Opinion
No. ED 81790
June 30, 2003
Appeal from the Circuit Court of the City of St. Louis, Honorable Robert H. Dierker, Jr.
Kathleen G. Henry, 705 Olive Street, Suite 614, St. Louis, MO, 63101, for appellant.
John Munson Morris III, Shelley A. Woods, P.O. Box 899, Jefferson City, MO 65102-0899, Aaron P. Avila, P.O. Box 23795, (Fort Leonard Wood) (L'Enfant Plaza Station), Washington, D.C. 20026, for respondents.
The Missouri Coalition for the Environment ("Coalition") appeals from a judgment of the circuit court affirming a decision by the Missouri Clean Water Commission ("Commission") dismissing Coalition's appeal for lack of subject matter jurisdiction. Coalition argues that Commission had jurisdiction over its appeal because the director ("Director") of the Missouri Department of Natural Resources ("Department") had actual or, in the alternative, de facto authority to issue the permit modifications Coalition attempted to appeal. Coalition also claims if Director lacked authority to issue the permit modifications, the permit should be vacated. We reverse and remand.
The U.S. Army received a five-year Missouri State Operating Permit ("MSOP") in 1995 to discharge wastewater into rivers and streams near Fort Leonard Wood. As the permit's expiration date approached, the Army requested a modification of its permit and received three modifications.
MSOP is another name for a National Pollutant Discharge Elimination System ("NPDES") permit issued in this state. See Scott Tie Co. v. Mo. Clean Water Comm'n, 972 S.W.2d 580, 582 (Mo.App. 1998). Federal and state laws require these permits for discharging water with any amount of contamination, and they establish limits on pollutant amounts discharged into waters of the state. Id. See Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 14-16 (Mo.banc 2003) (overview of federal Clean Water Act and discussion of NPDES permits).
The first two permit modifications were issued in October 1999, and their expiration dates did not differ from that of the original permit, which was February 16, 2000. The last modification was dated April 21, 2000, with an April 20, 2005, expiration date.
In the interim between the second and third modifications, Coalition filed with Commission a notice of appeal contesting the issuance of the permit modifications. Commission heard Coalition's arguments and dismissed for lack of subject matter jurisdiction, citing Craven v. State ex rel. Premium Standard Farms, Inc., 19 S.W.3d 160 (Mo.App. 2000).
It appears from the record that Coalition's challenge of the permit includes all three modifications, which have the same permit number, MO-0117251.
Coalition subsequently filed a petition for judicial review of Commission's decision. The circuit court agreed with Commission and dismissed Coalition's appeal for lack of subject matter jurisdiction. It stated that Craven precluded Commission from having subject matter jurisdiction because Coalition, "composed of people who generally enjoy the Big [and Little] Piney [r]ivers and wildlife in the area surrounding Fort Leonard Wood," was a third party to the permit. This appeal follows.
In its first point, Coalition argues that Commission erred in dismissing its appeal of the issuance of the permit modifications to Fort Leonard Wood upon the ground that Director had no authority to issue the permit. It claims Director has authority to issue or deny MSOPs and section 640.010 RSMo 2000 confers upon Commission jurisdiction to hear appeals from their issuance or denial.
All further statutory references are to RSMo 2000 unless otherwise indicated.
In an appeal following judicial review of an administrative agency's decision, we review the agency's decision and not that of the circuit court. See Scheble v. Mo. Clean Water Comm'n, 734 S.W.2d 541, 550 (Mo.App. 1987). We evaluate whether the action of the agency:
(1)[i]s in violation of constitutional provisions; (2) [i]s in excess of the statutory authority or jurisdiction of the agency; (3) [i]s unsupported by competent and substantial evidence upon the whole record; (4) [i]s, for any other reason, unauthorized by law; (5) [i]s made upon unlawful procedure or without a fair trial; (6) [i]s arbitrary, capricious or unreasonable; (7) [i]nvolves an abuse of discretion.
