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In re Max Schwartzman & Sons

October 28, 2003

IN THE MATTER OF: MAX SCHWARTZMAN & SONS, INC., SCHWARTZMAN COMPANY, INC., JON SCHWARTZMAN, AN INDIVIDUAL. MAX SCHWARTZMAN & SONS, ET AL., RELATORS,
v.
MINNESOTA POLLUTION CONTROL AGENCY, RESPONDENT.



Halbrooks, Judge Minnesota Pollution Control Agency

Considered and decided by Randall , Presiding Judge, Halbrooks , Judge, and Hudson, Judge.

SYLLABUS BY THE COURT

1. Shredder fluff is solid waste under Minn. Stat. § 116.06, subd. 22 (2002), and, depending on its composition, may also be hazardous waste under Minn. Stat. §á116.06, subd. 11 (2002).

2. The use of shredder fluff to construct an earthen berm on property constitutes the disposal of solid or hazardous waste.

3. When a request for a contested-case hearing is made after the comment period and the issuance of an administrative order, the request is untimely under Minn. R. 7000.1900, subp. 1 (2001) because there is no matter pending before the agency.

4. An agency does not err in denying a request for a contested-case hearing under Minn. R. 7000.1900, subp. 1, where there is no material issue of genuine fact in dispute.

The opinion of the court was delivered by: Halbrooks, Judge

Affirmed

OPINION

In this consolidated appeal, relators Schwartzman Company, Inc., Max Schwartzman & Sons, Inc., and John Schwartzman challenge the Minnesota Pollution Control Agency's (MPCA) January 28, 2003 administrative order and its denial of relators' request for a contested-case hearing. Relators argue that (1) the MPCA's order requiring relators within six months to remove an earthen berm constructed with shredder fluff on their property is not supported by substantial evidence and (2) the MPCA erred in holding that the use of the shredder fluff in the berm constitutes disposal of solid or hazardous waste. Because we conclude that the MPCA's decision to require relators to remove the berm within six months is not arbitrary and capricious, that the MPCA did not err in holding that the use of shredder fluff in the berm constitutes the disposal of solid or hazardous waste, and that the MPCA did not err in denying relators' request for a contested-case hearing, we affirm.

FACTS

Relators Schwartzman Company, Inc., Max Schartzman & Sons, Inc., and John Schwartzman own and operate a scrap metal and metal-recycling facility in Anoka. In May 1999, relators installed a metal shredder to shred automobiles, appliances, and miscellaneous industrial scrap metal. The shredding process creates a waste material called shredder fluff that is comprised primarily of non-metallic materials. Shredder fluff can sometimes be disposed of at landfills for relatively minimal cost because the landfills use the shredder fluff for daily-cover material. But shredder fluff often contains polychlorinated biphenyls (PCBs). Before accepting shredder fluff, landfills must analyze the material in accordance with their disposal-facility permit. Under Minnesota law, shredder fluff containing PCBs of more than 50 parts per million (ppm) is considered hazardous waste that must be disposed of in a hazardous-waste-management facility and not in a less expensive solid-waste landfill.*fn1 Minn. R. 7045.0135, subp. 5 (2001).

In July and August 2000, neighborhood residents around relators' facility began making complaints to the Anoka City Council regarding the facility's noise and vibration. In response, the city conducted noise tests and found some violations of state noise rules. As a result, the city asked relators to construct a barrier. Relators hired an environmental consulting firm to perform noise and vibration testing and to recommend remedies. Upon completion of testing, the consulting firm recommended that a fence, earthen berm, or both be installed along the southwestern sides of relators' property.

During October and November 2000, relators constructed a 12-20 foot fence along the south side and an earthen berm on the southwestern side of the property. The berm is composed of approximately 17,000 cubic yards of material, of which 6,800 cubic yards is shredder fluff.

Respondent Minnesota Pollution Control Agency (MPCA) staff inspected relators' facility on May 17, 2001 to determine if relators were in compliance with the rules governing solid- and hazardous-waste and storm-water management and control. MPCA staff documented the construction of the berm using shredder fluff and also observed that relators' storm-water plan did not address the construction of the berm. The MPCA met with relators and requested additional information, which relators provided. The MPCA also obtained results from tests performed on relators' shredder fluff in August and September 2002 that showed PCB levels above 50 ppm.

On November 30, 2001, Anoka County and MPCA staff inspected relators' facility pursuant to a criminal search warrant and took three samples from the berm and five samples from shredder-fluff piles at various site locations. Test results showed that two of the three berm samples exceeded 50 ppm PCBs and that one of the five samples taken from the shredder-fluff piles exceeded 50 ppm PCBs.

The MPCA issued an administrative order on January 16, 2002, requiring relators to return to compliance by submitting a sampling and testing plan for the shredder fluff in the berm. The purpose of the sampling and testing plan was to provide data about the materials used to construct the berm in order to allow for appropriate disposal of the materials upon removal. Once the sampling and testing were complete, relators were required to submit a plan for removal of the waste material to appropriate facilities.

For almost one year, the parties attempted to negotiate a settlement and agree on a clean-up plan and schedule for removal of the berm. But in a letter dated January 8, 2003, the MPCA terminated negotiations with relators and stated that the MPCA was considering issuing an administrative order.

On January 14, 2003, the MPCA provided relators and other interested persons with notice of its intent to issue an administrative order. The proposed administrative order required relators to complete the sampling and testing of the berm in accordance with the plan they had submitted. The plan divided the berm into 20 segments and provided that each segment of the berm would be managed as solid or hazardous waste, depending on the composite test results. The order also required that the entire berm and other shredder-fluff piles on relators' property be removed within six months, but allowed for a time extension for good cause.

The MPCA accepted comments on the proposed order for ten days, during which time a number of interested persons, including relators, submitted comments. In their comments, relators stated that they did not believe that they could meet the six-month removal deadline. Relators requested that the deadlines be extended to 36 months for removal of the berm and 24 months for removal of the storage piles. The timing issue was the only comment made by relators concerning the proposed order.

The MPCA subsequently issued its administrative order on January 28, 2003. While some changes were made to the language of the proposed order, the MPCA did not change the six-month deadline for removal of the berm and disposal of all shredder fluff. In a letter to relators, the MPCA stated:

The MPCA received your comments to the Order, dated January 23, 2003, in which you state that the [relators] can meet some of the conditions of the Order, but that the [relators] expected some problems in meeting the 6 month disposal timeline for disposal of the shredder fluff. The MPCA has considered your comments but has concluded that the 6 months time should be adequate to remove shredder fluff that is improperly stored at the Facility. The [relators] have known of their obligation to remove the shredder fluff for over a year. In addition, if the [relators] cannot remove the fluff in accordance with the time schedule in the Order due to circumstances beyond their control, the Order provides a procedure for requesting extensions.

Relators proceeded with the testing and sampling required by the MPCA's order and submitted documents in accordance with its requirements on February 14, 2003. Five days later, on February 19, 2003, relators requested a contested-case hearing

to determine whether [relators'] construction of a sound berm from non-metallic "shredder fluff" constitutes the "disposal" or "storage" of "solid waste" or "hazardous waste" under Minnesota law, as found and concluded in the Order. [Relators] challenge the findings and conclusions underlying said provisions of the Order. They request findings that the shredder fluff is not "waste," and that the construction of the berm is ...


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