312 IAC 3 — ARTICLE 3. ADJUDICATORY PROCEEDINGS

TITLE 312 NATURAL RESOURCES COMMISSION

ARTICLE 3. ADJUDICATORY PROCEEDINGS

Rule 1

312 IAC 3-1-1 312 IAC 3-1-1 Administration

Rule 1. Procedural Rules

312 IAC 3-1-1 Administration

Authority: IC 14-10-2-2.5; IC 14-10-2-4; IC 25-31.5-3-8

Affected: IC 4-21.5; IC 14; IC 25

Sec. 1. (a) This rule controls proceedings governed by IC 4-21.5 for which the commission, or an administrative law judge for the commission, is the ultimate authority. In conjunction with 315 IAC 1-1, this rule also governs a proceeding consolidated with the office of environmental adjudication under IC 14-10-2-2.5(b).

(b) An affected person who is aggrieved by a determination of:

(1) the director;

(2) a delegate of the director;

(3) a board (other than the commission when acting as the ultimate authority);

(4) a delegate of the board (other than an administrative law judge);

(5) a person who has been delegated authority under 312 IAC 2-2;

(6) the Indiana board of licensure for professional geologists under IC 25-17.6; or

(7) the Indiana board of registration for soil scientists under IC 25-31.5;

may apply for administrative review of the determination under IC 4-21.5 and this rule.

(c) As used in this rule, "division director" refers to the director of the division of hearings of the commission.

(Natural Resources Commission; 312 IAC 3-1-1; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1317; filed Oct 19, 1998, 10:12 a.m.: 22 IR 748; filed Aug 29, 2002, 1:03 p.m.: 26 IR 7; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; filed Apr 3, 2009, 2:00 p.m.: 20090429-IR-312080688FRA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-2 312 IAC 3-1-2 Ultimate authority

312 IAC 3-1-2 Ultimate authority

Authority: IC 14-10-2-2.5; IC 14-10-2-4; IC 25-31.5-3-8

Affected: IC 4-21.5-4; IC 14-34; IC 25-17.6; IC 25-31.5

Sec. 2. (a) Except as provided in this section, the commission is the ultimate authority for the department and any department board.

(b) Except as provided in subsection (d), an administrative law judge is the ultimate authority for an administrative review under the following:

(1) An order under IC 14-34, except for a proceeding:

(A) concerning the approval or disapproval of a permit application or permit renewal under IC 14-34-4-13; or

(B) for suspension or revocation of a permit under IC 14-34-15-7.

(2) An order granting or denying temporary relief under IC 14-34 or an order:

(A) voiding;

(B) terminating;

(C) modifying;

(D) staying; or

(E) continuing;

an emergency or temporary order under IC 4-21.5-4.

(3) An order designated as a final order in section 9 of this rule.

(4) A final agency action by an administrative law judge under IC 14-22-32-5.

(c) An administrative law judge is also the ultimate authority for the following:

(1) The Indiana board of licensure for professional geologists under IC 25-17.6.

(2) The Indiana board of registration for soil scientists under IC 25-31.5.

(d) For a proceeding consolidated with the office of environmental adjudication under IC 14-10-2-2.5(b), the panel described in IC 14-10-2-2.5(c) is the ultimate authority for administrative review.

(Natural Resources Commission; 312 IAC 3-1-2; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1317; filed Oct 19, 1998, 10:12 a.m.: 22 IR 749; filed Dec 26, 2001, 2:42 p.m.: 25 IR 1543; filed Aug 29, 2002, 1:03 p.m.: 26 IR 8; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; filed Apr 3, 2009, 2:00 p.m.: 20090429-IR-312080688FRA; errata filed Jan 20, 2012, 2:33 p.m.: 20120201-IR-312120052ACA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-2.5 312 IAC 3-1-2.5 Applicable provisions of the code of judicial conduct to administrative law judges

312 IAC 3-1-2.5 Applicable provisions of the code of judicial conduct to administrative law judges

Authority: IC 14-10-2-4

Affected: IC 4-21.5

Sec. 2.5. (a) The following definitions apply throughout this section:

(1) "Administrative law judge" means an administrative law judge for the natural resources commission.

(2) "Code of judicial conduct" refers to the code of judicial conduct adopted by the Indiana supreme court, effective March 1, 1993 (including amendments received through October 15, 2009).

(b) This section is intended to assist with the implementation of IC 14-10-2-2(a)(2)(C) [IC 14-10-2-2 repealed by P.L. 92-2025 SECTION 14, effective July 1, 2025.] , which requires administrative law judges to comply with the applicable provisions of the code of judicial conduct.

(c) For purposes of this section, wherever in the code of judicial conduct the term:

(1) "court personnel" or a term of similar application is used, the term applies to an employee of the commission's division of hearings, other than an administrative law judge; and

(2) "judge" is used, the term applies to an administrative law judge.

(d) Unless otherwise specified in subsection (e), the provisions of the code of judicial conduct are applicable to an administrative law judge. These provisions shall be liberally construed to implement the intention of IC 14-10-2-2 [IC 14-10-2-2 repealed by P.L. 92-2025 SECTION 14, effective July 1, 2025.] .

(e) The following provisions of the code of judicial conduct are inapplicable to an administrative law judge:

(1) Canon 2.17 and 2.8(C).

(2) Canon 3.2 and 3.4.

(3) Canon 3.9 if mediation services are provided in the ordinary course of commission employment or on a pro bono publico basis.

(4) Canon 3.10, to the extent that the practice of law in a representational capacity on a pro bono publico basis pursuant to the Indiana Rules of Professional Conduct, Rule 6.1 is prohibited. Such practice of law shall, however, be conducted subject to all applicable requirements of the code of judicial conduct.

(5) Canon 3.15(B) and 3.15(C).

(6) Canon 4.

