Worman Enterprises, Inc. v. The Boone County Solid Waste Management District

Attorneys for Appellant Attorneys for Appellee

Mark R. Waterfill Larry J. Kane

Cynthia M. Kirk Katherine L. Shelby

Indianapolis, Indiana Indianapolis, Indiana

________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 06S01-0306-CV-254

Worman Enterprises, Inc.,

Appellant (Plaintiff below),

v.

The Boone County Solid Waste

Management District,

Appellee (Defendant below).

_________________________________

Appeal from the Boone Superior Court, No. 06D01-0011-CP-390

The Honorable Ora A. Kincaid, III, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 06A01-0206-

CV-202

_________________________________

March 9, 2004

Boehm, Justice.

We hold that the board of a solid waste management district is not

subject to the strict prohibition on ex parte communications that applies

to a court or an administrative agency acting in a purely adjudicatory

role.

Factual and Procedural Background

The Boone County Solid Waste Management District (District) was

created pursuant to Indiana Code Article 13-21. That Article authorizes

the District, inter alia, (1) “to develop and implement a district solid

waste management plan”; (2) “to otherwise do all things necessary for the

reduction, management, and disposal of solid waste; and recovery of waste

products from the solid waste stream”; and (3) “to adopt resolutions that

have the force of law.” Ind. Code § 13-21-3-12 (2002). Worman’s facility

processes trees, brush, leaves, grass, and dirt and sells the resultant

mulch. Worman also processes concrete and bricks and sells the resultant

stone.

At some point before September 1998 the District sued Worman, claiming

that Worman’s facility was an illegal and unpermitted site. In that month,

the District adopted Resolution 98-3, prescribing “certain requirements for

the permitting and operation of solid waste facilities and clean fill sites

within the Boone County Solid Waste Management District.” Worman and the

District then settled the lawsuit on October 6, 1998. The parties agreed,

among other things, that Worman would submit a permit application for a

Long-Term Clean Fill Processing and Recycling Facility. The lawsuit was to

be dismissed only when the permit issued to Worman contained terms mutually

acceptable to Worman and the District. On July 28, 1999, Worman submitted

its application. The Board received comments on the application at its

July and September public meetings. Outside of the public hearings, Board

members viewed the site and engaged in conversations with citizens who were

interested in Worman’s permit.

After its October 11, 2000, meeting, the Board issued Worman a Long-

Term Clean Fill and Recycling Permit. Worman then returned to court

arguing that the District did not have the authority to issue the permit

and that the permitting process was unlawful because of ex parte

communications between the Board and private citizens. Worman also

contended that even if the permitting process was lawful, certain

conditions imposed by the permit were illegal. The District successfully

moved for summary judgment. On appeal, the Court of Appeals held that the

District, as a matter of law, has the authority to regulate Worman’s

facility, but that genuine issues of material fact existed concerning the

propriety of ex parte communications during the permit process.

Accordingly, summary judgment was inappropriate. This Court granted

transfer.

“The standard of review of a grant or denial of a motion for summary

judgment is the same as that used in the trial court: summary judgment is

appropriate only where the designated evidence shows there is no genuine

issue of material fact and the moving party is entitled to a judgment as a

matter of law. All facts and reasonable inferences drawn from those facts

are construed in favor of the nonmoving party.” Corr v. Am. Family Ins.,

767 N.E.2d 535, 537-38 (Ind. 2002) (citing Bemenderfer v. Williams, 745

N.E.2d 212, 215 (Ind. 2001)).

