                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-2062

                                Duluth Landfill Superior LLC,
                                         Appellant,

                                              vs.

                            Minnesota Pollution Control Agency,
                                       Respondent.

                                   Filed August 29, 2016
                                         Affirmed
                                       Reyes, Judge

                               St. Louis County District Court
                                  File No. 69DUCV142966

William D. Paul, William Paul Law Office, Duluth, Minnesota (for appellant)

Lori Swanson, Attorney General, Adam Kujawa, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

         Considered and decided by Stauber, Presiding Judge; Reyes, Judge; and Jesson,

Judge.

                          UNPUBLISHED OPINION

REYES, Judge

         Appellant challenges a district court order affirming a penalty issued by

respondent based on appellant’s removal of solid waste from its dumpster onto a concrete

driveway after a customer failed to pay for the use of the dumpster. Appellant also
asserts that the $1,500 non-forgivable penalty imposed by the MPCA is not supported by

the facts or law. We affirm.

                                          FACTS

       On July 17, 2014, T.H. contacted respondent, the Minnesota Pollution Control

Agency (MPCA), regarding a solid-waste-dump complaint against appellant, Duluth

Landfill Superior. T.H. informed K.G., an MPCA solid waste and hazardous compliance

and enforcement officer, that a 30-yard rolloff1 dumpster had been removed from the

property that she was managing and cleaning out after an eviction, and the contents of the

dumpster had been dumped onto the driveway. T.H. explained that the contents were

dumped because she failed to pay appellant for its services.2 T.H. also informed K.G.

that she cleaned up the waste that same day by contacting another solid-waste-disposal

company to deliver a dumpster and workers to pick up the waste. K.G. requested a

written description of T.H.’s complaint and any pictures she had, which she sent to K.G.

K.G. never investigated the scene where the solid waste was dumped because the waste

was already in the newly acquired dumpster when he received the complaint. While K.G.

admitted that it was not “routine” to rely on pictures rather than independently




1
  According to trial testimony, a rolloff is a large metal dumpster.
2
  T.H. testified that she had a previous business experience with appellant when she was
renovating a property in Wisconsin. Appellant delivered a dumpster, picked it up, and
disposed of its contents. T.H. failed to pay appellant for its services in that instance as
well.


                                             2
investigating the site, he had previously recommended that a penalty be imposed on a

regulated party without conducting an independent investigation of the scene.3

         After determining that there had been a violation, K.G. spoke with appellant who

admitted to dumping the waste because T.H. failed to pay for its services. K.G. sent an

alleged violation letter (AVL) to appellant and requested a response. K.G. stated that

appellant’s response to the letter affirmed that appellant dumped the solid waste,

acknowledged that the action was inappropriate, and represented that in the future

appellant would not dump waste for non-payment, but instead would dispose of the

dumpster’s contents according to the law. K.G. wrote a case development form (CDF),

which summarized the case against appellant, outlined the specific violation and the

penalties to be assessed. The CDF specified that appellant violated Minn. R. 7035.0800

(2015), the potential for harm was moderate, the deviation from compliance was

moderate, and the violation was determined to be serious and willful. K.G. determined

that, because the violation was serious, the penalty was non-forgivable.

         Subsequently, the CDF was reviewed by S.P., an MPCA compliance coordinator,

and nine individuals in a forum, which ensures consistent administration of MPCA

violations. The forum unanimously agreed to the type of violation, determination, and

penalty amount. Next, K.G. sent an administrative penalty order (APO) to appellant

explaining the violation, corrective action, and penalty amount. On January 2, 2015,




3
    One of the examples K.G. noted was a burning case.

                                             3
appellant filed for judicial review of the APO. The district court held a court trial and

affirmed the MPCA’s APO. This appeal follows.

                                     DECISION

       “In reviewing decisions of administrative agencies, [an appellate court] is not

bound by the district court’s decision. [The appellate court] may conduct an independent

examination of the administrative agency’s record and decision and arrive at its own

conclusions as to the propriety of that determination.” Signal Delivery Serv., Inc. v.

Brynwood Transfer Co., 288 N.W.2d 707, 710 (Minn. 1980); see also In re Fin.

Responsibility for Mental Health Servs. Provided to D.F., 656 N.W.2d 576, 578 (Minn.

App. 2003).

       But “[w]here the [district] court reviewing an agency decision makes independent

factual determinations and otherwise acts as a court of first impression, this court applies

the clearly erroneous standard of review.” In re Hutchinson, 440 N.W.2d 171, 175

(Minn. App. 1989) (citations and quotation omitted), review denied (Minn. Aug. 9,

1989). When the district court “conducts a de novo hearing, then appellate inquiry is

limited to whether the district court’s findings are clearly erroneous.” Fisher Nut Co. v.

Lewis ex rel. Garcia, 320 N.W.2d 731, 734 (Minn. 1982) (alteration in original).

I.     Appellant was required to transport the waste deposited in the rolloff dumpster
       despite T.H.’s refusal to pay appellant for services.

       Appellant argues that both the MPCA and the district court erred in concluding

that appellant’s conduct violated Minn. R. 7035.0800 based on a plain reading of the rule.




                                             4
More specifically, appellant argues that it had no duty to transfer T.H.’s debris in the

rolloff dumpster when she failed to fulfill her promise to pay. We disagree.

       Under Minnesota law, “the refuse collection service [is] responsible for . . .

transportation of all solid waste accumulated at a premises . . . to a solid waste disposal,

transfer, or processing facility that is authorized to accept the waste.” Minn. R.