(Natural Resources Commission; 312 IAC 3-1-2.5; filed Jan 26, 2007, 10:48 a.m.: 20070214-IR-312060107FRA; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; filed Jan 5, 2011, 3:14 p.m.: 20110202-IR-312100162FRA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-3 312 IAC 3-1-3 Initiation of a proceeding for administrative review

312 IAC 3-1-3 Initiation of a proceeding for administrative review

Authority: IC 14-10-2-4; IC 25-31.5-3-8

Affected: IC 4-21.5-3-7; IC 4-21.5-3-8; IC 4-21.5-4; IC 14-34; IC 14-37-9; IC 25

Sec. 3. (a) A proceeding before the commission, under IC 4-21.5, as well as administrative review of a determination of the Indiana board of licensure for professional geologists or the Indiana board of registration for soil scientists, is initiated when one (1) of the following is filed with the Division of Hearings, Indiana Government Center-North, 100 North Senate Avenue, Room N103, Indianapolis, Indiana 46204-2273:

(1) A petition for review under IC 4-21.5-3-7.

(2) A complaint under IC 4-21.5-3-8.

(3) A request for temporary relief under IC 14-34.

(4) A request to issue or for review of an issued emergency or other temporary order under IC 4-21.5-4.

(5) A request concerning an integration order under IC 14-37-9.

(6) An answer to an order to show cause under section 5 of this rule.

(7) A referral by the director of a petition for and challenge to litigation expenses under section 13(g) of this rule.

(b) As soon as practicable after the initiation of administrative review under subsection (a), the division director shall appoint an administrative law judge to conduct the proceeding.

(Natural Resources Commission; 312 IAC 3-1-3; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1317; filed Oct 19, 1998, 10:12 a.m.: 22 IR 749; filed Dec 26, 2001, 2:42 p.m.: 25 IR 1543; filed Aug 29, 2002, 1:03 p.m.: 26 IR 8; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; filed Mar 4, 2008, 12:31 p.m.: 20080402-IR-312070486FRA; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; errata filed Aug 16, 2017, 2:55 p.m.: 20170823-IR-312170389ACA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-3.5 312 IAC 3-1-3.5 Participation by a party; representation

312 IAC 3-1-3.5 Participation by a party; representation

Authority: IC 14-10-2-4

Affected: IC 4-21.5; IC 14; IC 25; IC 30-5-2-2

Sec. 3.5. (a) Subject to subsection (d), any party may participate by and through an attorney in good standing admitted to practice law in Indiana pursuant to the Rules for Admission to the Bar and the Discipline of Attorneys.

(b) For purposes of this rule, a "corporation" includes the following:

(1) Domestic or foreign corporation.

(2) Not-for-profit corporation.

(3) Limited liability company.

(c) In addition to subsection (a) and subject to subsections (e) and (f), the following apply:

(1) A party that is an individual or is an unincorporated sole proprietorship may participate in a proceeding:

(A) in person; or

(B) by another individual designated in writing by the party.

(2) A party that is an incompetent individual may participate by the party's:

(A) next friend;

(B) court-appointed representative;

(C) attorney in fact, as defined at IC 30-5-2-2; or

(D) other fiduciary;

that possesses appropriate authority.

(3) A party that is a trust, partnership, association, or other unincorporated entity may participate in a proceeding by the trustee, partners, members, or other principals. Any trustee, partner, member, or principal that is:

(A) an individual or unincorporated sole proprietorship may participate as specified in subdivision (1);

(B) an incompetent individual may participate as specified in subdivision (2); or

(C) a corporation may participate as specified in subdivision (4).

(4) A party that is a corporation may participate in a proceeding by an individual who is duly authorized by corporate resolution, operating agreement, or other action taken in accordance with the governing rules of the corporation to provide representation for the corporation.

(5) A party that is a state agency, political subdivision, or other governmental entity may participate in a proceeding by an individual duly authorized by official action of the state agency, political subdivision, or other governmental entity to provide representation.

(d) An attorney who appears in a representative capacity on behalf of any party shall file an appearance as specified in Rule 3.1 of the Indiana Rules of Trial Procedure.

(e) A party designating an individual who is not an attorney to appear in a representative capacity on behalf of the party shall file a written designation of representative setting forth the following information:

(1) The designated representative's:

(A) name;

(B) address;

(C) telephone number;

(D) fax number; and

(E) electronic mail address.

(2) The represented party's:

(A) name;

(B) address;

(C) telephone number;

(D) fax number; and

(E) electronic mail address.

(3) An affirmation, signed by the party and the party's designated representative, acknowledging the following:

(A) The designation authorizes the representative to act in all respects on behalf of the party who will be bound by the act and omissions of the designated representative.

(B) The commission and any party will communicate exclusively with the designated representative.

(C) The designated representative is not an attorney in good standing admitted to practice law in Indiana pursuant to the Rules for Admission to the Bar and the Discipline of Attorneys.

(D) The designated representative may not:

(i) make legal arguments;

(ii) address legal issues; or

(iii) otherwise engage in the representation of a party through the application of knowledge, judgment or principles associated with a profession for which:

(AA) admission;

(BB) licensure;

(CC) permitting; or

(DD) registration;

is required by law unless the designated representative has acquired the necessary admission, license, permit, or registration.

(E) Issues not raised in the administrative proceeding by the designated representative may be waived on behalf of the party.

(F) The administrative law judge may reject or rescind the party's designation of representation by an individual who is not an attorney as specified in subsection (f).

(f) The administrative law judge may reject or rescind a party's designation of representative if, during the progression of a proceeding, the administrative law judge determines the following:

(1) The constitutionality of a law is at issue.

(2) An action's legality as a matter of law is at issue.

(3) The representation is causing delay prejudicial to the tribunal or any party.

(g) Nothing contained in this section shall be construed to:

(1) allow a person to appear in a representative capacity for a party without a license, permit, or registration required by law; or

(2) relieve an attorney from compliance with the Indiana Rules of Professional Conduct.

(h) The party, designated representative, or attorney may seek to terminate representation as follows:

(1) A motion to withdraw appearance by an attorney shall be in compliance with Rule 3.1(H) of the Indiana Rules of Trial Procedure.