I. The District’s Authority over Solid Waste

Worman argues that because the conduct regulated in the permit is

regulated by the Indiana Department of Environmental Management (IDEM), the

District’s power to regulate Worman’s facility is preempted. Ind. Code §

36-1-3-8(a)(7) (1998). The Home Rule Act significantly expanded the powers

of “units” of local government, but expressly prohibited regulation by

local agencies of conduct already regulated by a state agency. Id. Worman

points out that the Indiana Department of Environmental Management

regulates solid and hazardous waste in Indiana pursuant to Indiana Code

section 13-19-3-1. Worman argues that IDEM “routinely inspects Worman’s

facility,” so the Home Rule Act bars regulation by the District because

IDEM regulates Worman’s facility. The Court of Appeals held that the Home

Rule Act’s prohibitions do not apply to the District because the District

is not a governmental “unit” to which the Home Rule Act applies. I.C. § 36-

1-3-1. As the Court of Appeals noted, a “unit” is defined in the Home Rule

Act as a “county, municipality, or township.” I.C. § 36-1-2-23. Though the

District is none of these, Worman argues that because the members of the

Board are executive officials of Boone County, as required by statute, I.C.

§ 13-21-3-6(a), the District is an arm of the County and is therefore a

“unit” of local government.

We conclude that the Home Rule Act does not prohibit solid waste

management districts from regulating solid waste. The districts are not

technically “units” as the Home Rule Act uses that term. Not all solid

waste management districts are coterminous with a county. The statute

governing solid waste management districts permits counties to join to form

a single solid waste management district. I.C. § 13-21-3-1. If a county

chooses to “designate itself as a county solid waste management district”

or if the county fails to join or designate itself, the county will be

designated by the IDEM commissioner as a county solid waste management

district. Id. The Boone County Solid Waste Management District was

established for Boone County either by designation or by default. Further,

the statute expressly grants solid waste management districts specific

powers that counties already possess, such as the power to adopt

resolutions with the force of law and the power to sue and be sued. I.C. §

13-21-3-12. If the District were the same as the county, these grants of

power would be surplusage. The District’s Board includes executive

officials of municipalities within the District as well as executives of

county government. I.C. § 13-21-3-5(a). Thus, although the District is

coterminous with Boone County, and in that sense the County itself is

designated as the District, the District’s governance is not the same as

the County’s.

Perhaps more importantly, even if the District is viewed as the County

and therefore a “unit,” the specific grant of authority in the Solid Waste

Management District Act governs over the general terms of the Home Rule

Act. Ind. Dep’t Natural Res. v. Newton County, 802 N.E.2d 430, 433 (Ind.

2004). The statute creating and governing Districts specifically grants

authority to regulate solid waste, I.C. § 13-21-3-12, and calls for the

districts to collaborate with IDEM to deal with solid waste issues. See

I.C. § 12-21-5-1 (“Each district shall adopt and submit to the [IDEM]

commissioner for approval a district solid waste management plan.”). If

the Home Rule Act precluded solid waste management districts from

regulating this conduct because IDEM regulates the conduct, then there

would be no purpose to solid waste management districts at all. In sum,

the District is not precluded by the Home Rule Act because it is separate

in organization and power from Boone County and enjoys express authority to

regulate solid waste.[1]

II. Ex Parte Communications

On several occasions while Worman’s permit was pending, members of the

Board communicated with public citizens about the permit. For example, one

member of the Board spoke with citizens who called her home with specific

complaints about Worman’s facility. Citizens also approached that member

at the post office and grocery store to discuss the Worman facility.

Another member viewed the site through binoculars from a neighbor’s home.

Worman argues that these communications between members of the Board and

private citizens regarding its permit application constituted impermissible

ex parte communications that prejudiced the Board against Worman’s

application and violated Worman’s due process rights. The trial court

disagreed and granted the District’s motion for summary judgment. The

Court of Appeals reversed, concluding that the Board’s action was

adjudicatory in nature and that there was a genuine issue of material fact

whether the Board made these communications with the public known and

whether those communications influenced the permitting process.

