Sharp v. 251st Street Landfill, Inc.
| Decision Date | 01 October 1996 |
| Docket Number | No. 83027,83027 |
| Citation | 925 P.2d 546,1996 OK 109 |
| 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 |
Steven K. Balman, Bond & Balman, Tulsa, for Appellees.
Michael J. Gibbens, LeAnne Burnett, Crowe & Dunlevy, Oklahoma City, for Appellant.
This is the second time this matter has been before us. In the first appeal we affirmed the decision of the trial court to grant a temporary injunction prohibiting construction and operation of a landfill at a location in Okmulgee County. Sharp v. 251st Street Landfill, Inc., 810 P.2d 1270 (Okla.1991), overruled on other grounds DuLaney v. Oklahoma State Department of Health, 868 P.2d 676 (Okla.1993) (Sharp I ). The claim for injunctive relief was brought by appellees--either adjacent or nearby landowners--to enjoin construction and operation of the landfill based on an anticipatory nuisance theory which in turn was anchored on the asserted probability ground and/or surface water sources used by them would likely be polluted by operation of the landfill. 1
After the matter returned to the trial court following the first appeal, appellant, 251st Street Landfill, Inc., made certain changes to its proposed landfill design, which included a leachate 2 collection system and a geomembrane--i.e. plastic--liner, modifications geared toward providing additional protection against the probability of water pollution. The Oklahoma Department of Environmental Quality (DEQ) 3 determined the modifications complied with certain proposed new rules of DEQ concerning solid waste landfills, which determination essentially acted as DEQ's authorization to go forward with construction and operation of the landfill at the designated location. The matter then proceeded to trial. Following trial a decree permanently enjoining construction and operation at the proposed site was entered by the trial court. An appeal by appellant followed and we have retained the matter in this Court.
Two general issues are posed for our review: 1) whether reversible error occurred in the admittance and consideration of testimony from an engineer as expert testimony for appellees and, 2) whether the trial court erred in granting the permanent injunction because his decision was clearly against the weight of the evidence? We hold no reversible error occurred in either acceptance of the expert testimony or in granting the permanent injunction. The decision to permanently enjoin construction and operation of the landfill at the proposed location is, therefore, affirmed.
The rules governing appellate review in regard to injunctive relief are well settled. The award of a permanent injunction is a matter of equitable concern. Jackson v. Williams, 714 P.2d 1017, 1020 (Okla.1985). Granting or denying injunctive relief is generally within the sound discretion of the trial court and a judgment issuing or refusing to issue an injunction will not be disturbed on appeal unless the lower court has abused its discretion or the decision is clearly against the weight of the evidence. Johnson v. Ward, 541 P.2d 182, 188 (Okla.1975); See also O'Laughlin v. City of Fort Gibson, 389 P.2d 506, 509 (Okla.1964) () and City of Moore v. Central Oklahoma Master Conservancy Dist., 441 P.2d 452, 459 (Okla.1968) (). In reviewing the matter, we are not bound by the findings or reasoning of a trial court, but we must consider, examine and weigh all the evidence. Jackson v. Williams, supra, 714 P.2d at 1020; Public Service Co. of Oklahoma v. Home Builders Ass'n of Realtors, Inc., 554 P.2d 1181, 1184 (Okla.1976); City of Moore v. Central Oklahoma Master Conservancy Dist., supra, 441 P.2d at 459. If the facts and law warrant, however, this Court will affirm the judgment or order of the trial court if the correct ultimate conclusion was reached. Id.
