ELR Citation: ELR 20026
No(s). 64932 (Okla. Jul 17, 1990)

The court rules that the Oklahoma Department of Health's (ODH's) decision to grant a private party a permit to construct and operate a solid waste landfill is not subject to judicial review under the Oklahoma Administrative Procedures Act (OAPA). Owners of land adjacent to the proposed solid waste disposal facility challenged ODH's granting of the permit, claiming that the Oklahoma Solid Waste Management Act (OSWMA), the statute authorizing the permitting process, is unconstitutional because it does not provide adequate notice and opportunity to be heard by those adversely affected by the granting of the permit. The court first finds that the OAPA does not require that all permits issued by a state administrative agency conform to the Act's individual proceeding provisions, making them subject to judicial review. The court holds that although the permit at issue falls under OAPA's definition of license and is subject to provisions concerning individual proceedings, a trial-type hearing prior to issuance of such a permit is required only when mandated by the U.S. or Oklahoma Constitutions or a statute other than the OAPA. Moreover, the court holds that only when an opportunity for a trial-type hearing is so required will an appeal from such an issuance exist under the OAPA's provisions allowing judicial review of final orders. While the OAPA does not mandate that its individual proceeding mechanisms be followed in regard to all agency permit actions, comments surrounding the enactment of the OAPA recognized that such proceedings were to be preceded by notice and opportunity for a hearing if required by another source of law.

The court next holds that no statute authorizes hearings for permitting under the OSWMA. Moreover, the OAPA procedural requirements for agency rulemaking do not mandate individual agency proceedings prior to the granting of every permit. The legislative history reveals that an express requirement for a trial-type hearing was intentionally omitted when the legislature promulgated the OSWMA, even though it had expressly provided such a requirement in the Controlled Industrial Waste Management Act. The court next holds that neither the U.S. nor the Oklahoma Constitution entitles the landowners to an opportunity for a hearing. The mere granting of a permit for a landfill does not invade a legally recognized interest of adjoining landowners. The undesirability of such a facility to its neighbors does not rise to the level of a legal or property right in adjacent landowners sufficient to entitle them to contest the granting of a landfill permit at the administrative level. Moreover, diminishment in property values affords no basis to contest the granting of a permit prior to issuance. The court notes that to rule otherwise would set a dangerous precedent and expand recognized due process concepts to unwarranted limits. The court next holds that granting the permit did not amount to a taking of the landowners' property because the Supreme Court has ruled that diminution of property value alone does not constitute a taking under the U.S. Constitution. The state's action in permitting such facilities is a reasonable exercise of its police power, and the granting of the permit itself does not interfere with the use and enjoyment of the landowners' property in a constitutional sense. To hold otherwise would be to rule that all landfills are nuisances, for which states would be required to compensate because they permitted them in order to protect the public health and environment. The court concludes by noting that the landowners' remedy lies in state law that provides recourse in favor of adjoining landowners who are injured by the operation of a lawful business conducted on neighboring property, not in an action against the state as the permitting agent.

Counsel for Appellants
Paul F. Fernald, Trent W. Keller
Keller, Fernald & Keller
2101 First National Ctr., Oklahoma City OK 73102
(405) 235-6693

Counsel for Appellees
Robert D. Kellogg
Oklahoma State Department of Health
1000 N.E. 10th St., Rm. 1010, P.O. Box 53551, Oklahoma City OK 73152
(405) 271-5600

HARGRAVE, C.J., and SIMMS, DOOLIN, and SUMMERS, JJ., concur.

OPALA, V., C.J., and HODGES, KAUGER, and WILSON, JJ., dissent.