Black’s Law Dictionary defines ex parte communications as “a generally

prohibited communication between counsel and the court when opposing

counsel is not present.” Black’s Law Dictionary 597 (7th ed. 1999). As

this definition suggests, ex parte communications most often become an

issue if a judge communicates outside the courtroom without disclosing

those communications to everyone involved. These communications are

prohibited. See Ind. Judicial Conduct Canon 3(B)(8); see, e.g., In re

Kern, 774 N.E.2d 878, 879 (Ind. 2002) (judge participated in improper ex

parte communications when he communicated with and aided a father in a

custody dispute without the knowledge of the mother); Garrard v. Stone, 624

N.E.2d 68, 70 (Ind. Ct. App. 1993) (even testimony by a family therapist

could not cure the error when a trial judge initiated communication with

the therapist without informing either party). Due process may be denied

if the parties are not given the opportunity to hear and comment on all of

the evidence considered in their case. See Majors v. State, 773 N.E.2d

231, 234 (Ind. 2002). For the same reason, reliance on ex parte

communications is not allowed in administrative hearings of an adjudicatory

nature. State Bd. of Tax Comm’rs v. Oliverius, 156 Ind. App. 46, 54, 294

N.E.2d 646, 651 (1973). Worman contends that Board’s permitting process

was adjudicatory and therefore the conversations between members of the

Board and the public constituted ex parte communications. Worman posits

that whether the Board was biased by these communications is an issue of

fact that must be reserved for at trial.

Worman’s argument proceeds from a misunderstanding of the permit

process. Ex parte communications are impermissible in adjudicatory

settings, but they are widely accepted and even expected in legislative

settings. We think that the Board is not an adjudicatory body for these

purposes and its permitting process is not analogous to the adjudicatory

function of a court. The Board is a local agency composed mostly of

locally elected officials. I.C. § 13-21-3-5. By statute, the Board is

made up of officials from the county executive, the county fiscal body, the

executives of cities in the District, and members of the legislative bodies

of cities in the District. Id. These officials, by the nature of their

executive or legislative positions, are expected to be open and respond to

the concerns of their constituents. The permitting process is not subject

to the Administrative Orders and Procedures Act (AOPA) because the District

does not have statewide jurisdiction. I.C. §§ 4-21.5-2-3; 4-21.5-1-3.

Agencies subject to the federal Administrative Procedure Act, 5 U.S.C. §§

551, et. seq. (2000), are governed by an explicit statutory prohibition

against ex parte communications in adjudicatory proceedings. 5 U.S.C. §

557(d)(1). But even those agencies, if engaged in permitting or licensing,

perform something of a hybrid function, and communications with industry

officials or others knowledgeable on the policy issues presented by a

license applicant may be appropriate. See Louisiana Ass’n of Indep.

Producers & Royalty Owners v. FERC, 958 F.2d 1101 (D.C. Cir. 1992); Kenneth

Culp Davis & Richard J. Pierce, Jr. Administrative Law Treatise § 8.4 (3d

ed. 1994). Here, although the permitting process has some aspects of

adjudication, it is not purely adjudicatory. Rather, the permitting

process has characteristics of both legislative and adjudicatory roles, and

is most analogous to licensing, a hybrid function properly subject to less

restrictive processes than court or administrative adjudication. See Frank

E. Cooper, State Administrative Law 483 (1965) (“Licensing activities

constitute a distinctive genre, partaking of the characteristics both of

rule making and adjudication.”).

District members are local officials who are expected to receive

citizen input in a less formalized manner than a court proceeding.[2] The

statute does not purport to convert this Board into judges subject to

judicial standards, and includes no restriction on their contacts.

Accordingly, we do not find the permitting process fatally flawed by these

contacts with the public or independent investigations by members. If the

legislature chooses, it may impose more restrictions on the District’s

permitting process. In the absence of a legislative declaration that Board

members are not to engage in ex parte communications, we believe the Board

is sufficiently distinct in composition and function that it is not subject

to the prohibitions against ex parte communications that apply to

administrative agencies under AOPA and to courts under the Code of Judicial

Conduct.

III. Challenged Permit Conditions

In addition to challenging the general authority of the District to

regulate its facility and challenging alleged ex parte communications

between members of the District and members of the public, Worman

challenges several specific conditions of its permit.

As an initial matter, the District contends these claims are waived.

