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 ON REMEDIES
CANDY W. DALE, Magistrate Judge.
Before the Court is the determination of the appropriate remedy for Defendant Magar E. Magar's violations of the Clean Water Act (CWA). The Court previously granted summary judgment in favor of Plaintiff Idaho Conservation League (ICL) on the issue of Magar's liability under the CWA. In particular, the Court held that Magar, doing business as the Syringa Mobile Home Park, violated 33 U.S.C. § 1311(a) by discharging wastewater from Syringa's sewage treatment lagoons into the South Fork Palouse River without the required permit. Having considered the parties' briefs on the appropriate remedy, the record, and the oral arguments of counsel, the Court will enter an injunction and impose a civil penalty of $100, 000, as explained below.
1. Procedural history
In early June of 2014, the Court entered summary judgment against Magar on issue of liability under the CWA. (Dkt. 51.) The Court also directed the parties to submit briefs on the issue of the appropriate remedy for Magar's CWA violations. In mid-July, ICL filed a brief and supporting factual materials, arguing for injunctive relief and a substantial civil penalty. Magar responded in mid-August, arguing for a nominal penalty but not contesting the issuance of an injunction. ICL's reply brief followed in early September.
Thereafter, the Court set the matter for oral argument on January 21, 2015. One week before oral argument, the Court authorized the parties to supplement the record with additional evidence. (Dkt. 70.) On January 16, 2015, ICL filed supplements to the record and a request for judicial notice. (Dkt. 72, 73, 74, 76.) Magar also filed a supplemental affidavit on January 16, describing, among other things, his efforts to obtain a permit for land application of the wastewater from the Syringa Mobile Home Park sewage lagoons. (Dkt. 75.) Following oral argument, the Court indicated it was inclined to issue an injunction and directed ICL to submit a proposed injunction by January 30, 2015. ICL did so, and Magar filed objections and comments to ICL's proposal on February 6. (Dkt. 78, 79.)
2. Factual developments since summary judgment
The Court recited the undisputed facts of this case in its Memorandum Decision and Order dated June 5, 2014 (Dkt. 51 at 2-7). Those facts are well known to the parties and need not be repeated here. Instead, this background section will address key developments in this and the related state court litigation after the Court found Magar liable for violating the CWA.
This section references documents filed in two lawsuits against Magar in the District Court for the Second Judicial District of the State of Idaho, Latah County. Federal Rule of Evidence 201 authorizes the Court to take judicial notice of such documents, and ICL requests the Court to do so. Magar does not oppose ICL's request. Accordingly, the Court takes judicial notice of the documents attached to ICL's Supplement to the Record and Request for Judicial Notice (Dkt. 72-1 to 72-5). See Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (courts may take judicial notice of pleadings filed in related lawsuits).
This is not the only case where the Syringa Mobile Home Park's wastewater collection and treatment system has come under scrutiny. In January of 2014, the Idaho Department of Environmental Quality (IDEQ) filed suit in the District Court for the Second Judicial District of the State of Idaho in and for the County of Latah (the IDEQ case). The IDEQ alleged that Magar was liable for 16 counts of regulatory violations in connection with his operation of the public drinking water and wastewater systems at Syringa. (Dkt. 49-1.) The Honorable John Stegner entered judgment on the pleadings against Magar on June 11, 2014, enjoining Magar to, among other things, make repairs to the drinking water and wastewater systems, place the systems under the responsible charge of duly licensed personnel, and submit the results of various engineering studies to the IDEQ. (Dkt. 63-5.)
In February of 2014, a class comprised of Syringa residents filed suit against Magar in the Second Judicial District (the Residents case). The Residents case settled after the parties reached an agreement as to liability and the terms of a permanent injunction. On August 7, 2014, Judge Stegner entered a Consent Judgment against Magar. Among other requirements, the Consent Judgment also enjoins Magar to repair the drinking water and wastewater systems and hire a duly licensed operator for the systems. (Dkt. 63-7.)
