State ex rel. Bunker Resource Recycling and Reclamation, Inc. v. Mehan, 71897
| Decision Date | 10 January 1990 |
| Docket Number | No. 71897,71897 |
| Citation | 782 S.W.2d 381 |
| Parties | STATE of Missouri, ex rel., BUNKER RESOURCE RECYCLING AND RECLAMATION, INC., Appellant, v. G. Tracy MEHAN, III, Director, Missouri Department of Natural Resources, and The Department of Natural Resources, State of Missouri, Respondents. |
| Court | Missouri Supreme Court |
David J. Waxse, Overland Park, Kan., John Dods, Craig Gustafson, Kansas City, Mo., for appellant.
William L. Webster, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Jefferson City, Mo., for respondents.
Appellant Bunker Resource Recycling and Reclamation, Inc., (Bunker) appeals from a judgment denying its petition for a writ of mandamus. The case was brought to compel the Missouri Department of Natural Resources (DNR) and its Director, G. Tracy Mehan, III, to process Bunker's application for a permit to incinerate infectious waste, or, in the alternative, to grant such permit. DNR filed a counterclaim seeking a declaratory judgment. Following a judgment by the trial court, an appeal was originally lodged in the Missouri Court of Appeals, Western District. However, the appeal was transferred to this court because the only question on appeal was the constitutionality of a statute. See Mo. Const. art. V, §§ 3, 11.
The case was presented to the circuit court on a "Stipulation of Facts For Trial." Other than procedural matters, the information recited below is extracted from the stipulation of facts.
In February of 1987 Edward J. Juracek, a director of Bunker, met with Stan Jorgensen, director of the Waste Management Program for DNR, to determine the permits necessary for Bunker to construct and operate an infectious waste incinerator in Reynolds County. Jorgensen indicated that no solid waste permit was then required to operate an infectious waste incinerator. In addition, Juracek was provided with a copy of a letter from DNR to the Superintendent of the Ozark National Scenic Riverways Park, dated April 6, 1987, stating that no solid waste permit was required to operate an infectious waste incinerator.
Bunker constructed an incinerator facility and made application for a "clean air" permit 1 on February 22, 1987. A clean air permit was issued by DNR on May 5, 1987. No other permits were sought until September 8, 1987. The clean air permit authorized emission of specified levels of contaminants based upon the anticipated incineration of 18.9 tons of infectious waste annually. The waste was to be incinerated at a temperature of 1800 degrees Fahrenheit. Based on the representations of the DNR officials and the clean air permit, Bunker commenced operation of its incinerator facility in the city of Bunker, Missouri, on June 1, 1987. At the time Bunker began operating, § 260.205.1, RSMo 1986, was in effect. It provided:
It is unlawful for any person to operate a solid waste facility or solid waste disposal area of a solid waste management system without first obtaining a permit from [DNR].
On July 1, 1987, two new statutes became effective, § 260.203.1 and § 260.378, RSMo 1986. Although the former section was modified and the latter repealed during the 1988 session of the General Assembly, 2 each provided that infectious waste must be taken to a "hazardous waste facility [or] a solid waste facility permitted for treatment of infectious waste by" DNR.
Also on July 1, 1987, the director of DNR's Division of Environmental Quality notified all infectious waste handlers, including Bunker, that until DNR adopted regulations relating to infectious waste handling facilities, "existing facilities can continue to operate under the authority that they operate under now (i.e., air pollution permits, hospital license, etc.)." On July 28, the chief of the Department of Environmental Quality's hazardous waste section instructed the regional DNR office at Poplar Bluff that the incinerator facility at Bunker would be allowed to operate pending the adoption of regulations if the facility was in compliance with its air or water permit.
On that same day, July 28, 1987, an action was filed by residents of the city of Bunker seeking a declaratory judgment that the incinerator was operating in violation of Missouri law and asking for an injunction against further operation of the incinerator. In that case it was determined that because Bunker was operating its incinerator without a solid waste permit or hazardous waste permit, it was not authorized to continue operation. A permanent injunction was granted. The judgment was affirmed on appeal. Mertzlufft v. Bunker Resources Recycling and Reclamation, Inc., 760 S.W.2d 592 (Mo.App.1988). Bunker did not operate its incinerator after July 28, 1987.