(2) A designated representative who is not an attorney shall file a written motion to withdraw that includes the following verifications:

(A) The designated representative provided written notice of intent to withdraw to the party at least ten (10) days before filing the motion.

(B) The party's information as specified in subsection (e)(2).

(3) A party shall file a written motion to rescind a written designation of representative filed pursuant to subsection (e).

A party's, designated representative's, or an attorney's motion to withdraw representation shall be granted unless it is determined that the withdrawal is not reasonable or consistent with the efficient administration of justice.

(i) If not specified in any document incorporated by reference in this section, the version or edition of material incorporated by reference is the version or edition that was in effect on the effective date of this section.

(Natural Resources Commission; 312 IAC 3-1-3.5; filed Mar 18, 2019, 2:31 p.m.: 20190417-IR-312180272FRA; errata filed May 17, 2019, 11:33 a.m.: 20190529-IR-312190292ACA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-4 312 IAC 3-1-4 Answers and affirmative defenses

312 IAC 3-1-4 Answers and affirmative defenses

Authority: IC 14-10-2-4

Affected: IC 4-21.5; IC 14; IC 25

Sec. 4. (a) Except as provided in subsection (b) and in sections 5 and 13 of this rule, the matters contained in a pleading described in section 3(a) of this rule are deemed automatically denied by any other party.

(b) A party wishing to assert an affirmative defense, counterclaim, or cross-claim shall do so, in writing, filed and served not later than the initial prehearing conference, unless otherwise ordered by the administrative law judge.

(Natural Resources Commission; 312 IAC 3-1-4; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1317; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-5 312 IAC 3-1-5 Pleadings for and disposing of a show cause order issued under the Indiana Surface Mining Control and Reclamation Act

312 IAC 3-1-5 Pleadings for and disposing of a show cause order issued under the Indiana Surface Mining Control and Reclamation Act

Authority: IC 14-10-2-4

Affected: IC 4-21.5-3; IC 14-34-15-7; IC 15

Sec. 5. (a) This section governs the suspension or revocation of a permit under IC 14-34-15-7.

(b) When the director determines that a permit issued pursuant to IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25 should be suspended or revoked, the director (or a delegate of the director) shall issue to the permittee an order of permit suspension or revocation pursuant to IC 14-34-15-7. An order of permit suspension or revocation shall allege the following:

(1) A pattern of violations of:

(A) IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25; or

(B) any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

(2) The violations alleged in the order of permit suspension or revocation are either:

(A) willfully caused by the permittee; or

(B) caused by the permittee's unwarranted failure to comply with:

(i) IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25; or

(ii) any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

For the purposes of this subsection, the unwarranted failure of the permittee to pay any fee required under IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25 constitutes a pattern of violations and requires the issuance of an order of permit suspension or revocation.

(c) An order of permit suspension or revocation issued under subsection (b) shall be served by certified mail or by personal delivery. An order of permit suspension or revocation is governed by IC 4-21.5-3-6.

(d) A permittee who desires to contest an order of permit suspension or revocation must, within thirty (30) days of permittee's receipt of the order of permit suspension or revocation, file a petition for review pursuant to IC 4-21.5-3-7. A petition for review under this subsection shall set forth the following:

(1) The reasons in detail why a pattern of violations of IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25, or any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25 does not exist or has not existed, including all reasons for contesting:

(A) that the facts alleged in the order of permit suspension or revocation constitute a pattern of violations;

(B) the willfulness of the violations; or

(C) whether the violations were caused by the unwarranted failure of the permittee to comply with IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25, or any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

(2) All mitigating factors the permittee believes exist in determining the terms of the revocation or the length and terms of the suspension.

(3) Any other alleged relevant facts.

(4) Whether a hearing on the order of permit suspension or revocation is desired.

(e) If a petition for review is not filed by the permittee under subsection (d), the order of permit suspension or revocation shall become an effective and final order of the commission without a proceeding pursuant to IC 14-34-15-7(c).

(f) If a petition for review is filed by the permittee under subsection (d) and a hearing on the order is sought by the permittee, the matter shall be assigned to an administrative law judge for a proceeding under IC 4-21.5-3. The proceeding is commenced when the permittee files a petition for review under subsection (d). In a hearing conducted under this section, the director has the burden of going forward with evidence demonstrating that the permit in question should be suspended or revoked. The director satisfies the burden under this subsection upon establishing a prima facie case that:

(1) a pattern of violations of:

(A) any requirements of IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25; or

(B) any permit conditions required under IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25;

exists or has existed; and

(2) the violations were:

(A) willfully caused by the permittee; or

(B) caused by the unwarranted failure of the permittee to comply with:

(i) any requirements of IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25; or

(ii) any permit conditions required under IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

If the director demonstrates that the permit in question should be suspended or revoked, the permittee has the ultimate burden of persuasion to show cause why the permit should not be suspended or revoked. A permittee may not challenge the fact of any violation that is the subject of a final order of the director.

(g) Upon a determination by the administrative law judge that a pattern of violations exists or has existed, the administrative law judge shall issue a nonfinal order that does the following:

(1) Considers the factors set forth in 312 IAC 25-7-7.

(2) Need not find that all of the violations listed in the order of permit suspension or revocation occurred, but only that sufficient violations occurred to establish a pattern.

(3) Complies with the requirements of IC 4-21.5-3-27(a) through IC 4-21.5-3-27(d) and IC 4-21.5-3-27(g). The provisions of IC 4-21.5-3-27(e) and IC 4-21.5-3-27(f) shall not apply to permit suspension or revocation procedures.

(4) May, at any time prior to the conclusion of the hearing of record, allow the parties to submit briefs and proposed findings.

(h) The nonfinal order of the administrative law judge shall be submitted to the commission:

(1) Within ten (10) days following the date that the hearing of record is closed by the administrative law judge.

(2) Within ten (10) days of the receipt of the permittee's petition for review submitted under subsection (d) if no hearing is requested by any party and the administrative law judge determines that no hearing is necessary.

