*EH1003.2*
Reprinted
March 5, 2024
ENGROSSED
HOUSE BILL No. 1003
_____
DIGEST OF HB 1003 (Updated March 4, 2024 3:02 pm - DI 149)
Citations Affected: IC 1-1; IC 4-15; IC 4-21.5; IC 4-22; IC 13-14;
IC 13-15; IC 13-17; IC 13-18; IC 13-19; IC 13-20; IC 13-23; IC 13-24;
IC 13-25; IC 13-30; IC 14-10; IC 14-34; IC 34-52; noncode.
Synopsis: Administrative law. Makes the office of administrative law
proceedings the ultimate authority in any administrative proceeding
under its jurisdiction. Provides certain exceptions. Provides that the bill
applies to certain proceedings filed after June 30, 2024. Specifies when
a state agency may be required to pay reasonable attorney's fees for
judicial review proceedings. Outlines procedures for the ultimate
(Continued next page)
Effective: July 1, 2024; July 1, 2025.
Steuerwald, Jeter, Meltzer, Bartels
(SENATE SPONSORS — CARRASCO, KOCH, GARTEN, DORIOT)
January 8, 2024, read first time and referred to Committee on Judiciary.
January 18, 2024, amended, reported — Do Pass.
January 22, 2024, read second time, ordered engrossed. Engrossed.
January 23, 2024, read third time, passed. Yeas 85, nays 10.
SENATE ACTION
February 5, 2024, read first time and referred to Committee on Judiciary.
February 29, 2024, amended, reported favorably — Do Pass.
March 4, 2024, read second time, amended, ordered engrossed.
EH 1003—LS 6926/DI 151 Digest Continued
authority regarding nonfinal orders and procedures to file objections to
final orders. Permits a final order to be corrected by means of a motion
to correct error. Provides that the court shall decide all questions of
law, including any interpretation of a federal or state constitutional
provision, state statute, or agency rule, without deference to any
previous interpretation made by the state agency. Provides that a court
is not bound by a finding of fact made by the ultimate authority if the
finding of fact is not supported by the record. Requires the state agency
to transmit the agency record to the court for judicial review.
Eliminates the office of environmental adjudication and transfers
proceedings to the office of administrative law proceedings. Creates
requirements for administrative law judges that are assigned to certain
environmental matters. Provides that until the office of administrative
law proceedings adopts or amends rules related to environmental
matters, it must continue to follow and implement rules under 315 IAC.
Requires the office of administrative law proceedings to continue to
index and make publicly available, in a substantially similar online
searchable format, the final orders of contested appeals currently
maintained by the office. Makes conforming changes.
EH 1003—LS 6926/DI 151EH 1003—LS 6926/DI 151 Reprinted
March 5, 2024
Second Regular Session of the 123rd General Assembly (2024)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
between statutes enacted by the 2023 Regular Session of the General Assembly.
ENGROSSED
HOUSE BILL No. 1003
A BILL FOR AN ACT to amend the Indiana Code concerning state
offices and administration.
Be it enacted by the General Assembly of the State of Indiana:
1 SECTION 1. IC 1-1-5.5-24 IS ADDED TO THE INDIANA CODE
2 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
3 1, 2025]: Sec. 24. (a) Except as provided in subsection (b), a
4 SECTION of HEA 1003-2024 does not apply to an administrative
5 proceeding or a proceeding for judicial review pending on June 30,
6 2024.
7 (b) A SECTION of HEA 1003-2024 applies to:
8 (1) an administrative proceeding or a proceeding for judicial
9 review commenced after June 30, 2024; or
10 (2) an administrative proceeding conducted after June 30,
11 2024, on remand from a court.
12 (c) After June 30, 2024, any reference to a duty of an ultimate
13 authority with respect to an administrative proceeding or
14 proceeding for judicial review shall be construed as a duty of the
15 office of administrative legal proceedings if the office of
16 administrative legal proceedings is the ultimate authority for that
17 agency.
EH 1003—LS 6926/DI 151 2
1 SECTION 2. IC 4-15-10.5-2, AS ADDED BY P.L.205-2019,
2 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
3 JULY 1, 2024]: Sec. 2. This chapter does not apply to:
4 (1) the department of workforce development;
5 (2) the unemployment insurance review board of the department
6 of workforce development;
7 (3) the worker's compensation board of Indiana;
8 (4) the Indiana utility regulatory commission;
9 (5) the department of state revenue;
10 (6) the department of local government finance;
11 (7) the Indiana board of tax review;
12 (8) the natural resources commission;
13 (9) the office of environmental adjudication;
14 (10) (9) the Indiana education employment relations board;
15 (11) (10) the state employees appeals commission; or
16 (12) (11) before July 1, 2022, any other agency or category of
17 proceeding determined by the governor to be exempt from this
18 chapter for good cause.
19 SECTION 3. IC 4-15-10.5-12, AS ADDED BY P.L.205-2019,
20 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
21 JULY 1, 2024]: Sec. 12. (a) Beginning July 1, 2020, and Except as
22 provided in sections 1 and 2 of this chapter, the office has jurisdiction
23 over all administrative proceedings concerning agency administrative
24 actions under:
25 (1) IC 4-21.5; or
26 (2) any other statute that requires or allows the office to take
27 action.
28 (b) Notwithstanding anything in this chapter or any other statute to
29 the contrary:
30 (1) the office shall not be considered the ultimate authority in any
31 administrative proceeding; and
32 (2) a decision by the office in an administrative proceeding is not
33 a final agency action;
34 unless expressly designated by the agency. This subsection may not be
35 construed as preventing the rescission of an agency's delegation.
36 (b) Except as provided in subsection (c), the office is the ultimate
37 authority in any administrative proceeding under its jurisdiction.
38 Judicial review under IC 4-21.5 shall be taken directly from a final
39 decision of the office.
40 (c) The office is not the ultimate authority if:
41 (1) a particular agency or agency action is exempted under
42 Indiana law; or
EH 1003—LS 6926/DI 151 3
1 (2) an agency is required by federal mandate, as a condition
2 of federal funding, to conduct or render a final order in an
3 adjudication.
4 SECTION 4. IC 4-21.5-1-3 IS AMENDED TO READ AS
5 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. "Agency" means any
6 officer, board, commission, department division, bureau, or committee
7 of state government that is responsible for any stage of a proceeding
8 under this article. Except as provided in IC 4-21.5-7, The term does not
9 include the judicial department of state government, the legislative
10 department of state government, or a political subdivision.
11 SECTION 5. IC 4-21.5-1-15 IS AMENDED TO READ AS
12 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 15. Subject to
13 IC 4-15-10.5-12, "ultimate authority" means:
14 (1) for an administrative proceeding under the office of
15 administrative law proceedings, the office of administrative
16 law proceedings; or
17 (2) for any other purpose, an individual or panel of individuals
18 in whom the final authority of an agency is vested by law or
19 executive order.
20 SECTION 6. IC 4-21.5-3-9, AS AMENDED BY P.L.13-2021,
21 SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
22 JULY 1, 2024]: Sec. 9. (a) Except to the extent that a statute other than
23 this article limits an agency's discretion to select an administrative law
24 judge, the ultimate authority for an agency may:
25 (1) act as an administrative law judge;
26 (2) designate one (1) or more members of the ultimate authority
27 (if the ultimate authority is a panel of individuals) to act as an
28 administrative law judge; or
29 (3) before July 1, 2020, designate one (1) or more:
30 (A) attorneys licensed to practice law in Indiana; or
31 (B) persons who served as administrative law judges for a state
32 agency before January 1, 2014;
33 to act as an administrative law judge. After June 30, 2020, the
34 ultimate authority for an agency may request assignment of an
35 administrative law judge by the office of administrative law
36 proceedings.