Letters from Worman’s attorney to the District state that various

conditions in the permit are “acceptable.” The District argues that these

statements constitute a waiver of challenges to these provisions.[3] The

District also argues that Worman is estopped from challenging those

conditions because the letters invited the District to issue a permit

containing those conditions.

Worman responds that the letters the District cites were written in an

attempt to reach a compromise regarding the permit pursuant to the

settlement agreement of the first lawsuit. In that lawsuit the District

had sued Worman for operating its facility without a permit. The parties

settled, agreeing that Worman would submit a permit application. The

settlement agreement provided: “The parties agree that if and when permits

as referred to above have been issued to Worman with terms and conditions

mutually acceptable to the District and Worman, then and only then shall

the parties dismiss with prejudice the pending lawsuit.” Worman reasons

that the communications between Worman and the District during the

permitting process were part of efforts to consummate the settlement and

are therefore inadmissible pursuant to Indiana Evidence Rule 408. That

Rule provides that evidence of conduct or statements in negotiations is not

admissible to prove liability, invalidity of a claim, or amount of a claim.

Although Worman stated that conditions in a draft permit were “acceptable”

in the context of trying to reach an agreement, we take this to be nothing

more than an indication that a proposed resolution of one issue was

acceptable if a package could be agreed upon. Worman and the District

never agreed upon a permit with all of the terms of the final permit at

issue here. The purpose of Evidence Rule 408 is to promote candor by

excluding admissions of fact or law. Interim negotiating concessions are

in that category. As a result, these statements are not admissible into

evidence to prove, as the District tries to do, that Worman has waived

them.

A. Permit condition B: Asphalt

Worman first challenges permit provision B which restricts recycling

of asphalt at the facility. This permit condition provides, “[a]sphalt

will be accepted only in reasonable quantities limited to use for on-site

road construction.” Worman argues that there is a dispute as to the

meaning of this condition and that it should be allowed to accept asphalt

for recycling purposes. Worman points out that, in his deposition, the

District’s Administrator said that he believed that in addition to the use

of asphalt for on-site construction, asphalt recycling would be allowed at

Worman’s facility. Worman asserts that because this statement conflicts

with the language of the permit, a genuine issue of material fact exists as

to the meaning of the permit terms. The Administrator does not have the

power to alter the permit by his recollection of it. The terms of the

permit are binding and are clear that asphalt should be used only for on-

site road construction. There is no issue for trial here.

The District promulgated Resolution 98-3 to provide itself and those

it regulates with guidelines for permitting and operating solid waste

facilities and clean fill sites. Worman argues that there is a genuine

issue of material fact as to whether the District has authority under

Resolution 98-3 to limit the use of asphalt to on-site uses because the

Resolution makes no express mention of asphalt. The Resolution requires a

permit application to include a description of the type of material to be

processed at the facility and “[a] detailed description of all processes

used in the handling, sorting, processing, and transportation of the waste

. . . .” The Resolution also contains a provision requiring the District

to review, among other things, whether the permit application satisfies the

requirements of the Resolution. If the application is complete, the

District is directed to grant the permit with whatever conditions that are

necessary to assure compliance with the Resolution. This framework makes

clear that permits will be granted based on the information given in the

application. In its original application, Worman did not list asphalt as a

type of material it would receive, but did explain that it would use

asphalt for on-site construction and roads. Worman did not describe any

other use for asphalt at the facility. In its amended application, Worman

included asphalt as a material that would be accepted, but did not describe

any use for asphalt other than for on-site construction and roads. The

District’s Resolution requires a description of all uses of material in a

permit application. The only use of asphalt Worman described in its permit

application was on-site road construction. The restriction on the use of

asphalt was therefore consistent with the District’s permit application and

with Resolution 98-3.

B. Permit Condition B: “Dimension Lumber”

Worman also challenges the permit condition prohibiting the handling

of “dimension lumber.” The application says, “Worman’s does not accept . .

. normal board lumber . . . .” The District argues that “normal board

lumber” is the same as “dimension lumber” and because Worman’s permit

application said it would not take “normal board lumber,” the District

properly prohibited dimension lumber. Worman does not define dimension

lumber except to say that it is different from “normal board lumber.”

