Opinion No. (1991) Ag ( 1991 )

THE ATTORNEY GENERAL HAS RECEIVED YOUR REQUESTS FOR AN OPINION ADDRESSI NG THE APPLICABILITY OF THE 1990 PROCEDURAL AMENDMENTS TO OKLAHOMA'S SOLID WASTE MANAGEMENT ACT (OSWMA) TO THE SOLID WASTE PERMIT APPLICATION OF HALLCO ENVIRONMENTAL, INC. (HALLCO). THE ATTORNEY GENERAL HAS ASKED THAT I RESPOND TO YOUR REQUESTS. IN THE COURSE OF RESEARCHING THIS QUESTION, T HE ATTORNEY GENERAL'S OFFICE HAS RECEIVED A GREAT DEAL OF INPUT FROM THE HEALTH DEPARTMENT, REPRESENTATIVES OF HALLCO, AND REPRESENTATIVES OF THE OPPONENTS OF THE HALLCO APPLICATION. WEEKS HAVE BEEN SPENT ATTEMPTING TO UNTANGLE THE FACTUAL BACKGROUND GIVING RISE TO YOUR REQUESTS AND STRIVING TO ASCERTAIN THE PRECISE FACTS TO WHICH THE LAW MUST BE APPLIED. AFTER THIS RESEARCH AND INVESTIGATION, IT HAS BECOME APPARENT THAT IT WOULD BE INAPPROPRIATE FOR THIS OFFICE TO ISSUE AN OPINION REGARDING THE APPLICABILITY OF THE 1990 OSWMA AMENDMENTS TO THE HALLCO APPLICATION. WE MUST DECLINE TO ANSWER YOUR REQUESTS BECAUSE THE ISSUANCE OF AN OPINION WOULD DEPEND, ULTIMATELY, UPON FACTUAL DETERMINATIONS BEYOND THE SCOPE OF THIS OFFICE AND WHICH ARE, IN ADDITION, THE SUBJECT OF LITIGATION PENDING IN THE DISTRICT COURT OF COMANCHE COUNTY. WHERE LITIGATION IS PENDING OR WHERE R ESOLUTION OF AN ISSUE DEPENDS UPON FACTUAL DISTINCTIONS AND DETERMINATION WHICH ARE MORE PROPERLY WITHIN THE PROVINCE OF THE JUDICIARY, IT HAS LONG BEEN THE POLICY OF THE ATTORNEY GENERAL' OFFICE NOT TO RENDER AN OPINION. IN 1983, THE ATTORNEY GENERAL WAS ASKED TO DETERMINE THE APPLICABILITY OF 1983 OSWMA AMENDMENTS TO AN APPLICATION FILED WITH THE HEALTH DEPARTMENT. IN OPINION 83-274, THIS OFFICE SPECIFICALLY DECLINED TO ADDRESS WHETHER THE APPLICATION IN QUESTION WAS A "NEW" APPLICATION, BECAUSE THAT WAS A QUESTION OF FACT WHICH COULD NOT BE ANSWERED AS A MATTER OF LAW. LIKEWISE, HERE, IT CANNOT BE DETERMINED, AS A MATTER OF LAW, WHETHER THE HALLCO APPLICATION MET THE DEFINITION OF A "PENDING APPLICATION" UNDER THE TERMS OF THE 1990 AMENDMENTS TO 63 Ohio St. 1-2415(C) . WITHOUT DETERMINING FIRST WHETHER THE APPLICATION WAS "PENDING" IT IS IMPOSSIBLE, AS A MATTER OF LAW, TO DETERMINE WHETHER THE HALLCO APPLICATION WAS SUBJECT TO THE 1990 PROCEDURAL AMENDMENTS. IN ADDITION, LAWSUITS HAVE BEEN FILED IN COMANCHE COUNTY WHICH WILL REQUIRE JUDICIAL REVIEW OF THE FACTS GIVING RISE TO THE HEALTH DEPARTMENT'S APPROVAL OF THE HALLCO APPLICATION; THE APPLICABILITY OF THE 1990 OSWMA AMENDMENTS ARE AT ISSUE. IT WOULD BE INAPPROPRIATE, AND INDEED BEYOND THE SCOPE OF OUR AUTHORITY, FOR THIS OFFICE TO USURP OR DUPLICATE THE FACT FINDING FUNCTION OF A COMANCHE COUNTY DISTRICT COURT. FOR THE REASONS SET OUT ABOVE, WE ARE UNABLE TO ISSUE AN OPINION ADDRES SING THE APPLICABILITY OF THE 1990 OSWMA AMENDMENTS TO THE SOLID WASTE PERMIT APPLICATION OF HALLCO ENVIRONMENTAL, INC.. IF YOU HAVE ANY QUESTIONS ABOUT THE DISPOSITION OF THIS REQUEST, OR ON ANY OTHER MATTER, PLEASE DO NOT HESITATE TO CONTACT OUR OFFICE. (VICTOR N. BIRD)