Rosemary Adams Huffman v. Indiana Department of Environmental Management, et al.
Attorney for Appellant Attorneys for Appellee
Rosemary Adams Huffman Eli Lilly and Company
Indianapolis, Indiana Daniel P. McInerny
George T. Patton, Jr.
Attorneys for Appellee
Indiana Department of
Attorney General of Indiana
David L. Steiner
Deputy Attorney General of
Indiana Supreme Court
Rosemary Adams Huffman,
Appellant (Petitioner below),
Indiana Office of Environmental
Adjudication, Indiana Department
of Environmental Management,
and Eli Lilly and Company,
Appellees (Respondents below).
Appeal from the Marion Superior Court, No. 49F12-0201-MI-63
The Honorable Michael D. Keele, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0207-
June 30, 2004
The Indiana Office of Environmental Adjudication dismissed Rosemary
Huffman’s petition for administrative review of a decision of the Indiana
Department of Environmental Management renewing a pollution permit for Eli
Lilly and Company. We hold, as did the Court of Appeals, that whether a
person is entitled to seek administrative review depends upon whether the
person is “aggrieved or adversely affected” (as provided in statute) by the
administrative agency’s decision and that the rules for determining whether
the person has “standing” to file a lawsuit do not apply. We also conclude
that a portion of the Office of Environmental Adjudication’s determination
that Huffman was not entitled to seek administrative review was not
supported by substantial evidence.
Eli Lilly and Company (Lilly) petitioned the Indiana Department of
Environmental Management (IDEM) for renewal of a National Pollutant
Discharge Elimination System (NPDES) permit for its Greenfield
Laboratories. The permit allows Lilly to discharge pollutants into
Indiana’s waters, specifically into the Leary Ditch. IDEM renewed the
permit, and Rosemary Adams Huffman sought to challenge the permit’s renewal
by filing a Petition for Administrative Review with the Indiana Office of
Environmental Adjudication (OEA).
Huffman challenged the permit on several grounds: (1) Lilly did not
disclose its planned facility expansion and so IDEM was not able to
consider “the increased effluent that will result from this major
expansion”; (2) “Lilly did not disclose the scheduled Leary Ditch clean up
for which the taxpayers were recently assessed”; (3) IDEM accepted new
information and made a “substantial number of permit revisions” after “the
close of public comment . . . depriving the public of its right to review”;
and (4) “IDEM failed to address health risks to the residential use of
contiguous property from toxicology research and other Lilly activities
involving discharge of water.” (Appellant’s App. at 48.)
At a prehearing conference, Lilly claimed that Huffman lacked
standing to petition for administrative review. Chief Administrative Law
Judge Wayne E. Penrod ordered Huffman to provide evidence of her legal
interest in the property. Huffman filed an Amended Petition for
Administrative Review that asserted her “interest . . . is as a member of
the public and that her family has residential property, in which she has
had a legal interest for several years, contiguous to the Lilly property.”
(Id. at 41-42.) Lilly then filed a Motion to Dismiss Huffman’s Amended
Petition for lack of standing. In Huffman’s response to that motion, she
stated her legal interest more specifically – the property adjacent to
Lilly’s Greenfield Laboratories is owned by GreenWoods LLC; Huffman is the
sole owner of a corporation named DOS, Inc., that owns one unit of and is
the managing member of GreenWoods LLC.
Judge Penrod granted Lilly’s motion. He reasoned that the judicial
doctrine of standing applies to administrative proceedings and compliments
the statutory provision of “aggrieved or adversely affected,” the ground
relied upon by Huffman to seek administrative review. He then found that
Huffman had not demonstrated that she had standing to contest the permit.
The trial court affirmed Judge Penrod’s decision but the Court of Appeals
reversed, finding that “there is not substantial evidence to support the
dismissal of her petition.” Huffman v. IDEM, 788 N.E.2d 505, 506 (Ind. Ct.
