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.
HOUSE ENROLLED ACT No. 1003
AN ACT to amend the Indiana Code concerning state offices and
administration.
Be it enacted by the General Assembly of the State of Indiana:
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.
SECTION 2. IC 4-15-10.5-2, AS ADDED BY P.L.205-2019,
SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 2. This chapter does not apply to:
(1) the department of workforce development;
(2) the unemployment insurance review board of the department
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of workforce development;
(3) the worker's compensation board of Indiana;
(4) the Indiana utility regulatory commission;
(5) the department of state revenue;
(6) the department of local government finance;
(7) the Indiana board of tax review;
(8) the natural resources commission;
(9) the office of environmental adjudication;
(10) (9) the Indiana education employment relations board;
(11) (10) the state employees appeals commission; or
(12) (11) before July 1, 2022, any other agency or category of
proceeding determined by the governor to be exempt from this
chapter for good cause.
SECTION 3. IC 4-15-10.5-12, AS ADDED BY P.L.205-2019,
SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 12. (a) Beginning July 1, 2020, and Except as
provided in sections 1 and 2 of this chapter, the office has jurisdiction
over all administrative proceedings concerning agency administrative
actions under:
(1) IC 4-21.5; or
(2) any other statute that requires or allows the office to take
action.
(b) Notwithstanding anything in this chapter or any other statute to
the contrary:
(1) the office shall not be considered the ultimate authority in any
administrative proceeding; and
(2) a decision by the office in an administrative proceeding is not
a final agency action;
unless expressly designated by the agency. This subsection may not be
construed as preventing the rescission of an agency's delegation.
(b) Except as provided in subsection (c), the office is the ultimate
authority in any administrative proceeding under its jurisdiction.
Judicial review under IC 4-21.5 shall be taken directly from a final
decision of the office.
(c) The office is not the ultimate authority if:
(1) a particular agency or agency action is exempted under
Indiana law; or
(2) an agency is required by federal mandate, as a condition
of federal funding, to conduct or render a final order in an
adjudication.
SECTION 4. IC 4-21.5-1-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. "Agency" means any
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officer, board, commission, department division, bureau, or committee
of state government that is responsible for any stage of a proceeding
under this article. Except as provided in IC 4-21.5-7, The term does not
include the judicial department of state government, the legislative
department of state government, or a political subdivision.
SECTION 5. IC 4-21.5-1-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 15. Subject to
IC 4-15-10.5-12, "ultimate authority" means:
(1) for an administrative proceeding under the office of
administrative law proceedings, the office of administrative
law proceedings; or
(2) for any other purpose, an individual or panel of individuals
in whom the final authority of an agency is vested by law or
executive order.
SECTION 6. IC 4-21.5-3-9, AS AMENDED BY P.L.13-2021,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 9. (a) Except to the extent that a statute other than
this article limits an agency's discretion to select an administrative law
judge, the ultimate authority for an agency may:
(1) act as an administrative law judge;
(2) designate one (1) or more members of the ultimate authority
(if the ultimate authority is a panel of individuals) to act as an
administrative law judge; or
(3) before July 1, 2020, designate one (1) or more:
(A) attorneys licensed to practice law in Indiana; or
(B) persons who served as administrative law judges for a state
agency before January 1, 2014;
to act as an administrative law judge. After June 30, 2020, the
ultimate authority for an agency may request assignment of an
administrative law judge by the office of administrative law
proceedings.
A person designated under subdivision (3) is not required to be an
employee of the agency. A designation under subdivision (2) or (3)
may be made in advance of the commencement of any particular
proceeding for a generally described class of proceedings or may be
made for a particular proceeding. A general designation may provide
procedures for the assignment of designated individuals to particular
proceedings.
(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
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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.
(b) (d) An agency A person may not knowingly assign an individual
to serve alone or with others as an administrative law judge who is
subject to disqualification under this chapter.
(c) (e) If the administrative law judge assigned to the proceeding
believes that the judge's impartiality might reasonably be questioned,
or believes that the judge's personal bias, prejudice, or knowledge of a
disputed evidentiary fact might influence the decision, the
administrative law judge shall:
(1) withdraw as the administrative law judge; or
(2) inform the parties of the potential basis for disqualification,
place a brief statement of this basis on the record of the
proceeding, and allow the parties an opportunity to petition for
disqualification under subsection (d). (f).
(d) (f) Any party to a proceeding may petition for the
disqualification of an administrative law judge upon discovering facts
establishing grounds for disqualification under this chapter. The
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administrative law judge assigned to the proceeding shall determine
whether to grant the petition, stating facts and reasons for the
determination.
