Morton v. Missouri Air Conservation Com'n

• Decision Date: 19 March 1997
• Docket Number: Nos. 20826,20828,s. 20826
• Citation: 944 S.W.2d 231
• Court: Missouri Court of Appeals
• Parties: David MORTON, Clever Stone Company, Inc., David Donelson and Mary Ann Donelson, Plaintiffs-Appellants, v. MISSOURI AIR CONSERVATION COMMISSION, and Harriet Beard, David Crane, Johnny Ray Conklin, Andy Farmer, William Clark, Mike Foresman, Department of Natural Resources and David Shorr, Defendants-Respondents, Leo Journagan Construction Company, Inc., Intervenor-Respondent. Division One

Page 231

944 S.W.2d 231

David MORTON, Clever Stone Company, Inc., David Donelson and Mary Ann Donelson, Plaintiffs-Appellants, v. MISSOURI AIR CONSERVATION COMMISSION, and Harriet Beard David Crane, Johnny Ray Conklin, Andy Farmer, William Clark Mike Foresman, Department of Natural Resources and David Shorr, Defendants-Respondents Leo Journagan Construction Company, Inc., Intervenor-Respondent.

Nos. 20826, 20828.

Missouri Court of Appeals Southern District,

Division One.

March 19, 1997.

Motion for Rehearing and Transfer

Denied April 3, 1997.

Application to Transfer Denied

May 27, 1997.

Mathew W. Placzek, David E. Overby, Springfield, for Donelson & Clever Stone.

Kimberly J. Lowry, Springfield, for Appellant Morton.

John E. Price, Price, Fry & Robbs, Springfield, for Intervenor-Respondent.

BARNEY, Presiding Judge.

On August 1, 1991, the Director of the Division of Environmental Quality, within the Missouri Department of Natural Resources (MDNR), granted a permit to Leo Journagan Construction Company, Inc. (Journagan) to operate a limestone quarry and rock crushing operation on a 40 acre site located in rural Christian County, Missouri. David and Mary Ann Donelson, Clever Stone Company, Inc., (Clever Stone) and David Morton (Appellants) filed their administrative appeal with the Air Conservation Commission of the State of Missouri (Commission) to set aside the permit. Journagan intervened. ¹ The Commission issued its findings of facts and conclusions of law and order confirming the decision granting the permit. Appellants then filed their petition for review of the order of the Commission with the Circuit Court of Greene County, Missouri, pursuant to § 536.100 et seq., RSMo 1994. The court affirmed the order of the Commission. This appeal followed. ²

Journagan maintains its quarry and rock crushing operation on a 40 acre tract located to the east of an existing quarry and rock crushing operation on 155 acres of land partially owned and leased by Appellants David and Mary Ann Donelson in Christian County, Missouri. Mr. and Mrs. Donelson own Clever Stone and Mr. Donelson is the President of the company. Appellant David Morton is a farmer who lives south of the Journagan quarry.

Journagan had theretofore applied for a permit for its quarry in 1986. A permit was granted in 1990, which was appealed by Appellant David Morton and others resulting in a hearing before the Commission. As a result of that hearing, a discrepancy in the north boundary line of Journagan's property was discovered which affected the permitting authority's review process and Journagan voluntarily withdrew its application. The problem with the boundary line was subsequently corrected.

On March 20, 1991, when Journagan made its latest application for authority to construct a limestone quarry, an "air contaminant" was described as: "any particulate matter or any gas or vapor or any combination thereof," and an "air contaminant source" was described as: "any and all sources of emission of air contaminants whether privately or publicly owned or operated." § 643.020, RSMo Cum.Supp.1990. Therefore, a limestone quarry was considered to be an "air contaminant source" because of the dust and airborne particles raised in the course of its operation. See 10 C.S.R. 10-6.060(7)(B); ³ see also Citizens for Rural Preservation, Inc. v. Robinett, 648 S.W.2d 117, 121 (Mo.App.1982). The statute provided that it was incumbent upon the permit authority to make two key findings before it issued a permit to build or enlarge an air contaminant source. ⁴ It had to determine: (1) "if the ambient air quality standards ⁵ in the vicinity of the source are being exceeded" and (2) "the impact on the ambient air quality standards from the source." § 643.075.3, RSMo Cum.Supp.1990. The permit authority could "deny a construction permit if the source will appreciably affect the air quality standards or the air quality standards are being substantially exceeded." § 643.075.3, RSMo Cum.Supp.1990.