On November 4, 2014, Judge Stegner found Magar in contempt of court for failing to obey the injunctions in both the IDEQ and the Residents' cases. (Dkt. 72-1, 72-2.) About one month later, the IDEQ filed a second petition to commence contempt proceedings against Magar, alleging Magar's continuing failure to comply with Judge Stegner's June 11, 2014 Judgment. (Dkt. 72-3.) The minutes from the January 6, 2015 hearing on the IDEQ's second contempt petition reflect that "the proof [was] sufficient beyond a reasonable doubt to find that Mr. Magar is in contempt." (Dkt. 72-5.) The records of both the IDEQ case and the Residents case belie Magar's claim that he "has complied with the orders in both cases, incurring great expense." (Dkt. 63 at 5).
With respect to this case, Magar maintains he is "diligently working to bring [his] operations into compliance with the Clean Water Act." (Dkt. 63-6 at 2.) In particular, Magar has hired an engineer to investigate obtaining from the IDEQ a permit for land application of the Syringa wastewater onto an adjacent parcel owned by Magar (Magar Aff. ¶ 2, Dkt. 75.) The project is expected to take one year to complete. (Id. at 2.) Magar also notes he is still awaiting the United States Environmental Protection Agency's (EPA's) approval of his application for a National Pollutant Discharge Elimination System (NPDES) permit, which has been pending for three years. If granted, the NPDES permit may allow Magar to discharge from the Syringa wastewater lagoons into the South Fork Palouse River without violating the CWA. However, it is far from certain that the EPA will grant the permit. Aside from these measures, there is no evidence that Magar has acted to prevent further unpermitted wastewater discharges into the South Fork Palouse River.
Instead, Magar has directed his employees to pipe excess wastewater from Syringa's sewage lagoons into a catch basin for treatment "before release, " presumably into the South Fork Palouse River. (Dkt. 63 at 2.) The Court previously found this is "essentially [a] plan to continue violating the law, " because Magar lacks the permit necessary to legally discharge any amount of any pollutant into waters of the United States. (Dkt. 51 at 13.) Nevertheless, Magar claims, but has not established, that his treatment process lowers the levels of biochemical oxygen demand (BOD) and total suspended solids (TSS) in the wastewater, such that it would comply with "limits set forth in a typical NPDES permit and the C.F.R. regulations." (Dkt. 63 at 2.)
In a citizen suit such as this one, the CWA authorizes the Court to impose an appropriate civil penalty and to enforce the Act's prohibition against unpermitted pollutant discharges. 33 U.S.C. § 1365(a), (f). The CWA mandates the imposition of civil penalties for violations of the Act. The governing statute, 33 U.S.C. § 1319(d), is couched in mandatory language, and states that any person who violates the Act " shall be subject to a civil penalty not to exceed $25, 000 per day." (emphasis added); see also Natural Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 1001 (9th Cir. 2000) (holding that penalties are mandatory if a violation of the Act is found). The maximum daily penalty increased periodically after the statute was enacted and is currently set at $37, 500.00. 40 C.F.R. § 19.4. Unlike damages in other civil cases, these penalties do not inure to the citizen plaintiffs, but are payable to the United States Treasury. See Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 173 (2000).
In addition, the CWA authorizes the Court "to order that relief it considers necessary to secure prompt compliance with the Act. That relief can include, but is not limited to, an order of immediate cessation." Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982). Discretion is vested in the district court to either grant or deny a request for injunctive relief, depending upon its view of the range of public interests at issue. Id. If a district court chooses to grant an injunction, however, it must meet the requirements of Federal Rule of Civil Procedure 65(d), which states that every injunction must "a) state the reasons why it was issued, b) state its terms specifically, and c) describe in reasonable detail-and not by referring to the complaint or other document-the act or acts restrained or required." F.R.C.P. 65(d); see also, Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1132 (9th Cir. 2006).
1. Civil penalty
ICL asks the Court to impose $187, 500 in civil penalties for Magar's violations of the CWA. Magar argues the Court should either impose a nominal penalty or reserve ruling on a civil penalty so that Magar can focus his ...