Idaho Conservation League v. Magar

Filing 51

MEMORANDUM DECISION AND ORDER Plaintiff's Motion for Summary Judgment (Dkt. 35 ) is GRANTED. It is Further Ordered that Plaintiff shall file a brief, not to exceed 15 pages, on the appropriate remedy in this case on or before 7/14/14. Defendan t's response to Plaintiffs brief, also not to exceed 15 pages, shall be filed on or before 8/4/14. Plaintiff shall not file a reply unless, upon a specific request, the Court so orders. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IDAHO CONSERVATION LEAGUE, a
not-for-profit organization,
Plaintiff,

Case No. 3:12-cv-00337-CWD
MEMORANDUM DECISION AND
ORDER

v.
MAGAR E. MAGAR, d/b/a SYRINGA
MOBILE HOME PARK,
Defendant.

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.
MEMORANDUM DECISION AND ORDER - 1

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.
FACTS1
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
1

The following facts are undisputed or, when disputed, taken in the light most favorable to
Magar, the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (recognizing the district court’s obligation to construe the record in the light
most favorable to the non-moving party on motion for summary judgment). These facts are
contained in the pleadings, materials filed in support of ICL’s motion for summary judgment
(Dkts. 37 to 41), and Magar’s various filings in this matter (Dkts. 23, 45, 48).
MEMORANDUM DECISION AND ORDER - 2

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

MEMORANDUM DECISION AND ORDER - 3

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.”
MEMORANDUM DECISION AND ORDER - 4

(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 2012,2 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. 3

2

On February 22, 2013, ICL, acting under Rules 33 and 36, served Magar with a set of
interrogatories and requests for admission. One request asked Magar to admit that “between May
1, 2012, and July 1, 2012, wastewater from the sewage treatment facility was discharged to the
South Fork Palouse River through any valves, gates, pipes, or ditches associated with the
treatment facility.” (Dkt. 38-21 at 8.) Because Magar did not respond to this query within 30
days, he may be deemed (as noted in ICL’s motion) to have admitted that wastewater was
discharged from the sewage lagoons in May or June of 2012. See Fed. R. Civ. P. 36(a)(3); see
also (Dkt. 38-15) (Magar’s responses to ICL’s first set of interrogatories and requests for
admission dated May 7, 2013).
3

ICL argues with some support that the EPA’s regulations may forbid issuing an NPDES
permit for Magar’s discharges. See 40 C.F.R. § 122.4 (i) (prohibiting NPDES permits for a new
source or new discharger “if the discharge . . . will cause or contribute to the violation of water
quality standards.”) As noted above, the South Fork Palouse violates Idaho’s water quality
standards for sediment, temperature, nutrients, and bacteria. Based on the water quality sample
results in the record, it appears that water in the Syringa sewage lagoons contains elevated levels
of some of these constituents.
MEMORANDUM DECISION AND ORDER - 5

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 TMDL of 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.
(Dkt. 38-26 at 4.) And, as discussed above, the wastewater discharged to South Fork
Palouse is not necessarily treated in the catch basin—wastewater sometimes flows,
untreated, to the river from the southeast corner of the largest sewage lagoon.

MEMORANDUM DECISION AND ORDER - 6

There is no dispute that Magar, acting through his employees, has discharged
wastewater from the Syringa Mobile Home Park sewage lagoons into the South Fork
Palouse River. While there is no record of discharges from Syringa after this lawsuit was
filed, it is undisputed that, given sufficiently wet weather, there is a risk of similar
discharges in the future.4 In fact, Magar plans to continue discharging as necessary.
According to Magar, “whenever there is a significant precipitation event, [Magar] will
divert the water to the catch basin, take readings…, disinfect and release [the water into
the South Fork Palouse River.]” (Dkt. 45 at 3.)
Magar admits that he did not in the past, and does not now, have an NPDES
permit for the discharges.
STANDARD OF REVIEW
Rule 56 directs the court to “grant summary judgment if the movant shows there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Critically, “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “A dispute

4

On May 13, 2013, ICL served Magar with a second set of requests for admission under
Rule 36. (Dkt. 38-24.) Among other things, ICL asked Magar to admit that (1) “there is a risk of
the treatment lagoons overflowing or otherwise breaching their dikes,” (2) “if the treatment
lagoons overflow or breach their dikes, there is a risk of wastewater entering the South Fork
Palouse River,” and (3) “neither [Magar] nor [Magar’s] employees have eliminated the risk of
the wastewater overflowing or breaching the dikes surrounding the lagoons.” (Id. at 11-12.) To
date, Magar has not responded and is, therefore, deemed to have admitted these matters. See Fed.
R. Civ. P. 36(a)(3).
MEMORANDUM DECISION AND ORDER - 7

