Guide to Administrative Appeals

The following information is intended to explain the process to initiate an administrative appeal of an IDEM agency action.  This information is neither intended to be a substitute for an attorney's advice nor is it 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  https://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:  https://www.indylawyerfinder.com/, https://inbar.reliaguide.com/home, or  https://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 OEA’s web page by clicking on Final Orders. You also can find the laws and regulations pertaining to IDEM and OEA on the Indiana General Assembly’s web page at www.in.gov/legislative/ic_iac/.

Generally speaking, the following represent and explain the parts of an administrative appeal:

The Beginning of the Administrative Appeals Process

Petition for Administrative Review

If you wish to challenge an IDEM Notice of Decision or Determination, IC 13-15-6-1 and IC 4-21.5-3-7 require that you 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 (1) document.  The Environmental 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 by OEA and your right to judicial review pursuant to IC 4-21.5-5-4.  The Petition for Administrative Review must contain the following information:

• the name, address and telephone number of the person making the request;
• the interest of the person making the request;
• identification of any persons represented by the person making the request;
• the reasons, with particularity, for the request;
• a statement of facts demonstrating that you are the person to whom the determination is specifically directed; you are aggrieved or adversely affected by this determination; or you are entitled to review as a matter of law;
• the name, address and telephone number of the entity or individual to whom this determination is specifically directed and the identification number of the determination; and

a copy of the challenged IDEM determination along with identification of the specific portions of the determination being appealed and the legal basis for your challenge.

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

If some of the required information is not included, you will receive a Notice of Incomplete Filing and Default to correct any deficiency. 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 OEA not later than fifteen (15) days after the date of the Notice if delivered by email, or not later than eighteen (18) days after the date of the Notice if the Notice is delivered solely via US Mail unless you are appealing an air permit which requires submission within thirty (30) days or an enforcement action which requires submission within twenty (20) days.  You may appeal an IDEM’s Notice in its entirety or only specific portions.

Pursuant to IC 4-21.5-3-1(h)(4), all documents pertaining to the Cause may be filed via U.S. mail or email at frontdesk@oea.in.gov. As required by 315 IAC 1-3-3(d), documents need to 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 OEA.  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 ten (10) pages, the filer must also send a hard duplexed copy via US Mail.

Petitions must be sent to OEA, the IDEM Deputy Director of the Office of Legal Counsel and Criminal Investigation,100 North Senate Avenue, N-1307, Indianapolis, IN 46204, and to the Permittee if appealing the issuance of a permit.

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 (2) 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 actions become effective if an appeal is not timely filed. Some appeals of agency actions are stayed automatically for fifteen (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 requested. Stays do not apply to most enforcement actions, because they are automatically stayed by the filing of an appeal. If you do not want the IDEM action to become effective, you must ask for the stay and prove that a stay is necessary. If you request a stay, the ELJ will set a hearing date at which you may present your evidence on why IDEM’s action should not take effect.  You have the burden of proof at this hearing and must present enough evidence to show:

• You will be irreparably harmed if the stay is not granted; and
• You are likely to win on the merits of the case; and
• The threatened injury that you 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 OEA

Cause Number and Assignment of ELJ

OEA will assign a cause number to the case. Here is an example: 22-A-J-3500. The first number, 22, is the year that the case was filed (2022). The first letter refers to the type of case.

• A refers to an air pollution issue.
• S refers to a solid or hazardous waste issue.
• W refers to a water pollution issue.
• F refers to an excess liability trust fund (ELFT) issue.

The second letter refers to the type of action being appealed.

• J refers to a permit action.
• E means that an enforcement action is being appealed.

The last number is a sequential number assigned as the cases are filed with OEA. You are required to reference the cause number in all your communication with OEA.

Here is an example of a 327 IAC 3 permit appeal caption:

An ELJ will be assigned to your case when your appeal is received by OEA. The assigned ELJ will hear and make all decisions pertinent to the case.

Note:  At no time may a party talk to or communicate with the ELJ without all parties to the case being present or included in an email. Communicating directly with the ELJ without the other parties is called ex parte communication and it is prohibited to ensure that the ELJ 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 thirty (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 ELJ or by written consent of all parties.  315 IAC 1-3-2(e).

Initial Prehearing Conference

The ELJ 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 ELJ.  OEA encourages the parties to attempt to contact each other prior to the Conference.

The initial prehearing conference will provide the parties and the ELJ 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 Conference is not a 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 ELJ to review. The ELJ will allow the other party an opportunity to respond to any motion to dismiss prior to making a ruling on the motion. An ELJ, sua sponte, can dismiss or default any party that does not appear at a conference or other scheduled hearing.

