IC 13-30 ARTICLE 30. ENFORCEMENT AND LEGAL
ACTIONS
IC 13-30-1
Chapter 1. Standing to Sue for Declaratory and Equitable Relief
in the Name of the State
IC 13-30-1-1 Declaratory or equitable relief in name of state
Sec. 1. Under this chapter:
(1) the attorney general;
(2) a state, city, town, county, or local agency or officer vested
with the authority to seek judicial relief;
(3) a citizen of Indiana; or
(4) a corporation, a limited liability company, a partnership, or
an association maintaining an office in Indiana;
may bring an action for declaratory and equitable relief in the name
of the state of Indiana against an individual, a partnership, a
copartnership, a firm, a company, a corporation, a limited liability
company, an association, a joint stock company, a trust, an estate, a
state agency or an officer of the state, a city, a town, a county, a local
governmental unit, an agency, or an official of a city, a town, a
county, a local governmental unit, or an agency, or any other legal
entity or their legal representative, agent, or assigns for the protection
of the environment of Indiana from significant pollution, impairment,
or destruction. As added by P.L.1-1996, SEC.20.
IC 13-30-1-2 Notice
Sec. 2. (a) A citizen, a partnership, a corporation, a limited
liability company, an association, or a public officer or agency, as a
condition precedent to maintaining an action, must give notice in
writing by registered or certified mail to:
(1) the department of natural resources;
(2) the department; and
(3) the attorney general.
(b) The attorney general shall promptly notify all state
administrative agencies having jurisdiction over or control of the
pollution, impairment, destruction, or protection of the environment
for which relief is sought. As added by P.L.1-1996, SEC.20.
IC 13-30-1-3 Maintenance of action; agency not required to be joined as party
Sec. 3. (a) An individual or entity that is identified in section 1(2)
through 1(4) of this chapter and that brings an action under section
1 of this chapter may not maintain the action unless:
(1) none of the agencies that receives notice of the action under
section 2 of this chapter:
(A) commences an administrative proceeding or a civil
action on the alleged pollution, impairment, or destruction
not later than ninety (90) days after receiving notice under
section 2 of this chapter; or
(B) takes steps not later than ninety (90) days after receiving
notice under section 2 of this chapter to have a criminal
prosecution commenced on the alleged pollution,
impairment, or destruction; or
(2) the agency that commences an administrative proceeding or
a civil action on the alleged pollution, impairment, or
destruction does not diligently pursue the administrative
proceeding or civil action after the administrative proceeding or
civil action is commenced.
(b) The agency does not have to be joined as a party in an action
under this section. As added by P.L.1-1996, SEC.20.
IC 13-30-1-4 Hearing; final determination; appeal
Sec. 4. If the administrative agency that has jurisdiction and that
is given notice by the attorney general under section 2 of this
chapter:
(1) holds a hearing; and
(2) makes a final determination;
after receiving the notice, an appeal from the agency's action may be
taken in the manner prescribed by law. As added by P.L.1-1996, SEC.20.
IC 13-30-1-5 Intervention
Sec. 5. In an administrative, a licensing, or any other proceeding,
and in an action for judicial review of an administrative, a licensing,
or any other proceeding that is made available by law:
(1) the attorney general;
(2) a state, city, town, county, or local agency or officer vested
with the authority to seek judicial relief;
(3) a citizen of Indiana; or
(4) a corporation, a limited liability company, a partnership, or
an association maintaining an office in Indiana;
shall be permitted to intervene as a party upon the filing of a verified
pleading asserting that the proceeding or action for judicial review
involves conduct, programs, or products that may have the effect of
significantly impairing, polluting, or destroying the environment of
Indiana. As added by P.L.1-1996, SEC.20.
IC 13-30-1-6 Consideration of impairment, pollution, or destruction of
environment
Sec. 6. In the administrative, licensing, or other procedure, the
agency shall consider the alleged significant impairment, pollution,
or destruction of the environment of Indiana. A program, a product,
or conduct that:
(1) has; or
(2) is reasonably likely to have;
the effect of impairing, polluting, or destroying the environment may
not be authorized, approved, or permitted to continue if there is a
feasible and prudent alternative consistent with the reasonable
requirements of the public health, safety, and welfare. As added by P.L.1-1996, SEC.20.
