United States District Court, D. Idaho
IDAHO CONSERVATION LEAGUE, a not-for-profit organization, Plaintiff,
MAGAR E. MAGAR, d/b/a SYRINGA MOBILE HOME PARK, Defendant.
MEMORANDUM DECISION AND ORDER
CANDY W. DALE, Magistrate Judge.
This case is a citizen suit under the Clean Water Act (CWA). 33 U.S.C. § 1251 et seq. Plaintiff Idaho Conservation League (ICL) alleges that Defendant Magar E. Magar, doing business as the Syringa Mobile Home Park, has discharged, and is likely to continue discharging, pollutants into the South Fork Palouse River without the required permit. ICL requests declaratory and injunctive relief, as well as civil penalties.
Before the Court is ICL's Motion for Summary Judgment (Dkt 35). Having reviewed the briefing and affidavits relevant to this motion (Dkts. 36, 37, 38, 39, 30, 31, 45, and 46), the Court finds that the facts and legal arguments are adequately presented therein and that the decisional process would not be significantly aided by oral argument. Dist. Idaho Loc. Civ. R. 7.1. For reasons explained below, the Court will grant summary judgment in favor of ICL on the issue of Magar's liability under the CWA's citizen suit provision.
The South Fork Palouse River is an interstate waterway with its headwaters on Moscow Mountain in Latah County, Idaho. The river flows from its forested headwaters, passes through agricultural fields, skirts the city of Moscow, Idaho, enters the State of Washington near the city of Pullman, and eventually confluences with the Palouse River near Colfax, Washington. According to regulations promulgated by the Idaho Department of Environmental Quality (IDEQ) and approved by the United States Environmental Protection Agency (EPA), the South Fork Palouse supports coldwater aquatic life, salmonid spawning, and secondary contact recreation (e.g., boating). IDAPA 58.01.02.120.01.
However, the South Fork Palouse does not meet water quality standards established by the IDEQ to safeguard these beneficial uses. In particular, the South Fork Palouse exceeds the IDEQ's standards for sediment, temperature, nutrients, and bacteria (e.g., E. coli ). Because of these exceedances, the IDEQ in 2007 developed total maximum daily loads, or TMDLs, for these pollutants. Essentially, a TMDL is a cleanup plan, seeking to reduce or eliminate the pollutants entering an impaired waterway. The IDEQ's assessment of the South Fork Palouse notes that the Syringa Mobile Home Park is a source of E. coli bacteria due to intermittent discharges from its sewage treatment lagoons. Further, the assessment states that E. coli levels in the river downstream from the Syringa Mobile Home Park must be reduced by 41% to comply with Idaho's water quality standards and to support secondary contact recreation.
Magar owns and operates the Syringa Mobile Home Park in Moscow, Idaho. The mobile home park consists of 96 units. Raw sewage is piped from each unit to a series of three sewage treatment lagoons located northwest of, and approximately 160 feet uphill from, the South Fork Palouse River. Ordinarily, the lagoons operate as a self-contained, no-discharge system. But the lagoons at certain times overflow into the South Fork Palouse. During periods of heavy snowmelt, precipitation, and runoff from adjacent land-typically during the winter or spring-the lagoons fill beyond capacity.
When this happens, maintenance workers employed by Magar drain the excess wastewater from the lagoons. If the excess is not released, there is a risk that the earthen dike between the lagoons and the river will fail, potentially allowing the lagoons' contents to flood into the river. To mitigate this risk, the maintenance workers have in the past piped the excess wastewater from the lagoons into a catch basin, treated the wastewater to some extent with chlorine, and then piped the wastewater from the basin into the river. However, the maintenance workers also have observed excess wastewater flowing, untreated, from the southeast corner of the largest lagoon into a ditch that drains into the river. Although piping the wastewater into the catch basin lowers the water level in the lagoons, it can take days before the wastewater stops overflowing from the largest lagoon into the ditch and river.
There is evidence in the record indicating the Syringa sewage lagoons have been periodically overflowing into the South Fork Palouse since the winter of 1979. More recently, maintenance workers at Syringa observed wastewater flowing from the lagoons into the South Fork Palouse in 2011 and 2012.
Starting on or about March 18, 2011, a former maintenance worker at Syringa witnessed wastewater overtopping the southeast corner of the largest lagoon. Tom Moore, an engineering supervisor for the IDEQ, also witnessed the overflow. Magar's staff advised him of the overflow and began draining the lagoons into the catch basin for treatment before releasing the wastewater to the river. On March 21, 2011, the wastewater was still overflowing from the largest lagoon but, according to Syringa's maintenance staff, had "slowed some." (Dkt. 38-14 at 1.) On the same day, Magar's staff told him he needed to obtain a National Pollutant Discharge Elimination System (NPDES) permit to discharge the lagoon water into the South Fork Palouse. Magar claims, without citing specific facts, there was no overflow from the lagoons in 2011. But, given the substantial evidence to the contrary presented by ICL, the Court finds there is no genuine dispute that the largest lagoon overflowed into the South Fork Palouse during March of 2011.
The largest sewage lagoon overflowed again during a rainstorm in April 2012. On May 1, 2012, Magar emailed an IDEQ employee, stating "[o]ur lagoon is currently overloaded.... We need to disinfect and discharge but don't have the permit to do so." (Dkt. 38-17 at 1.) On June 5, 2012 the Manager of the EPA's NPDES compliance unit emailed Magar: "Should you choose to discharge you will be in violation of the Clean Water Act and this may subject you to penalties under the EPA's civil or criminal authority. I urge you to consider alternatives for disposal of your discharge." (Dkt. 38-20 at 1.) Magar admittedly discharged wastewater into the South Fork Palouse during May or June of 2012,  but it is unclear whether the discharge occurred before or after the warning from the EPA.
On May 3, 2012, Magar applied to the EPA for an NPDES permit. The EPA received sufficient information to consider the application "complete" in mid-August 2012. To date, the EPA has not acted on Magar's application. The Agency has designated that application as "Tier 3, " the lowest level of priority for permits in the EPA region covering Idaho. (Dkt. 38-27 at 2-3.) It is unclear whether or when the EPA will issue a permit.
In the meantime, the Syringa Mobile Home Park sewage lagoons may overflow and discharge to the South Fork Palouse whenever local precipitation and runoff is sufficiently intense. There is no evidence that the sewage lagoons have been modified to prevent future discharges under circumstances similar to those in the spring of 2011 or 2012. In fact, Magar admits-in a filing with the Court-that he has "no control over these conditions" and, in the future, "it may be necessary to discharge disinfected wastewater into the waters of the South Fork of the Palouse River." (Dkt. 23-1, ¶¶ 2-3.)
Although Magar characterizes water discharged from the catch basin as "disinfected, " the record does not support this claim. Water samples collected from the catch basin on March 11, 2013, contained levels of E. coli bacteria several times greater than the TMDL for the South Fork Palouse. Compare (Dkt. 38-25 at 2) (catch basin E. coli level of 1, 119.9 most probable number of colony forming units per 100 milliliters) with (Dkt. 38-6 at 15) (South Fork Palouse year-round E. coli TMD. 126 colony forming units per 100 milliliters). Magar claims that treatment in the catch basin reduces the level of bacteria in the water discharged to the river, but there is no evidence that the treatment process removes all pollutants. To the contrary, Magar's NPDES permit application states that the treated catch basin effluent contains substances that result in biochemical oxygen demand, as well as fecal coliform bacteria and suspended solids. ...