Journagan was then granted a de minimis permit ⁶ to construct and operate his quarry on the basis that Journagan's quarry would emit less than 15 tons of PM10 and 25 tons of TSP (total suspended particulates) per year. 10 C.S.R. 10-6.060(2) and (7)(A), Table 1. Additionally, the Commission added the following conditions to the permit:

(1) Production was limited to no more than 240,000 tons per year, or 960 tons per day.

(2) Emission controls included total enclosure of the secondary crusher/screening units; water spray of conveyor transfer points, primary crusher, and all haul roads; paving of all interior haul roads, including from the county road to a location as near to the truck loading sites as possible (i.e. accounting for the termination where heavier equipment traffic intersects the loadout route). Haul roads shall be watered whenever the vehicular traffic on the road is capable of producing visible emissions off the haul road.

(3) A program of post-construction/production monitoring for this installation ... shall be undertaken, lasting for a period of one (1) year. Within thirty (30) days of the receipt of this permit, a monitoring Quality Assurance (QA) plan must be developed and submitted to the Air Pollution Control Program for review.

Appellants challenge the order of the Commission in the following respects. They argue that the Commission erred by: (1) not determining whether certain "fugitive dust" would leave the boundary line of Respondent's property; (2) its determination that the "ambient air quality" in the vicinity of Respondent's quarry was either at its regulatory limit or was not being exceeded at the time of the issuance of the permit; (3) concluding that the permit was "de minimis," not requiring modeling and monitoring preceding the issuance of the permit; (4) and (5) failing to comply with its statutory obligations under § 643.075.3 to determine the ambient air quality in the vicinity of the quarry and its impact on the air quality in the general area; hence, the Commission's findings were not supported by competent and substantial evidence upon the whole record, were arbitrary, capricious and unreasonable, and constituted an abuse of discretion; (6) utilizing the standard of review based on "belief" of the correctness of the MDNR's action, rather than the proper standard of being based upon "competent and substantial evidence considering the whole record"; (7) engaging in unlawful procedure, without a fair trial by its failure to attend the hearings and its failure to review all exhibits and read the entire transcript as required by statute; (8) failing to reach a determination on several contested issues of fact; and (9) refusing to consider the "modeling" that the MDNR had conducted since the permit was issued, showing that air quality standards would be exceeded as a result of the quarry operation.

We initially take up Journagan's motion to dismiss Appellants' appeal based upon this Court's lack of subject matter jurisdiction over the cause alleged herein. Journagan contends that only the party requesting a permit has the right to appeal a decision granting or denying a permit, citing § 643.075.5, RSMo Supp.1988. Journagan's motion to dismiss is not well taken, however, and is denied. Section 643.060(4), RSMo 1986 provides that "[a]ny person aggrieved by any action of the executive secretary [of the Air Conservation Commission of the State of Missouri] under this provision shall be entitled to a hearing before the commission as provided in section 643.080." Accordingly, Appellants have the right to maintain this appeal.

On appeal from an agency decision in a contested case, an appellate court generally reviews the findings of fact and decision of the agency, not the judgment of the circuit court. Clark v. School Dist. of Kansas City, 915 S.W.2d 766, 773 (Mo.App.1996). Our review is limited to a determination of whether the decision was supported by competent and substantial evidence upon the whole record, whether it was arbitrary, capricious or unreasonable, or whether the agency abused its discretion. Robinett, 648 S.W.2d at 124. Substantial evidence is merely evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them. Clark, 915 S.W.2d at 773; see also Robinett, 648 S.W.2d at 124. Where the evidence before an agency would warrant either of two opposing conclusions, we are bound by the agency's findings. Robinett, 648 S.W.2d at 124. While we may not substitute our judgment for that of the agency, we must ascertain whether the agency could have reasonably made its findings and reached its result upon consideration of all the evidence before it. Id. If the findings and conclusions of the agency are clearly contrary to the overwhelming weight of the evidence, we must reverse or order further appropriate action. Id. The determination of a witnesses' credibility is the function of the administrative tribunal. Weber v. Firemen's Retirement Sys., 899 S.W.2d 948, 951 (Mo.App.1995). We defer to the expertise of an administrative agency in reaching decisions based on scientific and technical data. State v. Missouri Resource Recovery, Inc., 825 S.W.2d 916, 931 (Mo.App.1992). If the agency's interpretation of a statute is reasonable and consistent with the language of the statute, it is entitled to considerable deference. Id. However, when an administrative agency's decision is based on the agency's interpretations of law, the reviewing court must exercise unrestricted, independent judgment and correct erroneous interpretations. Burlington Northern R.R. v. Director of Revenue, 785 S.W.2d 272, 273 (Mo. banc 1990).

In their first point, Appellants argue that the Commission erred in refusing to determine whether or not "fugitive dust" would leave the boundary line of the property which was the subject of the permit. They argue...