App. 2003). IDEM and Lilly sought transfer, which we granted. 804 N.E.2d
757 (Ind. 2003) (table). We now reverse the trial court.
The Administrative Orders and Procedures Act (AOPA) limits judicial
review of agency action. Agency action subject to AOPA will be reversed
only if the court “determines that a person seeking judicial relief has
been prejudiced by an agency action that is: (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; (2) contrary
to constitutional right, power, privilege, or immunity; (3) in excess of
statutory jurisdiction, authority, or limitations, or short of statutory
right; (4) without observance of procedure required by law; or (5)
unsupported by substantial evidence.” Ind. Code § 4-21.5-5-14(d) (1998).
We give deference to an administrative agency’s findings of fact, if
supported by substantial evidence, but review questions of law de novo.
LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000); Lutheran Hosp.
of Ft. Wayne v. State Dep’t of Public Welfare, 571 N.E.2d 542, 544 (Ind.
1991). The dispute in this case – whether Huffman is a proper party to
seek administrative review – involves both a question of law and a
determination of whether the OEA’s decision was supported by substantial
Both the OEA and the trial court held that the “judicial doctrine of
standing” applies to administrative proceedings and found that Huffman had
no standing. The Court of Appeals, reasoning that the “judicial doctrine
of standing applies to lawsuits filed in a trial court” and not to
administrative proceedings, looked to the language of AOPA to determine who
could seek administrative review. Huffman, 788 N.E.2d at 508. On petition
to our Court, Lilly and IDEM urge the construction put forth by the OEA and
the trial court. That is, they argue that a person must have the same
“standing” to invoke administrative review under AOPA as the person would
need to file a lawsuit in a trial court – and that because in their view
Huffman would not have had such standing, she cannot seek administrative
review. Huffman, for her part, contends that she would have had standing
to file a lawsuit and so is entitled to administrative review.
Our court has recently had several opportunities to discuss what the
OEA and lower courts here refer to as the “judicial doctrine of standing.”
This doctrine dictates “whether the complaining party [in a lawsuit] is the
proper person to invoke the court's power.” State ex rel. Cittadine v.
Ind. Dep’t of Transp., 790 N.E.2d 978, 979 (Ind. 2003); see also City of
Gary v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003); Embry v.
O'Bannon, 798 N.E.2d 157 (Ind. 2003). However, whether Huffman is the
proper person to file a lawsuit is not at issue in this case. Rather, the
question is whether Huffman is the proper person to invoke the OEA’s power
of administrative review of IDEM’s permit renewal decision. Subject to
constitutional constraints, of which none are asserted here, the
Legislature may dictate access to administrative review on terms the same
as or more or less generous than access to file a lawsuit. We therefore
find imposition of the “judicial doctrine of standing” inappropriate here
because AOPA itself identifies who may pursue an administrative proceeding.
AOPA provides that to qualify for administrative review of an agency
order, a person must:
(1) States facts demonstrating that:
(A) the petitioner is a person to whom the order is
(B) the petitioner is aggrieved or adversely affected by
the order; or
(C) the petitioner is entitled to review under any law.
Ind. Code § 4-21.5-3-7(a)(1) (1998). Huffman sought administrative review
under the provision for persons who are “aggrieved or adversely affected by
The statute does not define “aggrieved or adversely affected,” but
those words have a well-developed meaning. Black’s Law Dictionary 73, 1154
(8th ed. 2004), defines “aggrieved” as “having legal rights that are
adversely affected,” and “aggrieved party” as “a party whose personal,
pecuniary, or property rights have been adversely affected by another
person’s actions or by a court’s decree or judgment.” In another context,
we have defined “aggrieved” as:
[A] substantial grievance, a denial of some personal or property
right or the imposition upon a party of a burden or obligation.
. . . The appellant must have a legal interest which will be
enlarged or diminished by the result of the appeal.
