Guide to Appeals Process
The following information is intended to help you become familiar with the administrative appeals process.
This is not intended to substitute for an attorney’s advice nor is it intended to cover every situation.
Persons aggrieved by an action of IDEM may wish to seek legal advice before seeking administrative review.
PLEASE BE ADVISED: Failure to follow these directions may result in the denial or dismissal of the petition for administrative review.
All requests for administrative review should be mailed or delivered to:
Office of Environmental Adjudication
Indiana Government Center North
100 N. Senate Ave.
Indianapolis, IN 46204
The Office of Environmental Adjudication (OEA) was created in 1995, to provide a forum for impartial review of decisions made by the Indiana Department of Environmental Management (IDEM). OEA was originally part of IDEM but was made a separate agency to assure the impartiality of the Environmental Law Judges. Currently, the OEA has 5 employees which includes two Environmental Law Judges (ELJ). OEA is located on the 5th floor of Indiana Government Center North in Room N501. The telephone number is (317) 232-8591.
IDEM’s decisions may have gone through different steps where you participated. Perhaps you made comments at a local zoning or planning board meeting or at an IDEM public comment hearing. When a case reaches OEA, IDEM has made a decision, and OEA functions as the first level of the court process to weigh evidence and apply the specific laws as to whether IDEM correctly made a particular decision. So, a case before OEA proceeds in ways similar to how cases might be heard by a judge in a county court.
At the final hearing, the parties present evidence and call and cross-examine witnesses, in a manner similar as is done in a non-jury civil trial. Following the close of the hearing, the environmental law judge will issue Findings of Fact and Conclusions of Law. The Environmental Law Judge is the ultimate authority on the matter and those findings are final unless one of the parties to the action seeks judicial review of the decision under IC 4-21.5- 5.
The laws governing this process can be found in the Administrative Procedures and Orders Act in the Indiana Code, IC 4-21.5-3. In addition, OEA has passed rules regarding its procedure. These rules can be found at in the Indiana Administrative Code at 315 IAC 1. Laws about the establishment and operation of OEA can be found at IC 4-21.5-7. In the event that any information in this guide conflicts with the laws or regulations, the laws or regulations will control.
You can find the laws and regulations in the following places. Local county courthouses have a law library and the laws and regulations should be available there. Also, you can find them on the Internet. There are links to the Indiana Code (the laws), Indiana Administrative Code (the rules) and the IDEM’s web page from OEA’s web page at www.in.gov/oea. You can find previous decisions made by the ELJs on the OEA’s web page by clicking on the Decisions. You also can find the laws and rules on the Indiana General Assembly’s web page at www.in.gov/legislative/ic_iac/.
CONTENTS OF AN APPEAL
There are required legal standards for filing an appeal.
You should include the following information in your appeal (also called a Petition for Review).
This information includes:
- Your full name
- Your mailing address
- You should identify the IDEM action you are appealing
- You should include a complete copy of the IDEM action.
- You should state how you are affected by the IDEM action. This must be personal to you. You cannot raise issues on behalf of your neighbors or the public in general. For example, it is not enough to say that you believe that the IDEM’s action does not benefit the public; you must state how it affects you.
- You should state why you think the IDEM is wrong in taking this action. In the beginning of the appeal, you will not have to state precisely how you think the action was incorrect, but you will have to eventually state exactly why the action was improper.
- You should state what changes you want to see in the IDEM’s decision.
If your Petition does not contain this information, you may be ordered to amend your Petition to include the missing information or your Petition may be dismissed.
It is helpful to the ELJ if you also include the following information:
- The telephone number where you can be reached.
- Your e-mail address, if you have one.
THE ADMINISTRATIVE PROCESS
The administrative process can be broken down into various stages or steps. These steps include, but are not limited to: initiation of the appeal, discovery and hearing.
