Mueller v. Missouri Hazardous Waste Management Com'n

Decision Date25 July 1995
Docket NumberNo. 19616,19616
Citation904 S.W.2d 552
PartiesJim MUELLER, Linda Poe, and Francis Eileen Nichols, Petitioners-Appellants, v. MISSOURI HAZARDOUS WASTE MANAGEMENT COMMISSION and Atlas Environmental Services, Inc., Respondents-Respondents.
CourtMissouri Court of Appeals

John E. Price, Springfield, for petitioners-appellants.

Byron E. Francis, Armstrong, Teasdale, Schlafly & Davis, St. Louis, for respondent Atlas Environmental.

Jeremiah W. (Jay) Nixon, Attorney General and Shelley A. Woods, Assistant Attorney General, Jefferson City, for respondent Missouri Hazardous Waste.

SHRUM, Chief Judge.

This case arises from the efforts of Atlas Environmental Services, Inc. (AES) to obtain a permit from Missouri's Department of Natural Resources (DNR) to build and operate a hazardous waste disposal facility in Jasper County.

After DNR issued the permit, Appellants 1 appealed that decision to the Missouri Hazardous Waste Management Commission. 2 The Commission conditionally approved the permit--after modifying it--and directed DNR to take described "remedial measures." When DNR later reported its "remedial measure" compliance, the Commission issued its final order approving AES's permit. Appellants then sought judicial review of the Commission's orders. After review of the record, the trial court affirmed the Commission's orders.

This appeal involves application of the "Missouri Hazardous Waste Management

                Law," RSMo §§ 260.350-260.434, 3 and regulations promulgated thereunder.  For the sake of brevity, we will refer to the Missouri Hazardous Waste Management Law as "the Act."   The dispositive issue concerns the scope of the Commission's adjudicative authority under the Act when reviewing newly issued hazardous waste disposal facility permits, specifically, whether it has authority to modify such permits without remand to the DNR?   We answer, "No."   We reverse and remand
                
FACTS

Appellants are private citizens who live in or near Joplin. Their standing as "aggrieved persons" is not challenged on appeal. AES is a wholly owned subsidiary of Atlas Powder Company (Atlas). Atlas is headquartered in Dallas, Texas, and it operates an explosives manufacturing plant in Joplin.

Historically, Atlas disposed of its reactive wastes by a process known as "open burning/open detonation" (OB/OD). In the late 1980's Atlas decided to apply for a permit to build an incineration facility, which was deemed by the Environmental Protection Agency (EPA) to be a suitable technological alternative to the OB/OD process of explosive and hazardous waste disposal.

Atlas planned to have their subsidiary, AES, build the incinerator at the Atlas plant in Joplin. Atlas intended to incinerate not only its own waste generated at the Joplin plant, but also similar waste from its other plant in Pennsylvania and explosive waste from other generators located around the country. Before construction of the incinerator could begin, AES needed permits from DNR and EPA, including a hazardous waste facility permit from DNR.

AES filed its first permit application with DNR in November 1989. On March 29, 1991, after AES had submitted several revised applications, DNR issued a draft permit to construct the incinerator. Notice of DNR's intent to issue the permit was published and a public hearing on the issue was held in Joplin on May 9, 1991. Many people, including Appellants, participated in this hearing, with some also submitting written comments to DNR about the draft permit. The AES permit was officially issued on July 18, 1991.

Appellants timely filed their notice of appeal of the AES permit to the Commission. After an evidentiary hearing conducted by the Commission's designated hearing officer, the Commission issued its Findings of Fact, Conclusions of Law, and Order on January 20, 1993. In its order the Commission conditionally approved the permit but only after modifying it and requiring DNR to take described "remedial measures." In part, the Commission directed DNR to file with the Commission a written evaluation of AES's status as a "Habitual Violator" of environmental laws and a re-assessment of transportation routes and response capabilities of local government units.

In April 1993, DNR filed with the Commission its written evaluation of whether AES and Atlas were habitual violators, the report concluding they were not. DNR also filed with the Commission its new assessment of transportation routes and response capabilities of local government units. The Commission gave Appellants an opportunity to make written objections to these reports, an opportunity of which Appellants availed themselves.