(i) To preserve for judicial review an objection to the nonfinal order of an administrative law judge, a party must object to the findings and nonfinal order in writing that:

(1) identifies the bases of the objection with reasonable particularity; and

(2) is filed with the commission within fifteen (15) days after the findings and nonfinal order are served on the party.

(j) After an administrative law judge issues a nonfinal order under subsection (g), the commission shall enter a final order affirming, modifying, or vacating the order of permit suspension or revocation. The final order of the commission shall be entered within forty-five (45) days following the issuance of the nonfinal order. The final order of the commission shall be issued within:

(1) sixty (60) days following the date that the hearing of record is closed by the administrative law judge; or

(2) sixty (60) days following the administrative law judge's receipt of the permittee's petition for review filed under subsection (d) if no hearing was requested by any party and the administrative law judge determined that no hearing was necessary.

(k) If the permit is suspended, the minimum suspension period shall be three (3) working days unless the commission finds that imposition of the minimum suspension period would result in manifest injustice and would not further the purposes of:

(1) IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25; or

(2) any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

The commission may impose preconditions to be satisfied prior to the suspension being lifted.

(l) The commission shall serve the parties with a copy of the final order of the commission as provided in IC 4-21.5-3-28. Following notification under this subsection, a party may apply for judicial review under IC 4-21.5 of any matter determined under this section.

(Natural Resources Commission; 312 IAC 3-1-5; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1317; filed Feb 7, 2000, 3:31 p.m.: 23 IR 1363; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; errata filed May 7, 2008, 10:49 a.m.: 20080521-IR-312080333ACA; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-6 312 IAC 3-1-6 Amendment of pleadings

312 IAC 3-1-6 Amendment of pleadings

Authority: IC 14-10-2-4

Affected: IC 14; IC 25

Sec. 6. (a) A pleading described in section 3(a) of this rule may be amended once as a matter of course before a response is filed, but not later than the initial prehearing conference or fifteen (15) days before a hearing (whichever occurs first), except by leave of the administrative law judge. Leave shall be granted where justice requires.

(b) If the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

(Natural Resources Commission; 312 IAC 3-1-6; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1319; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-7 312 IAC 3-1-7 Filing and service of pleadings and documents

312 IAC 3-1-7 Filing and service of pleadings and documents

Authority: IC 14-10-2-4

Affected: IC 1-1-9-1; IC 4-21.5-3-1; IC 4-21.5-3-29; IC 4-21.5-5; IC 14; IC 23-1-20-15; IC 25

Sec. 7. (a) Pleadings and documents must be filed with the commission and served on all other parties.

(b) The filing of a pleading or document may be performed by any of the following:

(1) Personal delivery.

(2) United States mail under any of the following categories:

(A) First class.

(B) Certified.

(C) Express.

(D) Priority.

(3) Private carrier.

(4) State interdepartmental mail.

(5) Electronic mail delivered to nrcaopa@nrc.in.gov.

(c) If an attorney or another authorized representative represents a party, service of a pleading or document must be made upon the attorney or other authorized representative. If an individual appears without separate representation, service must be made upon the individual.

(d) Filing with the commission is complete on the earliest of the following dates:

(1) The date on which the pleading or document is delivered by personal delivery or state interdepartmental delivery under subsection (b)(1) and (b)(4).

(2) For pleadings and documents sent by electronic mail under subsection (b)(5), the date of the electronic submission containing the document.

(3) The date of the postmark on the envelope containing the pleading or document if the pleading or document is sent by a category of United States mail described in subsection (b)(2) and is properly addressed.

(4) For a document or pleading sent by a private carrier as described in subsection (b)(3), the date on which the pleading or document is deposited with a private carrier, as shown by a receipt issued by the carrier, if the pleading or document is sent by a private carrier and is properly addressed.

(5) The date of receipt of the pleading or document sent under subdivision (2) or (3), if the date of deposit or postmark cannot be determined.

(e) This section does not modify the time in which a party may file objections under IC 4-21.5-3-29 or a petition for judicial review under IC 4-21.5-5.

(f) IC 4-21.5-3-1(d) and IC 4-21.5-3-1(e) govern service by publication.

(g) As used in this section, "private carrier" means a person, other than the United States Postal Service, that delivers mail as defined in IC 23-1-20-15.

(Natural Resources Commission; 312 IAC 3-1-7; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1319; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; filed May 4, 2005, 1:15 p.m.: 28 IR 2660; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; errata filed Jun 20, 2011, 12:23 p.m.: 20110629-IR-312110377ACA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; filed Sep 6, 2018, 11:30 a.m.: 20181003-IR-312170553FRA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA; filed Aug 16, 2022, 2:23 p.m.: 20220914-IR-312220076FRA)

312 IAC 3-1-7.5 312 IAC 3-1-7.5 Deadlines for filing of pleadings and responses

312 IAC 3-1-7.5 Deadlines for filing of pleadings and responses

Authority: IC 14-10-2-4

Affected: IC 4-21.5-3-1, IC 4-21.5-3-23; IC 14; IC 25

Sec. 7.5. (a) An adverse party shall have the following:

(1) Thirty (30) days after service of a motion to dismiss to serve a response.

(2) Twenty (20) days after service of any procedural motion other than a motion for continuance or extension of time to serve a response.

(3) Five (5) business days after service of a motion for continuance or extension of time to file a response.

(b) The deadlines may be shortened or extended with leave of the presiding administrative law judge.

(Natural Resources Commission; 312 IAC 3-1-7.5; filed Aug 16, 2022, 2:23 p.m.: 20220914-IR-312220076FRA)

312 IAC 3-1-8 312 IAC 3-1-8 Administrative law judge; automatic change (Repealed)

312 IAC 3-1-8 Administrative law judge; automatic change (Repealed)

(Repealed by Natural Resources Commission; filed Aug 16, 2022, 2:23 p.m.: 20220914-IR-312220076FRA)

312 IAC 3-1-9 312 IAC 3-1-9 Defaults, dismissals, and agreed orders

312 IAC 3-1-9 Defaults, dismissals, and agreed orders

Authority: IC 14-10-2-4

Affected: IC 4-21.5-3; IC 4-21.5-5; IC 14; IC 25

Sec. 9. (a) An administrative law judge may enter a final order of dismissal if the party who initiated administrative review requests the proceeding be dismissed.

