Northside Sanitary Landfill, Inc. v. Indiana Environmental Management Bd.

• Decision Date: 04 January 1984
• Docket Number: No. 1-883A257,1-883A257
• Citation: 458 N.E.2d 277
• Parties: NORTHSIDE SANITARY LANDFILL, INC., Plaintiff-Appellant, v. INDIANA ENVIRONMENTAL MANAGEMENT BOARD and Indiana State Board of Health, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 277

458 N.E.2d 277

NORTHSIDE SANITARY LANDFILL, INC., Plaintiff-Appellant, v. INDIANA ENVIRONMENTAL MANAGEMENT BOARD and Indiana State Board of Health, Defendants-Appellees.

No. 1-883A257.

Court of Appeals of Indiana First District.

Jan. 4, 1984.

Rehearing Denied Feb. 22, 1984.

Warren D. Krebs, Parr, Richey, Obremskey & Morton, Lebanon, Young, Harris & Harvey, Crawfordsville, for plaintiff-appellant.

Linley E. Pearson, Atty. Gen., Michael Schaefer, Deputy Atty. Gen., Indianapolis, for defendants-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

Upon the denial of its application for a Hazardous Waste Facility Operating Permit Following change of venue to the Montgomery Circuit Court, the court determined it lacked subject matter jurisdiction to entertain Northside's motion, dismissed the cause, and remanded to the Board for further administrative proceedings. From this dismissal Northside now appeals.

by the Indiana Environmental Management Board, Northside Sanitary Landfill, Inc., filed a complaint in the Boone Superior Court seeking declaratory judgment against and damages from the Board. In addition, Northside filed a motion for a preliminary injunction to enjoin the Board from enforcing the order which accompanied its denial of the permit.

We affirm.

FACTS ¹

On November 20, 1981, regulations governing the disposal of hazardous waste in this state became effective. These regulations, found at 320 Indiana Administrative Code section 4, required hazardous waste disposal operators to obtain an Indiana Hazardous Waste Facility Permit on or before March 20, 1982. 320 Indiana Administrative Code section 4-6-2.

Already engaged in the disposal of hazardous waste and desiring to expand its operations, Northside applied for a permit on March 16, 1982. Negotiations between Northside and the Board ensued, and finally, in a letter dated April 12, 1983, and received on April 14, Northside was advised the Board would consider its application at its regular meeting on April 15. Enclosed with the letter was a copy of a "Summary and Recommendation" prepared by the Board's staff relative to the Northside application. In the document numerous environmental problems at the Northside facility were cited and denial of the permit application was recommended.

In response to this letter, Northside filed a motion for continuance with the Board. At the April 15 meeting the Board considered but denied Northside's motion on grounds it had no right to be heard at that juncture in the proceedings. Further, upon considering its staff's recommendation, the Board voted to deny Northside's application. Relevant to our discussion, the Board determined:

"Because of deficiencies in NSL's application regarding ground water quality and financial assurance for closure and post closure monitoring and maintenance, and because of continuing environmental violations at the existing facility, the Board hereby denies the NSL a hazardous waste facility permit under I.C. 13-7-8.5 and I.C. 13-7-10..."

Record at 269. In addition, the Board informed Northside of its right to an administrative hearing concerning the decision.

"If the Board decides to deny the permit the applicant may petition for a hearing before the Board within 15 days after the date of receipt of notice of the denial of the permit. If the applicant does request a hearing within the alloted [sic] time then the Board itself or through its appointed hearing officer will hold an administrative adjudicatory hearing to hear testimony on the record to make findings of fact and a final determination.

If that final determination is not acceptable to the applicant then he has the right to go to Court for a judicial review of the Board's determination. Consequently, through the appeal process the applicant would be given due process and the right to be heard."

Record at 268-69.

Relative to its denial of Northside's application, the Board, on May 4, 1983, issued a "Preliminary Order

Notice of Violation, Compliance Order, and Hearing. Pertinent to the issues before us, Northside was notified of the following:

I. Because the Board in a separate action on April 15, 1983, has denied Respondent's application for a hazardous waste facility operating permit, it is hereby ordered that upon receipt of this order Respondent cease receiving any hazardous waste under 320 IAC 4 (40 CFR Parts 260 to 265).

II. A. Pursuant to 320 IAC 4-7-1 (40 CFR 265.112(c)), an owner or operator of a hazardous waste facility must submit his closure plan for the facility no later than fifteen (15) days after:

(1) termination of a permit issued under the hazardous waste article (320 IAC 4); or

(2) issuance of an order of compliance to cease receiving hazardous waste or to close.

