Indiana Dept. of Environmental Management v. Chemical Waste Management, Inc.
| Decision Date | 01 December 1994 |
| Docket Number | No. 49S00-9310-CV-1143,49S00-9310-CV-1143 |
| Parties | The INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, and Kathy Prosser in Her Official Capacity as Commissioner of the Indiana Department of Environmental Management, Appellants, v. CHEMICAL WASTE MANAGEMENT, INC., Appellee. and The City of New Haven, Indiana, Intervenor. |
| Court | Indiana Supreme Court |
This case comes to us on direct appeal from the trial court judgment finding Indiana Code 13-7-10.2, the "Good Character" law ("Statute"), unconstitutional. Ind.Appellate Rule 4(A)(8). Appellants Indiana Department of Environmental Management ("IDEM") and Kathy Prosser, Commissioner of the Indiana Department of Environmental Management ("Commissioner"), raise the following issues:
1) whether the case is sufficiently developed to permit judicial review, i.e., "ripe";
2) whether the Statute unconstitutionally distinguishes between commercial and non-commercial waste disposal facilities;
3) whether the statutory standards for either approving or denying a permit are impermissibly vague;
4) whether due process of law requires that Appellee be provided a hearing prior to the Commissioner's decision;
5) whether the lack of a rules promulgation requirement to implement the Statute creates a constitutional problem;
6) whether the Statute impermissibly impairs contractual obligations or amounts to an ex post facto law;
7) whether the Statute unlawfully restrains the freedom of association or expression;
8) whether the Statute is an impermissible delegation of authority;
9) whether the Statute violates Article I, § 25 of the Indiana Constitution;
10) whether the Statute is an unlawful exercise of the police power 11) whether the entire statutory scheme must be invalidated if any part is found to be invalid.
Appellee Chemical Waste Management of Indiana, Inc. ("Chemwaste") is the owner and operator of the Adams Center Waste Treatment and Disposal Facility ("the Facility") located in Allen County near Fort Wayne, Indiana. The Facility is the only commercially operated enterprise in Indiana that treats and disposes of hazardous waste. It has operated since 1975 and is one of fewer than 20 such facilities in the United States.
Chemwaste is a wholly-owned subsidiary of Chemical Waste Management, Inc., a New York Stock Exchange company with assets of over $1.6 billion. Chemical Waste Management, Inc. is 76-percent owned by Waste Management, Inc., another New York Stock Exchange company, with assets of more than $10.5 billion. Waste Management, Inc., the largest waste handling and disposal company in the world, operates over 200 disposal facilities in 48 states and 20 foreign countries.
IDEM is an agency of the State of Indiana responsible for, inter alia, the regulation of and the issuing of permits for all landfills within the state. The Commissioner approves or denies applications for the issuance of permits for treating, storing, and disposing of hazardous waste.
In 1976, the United States Congress passed the Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq. ("RCRA"). Subtitle "C" of RCRA and its implementing regulations establish requirements relating to the generation, transportation, treatment, storage and disposal of hazardous waste. The Facility is designed to satisfy or exceed all RCRA requirements. Under RCRA, the United States Environmental Protection Agency may authorize states to adopt regulations to enforce their own hazardous waste programs instead of Subtitle C. On January 31, 1986, the EPA authorized the State of Indiana to promulgate its own rules governing hazardous waste. Indiana, through IDEM, now has the authority to approve or deny hazardous waste permits. 1
The Indiana General Assembly enacted the Statute on March 20, 1990. It requires each applicant for the issuance, renewal, transfer or major modification of a solid or hazardous waste permit, and each "responsible party," to file a disclosure statement with IDEM providing, generally, a description of all civil, criminal, and administrative complaints alleging a violation of an environmental law, convictions for environmental crimes, or convictions for crimes of moral turpitude within the five years before the date of submitting the permit application. Ind.Code § 13-7-10.2-3 (Burns 1990). "Responsible party" includes the applicant's officers, directors, senior management officials, and any person or entity who owns, directly or indirectly, 20 percent or more of the permit applicant. Ind.Code § 13-7-10.2-2 (Burns 1990).
