in-20250813-IR-041250378FNA: The Office of Administrative Law Proceedings (OALP) is soliciting public comment on adding rules at 41 IAC 2 concerning the procedure for the adjudication of administrative cases heard by OALP. OALP seeks comment on the affected citations listed and any other provisions of Title 41 that may be affected by this rulemaking.

Notice of First Public Comment Period LSA Document #25-378 Sec. 1. (a) The procedural requirements established by this article apply to all proceedings for which the office has jurisdiction under IC 4-15-10.5. (b) The rules under this article supplement the administrative orders and procedures act (AOPA) under IC 4-21.5, and to the extent that there is a conflict between these rules and AOPA, AOPA supersedes these regulations. Sec. 2. (a) The definitions in 41 IAC 1-1-3 and IC 4-21.5-1 apply to this article. (b) The definitions in this section apply throughout this title: (c) Deadlines in this article are calculated using IC 4-21.5-3-2. Sec. 1. (a) A proceeding before the office is initiated when a petition for administrative review or complaint, which may include a request for a stay, is filed with the office. (b) In addition to any applicable requirements of IC 4-21.5-3 or other law, the petition or complaint should contain the following information: (c) The presiding administrative law judge (ALJ) may, on their own motion or by motion of a party, provide a party with notice that a petition or complaint is incomplete and order a party to supplement the petition or complaint to comply with the requirements of this section. (d) A petition or complaint, except for cases from FSSA, may be amended as a matter of course at any time within fifteen (15) days after the earlier of the following dates: (e) If the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. (f) Copies of the petition or complaint shall be sent to all other parties to the case. (g) Changes in a party's name, mailing address, email address, or telephone number occurring during a proceeding must be communicated promptly in writing to the office and all parties to the proceeding. Service of orders or correspondence from the office shall be made to the last known mailing or email address on file. Sec. 2. (a) All attorneys who appear in a representative capacity on behalf of a party must file written notice of appearance setting forth the following: (b) A representative of a party who is not an attorney must file written notice of the representation. Nothing in this subsection relieves a person from compliance with Rule 5.5 of the Indiana Rules of Professional Conduct. The written notice must include the following: (c) An attorney may withdraw their appearance only by obtaining permission from the administrative law judge by filing a written motion with the office and showing the notification to their client. (d) A party that is a corporation may participate in a proceeding by an individual who is duly authorized by corporate resolution, operating agreement, or other action taken in accordance with the governing rules of the corporation to provide representation for the corporation. The person representing the corporation must file an attorney appearance or notice of representation as outlined in subsections (a) and (b). (e) A party that is a trust, partnership, association, sole proprietorship, or other unincorporated entity may participate in a proceeding by the trustee, partners, members, or other principals. Any trustee, partner, member, or principal participating in the case must file an attorney appearance or notice of representation as outlined in subsections (a) and (b). (f) A party that is an incompetent individual may be represented by the party's: Sec. 3. (a) The party requesting a stay of effectiveness of an IDEM administrative action has the burden of demonstrating, by a preponderance of the evidence, the following: (b) A temporary emergency stay order may be granted for an IDEM administrative action without a hearing under the following circumstances: (c) A stay of effectiveness, including a temporary emergency stay order, may be granted by agreement of the parties. Sec. 4. (a) The office incorporates by reference IC 4-21.5-3-11, which addresses the prohibition on ex parte communications. (b) If an ex parte communication, as defined by IC 4-21.5-3-11, is properly placed on the record, notice is provided to the parties under IC 4-21.5-3-11(e) and the substance of the communication is shared with all parties, and the communication is no longer considered "ex parte" and may be relied on by the administrative law judge in conducting the administrative proceeding and issuing a decision in the case. Sec. 5. (a) The pleadings and documents filed with the office after the initiation of the action with OALP should meet these requirements: (b) A brief, excluding