(e) (g) If the administrative law judge ruling on the disqualification
issue is not the ultimate authority, for the agency, the party petitioning
for disqualification may petition the ultimate authority, or, if the
administrative law judge is employed or contracted with the office of
administrative law proceedings, the director of the office of
administrative law proceedings, in writing for review of the ruling
within ten (10) days after notice of the ruling is served. The ultimate
authority shall:
(1) conduct proceedings described by section 28 of this chapter;
or
(2) request that the director of the office of administrative law
proceedings conduct proceedings described by section 28 of this
chapter;
to review the petition and affirm, modify, or dissolve the ruling within
thirty (30) days after the petition is filed. A determination by the
ultimate authority or the director of the office of administrative law
proceedings under this subsection is a final order subject to judicial
review under IC 4-21.5-5.
(f) (h) If a substitute is required for an administrative law judge who
is disqualified or becomes unavailable for any other reason, the
substitute must be appointed in accordance with subsection (a).
(g) (i) Any action taken by a duly appointed substitute for a
disqualified or unavailable administrative law judge is as effective as
if taken by the latter.
(h) (j) If there is a reasonable likelihood that the ultimate authority
will be called upon to:
(1) review; or
(2) issue a final order with respect to;
a matter pending before or adjudicated by an administrative law judge,
the provisions of section 11 of this chapter that apply to an
administrative law judge or to a person communicating with an
administrative law judge apply to a member of the ultimate authority
and to a person communicating with a member of the ultimate
authority.
SECTION 7. IC 4-21.5-3-10, AS AMENDED BY THE
TECHNICAL CORRECTIONS BILL OF THE 2024 GENERAL
ASSEMBLY, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 10. (a) An administrative law judge is subject to
disqualification for:
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(1) bias, prejudice, or interest in the outcome of a proceeding;
(2) failure to dispose of the subject of a proceeding in an orderly
and reasonably prompt manner after a written request by a party;
(3) unless waived or extended with the written consent of all
parties or for good cause shown, failure to issue an order not later
than ninety (90) days after the latest of:
(A) the filing of a motion to dismiss or a motion for summary
judgment under section 23 of this chapter that is filed after
June 30, 2011;
(B) the conclusion of a hearing that begins after June 30, 2011;
or
(C) the completion of any schedule set for briefing or for
submittal of proposed findings of fact and conclusions of law
for a disposition under clauses (A) or (B); or
(4) any cause for which a judge of a court may be disqualified.
Before July 1, 2020, nothing in this subsection prohibits an individual
who is an employee of an agency from serving as an administrative law
judge.
(b) This subsection does not apply to a proceeding concerning a
regulated occupation (as defined in IC 25-1-7-1), except for a
proceeding concerning a water well driller (as described in IC 25-39-3)
or an out of state mobile health care entity regulated by the Indiana
department of health. An individual who is disqualified under
subsection (a)(2) or (a)(3) shall provide the parties a list of at least
three (3) special administrative law judges who meet the requirements
of:
(1) IC 4-21.5-7-6, if the case is pending in the office of
environmental adjudication;
(1) section 9(c) of this chapter, if the case involves an
environmental matter described in section 9(b) of this
chapter;
(2) IC 14-10-2-2, if the case is pending before the division of
hearings of the natural resources commission; or
(3) subject to subsection (d), any other statute or rule governing
qualification to serve an agency other than those described in
subdivision (1) or (2).
Subject to subsection (c), the parties may agree to the selection of one
(1) individual from the list.
(c) If the parties do not agree to the selection of an individual as
provided in subsection (b) not later than ten (10) days after the parties
are provided a list of judges under subsection (b), a special
administrative law judge who meets the requirements of subsection (b)
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shall be selected under the procedure set forth in Trial Rule 79(D).
79(E), or 79(F).
(d) This subsection applies after June 30, 2020, to an agency whose
proceedings are subject to the jurisdiction of the office of
administrative law proceedings. If an administrative law judge is
disqualified under this section, the director of the office of
administrative law proceedings shall assign another administrative law
judge.
SECTION 8. IC 4-21.5-3-27 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 27. (a) If the
administrative law judge is the ultimate authority for the agency, the
ultimate authority's order disposing of a proceeding is a final order. If
the administrative law judge is not the ultimate authority, the
administrative law judge's order disposing of the proceeding becomes
a final order when affirmed under section 29 of this chapter. Regardless
of whether the order is final, it must comply with this section.
(b) This subsection applies only to an order not subject to subsection
(c). The order must include, separately stated, findings of fact for all
aspects of the order, including the remedy prescribed and, if applicable,
the action taken on a petition for stay of effectiveness. Findings of
ultimate fact must be accompanied by a concise statement of the
underlying basic facts of record to support the findings. The order must
also include a statement of the available procedures and time limit for
seeking administrative review of the order (if administrative review is
available) and the procedures and time limits for seeking judicial
review of the order under IC 4-21.5-5.
