Missouri Court of Appeals
Southern District
Division Two
STATE OF MISSOURI ex rel. )
CHRIS KOSTER, Attorney General, )
and MISSOURI DEPARTMENT OF )
NATURAL RESOURCES, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD33291
)
FRANKIE L. SCHWARTZ, d/b/a ) Filed May 29, 2015
SCHWARTZ AUTO SALVAGE, )
)
Defendant-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY
Honorable Sidney T. Pearson III, Circuit Judge
REVERSED AND REMANDED WITH DIRECTIONS
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
1
The State brought this action at the relation of the Attorney General, DNR, and the Missouri Clean Water
Commission.
2
All statutory references are to RSMo Cum.Supp. 2013.
1
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 fissure,
The Commission, for the purposes of the Missouri Clean Water Law, sections 644.006 to 644.141, is an agency
whose domicile is “deemed to be that of the department of natural resources.” Section 644.021.1.
2
container, rolling stock, concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged. Point source does
not include agricultural storm water discharges and return flows from irrigated
agriculture. "Water contaminant source”, the point or points of discharge from a
single tract of property on which is located any installation, operation or condition
which includes any point source defined in sections 644.006 to 644.141 and
nonpoint source pursuant to any federal water pollution control act, which causes
or permits a water contaminant therefrom to enter waters of the state either
directly or indirectly.
5. Since the statute contains a specific definition of these terms, the Court
does not have to resort to consulting the Code of Regulations to determine what
these terms mean, or whether the facility is subject to standards, rules or
regulations promulgated pursuant to the provisions of sections 644.006 to
644.141, RSMo.
6. That no evidence was adduced during the course of the two hearings[ 3]
in this matter that indicated that there was any "point source" or "water
contaminant source", as defined in the statute, located on the premises of
[Schwartz’s] facility.
7. The Department of Natural Resources is authorized, pursuant to
Section 644.076.1, RSMo, to seek injunctive relief if the Missouri Clean Water
Act ". . . is being, was, or is in imminent danger of being violated . . .". That no
evidence was adduced during the course of the two hearings in this matter that
indicated that there was an existing violation, a past violation, or an imminent
danger of violation, of the Act.
The State timely appeals, claiming in its sole point relied on that
[t]he trial court erred in denying the State’s claim for injunctive relief and in
entering its judgment in favor of [Schwartz], because the trial court erroneously
applied and declared the law in concluding that [Schwartz] is not required to have
a storm water permit for his auto salvage facility, in that Regulation 10 CSR 20-
6.200, which is within the permitting authority delegated to the State of Missouri
by the EPA and is within the authority of the Missouri Clean Water Commission
to promulgate regulations, requires that owners of auto salvage facilities obtain a
storm water permit, and [Schwartz] should be enjoined from violating the
regulation and required to pay a penalty for failing to comply.[ 4]
3
The State filed an Application for Preliminary Injunction that was heard and denied following a hearing seven
months before the trial on the State’s petition. At the commencement of the trial on the State’s petition, the parties
agreed that the evidence produced at the hearing on the Application for Preliminary Injunction could be considered
by the trial court as evidence in the trial.
4
Schwartz did not file a respondent’s brief. “A respondent is not required to file a brief, but without one, we must
adjudicate the claim of error without benefit of whatever argument the respondent might have presented.” N.L.P. v.
C.G.W., 415 S.W.3d 800, 802 n.2 (Mo.App. 2013) (internal quotation marks and citations omitted).
3
Standard of Review
As this was a court-tried matter, “the decision of the trial court must be affirmed unless
there is no substantial evidence to support it, unless it is against the weight of the evidence, or
unless it erroneously declares or applies the law.” Marre v. Reed, 775 S.W.2d 951, 952 (Mo.
banc 1989). This Court gives the trial court deference regarding factual findings but reviews
legal determinations de novo. See Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012).
