Appeal in Strack, Saxony dispute to be heard Thursday

Tuesday, February 5, 2013

Another chapter in the ongoing dispute between a Fruitland limestone quarry and a neighboring high school will be written Thursday in the Missouri Eastern District Court of Appeals in St. Louis.

Strack Excavating LLC and the Missouri Department of Natural Resources Land Reclamation Commission (LRC) are appealing a September decision by Judge William L. Syler in Cape Girardeau County Circuit Court that said the LRC acted outside its authority in granting a permit to the quarrying operation a year before, in September 2011.

A three-judge panel will hear the case Thursday and determine whether the commission had the authority to issue an amended permit that allowed the mine to operate.

Strack has a mining permit on an adjacent site, as well as a land disturbance permit for the contested area. From September 2011 to September 2012, until Syler overturned the commission's permit, mining was allowed in both areas.

As part of the original permitting process, Saxony Lutheran High School, with a property line 55 feet from the proposed quarry's border, said the mine presented a health hazard to students and staff. The school was granted a hearing in July 2011 on Strack's October 2010 permit application.

The day before the weeklong hearing's conclusion, a state law was passed and immediately went into effect that said all mining operation boundaries must be 1,000 feet from schools.

Saxony rested its case, never calling expert witnesses to testify about potential health hazards, believing the law would automatically make permitting impossible, said Stephen G. Jeffery, attorney for Saxony Lutheran High School.

However, the LRC decided to grant the permit with the stipulation that Strack's boundary be pulled back to meet the buffer requirement.

"In other words, the commission moved the boundary on Strack's behalf," Jeffery said. "Up until this point in time, Strack has never, ever submitted any maps or anything to the DNR affirmatively moving their mine plan boundary."

Lacking any kind of modified map, Jeffery said, he considers Strack's boundary unchanged. In its appeal, Saxony contended that the commission had no authority to impose conditions, such as an amended boundary, in any mining permit. Syler agreed and vacated the permit.

Nancy Gonder, spokeswoman for the Missouri attorney general's office, representing the LRC and Strack, said the LRC acted legally.

"The commission's position is that it was authorized by the Legislature to issue the permit with an expanded buffer zone, and that it has statutory authority to impose permit conditions," Gonder said.

Saxony and Save Our Children's Health Inc. were granted standing in a dispute against another mine in the area, Heartland Materials LLC, requiring the LRC to set a public hearing. The LRC is not scheduled to meet again until March.

Messages left Monday for the owner of Strack Excavating were not returned. Saxony's school board president declined to comment, referring questions to Jeffery.


Pertinent address:

County Road 601, Fruitland, Mo.

815 Olive St., St. Louis, Mo.

Map of pertinent addresses

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