Section 536.140.2; see Grace v. Mo. Gaming Comm'n, 51 S.W.3d 891, 896 (Mo.App. 2001). Whether an agency possesses subject matter jurisdiction is a question of law, and our review of agency determinations of questions of law is de novo. Grace, 51 S.W.3d at 897; Mo. Dep't of Soc. Servs. v. NME Hosp., Inc., 11 S.W.3d 776, 779 (Mo.App. 1999). As such, we exercise de novo review of Commission's decision to dismiss Coalition's appeal of the permit modifications. See generally State ex rel. Mo. Gaming Comm'n v. Kinder, 896 S.W.2d 514, 516 (Mo.App. 1995) (stating whether Missouri Gaming Commission had jurisdiction to review particular decision was question of law for appellate court).
We begin by addressing whether Director has authority to issue MSOPs. The Western District of this court directly reviewed this issue inCraven when it determined "what state entity has the statutory authority to issue wastewater discharge permits." 19 S.W.3d at 162. Craven held that the "unambiguous language" of Chapter 644, or the Missouri Clean Water Law ("MCWL"), clearly vests Commission, not Director or Department, with the authority to issue permits. Craven, 19 S.W.3d at 166.
The MCWL was enacted in 1972, "in part, to protect public health, public welfare, wildlife, fish and aquatic life, domestic, agricultural, industrial, recreational and other use of Missouri's water." Willamette Indus., Inc. v. Clean Water Comm'n of Mo., 34 S.W.3d 197, 199 (Mo.App. 2000) ( citing section 644.011). The U.S. Environmental Protection Agency delegated authority for the NPDES permitting program to Department in 1974. Scott Tie Co., 972 S.W.2d at 583. This delegation authorizes the state to issue and enforce permits while the federal government oversees and reviews Department's actions. Id.
In Craven, a neighbor of Premium Standard Farms, Inc. and Continental Grain Company, "large scale confined swine feeding facilities and operations located in northern Missouri," appealed the issuance of wastewater permits to the two hog confinement farms. 19 S.W.3d at 162. The confinement farms argued that Commission and its hearing officer lacked subject matter jurisdiction to hear an appeal from the issuance of the permits when the entity seeking review was not the applicant for either permit. Id. They argued that section 644.051.6 circumscribed the right to appeal Commission's actions to applicants only. Craven, 19 S.W.3d at 163. They contended that because Commission had issued the permits, the appeal should have been dismissed as the neighbor was a third party to the permits and lacked the right to an appeal. Id.
In Craven, Department, Commission, and a hearing officer joined the neighbor as appellants at the circuit and appellate court levels. To avoid confusion between the parties and their roles and arguments inCraven and the instant case, our discussion of Craven collectively refers to the appellants' arguments as those of the neighbor.
The neighbor, however, claimed that the permits were issued by Director as a function of the Omnibus State Reorganization Act of 1974 ("OSRA").Id.; see 15 RSMo app. B. MCWL requires Commission to appoint an executive secretary, and it assigns the executive secretary the task of investigating applications and then issuing or denying those permits. Sections 644.021.4, section 644.051.3. The neighbor contended that OSRA caused the transfer of the executive secretary's duties to Director and abolished the position of executive secretary of Commission. Craven, 19 S.W.3d at 163. According to the neighbor's argument, the references in section 644.051 to the executive secretary issuing permits implicitly referred to Director. Craven, 19 S.W.3d at 163.
OSRA was enacted after MCWL by the general assembly "to provide for the improved accountability in performance of services" to Missouri citizens and to encourage "the most efficient and economical operations possible in the administration of the executive branch of state government." 15 RSMo app. B section 1.4. Department was created in conjunction with OSRA by section 640.010.1. See 15 RSMo app. B section 10; see also Mo. Soybean Ass'n, 102 S.W.3d at 19-20 (discussion of MCWL and Department's and Commission's respective roles).