IC 13-30-1-7 Judicial review
Sec. 7. In an action for judicial review of proceedings described
in section 4 of this chapter, the court shall, in addition to other duties
imposed upon the court by law, grant review of claims that the
conduct, program, or product under review:
(1) has impaired, significantly polluted, or destroyed the
environment of Indiana; or
(2) is reasonably likely to impair, significantly pollute, or
destroy the environment of Indiana. As added by P.L.1-1996, SEC.20.
IC 13-30-1-8 Respondent's burden
Sec. 8. (a) In an action under this chapter, whenever the petitioner
has made a prima facie showing that the conduct of the respondent
has or is reasonably likely to impair, pollute, or destroy the
environment of Indiana, the respondent has the burden of
establishing the following:
(1) If there is an applicable rule adopted by a state agency
setting standards for pollution, impairment, or destruction, or
for antipollution devices, the respondent has the burden of
establishing compliance with the rule, which constitutes a prima
facie defense to petitioner's claim.
(2) If there is not an applicable rule, the respondent has the
burden of establishing that:
(A) there is no feasible and prudent alternative; and
(B) the conduct, program, or product at issue is consistent
with and reasonably required for the promotion of the public
health, safety, and welfare in light of the state's paramount
concern for the protection of the environment from
pollution, impairment, or destruction.
(b) Upon the respondent establishing the proof under subsection
(a):
(1) the respondent is considered to have rebutted the prima facie
showing; and
(2) the petitioner has the burden of going forward with the
evidence. As added by P.L.1-1996, SEC.20.
IC 13-30-1-9 Venue
Sec. 9. An action under this chapter must be brought in a circuit
or superior court in the county in which the significant pollution,
impairment, or destruction is alleged to have occurred. As added by P.L.1-1996, SEC.20.
IC 13-30-1-10 Master or referee; appointment
Sec. 10. The court may appoint a master or referee, who must be
a disinterested person and technically qualified, to take testimony
and make a report to the court in the action. The costs of the master
or referee may be apportioned to the parties if the interests of justice
require. As added by P.L.1-1996, SEC.20.
IC 13-30-1-11 Temporary and permanent equitable relief
Sec. 11. The court may:
(1) grant temporary and permanent equitable relief; or
(2) impose the conditions upon the respondent that are required
to protect the environment of the state from pollution,
impairment, and destruction. As added by P.L.1-1996, SEC.20.
IC 13-30-1-12 Failure to intervene; effect
Sec. 12. (a) In an action in which a petitioner or an intervenor
seeking judicial adjudication as provided by this chapter has failed
to intervene in an administrative, a licensing, or other similar
proceeding, the court may:
(1) remit the petitioner or intervenor to the proceeding for
amplification of the record in the proceeding; and
(2) order the granting of intervention and the granting of review
in the proceeding as provided in of this chapter.
(b) However, if:
(1) intervention was available in the proceeding; and
(2) the petitioner or intervenor seeking judicial adjudication
under this chapter willfully and inexcusably refused
intervention in the proceeding;
the court may dismiss the action with prejudice to the petitioner or
intervenor. As added by P.L.1-1996, SEC.20.
IC 13-30 ARTICLE 30. ENFORCEMENT AND LEGAL
ACTIONS
IC 13-30-1
Chapter 1. Standing to Sue for Declaratory and Equitable Relief
in the Name of the State
IC 13-30-1-1 Declaratory or equitable relief in name of state
Sec. 1. Under this chapter:
(1) the attorney general;
(2) a state, city, town, county, or local agency or officer vested
with the authority to seek judicial relief;
(3) a citizen of Indiana; or
(4) a corporation, a limited liability company, a partnership, or
an association maintaining an office in Indiana;
may bring an action for declaratory and equitable relief in the name
of the state of Indiana against an individual, a partnership, a
copartnership, a firm, a company, a corporation, a limited liability
company, an association, a joint stock company, a trust, an estate, a
state agency or an officer of the state, a city, a town, a county, a local
governmental unit, an agency, or an official of a city, a town, a
county, a local governmental unit, or an agency, or any other legal
entity or their legal representative, agent, or assigns for the protection
of the environment of Indiana from significant pollution, impairment,
or destruction. As added by P.L.1-1996, SEC.20.