McFarland v. Pierce, 151 Ind. 546, 547-48, 45 N.E.2d 706, 706-07 (1897)
(construing statute allowing appeal to the Indiana Supreme Court), quoted
in Stout v. Mercer, 160 Ind. App. 454, 460, 312 N.E.2d 515, 518 (1974)
(citations and quotations omitted); accord Bagnall v. Town of Beverly
Shores, 726 N.E.2d 782, 786 (Ind. 2000). Essentially, to be “aggrieved or
adversely affected,” a person must have suffered or be likely to suffer in
the immediate future harm to a legal interest, be it a pecuniary, property,
or personal interest.
The view that the rules of standing to file a lawsuit apply to
administrative proceedings originates from a case of this Court, Insurance
Commissioners of Indiana v. Mutual Medical Insurance, Inc., 251 Ind. 296,
241 N.E.2d 56 (1968), upon which IDEM and Lilly rely. At the time,
AOPA’s predecessor statute, the Administrative Adjudication Act (AAA), was
in effect, and allowed “all interested persons or parties” the ability to
seek administrative review of agency action. Ind. Code § 4-22-1-4
(repealed effective July 1, 1987).
In Mutual Medical, the Indiana State Podiatrists’ Association filed a
complaint against Mutual Medical Insurance Company with the Insurance
Commissioner, alleging that some of Mutual Medical’s insurance policies
illegally excluded certain services from compensation when those services
were performed by podiatrists. The Commissioner ruled for the Podiatrists’
Association but the trial court reversed and the Podiatrists’ Association
appealed. At the trial level and on appeal, Mutual Medical argued that the
Podiatrists’ Association did not have standing to participate in the legal
action because it had “no justiciable interest in the controversy.” Mutual
Medical, 251 Ind. at 299, 241 N.E.2d at 58.
This Court addressed two questions. First, whether an administrative
agency could “entertain a hearing on a complaint brought by a complainant
who has no justiciable interest in the alleged unlawful action charged.”
Id. We answered that question in the affirmative:
The Insurance Law and the Administrative Adjudication Act do not
contemplate the proposition that a complaint must be filed by a
party with legal standing to invoke the jurisdiction of the
Insurance Commissioner to review the legality of insurance
policy provisions. The personal merit, standing or legal
interests and motives of a private complainant under these
statutory provisions, are immaterial to the jurisdiction of the
Insurance Commissioner, if the practice complained of is one in
which the public generally has an interest.
Id. at 300, 241 N.E.2d at 59 (citations omitted) (emphasis added).
The Court then addressed a second question: “May a complainant, who
has no legal standing to sue, become a party to the administrative
proceeding with legal standing on appellate review.” Id. at 299, 241
N.E.2d at 58. We answered in the negative, because of two barriers.
First, the AAA had a provision limiting judicial review of “any order or
determination made by any such agency” to “[a]ny party or person
aggrieved.” Ind. Code § 4-22-1-14 (repealed effective July 1, 1987).
Second, the judicial doctrine of standing required that “in order to invoke
a court’s jurisdiction, a plaintiff must demonstrate a personal stake in
the outcome of the lawsuit and must show that he or she has sustained or
was in immediate danger of sustaining, some direct injury as a result of
the conduct at issue.” Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985).