Section 640.010.1 charges Director with administering the programs assigned to Department relating to environmental control and conservation and management of natural resources. Director's duties include coordinating and supervising all staff and other personnel assigned to Department, as well as executing all policies established by the boards and commissions assigned to it. Section 640.010.1. Director is subject to the decisions and substantive and procedural rules of Department's boards and commissions, and Director's decisions are subject to appeal to those boards or commissions. Id.
When Department was created, Commission was transferred to Department by a "type II transfer." Section 640.010.3. A "type II transfer" is defined by OSRA in pertinent part as:
The transfer of a department, division, agency, board, commission, unit, or program to the new department in its entirety with all the powers, duties, functions, records, personnel, property, matters pending, and all other pertinent vestiges retained by the department, division, agency, board, commission, unit or program transferred subject to supervision by the director of the department.
15 RSMo app. B section 1.7(1)(b).
The neighbor alleged that the position of executive secretary was not filled after OSRA took effect and Department was created. Craven, 19 S.W.3d at 164. Section 1.15(1) of OSRA contemplates potential gaps in authority arising from the reorganization of the executive branch and provides in pertinent part:
Where this act changes titles or eliminates positions, . . . the office as changed or the position assuming the duties of abolished positions . . . shall fulfill all duties, serve in all ex officio capacities and in every way be read into the law as the official or agency named as successor unless otherwise provided by this act.
The neighbor argued that because the executive secretary position was left vacant after Department was created, section 1.15(1) of OSRA and the ensuing practice rendered Department responsible for "taking applications, holding hearings, and issuing permits." Craven, 19 S.W.3d at 164.
The appellate court in Craven disagreed with the neighbor's argument. The court stated that section 1.7(1)(b) of OSRA contradicted the neighbor's claim because that section provides for Commission to retain all transferred personnel and for those persons to be subject to supervision by Director. Craven, 19 S.W.3d at 165. The court asserted it could not fathom how the position of executive secretary of Commission was eliminated or how those duties were transferred to Director. Id. It found that the language of section 1.7(1)(b) "in no way indicates an abolition of any position within Commission subsequent to a type II transfer" to Department and that OSRA and section 640.010 failed to support the neighbor's position. Craven, 19 S.W.3d at 165.
In reaching its conclusion, Craven contrasted the statutory language of Missouri's Air Conservation Law ("MACL"), Chapter 643 RSMo, with MCWL.Craven, 19 S.W.3d at 165. Like Commission, the Air Conservation Commission was transferred to Department by a type II transfer in section 640.010.3. Craven, 19 S.W.3d at 165. Craven noted that RSMo 1986 allowed for the Air Conservation Commission to appoint an executive secretary and for that person to issue permits for the Air Conservation Commission, but the language referencing the executive secretary was amended in 1992, nearly two decades after the implementation of OSRA. Id. ( citing sections 643.040.4, 643.075 RSMo 1986).
Among other changes, the provision for appointment of an executive secretary of the Air Conservation Commission was deleted throughout MACL, and language discussing the issuance of permits referred to Director as opposed to the executive secretary of the Air Conservation Commission. Id. ( citing sections 643.040, 643.075 RSMo (Cum. Supp. 1992)). Craven took special notice of the fact that "there have been several amendments to [MCWL]" since OSRA. Id. "However, the language of Chapter 644 has never been amended in the manner of the amendments to [MACL] in Chapter 643." Id. at 165 n. 4.
Craven admitted that the transfer of the duties of the Air Conservation Commission's executive secretary to Director could have induced the appellate court to imply a similar transfer of duties from Commission's executive secretary to Director. Id. at 165. Because the courts lack the power to "rewrite the statutes for our legislature, regardless of any intent which may be shown by the amendment to [MACL]," and because the language of MCWL still refers to the position of executive secretary of Commission, Craven held that "statutory authority for the issuance of permits continues to be vested" in Commission pursuant to the "unambiguous language" of MCWL. Id. at 165-66.
