Motion For Rehearing and/or Transfer to, Supreme Court Denied February 17, 1984.
KAROHL, Presiding Judge.
The State of Missouri at the relation of the Missouri Attorney General and the Missouri Clean Water Commission, hereinafter referred to as the state, appeals from a judgment in a court-tried case. The judgment enjoined respondent Larry Church from violating the Missouri Clean Water Law, Chapter 204, but failed to impose any civil penalties. Church owns and operates a forty-seven pad trailer park in Jefferson County. All sewage generated at respondent's LaCal Trailer Park flows to a sewage treatment plant on the grounds, and the effluent is discharged into a Jefferson County stream. This activity is regulated by the Clean Water Law.
In a statutory action pursuant to § 204.076.1,
The state contends that the trial court (1) erroneously declared and applied the law by declining to impose a civil penalty for reasons not listed in § 204.076.4; and (2) abused its discretion in failing to award such penalty because respondent's violations were willful, knowing, and continuing.
Few facts are in dispute. On January 2, 1976, defendant obtained the required discharge permit from the Clean Water Commission. The permit expired January 1, 1981. At trial respondent stipulated to his many violations of the Clean Water Law,
In July, 1980, after several letters from the Missouri Department of Natural Resources notifying respondent that his sewage treatment plant was not operating properly, he hired an operator for the facility. The problems with the facility continued, and in November, 1981, respondent hired a new plant operator. Respondent spent approximately $4000.00 from November, 1981 until October, 1982 to bring the facility into compliance.
The trial court found defendant violated the Clean Water Law in that he (1) failed to comply with the provisions of his permit by not filing quarterly reports and failing to keep the plant in good working order; (2) failed to meet the standards in the effluent regulations in June, 1980 and April, 1981; (3) caused pollution of state waters; and (4) failed to obtain a discharge permit from January 1, 1981 until September 30, 1982, all in violation of §§ 204.051 and 204.076. The court permanently enjoined and restrained respondent from discharging any effluent in excess of the effluent limitations of the prior discharge permit or the limitations of any future permit issued to him. The trial court also enjoined and ordered respondent to perform testing and file the required monitoring reports. No civil penalty was assessed.
The state contends that the trial court improperly relied upon reasons mentioned in the court's judgment but not listed in § 204.076.4 to deny a civil penalty, to wit: (1) respondent "confessed" to his violations by way of stipulation; (2) respondent had personal problems during much of the violation period; (3) respondent made positive changes to correct the violations; (4) respondent exhibited a positive attitude toward future compliance; (5) the injunction will invoke contempt powers to insure future compliance; (6) in such a small operation a penalty might use funds necessary for future compliance; and (7) a civil penalty by law enriches the school fund and is not available to promote clean water.
There are two types of penalties for violations of the Clean Water Law as set forth in § 204.076: civil, § 204.076.1, and criminal, § 204.076.3. These sections in pertinent part are as follows:
The state next argues that the trial court abused its discretion by awarding no penalty where the violator's actions were willful, knowing, and continuing.
The Clean Water Law contains no guidelines for the court in determining the situations in which a civil penalty is appropriate. The court is granted broad discretion to award penalties as it "deems proper". The appellate court will only interfere with the trial court's exercise of discretion where it has been manifestly abused. In re Marriage of Pender, 593 S.W.2d 230, 231 (Mo.App.1979).
Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo. banc 1976) (quoting James v. Turilli, 473 S.W.2d 757, 763 (Mo.App.1971)). The trial court's ruling is presumed to be correct, and the appellant has the burden of proving an abuse of discretion. Shirrell, 535 S.W.2d at 448.
The trial judge's findings indicate he exercised his discretion and carefully considered the issue before refusing a civil penalty. Although not all of the court's findings were supported by substantial evidence,
REINHARD and CRANDALL, JJ., concur.