(b) An administrative law judge may, on the motion of the administrative law judge or the motion of a party, enter a proposed order of default or proposed order of dismissal under IC 4-21.5-3-24, if at least one (1) of the following applies:

(1) A party fails to attend or participate in a prehearing conference, hearing, or other stage of the proceeding.

(2) The party responsible for taking action does not take action on a matter for a period of at least sixty (60) days.

(3) The person seeking administrative review does not qualify for review under IC 4-21.5-3-7.

(4) A default or dismissal could be entered in a civil action.

(c) Within seven (7) days after service of a proposed order of default or dismissal, or within a longer period prescribed by the proposed order, a party may file a written motion requesting the order not be imposed and stating the grounds relied upon. During the time within which a party may file a written motion under this subsection, the administrative law judge may adjourn the proceedings or conduct them without participation of the party against whom a proposed default order was issued, having due regard for the interest of justice and the orderly and prompt conduct of the proceeding.

(d) If the party fails to file a written motion under subsection (c), the administrative law judge shall issue an order of default or dismissal. If the party has filed a written motion under subsection (c), the administrative law judge may either enter or refuse to enter an order of default or dismissal.

(e) After issuing an order of default, but before issuing a final order or disposition, the administrative law judge shall conduct any action necessary to complete the proceeding without the participation of the party in default and shall determine all issues in the adjudication, including those affecting the defaulting party. The administrative law judge may conduct proceedings under IC 4-21.5-3-23 to resolve any issue of fact.

(f) An administrative law judge shall approve an agreed order entered by the parties if it is:

(1) clear and concise; and

(2) lawful.

(g) If the administrative law judge is not the ultimate authority, the secretary of the commission, as its designee under IC 4-21.5-3-28(b), may affirm the entry of an agreed order approved by the administrative law judge under subsection (f).

(h) A final order entered under this section is made with prejudice unless otherwise specified in the order. A person may seek judicial review of the order as provided in IC 4-21.5-5.

(Natural Resources Commission; 312 IAC 3-1-9; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1320; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; filed Sep 6, 2018, 11:30 a.m.: 20181003-IR-312170553FRA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-10 312 IAC 3-1-10 Applicability of rules of trial procedure and rules of evidence

312 IAC 3-1-10 Applicability of rules of trial procedure and rules of evidence

Authority: IC 14-10-2-4

Affected: IC 4-21.5; IC 14; IC 25

Sec. 10. Unless inconsistent with IC 4-21.5 or this rule, the administrative law judge may apply the Indiana Rules of Trial Procedure or the Indiana Rules of Evidence.

(Natural Resources Commission; 312 IAC 3-1-10; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1320; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-10.5 312 IAC 3-1-10.5 Consolidated proceedings with office of environmental adjudication

312 IAC 3-1-10.5 Consolidated proceedings with office of environmental adjudication

Authority: IC 14-10-2-2.5; IC 14-10-2-4

Affected: IC 4-21.5-3; IC 14; IC 25

Sec. 10.5. (a) This section controls the conduct of a proceeding presided over by an administrative law judge that is consolidated under IC 14-10-2-2.5 with a proceeding presided over by an environmental law judge of the office of environmental adjudication.

(b) Before acting on a motion for consolidation under IC 14-10-2-2.5(b), an administrative law judge or environmental law judge may do any of the following:

(1) Consult with any administrative law judge or environmental law judge that presides over a proceeding sought to be consolidated.

(2) Request documents, briefs, or oral arguments from the parties to the following:

(A) The proceeding pending before the administrative law judge or environmental law judge.

(B) The proceeding sought to be consolidated.

(c) If an administrative law judge or an environmental law judge enters an order for consolidation under IC 14-10-2-2.5(b), the order shall establish a panel that complies with IC 14-10-2-2.5(c).

(d) Unless otherwise agreed by the panel, the administrative law judge or environmental law judge that entered the order under subsection (c) shall perform the following functions:

(1) Open and maintain a new adjudicatory file that includes in its caption the phrase "In the Matter of Consolidated Proceeding under IC 14-10-2-2.5".

(2) Include true and authentic copies of all pleadings and documents previously filed and orders previously entered in the proceedings that have been consolidated.

(3) Rule upon routine motions and requests by the parties, including objections at hearing. This subdivision does not prohibit the administrative law judge or environmental law judge from consulting with another panel member or members before ruling.

(e) The panel may make any orders concerning a consolidated proceeding that are necessary and proper.

(f) The panel, in furtherance of convenience and to avoid prejudice, or when separate hearings may be conducive to expedition and economy, may order a separate hearing of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or any number of claims, cross-claims, counterclaims, third-party claims, or issues.

(g) In furtherance of convenience and to avoid prejudice, the panel may certify a disposition of fewer than all issues as being ripe for judicial review where:

(1) a dismissal is granted with prejudice;

(2) a summary judgment is granted under IC 4-21.5-3-23; or

(3) a separate hearing is conducted under subsection (f).

(h) On a party's motion or on the panel's motion, the panel may terminate a consolidated proceeding in furtherance of convenience and to avoid prejudice. If a party moves to terminate a consolidated proceeding because all issues of the department of natural resources or of the department of environmental management have been settled or adjudicated, the panel shall terminate the consolidated proceeding. An order for termination shall include any provisions that may reasonably support the convenience of the parties and the expeditious disposition by an administrative law judge or environmental law judge of the remaining proceeding.

(i) A final disposition of a consolidated proceeding shall be included both by the commission and by the office of environmental adjudication in their respective implementations of IC 4-21.5-3-32 and IC 4-21.5-3-27(c).

