TITLE 312 NATURAL RESOURCES COMMISSION
Final Rule
LSA Document #08-688(F)
DIGEST
Amends
312 IAC 3-1-1,
312 IAC 3-1-2, and
312 IAC 3-1-8 and adds
312 IAC 3-1-10.5, concerning procedural rules for the Natural Resources Commission, Division of Hearings, to provide for the consolidation of proceedings with the Office of Environmental Adjudication as required by SEA 134.
NOTE: This document is jointly promulgated with the Office of Environmental Adjudication. See LSA Document #08-689, posted at 20090429-IR-315080689FRA. Effective 30 days after filing with the Publisher.
Authority:
IC 14-10-2-2.5;
IC 14-10-2-4;
IC 25-31.5-3-8
Sec. 1. (a) This rule controls proceedings governed by
IC 4-21.5 for which the commission, or an administrative law judge for the commission, is the ultimate authority.
In conjunction with 315 IAC 1-1, this rule also governs a proceeding consolidated with the office of environmental adjudication under IC 14-10-2-2.5(b).
(b) An affected person who is aggrieved by a determination of:
(1) the director;
(2) a delegate of the director;
(3) a board (other than the commission when acting as the ultimate authority);
(4) a delegate of the board (other than an administrative law judge);
(5) a person who has been delegated authority under
312 IAC 2-2;
(6) the Indiana board of licensure for professional geologists under
IC 25-17.6; or
(7) the Indiana board of registration for soil scientists under
IC 25-31.5;
may apply for administrative review of the determination under
IC 4-21.5 and this rule.
(c) As used in this rule, "division director" refers to the director of the division of hearings of the commission.
(Natural Resources Commission; 312 IAC 3-1-1; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1317; filed Oct 19, 1998, 10:12 a.m.: 22 IR 748; filed Aug 29, 2002, 1:03 p.m.: 26 IR 7; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; filed Apr 3, 2009, 2:00 p.m.: 20090429-IR-312080688FRA)
Authority:
IC 14-10-2-2.5;
IC 14-10-2-4;
IC 25-31.5-3-8
Sec. 2. (a) Except as provided in subsection (b), this section, the commission is the ultimate authority for the department and any department board.
(b)
Except as provided in subsection (d), an administrative law judge is the ultimate authority for an administrative review under the following:
(1) An order under
IC 14-34, except for a proceeding:
(A) concerning the approval or disapproval of a permit application or permit renewal under
IC 14-34-4-13; or
(B)
a proceeding for suspension or revocation of a permit under
IC 14-34-15-7.
(2) An order granting or denying temporary relief under
IC 14-34 or an order:
(A) voiding;
(B) terminating;
(C) modifying;
(D) staying; or
(E) continuing;
(3) An order designated as a final order in section 9 of this rule.
(c) An administrative law judge is also the ultimate authority for the following:
(1) The Indiana board of licensure for professional geologists under
IC 25-17.6.
(2) The Indiana board of registration for soil scientists under
IC 25-31.5.
(d) For a proceeding consolidated with the office of environmental adjudication under IC 14-10-2-2.5(b), the panel described in IC 14-10-2-2.5(c) is the ultimate authority for administrative review.
(Natural Resources Commission; 312 IAC 3-1-2; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1317; filed Oct 19, 1998, 10:12 a.m.: 22 IR 749; filed Dec 26, 2001, 2:42 p.m.: 25 IR 1543; filed Aug 29, 2002, 1:03 p.m.: 26 IR 8; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; filed Apr 3, 2009, 2:00 p.m.: 20090429-IR-312080688FRA)
312 IAC 3-1-8 Administrative law judge; automatic change
Authority:
IC 14-10-2-2.5;
IC 14-10-2-4;
IC 25-31.5-3-8
Sec. 8. (a) In addition to the reasons stated for the disqualification of an administrative law judge under
IC 4-21.5, an automatic change of administrative law judge may be obtained under this section.
(b) A party, within ten (10) days after the appointment of an administrative law judge, may file a written motion for change of the administrative law judge without specifically stating the ground for the request.
(c) The administrative law judge shall grant a motion filed under subsection (b) and promptly notify the division director. The division director shall inform the parties of the names of two (2) other individuals from whom a substitute administrative law judge may be selected. A party who is opposed to the party who filed the motion under subsection (b) may, within five (5) days, select one (1) of the individuals named by the division director to serve as the substitute administrative law judge. In the absence of a timely designation by an opposing party under this subsection, the selection shall be made by the division director.
