Toxic Waste Impact Group, Inc. v. Leavitt, 65334
| Decision Date | 01 March 1988 |
| Docket Number | No. 65334,65334 |
| Citation | 1988 OK 20,755 P.2d 626 |
| Parties | TOXIC WASTE IMPACT GROUP, INC., Appellee, v. Joan K. LEAVITT, State Commissioner of Health, for the Oklahoma State Department of Health; and Environmental Solutions, Inc., Appellants. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Washington County; Janice P. Dreiling, Associate District Judge.
In a hearing on whether a permanent injunction should be issued to stay a construction permit to drill a waste injection well, the district court found the construction permit to be void ab initio because of failure to notify affected property owners and because the Department of Health failed to hold a public hearing as requested by the League of Women Voters.
REVERSED.
Jesse L. Sumner, James H. Laughlin, Bartlesville, for appellee.
Robert D. Kellogg, Oklahoma State Dept. of Health, Oklahoma City, for appellant Dept. of Health.
Holliman, Langholz, Runnels & Dorwart, Frederic Dorwart, J. Michael Medina, William Lane Pennington, Dale J. Gilsinger, Tulsa, for appellant Environmental Solutions, Inc.
The questions we address today are: 1) whether the district court made an error of law by including the sub-surface storage area of an industrial waste injection well in computing the outer perimeter of the disposal site, and 2) whether Toxic Waste Impact Group, Inc. [TWIG] had standing to raise the issue of failure of notice and an opportunity to be heard. We answer the first question affirmatively, the second question negatively, and reverse.
Environmental Solutions, Inc. [ESI] leased a forty acre tract of land located within the 16,000 acre Little Ranch in Washington County for fifty years on February 21, 1984. Additionally, ESI leased all sub-surface storage rights in the Arbuckle formation underlying the Little Ranch in a radius of one mile centered at the location of the first industrial waste injection well to be drilled by ESI. To protect the integrity of the Arbuckle formation, the lease provided that the Littles could not drill, nor permit anyone else to drill, any type of well into this sub-surface area.
ESI applied to the Department of Health for a construction permit to drill the industrial waste injection well. As required by statute, 63 O.S.1981 § 1-2006(A)(1) and (B), personal notice was given to all owners of real property located within one mile of the injection well site, in this case the Littles. Public notification was also given by newspaper and radio broadcasts. Several informal public meetings were held prior to the issuance of the construction permit. No public hearings were held because no affected property owners as defined by the Controlled Industrial Waste Management Act requested a public hearing. One qualified public interest group, the League of Women Voters, requested a public hearing, but their request was not timely filed under Department of Health rules. Neither TWIG nor its members requested a public hearing.
The construction permit was issued on September 1, 1985, and on September 12, TWIG filed a "Petition for Review" in the district court, seeking to prevent construction. The trial court granted ex parte a temporary stay of the Department of Health's permit, which stay was to remain in force until the court ruled on the prayer for a permanent injunction. On October 15, 1985, the district court found the construction permit to be void ab initio because the Department of Health failed to give personal notice to all affected property owners and failed to hold a public hearing at the request of the League of Women Voters; and held therefore, that the Department of Health never acquired jurisdiction to issue the construction permit.
The following diagram illustrates the pertinent details contained in various maps introduced into evidence in the trial court. The diagram is drawn to approximate scale only.
The Controlled Industrial Waste Management Act 1 [Act] confers responsibility for enforcement of the Act on the Oklahoma State Department of Health 2 [Department of Health] and requires the Department to prepare rules, regulations and minimum standards for the disposal of controlled industrial waste, 3 cumulative to the minimum requirements of the Administrative Procedures Act. 4 It is the responsibility of the Department of Health to issue construction permits and operation permits for disposal sites, including injection well sites. 5
The Act requires the applicant for a construction permit to notify all affected property owners. 6 Affected property owners are defined as all real property owners within one mile of the outer perimeter of the proposed site. 7 Here ESI applied for a construction permit for a proposed site consisting of four of the forty acres leased within the 16,000 acre Little Ranch. The only affected property owner within one mile of either the four acre proposed site or the forty acre leased surface area is the owner of the Little Ranch, who was given personal notice as required by the statute. No other property owners were given personal notice.
