
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.

