National Salvage & Service Corp. v. Commissioner of Indiana Dept. of Environmental Management

• Decision Date: 15 May 1991
• Docket Number: No. 49A04-8912-CV-554,49A04-8912-CV-554
• Citation: 571 N.E.2d 548
• Parties: NATIONAL SALVAGE & SERVICE CORPORATION, Appellant (Defendant Below), v. COMMISSIONER OF THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 548

571 N.E.2d 548

NATIONAL SALVAGE & SERVICE CORPORATION, Appellant (Defendant Below), v. COMMISSIONER OF THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Appellee (Plaintiff Below).

No. 49A04-8912-CV-554.

Court of Appeals of Indiana Fourth District.

May 15, 1991.

George M. Plews, Sue A. Shadley, Peter M. Racher, Pendygraft Plews & Shadley, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Schaeffer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

National Salvage (Salvage) leased a warehouse in an Indianapolis industrial park in order to transfer, under contract,

bailed solid municipal waste (all from out of state) from railroad cars through its warehouse onto trucks, which then took the waste to a landfill in Boone County, Indiana. The railroad cars contained large amounts of waste and often were not unloaded for several days. Salvage never obtained a solid waste permit from the Indiana Department of Environmental Management (Department). On October 27, 1989, the Department filed a complaint in the Marion Circuit Court, seeking a preliminary and permanent injunction against Salvage's operation. Salvage appeals the November 16, 1989, granting of a preliminary injunction against it, raising six issues which we rephrase as follows:

I. Whether Salvage's warehouse, served by a railroad spur which receives boxcars containing municipal waste, is a facility for which a solid waste facility permit is required.

II. Whether construing the statutes and regulations to require Salvage to obtain a permit makes these laws unconstitutionally vague.

III. Whether the Department was estopped from requiring a permit due to an unwitnessed and unmemorialized meeting between a Salvage officer and a Department employee, at which the Salvage representative was allegedly told no permit was required.

IV. Whether the Department met the requirements for injunctive relief without a balancing of the equities and without a showing of irreparable harm, but on a showing of Salvage's violation of the statutory and regulatory schemes.

V. Whether the trial court erred because it did not consider or find that the Department's efforts to block Salvage's off-loading operation by requiring a permit violated the Commerce Clause of the United States Constitution.

VI. Whether the Department's regulatory requirements are preempted by federal law and whether the trial court lacked subject matter jurisdiction.

We affirm.

FACTS

The facts most favorable to the trial court's decision reveal that on October 23, 1989, the Commissioner of the Department, Kathy Prosser, sent investigator Robert Cline to Salvage's warehouse. Mr. Cline observed five railroad boxcars sitting at Salvage's warehouse siding. The door was ajar on one boxcar and he observed garbage in it. Cline observed some of the cars emitting some sort of liquid and strong odors. He said it smelled like a dump. Flies were also present. The boxcars were still present the following day.

Before the issuance of a Temporary Restraining Order on October 27, 1989, Salvage had actually received at least twelve waste-filled boxcars at the warehouse between October 13 and 19. Only one of these cars was unloaded the same day it arrived. Most of the cars remained at least two days and, in some cases, cars remained on the tracks alongside Salvage's premises for three days. The boxcars held between 70-95 tons of municipal waste each.

In February, 1989, Curtis Schopp, vice-president of Salvage, met with C. Steven Poe, Chief of the Facility Inspection Section of the Department for Southern Indiana, to whom a receptionist had referred Schopp in response to Schopp's statement that he had a solid waste question. No one under the deputy commissioner level at the Department has authority to make decisions regarding permits. Schopp testified that, in this unwitnessed unmemorialized impromptu meeting, he explained the details of the proposed operation without the benefit of plans or diagrams. Schopp alleges that Poe orally informed him that no permit would be required for the operation Schopp outlined. Schopp claims that they proceeded with their plans for the boxcar unloading operation in reliance upon this conversation.

