Minnesota Pollution Control Agency OAH Docket No. 61-22-00-225878-2
Gregory E. Korstad, Julie N. Nagorski, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, Minnesota (for relator Minnikka Properties, LLC)
Lori Swanson, Attorney General, Ann E. Cohen, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)
Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Larkin, Judge.
The use of waste tires in quantities that exceed accepted engineering or commercial standards, absent a case-specific determination of beneficial use, violates Minn. R. 7035.2860 (2011) and Minn. Stat. § 115A.904 (2012).
Relator Minnikka Properties, LLC challenges the Minnesota Pollution Control Agency's (the MPCA) final administrative order requiring Minnikka to remove waste-tire shreds from driveways that it constructed on its property. Minnikka argues that the MPCA (1) erred by concluding that its use of waste tires is not beneficial use under Minn. R. 7035.2860 and (2) denied Minnikka due process by providing insufficient notice of the alleged violation. Because the MPCA's final order is supported by substantial evidence and is unaffected by legal error and because Minnikka's due-process claim is without merit, we affirm.
Minnikka is a corporation owned and managed by Monte Niemi. Niemi also owns First State Tire Disposal (FSTD), a waste-tire processing facility that sells shredded tires for use in construction projects. In 2010, Minnikka purchased land in Brunswick near Harbor Road that Niemi planned to develop for his own residence. Niemi constructed two driveways on the property to create access to public roads. To build the driveways, Minnikka excavated an area 898 feet long, 18 feet wide, and up to 10 feet deep and filled the area with approximately 200 semi-truck loads of tire shreds supplied by FSTD.
Minn. R. 7035.2860, the beneficial-use rule, allows waste-tire use in land construction under two limited circumstances. Waste-tire parts can be used as lightweight fill in public-road construction if the tire parts are wrapped in fabric, pursuant to Minnesota Department of Transportation (MnDOT) specifications. Minn. R. 7035.2860, subp. 4(G). They can also be used as a one-to-one substitute for conventional construction aggregate. Id., subp. 4(H). Under either circumstance, the waste tires cannot be used in quantities exceeding accepted engineering or commercial standards. Id., subp. 2(E).
In July 2010, the MPCA began receiving complaints concerning Minnikka's Harbor Road project. One local resident complained that hundreds of loads of shredded tires were being used to fill a 20- to 25-foot trench on the property and that some were in standing water. Curtiss Hoffman, an inspector with the MPCA, scheduled a site visit with Niemi and asked Niemi to bring a copy of the project's plan to the site visit.
Inspector Hoffman visited the project site three days later, but could not observe the waste-tire material because the trenches had been filled in and covered. During the inspection, Niemi provided Inspector Hoffman with a design plan that had been prepared the day before by Richard Larson, a retired engineer who works as a consultant to FSTD. The plan called for 8-10 feet of shredded waste tires as "light weight fill" that would be encapsulated by geotextile fabric.
Inspector Hoffman provided Larson's plan to MPCA engineer Daniel Vleck, who noticed that it was dated as having been prepared the day before the site visit, a detail that Inspector Hoffman had overlooked. Larson explained that Niemi had called him several weeks earlier about the project, but admitted that he prepared the driveway plan after the project was complete and without visiting the construction site. Larson relied on general information on the Internet in devising the plan.
Subsequent to the site visit, the MPCA received additional complaints from citizens who insisted that Larson's plan had not been followed, alleging that Minnikka had not used fabric to encapsulate the waste-tire shreds and that the excavation was deeper than 8-10 feet. Inspector Hoffman also received photographs taken by Brandon McGaw, a conservation officer with the Minnesota Department of Natural Resources, showing that the tire shreds that filled the excavated site were not encapsulated in fabric. The MPCA asked Minnikka to respond to these allegations. Niemi replied that Minnikka did not use fabric to isolate the tire shreds from the soil but had used just 8-10 feet of waste tires as provided in the project plan.
In December 2010, the MPCA issued a proposed administrative order, concluding that Minnikka's use of tire shreds in its Harbor Road driveways failed to constitute beneficial use and therefore required a case-specific beneficial-use determination. Minnikka refused to submit a case-specific application, asserting that its use of tire shreds in past projects justified its use here.
In November 2011, the MPCA issued a revised proposed administrative order, ordering the removal of the tire shreds from the driveways. The MPCA specifically concluded that the driveway project did not qualify as beneficial use under either subpart 4(G) of the beneficial-use rule, because Minnikka failed to use fabric to encapsulate the waste tires, or subpart 4(H), because the use of the tire shreds as an aggregate substitute "exceeds any reasonable use of aggregate and is more consistent ...