37 A person designated under subdivision (3) is not required to be an
38 employee of the agency. A designation under subdivision (2) or (3)
39 may be made in advance of the commencement of any particular
40 proceeding for a generally described class of proceedings or may be
41 made for a particular proceeding. A general designation may provide
42 procedures for the assignment of designated individuals to particular
EH 1003—LS 6926/DI 151 4
1 proceedings.
2 (b) If the case involves:
3 (1) adjudication of:
4 (A) air pollution control laws (as defined in IC 13-11-2-6);
5 (B) water pollution control laws (as defined in
6 IC 13-11-2-261);
7 (C) environmental management laws (as defined in
8 IC 13-11-2-71); or
9 (D) solid waste and hazardous waste management laws
10 under IC 13-19;
11 (2) rules of a board described in IC 13-14-9-1;
12 (3) the financial assurance board created by IC 13-23-11-1; or
13 (4) any agency action of the department of environmental
14 management;
15 the administrative law judge assigned by the office of
16 administrative law proceedings must meet the requirements listed
17 under subsection (c).
18 (c) An administrative law judge assigned under subsection (b)
19 must:
20 (1) be a citizen of Indiana;
21 (2) be an attorney in good standing admitted to practice in
22 Indiana;
23 (3) have at least five (5) years of experience practicing
24 environmental or administrative law;
25 (4) be independent of the agency;
26 (5) meet the qualifications specific to environmental law as
27 determined by the office of administrative law proceedings'
28 training program; and
29 (6) be one (1) of three (3) administrative law judges in the
30 office of administrative law proceedings designated to hear
31 environmental matters.
32 (b) (d) An agency A person may not knowingly assign an individual
33 to serve alone or with others as an administrative law judge who is
34 subject to disqualification under this chapter.
35 (c) (e) If the administrative law judge assigned to the proceeding
36 believes that the judge's impartiality might reasonably be questioned,
37 or believes that the judge's personal bias, prejudice, or knowledge of a
38 disputed evidentiary fact might influence the decision, the
39 administrative law judge shall:
40 (1) withdraw as the administrative law judge; or
41 (2) inform the parties of the potential basis for disqualification,
42 place a brief statement of this basis on the record of the
EH 1003—LS 6926/DI 151 5
1 proceeding, and allow the parties an opportunity to petition for
2 disqualification under subsection (d). (f).
3 (d) (f) Any party to a proceeding may petition for the
4 disqualification of an administrative law judge upon discovering facts
5 establishing grounds for disqualification under this chapter. The
6 administrative law judge assigned to the proceeding shall determine
7 whether to grant the petition, stating facts and reasons for the
8 determination.
9 (e) (g) If the administrative law judge ruling on the disqualification
10 issue is not the ultimate authority, for the agency, the party petitioning
11 for disqualification may petition the ultimate authority, or, if the
12 administrative law judge is employed or contracted with the office of
13 administrative law proceedings, the director of the office of
14 administrative law proceedings, in writing for review of the ruling
15 within ten (10) days after notice of the ruling is served. The ultimate
16 authority shall:
17 (1) conduct proceedings described by section 28 of this chapter;
18 or
19 (2) request that the director of the office of administrative law
20 proceedings conduct proceedings described by section 28 of this
21 chapter;
22 to review the petition and affirm, modify, or dissolve the ruling within
23 thirty (30) days after the petition is filed. A determination by the
24 ultimate authority or the director of the office of administrative law
25 proceedings under this subsection is a final order subject to judicial
26 review under IC 4-21.5-5.
27 (f) (h) If a substitute is required for an administrative law judge who
28 is disqualified or becomes unavailable for any other reason, the
29 substitute must be appointed in accordance with subsection (a).
30 (g) (i) Any action taken by a duly appointed substitute for a
31 disqualified or unavailable administrative law judge is as effective as
32 if taken by the latter.
33 (h) (j) If there is a reasonable likelihood that the ultimate authority
34 will be called upon to:
35 (1) review; or
36 (2) issue a final order with respect to;
37 a matter pending before or adjudicated by an administrative law judge,
38 the provisions of section 11 of this chapter that apply to an
39 administrative law judge or to a person communicating with an
40 administrative law judge apply to a member of the ultimate authority
41 and to a person communicating with a member of the ultimate
42 authority.
EH 1003—LS 6926/DI 151 6
1 SECTION 7. IC 4-21.5-3-10, AS AMENDED BY THE
2 TECHNICAL CORRECTIONS BILL OF THE 2024 GENERAL
3 ASSEMBLY, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
4 JULY 1, 2024]: Sec. 10. (a) An administrative law judge is subject to
5 disqualification for:
6 (1) bias, prejudice, or interest in the outcome of a proceeding;
7 (2) failure to dispose of the subject of a proceeding in an orderly
8 and reasonably prompt manner after a written request by a party;
9 (3) unless waived or extended with the written consent of all
10 parties or for good cause shown, failure to issue an order not later
11 than ninety (90) days after the latest of:
12 (A) the filing of a motion to dismiss or a motion for summary
13 judgment under section 23 of this chapter that is filed after
14 June 30, 2011;
15 (B) the conclusion of a hearing that begins after June 30, 2011;
16 or
17 (C) the completion of any schedule set for briefing or for
18 submittal of proposed findings of fact and conclusions of law
19 for a disposition under clauses (A) or (B); or
20 (4) any cause for which a judge of a court may be disqualified.
21 Before July 1, 2020, nothing in this subsection prohibits an individual
22 who is an employee of an agency from serving as an administrative law
23 judge.
24 (b) This subsection does not apply to a proceeding concerning a
25 regulated occupation (as defined in IC 25-1-7-1), except for a
26 proceeding concerning a water well driller (as described in IC 25-39-3)
27 or an out of state mobile health care entity regulated by the Indiana
28 department of health. An individual who is disqualified under
29 subsection (a)(2) or (a)(3) shall provide the parties a list of at least
30 three (3) special administrative law judges who meet the requirements
31 of:
32 (1) IC 4-21.5-7-6, if the case is pending in the office of
33 environmental adjudication;
34 (1) section 9(c) of this chapter, if the case involves an
35 environmental matter described in section 9(b) of this
36 chapter;
37 (2) IC 14-10-2-2, if the case is pending before the division of
38 hearings of the natural resources commission; or
39 (3) subject to subsection (d), any other statute or rule governing
40 qualification to serve an agency other than those described in
41 subdivision (1) or (2).
42 Subject to subsection (c), the parties may agree to the selection of one
EH 1003—LS 6926/DI 151 7
1 (1) individual from the list.
2 (c) If the parties do not agree to the selection of an individual as
3 provided in subsection (b) not later than ten (10) days after the parties
4 are provided a list of judges under subsection (b), a special
5 administrative law judge who meets the requirements of subsection (b)
6 shall be selected under the procedure set forth in Trial Rule 79(D).
7 79(E), or 79(F).
8 (d) This subsection applies after June 30, 2020, to an agency whose
9 proceedings are subject to the jurisdiction of the office of
10 administrative law proceedings. If an administrative law judge is
11 disqualified under this section, the director of the office of
12 administrative law proceedings shall assign another administrative law
13 judge.
14 SECTION 8. IC 4-21.5-3-27 IS AMENDED TO READ AS
15 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 27. (a) If the
16 administrative law judge is the ultimate authority for the agency, the
17 ultimate authority's order disposing of a proceeding is a final order. If
18 the administrative law judge is not the ultimate authority, the
19 administrative law judge's order disposing of the proceeding becomes
20 a final order when affirmed under section 29 of this chapter. Regardless
21 of whether the order is final, it must comply with this section.
22 (b) This subsection applies only to an order not subject to subsection
23 (c). The order must include, separately stated, findings of fact for all
24 aspects of the order, including the remedy prescribed and, if applicable,
25 the action taken on a petition for stay of effectiveness. Findings of
26 ultimate fact must be accompanied by a concise statement of the
27 underlying basic facts of record to support the findings. The order must
28 also include a statement of the available procedures and time limit for
29 seeking administrative review of the order (if administrative review is
30 available) and the procedures and time limits for seeking judicial
31 review of the order under IC 4-21.5-5.