In an effort to define the outer perimeter of the proposed injection well site as something other than the boundary of the four acres in the construction permit application, TWIG alternatively sought to have the entire 16,000 acre Little Ranch designated as a buffer zone, or to define the one mile radius sub-surface lease as the outer perimeter of the injection well site. Relying on our opinion in Walkingstick v. Board of Adjustment of the City of Tulsa, 706 P.2d 899 (Okl.1985), the district court found the one mile radius of the sub-surface boundary lease to be the outer boundary of the injection well site from which the one-mile notification zone should be measured. One member of TWIG owned real property two miles from the injection well but within one mile of the outer limit of the sub-surface storage area. The court found that failure to give notice to this TWIG member and comply with the requirements of statutory notice deprived the Department of Health of jurisdiction to issue the construction permit and rendered the permit void ab initio.
In Walkingstick, Amoco proposed to drill a hole to test a new type of drilling equipment on their Research Center property. The statute required that notice be given to all property owners within 300 feet of the proposed site. Amoco wanted to measure the 300 foot notification zone from the test hole, rather than from the boundary of the entire 60 acre Research Center property. The statute in question specified that written notice be given "to all owners of property within a three hundred (300) foot radius of the exterior boundary of the subject property." 8 We found that the 300 foot radius notification zone described in the statute should have been measured from the exterior boundary of the property, not from the test hole. Failure to meet the statutory requirements of notice deprives a zoning board of jurisdiction and invalidates its decision to grant a variance. 9
Walkingstick dealt with surface property boundaries, not sub-surface boundaries. In this case, whether the boundary is measured from either the four acre proposed disposal well site or from the perimeter of the entire forty acre surface lease, the only affected property within one mile of the site is the Little Ranch. The Act defines a disposal site as the location where any final disposition of controlled industrial waste occurs and includes, but is not limited to, injection wells and surface disposal sites. 10 Waste disposed by injection well is stored in the sub-surface strata and will eventually percolate to fill the entire formation. Although the legislature was aware of the characteristics of injection well disposal, nowhere in the Act did the legislature include the sub-surface storage area as part of the boundary of the disposal site. Had the legislature intended to include the sub-surface storage area, they could have done so in clear language. It is the duty of a court to give effect to legislative acts, not to amend, repeal or circumvent them, and a court is not justified in ignoring the plain words of a statute. 11 Neither the Supreme Court nor a district court may expand the plain wording of a statute by construction where the legislature has expressed its intention in the statute as enacted. 12 This Court does not sit as a council of revision, empowered to rewrite legislation in accord with its own conception of prudent public policy. 13
In furtherance of its mandate under the Act, the Department of Health, in compliance with the Administrative Procedures Act, published Rule 8.7.3, which provides:
For the purpose of these rules, the area considered to be within one mile of the facility, for determination of affected property owners, shall be determined from the perimeter of the property of the site or facility as applied for in the construction permit application, including any buffer zones. (emphasis added).
ESI's application for this construction permit included only the four acre surface site. The Director of the Controlled Industrial Waste Management Division testified in district court that his longstanding interpretation of the Act and of Rule 8.7.3 was the one mile notification zone would be determined by the surface boundary of the four acre site and no buffer zone is required for an injection well disposal site.
Rules and regulations enacted by administrative agencies pursuant to the powers delegated to them have the force and effect of law 14 and are presumed to be reasonable and valid. 15 The burden of establishing that an administrative rule is not reasonable or valid is on the party complaining of the rule. 16 Great weight is to be accorded the expertise of an administrative agency, and a presumption of validity attaches to the...
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