Citizens for Environmental Safety, Inc., Ms. Charimonde Heger, Ms. Marjorie McCune, and Mr. Roy Sprinkle, Petitioners-Appellants, v. Missouri Department of Natural Resources, and David A. Schorr, Director, and Southwest Regional Landfill, Inc., Respondents-Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Citizens for Environmental Safety, Inc., Ms. Charimonde Heger, Ms. Marjorie McCune, and Mr. Roy Sprinkle, Petitioners-Appellants, v. Missouri Department of Natural Resources, and David A. Schorr, Director, and Southwest Regional Landfill, Inc., Respondents-Respondents. Case Number: 22497 Handdown Date: 12/23/1999 Appeal From: Circuit Court of Jasper County, Hon. David R. Munton Counsel for Appellant: not provided Counsel for Respondent: not provided Opinion Summary: None Citation: Opinion Author: not provided Opinion Vote: not provided Opinion:

Pursuant to Missouri Supreme Court Rules 84.17 and 83.02 (1999), Appellants request that we rehear this case or, in the alternative, transfer it to the Supreme Court of Missouri. In support of their motions, Appellants contend, among other things, that while we acknowledged that Farmers and Merchants Bank v. Director of Revenue, 896 S.W.2d 30 (Mo.banc 1995), does not establish an "ironclad rule that a statute is automatically directory rather than mandatory any time 'shall' is used without the inclusion of a sanction for the failure to comply with it," we nonetheless applied Farmers as an ironclad rule in rejecting Appellants' Point III argument. There, Appellants argued that the Missouri Department of Natural Resources ("MDNR") abused its discretion by granting Southwest Regional Landfill, Inc., ("SRL") a permit to construct a landfill because the Region M solid waste management district executive board ("executive board") had not reviewed and commented on SRL's permit application as required by section 260.320.3(1). As recounted in our original

opinion, the trial court made alternative findings regarding the interpretation of section 260.320.3(1), including a finding that the provision was directory rather than mandatory because there was no sanction for the executive board's failing to do that which "shall" be done. In reaching that conclusion, the trial court relied on Farmers. As we stated in our original opinion, we agree with that alternative finding. While we had no intention of abandoning the contextual analysis described in note 5, we did not expressly discuss the contextual considerations that led us to our conclusion in Point III. In the interest of preventing any misinterpretation of our opinion in this case, we briefly address this issue. MDNR has no authority to compel regional executive boards to comply with the terms of section 260.320.3(1). To conclude that any action MDNR takes in the absence of an executive board "review and comment" is invalid would afford the executive boards a great deal of power over MDNR. In essence, a regional executive board--which is comprised of citizens living within the region, section 260.315.4(2)--could preclude MDNR from issuing a permit for construction and operation of a landfill within or adjacent to its region simply by refusing to "review and comment" on permit applications for such landfills. In this manner, MDNR could be rendered powerless over the permit process. While it might be possible to compel the executive boards to comply with section 260.320.3(1) by resorting to judicial processes, we do not believe the legislature intended such an absurd result. Moreover, it would defy logic for Appellants to support any such construction since such a reading would enable regional executive boards to further delay or impede the permit review process by refusing to "review and comment" under section 260.320.3(1). As we stated in the principal opinion, we believe that "the legislature's purpose here, as evident from the language of [section 260.320], is to allow for localized input and planning in the permitting of solid waste processing facilities and disposal areas." (Emphasis added.) At a minimum, it seems that MDNR must afford the regional executive boards an opportunity to review and comment on permit applications. To do otherwise could constitute an abuse of discretion on the part of MDNR. Nevertheless, Appellants do not complain that MDNR somehow deprived the Region M executive board of an opportunity to "review and comment" on SRL's permit application. Rather, they contend that the Region M executive board did not conduct such a "review and comment" in this case and that MDNR abused its discretion by issuing a permit in the absence thereof. Given the context of the legislature's use of the word "shall" in section 260.320.3(1), we do not believe the legislature intended for the provision to be mandatory. We, therefore, conclude that section 260.320.3(1) is directory. As a result, MDNR did not abuse its discretion by issuing a permit to SRL even though the Region M solid waste management district executive board did not "review and comment" on SRL's permit application. Appellants' motions for rehearing and, in the alternative, transfer are denied. Separate Opinion:

interpretation, that the term "shall" as used in section 260.320.3 is directory rather than mandatory for the same reasons referred to in my earlier Dissenting Opinion. It does appear to me, however, that the use of the word "shall" in that section is directed to the executive board of the solid waste management council rather than as it may affect the MDNR's actions. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.