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

Discovery

Discovery is a legal term that refers to the process where the parties exchange evidence. This is accomplished using interrogatories (written questions), depositions (testimony given under oath in front of a court reporter but without an ELJ present), requests for production of documents and/or requests for admissions (a request to admit whether a fact is true). It is important to know that if you receive such a request, failure to respond to it can be used against you. It is also important to know that your response to these requests must be given under oath.  Parties can conduct discovery without an Order from an ELJ.

Summary Judgment

Summary judgment is a judgment entered by a court in favor of one party and against the other without a full hearing. At the conclusion of discovery, if one party believes, based on the facts and law, that there is no genuine issue as to any material fact and they are entitled to judgment as a matter of law, they may file a motion for summary judgment. The other party will have an opportunity to respond to the motion and designate evidence in support of their position.  See Indiana Rule of Court, TR 56.

If the ELJ determines a hearing is necessary to review remaining issues following summary judgment motions, an evidentiary hearing will take place where each party can submit evidence and question witnesses.

Burden of Proof

Burden of proof generally describes the standard that a party seeking to prove a fact in court must satisfy to have that fact legally established.  The burden of proof is on the individual or entity that files either a Petition for Administrative Review or a Petition for Stay of Effectiveness.  Specifically, IC 4-21.5-3-14 provides that at each stage of an administrative review, “the agency or other person requesting that an agency take action or asserting an affirmative defense specified by law has the burden of persuasion and the burden of going forward with the proof of the request or affirmative defense.” This means that, in cases where the Petitioner is requesting that the agency, board, or commission do something (i.e., approve an application, grant its variance request, etc.), the Petitioner will be responsible for proving it is entitled to whatever it is seeking. However, that burden rests upon IDEM or its environmental rules board, when it is enforcing a rule that has been violated or defending a newly promulgated rule.

At a minimum, the ELJ’s findings in the appeal must be based upon the kind of evidence that is substantial and reliable.  IC 4-21.5-3-27(d). “[S]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the decision.” St. Charles Tower, Inc. v. Bd. of Zoning Appeals, 873 N.E.2d 598, 601 (Ind. 2007). It is “something more than a scintilla, but something less than a preponderance of the evidence.” State ex rel. Dep’t of Natural Res. v. Lehman, 177 Ind. App. 112, 119, 378 N.E.2d 31, 36 (1978).  In certain cases, the burden may be higher.

The ELJ will discuss the burden of proof with the parties prior to the evidentiary hearing or submission of briefs, either during a prehearing conference or in the order setting the briefing schedule/notice of hearing.

Hearing

An evidentiary hearing is a less formal trial. Each party will have the opportunity to present its side of the matter and introduce evidence before the ELJ. Evidence may be in the form of testimony, documents, affidavits, or photographs, for example. The ELJ is only permitted to consider the evidence admitted into the record during the hearing. While some evidence may be offered into evidence, not all evidence is admitted.

Absent a law to the contrary, IC 4-21.5 allows an ELJ to consider evidence that otherwise would not be admitted in a civil court. The purpose of this is to comply with Indiana law and provide all parties the opportunity for a fair and impartial review of an agency action.

The ELJ will exclude proffered evidence that is subject to privilege, irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds.   See IC 4-21.5-3-26(a). Additionally, hearsay evidence (a recount by one individual about what another person said that is offered to prove the truth of the matter asserted) may be admitted but may not be the sole reason for an administrative law judge’s order if properly objected to by the opposing party.  Rules that govern how evidence is presented can also be found at 315 IAC 1-3.

To testify, all witnesses will be placed under oath. This oath will be similar to this statement: “I swear or affirm under the penalties for perjury that the testimony that I give will be the truth.”  During the hearing, you may call witnesses, including yourself, to testify. You will also be given the opportunity to cross-examine or ask questions of any witness called by the other parties. There are limits to examination of witnesses and you should become familiar with these procedures.

Post-Evidentiary Hearing Briefs

Following an evidentiary hearing, the ELJ may provide the parties an opportunity to submit post-hearing briefs or submit their own proposed findings of fact and conclusions of law for review by the ELJ. Thereafter, the ELJ will issue Findings of Fact, Conclusions of Law, and Final Order deciding the issues in dispute.

REMEMBER:

• No party is allowed to communicate with an ELJ without all parties present.
• No employee of OEA can give legal advice.
• A party must send copies of all documents to all other parties.
• You must personally sign all documents submitted to the OEA. It is helpful if you also print your name so that the Court can read it.
• You must appear at all conferences, hearings, or any other meetings ordered by the ELJ unless you ask for and are granted a continuance.
• 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 (3) parties in your Cause, you should have the original (which is given to the presiding ELJ) and four (4) copies (one for yourself, two for the other parties and one for the court reporter).
• Use the cause number on all correspondence or other documents filed with the OEA.
• IDEM and OEA are separate agencies. It is important to note that information that may be available to IDEM may not have been made available to the OEA.

After the ELJ 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 thirty (30) days after the date the Final Order is served.

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

OEA'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

Frequently Asked Questions