Webster’s Dictionary defines “dimension” as “wood or stone cut to pieces of

specified size.” Merriam-Webster’s Collegiate Dictionary 325 (10th ed.

1993). This is a common enough definition of dimension lumber and is

equivalent to common usages of the term “board lumber.” Worman has not

raised a genuine issue of material fact as to its definition and whether it

can be excluded from the permit.

Worman also argues that this permit provision is unconstitutionally

vague because of lack of clarity of the term “dimension lumber.” Due

process requires that “standards should be written with sufficient

precision in order to give fair warning as to what the agency will consider

in making its decision.” Union Tank Car, Fleet Operations v. Comm’r of

Labor, 671 N.E.2d 885, 889 (Ind. Ct. App. 1996). “The test to be applied

in determining whether an administrative agency regulation can withstand a

challenge for vagueness is whether it is so indefinite that persons of

common intelligence must necessarily guess at its meaning and differ as to

its application.” Taylor v. Ind. Family & Soc. Servs. Admin., 699 N.E.2d

1186, 1192 (Ind. Ct. App. 1998) (quoting Ind. State Ethics Comm’n v.

Nelson, 656 N.E.2d 1172 (Ind. Ct. App. 1995)). Because “dimension lumber”

has a common, generally accepted usage, “cut to pieces of a specified

size,” this condition is specific enough to satisfy due process.

C. Permit Conditions C.9 and D.1: Fire Suppression and Dust Control

Permit condition C.9 calls for the use of fire suppression techniques

and condition D.1 requires the facility to prevent dust from blowing off of

the property onto other land. Worman argues that these conditions

generally apply to composting facilities and because Worman’s facility does

not compost, these conditions are not applicable to its facility. Whether

the facility composts or not, Section 2-5(d)(7) of Resolution 98-3 states

that a permit application must contain a description of the applicant’s

proposed procedures for controlling dust and fire. The provision grants

the District the authority to condition its permit on Worman’s proper

treatment of these problems. Indeed, Worman’s application includes a

section describing its fire prevention procedures. There is no issue for

trial here.

D. Permit Condition A.8: Lack of Compliance as Basis for Revocation of

Permit

Worman next challenges the permit provisions that reserve the

District’s right to revoke the permit if Worman fails to comply with its

requirements. Worman challenges these conditions on the ground that the

Resolution does not define a “material violation” and because the permit

cites “lack of compliance,” not “material violation” as basis for

revocation. The term “material” appears in innumerable statutes, and

revocation for material violation of conditions seems self-evidently within

the District’s authority. This contention is frivolous.

E. Permit Condition D.3: Odors

Worman argues that permit condition D.3 is beyond the scope of the

Resolution and unconstitutionally vague. This condition states “Odors will

be controlled by processing materials quickly minimizing the amount of time

odor causing materials are kept in piles and by introducing woodchips/or

[sic] leaves into green material and maintaining aerobic conditions.”

Section 9-6(a) of Resolution 98-3 provides, “Vectors, dust, odors, and

noise must be controlled at all times at the facility so that they do not

constitute a nuisance or a health hazard.” The District may impose permit

provisions that are reasonable to assure compliance with the Resolution,

and the Resolution contemplates the prevention of odor problems. Nor is

the provision unconstitutionally vague or overbroad. Worman focuses on the

requirement that processing is to be accomplished “quickly” and argues that

this term is impermissibly vague because there is no specific time that

materials are to be kept at the facility. Worman points out that a member

of the District expressed concern that “excessively large” piles of

material at the facility were not in compliance with the Resolution or the

permit. We agree that the provision does not impose any specific time

constraint on the processing of materials. The provision is in

implementation of the Resolution requirement that odors not become a

nuisance or health hazard. It is subject to this standard. To be sure,

one may debate what constitutes a nuisance but the District is not required

to anticipate all means by which this activity could constitute an

unreasonable risk to the health or convenience of others. Worman also

argues that this provision of the permit is not applicable to its facility

because it does not currently have an odor problem. If that is the case,

this condition would have no effect, but that does not render it invalid.

