“Pay the two dollars!”
It’s an expression derived from a theater sketch dating back to the 1930's. The scene takes place on a New York subway where Willie is arguing with a friend who is a belligerent lawyer (an unlikely character type, of course). Willie gets angry and spits on the floor. The subway conductor points to a sign indicating a $2.00 fine for spitting. (About $35 today.) Suddenly remorseful, Willie wants to pay the fine, but the lawyer, as a matter of principle, will not let him do so.
As the lawyer unsuccessfully fights the fine with appeal after appeal, Willie keeps pleading, "Let's just pay the two dollars!" Obsessed with vindication, the lawyer continues to fight and Willie is eventually sentenced to death. After the lawyer, at last, obtains a pardon for Willie, they return home on the subway. Furious with the lawyer for destroying his life, Willie gets worked up again, and spits on the subway floor. Blackout.
Fast forward 80 years to a situation where a waste company likely spent many thousands of dollars to undo a relatively small fine. The reported proceedings do not indicate whether the company’s taking a stand was “a matter of principle” and, as between the accused and its attorney, who, if anyone, was belligerent.
In October, 2014, an individual named in court records only as “T.H.” contacted the Minnesota Pollution Control Agency (MPCA), regarding a solid-waste-dump complaint against Duluth Landfill Superior (DLS). T.H. informed K.G., a similarly identified MPCA compliance and enforcement officer, that DLS had dumped the contents of a 30-yard rolloff dumpster onto the driveway of the property that she was managing and cleaning out after a tenant had been evicted. T.H. explained that DLS had dumped the contents because she failed to pay the company for its services. T.H. added that she had immediately contacted another waste disposal company, which then delivered a dumpster and workers to pick up the waste that same day. At K.G.’s request, T.H. provided K.G. with a written summary of her complaint and pictures. 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.
After determining that there had been a violation, K.G. spoke with a DLS representative who admitted dumping the waste because T.H. failed to pay. K.G. followed up with an official letter to DLS and requested a response. DLS’s answer affirmed that it had dumped the solid waste, that such action was wrong, and that the company would no longer dump waste for non-payment, but instead would dispose of it according to the law.
K.G. wrote a case development form (CDF), which summarized the charge against DLS, outlined the specific violation and the penalties to be assessed. The CDF indicated a moderate potential for harm, a moderate deviation from compliance, but a serious and willful violation. K.G. determined that, because the violation was serious, the penalty was non-forgivable.
Subsequently, the CDF was reviewed by an MPCA compliance panel whose purpose is to ensure consistent administration of MPCA violations. The group unanimously agreed on the type of violation, determination and penalty amount. Next, K.G. sent an administrative penalty order (APO) to DLS explaining the violation and corrective action and assessing a non-forgivable penalty in the amount of $1,500.
Under Minnesota law, APOs are issued to resolve compliance problems involving state and federal environmental laws. An APO, which can be appealed, contains a monetary penalty up to $20,000 and a schedule of actions the violator must follow to return to compliance. The severity of the enforcement action depends on, among other factors, the environmental impact of the violation, whether it is a repeat offense, and how quickly the problem is corrected. An APO exists in three types: forgivable, non-forgivable or a combination of the two. A forgivable penalty offers the violator a chance to correct the problems without paying a monetary penalty. It also provides a clear financial incentive for affected parties to comply in a timely manner. An APO monetary penalty may be non-forgivable if the violations are serious or are of a repeat nature. A combination forgivable/non-forgivable APO includes both types of penalties.
In January 2015, DLS sought judicial review of the APO. After a trial, the district court affirmed MPCA’s decision. Undaunted, DLS appealed the district court order, asserting that the $1,500 non-forgivable penalty imposed by the MPCA was not supported by the facts or law. After considering MPCA’s documentary evidence and oral testimony presented at the trial, a state intermediate level appeals court upheld the lower court ruling.
“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,’" the appeals court said. “It is undisputed that [DLS] 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 [DLS] violated [state law]. As such, the district court did not clearly err by affirming the MPCA's determination.”
DLS next contended that the MPCA was not justified in imposing a non-forgivable penalty because the violation was neither willful nor serious. Again unpersuaded, the appeals court cited the testimony of K.G.: “[V]iolations that have actual or potential harm to human health or the environment are considered serious violations. * * * [T]he 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 appellate panel noted, the violation was serious because the transportation of solid waste to a facility authorized to accept the waste is a "cornerstone" rule because, as K.G. testified, authorized facilities follow a strict process for disposal of waste, which does not occur when waste is dumped as DLS did.
“[DLS] attempts to minimize its conduct by stating that the debris was only on the concrete for a matter of hours,” noted the appeals court. “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.”
Duluth Landfill Superior LLC v. Minnesota Pollution Control Agency, No. A15-2062, Minn. Ct. App., Aug. 29, 2016
Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.