New law puts future of Fruitland quarry in doubt

Wednesday, July 13, 2011

A bill signed into law Monday by Gov. Jay Nixon has called into question the future of a proposed 76-acre quarry near Fruitland that already faces fierce opposition by residents and the nearby Saxony Lutheran High School.

The law prohibits the state's Department of Natural Resources and the Land Reclamation Commission from issuing a surface mining, water or air quality permit to any person whose mine plan boundary is within 1,000 feet of any property where an accredited school has been for at least five years before application.

The governor's signature threw a hearing Tuesday into disarray in Jefferson City, where attorneys representing both the school and Strack Excavating were set to present evidence on Strack's mining permit application for a new quarry with a proposed mine boundary only 55 feet from the school's property line.

The new law dominated the hearing's focus from the start today, with Saxony lawyer Stephen Jeffery suggesting that the law made the hearing a moot point. Citing the law, Jeffery asked hearing officer Bart Tichenor, who serves in a capacity similar to a judge in such hearings, for an accelerated determination.

"Regardless of what happens on the record at this hearing, the commission is now prohibited from issuing a mining permit to the applicant," Jeffery said.

But Strack's lawyer, Brian McGovern disagreed. He said the law is challengeable in court and that because Strack is already getting a permit, the law could not retroactively be applied to this case.

Tichenor asked Jenny Frazier, an assistant attorney general and the commission's legal counsel, if she could contact the commission to get some guidance about how to proceed. Frazier said she intended to contact the commission to offer her legal opinion and to see if the commission wanted to hold an emergency meeting.

Mike Larsen, staff director with the DNR's Land Reclamation Program said Tuesday afternoon that no emergency meeting would be held, a decision that came after Frazier talked with commission chairman James Dipardo.

Still, in light of the law, Saxony's lawyer rested their case, declining even to proceed with plans Wednesday to call two expert witnesses. That prompted Strack's lawyer to ask the hearing officer for a directed verdict, which is a request for an expedited ruling because they believe Saxony failed to make its case that a quarry presents a danger to health or livelihood. The request also brings the hearing to a halt.

Tichenor said he would review the transcripts and present his recommendation to the commission at its July 28 meeting. He also said he intended to be thorough because he suspected this case could end up in circuit and appellate courts.

After the hearing, McGovern declined to comment to the Southeast Missourian on the record. But Jeffery, Saxony's lawyer, said he disagreed that the quarry could be grandfathered in from the new law just because it had filed for a mining permit before the bill was signed.

"The courts have said just because you have applied for a permit, it doesn't mean you have a vested legal right," Jeffery said. "It's not a retroactive law. Regardless of what the decision is, the new statute places controls over what the Land Reclamation Commission can do."

Abby Petzoldt, who lives near the proposed Strack quarry and serves as spokeswoman for Save Our Children's Health, said she hopes the new law puts the issue to rest and keeps the quarry from ever becoming operational.

"I'm happy that the governor signed it," she said. "I'm excited about what it could mean to Saxony and the area in general. But I'm unsure what it all means at this point. I think a lot of people are. But I think what's happened with the governor definitely helps us."

The hearing was granted to Saxony in February by the commission. Strack already has a general operating permit and an air construction permit for the site. Primary concerns by residents and the school are related to dust, truck traffic and blasting, although McGovern said at the hearing that no substantial scientific evidence was on the record that showed the quarry would be harmful to the school or residents.

Heartland Materials also wants to open a mine near the school on County Road 601.

In February, the Missouri Department of Natural Resources Land Reclamation Commission granted Heartland Materials a permit for a 17-acre mine plan. It included a self-imposed buffer zone of 1,100 feet between mining activity and the school property line, developers said in a January hearing before the commission.

smoyers@semissourian.com

388-3642

Pertinent address:

Jefferson City, Mo

Map of pertinent addresses

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