Sharp v. 251st Street Landfill, Inc.

• Decision Date: 23 April 1991
• Docket Number: No. 66105,66105
• Citation: 810 P.2d 1270,1991 OK 41
• Parties: Jack SHARP, Jr., Bert Miles, Glen Harris, Jack Long, Jerry Hill and Allen Louvier, Appellees, v. 251ST STREET LANDFILL, INC., an Oklahoma Corporation, Appellant.
• Court: Oklahoma Supreme Court

Page 1270

810 P.2d 1270

1991 OK 41

Jack SHARP, Jr., Bert Miles, Glen Harris, Jack Long, Jerry Hill and Allen Louvier, Appellees, v. 251ST STREET LANDFILL, INC., an Oklahoma Corporation, Appellant.

No. 66105.

Supreme Court of Oklahoma.

April 23, 1991.

Certiorari to the Court of Appeals, Division III Appeal From District Court of Okmulgee County; John Maley, Trial Judge.

Appellees brought a proceeding challenging the decision of the Oklahoma Department of Health (ODH) in granting a permit to Appellant, 251st Street Landfill, Inc. to construct and operate a solid waste disposal facility. ODH was dismissed on its motion and no appeal was taken therefrom. The matter proceeded as an injunctive anticipatory nuisance action against Appellant, primarily based on the probability of groundwater pollution. After hearing, a temporary injunction issued. The Court of Appeals in a 2-1 decision reversed, essentially ruling the matter should have proceeded as an administrative appeal only and granting the injunction was an abuse of discretion because it amounted to an improper substitution of the trial court's judgment for that of ODH. Held: The matter was not one subject to an administrative appeal and it was proper to hear the application for a temporary injunction. The trial court did not err in granting the temporary injunction. We further find no reversible error in the trial court's treatment of a substitution of party plaintiffs or in setting the temporary injunction bond.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

Richard R. Hutton, Edmond, Steven K. Balman, Tulsa, for appellees.

William W. Gorden, Jr., Oklahoma City, John William Barksdale, Okmulgee, for appellant.

LAVENDER, Justice.

We decide here: 1) whether the granting of a permit by the Oklahoma Department of Health (ODH) to Appellant, the 251st Street Landfill, Inc. to construct and operate a solid waste disposal facility was subject to review under the Oklahoma Administrative Procedures Act (OAPA), 75 O.S.1981, § 301 et seq., as amended [now § 250 et seq.]; 2) whether the Oklahoma Solid Waste Management Act (OSWMA), 63 O.S.1981, § 2251 et seq., as amended, ¹ preempted a common law anticipatory nuisance action for injunctive relief; 3) whether granting a temporary injunction enjoining construction and operation was proper; 4) whether a substitution of party plaintiffs via an amended petition constituted error requiring reversal; 5) whether the trial court erred in setting the amount of the temporary injunction bond?

We hold the permit issuance was not subject to review under the OAPA and the OSWMA did not preempt a common law anticipatory nuisance action. Further, granting the temporary injunction was warranted. We also find no error in the handling of the substitution of party plaintiffs warranting reversal and the temporary injunction bond set was appropriate.

This matter was initiated by the Okmulgee County Toxic Waste Information Group, Inc. (the Group), a group of area residents and landowners, against Joan K. Leavitt (hereafter ODH), Commissioner of ODH and Appellant as a challenge to the granting of a solid waste landfill permit issued to Appellant by ODH under the OSWMA. The Group sought judicial review of the permit and alleged its members were adversely affected by its granting. ODH moved to dismiss, arguing granting of the permit was not subject to review under the OAPA and the proper course was to proceed directly against Appellant in an injunctive action. The trial court dismissed ODH and no appeal was taken therefrom.

After ODH's dismissal an amended petition was filed solely against Appellant, wherein certain individual area residents and landowners were named plaintiffs. Appellees' claim was primarily based on the probability of pollution to groundwater used for domestic and agricultural purposes they assert would likely be caused by operation of the landfill. The Group was not named in the amended petition, but the petition indicated Appellees were representing the interests of other landowners in the area. A hearing was held, after which a temporary injunction issued. Under 12 O.S.1981, § 1392, a bond of $25,000.00 was set to secure Appellant for any damages it might sustain if finally decided the injunction should not have been granted.

