Jerry-Russell Bliss, Inc. v. Hazardous Waste Management Com'n

• Court: Missouri Supreme Court
• Writing for the Court: HIGGINS; BILLINGS, BLACKMAR, DONNELLY, WELLIVER, RENDLEN, JJ., and SIMON; ROBERTSON
• Citation: Jerry-Russell Bliss, Inc. v. Hazardous Waste Management Com'n, 702 S.W.2d 77 (Mo. 1985)
• Decision Date: 17 December 1985
• Docket Number: No. 67115,JERRY-RUSSELL,67115
• Parties: 16 Envtl. L. Rep. 20,492 BLISS, INC., Petitioner-Appellant, v. HAZARDOUS WASTE MANAGEMENT COMMISSION, et al., Respondents.

Page 77

702 S.W.2d 77

16 Envtl. L. Rep. 20,492

JERRY-RUSSELL BLISS, INC., Petitioner-Appellant, v. HAZARDOUS WASTE MANAGEMENT COMMISSION, et al., Respondents.

No. 67115.

Supreme Court of Missouri En Banc.

Dec. 17, 1985.

Rehearing Denied Jan. 15, 1986.

Clifford Schwartz, Charles M. Shaw, Clayton, for petitioner-appellant.

Honorable William L. Webster, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Jefferson City, for respondents.

HIGGINS, Chief Justice.

Jerry-Russell Bliss, Inc., appeals from denial of a license to transport hazardous waste. Petitioner asserts: denial deprived petitioner of due process of law; denial was based on an erroneous interpretation of the law and amounted to an unconstitutional retroactive application of law; the refusal of the circuit court to hear additional evidence constituted an abuse of discretion and deprived petitioner of a fair hearing; there was insufficient evidence to deny the license; and acts of a predecessor unincorporated association were erroneously attributed to petitioner.

Review of this appeal is limited to a determination whether the denial of petitioner's application for a license to transport hazardous waste by the Hazardous Waste Management Commission is supported by competent and substantial evidence upon the whole record or whether it was arbitrary, capricious, unreasonable, or an abuse of discretion. Ross v. Robb, 662 S.W.2d 257 (Mo. banc 1983). Affirmed.

Petitioner is engaged in transporting waste oil. It was incorporated in November 1978 to continue the operation of an unincorporated family business known as Bliss Waste Oil Company, Bliss Oil Company, or Russell Bliss Drain Oil Service, all owned by Russell Bliss and his wife Evelyn.

Petitioner filed its application for a license to transport hazardous waste with the Department of Natural Resources on May 19, 1980. The Department denied the application pursuant to section 260.395.15, RSMo Supp.1980, by letter of February 13, 1981, supplemented by a second letter of November 24, 1982.

Petitioner sought review before the Commission pursuant to section 260.395.4, RSMo Supp.1980, and an adversary hearing was accorded. Testimony of 28 witnesses and 125 exhibits filled a record of over 1400 pages.

The Commission found: 1) on May 20, 1971, a truck belonging to Bliss Waste Oil Company driven by a Bliss employee, while carrying a cargo of hazardous chemical wastes, was ticketed by the Highway Patrol for being operated in an over-weight condition; 2) on May 20, 1971, the same truck and driver discharged part of its hazardous load on farm property owned by Russell Bliss, resulting in the death of chickens and wild birds; 3) on May 25, 1971, hazardous wastes, commingled with other waste products, were sprayed by Bliss Waste Oil Company on the surface of a riding arena at Shenandoah Stables, resulting in illness to at least one person and the death of numerous wild birds, several cats and dogs, one billy goat and forty-one horses; 4) on June 11, 1971, hazardous wastes, commingled with other waste products, were sprayed by Bliss Waste Oil Company on the surface of a riding arena at Bubbling Springs Ranch; 5) on June 16, 1971, hazardous wastes, commingled with other waste products, were sprayed by Bliss Waste Oil Company on the surface of a riding arena known as Timberline Stables, resulting in the death of numerous wild birds, cats, dogs and horses; 6) on March 29, 1977, at the direction of Russell Bliss, hazardous wastes were pumped into a Bliss Waste Oil Company truck from a waste pit site located near Dittmer in Jefferson County and driven from the site in defiance of a Notice of Violation which contained instructions not to move any materials in the pit without prior approval from the Department; 7) after pumping the hazardous waste from the pit, and at the direction of Russell Bliss, nearby drums were moved into the pit and the pit was then filled and leveled with soil; 8) on April 9, 1977, at the direction of Russell Bliss, the drums previously buried were excavated and removed from the site; 9) some, if not all, of the drums, barrels and hazardous waste materials found at the Dittmer site originated from Bliss Waste Oil Company tanks located in Frontenac, Missouri; 10) the activities at the Dittmer waste site were intended to cover up, and not to clean up, the waste pit and were intended to hinder and frustrate the efforts of the Department and the federal government to investigate and remedy the hazardous condition which existed at the Dittmer site; and 11) on April 14, 1982, an employee of petitioner sprayed hazardous waste oil on a railcar switching yard in Venice, Illinois.

