A judge heard arguments Thursday in a lawsuit challenging a permit granted for a quarry near a Fruitland school.

After attorneys for Saxony Lutheran High School, Strack Excavating and the Missouri Department of Natural Resources made their cases, Judge William Syler took the case under advisement.

The school's case asks the judge to reverse the Missouri Department of Natural Resources' Land Reclamation Commission decision and take away Strack's permit to construct a limestone mine.

Strack's permit was granted in July 2011 after an administrative hearing at which Saxony Lutheran High School presented witnesses to support its claims the mine would be detrimental to the health of its students and staff as well as the livelihood of the school.

As that hearing was in progress, Gov. Jay Nixon signed House Bill 89, which prohibits the DNR's Land Reclamation Commission from issuing a mining permit to an applicant whose mine plan boundary is within 1,000 feet of a school.

Strack's mine plan boundary was 55 feet from the north property line of the school, according to his permit application to the DNR.

Because the legislation was being enacted, Saxony rested its case at the July hearing, the school's attorney, Stephen Jeffery of St. Louis, told the judge.

But in September, the commission approved Strack's permit for a limestone quarry with the condition that the mining plan boundary be 1,000 feet from Saxony's property line.

Jeffery argued Thursday that the Land Reclamation Commission doesn't have the authority to do that.

"There is no language in here that says the commission can impose a condition on a permit," Jeffery said of House Bill 89. "The only option the commission has is not to issue the permit."

Syler asked Jeffery what would happen if he ruled in Saxony's favor and Strack just made another application to the DNR.

"They could still end up with what they wanted, couldn't they?" Syler said.

Jeffery responded by saying that when the statute was enacted, the school felt it had some "breathing room" from the proposed quarry development, but despite the DNR granting the permit conditionally, he doesn't believe the DNR has the authority to enforce the condition.

Jennifer Frazier, deputy chief counsel with the agricultural and environmental division of the Missouri attorney general's office, told Syler she believes the DNR does have both the authority to impose and enforce the condition. In doing so, it effectively moved the mine plan boundary to the north 1,000 feet, and reduced the size of the proposed quarry from 76 acre to 53 acres.

Saxony has not been harmed by the imposition of the condition and has, in fact, benefited, she said.

Brian McGovern of Chesterfield, Mo., who represents Strack Excavating, agreed with Frazier's arguments. He said despite Saxony presenting testimony about how the quarry development would negatively affect the health and safety of its staff and students, the hearing officer concluded the mine would have no effect.

Starting the mine application process over again is not a simple task, he said.

"The applicant has already expended a significant amount of time and funds to get to this point," McGovern said. "We understand this is a condition, and we believe DNR has plenty of enforcement power."

Jeffery responded by saying that it is unfortunate Strack has invested so much time and money, but the school and its students are also entitled to the protection of the 1,000-foot buffer the legislature established.

Neither J.W. Strack nor Saxony representatives were willing to comment following the hearing.

Strack Excavating has been operating at the site for nearly a year, crushing and selling rock, J.W. Strack said previously. His quarry entrance is on U.S. 61, north of the school. The school's entrance is on County Road 601.

The case is scheduled for review before Judge Syler again Nov. 13.

mmiller@semissourian.com

388-3646

Pertinent address:

County Road 601, Fruitland, Mo.