Citizens for Rural Preservation, Inc. v. Robinett

• Decision Date: 16 November 1982
• Docket Number: No. WD,WD
• Citation: 648 S.W.2d 117
• Parties: CITIZENS FOR RURAL PRESERVATION, INC., a not for profit corporation, Clarence Leon Bunch, and Mary Ann Rohan, Plaintiffs-Appellants, v. James L. ROBINETT, Jr., Chairman, Barry Wilkinson, Hugh Carr, Jess Garnett, Richard Baalmann, John Howell, and Tom Pirtle, Members, Air Conservation Commission, Department of Natural Resources, State of Missouri, Defendants-Respondents, and Six Flags Materials Corporation, Intervenor-Defendant-Respondent. 32571.
• Court: Missouri Court of Appeals

Page 117

648 S.W.2d 117

CITIZENS FOR RURAL PRESERVATION, INC., a not for profit

corporation, Clarence Leon Bunch, and Mary Ann

Rohan, Plaintiffs-Appellants, v. James L. ROBINETT, Jr., Chairman, Barry Wilkinson, Hugh

Carr, Jess Garnett, Richard Baalmann, John Howell, and Tom

Pirtle, Members, Air Conservation Commission, Department of

Natural Resources, State of Missouri, Defendants-Respondents,

and

Six Flags Materials Corporation, Intervenor-Defendant-Respondent.

No. WD 32571.

Missouri Court of Appeals,

Western District.

Nov. 16, 1982.

As Modified Jan. 4, 1983.

Lewis C. Green (argued), Green, Hennings & Henry, St. Louis, for plaintiffs-appellants.

Dan Summers, Asst. Atty. Gen. (argued), John Ashcroft, Atty. Gen., Jefferson City, for defendants-respondents.

Albert A. Michenfelder (argued), Steven W. Koslovsky, Ziercher, Hocker, Human, Michenfelder, Nations & Jones, Clayton, for intervenor-defendant-respondent.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

NUGENT, Presiding Judge.

Plaintiffs appeal from a judgment of the Circuit Court of Cole County upholding an order of the Air Conservation Commission which granted a permit to Six Flags Materials Corporation to construct a quarry and rock-crushing operation in Franklin County. Plaintiffs challenge the order on the grounds that the commission's conclusions relating to ambient air quality in the vicinity of the proposed quarry are not supported by substantial evidence, that certain conditions to the permit are unlawful and inadequate, that the hearing officer failed to make findings of fact, and that the commission improperly denied standing to plaintiff Citizens for Rural Preservation. We reverse on several of these grounds and remand for further proceedings consistent with this opinion.

Lying at the foot of deeply forested hills on the east and west and a 300-foot rock wall on the north is a deep valley in Franklin County which is the subject of this litigation. From 1965 to 1970, an approximately 190-acre tract of land within the valley was the site of a rock quarry. In 1974, the property was leased to Six Flags Materials Corporation and for a period during 1978, was the site of renewed quarry activity.

The activity took place, however, without benefit of a permit from the Department of Natural Resources (DNR) to construct and operate the quarry and rock-crushing operation. The permit is required by § 203.075-1 ¹ which provides in part that "[i]t shall be unlawful for any person to commence construction of any air contaminant source in this state after August 13, 1972, without a permit therefor...."

The rock-crushing operation is considered an "air contaminant source" because of the dust and other airborne (suspended) particulates raised by its primary crusher, six secondary crushers, various screens and conveyors, storage bins, and stockpiles of rock. In addition, "fugitive emissions" ² are generated by the traffic of trucks to and from the site, bearing heavy loads on gravel roads. Such traffic must approach the site by either Little Tavern Road, seven-tenths of a mile to the east, or Fiddle Creek Road, an equal distance to the west, both of which are unpaved county roads. Access to the quarry is by private road running east and west, connecting Little Tavern and Fiddle Creek. The property leased by Six Flags includes the east access road all the way to Little Tavern, and about one-half of the west access road. Six Flags holds an easement over the remainder of the west access road to its junction with Fiddle Creek.

On April 5, 1979, Six Flags applied to DNR for the permit required by § 203.075-1. Plaintiffs Citizens for Rural Preservation (CRP), Clarence Bunch, and Mary Ann Rohan were allowed to intervene in the application proceeding.

CRP is a not-for-profit corporation formed for the purpose of promoting, preserving and protecting the rural environment of Franklin County, and uniting "those persons interested in preserving and protecting the rural environment so that the citizens of Franklin County and persons from the surrounding area may continue to have the opportunity to enjoy the unique recreational, educational, social, emotional, physical and aesthetic benefits provided by such rural environment." Some 430 individuals either residing or owning property in the area signed petitions circulated by CRP in opposition to the proposed quarry or contributed financially to CRP's efforts.

