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.
Jerry Passehl has a salvage yard. The Iowa Department of Natural Resources (DNR) investigated Passehl for reported violations of Iowa Code chapter 455B
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:
Further, the consent order provides:
By entering into the consent order, Passehl waived his rights to appeal provided by Iowa Code sections 455B.178,
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,
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.
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 . . . ."
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:
The district court assessed civil penalties totaling $40,260.17 and granted injunctive relief requiring Passehl to comply with the administrative consent order and his storm water pollution prevention plan, renew his authorization to discharge under NPDES, and pay the annual permit fees that were due and owing.
In a motion to amend or enlarge, Passehl argued the court's June 6 ruling did not establish as a matter of law that Passehl had violated chapter 455B. He also contended the court had not ruled on whether the consent order was lawful and reasonable. He argued the unavailability of appeal from the consent order violated his due process rights. The State resisted, arguing the consent order was res judicata and noting Passehl was represented by counsel while negotiating the terms of that consent order. The court determined the consent order was res judicata and Passehl's constitutional challenge "cannot be heard." The court declined to expand or amend its ruling.
Passehl now appeals, contending (1) the district court erred in not acting in an appellate capacity to determine whether the administrative consent order was valid, (2) partial summary judgment was improperly granted, and (3) the district court erred in imposing civil penalties in excess of $10,000.
This case was tried at law and is thus reviewed for legal error. State ex rel. Miller v. DeCoster, 608 N.W.2d 785, 789 (Iowa 2000). The district court's findings of fact are binding on us if supported by substantial evidence. Id.
The essence of Passehl's first contention is that the district court was required to determine—and was limited to determining—whether the administrative consent order was a valid enforceable agreement.
As this court noted in State ex rel. Iowa Department of Natural Resources v. Shelley, 512 N.W.2d 579, 580 (Iowa Ct. App. 1993), "[T]here is a difference between judicial review of agency action and enforcement of an agency order." That difference was explained in City of Des Moines Police Department v. Iowa Civil Rights Commission, 343 N.W.2d 836, 840 (Iowa 1984):
(Citations omitted.).
An administrative consent order is a valid agency action. See Iowa Water Pollution Control Comm'n v. Town of Paton, 207 N.W.2d 755, 760 (Iowa 1973) (concluding that agency is granted express authority to enter orders directing action and to order a hearing, "[b]y necessary and fair implication the commission may enter agreements with offenders to resolve . . . problems"). In Paton, the court stated:
Id. (citation omitted). Consent orders entered by government agencies are to be construed as contracts, because they have many of the attributes of ordinary contracts. United States v. ITT Cont'l Baking Co., 420 U.S. 223, 236 (1975). The parties here agreed to resolve their ongoing dispute by entering into an administrative consent order, in which Passehl's explicitly waived his appeal rights. As explained in Paton, "[S]uch [consent] orders are generally not subject to appellate review. This is on the theory that the consent of a party operates as waiver of the right of appeal. One who agrees to an order is hardly an `aggrieved party' empowered to appeal . . . ." 207 N.W.2d at 762 (citations omitted). The terms of the consent order are therefore res judicata. See Paton, 207 N.W.2d at 762; see also Shelley, 512 N.W.2d at 581 (finding an unappealed administrative order became a final agency action entitled to res judicata effect in the subsequent enforcement proceeding). The district court did not err in concluding Passehl is not entitled to challenge the validity of the consent order.
The action before the district court was an enforcement action. The right to seek enforcement and compliance was specifically enunciated in the consent 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."
Passehl contends the State was not entitled to partial summary judgment because it did not carry its burden of showing there were no undisputed material facts. Here, Passehl's argument is based in part upon a claim not made before the district court, i.e. that the appendix containing the State's exhibits supporting its motion for partial summary judgment is not part of the summary judgment record. Claims not submitted to and decided by the district court are not properly preserved for review. See Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 323 (Iowa 2013); see also Lee v. State, 815 N.W.2d 731, 739 (Iowa 2012) (noting the error preservation rule provides opposing counsel notice and an opportunity to be heard on the issue and a chance to take corrective measures). In any event, the appendix was filed with the district court, was cited to by the State in its filings related to the summary judgment motion, and is part of the record before this court.
Passehl also contends his November 17, 2011 affidavit "established numerous disputed facts" and the consent order limited the enforcement process. He also contends, "The very question of whether the consent order was a final order negates the granting of summary judgment based upon admission by not responding to request for admission." We have already addressed the second issue, concluding the consent order was a final order. As to his bare claim that his November 17, 2011 affidavit established disputed facts, we reject that claim as well. The November affidavit contains only general statements that he had taken some steps to comply with the consent order, but did not rebut the alleged violations of the order.