In considering the holding of Craven as it applies to the instant case, our reading of the statutory language leads us to a different conclusion. We disagree with Craven's reliance on the presence in Chapter 644 of the term executive secretary of Commission to justify its conclusion that the executive secretary retains responsibility for processing permit applications. See id.
Coalition contends in its brief that "for 25 years the executive, legislative, and judicial branches of the government unanimously believed that the legislature had, in 1974, abolished the position of executive secretary" and that the executive secretary appears nowhere in the budget or the appropriations. We take judicial notice of the fact that the state's Official Manual for 1973 and 1974 lists an executive secretary as a member of Commission's personnel, and an executive secretary is also included as a member of the Air Conservation Commission's staff. Official Manual: State of Missouri 1973-1974 802-06 (Thelma P. Goodwin ed., 1974). The next Official Manual was issued in 1975-76, after the implementation of OSRA, and omits any reference to the position of executive secretary for either Commission or the Air Conservation Commission. See Official Manual: State of Missouri 1975-1976 888-90 (Thelma P. Goodwin ed., 1976). A review of the most recent Official Manual also lacks a reference to an executive secretary of either commission, presumably indicating the trend from 1975 forward. See Official Manual: State of Missouri 2001-2002 517-18, 524-25 (Rob Davis ed., 2002). We agree with Coalition that the references to the executive secretary are merely remnants from the pre-OSRA MCWL, and they do not refer to an existing position of Commission.
The 1973-74 manual enumerates the personnel of Commission and the Air Conservation Commission as including a chairman, vice chairman, four or five members, and an executive secretary.
The members listed in 1975-76 for Commission and the Air Conservation Commission include a chairman, vice chairman, four or five members, and a staff director. Neither party argues that the staff director assumed the duties of the executive secretary.
According to the manual, Commission's and Air Conservation Commission's memberships in 2001-02 are identical to their respective memberships in 1975-76.
Furthermore, Craven's reliance on its comparison of MACL to MCWL omits that MACL was substantially revised in 1992 and that, in the course of revamping it, the legislature logically updated the personnel titles to reflect the state of affairs since Department was established. See Chapter 643. In contrast, no comprehensive rewriting of MCWL occurred until after Craven. See Chapter 644 (Cum. Supp. 2002). As such, we find this analogy unpersuasive authority for the proposition that the position of executive secretary of Commission still exists or plays a role in issuing MSOPs.
Because we conclude that the position of executive secretary of Commission was eliminated in the wake of OSRA and the establishment of Department, we must determine who received the executive secretary's authority in accepting permit applications and investigating and issuing permits. Coalition argues, as did the neighbor in Craven, that those duties were transferred to Director in accordance with OSRA. See Craven, 19 S.W.3d at 164.
Coalition asserts that because the executive secretary position was left vacant after Department was created, sections 1.6(2) and 1.15(1) of OSRA indicate that Director assumed the duties of executive secretary following the restructuring of Department. Section 1.6(2) of OSRA provides that "the head of each department is authorized to establish the internal organization of the department and allocate and reallocate duties and functions to promote economic and efficient administration and operation of the department." Section 1.15(1) of OSRA states that where titles or positions were eliminated in the course of restructuring the executive branch, "the office as changed or the position assuming the duties of abolished positions . . . shall fulfill all duties . . . and in every way be read into the law as the official or agency named as successor unless otherwise provided."
Sections 1.6(2) and 1.15(1) of OSRA as applied to Department lead us to conclude that the executive secretary was eliminated and the duties of that position reverted to Director following the reorganization. In addition, Director was the successor to and fulfilled the executive secretary's duties related to issuing permits, which was effected through his subordinates. As such, we respectfully disagree with Craven, and we hold that Director possessed authority to issue the permit modifications to Fort Leonard Wood, and he issued them through his staff.