about a material fact is genuine ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” FreecycleSunnyvale v. Freecycle Network, 626 F.3d
509, 514 (9th Cir.2010) (quoting Anderson, 477 U.S. at 248).
“The moving party initially bears the burden of proving the absence of a genuine
issue of material fact.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir.2010)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the moving party
meets that burden, the burden then shifts to the non-moving party to designate specific
facts demonstrating the existence of genuine issues for trial.” Id. “If a party fails to
properly support an assertion of fact or fails to properly address another party's assertion
of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for the
purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
DISCUSSION
The CWA’s central “objective” is to “restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To that end, the
CWA generally prohibits “the discharge of any pollutant by any person” unless an
enumerated exception applies. Id. § 1311(a). The broadest of these exceptions, and the
one relevant here, is the NPDES permit program. See id. § 1342.
The NPDES program authorizes the EPA or qualifying state agencies to issue
permits for discharges that would otherwise be illegal under the Act.5 See EPA v.

5

Most states have earned the authority to issue NPDES permits for discharges within their
borders, but the EPA administers the NPDES program in Idaho. See generally Idaho Dept. of
Envtl. Quality, National Pollutant Discharge Elimination System Permits,

MEMORANDUM DECISION AND ORDER - 8

California ex rel. State Water Res. Control Bd., 426 U.S. 200, 204-05 (1976) (explaining
the purpose and scope of the NPDES program). “An NPDES permit serves to transform
generally applicable effluent limitations and other standards including those based on
water quality into the obligations (including a timetable for compliance) of the individual
discharger. . . .” Id. at 205. In other words, the NPDES program seeks to improve water
quality by controlling pollution discharged from discrete sources.
The CWA empowers private citizens to bring suit “against any person . . . who is
alleged to be in violation of . . . an effluent standard or limitation . . . .” Id. § 1365(a). A
person violates an effluent standard or limitation by, among other things, committing
“any unlawful act under [33 U.S.C. § 1311(a)],” including the discharge of a pollutant
without an NPDES permit. Id. § 1365(f). However, “wholly past” violations are not
actionable under the citizen suit provision. Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Found., Inc., 484 U.S. 49, 64 (1987). Instead, the citizen plaintiff must “make a good
faith allegation of continuous or intermittent violation.” Id.
Aside from these substantive requirements, the CWA also requires citizen
plaintiffs to give notice of the alleged violation to the EPA Administrator, the state in
which the alleged violation occurs, and the alleged violator. 33 U.S.C. § 1365(b)(1)(A). If
the EPA Administrator or the relevant state commences and diligently prosecutes a civil
or criminal action against the alleged violator, a citizen suit is barred. Id. § 1365(b)(1)(B).
“[T]he purpose of notice to the alleged violator is to give an opportunity to bring itself

http://www.deq.state.id.us/permitting/water-quality-permitting/npdes.aspx (last visited June 3,
2014).
MEMORANDUM DECISION AND ORDER - 9

into complete compliance with the [CWA] and thus . . . render unnecessary a citizen
suit.” Gwaltney, 484 U.S. at 60. Absent a governmental enforcement action and so long
as the alleged violation is not wholly past, a citizen suit may commence 60 days after the
citizen plaintiff gives notice of the alleged violation. Id. § 1365(b)(1)(A).
1.

ICL complied with the procedures for commencing a CWA citizen suit
ICL commenced this action by filing a civil complaint against Magar on July 2,

2012. The complaint was filed more than 60 days after ICL, acting pursuant to 33 U.S.C.
§ 1365(b)(1)(A), gave notice of its intent to sue to the EPA Administrator, the Director of
the IDEQ, and Magar. According to ICL, neither the EPA nor the IDEQ has commenced
a civil or criminal action against Magar. Thus, it appears ICL has satisfied the CWA’s
procedural prerequisites for commencing a citizen suit. Magar does not argue otherwise.
2.

Magar is in violation of the CWA
To prevail, ICL must prove an “ongoing violation” of the CWA. Gwaltney, 484

U.S. 66. Generally, it is a violation of the CWA to “discharge any pollutant” without a
NPDES permit. 33 U.S.C. § 1311(a). The Act’s definitional section illuminates this
general prohibition.
Under the CWA, the phrase “discharge of a pollutant” means “any addition of any
pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The CWA
expansively defines the word “pollutant” as “dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar
dirt and industrial, municipal, and agricultural waste discharged into water.” Id. §
MEMORANDUM DECISION AND ORDER - 10