The State moved for partial summary judgment based upon Passehl's admissions of violations of the consent order. It was on this basis the court entered summary judgment. "[B]ased upon failure to timely respond to Plaintiff's First Requests for Admissions," the following were deemed admitted:
Iowa Rule of Civil Procedure 1.510(2) provides that a matter is "admitted unless, within 30 days after service of the request . . . the party to whom the request is directed serves upon the party requesting the admission written answer or objection . . . ." The district court did not err in ruling the matters were deemed admitted and the State has thus proved the violations admitted therein.
Passehl's November 17, 2011, affidavit states, "I have sorted tires in groups; farm, industrial, auto, and large equipment as requested by the DNR." This does not dispute the admission that he "failed to maintain separate tire piles for waste and used tires."
His November affidavit addresses two window air conditioners found upon inspection of his property on September 28, 2011; it does not, however, dispute he "failed to provide receipts by May 5, 2009, showing proper disposal of all discarded appliances" that were the subject to the consent order.
Concerning the third and fourth admissions—"Passehl failed to timely apply for renewal of NPDES General Permit No. 1 within a proper time frame," and "Passehl failed to pay the remaining balance of annual NPDES permit fees for NPDES General Permit No. 1 for the years 2008, 2009, and 2010, totaling $375"—Passehl's affidavit does assert in paragraph 12, "Since I have less than 5 acres and located in a low erosivity area I am exempt from having to obtain a [NPDES]."
Joseph Griffin, a DNR environmental specialist, testified Passehl was required to have an authorization to discharge under NPDES General Permit No. 1, which concerns storm water discharge associated with industrial activity; Passehl did have such authorization, but it expired on April 8, 2008; Passehl attempted to renew his authorization in 2009 and 2010; and Passehl did not renew his authorization thereafter. Griffin acknowledged two ways one could be exempt: show they had no discharge from their site, or prove they do not need to obtain authorization. Counsel for Passehl asked, "How do they then bring that to your attention to say, hey, I don't think I qualify, . . . ." Griffin responded, "They can call me."
Passehl attempted to show at trial that he was exempt from obtaining authorization to discharge because he had no storm water discharge. The district court found otherwise. As for Passehl's claim he was exempted because his property contains fewer than five acres, the evidence showed that exemption related to construction sites only, not industrial activity sites.
We turn to the admission, "Passehl failed to properly remove and dispose of all contaminated soil located on Passehl's property by May 5, 2009." Passehl's November 2011 affidavit states, "I have complied with the soil disposal," and references receipts from September 4, 2009, March 16 and April 9, 2010, and November 9, 2011. The receipts provided belie his claim that he "dispose[d] of all contaminated soil . . . by May 5."
As for his failure to pay more than $304.95 of the $3000 administrative penalty and accumulated interest, Passehl's affidavit states, "I admit [it] has not been paid in full." His contention that a workable payment plan was not reached appears not pertinent.
Passehl challenges the imposition of penalties, contending that if we find the consent order valid, the order limits any civil penalty to $10,000 or less. This argument was not made before the district court and is therefore not properly before us. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal."). Regardless, the consent order itself provides, "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."
Iowa Code section 455B.191(1) provides:
Section 455B.307(3) similarly, states:
Based on Passehl's admissions of violations, the district court ruled:
"Review of the district court's assessment of civil penalties is for abuse of discretion." State ex rel. Miller v. DeCoster, 596 N.W.2d 898, 904 (Iowa 1999).
Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000) (citations omitted).
Passehl entered into a consent order after five years of asserted violations of laws intended to protect the environment. He then failed to comply with the provisions of that consent order. The district court considered the costs saved by Passehl, the gravity of the various violations, the maximum penalty that could be imposed, the ability to deter future violations, the lack of deterrent effect of the consent order, as well as Passehl's asserted inability to pay. We conclude the district court considered relevant factors and provided tenable reasons for imposing civil penalties of $40,260.17. The penalties were within those authorized by statute. We find no abuse of discretion. We therefore affirm.
Subsection 7 of section 455B.191 in turn provides, "If the attorney general has instituted legal proceedings . . ., all related issues which could otherwise be raised by the alleged violator in a proceeding for judicial review under section 455B.178 shall be raised in the legal proceeding instituted in accordance with this section."
Rule 6.903(2)(g)(1) requires a statement addressing how an issue was preserved for appellate review, "with references to the places in the record where the issue was raised and decided." Passel's brief falls short, which we will address in more detail later. We note too that rule 6.903(2)(g) states, "The argument section shall be structured so that each issue raised on appeal is addressed in a separately number division." Passehl's statement of issues and his argument section do not use the same terminology, frustrating our review. Moreover, he has failed to place the witness's name at the top of each appendix page where that witness's testimony appears. See Iowa R. App. P. 6.905(7)(c).