(c) This subsection applies only to an order of the ultimate authority
entered under IC 13, IC 14, or IC 25. The order must include separately
stated findings of fact and, if a final order, conclusions of law for all
aspects of the order, including the remedy prescribed and, if applicable,
the action taken on a petition for stay of effectiveness. Findings of
ultimate fact must be accompanied by a concise statement of the
underlying basic facts of record to support the findings. Conclusions of
law must consider prior final orders (other than negotiated orders) of
the ultimate authority under the same or similar circumstances if those
prior final orders are raised on the record in writing by a party and must
state the reasons for deviations from those prior orders. The order must
also include a statement of the available procedures and time limit for
seeking administrative review of the order (if administrative review is
available) and the procedures and time limits for seeking judicial
review of the order under IC 4-21.5-5.
(d) Findings must be based exclusively upon the evidence of record
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in the proceeding and on matters officially noticed in that proceeding.
Findings must be based upon the kind of evidence that is substantial
and reliable. The administrative law judge's experience, technical
competence, and specialized knowledge may be used in evaluating
evidence.
(e) A substitute administrative law judge may issue the order under
this section upon the record that was generated by a previous
administrative law judge.
(f) The administrative law judge may allow the parties a designated
amount of time after conclusion of the hearing for the submission of
proposed findings.
(g) An order under this section shall be issued in writing within
ninety (90) days after conclusion of the hearing or after submission of
proposed findings in accordance with subsection (f), unless this period
is waived or extended with the written consent of all parties or for good
cause shown.
(h) The administrative law judge shall have copies of the order
under this section delivered to each party and to the ultimate authority
for the agency (if it is not rendered by the ultimate authority).
SECTION 9. 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. (a) 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.
(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.
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(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.
SECTION 10. IC 4-21.5-3-29 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 29. (a) This section
does not apply if the administrative law judge issuing an order under
section 27 of this chapter is the ultimate authority for the agency.
(b) After an administrative law judge issues an a nonfinal order
under section 27 of this chapter, the ultimate authority or its designee
shall issue: a final order:
(1) a final order affirming the administrative law judge's
order;
(2) a final order modifying the administrative law judge's
order; or
(3) dissolving; the administrative law judge's order. The ultimate
authority or its designee may remand an order remanding the
matter, with or without instructions, to an administrative law
judge for further proceedings.
(c) In the absence of an objection or notice under subsection (d) or
(e), the ultimate authority or its designee shall affirm the order. the
order is final and the agency issuing the nonfinal order shall issue
a notice of final order within thirty (30) days after the deadline to
file a notice under subsection (e).
(d) To preserve an objection to an order of an administrative law
judge for judicial review, a party must not be in default under this
chapter and must object to the order in a writing that:
(1) identifies the basis of the objection with reasonable
particularity; and
(2) is filed with the ultimate authority responsible for reviewing
the order.
The written objection must be served on all parties and the agency
issuing the nonfinal order within fifteen (15) days (or any longer
period set by statute) after the order is served on the petitioner.
(e) Without an objection under subsection (d), the ultimate authority
or its designee may serve written notice of its intent to review any issue
related to the order. The notice shall be served on all parties, the
agency issuing the nonfinal order, and all other persons described by
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section 5(d) of this chapter within sixty (60) days after the nonfinal
order is served on the parties. The notice of intent to review must
identify the issues that the ultimate authority or its designee intends to
review.
(f) A final order disposing of a proceeding or an order remanding an
order to an administrative law judge for further proceedings shall be
issued within sixty (60) days after the latter of:
(1) the date that the order was issued under section 27 of this
chapter;
(2) the receipt of briefs; or
(3) the close of oral argument;
unless the period is waived or extended with the written consent of all
parties or for good cause shown.
(g) After remand of an order under this section to an administrative
law judge, the judge's order is also subject to review under this section.
SECTION 11. IC 4-21.5-3-31 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 31. (a) An agency
ultimate authority has jurisdiction to modify a final order under this
section before the earlier of the following:
(1) Thirty (30) days after the agency has served the final order
under section 27, 29, or 30 of this chapter.
(2) Another agency assumes jurisdiction over the final order
under section 30 of this chapter.
(3) A court assumes jurisdiction over the final order under
IC 4-21.5-5.
(b) A party may petition the ultimate authority for an agency for a
stay of effectiveness of a final order. The ultimate authority or its
designee may, before or after the order becomes effective, stay the final
order in whole or in part.
