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State ex rel. Koster v. Schwartz

Court of Appeals of Missouri, Southern District, Second Division

May 29, 2015

STATE OF MISSOURI ex rel. CHRIS KOSTER, Attorney General, and MISSOURI DEPARTMENT OF NATURAL RESOURCES, Plaintiff-Appellant,
v.
FRANKIE L. SCHWARTZ, d/b/a SCHWARTZ AUTO SALVAGE, Defendant-Respondent

APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY. Honorable Sidney T. Pearson III, Circuit Judge.

For Appellant: Chris Koster, Attorney General, and Timothy A. Blackwell, Assistant Attorney General, Jefferson City, Missouri.

No respondent's brief filed.

GARY W. LYNCH, J. -- Opinion author. MARY W. SHEFFIELD, P.J. -- concurs. NANCY STEFFEN RAHMEYER, J. -- concurs.

OPINION

GARY W. LYNCH, J.

Page 886

The State of Missouri (" the State" ) appeals the trial court's judgment denying its claim for injunctive relief and a civil penalty against Frankie L. Schwartz for operating an auto salvage facility without a storm water permit from the Missouri Department of Natural Resources (" DNR" ).[1] The State contends the trial court misapplied section 644.051.2 and failed to apply 10 CSR 20-6.200, as promulgated by the Missouri Clean Water Commission (" Commission" ).[2] We agree, reverse the judgment, and remand the case to the trial court with directions to enter a judgment in favor of the State.

Factual and Procedural Background

Schwartz operates an auto salvage facility, Schwartz Auto Salvage, in Salem, Dent County, Missouri. He has never obtained a storm water permit from DNR to operate the facility.

In 2009, DNR received a complaint and inspected the facility. Thereafter, the inspector sent a letter to Schwartz allowing him thirty days to file an application for a storm water permit. Schwartz did not respond. DNR then issued a notice of violation to Schwartz for operating the facility without a storm water permit but allowed him another ten days to submit a permit application and the $150 permit fee. Schwartz did not respond.

The State filed an action for injunctive relief and civil penalties in the Circuit Court of Dent County, asserting, among other alleged violations, that Schwartz violated the Commission's regulation at 10 CSR 20-6.200 by operating the auto salvage yard without a storm water permit.

Following a bench trial, the trial court issued its judgment denying the State's request for injunctive relief and civil penalty. The trial court found that Schwartz " operates an auto salvage business . . . and has neither applied for nor received a general stormwater [sic] permit for that facility." The trial court then made the following conclusions of law:

3. That Section 644.051.2, RSMo states: It shall be unlawful for any person to operate, use or maintain any water contaminant or point source in this state that is subject to standards, rules or regulations promulgated pursuant to the provisions of sections 644.006 to 644.141 unless such person holds an operating permit from the commission, subject to such exceptions as the commission may prescribe by rule or regulation.
4. That Section 644.016 (16) and (25) contain the following definitions: " Point source" , any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete ...

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