INITIATION The first step is initiating the appeals process. This is done when an appeal or Petition for Review is filed with OEA. It must be filed with OEA, not IDEM, although you must send a copy to IDEM and to the party to whom IDEM’s action was directed. The required contents of the Petition for Review are discussed above. An important element of initiating an appeal is jurisdiction. This means whether a court or agency has the authority to hear a case. OEA has the authority to hear only appeals of IDEM’s actions or failure to act.
You must file your appeal within a certain number of days. If you fail to file within the specified time, OEA cannot consider your appeal. The notice you received telling you about IDEM’s action should tell you how much time you have to file an appeal. In general, the deadline is fifteen (15) days.
OEA will assign a cause number to the case. Here is an example: 05-A-J-3500. The first number, 05, is the year that the case was filed (2005). The first letter refers to the type of case it is.
A means that this is a case dealing with an air pollution issue.
S means that the case involves a solid or hazardous waste issue.
W refers to a water pollution issue.
The second letter refers to what type of action is being appealed.
J refers to a permit action.
E means that an enforcement action is being appealed.
The last number is a sequential number assigned as the cases come into OEA. You are required to reference the cause number in all of your dealings with OEA.
An Environmental Law Judge, or ELJ, will be assigned to your case when your appeal is received by OEA. This ELJ will hear your case and make all decisions pertinent to the case. An important rule to remember is that you may not talk to the ELJ without all of the parties to the case being present. Talking directly to the ELJ without the other parties is called ex parte communications. The prohibition against ex parte communications is to ensure that the ELJ remains impartial and to allow each party an opportunity to present their side in front of the other parties. If you have a question about a procedure, you may call the ELJ, but this should be done cautiously.
Typically, the ELJ will issue an order that requires the parties to appear at a prehearing conference. You will receive notice of this conference and any other order issued by the presiding ELJ. It is important that you appear at this conference. The ELJ can dismiss or default any party that does not appear at a conference or other scheduled meeting.
DISCOVERY This is a legal term that refers to the process where the parties can discover other parties’ evidence. This is done through the use of interrogatories (written questions), depositions, requests for production of documents and/or requests for admissions (a request to admit whether a fact is true or not). It is important to know that if you receive such a request, failure to respond can be used against you. It is also important to know that your response must be under oath to these requests.
HEARING This is when you must present your evidence to OEA. You may present the evidence by testifying, by asking other people to testify or by presenting written documentation. In general, the proceedings in OEA are informal and the technical rules of evidence will not be applied. However, there are rules that govern how evidence is presented and you should be familiar with them. The rules can be found at IC 4-21.5-3, 315 IAC 1, the Courtroom Handbook on Indiana Evidence and the Indiana Rules of Court. These are available in most county courthouse law libraries. You should become familiar with these procedures so that you can present your evidence in an organized and effective manner. The hearing will be recorded by a court reporter. This person is hired by OEA to record the entire hearing.
All witnesses will be placed under oath. This oath will be similar to this statement - “I swear or affirm under the penalties for perjury that the testimony that I give will be the truth.”
During the hearing, you may call witnesses, including yourself, to testify. You will also be given the opportunity to cross-examine (ask questions of) any witness called by the other parties. There are limits to examination of witnesses and you should become familiar with these procedures.
Typically, you, as the party that initiated the proceeding, will have the burden of proof, or the responsibility to show that IDEM was incorrect in making its decision. An exception to this rule is that if you are the subject of an enforcement action, which is an action in which IDEM alleges that you violated the law or rules and is asking for a penalty. In an enforcement action IDEM has the burden of proof and must prove its allegations.
An important thing to remember is that IDEM makes its decisions based on the laws passed by the legislature as found in the Indiana Code and regulations approved by the boards: the Solid Waste Management Board, the Water Pollution Control Board, the Air Pollution Control Board or the Financial Assurance Board—as found in the Indiana Administrative Code. The applicable laws are found in Indiana Code Title 13. The applicable rules are found in Titles 326, 327, 328, and 329 of the Indiana Administrative Code. You must prove that IDEM failed to follow these laws and regulations, if you are to prevail. If you question a decision because of something that IDEM does not have to consider, you will not win. You should be familiar with the regulations that control the action you are protesting.