In order to support Mr. Schopp's claim, Salvage called two witness, Mr. Tucker Lamkin and Mr. John Miller, who were interested in starting businesses similar to Salvage's. In April and again in May, Mr. Lamkin and Mr. Miller also inquired of the Department concerning a similar use of boxcars. Although Mr. Miller and Mr In meetings with the Indiana Railroad Company in June of 1989, Christa Russell, Mr. Poe's superior, told it permits were required for "off-loading" facilities. Ms. Russell also told this to a representative of a company called Crossbridge which owned some of the cars which were present at Salvage when the site was investigated on October 23, 1989. The record does not indicate whether Crossbridge communicated this to Salvage.

Lamkin believed it was Mr. Poe's opinion that their projects would not require a permit, their projects did not proceed. There is no evidence that Schopp, Miller or Lamkin had any contemporaneous knowledge of each other's conversations with the Department.

Additional facts will be added as necessary. The trial court made the following Findings of Fact and Conclusions of Law:

1. The Indiana Department of Environmental Management (hereinafter referred to as Department) is an administrative agency of the State of Indiana which is organized, established and existing by virtue of IC 13-7-2-11.

2. The Environmental Management Act, IC 13-7-5-7, authorizes court actions by the Commissioner of the Indiana Department of Environmental Management Act to seek injunctive relief to procure compliance with said Act.

3. The defendant is an Indiana corporation and was incorporated on January 13, 1988.

4. On or about July 31, 1989 the defendant entered into a lease of the premises referred to as 1931 Stout Field Drive in Indianapolis, Indiana.

5. Prior to this in June the defendant had placed an ad in a trade publication for the receipt and disposable [sic] of both loose and solid waste.

6. Curtis Schopp, the vice-president of National Salvage had visited the offices of the Department sometime in February, 1989 prior to the commencement of operations. He had gone to the Department to inquire about both the disposal of special and solid waste. While there he had a visit with a Mr. Poe and testified that he explained the operation to Poe and was informed orally that no permit was required. No written confirmation of this was ever obtained.

7. National Salvage places great reliance on this oral opinion.

8. The leased premises is served by a railroad spur line and facing the railroad tracks on one wall are two doors [through] which the contents of a railroad car may be brought into the building. There is no permitted landfill or other disposal facility at these premises.

9. On or about August 9, 1989 the defendant entered into an agreement under which it would dump waste material at the Northside Landfill in Boone County.

10. On or about September 8, 1989 the defendant entered into a lease for three Dorsey "open top/walking floor" trailers.

11. On or about October 6, 1989 the defendant entered into a master lease agreement for three Mack trucks.

12. On or about October 11, 1989 the defendant entered into a lease for up to 120 60-foot boxcars numbered NSSX 5000 through NSSX 5119.

13. Between the dates of October 13, 1989 and October 19, 1989 at least twelve (12) railroad boxcars were placed at the defendant's leased premises, solid waste was unloaded into defendant's building and put into truck trailers. Once placed on the abutting siding the railroad cars waited from one to three days for unloading.

14. Each of these railroad boxcars contained baled municipal solid waste.

15. The basic business of the defendant was to transfer bales of solid waste from the railroad cars to their warehouse. Such waste would then be loaded on trucks to be taken to the Northside Landfill. It would take about three and one half truck loads of material to unload one railroad car.

16. Operation would be accomplished by bringing the railroad car to the side of the building where forklift trucks would unload it into the warehouse and then 17. Defendant also has an agreement with Star Recycling Company under which the defendant would receive unrecyclable material from Star Recycling. This material included what is commonly known as garbage.

would place it in trucks for transport to the landfill.

18. On October 23, 1989 five (5) railroad boxcars loaded with solid waste were observed at the defendant's facility. Some of these cars were observed emitting a liquid of some sort.

19. Railroad boxcars originating from Star Recycling and on which the NSSX registration numbers were visible were observed on October 27, 1989 on a railroad siding between Minnesota Street and Airport Expressway next to the Bridgeport Brass Company. Again it was observed that each of these cars were emitting some sort of a liquid.

20. No test was ever performed on the liquid coming from said boxcars.

21. The plaintiff has never issued a solid waste facility permit of any kind for defendant's operations at 1931 Stout Field Drive.

22. The question presented is whether this type of operation requires the issuance of a permit by the Department under existing statutes and regulations.

23. The statutory requirements include IC 13-7-4-1(6) and IC 13-7-1-22 which provide in part as follows:

24. IC 13-7-4-1(6) provides as follows:

Sec. 1. No person may do any of the following: (1) Discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or...