By a 2-1 vote the Court of Appeals reversed, essentially ruling the matter should have proceeded as an administrative appeal on the record from a final decision of an administrative agency under the OAPA. It found error in dismissal of ODH (even though the dismissal was never appealed and neither Appellant or Appellees directly raised the issue) and determined because the matter should have been limited to review under the OAPA, the trial court erred in accepting evidence outside the administrative record. Further, it determined the trial court erred by substituting its judgment for that of ODH. Finally, it decided because no administrative record was before the trial court no error could be found in ODH's decision to grant the permit under the review standards set out in 75 O.S.1981, § 322 of the OAPA. Appellees filed a petition for certiorari, which we previously granted.

I. GRANTING OF THE PERMIT WAS NOT SUBJECT TO THE STRICTURES

OF THE OKLAHOMA ADMINISTRATIVE PROCEDURES ACT.

In Stewart v. Rood, 796 P.2d 321 (Okla.1990), where a permit granted by ODH under the OSWMA was challenged, we, in part, determined judicial review under 75 O.S.1981, § 318 of the OAPA was available only when an opportunity for individual proceedings (i.e. trial-type proceedings as those envisioned by 75 O.S.1981, §§ 309-317 of the OAPA) are required prior to the granting of a permit. Id. at 328. We held the Legislature did not intend for individual proceedings to be conducted prior to the granting of such a permit and no constitutional source existed for the involved challengers (adjacent landowners to a proposed landfill) requiring such proceedings prior to issuance. Id. at 329-335. Our rationale there is dispositive of the view the trial court erred because he did not limit himself to reviewing the matter under the OAPA. No opportunity was statutorily or constitutionally required for an individual proceeding involving Appellees to be conducted by ODH prior to granting the permit. Granting of the permit was, thus, not subject to review under the OAPA.

II. A LANDFILL PERMITTED BY ODH MAY BE ENJOINED

Appellant argues ODH's decision to permit the landfill and supervise it under the OSWMA is exclusive in the absence of some showing agency action was unconstitutional or void. Although not expressly, it asserts a common law anticipatory nuisance action was preempted by the OSWMA unless unconstitutional or void action was shown. It also argues, apparently alternatively, the agency decision to permit had to be shown to be either arbitrary or unreasonable for injunctive relief to issue. Finally, it posits even assuming injunctive relief would otherwise be appropriate these Appellees failed to prove entitlement to it under recognized equitable principles. ² We reject Appellant's assertion the Legislature intended to preempt an anticipatory nuisance action. Although caution must be exercised where an administrative agency has given its approval to an activity of this sort injunctive relief is appropriate in certain circumstances.

II(A). THE OSWMA DOES NOT PREEMPT AN INJUNCTIVE ACTION

63 O.S.1981, § 2252 details the purposes of the OSWMA. They are to regulate the collection and disposal of solid wastes in a manner that will 1) protect the public health, safety and welfare; 2) prevent water and air pollution; 3) prevent the spread of disease and the creation of nuisances; 4) conserve valuable land and other natural resources; 5) enhance the beauty and quality of the environment; and 6) encourage recycling of solid waste. ³ These purposes express legislative intent to prevent landfills from becoming nuisances and to prevent their operation from creating water pollution. ⁴ Nowhere in the OSWMA is an express legislative statement to preempt common law actions for equitable relief. To the contrary, certain provisions of the OSWMA and two other acts relating to the control of water pollution convince us no such preemption was intended.

The Legislature has given broad authority to ODH in the OSWMA to govern solid waste disposal and to control sanitary landfills. However, the OSWMA expressly provides for involvement of local governing bodies and the courts in the decision-making process. 63 O.S.1981, § 2260 [now 63 O.S.Supp.1990, § 1-2418], after spelling out the powers and duties of ODH (including the power to issue permits), contains the following provision:

Notwithstanding the foregoing provisions of this section, any local governing body may by ordinance or resolution adopt standards for the location, design, construction, and maintenance of solid wastes disposal sites and facilities more restrictive than those adopted by [ODH] under the provisions of this act. (emphasis added)

The provision, in plain terms, expresses an intent to allow such bodies the ability to adopt stricter standards than ODH as to location, design, construction and maintenance. Although no standards of a local governing body are involved here and the provision does not indicate intent to preserve traditional common law remedies, it expresses a view the standards of ODH are minimum standards and the Legislature did not envision ODH as having exclusive control of waste management activities in Oklahoma.

Another provision indicating the non-exclusivity of ODH control is a provision establishing a court action for loss of value damages and injunction for owners of land with occupied residences within a certain distance of the proposed landfill. 63 O.S.Supp.1985, § 2258 [now 63 O.S.Supp.1990, § 1-2414(B) ]. In the injunction action the court is given authority by the Legislature to balance the negative impact to...