(c) A party may petition the ultimate authority for an agency for a
rehearing of a final order. The ultimate authority or its designee may
grant a petition for rehearing only if the petitioning party demonstrates
that:
(1) the party is not in default under this chapter;
(2) newly discovered material evidence exists; and
(3) the evidence could not, by due diligence, have been
discovered and produced at the hearing in the proceeding.
The rehearing may be limited to the issues directly affected by the
newly discovered evidence. If the rehearing is conducted by a person
other than the ultimate authority, section 29 of this chapter applies to
review of the order resulting from the rehearing.
(d) Clerical mistakes and other errors resulting from oversight or
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omission Errors in a final order or other part of the record of a
proceeding may be corrected by an ultimate authority or its designee on
the motion of any party or on the motion of the ultimate authority or its
designee.
(e) An action of a petitioning party or an agency under this section,
neither including a motion to correct error, tolls the period in which
a party may object to a second agency under section 30 of this chapter
nor and tolls the period in which a party may petition for judicial
review under IC 4-21.5-5. However, if a rehearing is granted under
subsection (c), these periods are tolled and a new period begins on the
date that a new final order is served. 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.
SECTION 12. IC 4-21.5-5-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 11. (a) Judicial review
of disputed issues of fact must be confined to the agency record for the
agency action supplemented by additional evidence taken under section
12 of this chapter. The court may not try the cause de novo or substitute
its judgment for that of the agency. 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.
(b) 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 agency.
SECTION 13. IC 4-21.5-5-13 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 13. (a) Within Not
later than thirty (30) days after the filing of the petition, after receipt
of the petition for judicial review served under section 8 of this
chapter or within further time allowed by the court or by other law, the
petitioner office or ultimate authority shall transmit to the court the
original or a certified copy of the agency record for judicial review of
the agency action.
(b) consisting The record consists of:
(1) any agency documents expressing the agency action;
(2) other documents identified by the agency as having been
considered by it before its action and used as a basis for its action;
and
(3) any other material described in this article as the agency
record for the type of agency action at issue, subject to this
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section.
(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.
(c) (d) Upon a written request by the petitioner, the agency taking
the action being reviewed shall prepare the agency record for the
petitioner. If part of the record has been preserved without a transcript,
the agency shall prepare a transcript for inclusion in the record
transmitted to the court, except for portions that the parties to the
judicial review proceeding stipulate to omit in accordance with
subsection (e). (f).
(d) (e) Notwithstanding IC 5-14-3-8, the agency shall charge the
petitioner with the reasonable cost of preparing any necessary copies
and transcripts for transmittal to the court, unless a person files with the
court, under oath and in writing, the statement described by
IC 33-37-3-2.
(e) (f) By stipulation of all parties to the review proceedings, the
record may be shortened, summarized, or organized.
(f) (g) The court may tax the cost of preparing transcripts and copies
for the record:
(1) against a party to the judicial review proceeding who
unreasonably refuses to stipulate to shorten, summarize, or
organize the record; or
(2) in accordance with the rules governing civil actions in the
courts or other law.
(g) (h) Additions to the record concerning evidence received under
section 12 of this chapter must be made as ordered by the court. The
court may require or permit subsequent corrections or additions to the
record.
SECTION 14. 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.
(c) The court shall make findings of fact on each material issue on
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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.
SECTION 15. IC 4-21.5-7 IS REPEALED [EFFECTIVE JULY 1,
2024]. (Environmental Adjudication).
SECTION 16. IC 4-22-2-19.6, AS ADDED BY P.L.249-2023,
SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 19.6. (a) A rule adopted under this article or
IC 13-14-9 that includes a fee, fine, or civil penalty must comply with
this section. Subsections (b), (c), and (d) do not apply to a rule that
must be adopted in a certain form to comply with federal law.
(b) For each fee, fine, or civil penalty imposed by an agency that is
not set as a specific amount in a state law, a rule must describe the
circumstances for which the agency will assess a fee, fine, or civil
penalty and set forth the amount of the fee, fine, or civil penalty:
(1) as a specific dollar amount;
(2) under a formula by which a specific dollar amount can be
reasonably calculated by persons regulated or otherwise affected
by the rule; or
(3) as a range of potential dollar amounts, stating the factors that
the agency will utilize to set a specific dollar amount in an
individual case with sufficient certainty that a review of an agency
action under IC 4-21.5 or comparable process can evaluate
whether the amount was reasonable.
A rule concerning fines or civil penalties does not prohibit an agency
to enter into a settlement agreement with a person against whom a fine
or civil penalty is being assessed to determine the fine or civil penalty
to be paid for a violation.