On September 8, 1987, Bunker filed an application with DNR for a solid waste processing permit. On October 14, 1987, this action for mandamus was commenced to compel DNR to (1) issue a solid waste processing permit, (2) process Bunker's request for a permit by giving the required notices to the public, landowners adjoining the Bunker incinerator and the governing body of the city of Bunker, and thereafter holding all necessary hearings, and (3) promulgate rules concerning the operation and requirements for permits for solid waste processing facilities handling infectious waste. DNR did not act on relator's application for a permit through May of 1988.
On about May 6, 1988, Senate Bill No. 535 was signed into law by the Governor, having previously been enacted by the General Assembly. The new enactment included § 260.204: 3
No person shall be issued a permit to operate a facility for the treatment of infectious waste who in 1987 received a clean air permit and thereafter operated a facility for the treatment of infectious waste by incineration without applying for and receiving a permit as a solid waste processing facility permitted pursuant to § 260.203 or a hazardous waste facility permitted pursuant to §§ 260.350 to 260.430.
According to the stipulation, the only person or entity who could be denied a permit because of the above-quoted statute is Bunker. There is no written legislative history of the law.
On June 9, 1988, respondents filed a counterclaim asking the trial court to declare § 260.204 constitutional and to declare that Bunker is disqualified from receiving a permit to incinerate solid waste because of that section.
The trial court concluded that § 260.204 was a legitimate exercise of the state's police power to regulate the handling and disposal of infectious waste. Judgment was entered denying relator's petition for writ of mandamus and in favor of DNR on its counterclaim.
The dispositive issues presented here are (1) whether § 260.204 is a special law prohibited by Mo. Const. art. III, § 40 and (2) whether § 260.204 is a prohibited bill of attainder under U.S. Const. art. I, § 10.
Art. III, § 40 of the Missouri Constitution provides:
A statute is invalid as a "special law" if members of a stated class are omitted from the statute's coverage whose relationship to the subject matter cannot by reason be distinguished from that of those included. State ex rel. Public Defender Comm'n v. County Court of Greene County, 667 S.W.2d 409, 412 (Mo. banc 1984). Worded differently, "[a] law may not include less than all who are similarly situated." Wilson v. City of Waynesville, 615 S.W.2d 640, 644 (Mo.App.1981) ). See also Ross v. Kansas City General Hospital and Medical Center, 608 S.W.2d 397, 400 (Mo. banc 1980). Even a facially special statute does not violate the constitutional prohibition if some characteristic of the excluded class provides a reasonable basis for its exclusion. State ex rel. Public Defender Comm'n v. County Court of Greene County, supra. One who assails the classification must carry the burden of showing that it is essentially arbitrary and unreasonable. Id.
DNR asserts, and we agree, that the only valid purpose of § 260.204 would be to protect public health and welfare from the dangers related to transporting and disposing of infectious wastes. However, the statute imposes its sanction only against those who received clean air permits in 1987. Others similarly situated, that is, those who performed the identical acts as relator but who either never held a clean air permit or received a clean air permit in a year other than 1987, are excluded from the statutory classification. An entity like Bunker in all respects, but for its failure to receive a clean air permit in 1987, has no special characteristic justifying its exclusion from the statutory class. Even if we ignored the clean air permit language, as DNR suggests in its brief, the statute would not apply to one who incinerated infectious waste in a year other than 1987 without any waste disposal permit. Also, the statute, as DNR would have us construe it, would not apply to unlicensed persons who in 1987 disposed of infectious waste by some method other than incineration. No discernible characteristic of infectious waste treated by incineration is different from infectious waste treated by some other method; neither is there a difference in infectious waste incinerated in 1987 distinguishing it from infectious waste incinerated in any other year. No reasonable basis exists for the differential treatment of one who disposed of infectious waste by incineration in 1987. Section 260.204 is a prohibited special law under the Missouri Constitution. However, there is an equally compelling reason for declaring the statute unconstitutional.
Art. I, § 10 of the U.S. Constitution prohibits any state from passing a bill of attainder. Mi...
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