32 (c) This subsection applies only to an order of the ultimate authority
33 entered under IC 13, IC 14, or IC 25. The order must include separately
34 stated findings of fact and, if a final order, conclusions of law for all
35 aspects of the order, including the remedy prescribed and, if applicable,
36 the action taken on a petition for stay of effectiveness. Findings of
37 ultimate fact must be accompanied by a concise statement of the
38 underlying basic facts of record to support the findings. Conclusions of
39 law must consider prior final orders (other than negotiated orders) of
40 the ultimate authority under the same or similar circumstances if those
41 prior final orders are raised on the record in writing by a party and must
42 state the reasons for deviations from those prior orders. The order must
EH 1003—LS 6926/DI 151 8
1 also include a statement of the available procedures and time limit for
2 seeking administrative review of the order (if administrative review is
3 available) and the procedures and time limits for seeking judicial
4 review of the order under IC 4-21.5-5.
5 (d) Findings must be based exclusively upon the evidence of record
6 in the proceeding and on matters officially noticed in that proceeding.
7 Findings must be based upon the kind of evidence that is substantial
8 and reliable. The administrative law judge's experience, technical
9 competence, and specialized knowledge may be used in evaluating
10 evidence.
11 (e) A substitute administrative law judge may issue the order under
12 this section upon the record that was generated by a previous
13 administrative law judge.
14 (f) The administrative law judge may allow the parties a designated
15 amount of time after conclusion of the hearing for the submission of
16 proposed findings.
17 (g) An order under this section shall be issued in writing within
18 ninety (90) days after conclusion of the hearing or after submission of
19 proposed findings in accordance with subsection (f), unless this period
20 is waived or extended with the written consent of all parties or for good
21 cause shown.
22 (h) The administrative law judge shall have copies of the order
23 under this section delivered to each party and to the ultimate authority
24 for the agency (if it is not rendered by the ultimate authority).
25 SECTION 9. IC 4-21.5-3-27.5, AS AMENDED BY P.L.249-2023,
26 SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
27 JULY 1, 2024]: Sec. 27.5. (a) In a proceeding under this chapter
28 concerning an agency action, the administrative law judge shall order
29 the agency to pay the reasonable attorney's fees incurred in the
30 proceeding by the prevailing party challenging the agency action if:
31 (1) the party challenging the agency action proves, by a
32 preponderance of the evidence, that:
33 (A) the agency's action was frivolous or groundless; or
34 (B) the agency pursued the action in bad faith;
35 (2) the agency action was based on an invalid unsupported by a
36 statute or a valid rule, as provided in IC 4-22-2-44; or
37 (3) the agency has failed to demonstrate that the agency acted
38 within its legal authority.
39 (b) Except as provided in subsection (c) and subject to
40 IC 34-52-2-1.5, in a judicial review proceeding, the court shall
41 order the agency to pay the other party's reasonable attorney's fees
42 if:
EH 1003—LS 6926/DI 151 9
1 (1) the other party prevailed before an administrative law
2 judge;
3 (2) the agency initiated the proceeding for judicial review;
4 and
5 (3) the other party prevailed in the judicial review proceeding.
6 (c) In a judicial review proceeding, the court may not award
7 attorney's fees against an agency under this section if:
8 (1) the agency's only involvement in the case resulted from the
9 agency's role as an arbiter of the legal rights, duties,
10 immunities, privileges, or other legal interests of two (2) or
11 more parties; or
12 (2) the position of the agency as a party became unjustified as
13 a result of an intervening change in applicable law.
14 SECTION 10. IC 4-21.5-3-29 IS AMENDED TO READ AS
15 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 29. (a) This section
16 does not apply if the administrative law judge issuing an order under
17 section 27 of this chapter is the ultimate authority for the agency.
18 (b) After an administrative law judge issues an a nonfinal order
19 under section 27 of this chapter, the ultimate authority or its designee
20 shall issue: a final order:
21 (1) a final order affirming the administrative law judge's
22 order;
23 (2) a final order modifying the administrative law judge's
24 order; or
25 (3) dissolving; the administrative law judge's order. The ultimate
26 authority or its designee may remand an order remanding the
27 matter, with or without instructions, to an administrative law
28 judge for further proceedings.
29 (c) In the absence of an objection or notice under subsection (d) or
30 (e), the ultimate authority or its designee shall affirm the order. the
31 order is final and the agency issuing the nonfinal order shall issue
32 a notice of final order within thirty (30) days after the deadline to
33 file a notice under subsection (e).
34 (d) To preserve an objection to an order of an administrative law
35 judge for judicial review, a party must not be in default under this
36 chapter and must object to the order in a writing that:
37 (1) identifies the basis of the objection with reasonable
38 particularity; and
39 (2) is filed with the ultimate authority responsible for reviewing
40 the order.
41 The written objection must be served on all parties and the agency
42 issuing the nonfinal order within fifteen (15) days (or any longer
EH 1003—LS 6926/DI 151 10
1 period set by statute) after the order is served on the petitioner.
2 (e) Without an objection under subsection (d), the ultimate authority
3 or its designee may serve written notice of its intent to review any issue
4 related to the order. The notice shall be served on all parties, the
5 agency issuing the nonfinal order, and all other persons described by
6 section 5(d) of this chapter within sixty (60) days after the nonfinal
7 order is served on the parties. The notice of intent to review must
8 identify the issues that the ultimate authority or its designee intends to
9 review.
10 (f) A final order disposing of a proceeding or an order remanding an
11 order to an administrative law judge for further proceedings shall be
12 issued within sixty (60) days after the latter of:
13 (1) the date that the order was issued under section 27 of this
14 chapter;
15 (2) the receipt of briefs; or
16 (3) the close of oral argument;
17 unless the period is waived or extended with the written consent of all
18 parties or for good cause shown.
19 (g) After remand of an order under this section to an administrative
20 law judge, the judge's order is also subject to review under this section.
21 SECTION 11. IC 4-21.5-3-31 IS AMENDED TO READ AS
22 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 31. (a) An agency
23 ultimate authority has jurisdiction to modify a final order under this
24 section before the earlier of the following:
25 (1) Thirty (30) days after the agency has served the final order
26 under section 27, 29, or 30 of this chapter.
27 (2) Another agency assumes jurisdiction over the final order
28 under section 30 of this chapter.
29 (3) A court assumes jurisdiction over the final order under
30 IC 4-21.5-5.
31 (b) A party may petition the ultimate authority for an agency for a
32 stay of effectiveness of a final order. The ultimate authority or its
33 designee may, before or after the order becomes effective, stay the final
34 order in whole or in part.
35 (c) A party may petition the ultimate authority for an agency for a
36 rehearing of a final order. The ultimate authority or its designee may
37 grant a petition for rehearing only if the petitioning party demonstrates
38 that:
39 (1) the party is not in default under this chapter;
40 (2) newly discovered material evidence exists; and
41 (3) the evidence could not, by due diligence, have been
42 discovered and produced at the hearing in the proceeding.
EH 1003—LS 6926/DI 151 11
1 The rehearing may be limited to the issues directly affected by the
2 newly discovered evidence. If the rehearing is conducted by a person
3 other than the ultimate authority, section 29 of this chapter applies to
4 review of the order resulting from the rehearing.
5 (d) Clerical mistakes and other errors resulting from oversight or
6 omission Errors in a final order or other part of the record of a
7 proceeding may be corrected by an ultimate authority or its designee on
8 the motion of any party or on the motion of the ultimate authority or its
9 designee.