(c) The amount of a fee must be reasonably based on the amount
necessary to carry out the purposes for which the fee is imposed.
(d) An agency setting a fine or civil penalty shall consider the
following:
(1) Whether the violation has a major or minor impact on the
health, safety, or welfare of a person, the health or safety of
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animals or natural resources, or other facts set forth in the
agency's rule.
(2) The number of previous violations committed by the offender
of laws, rules, or programs administered by the agency.
(3) The need for deterrence of future violations.
(4) Whether the conduct, if proved beyond a reasonable doubt,
would constitute a criminal offense, and the level of penalty set by
law for the criminal offense.
(e) An agency is not liable for a fee, fine, or civil penalty that is not
in conformity with this section if:
(1) the fee, fine, or civil penalty was included in a rule that
became effective before January 1, 2023, and that otherwise
complies with subsection (b);
(2) the fee, fine, or civil penalty was:
(A) set by an agency before January 1, 2023;
(B) reviewed by the budget committee:
(i) in the case of the department of environmental
management, the boards listed in IC 13-14-9-1, the office of
environmental adjudication, the natural resources
commission, the department of natural resources, the
Indiana gaming commission, and the Indiana horse racing
commission, before December 31, 2023; and
(ii) in the case of an agency not described in item (i), before
July 1, 2024; and
(C) included in a rule that complies with this section and
becomes effective before:
(i) in the case of the department of environmental
management, the boards listed in IC 13-14-9-1, the office of
environmental adjudication, the natural resources
commission, the department of natural resources, the
Indiana gaming commission, and the Indiana horse racing
commission, December 31, 2024; and
(ii) in the case of an agency not described in item (i), July 1,
2025; or
(3) the agency withdraws or otherwise ceases to enforce or apply
the fee, fine, or civil penalty before:
(A) in the case of the department of environmental
management, the boards listed in IC 13-14-9-1, the office of
environmental adjudication, the natural resources commission,
the department of natural resources, the Indiana gaming
commission, and the Indiana horse racing commission,
December 31, 2023; and
HEA 1003 — Concur 15
(B) in the case of an agency not described in clause (A), July
1, 2024.
Readoption without changes under IC 4-22-2.6 of a nonconforming fee,
fine, or civil penalty that meets the requirements of subdivision (1) or
(2) does not invalidate the nonconforming fee, fine, or civil penalty.
(f) Beginning January 1, 2024, an agency shall post on its website
a schedule of fines and civil penalties that apply to violations of laws,
rules, and requirements of federal programs administered by the
agency.
SECTION 17. IC 13-14-8-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 11. (a) A person
affected by a decision of the commissioner under sections 8 and 9 of
this chapter may, within fifteen (15) days after receipt of notice of the
decision, appeal the decision to the office of environmental
adjudication. administrative law proceedings. All proceedings under
this section to appeal the commissioner's decision are governed by
IC 4-21.5.
(b) The commissioner's decision to grant a variance does not take
effect until available administrative remedies are exhausted.
SECTION 18. IC 13-15-6-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 1. (a) Not later than
fifteen (15) days after being served the notice provided by the
commissioner under IC 13-15-5-3:
(1) the permit applicant; or
(2) any other person aggrieved by the commissioner's action;
may appeal the commissioner's action to the office of environmental
adjudication administrative law proceedings and request that an
environmental administrative law judge hold an adjudicatory hearing
concerning the action under IC 4-21.5-3 and IC 4-21.5-7. IC 4-15-10.5.
(b) Notwithstanding subsection (a) and IC 4-21.5-3-7(a)(3), a person
may file an appeal of the commissioner's action in issuing an initial
permit under the operating permit program under 42 U.S.C. 7661
through 7661f not later than thirty (30) days after the date the person
received the notice provided under IC 13-15-5-3, for a permit issued
after April 30, 1999.
SECTION 19. IC 13-15-6-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Not later than
thirty (30) days after being served a request for an adjudicatory hearing,
an environmental administrative law judge under IC 4-21.5-7
IC 4-15-10.5 shall, if the environmental administrative law judge
determines that:
(1) the request was properly submitted; and
HEA 1003 — Concur 16
(2) the request establishes a jurisdictional basis for a hearing;
assign the matter for a hearing.
(b) Upon assigning the matter for a hearing, an environmental
administrative law judge may stay the force and effect of the
following:
(1) A contested permit provision.
(2) A permit term or condition the environmental administrative
law judge considers inseverable from a contested permit
provision.
(c) After a final hearing under this section, a final order of an
environmental administrative law judge on a permit application is
subject to review under IC 4-21.5-5.
