Guide to IDEM Administrative Appeals

Overview

The following information is intended to explain the administrative appeal process of an Indiana Department of Environmental Management (IDEM) agency action.  This information is not a substitute for an attorney's advice or intended to cover every possible part of an administrative appeal.

Although not required, persons aggrieved by an IDEM agency action may wish to seek legal advice before seeking administrative review.  For information about self-representation, see www.in.gov/courts/selfservice/unrepresented. Please note that if a non-attorney wishes to appeal the issuance of a permit, both the permittee and IDEM will be represented by an attorney. For an appeal of any other agency action, IDEM will be represented.   If you are seeking an environmental law attorney, the following sites may be helpful: www.indylawyerfinder.com, inbar.reliaguide.com, or indianalegalhelp.org.

If appealing an IDEM decision without an attorney, you will need to be completely familiar with the following statutes (IC) and regulations (Indiana Administrative Code or IAC) for your appeal:

You can find the laws and regulations in the following locations:

• online by clicking the links above.
• County courthouse law libraries
• County public libraries.

You can find previous Final Decisions on OALP's webpage at www.in.gov/OALP/final-decisions. You also can find the laws and regulations pertaining to IDEM and OALP on the Indiana General Assembly’s web page at www.in.gov/legislative/ic_iac.

The Beginning of the Administrative Appeals Process

Petition for Administrative Review

If you wish to challenge an IDEM Notice of Decision, you must file a Petition for Administrative Review.  If you seek to have the effectiveness of a permit stayed during the Administrative Review, you must also file a Petition for Stay of Effectiveness pursuant to IC 4-21.5-3-3(d).  Please note that you can combine the Petitions into one document.  The Administrative Law Judge will then set the preliminary hearing for the Petition for Stay pursuant to IC 4-21-5-3-6(d) .

Failure to properly submit a request for review waives your right to administrative review and your right to judicial review pursuant to IC 4-21.5-5-4.  Note - the Petition for Administrative Review must contain the following information:

• the name(s), address(es) and telephone number(s) of the person(s) making the request, i.e. the Petitioner(s);
• the interest of the Petitioner making the request;
• identification of any Representative(s) of the Petitioner;
• the reasons, with particularity, for the request;
• a statement of facts demonstrating that the Petitioner is the person to whom IDEM’s Decision is specifically directed; the Petitioner is aggrieved or adversely affected by this Decision; or the Petitioner is entitled to administrative review of the Decision as a matter of law;
• the name, address and telephone number of the entity or individual to whom this Decision is specifically directed and the identification number of the decision;
• IDEM’s Decision identification number; and
• If you are appealing a permit, identification of the specific portions of the permit being appealed and the legal basis for the appeal.

To receive service of documents more quickly, please include your e-mail address.

If some of the required information is not included, a Notice of Incomplete Filing and Proposed Order of Default to correct any deficiency will be issued. The failure to provide the required information may result in the denial or dismissal of the Petition for Administrative Review.  See   IC 4-21.5-3 and 315 IAC 1-3-2.

Filing

Petitions must be submitted to OALP not later than 15 days after the date of IDEM’s Notice if delivered by email, or not later than 18 days after the date of the Notice if the Notice is delivered solely via US Mail.

If appealing an air permit, the Petition must be submitted within 30 days.

If appealing an enforcement action, the Petition must be submitted within twenty 20 days.

You may appeal IDEM’s Notice in its entirety or only specific portions.

Pursuant to IC 4-21.5-3-1(h)(4), all Petitions and related documents may be filed via U.S. mail or email at oalp@oalp.in.gov.  Documents must be received by 4:30 pm to be file marked that day. If mailed, and the postage stamp does not have postmark date, the date it is filed is the date it is received by OALP.  The filer will receive proof of filing for documents sent via email. If a party chooses to file any document via email, and that document contains more than 10 pages, the filer should also send a hard duplexed copy via US Mail.

Petitions filed via U.S. Mail must be sent to:

1. OALP, 100 North Senate Avenue, N802, Indianapolis, IN  46204-225.
2. IDEM Deputy Director of the Office of Legal Counsel and Criminal Investigation,100 North Senate Avenue, N-1307, Indianapolis, IN 46204-2251.
3. If appealing a permit, a copy must be sent to the Permittee.

Filing online is available via the OALP’s Individuals or Entities: File a Petition for Review webpage. Any document you file with OALP following the Petition must also be served the other parties of the appeal.

An ALJ will be assigned to your case when your Petition is received by OALP. The assigned ALJ will hear and make all decisions pertinent to the case.

Requests for Extension of Time

Requests for Extensions of Time should be labeled as such and should include information regarding the other parties’ response to the Request.  The Requests should be made two days in advance unless it is an emergency, a description of which should be included in the Request.