(Natural Resources Commission; 312 IAC 3-1-10.5; filed Apr 3, 2009, 2:00 p.m.: 20090429-IR-312080688FRA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-11 312 IAC 3-1-11 Conduct of hearing; separation of witnesses

312 IAC 3-1-11 Conduct of hearing; separation of witnesses

Authority: IC 14-10-2-4

Affected: IC 14; IC 25

Sec. 11. (a) An administrative law judge shall govern the conduct of a hearing and the order of proof.

(b) On a motion by a party before the commencement of testimony, the administrative law judge shall provide for a separation of witnesses.

(Natural Resources Commission; 312 IAC 3-1-11; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1320; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-12 312 IAC 3-1-12 Relief under IC 4-21.5-3-28 through IC 4-21.5-3-31, including disposition of objections to nonfinal orders of administrative law judge; commission objections committee

312 IAC 3-1-12 Relief under IC 4-21.5-3-28 through IC 4-21.5-3-31, including disposition of objections to nonfinal orders of administrative law judge; commission objections committee

Authority: IC 14-10-2-4

Affected: IC 4-21.5-1-6; IC 4-21.5-3; IC 14-10-1-1; IC 25

Sec. 12. (a) This section governs relief under IC 4-21.5-3-28 through IC 4-21.5-3-31, including the disposition of objections under IC 4-21.5-3-29.

(b) A party who wishes to contest whether objections provide reasonable particularity shall move, in writing, for a more definite statement. The administrative law judge may rule upon a motion filed under this subsection, and any other motion filed subsequent to the entry of the nonfinal order by the administrative law judge, and enter an appropriate order (including removal of an item from the commission agenda).

(c) If objections are timely filed, the objections shall be scheduled for argument before the commission committee established by subsection (d), simultaneously with the presentation by the administrative law judge of findings, conclusions, and a nonfinal order. Unless otherwise ordered by the commission committee, argument shall not exceed ten (10) minutes for each party and twenty (20) minutes for each side.

(d) For the review of objections, and to consider any other appropriate relief under IC 4-21.5-3-28 through IC 4-21.5-3-31, the chair of the commission shall appoint a committee consisting of at least three (3) members of the commission. To the extent practicable, the chair shall include persons on the committee who are licensed to practice law in Indiana. The chair shall announce the members of the committee during the first meeting of the commission held in a calendar year. The chair may supplement or modify the membership of the committee, as needed for the efficient conduct of the proceedings, during the course of the year. A member of the committee may serve through a designate where a designate is authorized under IC 14-10-1-1. A final determination by the committee is a final agency action of the commission under IC 4-21.5-1-6.

(e) At least ten (10) days before oral argument is scheduled on objections filed under subsection (c), a nonparty may file a brief with the commission committee. A copy of the brief must be served upon each party. The brief must not be more than five (5) pages long and cannot include evidentiary matters outside the record. Unless otherwise ordered by the commission committee, a nonparty may also present oral argument for not more than five (5) minutes in support of the brief. If more than one (1) nonparty files a brief, the administrative law judge shall order the consolidation of briefs if reasonably necessary to avoid injustice to a party. A nonparty who has not filed a brief at least ten (10) days before oral argument is first scheduled on objections may participate in the argument upon the stipulation of the parties.

(f) Upon the written request of a party filed at least forty-eight (48) hours before an oral argument to consider objections, the commission committee shall provide the services of a stenographer or court reporter to record the argument.

(g) If objections are not filed, the secretary of the commission may affirm the findings and nonfinal order. The secretary has exclusive jurisdiction to affirm, remand, or submit to the commission for final action, any findings and nonfinal order subject to this subsection. No oral argument will be conducted under this subsection unless ordered by the secretary.

(h) A party may move to strike all or any part of objections, a brief by a nonparty, or another pleading under this section that the party believes does not comply with this section. The administrative law judge shall act upon a motion filed under this subsection by providing relief that is consistent with IC 4-21.5 and this rule.

(Natural Resources Commission; 312 IAC 3-1-12; filed Feb 5, 1996; 4:00 p.m.: 19 IR 1320; filed Oct 19, 1998, 10:12 a.m.: 22 IR 749; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; filed May 27, 2003, 12:30 p.m.: 26 IR 3323; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-13 312 IAC 3-1-13 Awards of litigation expenses for specified proceedings

312 IAC 3-1-13 Awards of litigation expenses for specified proceedings

Authority: IC 14-10-2-4

Affected: IC 4-21.5; IC 14-22-26-5; IC 14-34-15-10; IC 14-37-13-7

Sec. 13. (a) This section governs an award of costs and expenses reasonably incurred, including attorney fees, under IC 14-22-26-5, IC 14-24-11-5, IC 14-34-15-10, or IC 14-37-13-7.

(b) Except as otherwise provided in this subsection, no award for costs and expenses, including attorney fees, shall be entered under IC 14-22-26-5, IC 14-24-11-5 [IC 14-24-11-5 repealed by P.L. 92-2025 SECTION 34, effective July 1, 2025.] , or IC 14-37-13-7 unless there is a finding that the person against whom the award is made acted for the purpose of harassing or embarrassing an opposing party. The department may obtain an award for reasonable expenses incurred to seize and hold an animal, without a showing of harassment or embarrassment, if the department prevails under IC 14-22-26.

(c) Costs and expenses may be awarded from the department to any person, other than a permittee or the permittee's authorized representative, who initiates or participates in a proceeding under IC 14-37-13-7, and who prevails in whole or part, achieving at least some degree of success on the merits, upon a finding that the person made a substantial contribution to a full and fair determination of the issues.

(d) Appropriate costs and expenses, including attorney fees, may be awarded under IC 14-34-15-10 only as follows:

(1) To any person from the permittee if the person initiates or participates in an administrative proceeding reviewing enforcement and a finding is made by the administrative law judge or commission that:

(A) a violation of IC 14-34, a rule adopted under IC 14-34, or a permit issued under IC 14-34 has occurred or that an imminent hazard existed; and

(B) the person made a substantial contribution to the full and fair determination of the issues.

However, a contribution of a person who did not initiate a proceeding must be separate and distinct from the contribution made by a person initiating the proceeding.