But this situation created a problem. If a person was entitled to an
administrative hearing but not judicial review, it was possible that not
all sides would be represented on review and that review would then be
ineffective and incomplete. Mutual Medical, 251 Ind. at 301, 241 N.E.2d at
59-60. The Court tried to remedy this problem by holding that Indiana’s
“rules of standing are applicable to administrative proceedings”; if a
person did not have standing, the person could not become a party to the
administrative hearing. Id. Under the Court’s answer to the first
question, however, those without standing could still get a hearing if the
practice complained of was one in which the public generally had an
interest. Subsequent Court of Appeals’ cases have glossed over this nuance
and have read Mutual Medical for the proposition that the doctrine of
standing applies to administrative proceedings under the AAA. City of
Hammond v. Red Top Trucking Co., 409 N.E.2d 655, 657 (Ind. Ct. App. 1980);
Dep’t of Fin. Insts. v. Wayne Bank & Trust Co., 178 Ind. App. 265, 269-72,
381 N.E.2d 1100, 1103-05 (1978); Ind. Alcoholic Beverage Comm’n v. McShane,
170 Ind. App. 586, 596, 354 N.E.2d 259, 266 (1976); Bowen v. Metro. Bd. of
Zoning Appeals, 161 Ind. App. 522, 527, 317 N.E.2d 193, 197 (1974).
Mutual Medical was decided under the AAA, not AOPA. Unlike its
predecessor, the AAA, which allowed “all interested persons or parties” the
ability to seek administrative review, AOPA reserves administrative review
for a more narrow class. As a consequence, under AOPA, we do not
believe a situation will arise in which a party to administrative review
would not have standing to seek judicial review in court. Said
differently, the reach of the judicial standing doctrine certainly includes
persons aggrieved or adversely affected by administrative agency action
given that the definition of “aggrieved or adversely affected” requires
harm to a pecuniary, property, or personal interest. IDEM and Lilly warn
that if the definition of “aggrieved or adversely affected” “means
something different than the recognized standing requirement . . . . [this]
could open administrative tribunals to persons who have no real, personal
stake in the outcome of a case, but merely believe themselves to be
aggrieved.” (Pet. to Transfer at 8.) This argument ignores the fact that
the concept of “aggrieved” is more than a feeling of concern or
disagreement with a policy; rather, it is a personalized harm.
In any event, AOPA defines who can get administrative review. When a
statute is clear, we do not impose other constructions upon it. Ind. Bell
Tel. Co. v. Ind. Util. Regulatory Comm’n, 715 N.E.2d 351, 354 (Ind. 1999)
(citing Ind. Dep’t of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872
(Ind. 1994)). IDEM and Lilly assert that the legislative intent of the
statute was to bring it “into alignment with controlling Indiana case law”
on standing. (Pet. to Transfer at 7.) While the change in the language
from “all interested persons or parties” to “aggrieved or adversely
affected” suggests an intention to narrow the class of persons who can seek
administrative review, there is no clear evidence of a legislative intent
to make that class and the class of persons who have standing one in the
same. If that were so, one would think the Legislature would have used
phrases like “personal stake” or “direct injury” that were prevalent at the
time in the case law of standing. It did not.
Huffman takes the position that the common law doctrine of “public
standing” would provide her standing to invoke judicial review in a trial
court. “Public standing” allows persons with no personal stake in a matter
to bring suit when certain public rights are at issue. Huffman reasons
that if public standing is allowed at the trial court level, then it is
allowed at the administrative proceeding level, where the purpose “is to
develop public policy where public rights are at interest.” (Br. in Resp.
to Pet. to Transfer at 5.)
Just as the judicial doctrine of standing does not apply to
administrative proceedings, its public standing component is also
inapplicable. The language of AOPA does not allow for administrative
review based on a generalized concern as a member of the public. The
statute says “aggrieved or adversely affected” and this contemplates some
sort of personalized harm. To repeat, this is a different standard than
that under the previous AAA statute that allowed “all interested persons or
parties” the ability to seek administrative review and arguably allowed for
some type of public standing. Moreover, in many instances, the public is
allowed time to comment on administrative agency action before it occurs or
becomes final. Indeed, Huffman stated that she “actively expressed her
concerns during the public comment phase of IDEM’s decision-making.”
(Appellant’s App. at 33.) We therefore decline to find such an exception
We hold that the statute, and only the statute, defines the class of
persons who can seek administrative review of agency action.
