State ex rel. Webster v. Missouri Resource Recovery, Inc.

• Decision Date: 14 February 1992
• Docket Number: No. 17271,17271
• Citation: 825 S.W.2d 916
• Parties: STATE of Missouri, ex rel. William WEBSTER, Attorney General, and Missouri Department of Natural Resources, Plaintiffs-Appellants, v. MISSOURI RESOURCE RECOVERY, INC., and Frank E. Hostetter, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 916

825 S.W.2d 916

STATE of Missouri, ex rel. William WEBSTER, Attorney General, and Missouri Department of Natural Resources, Plaintiffs-Appellants, v. MISSOURI RESOURCE RECOVERY, INC., and Frank E. Hostetter Defendants-Respondents.

No. 17271.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 14, 1992.

Motion for Rehearing or Transfer

Denied March 9, 1992.

Application to Transfer Denied

April 21, 1992.

William L. Webster, Atty. Gen., Shelley A. Woods, Asst. Atty. Gen., Jefferson City, for plaintiffs-appellants.

John A. Parks, Humansville, for defendants-respondents.

SHRUM, Presiding Judge.

This case arises from the efforts of the state of Missouri, acting at the instigation of the Missouri Department of Natural Resources (DNR), ¹ to obtain a judicial determination that Missouri Resource Recovery, Inc., a Missouri corporation (MRR Inc.), and its president Frank E. Hostetter ² violated the "Hazardous Waste Management Law." ³ DNR sought injunctive relief against the defendants based on common law nuisance principles and provisions of Missouri's Hazardous Waste Management Law. Additionally, DNR sought civil penalties for alleged violations of the Hazardous Waste Management Law.

By its judgment, the trial court (a) dismissed defendant Hostetter from the case because of its conclusion that Hostetter was not liable for any of the alleged wrongs of the corporation; (b) dismissed all counts against MRR Inc. except Count IV on the basis that the evidence failed to support the plaintiffs' allegations; (c) determined that MRR Inc. had buried solid wastes in an area not permitted for solid waste disposal (at the "Roscoe site") and fined MRR Inc. $500 for that violation (Count IV); (d) found that the materials present at the MRR Inc. facility site and the physical characteristics of that site as referred to in Count III were a public nuisance but determined that the plaintiffs had caused this nuisance by (1) failing to properly administer the Hazardous Waste Management Law and (2) "putting [MRR Inc.] out of business without giving it a chance to properly dispose of its accumulated materials"; (e) found that the plaintiffs had a duty to "abate" the nuisance; and (f) ordered the plaintiffs to pay $12,724.91 of the defendants' attorney fees and $762.89 in court costs. It is from this judgment that the plaintiffs appeal.

We affirm in part, reverse in part, and reverse and remand in part.

BACKGROUND

I. Business of MRR Inc.; Materials at Facility Site

MRR Inc. was initially certified by DNR on April 15, 1983, to operate a "resource recovery" ⁴ facility. The restrictions imposed by DNR as part of its initial certification are contained in a letter dated April 18, 1983. ⁵ That letter is attached to this opinion as Appendix "A." In May 1985, DNR renewed the certification for an additional two years. See Appendix "B." By this 1985 certification, MRR Inc. was limited to accepting "only those wastes classified as F003 and F005." ⁶ Application by MRR Inc. for a third certification was denied by DNR on May 5, 1987.

After initial certification, MRR Inc. began reclaiming the non-halogenated solvents it was authorized to receive. Primarily, it received wastes from two Kansas City firms, Davis Paint and Drake Design. The Davis Paint waste was generated from the cleaning of paint vats and was primarily a xylene/toluene mixture. The Drake Design waste was acetone, "possibly from a fiberglass process, and a 20% pigmented polyester resin." The defendants acknowledge that the materials received from Davis and Drake were "hazardous wastes."

A distillation process, which includes use of a boiler, was used by MRR Inc. to reclaim the waste solvents. The reclaimed solvents were then sold back to Davis Paint and Drake Design. The distillation process leaves a solid material known as "still bottoms" in the still. Under the terms of the certification, MRR Inc. was authorized to use the still bottoms as boiler fuel. (See Appendix "A".) Authorization to burn the still bottoms was never withdrawn until recertification was denied in May 1987.

One of the many violations charged by DNR involved the solid material remaining in the bottom of barrels after the liquid part of the waste solvent is pumped off. DNR refers to that material as "sludge." The record is devoid of evidence which identifies the physical characteristics or the chemical makeup of the sludge. The defendants burned sludge in the boiler, mixing it with the still bottoms to use as a fuel. DNR's certification did not specifically authorize MRR Inc. to use sludge in that manner.