10 (e) An action of a petitioning party or an agency under this section,
11 neither including a motion to correct error, tolls the period in which
12 a party may object to a second agency under section 30 of this chapter
13 nor and tolls the period in which a party may petition for judicial
14 review under IC 4-21.5-5. However, if a rehearing is granted under
15 subsection (c), these periods are tolled and a new period begins on the
16 date that a new final order is served. A new period begins to run on
17 the date a motion to correct error is denied or a new order is
18 issued. A motion to correct error or motion for a rehearing is
19 deemed denied thirty (30) days after it was filed if there is no ruling
20 on the motion or no hearing is set on the motion.
21 SECTION 12. IC 4-21.5-5-11 IS AMENDED TO READ AS
22 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 11. (a) Judicial review
23 of disputed issues of fact must be confined to the agency record for the
24 agency action supplemented by additional evidence taken under section
25 12 of this chapter. The court may not try the cause de novo or substitute
26 its judgment for that of the agency. A court is not bound by a finding
27 of fact made by the ultimate authority if the finding of fact is not
28 supported by the record.
29 (b) The court shall decide all questions of law, including any
30 interpretation of a federal or state constitutional provision, state
31 statute, or agency rule, without deference to any previous
32 interpretation made by the agency.
33 SECTION 13. IC 4-21.5-5-13 IS AMENDED TO READ AS
34 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 13. (a) Within Not
35 later than thirty (30) days after the filing of the petition, after receipt
36 of the petition for judicial review served under section 8 of this
37 chapter or within further time allowed by the court or by other law, the
38 petitioner office or ultimate authority shall transmit to the court the
39 original or a certified copy of the agency record for judicial review of
40 the agency action.
41 (b) consisting The record consists of:
42 (1) any agency documents expressing the agency action;
EH 1003—LS 6926/DI 151 12
1 (2) other documents identified by the agency as having been
2 considered by it before its action and used as a basis for its action;
3 and
4 (3) any other material described in this article as the agency
5 record for the type of agency action at issue, subject to this
6 section.
7 (b) (c) An extension of time in which to file the record shall be
8 granted by the court for good cause shown. Inability of the office or
9 ultimate authority to obtain compile the record from the responsible
10 agency within the time permitted by this section is good cause. Failure
11 to file the record within the time permitted by this subsection, including
12 any extension period ordered by the court, is cause for dismissal of the
13 petition for review by the court, on its own motion, or on petition of any
14 party of record to the proceeding.
15 (c) (d) Upon a written request by the petitioner, the agency taking
16 the action being reviewed shall prepare the agency record for the
17 petitioner. If part of the record has been preserved without a transcript,
18 the agency shall prepare a transcript for inclusion in the record
19 transmitted to the court, except for portions that the parties to the
20 judicial review proceeding stipulate to omit in accordance with
21 subsection (e). (f).
22 (d) (e) Notwithstanding IC 5-14-3-8, the agency shall charge the
23 petitioner with the reasonable cost of preparing any necessary copies
24 and transcripts for transmittal to the court, unless a person files with the
25 court, under oath and in writing, the statement described by
26 IC 33-37-3-2.
27 (e) (f) By stipulation of all parties to the review proceedings, the
28 record may be shortened, summarized, or organized.
29 (f) (g) The court may tax the cost of preparing transcripts and copies
30 for the record:
31 (1) against a party to the judicial review proceeding who
32 unreasonably refuses to stipulate to shorten, summarize, or
33 organize the record; or
34 (2) in accordance with the rules governing civil actions in the
35 courts or other law.
36 (g) (h) Additions to the record concerning evidence received under
37 section 12 of this chapter must be made as ordered by the court. The
38 court may require or permit subsequent corrections or additions to the
39 record.
40 SECTION 14. IC 4-21.5-5-14 IS AMENDED TO READ AS
41 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 14. (a) The burden of
42 demonstrating the invalidity of agency action is on the party to the
EH 1003—LS 6926/DI 151 13
1 judicial review proceeding asserting invalidity.
2 (b) The validity of agency action shall be determined in accordance
3 with the standards of review provided in this section, as applied to the
4 agency action at the time it was taken.
5 (c) The court shall make findings of fact on each material issue on
6 which the court's decision is based.
7 (d) The court shall grant relief under section 15 of this chapter only
8 if it determines that a person seeking judicial relief has been prejudiced
9 by an agency action that is:
10 (1) arbitrary, capricious, an abuse of discretion, or otherwise not
11 in accordance with law;
12 (2) contrary to constitutional right, power, privilege, or immunity;
13 (3) in excess of statutory jurisdiction, authority, or limitations, or
14 short of statutory right;
15 (4) without observance of procedure required by law; or
16 (5) unsupported by substantial a preponderance of the evidence.
17 SECTION 15. IC 4-21.5-7 IS REPEALED [EFFECTIVE JULY 1,
18 2024]. (Environmental Adjudication).
19 SECTION 16. IC 4-22-2-19.6, AS ADDED BY P.L.249-2023,
20 SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
21 JULY 1, 2024]: Sec. 19.6. (a) A rule adopted under this article or
22 IC 13-14-9 that includes a fee, fine, or civil penalty must comply with
23 this section. Subsections (b), (c), and (d) do not apply to a rule that
24 must be adopted in a certain form to comply with federal law.
25 (b) For each fee, fine, or civil penalty imposed by an agency that is
26 not set as a specific amount in a state law, a rule must describe the
27 circumstances for which the agency will assess a fee, fine, or civil
28 penalty and set forth the amount of the fee, fine, or civil penalty:
29 (1) as a specific dollar amount;
30 (2) under a formula by which a specific dollar amount can be
31 reasonably calculated by persons regulated or otherwise affected
32 by the rule; or
33 (3) as a range of potential dollar amounts, stating the factors that
34 the agency will utilize to set a specific dollar amount in an
35 individual case with sufficient certainty that a review of an agency
36 action under IC 4-21.5 or comparable process can evaluate
37 whether the amount was reasonable.
38 A rule concerning fines or civil penalties does not prohibit an agency
39 to enter into a settlement agreement with a person against whom a fine
40 or civil penalty is being assessed to determine the fine or civil penalty
41 to be paid for a violation.
42 (c) The amount of a fee must be reasonably based on the amount
EH 1003—LS 6926/DI 151 14
1 necessary to carry out the purposes for which the fee is imposed.
2 (d) An agency setting a fine or civil penalty shall consider the
3 following:
4 (1) Whether the violation has a major or minor impact on the
5 health, safety, or welfare of a person, the health or safety of
6 animals or natural resources, or other facts set forth in the
7 agency's rule.
8 (2) The number of previous violations committed by the offender
9 of laws, rules, or programs administered by the agency.
10 (3) The need for deterrence of future violations.
11 (4) Whether the conduct, if proved beyond a reasonable doubt,
12 would constitute a criminal offense, and the level of penalty set by
13 law for the criminal offense.
14 (e) An agency is not liable for a fee, fine, or civil penalty that is not
15 in conformity with this section if:
16 (1) the fee, fine, or civil penalty was included in a rule that
17 became effective before January 1, 2023, and that otherwise
18 complies with subsection (b);
19 (2) the fee, fine, or civil penalty was:
20 (A) set by an agency before January 1, 2023;
21 (B) reviewed by the budget committee:
22 (i) in the case of the department of environmental
23 management, the boards listed in IC 13-14-9-1, the office of
24 environmental adjudication, the natural resources
25 commission, the department of natural resources, the
26 Indiana gaming commission, and the Indiana horse racing
27 commission, before December 31, 2023; and
28 (ii) in the case of an agency not described in item (i), before
29 July 1, 2024; and
30 (C) included in a rule that complies with this section and
31 becomes effective before:
32 (i) in the case of the department of environmental
33 management, the boards listed in IC 13-14-9-1, the office of
34 environmental adjudication, the natural resources
35 commission, the department of natural resources, the
36 Indiana gaming commission, and the Indiana horse racing
37 commission, December 31, 2024; and
38 (ii) in the case of an agency not described in item (i), July 1,
39 2025; or
40 (3) the agency withdraws or otherwise ceases to enforce or apply
41 the fee, fine, or civil penalty before:
42 (A) in the case of the department of environmental
EH 1003—LS 6926/DI 151 15
1 management, the boards listed in IC 13-14-9-1, the office of
2 environmental adjudication, the natural resources commission,
3 the department of natural resources, the Indiana gaming
4 commission, and the Indiana horse racing commission,
5 December 31, 2023; and
6 (B) in the case of an agency not described in clause (A), July
7 1, 2024.