SECTION 20. IC 13-15-7-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. A person aggrieved
by the revocation or modification of a permit may appeal the revocation
or modification to the office of environmental adjudication
administrative law proceedings for an administrative review under
IC 4-21.5-3. Pending the decision resulting from the hearing under
IC 4-21.5-3 concerning the permit revocation or modification, the
permit remains in force. However, the commissioner may seek
injunctive relief with regard to the activity described in the permit
while the decision resulting from the hearing is pending.
SECTION 21. IC 13-17-3-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 7. (a) The
commissioner may enter into agreed orders as provided in
IC 13-30-3-6.
(b) An environmental administrative law judge under IC 4-21.5-7
IC 4-15-10.5 shall review orders and determinations of the
commissioner.
SECTION 22. IC 13-17-6-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 10. (a) If the
commissioner finds that an asbestos project is not being performed in
accordance with air pollution control laws or rules adopted under air
pollution control laws, the commissioner may enjoin further work on
the asbestos project without prior notice or hearing by delivering a
notice to:
(1) the asbestos contractor engaged in the asbestos project; or
(2) the agent or representative of the asbestos contractor.
(b) A notice issued under this section must:
(1) specifically enumerate the violations of law that are occurring
on the asbestos project; and
(2) prohibit further work on the asbestos project until the
HEA 1003 — Concur 17
violations enumerated under subdivision (1) cease and the notice
is rescinded by the commissioner.
(c) Not later than ten (10) days after receiving written notification
from a contractor that violations enumerated in a notice issued under
this section have been corrected, the commissioner shall issue a
determination whether or not to rescind the notice.
(d) An asbestos contractor or any other person aggrieved or
adversely affected by the issuance of a notice under subsection (a) may
obtain a review of the commissioner's action under IC 4-21.5 and
IC 4-21.5-7. IC 4-15-10.5.
SECTION 23. IC 13-18-3-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 4. (a) The
commissioner may enter into agreed orders as provided in
IC 13-30-3-6.
(b) An environmental administrative law judge under IC 4-21.5-7
IC 4-15-10.5 shall review orders and determinations of the
commissioner.
SECTION 24. IC 13-18-11-8, AS AMENDED BY P.L.159-2011,
SECTION 23, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 8. (a) The commissioner may suspend or revoke
the certificate of an operator issued under this chapter, following a
hearing under IC 13-15-7-3 and IC 4-21.5, if any of the following
conditions are found:
(1) The operator has practiced fraud or deception in any state or
other jurisdiction.
(2) Reasonable care, judgment, or the application of the operator's
knowledge or ability was not used in the performance of the
operator's duties.
(3) The operator is incompetent or unable to properly perform the
operator's duties.
(4) A certificate of the operator issued:
(A) under this chapter; or
(B) by any other state or jurisdiction for a purpose comparable
to the purpose for which a certificate is issued under this
chapter;
has been revoked.
(5) The operator has been convicted of a crime related to a
certificate of the operator issued:
(A) under this chapter; or
(B) by any other state or jurisdiction for a purpose comparable
to the purpose for which a certificate is issued under this
chapter.
HEA 1003 — Concur 18
(b) A hearing and further proceedings shall be conducted in
accordance with IC 4-21.5-7. IC 4-15-10.5.
SECTION 25. IC 13-19-3-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 2. (a) The
commissioner may enter into agreed orders as provided in
IC 13-30-3-6.
(b) An environmental administrative law judge under IC 4-21.5-7
IC 4-15-10.5 shall review orders and determinations of the
commissioner.
SECTION 26. IC 13-20-13-5.5, AS AMENDED BY P.L.263-2013,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 5.5. (a) A certificate of registration issued by the
department under this chapter may be revoked or modified by the
commissioner, or by a designated staff member of the department, after
notification in writing is sent in accordance with IC 13-14-2-1 to the
holder of the certificate for:
(1) failure to disclose all relevant facts;
(2) making a misrepresentation in obtaining the registration; or
(3) failure to correct, within the time established by the
department:
(A) a violation of a condition of the registration; or
(B) a violation of this chapter or a rule adopted by the board
under section 11 of this chapter.
(b) A person aggrieved by the revocation or modification of a
certificate of registration may appeal the revocation or modification to
the office of environmental adjudication administrative law
proceedings under IC 4-21.5-7. IC 4-15-10.5. Pending the decision
resulting from a hearing under IC 4-21.5-3 concerning the revocation
or modification, the registration remains in force. However, subsequent
to revocation or modification, the commissioner may seek injunctive
relief concerning the activity described in the registration.