All of IDEM’s actions become effective if an appeal is not filed within a certain amount of time. Even if an appeal is filed, the action will become effective if a stay is not requested. This rule does not apply to enforcement action, because enforcement actions are automatically stayed by the filing of an appeal. If you do not want the IDEM action to become effective, you must ask for the stay and prove that a stay is necessary. If you request a stay, the ELJ will set a hearing date at which you may present your evidence on why IDEM’s action should not take effect. You have the burden of proof at this hearing and must present enough evidence to show all of the following things:
- You will be irreparably harmed if the stay is not granted; and
- You are likely to win on the merits of the case; and
- The threatened injury that you will suffer if the stay is not granted is greater than the injury that the other party will suffer if the stay is granted; and
- The public interest will be served by the granting of the stay.
The following persons can be parties to an appeal:
- The person to whom the order is specifically directed;
- A person who is aggrieved or adversely affected by the order; or
- A person who is entitled to review under any law.
In the Petition for Review, the petitioner (the person who is objecting to IDEM’s action) must state why they should be considered a party. Typically, most Petitioners are either the person to whom the order is directed (i.e. the permittee) or someone else who believes that they are aggrieved or adversely affected. If you believe that you are aggrieved or adversely affected by IDEM’s action, you must state sufficient facts that show you are entitled to be a party.
BURDEN OF PROOF
This is a legal term that refers to the amount of evidence that you must present in order to win your appeal. If you are objecting to the issuance or denial of a permit, then you have the burden of proof. This means that you must present enough evidence to convince the ELJ that you are correct. The amount of evidence you must present is substantial. This will often require that you present scientific evidence showing that IDEM was wrong in reaching its decision. If you object to the issuance of an enforcement action against you, then IDEM has the burden of proof.
OTHER HELPFUL INFORMATION
It is also important to remember that if you send OEA a document of any kind, for example: a letter, a copy of any document, a status report, or any supplemental information, you must send a copy to all of the other parties. The ELJ may ignore any document submitted to OEA that is not also sent to the other parties. The names and addresses of the other parties are listed on all court orders under the heading of Distribution.
You do not need to be represented by a lawyer, but you will required to know the law and how to present your case. If you are representing yourself and you are not a lawyer, you can place yourself at a serious disadvantage by not having the training and experience to know the law, how to present your case, and how to focus primarily on these tasks, because you also might have very strong personal concerns about the case and other demands on your time which limit you from doing all that is required. If you choose to represent yourself, it is called pro se. By law, no one at OEA will be able to assist you in preparing your case, nor can OEA help any other party. It is usually a good idea to hire an attorney.
It has been emphasized that you must attend any conference or hearing scheduled by the presiding ELJ. However, if you cannot attend these meetings, you can ask the ELJ for a continuance, or postponement of the meeting. Such requests should be in writing and should be filed with the ELJ at least five (5) days prior to the meeting. You should also contact the other parties before you send your written request to find out whether they object to the continuance. The ELJ can grant a request for a continuance even if the other parties object, but you still have to report whether they agree or object.
RULES TO REMEMBER
- No party is allowed to talk to the ELJ without all of the other parties present.
- A party must send copies of all documents to all other parties.
- You must personally sign all documents submitted to the OEA. It is helpful if you also print your name so that the Court can read it.
- You must appear at all conferences, hearings or any other meetings ordered by the OEA unless you obtain a continuance.
- At a hearing, you must provide a copy of all documents to each party, including yourself and the court reporter. For example, if there are three (3) parties in your case, you should have the original (which is given to the presiding ELJ) and four (4) copies (one for yourself, two for the other parties and one for the court reporter.)
- Use the cause number on all correspondence or other documents filed with the OEA.
- IDEM and OEA are separate agencies. It is important to note that information that may be available to IDEM may not have been made available to the OEA.