8 Readoption without changes under IC 4-22-2.6 of a nonconforming fee,
9 fine, or civil penalty that meets the requirements of subdivision (1) or
10 (2) does not invalidate the nonconforming fee, fine, or civil penalty.
11 (f) Beginning January 1, 2024, an agency shall post on its website
12 a schedule of fines and civil penalties that apply to violations of laws,
13 rules, and requirements of federal programs administered by the
14 agency.
15 SECTION 17. IC 13-14-8-11 IS AMENDED TO READ AS
16 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 11. (a) A person
17 affected by a decision of the commissioner under sections 8 and 9 of
18 this chapter may, within fifteen (15) days after receipt of notice of the
19 decision, appeal the decision to the office of environmental
20 adjudication. administrative law proceedings. All proceedings under
21 this section to appeal the commissioner's decision are governed by
22 IC 4-21.5.
23 (b) The commissioner's decision to grant a variance does not take
24 effect until available administrative remedies are exhausted.
25 SECTION 18. IC 13-15-6-1 IS AMENDED TO READ AS
26 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 1. (a) Not later than
27 fifteen (15) days after being served the notice provided by the
28 commissioner under IC 13-15-5-3:
29 (1) the permit applicant; or
30 (2) any other person aggrieved by the commissioner's action;
31 may appeal the commissioner's action to the office of environmental
32 adjudication administrative law proceedings and request that an
33 environmental administrative law judge hold an adjudicatory hearing
34 concerning the action under IC 4-21.5-3 and IC 4-21.5-7. IC 4-15-10.5.
35 (b) Notwithstanding subsection (a) and IC 4-21.5-3-7(a)(3), a person
36 may file an appeal of the commissioner's action in issuing an initial
37 permit under the operating permit program under 42 U.S.C. 7661
38 through 7661f not later than thirty (30) days after the date the person
39 received the notice provided under IC 13-15-5-3, for a permit issued
40 after April 30, 1999.
41 SECTION 19. IC 13-15-6-3 IS AMENDED TO READ AS
42 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Not later than
EH 1003—LS 6926/DI 151 16
1 thirty (30) days after being served a request for an adjudicatory hearing,
2 an environmental administrative law judge under IC 4-21.5-7
3 IC 4-15-10.5 shall, if the environmental administrative law judge
4 determines that:
5 (1) the request was properly submitted; and
6 (2) the request establishes a jurisdictional basis for a hearing;
7 assign the matter for a hearing.
8 (b) Upon assigning the matter for a hearing, an environmental
9 administrative law judge may stay the force and effect of the
10 following:
11 (1) A contested permit provision.
12 (2) A permit term or condition the environmental administrative
13 law judge considers inseverable from a contested permit
14 provision.
15 (c) After a final hearing under this section, a final order of an
16 environmental administrative law judge on a permit application is
17 subject to review under IC 4-21.5-5.
18 SECTION 20. IC 13-15-7-3 IS AMENDED TO READ AS
19 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. A person aggrieved
20 by the revocation or modification of a permit may appeal the revocation
21 or modification to the office of environmental adjudication
22 administrative law proceedings for an administrative review under
23 IC 4-21.5-3. Pending the decision resulting from the hearing under
24 IC 4-21.5-3 concerning the permit revocation or modification, the
25 permit remains in force. However, the commissioner may seek
26 injunctive relief with regard to the activity described in the permit
27 while the decision resulting from the hearing is pending.
28 SECTION 21. IC 13-17-3-7 IS AMENDED TO READ AS
29 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 7. (a) The
30 commissioner may enter into agreed orders as provided in
31 IC 13-30-3-6.
32 (b) An environmental administrative law judge under IC 4-21.5-7
33 IC 4-15-10.5 shall review orders and determinations of the
34 commissioner.
35 SECTION 22. IC 13-17-6-10 IS AMENDED TO READ AS
36 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 10. (a) If the
37 commissioner finds that an asbestos project is not being performed in
38 accordance with air pollution control laws or rules adopted under air
39 pollution control laws, the commissioner may enjoin further work on
40 the asbestos project without prior notice or hearing by delivering a
41 notice to:
42 (1) the asbestos contractor engaged in the asbestos project; or
EH 1003—LS 6926/DI 151 17
1 (2) the agent or representative of the asbestos contractor.
2 (b) A notice issued under this section must:
3 (1) specifically enumerate the violations of law that are occurring
4 on the asbestos project; and
5 (2) prohibit further work on the asbestos project until the
6 violations enumerated under subdivision (1) cease and the notice
7 is rescinded by the commissioner.
8 (c) Not later than ten (10) days after receiving written notification
9 from a contractor that violations enumerated in a notice issued under
10 this section have been corrected, the commissioner shall issue a
11 determination whether or not to rescind the notice.
12 (d) An asbestos contractor or any other person aggrieved or
13 adversely affected by the issuance of a notice under subsection (a) may
14 obtain a review of the commissioner's action under IC 4-21.5 and
15 IC 4-21.5-7. IC 4-15-10.5.
16 SECTION 23. IC 13-18-3-4 IS AMENDED TO READ AS
17 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 4. (a) The
18 commissioner may enter into agreed orders as provided in
19 IC 13-30-3-6.
20 (b) An environmental administrative law judge under IC 4-21.5-7
21 IC 4-15-10.5 shall review orders and determinations of the
22 commissioner.
23 SECTION 24. IC 13-18-11-8, AS AMENDED BY P.L.159-2011,
24 SECTION 23, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
25 JULY 1, 2024]: Sec. 8. (a) The commissioner may suspend or revoke
26 the certificate of an operator issued under this chapter, following a
27 hearing under IC 13-15-7-3 and IC 4-21.5, if any of the following
28 conditions are found:
29 (1) The operator has practiced fraud or deception in any state or
30 other jurisdiction.
31 (2) Reasonable care, judgment, or the application of the operator's
32 knowledge or ability was not used in the performance of the
33 operator's duties.
34 (3) The operator is incompetent or unable to properly perform the
35 operator's duties.
36 (4) A certificate of the operator issued:
37 (A) under this chapter; or
38 (B) by any other state or jurisdiction for a purpose comparable
39 to the purpose for which a certificate is issued under this
40 chapter;
41 has been revoked.
42 (5) The operator has been convicted of a crime related to a
EH 1003—LS 6926/DI 151 18
1 certificate of the operator issued:
2 (A) under this chapter; or
3 (B) by any other state or jurisdiction for a purpose comparable
4 to the purpose for which a certificate is issued under this
5 chapter.
6 (b) A hearing and further proceedings shall be conducted in
7 accordance with IC 4-21.5-7. IC 4-15-10.5.
8 SECTION 25. IC 13-19-3-2 IS AMENDED TO READ AS
9 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 2. (a) The
10 commissioner may enter into agreed orders as provided in
11 IC 13-30-3-6.
12 (b) An environmental administrative law judge under IC 4-21.5-7
13 IC 4-15-10.5 shall review orders and determinations of the
14 commissioner.