7035.0800, subp.1.

       The MPCA found, and the district court agreed, that appellant dumped 30 yards of

mixed municipal solid waste and demolition waste on the property that T.H. managed

when appellant recovered the dumpster that T.H. failed to pay for. Both the MPCA and

the district court determined that, based on appellant’s conduct, it violated rule 7035.0800

and therefore the assessed $1,500 penalty was appropriate and justified.

       Appellant does not argue that rule 7035.0800 is ambiguous, but rather appellant

argues that a “plain reading” of the rule applies. We also discern no ambiguity.

Therefore, we look to a plain reading of the rule.

       Under a plain reading of rule 7035.0800, a refuse-collection service is responsible

for transporting waste to an authorized solid-waste facility. See id. It is undisputed that

appellant is a “refuse collection service” and that it failed to transport the waste

accumulated at T.H.’s premises to an authorized waste facility. Therefore, we conclude

that appellant violated rule 7035.0800. As such, the district court did not clearly err by

affirming the MPCA’s determination.

II.    A non-forgivable penalty was justified.




                                              5
       Appellant next contends that the MPCA was not justified in imposing a non-

forgivable penalty because the violation was neither willful nor serious. Appellant

further argues that the district court erred by failing to consider the “undisputed fact that

[appellant’s] dumpster was not watertight,” and therefore there was no difference in

potential harm between the contents being in the dumpster or on the concrete slab.

Appellant’s arguments are unpersuasive.

       Appellate courts review agency penalties under a deferential, abuse-of-discretion

standard. In re Haugen, 278 N.W.2d 75, 80 n.10 (Minn. 1979). The district court’s order

is reviewed for an abuse of discretion “by determining whether the district court made

findings unsupported by the evidence or by improperly applying the law.” In re Comm’r

of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007). Under Minnesota law, the MPCA

may issue orders requiring the correction of violations and assess monetary penalties up

to $20,000. Minn. Stat. § 116.072, subds. 1, 2 (2014). The penalty must be forgiven so

long as “the violation has been corrected or appropriate steps have been taken to correct

the action.” Id., subd. 5(a) (2014). But if the violation is serious, the MPCA “may issue

an order with a penalty that will not be forgiven after the corrective action is taken.” Id.,

subd. 5(b) (2014).

       A.     The violation was willful.

       Appellant’s argument confuses the standard for willfulness with the standard for

seriousness. The MPCA uses the willful standard as a factor in determining the amount

of the penalty. Id., subd. 2(b)(1). Here, the MPCA assessed a penalty of $1,500 for the

violation, of which $750 was assessed as the base penalty, and $750 was assessed


                                              6
because appellant’s conduct was willful. Because appellant does not provide any

argument supported by legal authority to dispute the amount of the penalty, this issue is

waived, and we decline to address it. State v. Modern Recycling, Inc., 558 N.W.2d 770,

772 (Minn. App. 1997).

       B.     The violation was serious.

       Under Minnesota law conduct that constitutes a “serious” violation is not

explicitly defined by statute. See Minn. Stat. § 116.072 (2014). However, under

Arrowhead Concrete Works, Inc. v. Williams, “[a] violation rates as ‘serious’ if the

enforcer ranks the ‘potential for harm’ factor or the ‘deviation from compliance’ factor as

‘serious.’” 550 N.W.2d 883, 886 (Minn. App. 1996). But the MPCA’s internal

document, the CDF, contains a penalty-assessment-calculation section, which allows for

an independent classification and rationale to determine the seriousness of the violation.

       The MPCA ranked the potential for harm and the deviation from compliance as

moderate, while the violation itself was classified as serious. The MPCA also reviewed

the violation in its forum and agreed that the violation was serious. The forum reasoned

that, because the waste was dumped in a residential area, “[t]here is a serious risk of kids,

animals, or others [ ] getting into the waste” and had the waste been left on the concrete

slab for a longer period of time, there was a “potential risk of leachate getting into the

storm water drain.”

       In support of the classification of the violation as serious, K.G. testified to the

following facts. “[P]aperwork violations,” such as the failure to get a permit or maintain

records, are usually considered non-serious violations. However, violations that have


                                              7
actual or potential harm to human health or the environment are considered serious

violations. Additionally, in assessing whether the violation was serious, K.G. stated that

the waste was dumped “very close to a trout stream and where kids play and has the

ability to go through and become a nuisance.” Finally, the violation was serious because

the transportation of solid waste to a facility authorized to accept the waste is a

“cornerstone” rule. K.G. explained that lawful transportation of solid waste was a

cornerstone rule because authorized facilities follow a strict process for disposal of waste,

which does not occur when waste is dumped in the manner employed by appellant.

       Appellant attempts to minimize its conduct by stating that the debris was only on

the concrete for “a matter of hours.” But the applicable standard is met by the risk of

harm alone; actual harm need not ensue. See id. Similarly, appellant’s argument that the

dumpster’s contents have the same potential for harm whether they are in the dumpster or

on the concrete slab is unavailing, because the purpose of the dumpster is to keep the

waste contained. Waste on the concrete slab creates a danger that people and animals

may rummage through the visible waste. Waste confined in a dumpster creates a

safeguard from this occurrence.

       Because the record, through the agency’s documents and the testimony at the

district court hearing, supports the agency’s determination that the violation was serious,

the district court’s decision to affirm the MPCA was not an abuse of discretion.

       Affirmed.




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