1362(6). A “point source” is “any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, [or] conduit . . ., from which
pollutants are or may be discharged.” Id. § 1362(14). “Navigable water” means “waters
of the United States,” Id. § 1362(7), and the EPA has interpreted “waters of the United
States” to include “all interstate waters.” 40 C.F.R. § 122.2. Under these statutory
definitions, it is a violation of the CWA to (1) add, (2) a pollutant, (3) from a point
source, (4) to a water of the United States, (5) without a permit. Comm.to Save
Mokelumne River v. East Bay Mun. Utility Dist., 13 F.3d 305, 308 (9th Cir. 1993).
Although there are exceptions to the NPDES permit requirement, Magar does not argue
that any exception applies here.
It is undisputed that Magar has added both treated and untreated wastewater from
the Syringa Mobile Home Park sewage lagoons to the South Fork Palouse. Treated or
not, the effluent contain substances—such as sewage and biological materials—that
easily fit the CWA’s broad definition of “pollutant.” The pipe from the catch basin to the
South Fork Palouse is a point source by definition. In addition, the largest sewage lagoon
is a point source when wastewater overflows from its southeast corner and reaches the
river. See, e.g., Wash. Wilderness Coalition v. Hecla Mining Co., 870 F.Supp. 983, 988
(E.D. Wash. 1994) (“[T]he touchstone for finding a point source is the ability to identify
a discrete facility from which pollutants have escaped.”). As an interstate waterway, the
South Fork Palouse River qualifies as a water of the United States. And Magar admits
that he does not have an NPDES permit. Therefore, unpermitted discharges from both the
catch basin and the largest lagoon are violations of the CWA.
MEMORANDUM DECISION AND ORDER - 11

Based on the undisputed facts, the Court finds Magar violated the CWA during the
spring of 2011 and again in the spring of 2012. However, Magar, citing the United States
Supreme Court’s decision in Gwaltney, argues that ICL’s citizen suit fails because these
unpermitted discharges are “wholly past.” 484 U.S. 49, 67 (1987). In Gwaltney, the
Supreme Court held that a CWA citizen suit may not be premised on unlawful conduct
that occurred entirely before filing of the lawsuit. Id. But the Court explained that the
CWA “does not require that a defendant ‘be in violation’ of the Act at the
commencement of the suit; rather, the statute requires that a defendant be ‘alleged to be
in violation.’” Id. at 64. The Ninth Circuit has recognized this requirement allows a
“citizen plaintiff [to] prove ongoing violations either (1) by proving violations that
continue on or after the date the complaint is filed or (2) by adducing evidence from
which a reasonable trier of fact could find a continuing likelihood of a recurrence in
intermittent or sporadic violations.” Sierra Club v. Union Oil Co. of Cal., 853 F.2d 667,
671 (9th Cir. 1988) (internal quotations omitted).
While there is no evidence of a discharge from the Syringa sewage lagoons after
this lawsuit commenced in July of 2012, the record indicates that future violations are
reasonably likely. Magar admits that the lagoons discharge to the South Fork Palouse
“about once every four or five years.” (Dkt. 36-8 at 6.) Furthermore, nothing in the record
suggests Magar has remedied the root cause of the unlawful discharges—the lagoons’
inadequate capacity during periods of heavy precipitation and runoff.
Instead, Magar contends he can predict future overflow events using
climatological data and “will divert the water to the catch basin, take readings . . .,
MEMORANDUM DECISION AND ORDER - 12

disinfect and release [the water into the South Fork Palouse River.]” (Dkt. 45 at 3.) Some
might applaud this plan as a practical solution to an infrequent problem, but the CWA is
not so lenient. As noted above, the CWA generally prohibits the “discharge of any
pollutant by any person” except in compliance with the Act’s mandates. 33 U.S.C.
§ 1311. Without a permit, Magar essentially plans to continue violating the law. This plan
ignores the gravamen of ICL’s claim and is unsupported by a scintilla of evidence that
the EPA will issue a permit for future discharges. Thus, Magar is in violation of the CWA
because the record demonstrates continuing likelihood of unlawful discharges from the
Syringa Mobile Home Park sewage lagoons into the South Fork Palouse River.
CONCLUSION
Finding no genuine dispute as to any material fact, the Court concludes that Magar
is liable under the CWA’s citizen suit provision. Not only does Magar admit past illegal
discharges from the Syringa sewage lagoons, he plans to continue illegally discharging if
future weather conditions so require. These admissions are fatal to Magar’s defense.
Worse, they demonstrate that Magar continues to regard the already-impaired South Fork
Palouse River as a sewer. ICL is entitled to summary judgment.

MEMORANDUM DECISION AND ORDER - 13

ORDER
Based on the foregoing, the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt. 35) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall file a brief, not to exceed 15
pages, on the appropriate remedy in this case on or before July 14, 2014. Defendant’s
response to Plaintiff’s brief, also not to exceed 15 pages, shall be filed on or before
August 4, 2014. Plaintiff shall not file a reply unless, upon a specific request, the Court so
orders.
June 05, 2014

MEMORANDUM DECISION AND ORDER - 14