Corvera Abatement Technologies, Inc. v. Air Conservation Com'n

• Court: Missouri Supreme Court
• Writing for the Court: COVINGTON
• Citation: Corvera Abatement Technologies, Inc. v. Air Conservation Com'n, 973 S.W.2d 851 (Mo. 1998)
• Decision Date: 14 July 1998
• Docket Number: No. 80570,80570
• Parties: CORVERA ABATEMENT TECHNOLOGIES, INC., Respondent/ Cross-Appellant, v. AIR CONSERVATION COMMISSION and Missouri Department of Natural Resources, Appellants/ Cross-Respondents.

Page 851

973 S.W.2d 851

CORVERA ABATEMENT TECHNOLOGIES, INC., Respondent/ Cross-Appellant, v. AIR CONSERVATION COMMISSION and Missouri Department of Natural Resources, Appellants/ Cross-Respondents.

No. 80570.

Supreme Court of Missouri En Banc.

July 14, 1998.

Rehearing Denied Aug. 25, 1998.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Mitchell, Timothy P. Duggan, Asst. Attys. Gen., Jefferson City, for Appellants.

Stephen G. Jeffrey, Edward A. Cohen, Fernando Bermudez, Christopher N. Bolinger, St. Louis, for Respondents.

John R. Barsanti, Jr., Richard L. Waters, Julie A. Emmerich, Frank L. Pellegrini, St. Louis, for Amicus Curiae.

COVINGTON, Judge.

In 1994, the Air Conservation Commission of the State of Missouri ("Commission") promulgated 10 CSR 10-6.240, a regulation concerning asbestos abatement projects. The Commission then issued notices of violation of 10 CSR 10-6.240 to Corvera Abatement Technologies, Inc. ("Corvera"), a business involved in the removal of asbestos. On July 15, 1997, Corvera filed a ten count petition for declaratory and injunctive relief against the Commission and the Missouri Department of Natural Resources ("Department"). Corvera sought to have 10 CSR 10-6.240 declared void and to enjoin the Commission from enforcing the rule. The trial court entered summary judgment for Corvera on two counts and summary judgment for the Commission on two counts. The trial court dismissed the remaining counts without prejudice. The parties appeal the trial court's entry of summary judgment. The Commission and the Department appeal from the trial court's holding that 10 CSR 10-6.240 is void because sections 536.200.5 and 536.205.4, ¹ violate the Constitution of Missouri under article I, section 13 (prohibiting retrospective legislation) and article II, section 1 (regarding separation of powers among three departments of government). The Commission and Department also appeal from the trial court's holding that 10 CSR 10-6.240 is invalid to the extent that it conflicts with section 643.055.1, by imposing standards that are more strict than federal law. Corvera cross-appeals, asserting that the trial court erred in denying Corvera's claim that 10 CSR 10-6.240 is void under section 536.021.2(2), RSMo Supp.1997, for failure to cite the correct legal authority in its notice of proposed rulemaking and in denying Corvera's clear title and single subject challenge under article III, section 23, of the Missouri Constitution. Because this case involves the validity of a state statute, this Court has jurisdiction. Mo. Const. art. V, section 3. The judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded.

I.

The first issue is whether the trial court erred in declaring that the notice of proposed rulemaking for 10 CSR 10-6.240 did not violate the Missouri Administrative Procedure Act (MAPA) section 536.021.2(2), RSMo Supp.1997. Although raised not on direct appeal but on cross-appeal, it is a threshold issue in this case.

MAPA establishes procedural requirements that administrative agencies must follow to promulgate regulations. Section 536.021, RSMo Supp.1997, requires that administrative agencies file a notice of proposed rulemaking with the Secretary of State. The notice of proposed rulemaking provides notice to affected parties "to allow opportunity for comment by supporters or opponents of the measure, and so to induce a modification." Missouri Hospital Ass'n v. Air Conservation Comm'n, 874 S.W.2d 380, 391 (Mo.App.1994). One of the elements of the required notice of proposed rulemaking is notice of "the legal authority upon which the proposed rule is based." Sec. 536.021.2(2) RSMo Supp.1997. Section 536.021.2(2), RSMo Supp.1997, is designed to provide notice to affected parties that the agency has the power to promulgate the proposed rule. See NME Hospitals, Inc. v. Department of Social Servs., 850 S.W.2d 71, 74 (Mo. banc 1993).

In the instant case, the Commission cited its general enabling statute, section 643.050, RSMo Supp.1992, in the notice of proposed rulemaking as authority to promulgate 10 CSR 10-6.240. The parties stipulate, and this Court agrees, that section 643.225 would have been the more proper authority to cite because it specifically authorized the regulation of asbestos abatement projects. The issue raised by Corvera is whether the citation to section 643.050, RSMo Supp.1992, in the Commission's notice of proposed rulemaking satisfies the requirement of section 536.021.2(2), RSMo Supp.1997.