(d) This section does not apply:
(1) where a previous change of administrative law judge has been requested under this section;
(3) to temporary relief under:
(4) if an administrative law judge has issued a stay or entered an order for disposition of all or a portion of the proceeding;
(5) if the commission orders a suspension of the section where its continued application is impracticable as a result of inadequate staffing; or
(6) to a proceeding to review a determination by the:
(A) Indiana board of licensure for professional geologists; or the
(B) Indiana board of registration for soil scientists; or
312 IAC 3-1-10.5 Consolidated proceedings with office of environmental adjudication
Authority:
IC 4-21.5-3-31;
IC 14-10-2-2.5;
IC 14-10-2-4
Sec. 10.5. (a) This section controls the conduct of a proceeding presided over by an administrative law judge that is consolidated under IC 14-10-2-2.5 with a proceeding presided over by an environmental law judge of the office of environmental adjudication.
(b) Before acting on a motion for consolidation under IC 14-10-2-2.5(b), an administrative law judge or environmental law judge may do any of the following:
(1) Consult with any administrative law judge or environmental law judge that presides over a proceeding sought to be consolidated.
(2) Request documents, briefs, or oral arguments from the parties to the following:
(A) The proceeding pending before the administrative law judge or environmental law judge.
(B) The proceeding sought to be consolidated.
(c) If an administrative law judge or an environmental law judge enters an order for consolidation under IC 14-10-2-2.5(b), the order shall establish a panel that complies with IC 14-10-2-2.5(c).
(d) Unless otherwise agreed by the panel, the administrative law judge or environmental law judge that entered the order under subsection (c) shall perform the following functions:
(1) Open and maintain a new adjudicatory file that includes in its caption the phrase "In the Matter of Consolidated Proceeding under IC 14-10-2-2.5".
(2) Include true and authentic copies of all pleadings and documents previously filed and orders previously entered in the proceedings that have been consolidated.
(3) Rule upon routine motions and requests by the parties, including objections at hearing. This subdivision does not prohibit the administrative law judge or environmental law judge from consulting with another panel member or members before ruling.
(e) The panel may make any orders concerning a consolidated proceeding that are necessary and proper.
(f) The panel, in furtherance of convenience and to avoid prejudice, or when separate hearings may be conducive to expedition and economy, may order a separate hearing of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or any number of claims, cross-claims, counterclaims, third-party claims, or issues.
(g) In furtherance of convenience and to avoid prejudice, the panel may certify a disposition of fewer than all issues as being ripe for judicial review where:
(1) a dismissal is granted with prejudice;
(3) a separate hearing is conducted under subsection (f).
(h) On a party's motion or on the panel's motion, the panel may terminate a consolidated proceeding in furtherance of convenience and to avoid prejudice. If a party moves to terminate a consolidated proceeding because all issues of the department of natural resources or of the department of environmental management have been settled or adjudicated, the panel shall terminate the consolidated proceeding. An order for termination shall include any provisions that may reasonably support the convenience of the parties and the expeditious disposition by an administrative law judge or environmental law judge of the remaining proceeding.
(i) A final disposition of a consolidated proceeding shall be included both by the commission and by the office of environmental adjudication in their respective implementations of IC 4-21.5-3-32 and IC 4-21.5-3-27(c).
(Natural Resources Commission; 312 IAC 3-1-10.5; filed Apr 3, 2009, 2:00 p.m.: 20090429-IR-312080688FRA)
Hearing Held: January 16, 2009
Approved by Attorney General: March 27, 2009
Approved by Governor: April 3, 2009
Filed with Publisher: April 3, 2009, 2:00 p.m.
Documents Incorporated by Reference: None Received by Publisher
Small Business Regulatory Coordinator: Stephen L. Lucas, Hearing Officer, Natural Resources Commission, Indiana Government Center North, 100 North Senate Avenue, Room N501, Indianapolis, IN 46204-2200, (317) 233-3322, slucas@nrc.in.gov
Posted: 04/29/2009 by Legislative Services Agency
DIN: 20090429-IR-312080688FRA
Composed: Apr 26,2024 8:01:52AM EDT
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