F. Permit Condition A.7: Closure Plan

Worman challenges permit condition A.7 which says, “the applicant will

submit a closure plan by April 01, 2001 and will include procedures to be

used to remove materials for sale or distribution.” Worman claims that

this provision is outside the scope of the Resolution. Section 10-1 of the

Resolution states, “A closure plan similar to that provided for in 329 IAC

10-37 may be required by the Board for clean fill sites, solid waste

processing facilities and incinerators where the proposed solid waste

storage or handling practices may pose a threat to human health and the

environment . . . .” Worman points to testimony of the District’s

Administrator that shutting down the facility would pose no danger to

health. But Worman’s application admits that the nature of the site is

such that a fire hazard is possible. This invokes the Resolution’s

provision for closure plans of facilities that may pose a danger to health

or the environment.

G. Permit Condition A.1 and A.9

Permit conditions A.1 and A.9 were challenged as beyond the scope of

the Resolution, but Worman did not elaborate this argument on appeal, so it

is waived. Ind. Appellate Rule 46(A)(8)(a); see also, Woodruff v. Klein,

762 N.E.2d 223, 229 (Ind. Ct. App. 2002).

H. Permit Conditions A.2, A.6, and D.2: Conditions within the

Jurisdiction of other Agencies

Worman argues that certain permit provisions are improper because they

lie within the exclusive jurisdiction of other governmental bodies. Worman

says that because violation of permit provisions might result in revocation

of the permit, the provisions amount to an attempt to enforce regulations

subject to the exclusive jurisdiction of state agencies.

First, condition A.2 provides, “the Applicant shall construct adequate

ingress and egress lanes on Zionsville Road by April 01, 2001 in order to

comply with conditions of the BZA special exception.” Worman argues that

this is an attempt to regulate that which is in the exclusive jurisdiction

of the Board of Zoning Appeals. The District points to Section 2-5(b)(12)

of its Resolution and argues, “Although the District may not have the

authority to enforce the requirements of the special exception granted by

the BZA, the District clearly has the authority to require Worman to submit

verification of proper zoning status.” We agree.

Next, permit condition A.6 requires Worman to submit a storm water

management plan in accordance with IDEM and Indiana Department of Natural

Resources requirements. Worman challenges this condition as within the

exclusive jurisdiction of IDEM and DNR. The District admits that Worman

has complied with this condition and this issue therefore is moot.

Last, Worman challenges permit condition D.2 which states that

“Compliance with appropriate Occupational Safety & Health Administration

(OSHA) and Indiana Occupational Safety & Health Administration (IOSHA)

noise standards will be required to minimize noise levels.” Section 2-

5(d)(7) of the Resolution provides that a permit application should

describe procedures for controlling noise. The District imposed this

permit provision to provide a standard by which noise will be measured for

purposes of enforcing its Resolution, which expressly allows for noise

control. We see no reason why the District may not adopt standards to

protect the general public that are drawn from other agencies whose concern

is, as in OSHA, a more limited constituency.

IV. Worman’s Equal Protection and Equal Privileges Rights

Worman also objects to certain provisions of the permit arguing that

these provisions violate its rights under the equal protection clause of

the United States Constitution and the equal privileges provision of the

Indiana Constitution. Quoting Phelps v. Sybinsky, 736 N.E.2d 809, 818

(Ind. Ct. App. 2000), trans. denied, that states, “The equal protection

clause guarantees that similar individuals will be dealt with in a similar

manner by the government,” Worman argues that because certain conditions of

its permit are not identical to counterpart provisions in other permits

issued by the District, a genuine issue of material fact exists as to

whether the District has violated its rights under the Equal Protection

Clause of the United States Constitution. Worman’s argument misses the

point. In the same paragraph of Phelps cited by Worman, the Indiana Court

of Appeals went on to explain that the Equal Protection Clause “does not

reject the government’s ability to classify persons or ‘draw lines’ in the

creation and application of laws, but it does guarantee that those

classifications will not be based on impermissible criteria or arbitrarily

used to burden a group of individuals.” Id. Essentially, disparate

treatment by the government, unless involving protected classes of

individuals, must have a rational basis.