Plaintiff Clarence Bunch resides on a tract of land abutting the northern boundary of the property, and his house is approximately 1,450 feet from the point where the crushing equipment would be located. Plaintiff Mary Ann Rohan's property also abuts the site, and her house lies approximately 1,580 feet to the northeast of the crushing operation.

On July 25, 1979, DNR issued a permit, subject to five conditions. Condition No. 4 required that before beginning its operation, Six Flags must surface those portions of Little Tavern and Fiddle Creek Roads which would be used to transport materials to and from the site, in order to control the fugitive emissions.

Six Flags appealed under § 203.075-5 from condition No. 4 only, contending that DNR and the Air Conservation Commission lacked authority to require improvements on premises not under Six Flags' control. CRP, Mr. Bunch, and Ms. Rohan appealed from the issuance of the permit in its entirety.

The appeals were consolidated, and a hearing was held on January 23 and 24, 1980, before Commission Chairman James L. Robinett, Jr., acting as hearing officer pursuant to § 203.100-3(2). At the hearing, Six Flags offered to withdraw its appeal, provided that condition No. 4 was modified to make surfacing of the roads contingent on permission from Franklin County authorities to undertake the surfacing.

The evidence at the hearing consisted primarily of expert testimony from Harvey Shell, an engineering consultant retained by Six Flags; Christa Henson, a DNR environmental engineer; and Thomas Cuscino, an environmental engineer retained by plaintiffs. They testified about the environmental consequences of the emissions of suspended particulates from the proposed operation and various means to control those emissions.

On May 28, 1980, the commission issued an order granting the permit and finding that (1) CRP lacked standing to appeal the issuance of the permit; (2) Six Flags' conditional withdrawal of appeal was accepted; (3) condition No. 4 requiring Six Flags to surface county roads was "unreasonable as written" and should, therefore, be amended to make the surfacing contingent on approval by Franklin County; and (4) the appeal of citizens Bunch and Rohan was denied except to the extent that certain conditions not relevant on this appeal were modified.

The construction permit was granted to Six Flags based on the commission's conclusions that "the proposed operation meets or will meet the requirements of [certain sections of chapter 203] and the regulations promulgated pursuant thereto" and "[t]here are presently no violations of air quality standards in the vicinity near the proposed operation", and that "[t]here will be no violations of air quality standards as a result of the construction and operation of the Six Flags quarry, if permit conditions are obeyed." The permit conditions imposed by the commission are as follows (1) Water spray bars shall be installed and operated so as to control fugitive emissions from the crusher to prevent violation of the 20% opacity regulation, in accordance with 10 CSR 10-5.090.

(2) All haul roads on the company's property shall be watered as often as environmental conditions require, to prevent any generation of dust from the roads in excess of 20% opacity, as specified by 10 CSR 10-5.090.

(3) Fugitive emissions from storage piles and product handling operations shall be controlled by as much wetting as necessary to prevent emissions in excess of 20% opacity as specified by 10 CSR 10-5.090.

(4) Those portions of Fiddle Creek Road and Little Tavern Road that will be used to transport material to and from the facility shall be surfaced prior to start up and operation so as to control fugitive emissions from the truck traffic on those roads, such that no visible emissions exist beyond the roads' right-of-way. In the event that the company chooses to use only one of these roads, that road chosen will be the only road requiring surfacing. Those roads used are to be surfaced in a suitable manner so as to result in 85% control of fugitive emissions from the traffic on those roads. Since these are public roads, over which the Commission has no direct control, this condition is made contingent upon the approval of local governmental authorities granting to Six Flags or its agents the permission to perform such surfacing, and if the local governmental authorities do not permit the surfacing to be done, then Six Flags will nevertheless be allowed to operate subject to the construction permit Condition Nos. 1, 2, 3, 5 and 6.

(5) The annual production of crushed rock from the operation shall not exceed 400,000 tons.

(6) Failure to comply with any of the above conditions will constitute a violation of this permit.

Plaintiffs sought judicial review of the commission's order in the circuit court pursuant to § 203.075-7. Six Flags was allowed to intervene in that proceeding. On February 5, 1981, the court ruled that the commission's order was supported by competent and substantial evidence upon the whole record and affirmed the order without extended comment.

On appeal, plaintiffs challenge the commission's order on the following grounds: (1) the commission's conclusions relating to present and anticipated ambient air quality in the vicinity of the quarry are not supported by substantial evidence; (2) the amendment of condition No. 4 making surfacing of the gravel roads contingent on approval of Franklin County authorities is an unlawful exercise of the commission's authority; (3) c...