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Q. What does it mean to be aggrieved or adversely affected?
A. The Indiana Supreme Court has recently decided what this means in Huffman v. Indiana Office of Environmental Adjudication, et al. 811 N.E.2d 806 (Ind. 2004). You must state in your Petition for Review that you have suffered or are “likely to suffer in the immediate future, harm to a legal interest, be it pecuniary, property or personal interest.” This means that you have to state how you personally have been injured by the IDEM action. This cannot be an injury suffered by a neighbor or to the general public.
Q. Do I need to have a lawyer?
A. No, a lawyer is not required, but you will be at a serious disadvantage if you do not 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 when 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. The OEA cannot help you prepare your case. Be aware that the other parties may employ attorneys and an attorney will always represent IDEM.
Q. Can the winning party recover costs from the losing party?
A. No. Outside of extraordinary circumstances, the parties to an administrative proceeding must pay their own costs, win or lose.
Q. Can I recover damages from the other parties?
A. No, OEA does not have the authority to award damages.
Q. What if I lose? Can I appeal the ELJ’s decision?
A. Yes, you can appeal through a process called judicial review. The procedure for this is found in IC 4-21.5-5. Keep in mind that there is a deadline for doing this.
Q. Can I go straight to my local trial court to appeal an IDEM decision instead of going through this administrative process?
A. Generally, no. Typically, you must first exhaust administrative remedies before you can go to a trial court. There are rare exceptions to this rule, but you would almost certainly need an attorney if you believe any of these exceptions apply.
Q. Is there a jury?
A. No, the ELJ will hear the case and make a decision based on the evidence.
Q. Will the ELJ make a decision on the same day as the hearing?
A. No. The ELJ must issue a written decision with specific findings of fact, conclusions of law, and an order. You and the other parties, will be able to give the ELJ an order which summarized how you believe the law and facts support the result you want in your case. The ELJ’s decision will typically be issued within ninety (90) days after the hearing. If the hearing was for a stay, the decision will generally be issued sooner.
Q. If I file for judicial review or want a copy of the transcript, who pays for the transcript?
A. You are responsible for paying for the court reporter to transcribe the hearing.
Q. Can I look at OEA’s files?
A. Yes, in general. OEA’s files are public records and may be inspected and copied in accordance with IC 5-14-3. Some parts of the records, such as the ELJ’s notes, may be exempt from public view, but most of the record may be inspected.
Q. What is a Motion for Summary Judgment?
A. When the facts of a case are not disputed—that is, all of the parties agree what facts happened in a case, but believe that the law applies to the facts to require a ruling in their favor, the parties can ask the ELJ to determine how the law applies to these facts.
Q. Can I try to negotiate a settlement with the other parties?
A. Yes. If you request it, the ELJ will typically allow you a reasonable amount of time to negotiate a settlement although you may be required to file status reports periodically with the OEA. Just as in a county court system, most cases before OEA settle.
Q. What is a status report?
A. If the parties are trying to negotiate a settlement, the ELJ will frequently ask, in the form of an order, for the parties to file a status report to keep the ELJ apprised of the parties’ progress toward settlement. At times, the ELJ will order specific information to be included in the status report, and may set a deadline for filing the status report. However, a simple statement that tells the ELJ what is happening with the litigation is usually sufficient. It is not necessary to inform the ELJ of the details of settlement negotiations.
Q. What is mediation?
A. This is a process where a neutral third party tries to help the parties negotiate a settlement. You can request mediation, but all of the parties must agree to mediation in order for it to be effective. The ELJ will not typically order the parties to mediation if a party disagrees.
Q. Who pays for mediation?
A. The parties may have to pay the costs of hiring a mediator. They generally split these costs. The State of Indiana has a Shared Neutrals Program where administrative law judges and attorneys from other state agencies will serve as a volunteer mediator for free.
Q. I have decided that I don’t want to pursue an appeal after all. Do I need to do something?
A. Yes, you should notify the ELJ and the other parties in writing that you wish to dismiss the case. The case will be closed unless some other party objects to the dismissal. By asking to dismiss the case, you agree that you will not pursue your objections to IDEM’s action. Because IDEM and OEA are separate agencies, you must notify both IDEM and OEA that you want to close the case.
Q. Can I fax documents to OEA?
A. Yes, OEA’s fax number is (317) 233-9372. Be sure to include a cover sheet that clearly identifies the case by cause number. You must also send each party a copy of the document.
Q. I live several hours away from Indianapolis. Is it possible to have hearings in other places? Can I attend hearings by telephone?
A. OEA does not generally hold evidentiary hearings in other places or allow testimony to be given over the telephone. You are permitted to attend any proceeding by telephone if evidence will not be introduced, such as prehearing conferences and status conferences. However, you are responsible for getting the consent of all of the other parties and making arrangements to attend by telephone. This means that you may have to arrange and pay for a conference call through a service provider.
Q. Can I make someone come to a hearing and testify?
A. Yes, OEA can issue a subpoena at your request. A subpoena is a command to appear at a certain time and place to give testimony. You can choose to have your local sheriff serve the subpoena. However, OEA does not have the authority to enforce the subpoena. The party requesting the subpoena must go to a circuit or superior court to enforce the subpoena.
Q. Are the proceedings public?
A. Yes, however, there is generally limited space for spectators at these proceedings.