890 P.2d 906 (Okla. 1994), 72235, Toxic Waste Impact Group, Inc. v. Leavitt

Docket Nº:72235.
Citation:890 P.2d 906, 1994 OK 148
Party Name:TOXIC WASTE IMPACT GROUP, INC., a non-profit corporation, Appellee, v. Joan K. LEAVITT, State Commissioner of Health, for the Oklahoma State Department of Health; and Environmental Solutions, Inc., Appellants.
Case Date:December 20, 1994
Court:Supreme Court of Oklahoma

Page 906

890 P.2d 906 (Okla. 1994)

1994 OK 148

TOXIC WASTE IMPACT GROUP, INC., a non-profit corporation, Appellee,


Joan K. LEAVITT, State Commissioner of Health, for the

Oklahoma State Department of Health; and

Environmental Solutions, Inc., Appellants.

No. 72235.

Supreme Court of Oklahoma.

December 20, 1994.

Rehearing Denied March 22, 1995.

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[Copyrighted Material Omitted]

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Appeal from the District Court of Washington County; Janice P. Dreiling, Trial Judge.

Appellant, Environmental Solutions, Inc. (ESI) was granted a construction permit to build a hazardous waste injection well by appellant, the Oklahoma State Department of Health (OSDH). Appellee, Toxic Waste Impact Group, Inc. (TWIG), sought to void the permit and brought a proceeding for judicial review and to stay construction under the permit. In an earlier appeal we reversed the trial court's order voiding the permit and remanded for resolution of remaining issues, if any. On remand the trial court again set aside the permit. HELD: The trial court order is reversed for the reason TWIG to this point in time has failed to show it has standing to obtain judicial review as a person or party aggrieved or adversely affected by the permit. The case is remanded to determine the standing issue.


Jesse L. Sumner, Laughlin, Sumner & Associates, Bartlesville, for appellee.

Robert D. Kellogg, Oklahoma City, for appellant State Com'r of Health and Dept. of Environmental Quality-Successor to the State Health Dept.

Carl Hughes, Oklahoma City, and James L. Kee, Duncan, for appellant Environmental Solutions, Inc.

LAVENDER, Vice Chief Justice:

We reverse the trial court decision in this matter and remand to that court to determine a preeminent issue, whether appellee, Toxic Waste Impact Group, Inc. (TWIG) has standing to challenge a certain permit granted to appellant, Environmental Solutions, Inc. (ESI) by appellant, Oklahoma State Department of Health (OSDH) in a judicial review proceeding under 75 O.S.1981, § 318 of the Oklahoma Administrative Procedures Act, 75 O.S.1981, § 301 et seq., as amended [now 75 O.S.1991, § 250 et seq., as amended].1

ESI was granted a five (5) year permit in 1985 by OSDH to construct a waste injection

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well under the Oklahoma Controlled Industrial Waste Disposal Act (OCIWDA), 63 O.S.1981, § 1-2001 et seq., as amended.2 TWIG, a group of citizens, sought to block construction by voiding the permit. Although taking part in public meetings before OSDH on the matter, TWIG did not request a public hearing, as it would have been allowed to do as a qualified interest group pursuant to 63 O.S.1981, § 1-2006(D). The OCIWDA allowed the opportunity for both public hearings and meetings. § 1-2006(C) and (D). A hearing could be requested by statutorily defined affected property owners (within one mile of the well site) and qualified interest groups (organizations with 25 or more legal residents of Oklahoma) and meetings could be requested by any person residing or doing business in Oklahoma. § 1-2006(A)-(D).

This case has been here previously. In Toxic Waste Impact Group, Inc. v. Leavitt, 755 P.2d 626 (Okla.1988) (TWIG I ), we reversed a trial court order which voided the permit purportedly because no actual notice was given to property owners within one mile of the site and because no public hearing was held. We ruled OSDH's interpretation of a statutory notice requirement, as applying to property owners within one mile of the site meant one mile from the surface site, was proper, rather than one mile from the sub-surface storage area. Id. at 629-630. We also held in that TWIG had not requested a public hearing it had no standing to raise the question of the propriety of the fact no hearing was held on a request by another entity who, although requesting a public hearing, did so after a forty-five (45) day time limit set by OSDH rules. Id. at 631. Initially, we reversed the trial court. 59 O.B.J. 599, 602 (Okla.S.Ct. March 1, 1988). However, on rehearing by TWIG we reversed and remanded for disposition of unresolved issues, if any. 755 P.2d at 631.