SECTION 27. IC 13-20-14-5.6, AS AMENDED BY P.L.263-2013,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 5.6. (a) A certificate of registration issued by the
department under this chapter may be revoked or modified by the
commissioner, or by a designated staff member of the department, after
notification in writing is sent in accordance with IC 13-14-2-1 to the
holder of the certificate, for:
(1) failure to disclose all relevant facts;
(2) making a misrepresentation in obtaining the registration; or
(3) failure to correct, within the time established by the
department, a violation of:
HEA 1003 — Concur 19
(A) a condition of the registration;
(B) this chapter; or
(C) a rule adopted by the board under section 6 of this chapter.
(b) A person aggrieved by the revocation or modification of a
certificate of registration may appeal the revocation or modification to
the office of environmental adjudication administrative law
proceedings under IC 4-21.5-7. IC 4-15-10.5. Pending the decision
resulting from a hearing under IC 4-21.5-3 concerning the revocation
or modification, the registration remains in force. However, subsequent
to revocation or modification, the commissioner may seek injunctive
relief concerning the activity described in the registration.
SECTION 28. IC 13-23-9-4, AS AMENDED BY P.L.96-2016,
SECTION 37, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 4. If the administrator denies an ELTF claim
under this chapter, the claimant may appeal the denial under IC 4-21.5
to the office of environmental adjudication administrative law
proceedings under IC 4-21.5-7. IC 4-15-10.5.
SECTION 29. IC 13-24-1-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 4. (a) Except where an
owner or operator can prove that a release from a petroleum facility
was caused by:
(1) an act of God;
(2) an act of war;
(3) negligence on the part of a local government, the state
government, or the federal government;
(4) except as provided in subsection (b), an act or omission of a
responsible person; or
(5) a combination of the causes set forth in subdivisions (1)
through (4);
the owner or operator is liable to the state for the reasonable costs of
any response or remedial action taken under section 2 of this chapter
involving the petroleum facility. A responsible person is liable to the
state for the reasonable costs of any response or remedial action taken
under section 2 of this chapter involving the petroleum facility.
(b) The owner, operator, or responsible person is entitled to all
rights of the state to recover from another responsible person all or a
part of the costs described in subsection (a) incurred or paid to the state
by the owner, operator, or responsible person in an action brought in a
circuit or superior court with jurisdiction in the county in which the
release occurred.
(c) Money recovered by the state under this section in connection
with a removal or remedial action undertaken with respect to a release
HEA 1003 — Concur 20
of petroleum shall be deposited in the hazardous substances response
trust fund.
(d) The state may recover removal or remedial action costs under
this section as follows:
(1) Commence an action under IC 13-14-2-6 or IC 13-14-2-7.
(2) Impose a lien under IC 13-25-4-11 on the property on which
the removal or the remedial action was undertaken.
(e) In an administrative action brought under this chapter, an
environmental administrative law judge shall apportion the costs of
a response or a remedial action in proportion to each party's
responsibility for a release.
SECTION 30. IC 13-25-4-20 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 20. (a) Before the date
on which the state intends to impose a lien on real property under
section 11 of this chapter, the owner of the real property may request
that a hearing be conducted under IC 4-21.5. A hearing conducted
under this section and IC 4-21.5 shall be limited to determining if there
is probable cause to believe that:
(1) a removal or a remedial action was conducted on the real
property under:
(A) this chapter; or
(B) IC 13-24-1; and
(2) if the removal or the remedial action was conducted under this
chapter, the owner of the real property would be subject to
liability under 42 U.S.C. 9607 (Section 107 of the federal
Comprehensive Environmental Response, Compensation, and
Liability Act).
(b) For the purposes of a hearing conducted under this section and
IC 4-21.5, an environmental administrative law judge is the ultimate
authority.
SECTION 31. IC 13-30-3-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 5. (a) Except as
otherwise provided in:
(1) a notice issued under section 4 of this chapter; or
(2) a law relating to emergency orders;
an order of the commissioner under this chapter takes effect twenty
(20) days after the alleged violator receives the notice, unless the
alleged violator requests under subsection (b) a review of the order
before the twentieth day after receiving the notice.
(b) To request a review of the order, the alleged violator must:
(1) file a written request with the office of environmental
adjudication administrative law proceedings under IC 4-21.5-7;
HEA 1003 — Concur 21
IC 4-15-10.5; and
(2) serve a copy of the request on the commissioner.
(c) If a review of an order is requested under this section, the office
of environmental adjudication administrative law proceedings
established under IC 4-21.5-7 IC 4-15-10.5 shall review the order
under IC 4-21.5.
SECTION 32. IC 13-30-3-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 6. If an alleged violator
who has requested a review of an order of the commissioner under
section 5 of this chapter agrees to resolve the controversy concerning
the order in a manner satisfactory to the commissioner before a final
order is issued by the office of environmental adjudication,
administrative law proceedings, the commissioner may approve an
agreed order based on the agreement.