(2) To a person from the department, other than to a permittee or the permittee's authorized representative, who initiates or participates in a proceeding and who prevails in whole or in part, achieving at least some degree of success on the merits, upon a finding that the person made a substantial contribution to a full and fair determination of the issues.

(3) To a permittee from the department if the permittee demonstrates that the department issued a cessation order, a notice of violation, or an order to show cause why a permit should not be suspended or revoked in bad faith and for the purpose of harassing or embarrassing the permittee.

(4) To a permittee from a person where the permittee demonstrates that the person initiated a proceeding under IC 14-34-15 or participated in the proceeding in bad faith for the purpose of harassing or embarrassing the permittee.

(5) To the department where it demonstrates that a person sought administrative review or participated in a proceeding in bad faith and for the purpose of harassing or embarrassing the department.

(e) The commission may order a person requesting a hearing to pay the cost of the court reporter if the person requesting the hearing fails, after proper notice, to appear at the hearing.

(f) In determining what is a reasonable amount of attorney fees under subsection (b), consideration shall be given to the following factors:

(1) The nature and difficulty of the proceeding.

(2) The time, skill, and effort involved.

(3) The fee customarily charged for similar legal services.

(4) The amount involved in the proceeding.

(5) The time limitations imposed by the circumstances.

(6) For a party represented by an attorney who is a full-time, salaried employee of the party, consideration also shall be given to the prorated cost of:

(A) the salary of the attorney and clerical or paralegal employees of the party who assisted the attorney; and

(B) their employee benefits attributable to the time devoted to representation.

(g) A party who wishes to seek litigation expenses must petition the director within thirty (30) days after the party receives notice of the final agency action. A party wishing to challenge the petition for an award must deliver a written response to the director within fifteen (15) days of service of the petition. If a petition and challenge are delivered to the director under this subsection, the director shall refer the matter to the division of hearings of the commission for the conduct of a proceeding under IC 4-21.5.

(Natural Resources Commission; 312 IAC 3-1-13; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1321; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-14 312 IAC 3-1-14 Court reporter; transcripts

312 IAC 3-1-14 Court reporter; transcripts

Authority: IC 14-10-2-4; IC 25-31.5-3-8

Affected: IC 14; IC 25-17.6; IC 25-31.5

Sec. 14. (a) The commission (or, for administrative review of orders under IC 25-17.6, the Indiana board of licensure for professional geologists or under IC 25-31.5, the Indiana board of registration for soil scientists) shall employ and engage the services of a stenographer or court reporter, either on a full-time or a part-time basis, to record evidence taken during a hearing.

(b) A party may obtain a transcript of the evidence upon a written request to the administrative law judge.

(c) The party who requests a transcript under subsection (b) shall pay the cost of the transcript:

(1) as billed by the court reporting service; or

(2) if the transcript is prepared by an employee of the commission, as determined from time to time by the commission on a per page basis after consideration of all expenses incurred in the preparation of the transcript.

(d) For a proceeding in which the commission or its administrative law judge is the ultimate authority, a court reporter who is not an employee of the commission will be engaged to record a hearing upon a written request by a party filed at least forty-eight (48) hours before a hearing.

(Natural Resources Commission; 312 IAC 3-1-14; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1322; filed Oct 19, 1998, 10:12 a.m.: 22 IR 750; filed Dec 26, 2001, 2:42 p.m.: 25 IR 1543; filed Aug 29, 2002, 1:03 p.m.: 26 IR 9; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-15 312 IAC 3-1-15 Quasi-declaratory judgments

312 IAC 3-1-15 Quasi-declaratory judgments

Authority: IC 14-10-2-4

Affected: IC 4-21.5-3-5; IC 14-21-1; IC 25

Sec. 15. (a) A person may, in writing, request the department to interpret a statute or rule administered by the department as applicable to a specific factual circumstance. The request must:

(1) describe with reasonable particularity all relevant facts;

(2) cite with specificity the statutory or rule sections in issue;

(3) identify any other person who may be affected by a determination of the request; and

(4) describe the relief sought.

(b) The director, the director's delegate, or the state historic preservation review board (for an action controlled by IC 14-21-1) may, within forty-five (45) days, provide a written response to the request. The response may set forth an interpretation based upon the information provided in the request or may specify additional information needed to respond to the request. If additional information is specified, an additional forty-five (45) days is provided to the department in which to respond.

(c) If the department does not respond within the periods described in subsection (b), a general denial of the request is deemed to have resulted.

(d) If the person seeking the request under subsection (a) is aggrieved by the response of the department under subsection (b) or a general denial under subsection (c), that person may file a petition for administrative review under IC 4-21.5-3. The response constitutes a determination of status under IC 4-21.5-3-5(a)(5).

(e) This section does not excuse a person from a requirement to exhaust another administrative remedy provided by statute or rule. A person may not under this section void or modify a final order entered by the department in another proceeding. A request under this section does not toll or extend any time limitation imposed on the availability of another administrative remedy. A final order of the department under this section, which follows a contested proceeding under IC 4-21.5-3, provides the same precedent as a final order following any other contested proceeding under IC 4-21.5-3.

(Natural Resources Commission; 312 IAC 3-1-15; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1322; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-16 312 IAC 3-1-16 Continuances (Repealed)

312 IAC 3-1-16 Continuances (Repealed)

(Repealed by Natural Resources Commission; filed Sep 6, 2018, 11:30 a.m.: 20181003-IR-312170553FRA)

312 IAC 3-1-17 312 IAC 3-1-17 Record of proceedings; adjudicative hearings generally; record of the director for surface coal mining permits

312 IAC 3-1-17 Record of proceedings; adjudicative hearings generally; record of the director for surface coal mining permits

Authority: IC 14-10-2-4

Affected: IC 4-21.5-3-14; IC 4-21.5-3-33; IC 14-34-4-6; IC 14-34-4-13; IC 25

Sec. 17. (a) The record required to be kept by an administrative law judge under IC 4-21.5-3-14 commences when a proceeding is initiated under section 3(a) of this rule and includes the items described in IC 4-21.5-3-33.