With this understanding in mind, we now turn to whether the OEA
properly found that Huffman is not aggrieved or adversely affected. We
conclude that some of the OEA’s findings are not supported by substantial
evidence. This conclusion is largely based on the procedural treatment
given Lilly’s Motion to Dismiss.
Lilly brought its Motion to Dismiss under Indiana Trial Rule 12(B)(1)
and 315 Ind. Admin. Code 1 (2004). Under 315 Ind. Admin. Code 1-3-1(10),
administrative law judges may apply the rules of trial procedure to
administrative proceedings. In this instance, the administrative law judge
did not make clear the standard that he used in ruling on the motion. He
quoted the language of the statute, declaring that Huffman “stated no facts
demonstrating that she is personally aggrieved or adversely affected by the
Permit issuance.” (Appellant’s App. at 26.) Under that standard, the
judge examines the face of the petition to see whether any facts stated
indicate that the petitioner is aggrieved or adversely affected by the
administrative agency’s action. Here, however, the judge looked beyond the
face of the petition and considered additional evidence provided by both
sides in ruling on the motion to dismiss. Specifically, the judge
considered from the motion papers evidence of Huffman’s ownership interest
in the property and evidence of the pollutant discharge point into the
Leary Ditch. The trial court’s findings of fact and conclusions of law
rely on the same information.
On appeal, the court noted that although Lilly filed its motion under
12(B)(1), lack of subject matter jurisdiction, motions to dismiss for lack
of standing are properly brought under 12(B)(6), for failure to state a
claim. Huffman, 788 N.E.2d at 509-10. The court proceeded to evaluate
Lilly’s motion as a 12(B)(6) motion and found that there was not
substantial evidence supporting the OEA’s decision to dismiss Huffman’s
petition for review. Id. at 510-11.
If the administrative law judge intended to apply Indiana’s trial
rules, as Lilly requested by invoking Trial Rule 12(B)(1), the motion
should have been treated as a 12(B)(6) motion. The question here is
whether Huffman is a proper person to challenge Lilly’s permit and not
whether IDEM has subject-matter jurisdiction over challenges to the permits
it issues. IDEM always has jurisdiction over such challenges, and that
does not change depending upon the petitioner. The standard for a 12(B)(6)
motion is that articulated by the Court of Appeals:
In reviewing a Rule 12(B)(6) motion, a court is required to take
as true all allegations upon the face of the complaint and may
only dismiss if the plaintiff would not be entitled to recover
under any set of facts admissible under the allegations of the
complaint. This Court views the pleadings in a light most
favorable to the nonmoving party, and we draw every reasonable
inference in favor of that party.
Huffman, 788 N.E.2d at 510 (citations omitted); see also State Civil Rights
Comm’n v. County Line Park, Inc., 738 N.E.2d 1044, 1049 (Ind. 2000); Lawson
v. First Union Mortgage Co., 786 N.E.2d 279, 281 (Ind. Ct. App. 2003).
Trial Rule 12(B) also states that if, on a 12(B)(6) motion, “matters
outside the pleading are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56. In such case, all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule
56.” The standard of Trial Rule 56 is that “[t]he judgment sought shall be
rendered forthwith if the designated evidentiary matter shows that there is
no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).
The administrative law judge considered the additional information
provided in the motion papers, but never gave the parties an opportunity to
provide additional evidence or to develop the arguments more fully, such as
through a hearing. The consequence is that some of the findings are not
supported by substantial evidence.
The OEA appeared to base its decision on three considerations.
First, that Huffman brought the petition on her own behalf and not on
behalf of the corporation that owns the property. Second, that she did not
state facts showing how she was aggrieved or adversely affected by the
issuance of the permit. And third, that the point where Lilly discharged
pollutants was approximately 2800 feet west and downstream from the nearest
point of the property.
The OEA’s finding on this first issue is supported by substantial
evidence. A general rule of corporate law is that shareholders cannot
bring actions in their “own name to redress an injury to the corporation.”
