Circuit court rules mining permit can be challenged

Operations will continue at a quarry near Saxony Lutheran High School until a Cole County Circuit Court-ordered hearing is held by the state on the quarry's permit request.

Judge Daniel Green's order granted summary judgment in the case in favor of Saxony and Save Our Children's Health Inc. The order requires the Missouri Department of Natural Resources' Land Reclamation Commission to conduct a formal public hearing on Heartland Materials' request to operate a 161-acre mine adjacent to the school off County Road 601 near Fruitland.

Quarry opponents had also asked the judge to take away the mining permit the DNR issued to Heartland in February, but the judge declined to do so in his judgment issued Friday.

"It's not as complete as we'd hoped for," Jim Maevers, chair of the Saxony board of regents, said of the judge's ruling. "We'd hoped the permit would be vacated and they'd have to start the process all over again."

Work at the Heartland Materials site is ongoing, with about 17 employees working there Tuesday, said Danny Dumey, spokesman for Heartland Materials. Next week, he expected the number of workers to increase to about 25 people.

Saxony Lutheran High School sits just beyond crews moving dirt Tuesday at the Heartland Materials site in Fruitland, Mo. (Laura Simon)

"We're comfortable with the decision and we're moving forward," Dumey said.

A spokeswoman for the Missouri Department of Natural Resources said the department respects the decision and jurisdiction of the courts.

"The attorney general's office provides legal support to the Land Reclamation Commission. Therefore, they are currently reviewing the court's decision. The department will continue to work with the Land Reclamation Commission as they work through this case," said Renee Bungart, director of communications for the DNR.

A charter bus load of Saxony students, parents and Fruitland residents went to Jefferson City, Mo., in January to ask the Land Reclamation Commission to conduct an evidentiary hearing on whether permits should be issued to two companies seeking to operate limestone quarries near the school: Strack Excavating and Heartland Materials.

In February, the Land Reclamation Commission granted Saxony a hearing on the Strack application, which was held in July. It approved the application by Heartland Materials at the same meeting. The Heartland Materials request included a buffer zone of more than 1,000 feet, while Strack's request indicated only a 55-foot buffer.

Strack Excavating was issued a permit in September by the Land Reclamation Commission for its 76-acre mine. Saxony is appealing this permit in Cape Girardeau County Circuit Court. A case review is scheduled with Judge William Syler on Feb. 14 in Cape Girardeau.

This fall, since both quarries began operations near the school, Maevers said there has been more traffic on the road in front of the school and more noise as workers operate earthmoving equipment and tractors at the quarry sites.

He said the judge's decision gives them a boost as they continue doggedly fighting these quarry developments.

"For me, and for the board, we look at the legacy that we'll have. We want to make sure we do everything possible to protect the safety, health and livelihood of the students and the school itself," Maevers said. "We don't want to look back five years from now and say we should have done this or we should have done that. We want to do the best we can at this point and time."

Now Saxony should have the opportunity to present evidence before an independent hearing officer explaining how the school feels the Heartland quarry will affect its health, safety and livelihood, something Maevers believes it should have been granted back in February.

"It's just unfortunate that it took us this effort and time to get that ruling," he said.

In his decision, judge Green said the Land Reclamation Commission's February decision not to grant a formal public hearing on the Heartland permit request was "unlawful and an abuse of its discretion." He also called this decision "arbitrary, capricious, unreasonable and not substantially justified."

Because the judge ruled in favor of the school, state law allows Saxony to pursue a claim for its legal fees and costs against the state, said attorney Stephen Jeffery of Clayton, Mo., who represents both Saxony and Save Our Children's Health Inc.

Maevers said at this time he did not know specifically what these fees and costs totaled.

mmiller@semissourian.com

388-3646

Pertinent address:

County Road 601, Cape Girardeau, Mo.