attachments, filed in support of any motion may not exceed thirty (30) pages in length unless the presiding administrative law judge has granted leave to file an oversized brief. A motion requesting leave to file an oversized brief shall be filed at least seven (7) days before the brief is due. (c) If a party, or their representative or counsel, uses generative artificial intelligence in the creation of a filing submitted to the office, including, but not limited to, motions, briefs, and exhibits, the party must submit a verified written statement briefly explaining: Sec. 6. (a) The matters contained in a petition for administrative review or complaint are deemed automatically denied by any other party, unless otherwise required by law. (b) A party wishing to assert an affirmative defense, counterclaim, or cross-claim shall do so either in writing or by verbal statement to the presiding administrative law judge (ALJ) at the initial prehearing conference or at such other time specified by the ALJ. A verbal statement asserting an affirmative defense, counterclaim, or cross-claim must be made on the record and the ALJ must issue a notice or order stating the specific affirmative defense, counterclaim, or cross-claim that was raised by the party. Sec. 7. (a) An adverse party shall have the following: (b) The deadlines may be shortened or extended at the discretion of the presiding ALJ and in accordance with any other applicable law. (c) This section does not apply to proceedings for a temporary or an emergency order under IC 4-21.5-4, an agreed motion filed by all parties, or a motion to dismiss the case filed by the party that initiated the administrative review. (d) If a motion to withdraw is filed by the party that initiated the administrative review, the ALJ may enter an order of dismissal without waiting for a response from the opposing party, unless there are outstanding issues, such as a counterclaim or cross-claim. Sec. 8. (a) Whenever practicable, prehearing conferences and evidentiary hearings must be held at a place most convenient to all parties as determined by the administrative law judge, unless otherwise required by law. Hearings may be held: (b) Failure to timely respond to an order requiring or allowing the parties to suggest a particular format or location for a prehearing conference or hearing may constitute a waiver of venue. Sec. 9. (a) Where not inconsistent with IC 4-21.5 or other applicable procedural rules, an administrative law judge (ALJ) may apply the Indiana Rules of Trial Procedure to an administrative proceeding, but Trial Rules 64-71, which provide for provisional and final remedies and special proceedings, cannot be applied. (b) An ALJ may admit testimony of an expert witness and require a showing of reliability from the witness regarding the witness's qualifications as an expert. (c) An ALJ may admit a verified written statement of a party or nonparty witness as evidence. If only part of a statement is offered into evidence by a party, an adverse party may require the offering party to introduce any other part, which ought in context to be considered with the part introduced, and any party may introduce any other parts. Sec. 10. (a) The administrative law judge shall have the hearing recorded at the office's expense. (b) The office is not required to prepare a transcript at its own expense unless required to do so by law. (c) Notwithstanding IC 5-14-3-8, if a party seeks a transcript of a proceeding before the office, other than for judicial review under IC 4-21.5-5-13, the office will provide the party with a copy of the recording, and the party may have a court reporter prepare a transcript at the party's expense. (d) For transcript requests for judicial review, the office will follow IC 4-21.5-5-13 regarding payment of transcript costs. Sec. 11. (a) This section controls the conduct of a proceeding presided over by an administrative law judge (ALJ) that is consolidated with another pending proceeding. (b) Before acting on a motion for consolidation, an ALJ may: (c) If an ALJ enters an order for consolidation of an IDEM proceeding with a department of natural resources proceeding under IC 14-10-2-2.5(b), the order must establish a panel of ALJs that complies with IC 14-10-2-2.5(c). (d) The ALJ, or panel of ALJs, may make any orders concerning a consolidated proceeding that are necessary and appropriate, such as ordering 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. (e) For convenience and to avoid prejudice, the ALJ, or panel of ALJs, may certify a disposition of fewer than all issues as being ripe for judicial review where: (f) On a party's motion, or on a motion of at least one (1) ALJ, a consolidated proceeding may be unconsolidated for convenience or to avoid prejudice. An order to unconsolidate must explain the reason for the unconsolidation.