The opinion
SUMMERS, Justice,
dissenting.
I would affirm the trial court for the following reasons:
I.
The majority acknowledges that the statutes do not expressly vest exclusive jurisdiction over matters involving pollution in the Corporation Commission. I am not compelled to concur in its conclusion that such a construction is “implicit”. For example, 17 O.S.1981, § 52 provides that
“All authority and duties now conferred upon the Corporation Commission ... in reference to the conservation of oil and gas and the drilling and operation of oil and gas wells and the construction and regulation of oil and gas pipelines are hereby conferred exclusively upon the Corporation Commission”.
The Board points out that this is not a controversy relating to the “construction and regulation” of an oil pipeline; it is one relating to the pollution being caused from an inadequate clean-up of a pipeline break.
For another example, the section cited from the Oklahoma Controlled Industrial Waste Disposal Act 1 vests exclusive jurisdiction with the Commission for certain purposes, but in the paragraph providing that the Commission adopt rules and regulations for the prevention of water pollution, the word “exclusive” does not appear.
Nor do I concur that the Board is excluded from enforcing water quality standards where such are impacted by oil or gas operations such as this under 82 O.S.1981, § 926.3(6). That section excepts impacts upon water quality “as may result from activities related to acceptable ... petroleum operations and practice” (emphasis mine). I doubt it is acceptable practice to leave the stream your line has polluted in an unlawful condition for somebody else to clean up.
II.
The majority holds Pollution Control Coordinating Board v. Okla. Corp. Commission, 660 P.2d 1042 (Okl.1983) to be controlling. Yet that opinion noted that under the water pollution statute ( 82 O.S. 1971 , § 934) the Pollution Control Coordinating Board may proceed (despite “exclusive” jurisdiction in the Corporation Commission) if
“(2) it finds that the agency having primary jurisdiction has, failed, refused, or neglected to take action; or (3) the agency having primary jurisdiction requests the Pollution Control Coordinating Board to take action.” Supra, P. 1044.
The court found that neither of the above conditions were present in that case. But what of today’s case?
It is significant that this is not an inter-agency struggle for jurisdictional territory. The Corporation Commission is not even a party here. The Board reported the spill to the Department of Pollution Control who then reported it to the Corporation Commission. The Board correctly concluded that the Commission had primary jurisdiction since the spill involved crude oil. The Commission investigation resulted in the leak being stopped and in a purported cleanup operation by Matador. But although the spill was “cleaned up” by Commission standards there were still violations of the 1982 Oklahoma Water Quality Standards present. The testimony was that the Board was told by the Commission’s representative that since Matador was still in violation of the water quality standards, those standards should be enforced by the Board. Hence the Board’s investigation continued, resulting in the proceedings which are now before the court.
*20 I suggest that condition number (3) of Pollution Control Coordinating Board v. Okla. Corp. Commission, supra, (the agency having primary jurisdiction requesting the Board to take action) has occurred here, that the agencies are attempting to work together within the spirit of the water pollution laws (see III infra) and that the proceedings to this point are consistent with the statutes.
III.
Several statutory provisions reflect legislative intent that both the Commission and the Board should operate with each other in fulfilling their statutory duties. Among these is the provision in the Pollution Remedies Act, 82 O.S.1981, § 926.3(2), which directs the Board:
“2. To advise, consult and cooperate with other agencies of this state, the federal government, other states and interstate agencies and with affected groups, political subdivisions and industries in furtherance of the purposes of this act
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Additionally, 82 O.S.1981, § 1085.15 provides:
“All state institutions, agencies, departments, boards and officers are hereby authorized and directed to cooperate with the Oklahoma Water Resources Board in all matters relating to its duties.”
Furthermore, this statutory mandate is recognized by the Corporation Commission and is reflected in its General Rules and Regulations of Oil and Gas Conservation Division, Rule 3-103(a), which provides:
“3-103. Cooperation With Other Agencies.
(a) These rules and regulations shall not be construed and modifying the rights, obligation duties of any person under any law of this state, or any order, rule or regulation of the Oklahoma Water Resources Board, State Department of Health, Oklahoma Wildlife Conservation Commission, State Board of Agriculture, Department of Pollution Control, or any other agency of this state with respect to pollution of fresh water.” (emphasis added)
The relationship between the Corporation Commission and the Board is described with particularity in 52 O.S.1981, § 142. This statute includes a list of additional activities the Board will perform by providing that:
“The Oklahoma Water Resources Board in pursuance of its duties with respect to the waters of the state and the Department of Wildlife Conservation of the State of Oklahoma in pursuance of its duties with respect to the game and aquatic life of the state are authorized and it shall be their duty to assist and cooperate with the Commission in the performance of its duties under this act by making investigations, gathering evidence and filing reports or complaints with the Commission concerning conditions with respect to the handling, storage and disposition of the deleterious substances referred to in Section 1 of this act and by making recommendations from time to time to the Commission with respect to rules, regulations, orders or other action that may be required to carry out the purpose of this act.”
The above statute is a legislative mandate stating that the Oklahoma Corporation Commission and the Board must work together with the common interest of preventing pollution to the waters of the State of Oklahoma. It is clear in reading all the above statutes together that it was anticipated by the Legislature that it would be necessary for the Corporation Commission to call upon the expertise of other state agencies from time to time in dealing with certain instances of pollution.
When the representative from the Commission confirmed to the representative of the Board that since “it was water quality standards that were being violated, that the Board should go ahead and enforce that”, and that the “cleanup was not their bailiwick”, the two agencies were cooperating as mandated by the statutes. They were also acting consistently with the public policy of Oklahoma as stated in 82 O.S. 1981 , § 926.2, which is:
*21 "... to conserve the waters of the state and to protect, maintain and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and aquatic life and for domestic, agricultural, industrial, recreational and other legitimate beneficial uses; to provide that no waste be discharged into any waters of the state without first being given the degree of treatment necessary to protect the legitimate beneficial uses of such waters; to provide for the prevention, abatement and control of new or existing water pollution; and to cooperate with other agencies of this state, agencies of other states and the federal ■ government in carrying out these objectives.” (emphasis added)
If (1) a stream has been polluted by crude oil, and (2) a cleanup is attempted under the direction of the Corporation Commission, and (3) that operation, when completed, still leaves the water, the stream banks, and the stream bottom in a condition inferior to that required by the Oklahoma Water Quality Standards, then who is it that will then enforce the proper cleanup? No one, we say today. I find this result incompatible with the spirit and letter of the legislature’s efforts to keep our waters clean.
I am authorized to state that DOOLIN, C.J., joins in the views expressed herein.
. 63 O.S.Supp.1982, § 1-2005(A)(2).