Discussion
The trial court relied upon and applied section 644.051.2 to conclude that Schwartz was
not required to apply for and obtain a storm water permit from DNR. That statute, however, by
its express terms, as noted in paragraph 3 of the trial court’s judgment, applies to actions taken
without an “operating permit.” 5 It expresses no applicability as to whether Schwartz was
required to obtain a “storm water permit.” 6 The trial court’s reliance upon this statute, therefore,
to determine that Schwartz was not required by law to obtain a “storm water permit” was a
misapplication of section 644.051 and, accordingly, a misapplication of law. 7
5
Operating permits are regulated by the Commission under 10 CSR 20-6.010.
6
Section 644.051.2 provides
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. However, no operating permit shall be
required of any person for any emission into publicly owned treatment facilities or into
publicly owned sewer systems tributary to publicly owned treatment works.
(Emphasis added).
7
In fairness to the trial court, while the State’s petition and oral argument in the trial court were minimally sufficient
to present the relevant legal issues to the trial court and preserve them for appellate review, neither was a model of
clarity.
4
Section 644.026.1(8) confers upon the Commission the power to
[a]dopt, amend, promulgate, or repeal after due notice and hearing rules and
regulations to enforce, implement, and effectuate the powers and duties of
sections 644.006 to 644.141 and any required of this state by any federal water
pollution control act, and as the commission may deem necessary to prevent,
control and abate existing or potential pollution. . . .
(Emphasis added). In accordance with that authority, the Commission promulgated 10 CSR 20-
6.200 for the purpose of setting “forth the requirements and process of application for permits for
storm water discharges and the terms and conditions for the permits.” 10 CSR 20-6.200
(Purpose). Subsection (2) of that regulation defines storm water discharge associated with
industrial activity, and 10 CSR 20-6.200(2)(B)3C expressly includes “[f]acilities involved in the
recycling of materials including metal scrap yards, battery re-claimers, salvage yards, and
automobile junk yards” within that subsection as a discharger of storm water associated with
industrial activity. 10 CSR 20-6.200(2)(C)1 requires “dischargers of storm water associated with
industrial activity” to “apply for an individual permit or seek coverage under a promulgated
storm water general permit.” As an individual operating an auto salvage business, as found by
the trial court, Schwartz fell within the application of 10 CSR 20-6.200(2) and was required by
its terms to apply for a storm water permit. The trial court’s failure to apply 10 CSR 20-6.200(2)
was a misapplication of law.
Paragraph 7 of the trial court’s judgment accurately recites the portion of section 644.076
related to alleged violations of the Missouri Clean Water Act. The trial court’s reliance on that
part of the statute to deny the State relief, however, was misplaced and a misapplication of law.
As relevant here and to the application of 10 CSR 20-6.200(2) to Schwartz, section 644.076.1
provides, in part:
In the event the commission or the director determines that any provision of
sections 644.006 to 644.141 or standard, rules, limitations or regulations
promulgated pursuant thereto, or permits issued by, or any final abatement order,
5
other order, or determination made by the commission or the director, or any
filing requirement pursuant to sections 644.006 to 644.141 or any other provision
which this state is required to enforce pursuant to any federal water pollution
control act, is being, was, or is in imminent danger of being violated, the
commission or director may cause to have instituted a civil action in any court of
competent jurisdiction for the injunctive relief to prevent any such violation or
further violation or for the assessment of a penalty not to exceed ten thousand
dollars per day for each day, or part thereof, the violation occurred and continues
to occur, or both, as the court deems proper. . . .
(Emphasis added). As previously noted, the Commission promulgated 10 CSR 20-6.200
pursuant to section 644.026. The enforcement of this regulation by the State by injunction or
civil penalty, therefore, falls within the parameters of section 644.076.1. The State’s point is
granted.
Decision
The trial court’s judgment is reversed, and the case is remanded to the trial court with
directions to enter judgment in favor of the State and against Schwartz, with an appropriate
remedy or remedies as provided in section 644.076, consistent with this opinion.
GARY W. LYNCH, J. – Opinion author
MARY W. SHEFFIELD, P.J. – concurs
NANCY STEFFEN RAHMEYER, J. – concurs
6