15 SECTION 26. IC 13-20-13-5.5, AS AMENDED BY P.L.263-2013,
16 SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
17 JULY 1, 2024]: Sec. 5.5. (a) A certificate of registration issued by the
18 department under this chapter may be revoked or modified by the
19 commissioner, or by a designated staff member of the department, after
20 notification in writing is sent in accordance with IC 13-14-2-1 to the
21 holder of the certificate for:
22 (1) failure to disclose all relevant facts;
23 (2) making a misrepresentation in obtaining the registration; or
24 (3) failure to correct, within the time established by the
25 department:
26 (A) a violation of a condition of the registration; or
27 (B) a violation of this chapter or a rule adopted by the board
28 under section 11 of this chapter.
29 (b) A person aggrieved by the revocation or modification of a
30 certificate of registration may appeal the revocation or modification to
31 the office of environmental adjudication administrative law
32 proceedings under IC 4-21.5-7. IC 4-15-10.5. Pending the decision
33 resulting from a hearing under IC 4-21.5-3 concerning the revocation
34 or modification, the registration remains in force. However, subsequent
35 to revocation or modification, the commissioner may seek injunctive
36 relief concerning the activity described in the registration.
37 SECTION 27. IC 13-20-14-5.6, AS AMENDED BY P.L.263-2013,
38 SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
39 JULY 1, 2024]: Sec. 5.6. (a) A certificate of registration issued by the
40 department under this chapter may be revoked or modified by the
41 commissioner, or by a designated staff member of the department, after
42 notification in writing is sent in accordance with IC 13-14-2-1 to the
EH 1003—LS 6926/DI 151 19
1 holder of the certificate, for:
2 (1) failure to disclose all relevant facts;
3 (2) making a misrepresentation in obtaining the registration; or
4 (3) failure to correct, within the time established by the
5 department, a violation of:
6 (A) a condition of the registration;
7 (B) this chapter; or
8 (C) a rule adopted by the board under section 6 of this chapter.
9 (b) A person aggrieved by the revocation or modification of a
10 certificate of registration may appeal the revocation or modification to
11 the office of environmental adjudication administrative law
12 proceedings under IC 4-21.5-7. IC 4-15-10.5. Pending the decision
13 resulting from a hearing under IC 4-21.5-3 concerning the revocation
14 or modification, the registration remains in force. However, subsequent
15 to revocation or modification, the commissioner may seek injunctive
16 relief concerning the activity described in the registration.
17 SECTION 28. IC 13-23-9-4, AS AMENDED BY P.L.96-2016,
18 SECTION 37, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
19 JULY 1, 2024]: Sec. 4. If the administrator denies an ELTF claim
20 under this chapter, the claimant may appeal the denial under IC 4-21.5
21 to the office of environmental adjudication administrative law
22 proceedings under IC 4-21.5-7. IC 4-15-10.5.
23 SECTION 29. IC 13-24-1-4 IS AMENDED TO READ AS
24 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 4. (a) Except where an
25 owner or operator can prove that a release from a petroleum facility
26 was caused by:
27 (1) an act of God;
28 (2) an act of war;
29 (3) negligence on the part of a local government, the state
30 government, or the federal government;
31 (4) except as provided in subsection (b), an act or omission of a
32 responsible person; or
33 (5) a combination of the causes set forth in subdivisions (1)
34 through (4);
35 the owner or operator is liable to the state for the reasonable costs of
36 any response or remedial action taken under section 2 of this chapter
37 involving the petroleum facility. A responsible person is liable to the
38 state for the reasonable costs of any response or remedial action taken
39 under section 2 of this chapter involving the petroleum facility.
40 (b) The owner, operator, or responsible person is entitled to all
41 rights of the state to recover from another responsible person all or a
42 part of the costs described in subsection (a) incurred or paid to the state
EH 1003—LS 6926/DI 151 20
1 by the owner, operator, or responsible person in an action brought in a
2 circuit or superior court with jurisdiction in the county in which the
3 release occurred.
4 (c) Money recovered by the state under this section in connection
5 with a removal or remedial action undertaken with respect to a release
6 of petroleum shall be deposited in the hazardous substances response
7 trust fund.
8 (d) The state may recover removal or remedial action costs under
9 this section as follows:
10 (1) Commence an action under IC 13-14-2-6 or IC 13-14-2-7.
11 (2) Impose a lien under IC 13-25-4-11 on the property on which
12 the removal or the remedial action was undertaken.
13 (e) In an administrative action brought under this chapter, an
14 environmental administrative law judge shall apportion the costs of
15 a response or a remedial action in proportion to each party's
16 responsibility for a release.
17 SECTION 30. IC 13-25-4-20 IS AMENDED TO READ AS
18 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 20. (a) Before the date
19 on which the state intends to impose a lien on real property under
20 section 11 of this chapter, the owner of the real property may request
21 that a hearing be conducted under IC 4-21.5. A hearing conducted
22 under this section and IC 4-21.5 shall be limited to determining if there
23 is probable cause to believe that:
24 (1) a removal or a remedial action was conducted on the real
25 property under:
26 (A) this chapter; or
27 (B) IC 13-24-1; and
28 (2) if the removal or the remedial action was conducted under this
29 chapter, the owner of the real property would be subject to
30 liability under 42 U.S.C. 9607 (Section 107 of the federal
31 Comprehensive Environmental Response, Compensation, and
32 Liability Act).
33 (b) For the purposes of a hearing conducted under this section and
34 IC 4-21.5, an environmental administrative law judge is the ultimate
35 authority.
36 SECTION 31. IC 13-30-3-5 IS AMENDED TO READ AS
37 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 5. (a) Except as
38 otherwise provided in:
39 (1) a notice issued under section 4 of this chapter; or
40 (2) a law relating to emergency orders;
41 an order of the commissioner under this chapter takes effect twenty
42 (20) days after the alleged violator receives the notice, unless the
EH 1003—LS 6926/DI 151 21
1 alleged violator requests under subsection (b) a review of the order
2 before the twentieth day after receiving the notice.
3 (b) To request a review of the order, the alleged violator must:
4 (1) file a written request with the office of environmental
5 adjudication administrative law proceedings under IC 4-21.5-7;
6 IC 4-15-10.5; and
7 (2) serve a copy of the request on the commissioner.
8 (c) If a review of an order is requested under this section, the office
9 of environmental adjudication administrative law proceedings
10 established under IC 4-21.5-7 IC 4-15-10.5 shall review the order
11 under IC 4-21.5.
12 SECTION 32. IC 13-30-3-6 IS AMENDED TO READ AS
13 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 6. If an alleged violator
14 who has requested a review of an order of the commissioner under
15 section 5 of this chapter agrees to resolve the controversy concerning
16 the order in a manner satisfactory to the commissioner before a final
17 order is issued by the office of environmental adjudication,
18 administrative law proceedings, the commissioner may approve an
19 agreed order based on the agreement.
20 SECTION 33. IC 13-30-3-7 IS AMENDED TO READ AS
21 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 7. A final order of an
22 environmental administrative law judge is subject to judicial review
23 under IC 4-21.5-5.
24 SECTION 34. IC 14-10-2-2.5, AS ADDED BY P.L.84-2008,
25 SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
26 JULY 1, 2024]: Sec. 2.5. (a) A person who is the party in a hearing
27 under this title or IC 4-21.5-7 IC 4-15-10.5 may move to have the:
28 (1) environmental administrative law judge appointed under
29 IC 4-21.5-7; IC 4-15-10.5; or
30 (2) administrative law judge appointed under section 2 of this
31 chapter;
32 consolidate multiple proceedings that are subject to the jurisdiction of
33 both the office of environmental adjudication administrative law
34 proceedings and the division of hearings.
35 (b) The environmental law judge or the An administrative law judge
36 shall grant the motion made under subsection (a) if the following
37 findings are made:
38 (1) The proceedings include the following:
39 (A) Common questions of law or fact.
40 (B) At least one (1) person, other than the department or the
41 department of environmental management, who is a party to
42 all the proceedings.
