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Friday, May 19, 2006

Ind. Decisions - Court of Appeals issues two today

In the Matter of Adoption of C.E.N. - adoption, affirmed

In IDEM and Midwest Medical Solutions v. Lake Co. Solid Waste Management District, a 28-page opinion, IDEM granted a permit to Midwest for an infectious waste autoclave, a solid waste processing facility. The county solid waste district objected. In the administrative appeal, the Office of Environmental Adjudication ruled for IDEM and the permitee. The trial court reversed. In this appeal, Judge Crone writes:

Case Summary. The Indiana Department of Environmental Management (“IDEM”) and Midwest Medical Solutions, LLC (“Midwest”), appeal the trial court’s reversal of a judgment of the Office of Environmental Adjudication (“OEA”) in favor of IDEM and Midwest and adverse to the Lake County Solid Waste Management District (the “District”). We reverse.

Issues. IDEM and Midwest raise three issues:

I. Whether the trial court erred in reversing the OEA’s judgment and concluding that IDEM must wait on a local waste management district to decide whether there is a “local” need for a waste processing facility before IDEM can issue a facility permit;

II. Whether the trial court erred in ordering Midwest to appear before the District and submit materials to demonstrate that a “local need” exists for its permitted and operating medical waste processing facility; and

III. Whether the trial court erred in determining that Midwest had not demonstrated a “local need” for a solid waste facility when this fact-based issue was never before the OEA.

* * *

I. Must IDEM Wait for the District’s Determination of Need? * * * A plain reading of these sections reveals no requirement that IDEM either solicit a district’s local determination of need or suspend review of an application upon a district’s request to perform its own determination of needs. * * * To adopt the District’s viewpoint to the contrary would be to rewrite the sections, as well as to render meaningless both the “or regional need” language of Indiana Code Chapter 13-20-12 and the relatively newly enacted Indiana Code Section 13-21-3-14(a)(5). This is not to say that a district’s voice is meaningless in the permitting process. Rather, districts may play an advisory role if they so choose. * * * To endorse the District’s interpretation would be to create a veto-type power in local districts over regional matters and/or to leave no method for resolving conflicting need determinations among neighboring districts. Indefinite delays could result. The District’s construction would also be inconsistent with the interpretation utilized by IDEM, the entity that regularly administers the permit process. * * * In concluding that a statewide permitting scheme exists and that IDEM is the ultimate decision-maker regarding local and regional need, we do not leave districts without any purpose. Rather, each district makes local solid waste general policy by adopting a solid waste management plan and by serving an advisory role in permitting. * * *

II. Must Midwest Appear Before the District and Submit Materials Demonstrating Local Need? * * * As should be clear from our resolution of Issue I, supra, Midwest will not be forced to appear before the District to demonstrate need. * * *

III. Did the Trial Court Err in Determining That There Was No Local Need Demonstrated? * * * Having already concluded in Issue I that reversal of the trial court’s order is required, we need not address Issue III at length. However, for clarity’s sake, we note that since IDEM’s determination was supported, the trial court’s order usurped IDEM’s power by reweighing evidence. See Boone County, 803 N.E.2d at 271; see also Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994) (landfill case wherein Court noted IDEM’s broad power to grant or deny permits “even where it is unclear that there exist any rational means for reaching a decision.”). We also agree that in failing to raise earlier the issue of whether Midwest demonstrated a need, the District waived the issue. See Save the Valley, Inc. v. Ind.-Ky Elec. Corp., 820 N.E.2d 677, 679 n.3 (Ind. Ct. App. 2005) (explaining that an argument not made before the OEA deprives opposing party of opportunity to defend and thus waives the argument), reh’g granted on other grounds by 824 N.E.2d 776; see also Turner v. Stuck, 778 N.E.2d 429, 432 (Ind. Ct. App. 2002) (discussing judicial estoppel). Reversed.

Posted by Marcia Oddi on May 19, 2006 10:07 AM
Posted to Administrative Law | Environment | Ind. App.Ct. Decisions