Chipperfield v. Mo. Air Conservation Com'n

• Decision Date: 18 June 2007
• Docket Number: No. 27947.,27947.
• Citation: 229 S.W.3d 226
• Parties: Linda CHIPPERFIELD, and Sierra Club, Petitioners-Appellants, v. MISSOURI AIR CONSERVATION COMMISSION, Respondent-Respondent, and City Utilities of Springfield, Intervenor-Respondent.
• Court: Missouri Court of Appeals

229 S.W.3d 226

Linda CHIPPERFIELD, and Sierra Club, Petitioners-Appellants, v. MISSOURI AIR CONSERVATION COMMISSION, Respondent-Respondent, and City Utilities of Springfield, Intervenor-Respondent.

No. 27947.

Missouri Court of Appeals, Southern District, Division Two.

June 18, 2007.

Rehearing Denied July 10, 2007.

Application for Transfer Denied August 21, 2007.

George E. Hays, San Francisco, CA, William J. Moore, III, Law Office of William J. Moore, III, P.A., Jacksonville, FL, James H. Arneson, Springfield, MO, for appellants.

Jeremiah W. (Jay) Nixon, Attorney General, Shelley A. Woods, Assistant Attorney General, Jefferson City, MO, for respondent Missouri Air Conservation Commission.

Gary Cunningham, Joseph L. Johnson, Lathrop & Gage, L.C., Springfield, Terry Satterlee, Thomas Grever, Shook, Hardy & Bacon, Kansas City, MO, for intervenor-respondent City Utilities of Springfield.

GARY W. LYNCH, Judge.

Linda Chipperfield and Sierra Club ("Appellants") appeal the judgment of the Circuit Court of Greene County, Missouri, affirming the decision and order of the Missouri Air Conservation Commission ("Commission") which upheld the Missouri Department of Natural Resources' ("MDNR") issuance to City Utilities of Springfield ("City Utilities") of a permit to construct a pulverized coal-fired boiler. We affirm.

1) Procedural History

City Utilities is a not-for-profit governmental unit of the City of Springfield, Missouri, which provides water, gas, electric, telecommunications, and transit services to its citizen rate-payers. In April of 2003, City Utilities applied to the MDNR for a permit to construct a new, pulverized coal-fired boiler at its Southwest Power Station in Springfield ("Application").¹ City Utilities currently operates a coal-fired unit at the Southwest Power Station that produces around 178 megawatts of electricity. Studies conducted by City Utilities concluded that the proposed second unit ("Southwest 2"), which will be capable of generating 275 megawatts of electricity, is necessary to meet the increasing energy needs of the Springfield area.

From April 2003 through June 2004, MDNR reviewed and evaluated the application and prepared a draft permit ("Draft Permit"). MDNR issued the Draft Permit for public review on June 16, 2004, and invited public comments. Several agencies and organizations, including the United States Environmental Protection Agency ("EPA"), Sierra Club, and City Utilities, submitted detailed comments. MDNR issued the final permit ("Permit") authorizing construction of Southwest 2 with attached responses to the public comments on December 15, 2004.

On January 14, 2005, Sierra Club, a nonprofit environmental protection organization, together with its local member and Springfield-area resident Linda Chipperfield filed a Notice of Appeal with the Commission.² In addition to requesting an appeal, the Notice of Appeal contained forty-seven numbered paragraphs alleging reasons why the Permit was invalid, and further requested that the Commission grant a full evidentiary hearing and enter an order denying issuance of the Permit.³ City Utilities subsequently intervened in the proceeding as an interested party.

The Commission appointed W.B. Tichenor as the Hearing Officer for the appeal in April, 2005.⁴ Before holding an evidentiary hearing, Hearing Officer Tichenor heard oral arguments from all parties on MDNR's and City Utilities' motions to dismiss certain of Appellants' forty-seven allegations of claimed deficiencies in the permit or the permitting process. After considering the parties' arguments and authority, or lack of authority, Hearing Officer Tichenor dismissed twenty-nine of Appellants' forty-seven allegations, which he ruled were either moot or invalid as a matter of law for failure to state a claim and were "stricken" from the Notice of Appeal. Appellants voluntarily withdrew or abandoned an additional eleven claims; other claims were combined or "subsumed" together.

From October 11 through 13, 2005, Hearing Officer Tichenor presided over an evidentiary hearing, during which all parties had full opportunity to present evidence and cross-examine witnesses. On November 23, 2005, Hearing Officer Tichenor issued his recommendations to the Commission in the form of a proposed order affirming issuance of the Permit. The Commission convened on December 8, 2005, where it heard oral comments from counsel for all parties, as well as from Hearing Officer Tichenor. Thereafter, the Commission issued its Decision and Order, dated December 8, 2005, containing findings of fact and conclusions of law affirming the issuance of the Permit.