Section 643.050, RSMo Supp.1992, suffices as legal authority under section 536.021.2(2), RSMo Supp.1997, for promulgation of 10 CSR 10-6.240. It grants the Commission the authority to "adopt, promulgate, amend and repeal rules and regulations consistent with the general intent and purposes of sections 643.010 to 643.190 and titles V and VI of the federal clean air act." Sec. 643.050, RSMo Supp.1992. The general intent and purpose of sections 643.010 to 643.190 is to maintain the purity of the air resources of the state through regulating air contaminant sources. Sec. 643.030. The primary goal of the Federal Clean Air Act is to encourage reasonable federal, state, and local governmental actions for pollution prevention. See generally, 42 U.S.C. § 7401(c). Title V of the Federal Clean Air Act establishes a permitting scheme for operators of sources of air pollution. See generally, 42 U.S.C. § 7661. Title VI is designed to protect the ozone layer. See generally, 42 U.S.C. § 7671.

The rule promulgated by the Commission in this case, 10 CSR 10-6.240, regulates the manner in which asbestos containing materials are removed, encapsulated, or enclosed and regulates those who perform such asbestos abatement projects. Specifically, the rule controls the certification and training of asbestos contractors and places substantive restrictions on an asbestos abatement contractor's handling, transporting, cleaning, and demolishing of equipment, surfaces, and structures involved in asbestos abatement projects in an attempt to control the risk of asbestos contamination. Preventing possible asbestos contamination of Missouri's air resources in the course of conducting asbestos abatement projects is consistent with the general intent and purposes of sections 643.010 to 643.190 and titles V and VI of the Federal Clean Air Act. The citation to the broad grant of authority in section 643.050, RSMo Supp.1992, therefore, satisfies the requirement of section 536.021.2(2), RSMo Supp.1997. Nothing in section 643.050, RSMo Supp.1992, renders it invalid as "the legal authority upon which the proposed rule is based." Section 536.021.2(2), RSMo Supp.1997. ²

II.

The Department and the Commission contend that the trial court erred in granting summary judgment in favor of Corvera on its claim that 10 CSR 10-6.240 is void because the Commission failed to file proper fiscal notes when the rule was proposed. The parties stipulate that the Commission failed to file proper fiscal notes as required by sections 536.200 and 536.205, RSMo Supp.1992, at the time 10 CSR 10-6.240 was proposed in January of 1993. The parties additionally stipulate that sections 536.200 and 536.205, RSMo Supp.1992, provided, at that time, that rules that failed to comply with the fiscal note requirements were void. In 1994, the legislature amended sections 536.200 and 536.205, RSMo Supp.1992, by enacting sections 536.200.5 and 536.205.4 (the amendments), effective on June 3, 1994, to provide In the event that any rule published prior to June 3, 1994, shall have failed to provide a fiscal note as required by this section, such agencies shall publish the required fiscal note cross-referenced to the applicable rule prior to August 28, 1995, and in that event the rule shall not be void. Any such rule shall be deemed to have met the requirements of this section until that date.

Secs. 536.200.5 and 536.205.4. The Commission filed a corrected fiscal note for 10 CSR 10-6.240 on July 3, 1995. Thereafter, the Commission applied 10 CSR 10-6.240 to Corvera's asbestos abatement projects. In ruling on Corvera's petition for declaratory and injunctive relief, the trial court declared the amendments unconstitutional as retrospective laws under article I, section 13 and as violative of the separation of powers requirement of article II, section 1 of the Missouri Constitution.

Article I, section 13 of the Missouri Constitution provides that "no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities can be enacted." A retrospective law is a law that imposes a new obligation, duty, or disability with respect to a past transaction or that takes away or impairs a vested or substantial right. See Beatty v. State Tax Comm'n, 912 S.W.2d 492, 496 (Mo. banc 1995); Doe v. Roman Catholic Diocese, 862 S.W.2d 338, 340 (Mo. banc 1993).

As applied to Corvera, the amendments are not retrospective laws. The amendments were enacted into law in 1994. Pursuant to the statutory mandate, the Commission published corrected fiscal notes for 10 CSR 10-6.240 in 1995. The Commission applied 10 CSR 10-6.240 to Corvera only as to acts that occurred after the amendment of the statute and the publication of the corrected fiscal note. Because Corvera challenged only the application of 10 CSR 10-6.240 to its alleged transgressions of the rule that occurred after the amendments were enacted, the amendments did not affect any of Corvera's past transactions, but operated only prospectively.

Corvera argues, however, that it had a vested right to be free from enforcement of 10 CSR 10-6.240 because the rule was void as violative of sections 536.200 and 536.205, RSMo Supp.1992, and that the amendment of these sections impaired that right. Corvera's argument is flawed. It is axiomatic that any right Corvera had to be free from the enforcement of 10 CSR...