Accordingly, pursuant to 320 IAC 4-7-1 (40 CFR 265.112(c)), Respondent is hereby ordered to submit to the Board, within fifteen (15) days of receipt of this order: an updated closure plan and post-closure monitoring and maintenance plan which shall include the West Field and the filled portion of the East Field; and, plans and schedule of implementation for remedial action with regard to the source of ground water contamination and ground water cleanup. The update shall also include:

(i) An update of the cost estimates of closure and post-closure monitoring and maintenance; and

(ii) A closure schedule which shall indicate the beginning of closure no later than fifteen (15) days after the date the closure plan and post-closure monitoring and maintenance plan have been approved by the Board, and completion of closure in accordance with deadlines specified in Rule 320 IAC 4-7-1.

B. Pursuant to 320 IAC 4-7, within fifteen (15) days after the Board approves the closure plan and post-closure monitoring and maintenance plan, Respondent shall deposit into the closure and post-closure trust fund in the custody of the trustee, Farmer's State Bank of Zionsville, or the successor trustee, an amount equal to the up-dated closure and post-closure cost estimate, less the $25,440 already in the fund, and any interest accrued thereon."

Record at 378-79.

Additionally, the Board advised Northside of the following penalty:

"Proposed Civil Penalty

Failure to comply with any requirement of this preliminary order shall subject the above named Respondent to liability for a further civil penalty of up to $25,000 for each day of continued noncompliance after the specified deadline date of this order. The Board is authorized to assess such penalties pursuant to IC 13-7-13-1."

Record at 380. The Board then concluded its notice by again advising Northside of its right to an administrative hearing.

Northside, however, did not pursue its administrative remedies, choosing instead to seek judicial relief. Finding that Northside had failed to exhaust its administrative remedies, the Montgomery Circuit Court determined it lacked subject matter jurisdiction and accordingly dismissed Northside's action.

ISSUES

In the interest of clarity, we have restated the issues as follows:

1. Did the trial court err in determining Northside had failed to exhaust its administrative remedies?

2. Would the statutory scheme governing administrative hearings held by the Board have provided Northside with due process?

3. Did the trial court err in determining the Board had not yet made a final decision regarding Northside's permit application?

4. Did the trial court err in remanding the cause for further administrative proceedings?

DISCUSSION AND DECISION

Issue One

Northside's initial argument concerns the trial court's determination that it had failed to exhaust its administrative remedies before seeking judicial review. Northside does not deny there were administrative channels available to it upon the denial of its permit application, but rather, contends the presence of certain extraordinary circumstances rendered those remedies useless. Thus, Northside submits, the trial court erred in failing to address the merits of its action.

Generally, until a party exhausts available administrative remedies, courts have no jurisdiction to grant relief. Drake v. Indiana Department of Natural Resources, (1983) Ind.App., 453 N.E.2d 293, 296 (transfer pending); Evans v. Stanton, (1981) Ind.App., 419 N.E.2d 253, 255; Indiana State Department of Welfare, Medicaid Division v. Stagner, (1980) Ind.App., 410 N.E.2d 1348, 1351; St. Joseph's Hospital, Inc. of Fort Wayne v. Huntington County Department of Public Welfare, (1980) Ind.App., 405 N.E.2d 627, 629; Reidenbach v. Board of School Trustees of the West Noble School Corp., (1980) Ind.App., 398 N.E.2d 1372, 1374; South Bend Federation of Teachers v. National Education Association--South Bend, (1979) 180 Ind.App. 299, 309, 389 N.E.2d 23, 30, trans. denied; Amburgey v. Miller, (1977) 173 Ind.App. 116, 118, 362 N.E.2d 869, 871. This general rule is not without exceptions, however, and must not be applied in a mechanical fashion. Wilson v. Review Board of the Indiana Employment Security Division, (1979) 270 Ind. 302, 305, 385 N.E.2d 438, 441, cert. denied 444 U.S. 874, 100 S.Ct. 155, 62 L.Ed.2d 101. Thus, under certain extraordinary circumstances strict compliance with the rule is not required. These exceptions include: where compliance would be futile, Bowen v. Sonnenburg, (1980) Ind.App., 411 N.E.2d 390, 403; where an applicable statute is charged to be void on its face, Drake, 453 N.E.2d at 296; or when strict compliance would result in irreparable harm. South Bend Federation of Teachers, 180 Ind.App. at 309, 389 N.E.2d at 30.

In determining whether any of these exceptions are present, trial courts are to consider the following factors:

"the character of the question presented and the competency of the administrative agency to answer that question; the avoidance of premature interruption of the administrative process in recognition of the interest of the agency in developing a factual record upon which to exercise its discretion and...