On May 21, 1993, the Commission entered its final order. In part, the Commission found that neither AES nor Atlas was a habitual violator as defined by statute and regulations. Moreover, the Commission approved and incorporated into its order DNR's report on transportation routes and response capabilities of local governments. The Commission then ordered the permit to be "in full force and effect, as modified."

Appellants sought review in the Jasper County Circuit Court, alleging numerous errors committed by DNR in the permit process

and by the Commission in the administrative appeal process. After briefing and argument, the trial court on May 10, 1994, entered its order denying the petition for review. This appeal followed.

DISCUSSION
Point I: Scope of the Commission's Adjudicative Authority

In their first point, Appellants contend that the Commission, in reviewing DNR's actions, acted in excess of its statutory authority when it "unilaterally" modified the permit. They insist that the Commission lacked authority to make any modifications in the permit; that it could only affirm, reverse, or reverse and remand DNR's decision regarding the permit; and that the modification procedure followed by the Commission violated statutory and regulatory requirements designed to insure public scrutiny of the permitting process. Thus, Appellants directly call into question the scope of the Commission's adjudicative authority when reviewing on appeal an original permit application.

Apparently, the legislature intended to extend adjudicative authority to the Commission to review DNR decisions that approve or reject initial applications for Hazardous Waste Management Facility Treatment and Storage permits. We say "apparently" because the Act is not a model of clarity in this regard.

Section 260.370.3(3), 4 empowers the Commission to:

"Hold hearings, issue notices of hearings and subpoenas requiring the attendance of witnesses and the production of evidence, administer oaths and take testimony as the commission deems necessary to accomplish the purposes of sections 260.350 to 260.430 or as required by any federal hazardous waste management act...."

Section 260.395.11 reads:

"11. Whenever a permit is issued ... [or] denied ... by the [DNR], any aggrieved person, by petition filed with the [DNR] within thirty days of the decision, may appeal such decision and shall be entitled to a hearing as provided in section 260.400."

The pertinent part of § 260.400 (referenced in § 260.395.11), provides:

"1. At public hearings on ... appeals of decisions hereunder, all hazardous waste facilities ... who are involved in such hearings shall have an appropriate person present....

"2. In any hearing, any member of the commission or the hearing officer shall issue in the name of the commission notice of hearing and subpoenas and shall be authorized to require that testimony before such hearing be given under oath....

"3. All hearings to adopt standards, rules and regulations, or to adopt the state hazardous waste management plan shall be held before at least four members of the commission. All other hearings may be held before one commission member designated by the commission chairman or by a hearing officer ... appointed by the commission chairman.... The hearing officer or commission member shall make recommended findings of fact and may make recommended conclusions of law to the commission.

"4. All final orders or determinations or other final actions by the commission shall be approved in writing by at least four members of the commission...." (Emphasis added.)

Arguably, the foregoing provisions do not expressly impose a duty on the Commission or explicitly empower it to hear § 260.395.11 appeals. Nevertheless, from the language employed--specifically that emphasized by italics above--we are convinced that the legislature intended such appeals be heard by the Commission.

Less clear, however, is the scope of the Commission's authority in disposing of § 260.395.11 appeals. Although Respondents argue to the contrary, nothing in the Act expressly empowers the Commission to make "final orders or determinations or other final actions" at the conclusion of a § 260.395.11 appeal. The Commission's authority in that regard is found only in the "catch-all" language of § 260.370.3(5) wherein the legislature empowered the Commission to "[m]ake such orders as are necessary to implement, enforce and effectuate the powers, duties and purposes of sections 260.350 to 260.430."

As the legislature failed to expressly declare what the Commission can do in rendering a decision after hearing a § 260.395.11 appeal, it becomes our task to construe the meaning of the statutory language. See Vice v. Thurston, 793 S.W.2d 900, 905 (Mo.App.1990). We look to the purpose of the statute and any evident legislative intent to seek construction. See AT & T v. Wallemann, 827 S.W.2d 217, 223 (Mo.App.1992); Lederer v. State, Department of Social Services, Division of Aging, 825 S.W.2d 858, 863 (Mo.App.1992). In that undertaking, we take account of " 'the policy adopted by the Legislature in reference to the subject-matter, the object of the statute, and the mischief it strikes at or seeks to prevent, as well as the remedy provided.' " AT & T, 827 S.W.2d at 223 (quoting ...

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