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State ex rel. Iowa Department of Natural Resources v. Passehl

Court of Appeals of Iowa

December 5, 2013

STATE OF IOWA ex rel. IOWA DEPARTMENT OF NATURAL RESOURCES, Plaintiff-Appellee,
v.
JERRY PASSEHL, Defendant-Appellant

Appeal from the Iowa District Court for Franklin County, DeDra L. Schroeder, Judge.

Jerry Passehl appeals from a ruling assessing penalties against him and granting injunctive relief to the State.

Harry L. Haywood III of Haywood Law Office, Eldora, for appellant.

Thomas J. Miller, Attorney General, David R. Sheridan, Assistant Attorney General, and Jacob L. Larson, Assistant Attorney General (Environmental Law Division), for appellee.

Heard by Vogel, P.J., and Potterfield and McDonald, JJ.

POTTERFIELD, J.

Jerry Passehl appeals from a ruling assessing penalties against him and granting injunctive relief for violations of an administrative consent order and environmental protection laws. The district court did not err in entering partial summary judgment based upon Passehl's admissions of violations of the administrative consent order. We find no abuse of discretion in the assessment of penalties, and no error in the entry of injunctive relief. We therefore affirm.

I. Background Facts and Proceedings.

Jerry Passehl has a salvage yard. The Iowa Department of Natural Resources (DNR) investigated Passehl for reported violations of Iowa Code chapter 455B[1] related to water quality, solid waste, and hazardous conditions. As a result of the investigations and follow-up investigations, the DNR issued five separate notices of violations in 2003, 2004, 2006, and 2007.

On December 5, 2008, Passehl, who was then represented by counsel, signed an administrative consent order; he did not acknowledge fault in the consent order. The consent order recited the DNR's statement of facts, which summarized the five-year history of Passehl's asserted noncompliance with statutory provisions concerning waste water and hazardous conditions. Passehl did not admit the allegations or the conclusions of law, but did agree to the following remedial actions provided for in section V:

1. Mr. Passehl shall evacuate any and all remaining contaminated soil around both car crushers and dispose of it in a sanitary landfill; Mr. Passehl shall submit disposal receipts proving he has done so within 30 days of this order.
2. Mr. Passehl shall properly dispose of all discarded appliances at his property at an approved landfill or recycling center, and submit receipts to the Department within 30 days of this order to prove he has done so. Additionally, Mr. Passehl shall not accept any appliances in the future unless he obtains an [Appliance Demanufacturing Permit] ADP.
3.Mr. Passehl shall ensure that he does not have more than 500 passenger tire equivalents on his property unless he obtains a waste tire stockpile permit. In the future, Mr. Passehl shall maintain separate tire piles for "waste tires" and "used" tires for ease of volume assessment, organizing his current tire inventory in this manner to the maximum extent practical.
4.Mr. Passehl shall pay an administrative penalty of $3, 000 to the order of the Iowa Department of Natural Resources within 60 days after issuance of this Order.

Further, the consent order provides:

Compliance with Section V of this Order constitutes full satisfaction of all requirements pertaining to the violations described in this Order. Failure to comply with this Order may result in the imposition of administrative penalties pursuant to an administrative order or referral to the Attorney General to obtain injunctive relief and civil penalties pursuant to Iowa Code sections 455B.191 and 455B.307.

By entering into the consent order, Passehl waived his rights to appeal provided by Iowa Code sections 455B.178, [2] 455B.308, [3] and Iowa Administrative Code rule 561 -7.5(1).[4] The DNR director signed the administrative consent order on January 22, 2009.

Several follow-up inspections in 2009 and 2010 by the DNR found continuing lack of compliance with the consent order. On April 21, 2009, Passehl was also informed that his National Pollutant Discharge Elimination System (NPDES) permit had expired and must be renewed, which required that he also implement a written pollution prevention plan. He was given extensions of time to come into compliance and was warned that continued noncompliance could result in the matter being referred to the Iowa Attorney General's office, which could "seek higher per-day penalties for your noncompliance."

In March 2010, DNR referred the Passehl matters to the attorney general. On December 27, 2010, the State filed a petition against Passehl seeking the assessment of civil penalties and injunctive relief for his failure to comply with the administrative consent order, as well as for operating without a NPDES permit, [5] failing to implement a Storm Water Pollution Prevention Plan, and failing to notify the DNR of a hazardous condition on three occasions.[6] Passehl, pro se, filed an answer on January 25, 2011.

The State filed a motion for partial summary judgment on August 22, 2011, asserting Passehl's failure to timely answer requests for admissions resulted in deemed admissions of the violations alleged in the petition. The State asked the court to conclude Passehl was liable as a matter of law for administrative consent order noncompliance, failure to notify the DNR of hazardous conditions, and failure to be properly permitted.

The original hearing on the partial summary judgment motion was set for September 23, 2011, but was continued after Passehl obtained counsel and requested a continuance. The hearing on the motion was rescheduled for November 18. Counsel for Passehl filed an appearance on November 16. On November 18, Passehl filed a resistance, an affidavit, and attachments, and requested a continuance of the hearing on the motion. The State objected, but the court granted the continuance. The hearing was rescheduled for February 17, 2012. On February 8, 2012, Passehl filed a second affidavit and resistance to the State's summary judgment motion.[7] The presiding judge retired and was unable to hear the motion on February 17, 2012. The motion hearing was again rescheduled for June 1.

On May 24, Passehl filed a third affidavit and resistance to the motion for partial summary judgment, which contained a "statement of disputed facts" wherein Passehl asserted, "Each allegation of noncompliance cannot be determined by Summary Judgment without presentation of evidence admissible at trial . . . ."[8]

A hearing was held on June 1, 2012, at which the State noted that Passehl, who was now represented by counsel, had still not responded or objected to the requests for admission. Counsel for Passehl argued there was additional discovery to be conducted and "there is substantial evidence that will need to be presented to allow the Court to determine any of these issues and responsibility of Jerry Passehl." On June 6, the district court entered partial summary judgment

The trial on the amount of civil penalty and injunctive relief was held on September 14. Passehl testified at length. On October 9, 2012, the court entered a ruling, which provides in part:

Iowa Code § 455B.191(2) and § 455B.307(3) dictate that for each solid waste or storm water discharge violation, a person is subject to a maximum civil penalty of $5, 000 for each day of such violation. The Code also provides that a person who fails to notify the IDNR of an occurrence of a hazardous condition, not later than six hours after the onset of the condition, shall be subject to civil penalty of not more than $1, 000. Iowa Code § 455B.386.
The factors which the Court is to consider in assessing the amount of civil penalty for violations is set forth in Iowa Code § 455B.109(1)(a)-(d). These factors include:
1. The costs saved or likely to be saved by the violator's noncompliance;
2. The gravity of the violation;
3. The degree of culpability of the violator;
4. The maximum penalty authorized for that particular ...

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