We must also keep in mind the following principles in our review. An injunction is an extraordinary remedy that should not be lightly granted. Jackson v. Williams, supra, 714 P.2d at 1020; Amoco Production Co. v. Lindley, 609 P.2d 733, 745 (Okla.1980). Entitlement to injunctive relief must be established in the trial court by clear and convincing evidence and the nature of the complained of injury must not be nominal, theoretical or speculative. Jackson v. Williams, supra, 714 P.2d at 1020; Sunray Oil Co. v. Cortez Oil Co., 188 Okla. 690, 112 P.2d 792, 796 (1941). There must be a reasonable probability that the injury sought to be prevented will be done if no injunction is issued--a mere fear or apprehension of injury will not be sufficient. Id. Further, the decision of DEQ to grant a permit to appellant to construct and operate the landfill at the proposed site comes with a presumption DEQ has properly carried out its duties and responsibilities under the Oklahoma Solid Waste Management Act, 27A O.S.Supp.1995, § 2-10-101 et seq., as amended. Sharp I, 810 P.2d at 1276. However, if it is adequately shown the decision of an administrative agency is inconsistent with legislative intent a court is not bound by such decision and may grant injunctive relief to effectuate the legislative design, assuming, of course, the plaintiff shows entitlement to injunctive relief under traditional equitable principles. Sharp I, 810 P.2d at 1275-1276.
As to rulings concerning qualifications of expert witnesses and the admissibility of testimony of an expert witness, such matters rest in the discretion of the trial court, and a decision on them will not be disturbed unless it clearly appears that discretion has been abused. Jones v. Stemco Manufacturing Co., Inc., 624 P.2d 1044, 1046 (Okla.1981). With these standards in mind we turn to a review of the issues before us--first the expert witness issue and then the more general one as to whether the trial court erred in permanently enjoining construction and operation of the landfill at the particular location.
Appellant claims the trial court erred in admitting and considering part of the expert opinion testimony of Richard N. DeVries. It is argued his testimony concerning landfill design should have been disregarded primarily because of the assertion he lacks knowledge and experience to give an expert opinion on landfill design and he was not qualified to express an opinion on the adequacy of the environmental protection systems embodied in the proposed landfill design. We disagree.
12 O.S.1991, § 2702 of the Oklahoma Evidence Code, 12 O.S.1991, § 2101 et seq., as amended, provides that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise." An examination of the record reveals Richard N. DeVries was qualified to give expert opinions concerning landfill design, the probability of the potential for ground and surface water pollution of appellees' water sources from operation of the landfill and, generally, the adequacy of environmental protections of the proposed landfill design at the proposed landfill site. 4
Richard N. DeVries has both Bachelor and Master of Science Degrees in Civil Engineering from the University of Nebraska. He has a Doctor of Philosophy Degree in Civil Engineering from Utah State University. Dr. DeVries' specialty or discipline within civil engineering is water resource engineering (apparently his Ph.D. work involved this specialty). Water resource engineering includes the study of hydraulics and hydrology. Hydraulics is a branch of science dealing with practical applications, such as the transmission of energy or effect of flow, of liquid--such as water--in motion. WEBSTER'S NEW COLLEGIATE DICTIONARY 555 (1979). Hydrology is a science concerning the properties, distribution and circulation of water on the surface of the land, in the soil, underlying rocks and in the atmosphere. WEBSTER'S NEW COLLEGIATE DICTIONARY 556 (1979). It should also be noted a sub-field of water resource engineering is landfill design.
Dr. DeVries is a registered professional engineer in the states of Oklahoma and Nebraska and a registered land surveyor in the state of Oklahoma. During his education at the University of Nebraska he worked for the City of Lincoln, Nebraska in its engineering department. Upon obtaining his B.S. degree he worked for Northern Natural Gas Company on an underground gas storage project in Redfield, Iowa. He then returned to Lincoln where he managed a sanitary sewer district in Lancaster County, Nebraska. His work there concerned drainage construction in and around Lancaster County.
After receiving his Masters' degree in 1963 he became an assistant professor of civil engineering at the University of Nebraska. In 1969 he became an associate professor of civil engineering at Oklahoma State University. In 1975 he was promoted to full professor, a position which he held for another fourteen (14) years, at which time he retired and took professor emeritus status, a status he maintained at the time of trial. The evidence showed that Dr. DeVries has done consulting work throughout his teaching career, primarily municipal-type engineering and during the six years prior to the trial, environmental-type consulting work.
Dr. DeVries also has considerable experience in the area of remediation of water pollution. He testified to working on a number of cases involving salt water pollution, underground storage tank pollution and oil field...
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