The Commission concluded: 1) section 260.395.15 authorizes and requires the Department to consider transactions occurring before the effective date of the statute as a basis for the denial of a license application; 2) petitioner is a continuation of the business previously conducted as Bliss Waste Oil Company, and that petitioner can be held responsible for the actions of Bliss Waste Oil Company, its principals, and its employees; 3) as a result of its activities from May 20, 1971, through June 16, 1971, petitioner engaged in hazardous waste management practices which pose or posed a threat to the health of humans or the environment; 4) petitioner further posed a danger to the health of humans or the environment when Russell Bliss knowingly failed or refused to cooperate in the investigation of these activities; 5) that as a result of the Dittmer waste site incident, petitioner engaged in hazardous waste management practices which pose or posed a threat to the health of humans or the environment; 6) as a result of the April 14, 1982, Venice, Illinois, incident, petitioner engaged in hazardous waste management practices which pose or posed a threat to the health of humans or the environment; and 7) the April 14, 1982, Venice, Illinois, incident was in violation of 10 C.S.R. § 25-6.010(2)(B)2.C, 10 C.S.R. 25-4.020(1) and § 260.425.1, RSMo 1980. As a result of its findings and conclusions, the Commission determined that petitioner habitually engaged in waste management practices which pose a threat to the health of humans or the environment and that petitioner habitually violated the requirements of the Missouri Solid or Hazardous Waste Management Practice Acts. The Commission further determined the Department was authorized and commanded by section 260.395.15, RSMo Supp.1980, to deny a hazardous waste transporter's license to petitioner.

Petitioner complains that the lack of a pre-denial hearing deprived petitioner of protected property and liberty interests without due process of law; that because unadjudicated charges formed a basis for the denial, due process requires a pre-denial hearing to afford petitioner an opportunity to contest the alleged violations; and that the post-denial appeals and review procedures are constitutionally inadequate.

This due process issue is raised for the first time in petitioner's brief in this Court. Constitutional issues must be raised at the earliest opportunity and preserved. Swafford v. Industrial Comm'n, 452 S.W.2d 801 (Mo.1970); Christiansen v. Fulton State Hospital, 536 S.W.2d 159 (Mo. banc 1976); City of Kansas City v. Narron, 493 S.W.2d 394 (Mo.App.1973). "In this case the point should have been raised, at the very latest, in the petition for review filed in the circuit court." Swafford, 452 S.W.2d at 802. Petitioner argues in its reply that its contention "only broadens" its original arguments before the circuit court. A review of the record discloses, however, that petitioner did not invoke the due process issue in any respect before its appeal to this Court. The question is therefore not for review.

Petitioner would challenge the correctness of a portion of the circuit court's judgment, but this Court reviews the decision of the Commission, not the judgment of the trial court. Evangelical Retirement Homes, Inc. v. State Tax Comm'n, 669 S.W.2d 548, 552 (Mo. banc 1984). Petitioner does contend, however: 1) the Commission erred in construing "hazardous waste management practices which pose a threat to the health of humans or the environment" to include practices engaged in before the effective date of the statute; and 2) if the Commission did not err, section 260.395.15, RSMo Supp.1980, is unconstitutionally retroactive in its operation.

Section 260.395.15 provides:

A license or permit shall not be issued to any person who is determined by the department to habitually engage in or to have habitually engaged in hazardous waste management practices which pose a threat to the health of humans or the environment or who is determined by the department to habitually violate or to have habitually violated the requirements of the Missouri solid or hazardous waste laws, the solid or hazardous waste laws of other states or federal laws pertaining to hazardous waste.... For the purposes of this subsection, the term "person" shall include any officer or management employee of the applicant.

Id.

In construing statutes, this Court's responsibility is to ascertain the intent of the General Assembly from language used, and to give effect to that intent. Brown Group, Inc. v. Administrative Hearing Comm'n, 649 S.W.2d 874, 881 (Mo. banc 1983). In its construction of section 260.395.15, the Commission relied on Barbieri v. Morris, 315 S.W.2d 711 (Mo.1958), where this Court had to ascertain the legislative intent in the phrase "habitual violator of traffic laws" defined to be "a person who has been adjudged guilty at least four times within two years of violating any traffic laws or ordinances...." There was no qualifying phrase that the two years shall be "after the effective date" of the section, and this Court held the legislature intended to include violations occurring before the effective date. This Court concluded that a habitual traffic violator is a menace on the public highway, and...