Knauf Fiber Glass, GMBh v. Stein, 622 N.E.2d 163, 165 (Ind. 1993); Speedway
Realty Co. v. Grasshoff Realty Corp., 248 Ind. 6, 9 (Ind. 1966) (“It is
fundamental that every action must be prosecuted in the name of the real
party in interest.” (quotation and citation omitted)). The rationale for
this rule is twofold. First, if a shareholder sues for money damages for
injury to the corporation, there is a concern that the corporation itself
could still sue and inflict double punishment on the defendant. Meanwhile,
the shareholder has received money that is really owed to the corporation.
Second, there is a concern that the real party’s interests will not be
taken into account if that party is not represented in the action. The
shareholder and the corporation may have different interests and goals in
litigation, and the shareholder could act in ways that harm the
corporation, even if unintentionally.
Huffman is seeking to have the permit invalidated and is not seeking
damages, so the first concern is not present. But the second concern is.
Huffman stated in her response to the motion to dismiss that she owns a
corporation that owns one unit of and is the managing member of the
corporation that owns the property. Huffman argues that “[a] ‘property’
right is not a requirement.” (Br. in Resp. to Pet. to Transfer at 12.)
While that is true, it ignores instances where someone else has a property
right that is affected. In those situations, the holder of the property
right is the person who should bring claims based on harm to the property.
GreenWoods LLC, as the property owner and real party in interest, is
therefore the proper party to seek administrative review for harm to the
property. This issue is sufficiently clear from the information provided
by the parties that it needs no further development.
The OEA’s determinations on the second and third issues, however, are
not supported by substantial evidence. The OEA found that Huffman stated
no facts demonstrating how she was aggrieved or adversely affected by
Lilly’s permit. However, one of the bases for Huffman’s challenge to
Lilly’s permits was that “IDEM failed to address health risks to the
residential use of contiguous property from toxicology research and other
Lilly activities involving discharge of water.” (Appellant’s App. at 48.)
In Huffman’s response to the motion to dismiss, she stated that she “is
extremely concerned” by the permit “because she has in fact managed this
property since 1987 and that responsibility requires that she and her
agents be on the property with frequency.” (Id. at 33.) Under the
12(B)(6) standard, a motion to dismiss is inappropriate if a party could
recover under any set of facts admissible under the allegations of the
complaint. Particularly because the OEA never gave Huffman an opportunity
to provide additional evidence or to develop the argument more fully, it
was impossible for the OEA to tell what Huffman’s personal health claim was
and whether it had any merit. Dismissing this claim was therefore
The OEA also seemed to have based its decision in part on a statement
in Lilly’s motion to dismiss, which it quoted in its order:
Based upon calculations performed by Lilly, the Lilly discharge
point in Leary Ditch is approximately 2800 feet west and
downstream from the nearest point on the Adams Property, and
from the discharge point Leary Ditch continues to flow
downstream away from the Adams Property. The plain fact is that
Lilly’s permitted discharge to Leary Ditch has no impact,
adverse or otherwise, upon the Petitioner or the Adams Property.
(Appellant’s App. at 27.) IDEM and Lilly try to bolster this position by
pointing out that Huffman “did not dispute [that] the discharge did not
even touch the property in which she owns one unit of stock.” (Pet. to
Transfer at 9.) Huffman responds that she was not required to refute such
“an unsworn allegation.” (Br. in Resp. to Pet. to Transfer at 11.)