On January 6, 2006, Appellants filed a Petition for Judicial Review ("Petition for Review") of the Commission's Decision and Order in the Circuit Court of St. Louis County, Missouri.⁵ The action was transferred to the Circuit Court of Greene County upon joint motion by the parties. After considering the record on appeal, briefs from all parties, and oral arguments by counsel, the circuit court, on July 7, 2006, affirmed the Commission's Decision and Order. This appeal followed.

2) Standard of Review

Section 536.140 defines the scope of appellate review.⁶ The findings and conclusions of the Commission are reviewed, not the judgment of the circuit court. § 536.140; Edwards v. Mo. State Bd. of Chiropractic Exam'rs, 85 S.W.3d 10, 19 (Mo.App.2002). This court will affirm the Commission's decision unless it is unsupported by competent and substantial evidence upon the whole record; is arbitrary, capricious or unreasonable; or constitutes an abuse of discretion. § 536.140; Edwards, 85 S.W.3d at 19. The evidence and all reasonable inferences therefrom are considered in the light most favorable to the Commission's decision. Id. This court will not weigh the evidence or substitute its discretion on factual matters for that of the Commission. Id.; Hernandez v. State Bd. of Registration for Healing Arts, 936 S.W.2d 894, 900 (Mo.App.1997). Even if the evidence supports either of two findings, this court is bound by the Commission's factual determination. Edwards, 85 S.W.3d at 19. We defer to the expertise of the Commission in reaching decisions based on scientific and technical data. Morton v. Mo. Air Conservation Comm'n, 944 S.W.2d 231, 236 (Mo.App. 1997). We can, however, independently determine questions of law. Edwards, 85 S.W.3d at 19. Appellate review of the Commission's decision is also limited to preserved errors only as defined in the petition for review before the circuit court. Id. at 21; Ruffin v. City of Clinton, 849 S.W.2d 108, 114 (Mo.App.1993).

3) Discussion

Appellants' brief⁷ contains sixteen points-relied-on lettered A through P.⁸ For ease of analysis, these points are grouped into two broad subject areas and addressed in this opinion in the following order: (1) procedural issues—Points A through G, related to the dismissal of claims asserted in Appellants' Notice of Appeal to the Commission, and Point P, related to the Commission's designation in its Decision and Order of Kendall Hale and Kyra Moore as expert witnesses; and (2) emission limitation issues—Points I through K, related to the sulfur dioxide (SO₂) emission limitation in the Permit, Points L through N, related to the nitrogen oxides (NO_x) emission limitation in the Permit, Point O, related to the cooling tower emission limitation in the Permit, and Point H, related to the lack of any visible emission limitation in the Permit.

a) Procedural Issues

i) Appellants' Points A through G Relating to Dismissal of Certain Claims in Appellants' Notice of Appeal to Commission

(1) Point A⁹

Appellants' first point on appeal (Point A) actually contains three separate claims of error. Appellants contend that the Commission committed reversible legal error by approving and adopting the Hearing Officer's dismissal of Appellants' claims in their Notice of Appeal to the Commission without: (1) first reviewing the briefs related to the motions to dismiss and the Hearing Officer's ruling on those motions; (2) creating a transcript of the proceedings of the Commission on December 8, 2005; and (3) circulating the Hearing Officer's proposed order to the parties for review before the December 8, 2005 proceeding.¹⁰

(a) First Claim under Point A—Claim that Commission Failed to Review Briefs and Hearing Officer's Ruling on Motion to Dismiss

Appellants' Petition for Review filed in the circuit court contended there was no evidence in the record that the Commission ever reviewed the Hearing Officer's ruling on the motions to dismiss. However, it contained no allegations concerning the failure of the Commission to review the briefs related to those motions. Appellants' allegations of error are preserved for our review only as far as they are defined in the Petition for Review. See Edwards, 85 S.W.3d at 21; Ruffin, 849 S.W.2d at 114. Therefore, we are precluded from considering any claim or argument as to the Commission's alleged failure to review the briefs, because that issue was not asserted in the Petition for Review.

As to the Hearing Officer's ruling on the motions to dismiss, Appellants allege in the argument portion of their brief for this point that the Commission's failure to review that ruling was a violation of § 643.100.3(3), which requires: "Any commission member approving in writing any final order or determination or other final action, who did not attend the hearing, shall do so only after reviewing all exhibits and reading the entire transcript."¹¹ However, Appellants' point-relied-on did not include any reference to this statute as the legal basis for any error nor did it explain why this legal reason in the context of this case supports the claimed error, so the claim was not preserved for appellate review. Rule 84.04(d)(2);¹² Henson v. Henson, 195 S.W.3d 479, 481 (Mo.App.2006); Houston v. Weisman, 197 S.W.3d 204, 205 (Mo.App. 2006). Ex gratia, we note that Appellants'...