnesota Pollution Control Agency filed a motion requesting that the Respondent be found in default. The OAH record remained open until November 24, 2010, for receipt of a response from the Respondent. No response was received.
Lawrence W. Pry, Assistant Attorney General, appeared on behalf of the Minnesota Pollution Control Agency (MPCA).
Alan Odenthal (Respondent) did not appear in person or through counsel.
STATEMENT OF ISSUES
There are two
issues presented in this case:
(1) whether the MPCA properly concluded that the
Respondent violated 40 C.F.R. §§ 503.15, 503.16, 503.17, and 503.33;
(2) if so, whether the $9,625 penalty assessed
by the MPCA is reasonable.
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On December 15, 2009, the MPCA issued an Administrative
Penalty Order to the Respondent, Alan Odenthal.
The Administrative Penalty Order documented violations identified by
MPCA staff on August 24, 2008, based on an inspection at the Michael Foods/Crystal
Farms installation, a review of the Respondent’s land application documents,
and other materials supplied to the MPCA.[1]
2.
The Respondent subsequently requested an expedited hearing
concerning this matter.[2]
3.
On August 17, 2010, the MPCA sent by first-class mail a copy
of the Notice and Order for Expedited
Hearing under Revenue Recapture Rules (Notice and Order for Hearing) to the
Respondent at
4.
On September 2, 2010, the MPCA re-sent the Notice and Order
for Hearing with attached Exhibit A (the Administrative Penalty Order and
accompanying cover letter) to the Respondent.
5.
The Notice and Order for Hearing scheduled the hearing to
take place on September 9, 2010, at the Office of Administrative Hearings,
6.
The Respondent did not appear at the September 9, 2010,
hearing. He did not contact the
Administrative Law Judge before the hearing to seek a continuance or request
any other relief.
7.
By letter dated September 17, 2010, the MPCA requested that
the Respondent be found in default based on his failure to appear at the
September 9, 2010, hearing. The MPCA
indicated in its letter that it had discovered that the Notice and Order for
Hearing mistakenly had been sent to the wrong street address on State Highway
22, but argued that the Respondent had received adequate notice and a default
determination remained appropriate.
8.
On September 22, 2010, the Administrative Law Judge sent a
letter to Respondent at the correct address that had been supplied by the MPCA
(
9.
By letter received September 28, 2010, the MPCA informed the
Administrative Law Judge that the Order and Notice for Hearing dated August 17,
2010, had been returned to the Attorney General’s Office marked “unclaimed.”[5]
10.
On October 4, 2010, the Administrative Law Judge denied the
MPCA’s request for default judgment due to several potential issues with
service of the original Notice and Order for Hearing. The Administrative Law Judge directed the
MPCA to obtain a new hearing date from the OAH Docket Coordinator and serve an
amended Notice and Order for Hearing on the Respondent at his correct
address.
11.
On October 12, 2010, the MPCA sent a second Notice and Order for Hearing to Respondent by
first-class mail at
12.
The second Notice and Order for Hearing stated that the
hearing would take place on November 3, 2010, at the Office of Administrative
Hearings,
13.
The Notice and Order for Hearing specifically notified the
Respondent that failure to appear at the hearing may result in a finding that
Respondent is in default, that the MPCA’s allegations contained in the Notice
and Order for Hearing may be accepted as true, and that the MPCA’s proposed
action may be upheld.[7]
14.
The Respondent did not appear for the hearing, nor did
Respondent contact the Administrative Law Judge prior to the hearing to seek a
continuance or request any other relief.
15.
On November 4, 2010, the MPCA requested that the Respondent
be found to be in default based on his failure to appear at the November 3,
2010, hearing.
16.
By letter dated November 5, 2010, the Administrative Law
Judge sent a letter to Respondent at 29563 State Highway 22 enclosing a copy of
the MPCA’s default motion and informing him that he had ten working days from
receipt of the letter to contest MPCA’s request that he be found to be in
default.[8] As of the date of this Report, the Respondent
has not submitted any response or contacted the Administrative Law Judge or the
Office of Administrative Hearings.
17.
Because Respondent failed to appear for the hearing, failed
to provide any reason for that failure, and failed to contest the MPCA’s
request that he be found to be in default, the Respondent is deemed to be in
default.
18.
Pursuant to Minn. R. 1400.8560, the allegations contained in
the Notice and Order for Hearing are taken as
true and incorporated by reference into these Findings of Fact.
Based
upon the foregoing Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1.
The Administrative Law Judge and the Commissioner are
authorized to consider the charges against Respondent under Minn. Stat. §§
14.50 and 116.072, subd. 6.
2.
Respondent received due, proper and timely notice of the
charges against him and of the time and place of the hearing. This matter is, therefore, properly before
the Commissioner and the Administrative Law Judge.