EH 1003—LS 6926/DI 151 22
1 (C) Issues of water quality, water quantity, or both.
2 (2) Consolidation may support administrative efficiency.
3 (c) If a motion to consolidate proceedings has been granted under
4 subsection (b), the hearing must be conducted by a panel that consists
5 of at least one (1) environmental law judge and one (1) two (2)
6 administrative law judge. judges. The panel is the ultimate authority
7 for matters authorized under IC 4-21.5-7-5 and this title. Any party,
8 including the department and the department of environmental
9 management, may petition an appropriate court for judicial review of
10 a final determination of the panel.
11 (d) The office of environmental adjudication administrative law
12 proceedings and the division of hearings shall adopt joint rules to
13 implement this section.
14 SECTION 35. IC 14-34-2-2, AS AMENDED BY P.L.84-2008,
15 SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
16 JULY 1, 2024]: Sec. 2. (a) The commission shall appoint the following:
17 (1) An administrative law judge to conduct proceedings under
18 IC 4-21.5. An administrative law judge is subject to IC 14-10-2-2.
19 (2) A hearing officer to conduct proceedings under IC 4-22-2.
20 (b) An administrative law judge is the ultimate authority for the
21 department for any administrative review proceeding under this article,
22 except for the following:
23 (1) Proceedings concerning the approval or disapproval of a
24 permit application or permit renewal under IC 14-34-4-13.
25 (2) Proceedings for suspension or revocation of a permit under
26 IC 14-34-15-7.
27 (3) Proceedings consolidated with the office of environmental
28 adjudication administrative law proceedings under
29 IC 14-10-2-2.5.
30 (c) An order made by an administrative law judge granting or
31 denying temporary relief from a decision of the director is a final order
32 of the department.
33 (d) Judicial review of a final order made by an administrative law
34 judge under subsection (b) or (c) or under IC 13-4.1-2-1(c) or
35 IC 13-4.1-2-1(d) (before their repeal) may be taken under IC 4-21.5-5.
36 SECTION 36. IC 34-52-2-1.5, AS ADDED BY P.L.249-2023,
37 SECTION 82, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
38 JULY 1, 2024]: Sec. 1.5. (a) In a proceeding conducted under
39 IC 4-21.5-5, to judicially review a final order made by a state agency,
40 the court shall apply the same standard as an administrative law judge
41 under described in IC 4-21.5-3-27.5 regarding an order for the
42 payment of attorney's fees.
EH 1003—LS 6926/DI 151 23
1 (b) An order for the payment of attorney's fees under this section is
2 not subject to sections 2, 3, and 4 of this chapter.
3 SECTION 37. [EFFECTIVE JULY 1, 2024] (a) As used in this
4 SECTION, "office" means the office of environmental adjudication
5 established under IC 4-21.5-7.
6 (b) As used in this SECTION, "office of administrative law
7 proceedings" means the office of administrative law proceedings
8 established under IC 4-15-10.5.
9 (c) On July 1, 2024, all agreements and liabilities of the office
10 are transferred to the office of administrative law proceedings, as
11 the successor agency.
12 (d) On July 1, 2024, all records and property of the office,
13 including appropriations and other funds under the control or
14 supervision of the office, are transferred to the office of
15 administrative law proceedings, as the successor agency.
16 (e) After July 1, 2024, any amounts owed to the office before
17 July 1, 2024, are considered to be owed to the office of
18 administrative law proceedings, as the successor agency.
19 (f) After July 1, 2024, a reference to the office in a statute, rule,
20 or other document is considered a reference to the office of
21 administrative law proceedings, as the successor agency.
22 (g) After July 1, 2024, a reference to an environmental law
23 judge is considered a reference to an administrative law judge
24 under IC 4-15-10.5.
25 (h) All powers, duties, agreements, and liabilities of the office
26 with respect to bonds issued by the office in connection with any
27 trust agreement or indenture securing those bonds are transferred
28 to the office of administrative law proceedings, as the successor
29 agency.
30 (i) The director and employees of the office on June 30, 2024,
31 become employees of the office of administrative law proceedings
32 on July 1, 2024, without change in compensation, seniority, or
33 benefits, and are entitled to have their service under the office
34 included for purposes of computing any applicable employment
35 and retirement benefits.
36 (j) After July 1, 2024, all pending proceedings of the office are
37 transferred to the office of administrative law proceedings.
38 (k) Until the office of administrative law proceedings adopts or
39 amends rules related to environmental matters, the office must
40 continue to follow and implement rules under 315 IAC.
41 (l) The office of administrative law proceedings must continue
42 to index and make publicly available, in a substantially similar
EH 1003—LS 6926/DI 151 24
1 online searchable format, the final orders of contested appeals
2 currently maintained by the office.
3 (m) This SECTION expires July 1, 2025.
EH 1003—LS 6926/DI 151 25
COMMITTEE REPORT
Mr. Speaker: Your Committee on Judiciary, to which was referred
House Bill 1003, has had the same under consideration and begs leave
to report the same back to the House with the recommendation that said
bill be amended as follows:
Page 3, between lines 26 and 27, begin a new paragraph and insert:
"(b) If the case involves:
(1) adjudication of:
(A) air pollution control laws (as defined in IC 13-11-2-6);
(B) water pollution control laws (as defined in
IC 13-11-2-261);
(C) environmental management laws (as defined in
IC 13-11-2-71); or
(D) solid waste and hazardous waste management laws
under IC 13-19;
(2) rules of a board described in IC 13-14-9-1;
(3) the financial assurance board created by IC 13-23-11-1; or
(4) any agency action of the department of environmental
management;
the administrative law judge assigned by the office of
administrative law proceedings must meet the requirements listed
under subsection (c).
(c) An administrative law judge assigned under subsection (b)
must:
(1) be a citizen of Indiana;
(2) be an attorney in good standing admitted to practice in
Indiana;
(3) have at least five (5) years of experience practicing
environmental or administrative law;
(4) be independent of the agency;
(5) meet the qualifications specific to environmental law as
determined by the office of administrative law proceedings'
training program; and
(6) be one (1) of three (3) administrative law judges in the
office of administrative law proceedings designated to hear
environmental matters.".
Page 3, line 27, strike "(b)" and insert "(d)".
Page 3, line 30, strike "(c)" and insert "(e)".
Page 3, line 39, strike "(d)." and insert "(f).".
Page 3, line 40, strike "(d)" and insert "(f)".
Page 4, line 3, strike "(e)" and insert "(g)".
Page 4, line 21, strike "(f)" and insert "(h)".
EH 1003—LS 6926/DI 151 26
Page 4, line 24, strike "(g)" and insert "(i)".
Page 4, line 27, strike "(h)" and insert "(j)".
Page 5, between lines 27 and 28, begin a new line block indented
and insert:
"(1) section 9(c) of this chapter, if the case involves an
environmental matter described in section 9(b) of this
chapter;".
Page 5, line 28, reset in roman "(2)".
Page 5, line 28, delete "(1)".
Page 5, line 30, reset in roman "(3)".
Page 5, line 30, delete "(2)".
Page 7, line 24, after "frivolous" delete ";".
Page 7, line 24, reset in roman "or groundless;".
Page 10, line 22, delete "agency" and insert "office or ultimate
authority".
Page 10, line 35, delete "If the petitioner is the agency, failure" and
insert "Failure".
Page 10, line 38, after "court," insert "unless good cause is shown".
Page 10, line 39, after "proceeding." insert "The inability to obtain
the record from the office or ultimate authority within the time
permitted by this section is good cause.".
Page 21, between lines 34 and 35, begin a new paragraph and insert:
"(k) Until the office of administrative law proceedings adopts or
amends rules related to environmental matters, the office must
continue to follow and implement rules under 315 IAC.
(l) The office of administrative law proceedings must continue
to index and make publicly available, in a substantially similar
online searchable format, the final orders of contested appeals
currently maintained by the office.".
