Section 312IAC3-1-13. Awards of litigation expenses for specified proceedings

   (a) This section governs an award of costs and expenses reasonably incurred, including attorney fees, under IC 14-22-26-5, IC 14-24-11-5, IC 14-34-15-10, or IC 14-37-13-7.

  (b) Except as otherwise provided in this subsection, no award for costs and expenses, including attorney fees, shall be entered under IC 14-22-26-5, IC 14-24-11-5, or IC 14-37-13-7 unless there is a finding that the person against whom the award is made acted for the purpose of harassing or embarrassing an opposing party. The department may obtain an award for reasonable expenses incurred to seize and hold an animal, without a showing of harassment or embarrassment, if the department prevails under IC 14-22-26.

  (c) Costs and expenses may be awarded from the department to any person, other than a permittee or the permittee's authorized representative, who initiates or participates in a proceeding under IC 14-37-13-7, and who prevails in whole or part, achieving at least some degree of success on the merits, upon a finding that the person made a substantial contribution to a full and fair determination of the issues.

  (d) Appropriate costs and expenses, including attorney fees, may be awarded under IC 14-34-15-10 only as follows:

(1) To any person from the permittee if the person initiates or participates in an administrative proceeding reviewing enforcement and a finding is made by the administrative law judge or commission that:

(A) a violation of IC 14-34, a rule adopted under IC 14-34, or a permit issued under IC 14-34 has occurred or that an imminent hazard existed; and

(B) the person made a substantial contribution to the full and fair determination of the issues.

However, a contribution of a person who did not initiate a proceeding must be separate and distinct from the contribution made by a person initiating the proceeding.

(2) To a person from the department, other than to a permittee or the permittee's authorized representative, who initiates or participates in a proceeding and who prevails in whole or in part, achieving at least some degree of success on the merits, upon a finding that the person made a substantial contribution to a full and fair determination of the issues.

(3) To a permittee from the department if the permittee demonstrates that the department issued a cessation order, a notice of violation, or an order to show cause why a permit should not be suspended or revoked in bad faith and for the purpose of harassing or embarrassing the permittee.

(4) To a permittee from a person where the permittee demonstrates that the person initiated a proceeding under IC 14-34-15 or participated in the proceeding in bad faith for the purpose of harassing or embarrassing the permittee.

(5) To the department where it demonstrates that a person sought administrative review or participated in a proceeding in bad faith and for the purpose of harassing or embarrassing the department.

  (e) The commission may order a person requesting a hearing to pay the cost of the court reporter if the person requesting the hearing fails, after proper notice, to appear at the hearing.

  (f) In determining what is a reasonable amount of attorney fees under subsection (b), consideration shall be given to the following factors:

(1) The nature and difficulty of the proceeding.

(2) The time, skill, and effort involved.

(3) The fee customarily charged for similar legal services.

(4) The amount involved in the proceeding.

(5) The time limitations imposed by the circumstances.

(6) For a party represented by an attorney who is a full-time, salaried employee of the party, consideration also shall be given to the prorated cost of:

(A) the salary of the attorney and clerical or paralegal employees of the party who assisted the attorney; and

(B) their employee benefits attributable to the time devoted to representation.

  (g) A party who wishes to seek litigation expenses must petition the director within thirty (30) days after the party receives notice of the final agency action. A party wishing to challenge the petition for an award must deliver a written response to the director within fifteen (15) days of service of the petition. If a petition and challenge are delivered to the director under this subsection, the director shall refer the matter to the division of hearings of the commission for the conduct of a proceeding under IC 4-21.5. (Natural Resources Commission; 312 IAC 3-1-13; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1321; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA)