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Valley Park Properties, LLC v. Missouri Department of Natural Resources

Court of Appeals of Missouri, Eastern District, Fourth Division

July 2, 2019


          Appeal from the Missouri Administrative Hearing Commission

          KURT S. ODENWALD, Presiding Judge.


         Valley Park Properties, LLC ("Valley Park") appeals from the order by the Administrative Hearing Commission (the "Commission") dismissing Valley Park's appeal of the renewal of a permit allowing water discharge onto Valley Park's property. The Commission dismissed Valley Park's permit appeal as untimely filed. On appeal, Valley Park challenges the Commission's dismissal, claiming that it timely appealed the permit issued to St. Louis Composting, Inc. ("St. Louis Composting") by the Missouri Department of Natural Resources (the "DNR") within thirty-two days of the issuance of the permit. Specifically, Valley Park posits that although Section 621.250.2[1] provides only thirty days to appeal from a permit issuance, 10 C.S.R. 20-6.020[2] allows aggrieved parties an additional three days to file an appeal if the permit was mailed. Because 10 C.S.R. 20-6.020 is not in conflict with Section 621.250.2, and because Valley Park timely appealed the issuance of the water-discharge permit within the thirty-three days prescribed by law, the Commission's dismissal of Valley Park's permit appeal erroneously interpreted and applied the law. Further, on remand, we direct the Commission to consider Valley Park's outstanding motion for attorneys' fees. Accordingly, we reverse the Commission's decision and remand for further proceedings.

         Factual and Procedural History

         St. Louis Composting operates a composting facility. Valley Park owns property immediately west of St. Louis Composting's facility. In 2017, St. Louis Composting applied for a renewal of its permit from the DNR. The permit allows St. Louis Composting to discharge processed wastewater and storm-water runoff in accordance with the effluent limitations and monitoring requirements, as authorized by the Missouri Clean Water Law. See Sections 644.006-.200; Federal Water Pollution Control Act Pub. L. No. 92-500, 86 Stat. 816.

         In the application, St. Louis Composting detailed two outfalls for its facility-Outfall 001 and Outfall 002. Each of these outfalls was described as discharging into a "private lake." On August 27, 2018, the DNR issued St. Louis Composting a permit subject to St. Louis Composting's continued compliance with applicable reporting rules and certain permit conditions. In the cover letter, the DNR mentioned:

If you were adversely affected by this decision, you may be entitled to an appeal before the [Commission] pursuant to 10 C.S.R. 20-1.020 and Sections 644.051.6 and 621.250[.] To appeal, you must file a petition with the [Commission] within thirty days after the date this decision was mailed or the date it was delivered, whichever date was earlier.

         Within the permit, the DNR ascribes certain conditions for operation:

Compliance with all requirements in this permit does not supersede nor remove liability for compliance with other state, city, county, or local ordinances. It is the responsibility of the permittee to know whether or not there are additional ordinances applying to their operation.
The [DNR] must give public notice of a pending permit or of a new or reissued Missouri State Operating Permit. The public comment period is a length of time not less than thirty (30) days following the date of the public notice, during which interested persons may submit written comments about the proposed permit. . . . The Public Notice period for this operating permit began June 22, 2018, and ended July 23, 2018. No comments were received.
[Issuance of the Permit does not convey] any property rights of any sort, or exclusive privilege.[3]

         The DNR mailed the permit decision to St. Louis Composting.

         On September 28, 2018, Valley Park appealed the permit issuance as an adversely affected party. Valley Park claimed that the "private lake" referred to in the permit application is a depressed area of land situated on Valley Park's property. Valley Park further asserted that St. Louis Composting did not seek or receive authorization from Valley Park to discharge water onto Valley Park's property. On October 31, 2018, St. Louis Composting moved to intervene in Valley Park's appeal. Intervention was granted by the Commission on November 1, 2018. The DNR moved to dismiss Valley Park's appeal on the grounds that the appeal was untimely filed. The Commission granted the dismissal, finding Valley Park filed its appeal two days after the period for filing permit appeals had expired. Valley Park now appeals.

         Point on Appeal

         In its sole point on appeal, Valley Park argues that the Commission erred in dismissing its permit appeal as untimely filed because 10 C.S.R. 20-6.020 provided Valley Park an additional three days beyond the thirty-day limit established in Section 621.250.2 to file its challenge to the issuance of the permit; thus, Valley Park's appeal was timely.

         Standard of Review

         In reviewing the decision of an administrative agency, we review any questions of law and statutory interpretations de novo. Mo. Coal. for the Env't v. Herrmann, 142 S.W.3d 700, 701 (Mo. banc 2004) (per curiam); see Mo. Const. art. V, sec. 18; Section 536.140. We "must correct erroneous interpretations of law." HTH Cos., Inc. v. Mo. Dep't of Labor & Indus. Relations, 154 S.W.3d 358, 361 (Mo. App. E.D. 2004).


         Valley Park posits that 10 C.S.R. 20-6.020(6)(C) provides three additional days "for appeals of conditions in issued permits when the service of notice is accomplished by mail." Because the DNR noticed St. Louis Composting's permit via standard mail, Valley Park maintains that its appeal of the water-discharge permit, filed within thirty-two days after the DNR issued the permit, was timely. The DNR and St. Louis Composting counter that Section 621.250.2 mandates that any aggrieved party file the appeal within thirty days of the permit's issuance. This appeal raises the question of law whether the rule and statute are in conflict and, if so, which one governs the appeal process.

         I. Administrative Rule-Making Procedures

         Missouri permits administrative agencies to adopt rules and regulations, pursuant to and in conjunction with existing statutes. See, e.g., Sections 644.026(1), .026(8), .121. The Missouri Clean Water Commission (the "CWC") "is the administrative agency charged with administering, enforcing and promoting the goals of" the Missouri Clean Water Law. Curdt v. Mo. Clean Water Comm'n, 586 S.W.2d 58, 60 (Mo. App. E.D. 1979) (citing Sections 204.021, .026 RSMo (Cum. Supp. 1973)). The Missouri Clean Water Law was enacted to ensure high water ...

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