We next address Coalition's contention that, because Director issued these permit modifications, Commission possessed jurisdiction to hear Coalition's appeal from their issuance or denial. Coalition raises the question of whether a third party to a permit can appeal the outcome of the request for a permit or modification.
Coalition's claim again parallels that of the neighbor in Craven, and it argues that section 640.010.1 permits a third party to a permit to appeal its issuance or denial to Commission. See Craven, 19 S.W.3d at 166. Section 640.010.1 states that Director's decisions "shall be subject to appeal to the board or commission on request of the board or commission or by affected parties."
Prior to Craven, the Western District reviewed, at the request of a third party, the issuance of a construction permit. See State ex rel. Lake Lotawana Dev. Co. v. Mo. Dep't of Natural Res., 752 S.W.2d 497, 497 (Mo.App. 1988). In Lake Lotawana, the lake owner appealed to Commission the issuance of a construction permit by Department to a company making improvements for a neighboring housing development. Id. Commission docketed the lake owner's appeal. Id. Before the docket date arrived, the lake owner filed for an alternative writ of mandamus before the circuit court, and Department subsequently filed a motion to dismiss the lake owner's petition for a writ on the ground that the lake owner failed to exhaust its administrative remedies. Id. After a hearing off the record, the circuit court sustained Department's motion to dismiss the lake owner's writ petition. Id.
In the lake owner's appeal from the circuit court, the Western District stated that the issue was whether the lake owner had an administrative remedy for its complaint. Id. at 497-98. Lake Lotawana held that the trial court was correct in dismissing the lake owner's petition in mandamus because the owner had failed to exhaust its administrative remedies. Id. at 498. The appellate court found that Commission's regulations provide for administrative review of all Department's permit decisions and that no final decision existed for judicial review until Commission rendered a decision in the lake owner's pending administrative appeal. Id. ( citing 10 CSR 20-6.010(5)(D)).
In Craven, the Western District essentially overruled its prior decision in Lake Lotawana insofar as Craven held that third parties could not appeal the issuance or denial of permits, whereas in Lake Lotawana the court dismissed because of a third party's failure to exhaust administrative remedies, namely an appeal before Commission. See Craven, 19 S.W.3d at 166-68; Lake Lotawana, 752 S.W.3d at 498. Lake Lotawana never hinted that Commission might lack jurisdiction of the lake owner's appeal because it was a third party to the permit nor that the state regulations permitting a third party appeal might be invalid. Craven, however, fails to mention or distinguish Lake Lotawana, which occurred approximately 14 years after the reorganization of the executive branch, including the establishment of Department and the abolition of Commission's executive secretary.
As part of Craven's holding that the neighbor lacked the right to appeal the confinement farms' permits to Commission, the court found that 10 CSR 20-6.020.6, which permitted an appeal to Commission by "the applicant, permittee or any other person with an interest which is or may be adversely affected," exceeded the scope of section 644.051.6, which merely allows for an applicant to appeal permit denials to Commission. We find it unnecessary to address this portion of Craven's holding for purposes of the instant case as we rely on the statutes and not the regulations for our holding.
We rely on section 640.010.1 and Lake Lotawana to support our holding that Commission possessed jurisdiction over Coalition's appeal of the permit modifications issued by Director to Fort Leonard Wood. In so holding, we respectfully decline to follow the Western District's decision in Craven.
We next turn to Coalition's second and third points. In its second point, it argues that Commission erred in dismissing its appeal because if Director lacked the statutory authority to issue permits, he had de facto authority. Coalition asserts in its third point that, if we followCraven, we should vacate the dismissal of the appeal and remand with instructions to Commission to vacate the unlawful permit. Because of our holding with respect to Coalition's first point, we find it unnecessary to address its second and third points on appeal.
The judgment of the trial court is reversed. Coalition's appeals of the permit modifications granted to Fort Leonard Wood are remanded to Commission for a hearing on the merits consistent with this opinion.
Clifford H. Ahrens, J., and Booker T. Shaw, J., concur