Flash point analyses were made on samples of liquids taken from barrels at the facility site. Those liquid samples were taken in June 1987 and in August 1989. The liquid samples exhibited the characteristic of ignitability. Under all versions of the DNR regulations, ignitability is a characteristic of non-listed hazardous wastes. See, e.g., 10 CSR 25-4.010(2) (June 1984). ⁷

Another alleged violation concerns the ash which remains in the boiler after burning the still bottoms and other fuels. The defendants admitted that some of the ash was dumped on gravel driveways at the MRR Inc. site but denied that the ash was a hazardous waste. DNR claims that the ash was one of many hazardous waste materials which the defendants did not handle in accord with state laws and regulations. There is no evidence in the record that samples of ash were analyzed.

By their answer, the defendants admit that as of November 9, 1987, there were 60,000 gallons of methanol and approximately 600 drums of ignitable material at the MRR Inc. facility. The trial court found (and the evidence supports the finding) that in late 1986 MRR Inc. expected to enter into a contract to process significantly larger amounts of wastes, and in order to have an adequate fuel supply, it had stockpiled several hundred drums of still bottoms and sludges.

II. The Roscoe Site

The defendant Frank E. Hostetter and his wife Mary own a farm near Roscoe, Missouri. In the spring or summer of 1986, a number of 55-gallon barrels were hauled from the MRR Inc. facility to the "Roscoe site." Hostetter made the decision to take the barrels to that site and he personally transported the materials. Trenches were dug with a backhoe and the barrels were buried.

In July 1986, DNR received a citizen complaint about the burial of drums at the Roscoe site. That complaint prompted an investigation by DNR. During the investigation, a DNR employee learned that the buried barrels were being excavated. That employee immediately confronted Hostetter who admitted he had been aware that DNR was investigating. He knew of the neighbors' concerns regarding the barrels and, to alleviate those concerns, decided he "would dig those drums up."

Soil sampling was performed at the Roscoe site by DNR. Analyses of the samples revealed traces of arsenic, barium, cadmium, chromium, and lead. Flash point analyses were made on the Roscoe site soil samples and four of the samples exhibited the characteristic of ignitability.

III. Statutory and Regulatory Framework ⁸

In 1976, the United States Congress enacted the Resource and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA). The RCRA represented an attempt by Congress to deal with problems posed by the general disposal of wastes in this country, including the particular problems associated with hazardous wastes. U.S. v. Aceto Agr. Chemicals Corp., 872 F.2d 1373, 1376 (8th Cir.1989). The RCRA has been amended three times since enactment and provides what Congress calls a "prospective cradle-to-grave regulatory regime governing the movement of hazardous waste in our society." Id. at 1376-77. Environmental Defense Fund v. E.P.A., 271 App.D.C. 349, 852 F.2d 1316, 1318 (1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989). Under RCRA, Congress has authorized the United States Environmental Protection Agency (EPA) to issue permits for the operation of hazardous waste disposal facilities, to promulgate standards for transporters of hazardous wastes and operators of hazardous waste facilities, and to identify hazardous wastes. Aceto, 872 F.2d at 1377.

Pursuant to § 3006(b) of the RCRA (42 U.S.C. § 6926), the federal government may, when requested to do so, grant individual states the right to administer and enforce their own hazardous waste programs under RCRA. In Missouri, the general assembly, in § 260.375(26), RSMo Supp.1981, directed that DNR "[e]xercise all powers necessary to carry out the provisions of sections 260.350 to 260.430, assure that the state of Missouri complies with any federal hazardous waste management act and retains maximum control thereunder...." DNR applied to the EPA for authority to operate Missouri's hazardous waste program in lieu of the federal program. Effective December 4, 1985, Missouri received such authority. 50 Fed.Reg. 47740.

As part of its initial enactment of the Missouri Hazardous Waste Management Law, our general assembly authorized DNR to promulgate rules and regulations establishing criteria to determine whether any waste is hazardous. H.B. 318, p. 418, § 5(1)(a), Laws of Mo.1977. By § 260.370.3(1)(a), RSMo Supp.1981, the Commission's authority to promulgate rules and regulations was extended to "establishing criteria and a listing for the determination of whether any waste or combination of wastes is hazardous...." (Emphasis added.) Various regulations were promulgated pursuant to the foregoing authority, including 10 CSR 25-4.010 Hazardous Waste Identification (October 1979). Regulation 10 CSR 25-4.010 was frequently amended until, during the period pertinent to this case, it closely tracked EPA's regulations on the subject of hazardous waste identification. See 40 C.F.R. Part 261, Subparts B, C, and D.

The federal regulations contained two categories of hazardous wastes: "listed" and "characteristic." Those wastes which have been determined to be hazardous by...