Many of Worman’s equal protection arguments fail because Worman has

not shown any actual disparate treatment. For example, Worman argues

permit condition A.4, which requires documentation of the flow of material

through the facility, has not been included in other permits issued by the

District. The District responded that substantially similar provisions

have been included in other permits. In fact, some contain the exact

language used in Worman’s permit. Condition C.7 requires Worman to

document that it has recorded the permit for a clean fill processing and

recycling facility in the Recorder’s Office. The only difference between

this provision in Worman’s permit and similar provisions in other permits

cited by the District is the designation of the facility as a clean fill

and recycling facility. The other facilities are different types of

facilities and they are so designated. Condition D.3 of Worman’s permit

requires Worman to control odor and condition D.5 requires it to control

litter. The District again points out that other permits it has issued

contain the same or substantially similar terms.

Worman also argues generally that other permits for clean fill

facilities do not provide specific guidelines with respect to fire, dust,

odor, or noise, but instead are more generally required to address any

nuisance created. Worman is correct that it has been treated differently

than other permittees, but the permits to which Worman points were issued

before passage of Resolution 98-3. Nothing in the Equal Protection Clause

precludes government from imposing new requirements. City of New Orleans

v. Dukes, 427 U.S. 297, 304 (1976) (failed equal protection challenge to a

grandfather clause that exempted certain businesses from new regulations).

Worman also points to permits for similar facilities that do not require a

closure plan, as required by Worman’s permit. The District explains that

the other facilities at issue either do not accept organic materials or

bury them, so the facilities do not create the fire hazard presented by

Worman’s facility. Finally, Worman argues that other permits do not

contain Worman’s exceptions for asphalt and dimension lumber. But those

exceptions are based on Worman’s permit application. All of these

differences are grounded in a rational basis.

A separate analysis is required under the Equal Privileges Clause of

the Indiana Constitution, but we reach the same result.

Article 1, Section 23 of the Indiana Constitution imposes two

requirements upon statutes that grant unequal privileges or immunities

to differing classes of persons. First, the disparate treatment

accorded by the legislation must be reasonably related to inherent

characteristics which distinguish the unequally treated classes.

Second, the preferential treatment must be uniformly applicable and

equally available to all persons similarly situated. Finally, in

determining whether a statute complies with or violates Section 23,

courts must exercise substantial deference to legislative discretion.

Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).

Worman has failed to show disparate treatment in many of the permit

conditions, so the Equal Privileges Clause analysis ends for those

conditions. As to the others, the different treatment accorded Worman is

reasonably related to differences between Worman’s facility and the other

permittees. As a result, Worman has failed to raise a genuine issue of

material fact supporting its claim that its Equal Protection or Equal

Privileges rights have been violated.

Conclusion

We affirm the trial court’s grant of summary judgment.

SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.

-----------------------

[1] Indiana Code section 13-21-3-14(a) provides, with certain exceptions,

“. . . the powers of a district do not include the following . . . .”

Effective July 1, 2003, subsection (a) was amended to add a new subsection

(5) that reads: “The power to issue permits for an activity that is already

permitted by a state agency, except as provided by statute.” The parties

have advanced no arguments based on this amendment, which became effective

after the decision of the Court of Appeals in this case, and we express no

opinion as to its effect.

[2] The District’s Board of Directors consists of two people from the

county executive, one person from the county fiscal body, the executive of

the largest city or town in the county, one person who is either the

executive of or a member of the legislative body of a different city or

town, and, inexplicably, “one additional member from the membership of the

county executive.” I.C. § 13-21-3-5(a).

[3] The District claims Worman has waived its right to challenge provisions

A.1, A.2, A.4, A.6, C.7, C.9, D.1, D.2, D.3 and D.5.