State ex rel. Koster v. Didion Land Project Ass'n, LLC, No. ED 101149

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: ROBERT G. DOWD, JR., Presiding Judge
• Citation: 469 S.W.3d 914
• Parties: State of Missouri, ex rel. Attorney General Chris Koster and Missouri Department of Natural Resources, Appellants, v. Didion Land Project Association, LLC, Thomas T. Stewart, Daniel Fetsch, Judith Fetsch and Epic Contracting, LLC, Respondents.
• Docket Number: No. ED 101149
• Decision Date: 15 September 2015

469 S.W.3d 914

State of Missouri, ex rel. Attorney General Chris Koster and Missouri Department of Natural Resources, Appellants
v.
Didion Land Project Association, LLC, Thomas T. Stewart, Daniel Fetsch, Judith Fetsch and Epic Contracting, LLC, Respondents.

No. ED 101149

Missouri Court of Appeals, Eastern District, DIVISION ONE .

Filed: September 15, 2015

John K. McManus, P.O. Box 899, Jefferson City, MO 65102, Attorney for Appellant.

Timothy T. Stewart, 510 Broadway Street, Jefferson City, MO 65101, Attorney for Respondent.

Opinion

ROBERT G. DOWD, JR., Presiding Judge

The State of Missouri and the Department of Natural Resources (collectively “the State”) appeal from the trial court's dismissal of its amended petition against the Didion Land Project, LLC. We reverse and remand.

In 2011, the State filed a petition for injunctive relief and civil penalties against Didion and its individual owners alleging violations of various Missouri environmental laws. Didion operated a foundry at a site in St. Charles County until 2009, at which time Didion began demolition of the foundry facility. The petition alleged that Didion failed to perform an asbestos inspection or notify the DNR of the demolition. It also alleged that at various times known and unknown, Didion generated solid waste at the site without determining whether the waste was hazardous and then unlawfully dumped that solid waste on the

469 S.W.3d 916

ground and in nearby waters. The State also alleged that on three occasions in 2011, Didion unlawfully refused the DNR access to the site to conduct a compliance inspection regarding the solid waste. The State asserted that each of these actions was a violation of a specific environmental statute or regulation. The State sought preliminary and permanent injunctive relief prohibiting Didion from further violations of these laws and civil penalties for each day Didion was in violation.

The State applied for and was granted a temporary restraining order prohibiting Didion from taking any action at the site. The State also applied for a preliminary injunction, and in February of 2012, the court entered the parties' agreed order of preliminary injunction. Therein, Didion was ordered to properly characterize, transport and dispose of various materials at the site. Once completed, Didion would be allowed to prepare the site for construction of a storage building. Foundry sand also was to be characterized and disposed of accordingly. Didion was prohibited from taking any other action at the site. The tasks in the preliminary injunction were to be completed in ninety days.

Shortly thereafter, the State filed a motion to show cause why Didion should not be held in contempt for violating the preliminary injunction. The court held a hearing in April of 2012, after which the parties agreed on a resolution, and the court assessed a civil penalty of $2,000 against Didion for its failure to comply and ordered Didion to obey the orders in the preliminary injunction. In December of 2012, the State moved again to show cause why Didion should not be held in contempt, alleging that only a portion of the hazardous waste and materials had been dealt with, that organic peroxide remained and that new materials were being stored on the site; moreover, Didion had not yet paid the penalty for its first violation of the preliminary injunction. The court entered another order of contempt in which Didion was again ordered to comply with all the court's orders and applicable environmental laws and assessed an additional penalty of $6,000 for failing to pay the earlier assessed penalty and failure to comply with the court's previous orders. In January of 2013, that order of contempt was amended to indicate some completion of the preliminary injunction tasks and to extend the time in which to complete others.

By June of 2013, the parties still disagreed as to whether the tasks in the preliminary injunction had been fully completed. The State filed its third motion to show cause why the court should not hold Didion in contempt, and Didion filed a motion to dissolve the preliminary injunction. The State also filed an application for a new temporary restraining order and preliminary injunction. In July of 2013, the court held a hearing, at the outset of which, it stated expressly that it was taking up the State's motion to show cause and Didion's motion to dissolve the preliminary injunction. The court also granted the State leave to file an amended petition, over no objection from Didion, although it was not actually filed until much later. The parties presented evidence and arguments over two days.

Shortly thereafter, the court issued its “findings and judgment.” Therein, the court identified three matters being taken up by the court: the State's motion to show cause, Didion's...