Page 21, line 35, delete "(k)" and insert "(m)".
and when so amended that said bill do pass.
(Reference is to HB 1003 as introduced.)
JETER
Committee Vote: yeas 11, nays 0.
EH 1003—LS 6926/DI 151 27
COMMITTEE REPORT
Madam President: The Senate Committee on Judiciary, to which
was referred House Bill No. 1003, has had the same under
consideration and begs leave to report the same back to the Senate with
the recommendation that said bill be AMENDED as follows:
Page 1, between the enacting clause and line 1, begin a new
paragraph and insert:
"SECTION 1. IC 1-1-5.5-24 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2025]: Sec. 24. (a) Except as provided in subsection (b), a
SECTION of HEA 1003-2024 does not apply to an administrative
proceeding or a proceeding for judicial review pending on June 30,
2024.
(b) A SECTION of HEA 1003-2024 applies to:
(1) an administrative proceeding or a proceeding for judicial
review commenced after June 30, 2024; or
(2) an administrative proceeding conducted after June 30,
2024, on remand from a court.
(c) After June 30, 2024, any reference to a duty of an ultimate
authority with respect to an administrative proceeding or
proceeding for judicial review shall be construed as a duty of the
office of administrative legal proceedings if the office of
administrative legal proceedings is the ultimate authority for that
agency.".
Page 8, delete lines 8 through 36, begin a new paragraph and insert:
"SECTION 8. IC 4-21.5-3-27.5, AS AMENDED BY P.L.249-2023,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 27.5. In a proceeding under this chapter
concerning an agency action, the administrative law judge shall order
the agency to pay the reasonable attorney's fees incurred in the
proceeding by the prevailing party challenging the agency action if:
(1) the party challenging the agency action proves, by a
preponderance of the evidence, that:
(A) the agency's action was frivolous or groundless; or
(B) the agency pursued the action in bad faith;
(2) the agency action was based on an invalid unsupported by a
statute or a valid rule, as provided in IC 4-22-2-44; or
(3) the agency has failed to demonstrate that the agency acted
within its legal authority.".
Page 10, line 28, strike "Clerical mistakes and other errors resulting
from oversight or".
Page 10, line 29, strike "omission" and insert "Errors".
EH 1003—LS 6926/DI 151 28
Page 10, line 32, after "section" insert ",".
Page 10, line 33, strike "neither" and insert "including a motion to
correct error,".
Page 10, line 34, strike "nor" and insert "and".
Page 10, line 35, strike "However, if a".
Page 10, strike line 36.
Page 10, line 37, strike "a new period begins on the date that a new
final order is served." and insert "A new period begins to run on the
date a motion to correct error is denied or a new order is issued. A
motion to correct error or motion for a rehearing is deemed denied
thirty (30) days after it was filed if there is no ruling on the motion
or no hearing is set on the motion.".
Page 11, line 1, after "agency." insert "The court shall decide all
questions of fact based on the record developed during the
administrative hearing independent of any previous factual finding
made by the agency.".
Page 11, line 8, delete ":".
Page 11, line 9, delete "(1)".
Page 11, line 9, strike "after the filing of the petition," and insert
"after receipt of the petition for judicial review served under
section 8 of this chapter".
Page 11, line 9, delete "if the petitioner is the agency;".
Page 11, delete lines 10 through 12.
Page 11, run in lines 8 through 13.
Page 11, delete lines 25 through 34, begin a new paragraph and
insert:
"(b) (c) An extension of time in which to file the record shall be
granted by the court for good cause shown. Inability of the office or
ultimate authority to obtain compile the record from the responsible
agency within the time permitted by this section is good cause. Failure
to file the record within the time permitted by this subsection, including
any extension period ordered by the court, is cause for dismissal of the
petition for review by the court, on its own motion, or on petition of any
party of record to the proceeding.".
Page 12, between lines 17 and 18, begin a new paragraph and insert:
"SECTION 15. IC 4-21.5-5-14 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 14. (a) The burden of
demonstrating the invalidity of agency action is on the party to the
judicial review proceeding asserting invalidity.
(b) The validity of agency action shall be determined in accordance
with the standards of review provided in this section, as applied to the
agency action at the time it was taken.
EH 1003—LS 6926/DI 151 29
(c) The court shall make findings of fact on each material issue on
which the court's decision is based.
(d) The court shall grant relief under section 15 of this chapter only
if it 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 a preponderance of the evidence.
(e) In a proceeding in which a nonapplicant petitions as a third
party to challenge an agency's issuance of a license, permit, or
approval, the court may only grant relief under section 15 of this
chapter if the nonapplicant 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.".
Page 21, between lines 36 and 37, begin a new paragraph and insert:
"SECTION 36. IC 34-52-2-1.7 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2024]: Sec. 1.7. (a) Except as provided in
subsection (b), in a judicial review proceeding under IC 4-21.5-5,
the court shall order the agency to pay the other party's reasonable
attorney's fees if:
(1) the party prevailed before an administrative law judge;
(2) the agency initiated the proceeding for judicial review;
and
(3) the party prevailed in the judicial review proceeding.
(b) In a judicial review proceeding, the court may not award
attorney's fees against an agency under this section if:
(1) the agency's only involvement in the case resulted from the
agency's role as an arbiter of the legal rights, duties,
immunities, privileges, or other legal interests of two (2) or
more parties; or
EH 1003—LS 6926/DI 151 30
(2) the position of the agency as a party became unjustified as
a result of an intervening change in applicable law.
(c) An order for the payment of attorney's fees under this
section is not subject to section 2, 3, or 4 of this chapter.".
Renumber all SECTIONS consecutively.
and when so amended that said bill do pass.
(Reference is to HB 1003 as printed January 18, 2024.)
BROWN L, Chairperson
Committee Vote: Yeas 8, Nays 3.
_____
SENATE MOTION
Madam President: I move that Engrossed House Bill 1003 be
amended to read as follows:
Page 8, line 27, after "27.5." insert "(a)".
Page 8, between lines 38 and 39, begin a new paragraph and insert:
"(b) Except as provided in subsection (c) and subject to
IC 34-52-2-1.5, in a judicial review proceeding, the court shall
order the agency to pay the other party's reasonable attorney's fees
if:
(1) the other party prevailed before an administrative law
judge;
(2) the agency initiated the proceeding for judicial review;
and
(3) the other party prevailed in the judicial review proceeding.
(c) In a judicial review proceeding, the court may not award
attorney's fees against an agency under this section if:
(1) the agency's only involvement in the case resulted from the
agency's role as an arbiter of the legal rights, duties,
immunities, privileges, or other legal interests of two (2) or
more parties; or
(2) the position of the agency as a party became unjustified as
a result of an intervening change in applicable law.".
Page 11, line 9, delete "The court shall decide all" and insert "A
court is not bound by a finding of fact made by the ultimate
authority if the finding of fact is not supported by the record.".
Page 11, delete lines 10 through 12.
Page 13, delete lines 1 through 13.
EH 1003—LS 6926/DI 151 31
Page 22, delete lines 33 through 42, begin a new paragraph and
insert:
"SECTION 36. IC 34-52-2-1.5, AS ADDED BY P.L.249-2023,
SECTION 82, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 1.5. (a) In a proceeding conducted under
IC 4-21.5-5, to judicially review a final order made by a state agency,
the court shall apply the same standard as an administrative law judge
under described in IC 4-21.5-3-27.5 regarding an order for the
payment of attorney's fees.
(b) An order for the payment of attorney's fees under this section is
not subject to sections 2, 3, and 4 of this chapter.".
Page 23, delete lines 1 through 10.
Renumber all SECTIONS consecutively.
(Reference is to EHB 1003 as printed March 1, 2024.)
CARRASCO
EH 1003—LS 6926/DI 151