One issue open for litigation and determination upon our remand was whether TWIG had standing to appeal the granting of the construction permit under § 318 of the OAPA as a person adversely affected or aggrieved by the granting of the permit, even though it had foregone the opportunity to request a public hearing.3 Section 318 allowed appeals by both parties and persons aggrieved or adversely affected.4

On remand the trial court appeared to assume we decided the standing issue in TWIG's favor by virtue of our modification of our opinion in TWIG I on rehearing, even though we did not indicate such when we changed the opinion to remand the case to the trial court for determination of unresolved issues. The trial court also determined TWIG had party status at the administrative level under the OAPA in that it had taken part in public meetings, held after the time for requesting a public hearing had lapsed. The trial court further found TWIG was aggrieved on the basis the procedures of the OAPA in regard to individual proceedings were not followed, e.g. written order with findings of fact/conclusions of law, including a written finding the proposed site and facility were physically and technically

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suitable for the well.5 The trial court also determined because the OCIWDA provided for notice and opportunity for a public hearing by statute [63 O.S.1981, § 1-2006(B)-(D) ], it did not matter no one timely requested a public hearing; the matter still had to conform to the individual proceeding provisions of the OAPA and granting of the permit was subject to review under the OAPA. In that the trial court found OSDH did not follow the proper procedures under the OAPA she again set aside the permit.

Both OSDH and ESI appealed. The main arguments are TWIG has no standing to obtain judicial review of the granting of the permit under the OAPA and because no timely request for a public hearing was made and one was not held, the permitting process was not even subject to the OAPA, including the individual proceeding provisions thereof and the provision allowing for judicial review.

In that we did not determine the standing issue in TWIG's favor in TWIG I, but that issue was one remaining for trial court determination in the first instance on remand, we must again remand this case to the trial court for resolution of that preeminent issue. In view of our ruling on the standing issue we do not reach the other issues raised in this appeal.6 We provide guidance to the trial court to make the initial standing determination on remand.

We first note that the party invoking a court's jurisdiction has the burden of establishing his or her standing (when contested) to pursue the action in court. Lujan v. Defenders of Wildlife, 504 U.S. 555, ----, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992).7 At a minimum standing contains three elements. In Lujan, the United States Supreme Court explained these three essential elements of standing as follows:

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an "injury in fact"--an invasion of a legally-protected interest which is (a) concrete and particularized, ... and (b) "actual or imminent, not 'conjectural' or 'hypothetical,' ".... Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed

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by a favorable decision." (citations and footnote omitted)

Id. at ----, 112 S.Ct. at 2136, 119 L.Ed.2d at 364.

Our own jurisprudence is similar and has held that, normally, aggrieved status is limited to those persons whose pecuniary interest in the subject matter is directly and injuriously affected or one whose rights in property is either established or divested by the decision appealed. Missouri-Kansas-Texas R. Co. v. State, 712 P.2d 40, 42 (Okla.1985). The adverse affect must be direct, substantial and immediate, rather than contingent on some possible remote consequence or possibility of some unknown future eventuality. Id. at 42-43. The appropriate inquiry on a standing question is whether the plaintiff has in fact suffered injury to a legally protected interest as contemplated by statutory or constitutional provisions. Independent School District No. 9 v. Glass, 639 P.2d 1233, 1237 (Okla.1982). Only if standing exists must the case proceed to the merits [Id. ] for the reason only one whose substantial rights are injuriously affected may appeal from a decision, however erroneous. See National Motor Club of Oklahoma v. State Insurance Board, 393 P.2d 511, 513 (Okla.1964). Finally, standing only determines whether the person is the proper party to seek adjudication of a certain issue; it does not decide the issue itself. Matter of Estate of Doan, 727 P.2d 574, 576 (Okla.1986).

TWIG, by virtue of failing to request a public hearing and by force of our decision in TWIG I, cannot be said to have statutory standing as a qualified interest group. Only if it (or more probably one or more of its members) was in fact aggrieved or adversely affected, as those terms are used in § 318, can it now claim standing to contest the issuance of the permit.

As a qualified interest group entities such as TWIG have been granted statutory standing to contest the granting of a construction permit...

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