(b) In addition to subsection (a), this subsection applies to a proceeding concerning the approval or disapproval of a permit application, permit revision application, or permit renewal under IC 14-34-4-13. However, nothing in this subsection precludes the admission of testimony or exhibits that are limited to the explanation or analysis of materials included in the record before the director, or the manner in which the materials were applied, used, or relied upon in evaluating the application. Upon a timely objection made before or during a hearing, the administrative law judge shall exclude testimony or exhibits that are offered but that identify or otherwise address matters that are not part of the record before the director under IC 14-34-4-13. The record before the director includes each of the following:

(1) The permit.

(2) The permit application as defined at 312 IAC 25-1-11.

(3) Documentation tendered or referenced, in writing, by the applicant or an interested person for the purposes of evaluating, or used by the department to evaluate, the application.

(4) The analyses of the department in considering the application, including the expertise of the department's employees and references used to evaluate the application.

(5) Documentation received under IC 14-34-4, including the conduct and results of any informal conference or public hearing under IC 14-34-4-6.

(6) Correspondence received or generated by the department relative to the application, including letters of notification, proofs of filing newspaper advertisements, and timely written comments from an interested person.

(Natural Resources Commission; 312 IAC 3-1-17; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1323; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; errata filed May 7, 2008, 10:49 a.m.: 20080521-IR-312080333ACA; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-18 312 IAC 3-1-18 Petitions for judicial review

312 IAC 3-1-18 Petitions for judicial review

Authority: IC 14-10-2-4; IC 25-31.5-3-8

Affected: IC 4-21.5-5-8; IC 14; IC 25

Sec. 18. (a) A person who wishes to take judicial review of a final agency action entered under this rule shall serve copies of a petition for judicial review upon the persons described in IC 4-21.5-5-8.

(b) The copy of the petition required under IC 4-21.5-5-8(a)(1) to be served upon the ultimate authority shall be served at the following address:

Division of Hearings

Natural Resources Commission

Indiana Government Center-North

100 North Senate Avenue, Room N103

Indianapolis, Indiana 46204-2273

This address applies whether the commission or an administrative law judge is the ultimate authority.

(c) Where the department or the state historic preservation review board is a party to a proceeding under this rule, a copy of the petition required under IC 4-21.5-5-8(a)(4) to be served upon each party shall be served at the following address:

Director

Department of Natural Resources

Indiana Government Center-South

402 West Washington Street, Room W256

Indianapolis, Indiana 46204

(d) Where the Indiana board of licensure for professional geologists is a party to a proceeding under this rule, a copy of the petition required under IC 4-21.5-5-8(a)(4) to be served upon each party shall be served at the following address:

Indiana State Geologist

Indiana University

611 North Walnut Grove

Bloomington, Indiana 47405-2208

(e) Where the Indiana board of registration for soil scientists is a party to a proceeding under this rule, a copy of the petition required under IC 4-21.5-5-8(a)(4) to be served upon each party shall be served at the following address:

Office of Indiana State Chemist

Purdue University

1154 Biochemistry

West Lafayette, Indiana 47907-1154

(f) The commission and its administrative law judge provide the forum for administrative review under this rule. Neither the commission nor the administrative law judge is a party.

(Natural Resources Commission; 312 IAC 3-1-18; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1323; filed Oct 19, 1998, 10:12 a.m.: 22 IR 750; filed Dec 26, 2001, 2:42 p.m.: 25 IR 1544; filed Aug 29, 2002, 1:03 p.m.: 26 IR 9; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; filed Mar 4, 2008, 12:31 p.m.: 20080402-IR-312070486FRA; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; errata filed Aug 16, 2017, 2:55 p.m.: 20170823-IR-312170389ACA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-19 312 IAC 3-1-19 Modification of final agency order

312 IAC 3-1-19 Modification of final agency order

Authority: IC 14-10-2-4

Affected: IC 4-21.5-3-29; IC 4-21.5-3-31; IC 14

Sec. 19. (a) A person who wishes to seek modification of a final agency action entered under this rule must file a petition with the administrative law judge and serve a copy upon each party.

(b) Except as provided in subsection (d), the administrative law judge may modify a final agency action only where the petitioner demonstrates each of the following:

(1) The petitioner is not in default under IC 4-21.5-3.

(2) Newly discovered material evidence exists.

(3) The evidence could not, by due diligence, have been discovered and produced at the hearing in the proceeding.

(c) The administrative law judge shall limit any hearing granted under subsection (b) to the issues directly affected by the newly discovered evidence. If an administrative law judge who is not the ultimate authority conducts the rehearing, IC 4-21.5-3-29 and section 12 of this rule apply to the review of the order resulting from the rehearing.

(d) The administrative law judge may, or shall upon the agreement of all parties, modify a final agency action to correct a clerical mistake or other error resulting from oversight or omission.

(Natural Resources Commission; 312 IAC 3-1-19; filed Jan 23, 2001, 9:50 a.m.: 24 IR 1613; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)

312 IAC 3-1-20 312 IAC 3-1-20 Remand following judicial review or appeal

312 IAC 3-1-20 Remand following judicial review or appeal

Authority: IC 14-10-2-4

Affected: IC 4-21.5-3-29; IC 4-21.5-3-31; IC 14

Sec. 20. (a) Except as provided in subsection (b), upon remand following judicial review or appeal, the administrative law judge who previously conducted the proceeding shall resume jurisdiction.

(b) If the administrative law judge who previously conducted the proceeding is unavailable or declines to resume jurisdiction, the division director shall appoint a substitute administrative law judge as soon as practicable.

(c) If the administrative law judge is not the ultimate authority, IC 4-21.5-3-29 and section 12 of this rule apply.

(Natural Resources Commission; 312 IAC 3-1-20; filed Jan 23, 2001, 9:50 a.m.: 24 IR 1613; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA; readopted filed Jul 21, 2020, 4:07 p.m.: 20200819-IR-312200206RFA)