3.
The Department has complied with all relevant procedural legal
requirements.
4.
Under Minn. R. 1400.8560, a default occurs when a party
fails to appear without the prior consent of the judge. If the agency appears at a hearing but the
party against whom the agency intends to take action does not, the allegations
in the Notice and Order for Hearing shall be taken as true and deemed proved
without further evidence.
5.
The Respondent is in default as a result of his failure to
appear at the November 3, 2010, hearing.
6.
The Respondent failed to keep maintenance records, receipts
of lime purchases, pH samples, temperature readings or holding times, and
thereby failed to dispose of septage, in violation of 40 C.F.R. part 503, and
Minn. R. 7080.2450, subp. 6.[9]
7.
The Respondent failed to include results of pH sampling,
temperature readings, and holding times on sampling sheets, failed to keep
records relating to testing and liming, and failed to show that he met
compliance monitoring requirements, in violation of 40 C.F.R. §§ 503.15 and
503.33.
8.
The Respondent failed to keep records to demonstrate that he
properly monitored each container of domestic septage applied to the land, in
violation of 40 C.F.R. § 503.16.
9.
Respondent failed to maintain required documentation related
to the land application of domestic septage, in violation of 40 C.F.R. § 503.17.
10.
Respondent failed to verify that pathogen and vector
attraction reduction were met, and failed to report the actual number of acres
that received septage and the maximum amount of septage that could be applied
to each acre, in violation of 40 C.F.R. part 503 and Minn. R. 7083.0720 and
7083.0730.
11.
Respondent failed to comply with Nicollet County ordinances requiring
that an “as-built” be supplied within 30 days after installation; installed a
mound system without the required amount of top and cover soil; did not have
the final cover around the sewage tanks crowned or properly sloped; failed to
comply with Sibley County Zoning requirements pertaining to the installation of
subsurface sewage treatment systems; failed to meet the requirements for proper
notification or submittal of required reports and certification statements; and
hindered or otherwise interfered with the inspection of one of his
installations, in violation of Nicollet County Ordinance 750, Sibley County
Zoning Ordinance, Article 300, Section 300, and Minn. R. 7083.0720 and
7083.0760.
12.
Respondent failed to install the subsurface sewage treatment
system as required, failed to submit required documents, and interfered with
the inspection process, in violation of Sibley County Zoning Ordinance, Article
300, Section 300, and Nicollet County Ordinances 730.1, 730.2, and 730.4 by.[10]
13.
The MPCA properly considered the statutory factors in Minn.
Stat. § 116.072, subd. 2, in assessing an administrative penalty in the
amount of $9,625. There has been no
showing that the amount of the penalty is unreasonable.
Based
upon the foregoing Conclusions, the Administrative Law Judge makes the
following:
IT IS HEREBY
RECOMMENDED: that the Commissioner AFFIRM the Administrative Penalty Order issued
to Alan Odenthal.
Dated: December 3, 2010.
|
s/Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
Reported: Default.
This
Report is a recommendation, not a final decision. The Commissioner of the MPCA will make the
final decision after reviewing the record and may adopt, reject or modify these
Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 116.072, subd. 6(e), the
Commissioner’s decision shall not be made until five days after receipt of this
Report. The person to whom the Order is
issued may, within those five days, comment to the Commissioner on the
Recommendation. The final order may be
appealed in the manner provided in Minn. Stat. § 14.63 to 14.69.
[1] See Letter to Respondent from MPCA (Dec. 15, 2009) attached to Notice of and Order for Expedited Hearing, Ex. A.
[2] Notice of and Order for Expedited Hearing at 12-13.
[3]
See copy of envelope attached to Letter from MPCA to ALJ (Sept. 22, 2010). It appears that the Certificate of Service relating
to this mailing incorrectly indicated that the information was sent to
[4] Letter from ALJ to Respondent (Sept. 22, 2010).
[5] MPCA letter to ALJ (Sept. 22, 2010).
[6]
Affidavit of Service by
[7] Notice and Order for Hearing at 13.
[8] Letter from ALJ to Respondent (Sept. 22, 2010).
[9] The MPCA also alleged that Respondent violated Minn. R. 7080.0175, subp. 6. However, that rule was repealed in early 2008, (see 32 State Reg. 1347 (January 28, 2008)), and the Agency has not demonstrated that the violations occurred while that rule was in effect or that the current rules impose the same requirements.
[10] The MPCA also alleged that Respondent violated Minn. R. 7080.0130 and 7080.0170. However, those rules were repealed in early 2008 (see 32 State Reg. 1347 (January 28, 2008)), and the Agency has not demonstrated that the violations occurred while those rules were in effect or that the current rules impose the same requirements.