Petition for Stay of Effectiveness

All IDEM Decisions become effective if an appeal is not timely filed. Some appeals of agency actions are stayed automatically for 15 days (IC 4-21-5-3-5). For appeals of agency actions that are not automatically stayed, the action will become effective if a Petition for Stay of Effectiveness is not filed.  If the petitioner requests a stay, the ALJ will set a hearing date at which the petitioner may present evidence on why IDEM’s Decision should not take effect.  The petitioner has the burden of proof at this hearing and must present enough evidence to show:

• They will be irreparably harmed if the stay is not granted; and
• They are likely to win on the merits of the case; and
• The threatened injury that the petitioner will suffer if the stay is not granted is greater than the injury that the other party will suffer if the stay is granted; and
• The public interest will be served by the granting of the stay.

After the Petition for Administrative Review is Filed with OALP

Cause Number and Assignment of ALJ

OALP will assign a cause number to the case. You must reference the cause number in all your communication with OALP.

Assignment of an Administrative Law Judge

Once OALP receives a Petition for Review, an administrative law judge will be assigned to your matter and will promptly schedule an initial prehearing conference.  All administrative law judges must adhere to the Code of Judicial Conduct. The ALJ will keep all matters of the case confidential and between the parties, per Indiana Code § 4-21.5-3-11, so any communications between a party and the ALJ, including emails and phone calls, will be disclosed to both of the parties.

Note: At no time may a party talk to or communicate with the ALJ without all parties to the case being present or included in an email. Communicating directly with the ALJ without the other parties is called ex parte communication and it is prohibited to ensure that the ALJ remains impartial and to allow each party an opportunity to present their position in front of the other parties.

A Petition for Administrative Review, filed under IC 4-21.5-3-7(a), may be amended as a matter of course at any time within 30 days after the earlier of the following dates: (1) The initial prehearing conference. (2) The filing of a motion to dismiss. (3) Service of a notice of incomplete petition and order to supplement. Otherwise, a party may amend his or her petition only by leave of the presiding ALJ or by written consent of all parties.  315 IAC 1-3-2(e).

Initial Prehearing Conference

The ALJ will issue an order that requires the parties to appear at a prehearing conference. You will receive notice of this conference and any other order issued by the presiding ALJ.  OALP encourages the parties to attempt to contact each other prior to the Conference.

The initial prehearing conference will provide the parties and the ALJ an opportunity to discuss the issues being contested in the proceeding, a schedule going forward, a hearing date, mediation or resolution of the contested issues through dispute resolution, and any other matters the parties need to discuss.  The prehearing conference is not an evidentiary hearing, and no evidence will be taken.

Parties may also discuss whether either party believes the proceeding should be dismissed for a legal reason.  Any party believing a proceeding should be dismissed may file a motion to dismiss for the ALJ to review. The ALJ will allow the other party an opportunity to respond to any motion to dismiss prior to making a ruling on the motion. An ALJ, sua sponte, can dismiss or default any party that does not appear at a conference or other scheduled hearing.

Joint Status Reports or Status Conferences

If the parties inform the ALJ that they are trying to settle the case, the ALJ will issue an Order to Submit Joint Status Report that requires the parties to send a written Report to OALP.  If the parties are not moving the case toward settlement, the ALJ will issue an Order for Status Conference which requires the parties to appear online to discuss why the case is not progressing.

Often, if the parties do not reach settlement, the ALJ will hold a Final Pre-Hearing Conference to map out the course of the hearing.

For additional information about the administrative hearings process, please see: www.in.gov/oalp/oalp-resources/general-information-about-the-administrative-hearings-process.

REMEMBER:

• No party is allowed to communicate with an ALJ without all parties present.
• An OALP employee cannot give legal advice.
• A party must send copies of all documents to all other parties.
• The Petitioner or the Petitioner’s representative must appear at all conferences, hearings, or any other meetings ordered by the ALJ unless you ask for and are granted a continuance
• Once issued, include the cause number (starting with “IDEM”) on all correspondence or documents you file with OALP.
• Any time you file a document with OALP, you must send a copy to all other parties.
• At a hearing, you must provide a copy of all documents to each party, including yourself and the court reporter. For example, if there are three parties in your Cause, you should have the original (which is given to the presiding ALJ) and four copies (one for yourself, two for the other parties and one for the court reporter).
• IDEM and OALP are separate agencies. It is important to note that information that may be available to IDEM may not have been made available to the OALP.

After the ALJ Issues the Findings of Fact, Conclusions of Law and Final Order

A party is eligible to seek Judicial Review of the Final Order pursuant to the requirements of IC 4-21.5-5.  A Petition for Judicial Review of this Final Order is considered timely only if it is filed with a state civil court of competent jurisdiction within 30 days after the date the Final Order is served.

OALP maintains a database of Final Orders issued in contested cases.  Each OALP final Order contains an index.  Each final order is indexed by Case Name and subject matter required by IC 4-21.5-3-32.

OALP's Decisions Database indexes Final Orders from appeals of IDEM’s final agency actions on Permitting or Enforcement concerning Air, Land, Water and Excess Liability Trust Fund ("ELTF"). You may choose to search all Final Orders or limit your search to Final Orders concerning specific years or media.