Motions brought under Trial Rule 12(B)(6) and Trial Rule 56 do not
need to be sworn or verified. Trial Rule 11 requires that an attorney or
unrepresented party sign every pleading or motion, thereby certifying “that
he has read the pleadings; that to the best of his knowledge, information,
and belief, there is good ground to support it; and that it is not
interposed for delay.” Ind. Trial Rule 11(A). Lilly’s attorney signed the
Motion to Dismiss. A party may make a summary judgment motion “with or
without supporting affidavits,” T.R. 56(A), and affidavits are defined as
“voluntary declaration[s] of facts written down and sworn to by the
declarant before an officer authorized to administer oaths.” Black’s Law
Dictionary 62 (8th ed. 2004). Lilly, however, submitted no affidavits with
its Motion to Dismiss. Therefore, the fact that the allegation regarding
the discharge point is “unsworn” is not a valid excuse for failing to
respond to it. Nevertheless, that one statement from Lilly is an
insufficient basis on which to dismiss Huffman’s petition. Even if what
Lilly and IDEM said was true about the position of the discharge point,
that alone does not prove that there is no harm to the property or to
Huffman from the discharge. This is precisely the type of fact that needs
further development before it can be resolved.
We conclude for these reasons that the OEA’s dismissal of Huffman’s
Petition for Administrative Review was not supported by substantial
We affirm the OEA’s dismissal of Huffman’s claim as it relates to
potential property damage and reverse as it relates to health problems. We
remand to the trial court with instructions to remand to the OEA for
further proceedings consistent with this opinion.
Shepard, C.J., and Boehm and Rucker, JJ., concur. Dickson, J., concurs in
result without opinion.
 The OEA was established in 1995 to review decisions made by the
commissioner of IDEM. Ind. Code § 4-21.5-7-3 (1998 & Supp. 2003), first
enacted by P.L. 41-1995, § 2; see also 315 Ind. Admin. Code 1-1-1 (2004);
315 Ind. Admin. Code 1-3-2 (2004). The OEA “hears all administrative
disputes arising from IDEM actions, including appeals of enforcement
actions or IDEM-issued permits.” Sharon A. Hilmes, OEA Adopts Final Rules
of Procedure, 8 Ind. Envtl. Compliance Update (July 1998). Prior to the
enactment of P.L. 41-1995, § 2, such administrative review was conducted
within IDEM itself.
 Both the OEA and trial court cite Indiana Alcoholic Beverage
Commission v. McShane, 170 Ind. App. 586, 596, 354 N.E.2d 259, 266 (1976),
but that case relied on Mutual Medical.
 Only one case has appreciated the nuance of Mutual Medical. In
Hazelett v. Blue Cross & Blue Shield of Indiana, the Court of Appeals
Our Supreme Court held that the Podiatrists’ Association did not
have legal standing and therefore could not be a party either to
the administrative proceedings or to the judicial review of
those proceedings. However, the court went on to state that the
standing of the Podiatrists’ Association was not required to put
the issue of the policy provision before the Commissioner.
400 N.E.2d 1134, 1136 (Ind. Ct. App. 1980).
 The legislature is always free to amend AOPA, and may enlarge the
class of persons who may seek administrative review.
 “Indiana cases recognize certain situations in which public rather
than private rights are at issue and hold that the usual standards for
establishing standing need not be met. This Court held in those cases that
when a case involves enforcement of a public rather than a private right
the plaintiff need not have a special interest in the matter nor be a
public official.” Cittadine, 790 N.E.2d at 980 (quoting Schloss v. City of
Indianapolis, 553 N.E.2d 1204, 1206 n.3 (Ind. 1990) (quoting in turn
Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985))).
 On Petition to Transfer, IDEM and Lilly argue that Huffman is
judicially estopped from asserting she has standing when she conceded in
her Amended Petition that she “did not actually own property next to
Lilly’s property and that she merely owned stock in a company that had an
interest in another company that had property adjacent to Lilly’s
Greenfield property.” (Pet. to Transfer at 10.) This is a
mischaracterization of Huffman’s argument. She has consistently argued
that she is aggrieved or adversely affected, and so the doctrine of
judicial estoppel simply has no relevance here.
 It was also noted that Huffman resides in Indianapolis, but that
is irrelevant if Huffman otherwise has a legal interest that is harmed by