Under the Statute the Commissioner is allowed to deny a permit application if any responsible party of the applicant has entered into a settlement and paid a fine or penalty of more than $10,000 to resolve a complaint. Ind.Code § 13-7-10.2-3 (Burns 1990). This is true even if the alleged violation is never proven, the applicant or responsible party has denied any wrong-doing, the alleged violation did not threaten public health or the environment, and the settlement is entered solely for the purpose of settling a disputed claim. The Commissioner also can deny a permit based upon any violation of an Indiana environmental statute or rule, even where IDEM earlier concluded that the violation did not warrant suspending or revoking the applicant's existing Indiana waste management permit. The Commissioner receives broad powers to grant or deny permits even where it is unclear that there exist any rational means for reaching a decision.
When the Statute became law in 1990, Chemwaste had on file a 1987 permit application for a substantial modification of the Facility. On July 12, 1990, the Commissioner notified Chemwaste that she intended to apply the Statute to the 1987 major modification application, in spite of the fact that the application had been filed more than two years earlier and even though the Statute did not indicate that it applied to pending applications. Chemwaste successfully litigated that case. Indiana Department of Environmental Management v. Chemical Waste Management of Indiana, Inc. (1992), Ind.App., 604 N.E.2d 1199, trans. denied.
On January 6, 1992, Chemwaste filed this suit challenging the constitutionality of the Statute in addition to its retroactive application. Chemwaste obtained a temporary restraining order pending entry of a preliminary injunction, which prevented IDEM from issuing a denial of Chemwaste's 1987 major modification permit application relying in any way on the Statute. On March 2, 1992, IDEM filed a motion to dismiss, claiming that Chemwaste had failed to exhaust its administrative remedies. The trial court held a hearing on Chemwaste's motion for preliminary injunction and IDEM's motion to dismiss, and, on March 25, 1992, entered its Findings of Fact, Conclusions of Law and Order granting the preliminary injunction and denying IDEM's motion. On April 8, 1992, IDEM filed a praecipe in order to appeal the trial court's decision. 2
Appellants claim that this case is not sufficiently developed to merit judicial review, i.e. it lacks "ripeness." The trial court found that the issues were sufficiently ripe.
Ripeness relates to the degree to which the defined issues in a case are based on actual facts rather than on abstract possibilities, and are capable of being adjudicated on an adequately developed record. Since the Commissioner has not even begun the decision-making process regarding Chemwaste's application, IDEM asserts that there exists nothing for a court to review. IDEM claims that since Chemwaste has neither been denied a permit nor had an opportunity to exhaust administrative remedies, judicial intervention is unwarranted. IDEM goes on to say that the trial court's "as applied" analysis depended on hypothetical harms and that such an approach does not support the serious act of striking down a law passed by the Indiana General Assembly.
Chemwaste argues that its action for declaratory judgment is the appropriate means for resolving its dispute with IDEM. The Commissioner had made known her intended application of the Statute. This case may be viewed as nothing more than a complicated modern version of an action for a writ of quo warranto, demanding that the Commissioner show the source of her authority to act in such a manner. See 3 WILLIAM BLACKSTONE, COMMENTARIES, page 262, ch. 17, p 5 (Edward Christian ed., Dublin, P. Byrne, Grafton Street 1796) (1768). In addition, the trial court found that completing the entire permit application process before pursuing the constitutional challenge would impose an undue burden on Chemwaste.
The Indiana Constitution lacks the well known "cases" and "controversies" language of Art. III, § 2 3 of the U.S. Constitution . This Court can and does issue decisions which are, for all practical purposes, "advisory" opinions. 4 However, it is also true that the separation of powers language in Art. III, § 1 5 fulfills an analogous function in our own judicial activity, or lack thereof. While this Court respects the separation of powers, we do not permit excessive formalism to prevent necessary judicial involvement. Where an actual controversy exists we will not shirk our duty to resolve it. Brewington v. Lowe (1848), 1 Ind. 21, 23. If Chemwaste has a right to have IDEM consider a permit application in a particular manner, we cannot avoid considering the claim. However, since it remains unclear what sort...
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