SECTION 33. IC 13-30-3-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 7. A final order of an
environmental administrative law judge is subject to judicial review
under IC 4-21.5-5.
SECTION 34. IC 14-10-2-2.5, AS ADDED BY P.L.84-2008,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 2.5. (a) A person who is the party in a hearing
under this title or IC 4-21.5-7 IC 4-15-10.5 may move to have the:
(1) environmental administrative law judge appointed under
IC 4-21.5-7; IC 4-15-10.5; or
(2) administrative law judge appointed under section 2 of this
chapter;
consolidate multiple proceedings that are subject to the jurisdiction of
both the office of environmental adjudication administrative law
proceedings and the division of hearings.
(b) The environmental law judge or the An administrative law judge
shall grant the motion made under subsection (a) if the following
findings are made:
(1) The proceedings include the following:
(A) Common questions of law or fact.
(B) At least one (1) person, other than the department or the
department of environmental management, who is a party to
all the proceedings.
(C) Issues of water quality, water quantity, or both.
(2) Consolidation may support administrative efficiency.
(c) If a motion to consolidate proceedings has been granted under
subsection (b), the hearing must be conducted by a panel that consists
of at least one (1) environmental law judge and one (1) two (2)
HEA 1003 — Concur 22
administrative law judge. judges. The panel is the ultimate authority
for matters authorized under IC 4-21.5-7-5 and this title. Any party,
including the department and the department of environmental
management, may petition an appropriate court for judicial review of
a final determination of the panel.
(d) The office of environmental adjudication administrative law
proceedings and the division of hearings shall adopt joint rules to
implement this section.
SECTION 35. IC 14-34-2-2, AS AMENDED BY P.L.84-2008,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 2. (a) The commission shall appoint the following:
(1) An administrative law judge to conduct proceedings under
IC 4-21.5. An administrative law judge is subject to IC 14-10-2-2.
(2) A hearing officer to conduct proceedings under IC 4-22-2.
(b) An administrative law judge is the ultimate authority for the
department for any administrative review proceeding under this article,
except for the following:
(1) Proceedings concerning the approval or disapproval of a
permit application or permit renewal under IC 14-34-4-13.
(2) Proceedings for suspension or revocation of a permit under
IC 14-34-15-7.
(3) Proceedings consolidated with the office of environmental
adjudication administrative law proceedings under
IC 14-10-2-2.5.
(c) An order made by an administrative law judge granting or
denying temporary relief from a decision of the director is a final order
of the department.
(d) Judicial review of a final order made by an administrative law
judge under subsection (b) or (c) or under IC 13-4.1-2-1(c) or
IC 13-4.1-2-1(d) (before their repeal) may be taken under IC 4-21.5-5.
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.
SECTION 37. [EFFECTIVE JULY 1, 2024] (a) As used in this
SECTION, "office" means the office of environmental adjudication
established under IC 4-21.5-7.
HEA 1003 — Concur 23
(b) As used in this SECTION, "office of administrative law
proceedings" means the office of administrative law proceedings
established under IC 4-15-10.5.
(c) On July 1, 2024, all agreements and liabilities of the office
are transferred to the office of administrative law proceedings, as
the successor agency.
(d) On July 1, 2024, all records and property of the office,
including appropriations and other funds under the control or
supervision of the office, are transferred to the office of
administrative law proceedings, as the successor agency.
(e) After July 1, 2024, any amounts owed to the office before
July 1, 2024, are considered to be owed to the office of
administrative law proceedings, as the successor agency.
(f) After July 1, 2024, a reference to the office in a statute, rule,
or other document is considered a reference to the office of
administrative law proceedings, as the successor agency.
(g) After July 1, 2024, a reference to an environmental law
judge is considered a reference to an administrative law judge
under IC 4-15-10.5.
(h) All powers, duties, agreements, and liabilities of the office
with respect to bonds issued by the office in connection with any
trust agreement or indenture securing those bonds are transferred
to the office of administrative law proceedings, as the successor
agency.
(i) The director and employees of the office on June 30, 2024,
become employees of the office of administrative law proceedings
on July 1, 2024, without change in compensation, seniority, or
benefits, and are entitled to have their service under the office
included for purposes of computing any applicable employment
and retirement benefits.
(j) After July 1, 2024, all pending proceedings of the office are
transferred to the office of administrative law proceedings.
(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.
(m) This SECTION expires July 1, 2025.
HEA 1003 — Concur Speaker of the House of Representatives
President of the Senate
President Pro Tempore
Governor of the State of Indiana
Date: Time:
HEA 1003 — Concur