Section 312IAC11.8-1-4. Conduct of proceeding and mediation

   (a) Following the receipt of a petition, an administrative law judge shall be appointed to conduct a proceeding under IC 4-21.5.

  (b) As soon as practicable following appointment, the administrative law judge shall schedule a prehearing conference and notify each of the following:

(1) The petitioner.

(2) Persons identified by the petitioner in section 3(2) of this rule.

(3) The department.

  (c) The administrative law judge shall conduct a preliminary hearing under IC 4-21.5-3-7(c) to determine whether the petition satisfies the requirements of section 3 of this rule. The preliminary hearing may be conducted in conjunction with the prehearing conference scheduled under subsection (b). The petitioner has the burden of going forward with the evidence. For purposes of the preliminary hearing, section 3 of this rule is satisfied if the evidence is viewed in the light most favorable to the petitioner. Following the hearing, the administrative law judge shall issue an order that includes a statement of the facts and law on which it is based. If the order denies the petition, the order shall be designated as a nonfinal order and is subject to IC 4-21.5-3-29.

  (d) Each of the persons identified in subsection (b), and any other person identified and joined by the administrative law judge as a party needed for just adjudication, is a party to the proceeding.

  (e) The parties may agree upon a person to serve as mediator. In the absence of an agreement, the administrative law judge shall seek to cause the appointment of a mediator who is qualified under IC 4-21.5-3.5.

  (f) Following consultation with the parties and the conduct of any mediation, the mediator shall report to the administrative law judge either:

(1) under IC 4-21.5-3.5-21; or

(2) the parties have settled.

  (g) If an agreement is not achieved following a reasonable opportunity to conduct mediation, the administrative law judge shall order the proceeding dismissed.

  (h) The department is not required to attend a preliminary hearing or a mediation session. If the department attends a mediation session, the session shall be conducted in Marion County unless the department otherwise agrees.

  (i) If an agreement is achieved, the parties may enter either of the following:

(1) A private agreement and request the administrative law judge to dismiss the proceeding. The parties may enter an agreement under this subdivision without participation by the department.

(2) A proposed agreed order for approval by the administrative law judge and the commission. An agreed order constitutes a final agency action by the commission, as well as a settlement among the parties.

(Natural Resources Commission; 312 IAC 11.8-1-4; filed May 22, 2013, 2:56 p.m.: 20130619-IR-312120554FRA)

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