IC 13-30-1-2 Notice
Sec. 2. (a) A citizen, a partnership, a corporation, a limited
liability company, an association, or a public officer or agency, as a
condition precedent to maintaining an action, must give notice in
writing by registered or certified mail to:
(1) the department of natural resources;
(2) the department; and
(3) the attorney general.
(b) The attorney general shall promptly notify all state
administrative agencies having jurisdiction over or control of the
pollution, impairment, destruction, or protection of the environment
for which relief is sought. As added by P.L.1-1996, SEC.20.
IC 13-30-1-3 Maintenance of action; agency not required to be joined as party
Sec. 3. (a) An individual or entity that is identified in section 1(2)
through 1(4) of this chapter and that brings an action under section
1 of this chapter may not maintain the action unless:
(1) none of the agencies that receives notice of the action under
section 2 of this chapter:
(A) commences an administrative proceeding or a civil
action on the alleged pollution, impairment, or destruction
not later than ninety (90) days after receiving notice under
section 2 of this chapter; or
(B) takes steps not later than ninety (90) days after receiving
notice under section 2 of this chapter to have a criminal
prosecution commenced on the alleged pollution,
impairment, or destruction; or
(2) the agency that commences an administrative proceeding or
a civil action on the alleged pollution, impairment, or
destruction does not diligently pursue the administrative
proceeding or civil action after the administrative proceeding or
civil action is commenced.
(b) The agency does not have to be joined as a party in an action
under this section. As added by P.L.1-1996, SEC.20.
IC 13-30-1-4 Hearing; final determination; appeal
Sec. 4. If the administrative agency that has jurisdiction and that
is given notice by the attorney general under section 2 of this
chapter:
(1) holds a hearing; and
(2) makes a final determination;
after receiving the notice, an appeal from the agency's action may be
taken in the manner prescribed by law. As added by P.L.1-1996, SEC.20.
IC 13-30-1-5 Intervention
Sec. 5. In an administrative, a licensing, or any other proceeding,
and in an action for judicial review of an administrative, a licensing,
or any other proceeding that is made available by law:
(1) the attorney general;
(2) a state, city, town, county, or local agency or officer vested
with the authority to seek judicial relief;
(3) a citizen of Indiana; or
(4) a corporation, a limited liability company, a partnership, or
an association maintaining an office in Indiana;
shall be permitted to intervene as a party upon the filing of a verified
pleading asserting that the proceeding or action for judicial review
involves conduct, programs, or products that may have the effect of
significantly impairing, polluting, or destroying the environment of
Indiana. As added by P.L.1-1996, SEC.20.
IC 13-30-1-6 Consideration of impairment, pollution, or destruction of
environment
Sec. 6. In the administrative, licensing, or other procedure, the
agency shall consider the alleged significant impairment, pollution,
or destruction of the environment of Indiana. A program, a product,
or conduct that:
(1) has; or
(2) is reasonably likely to have;
the effect of impairing, polluting, or destroying the environment may
not be authorized, approved, or permitted to continue if there is a
feasible and prudent alternative consistent with the reasonable
requirements of the public health, safety, and welfare. As added by P.L.1-1996, SEC.20.
IC 13-30-1-7 Judicial review
Sec. 7. In an action for judicial review of proceedings described
in section 4 of this chapter, the court shall, in addition to other duties
imposed upon the court by law, grant review of claims that the
conduct, program, or product under review:
(1) has impaired, significantly polluted, or destroyed the
environment of Indiana; or
(2) is reasonably likely to impair, significantly pollute, or
destroy the environment of Indiana. As added by P.L.1-1996, SEC.20.
IC 13-30-1-8 Respondent's burden
Sec. 8. (a) In an action under this chapter, whenever the petitioner
has made a prima facie showing that the conduct of the respondent
has or is reasonably likely to impair, pollute, or destroy the
environment of Indiana, the respondent has the burden of
establishing the following:
(1) If there is an applicable rule adopted by a state agency
setting standards for pollution, impairment, or destruction, or
for antipollution devices, the respondent has the burden of
establishing compliance with the rule, which constitutes a prima
facie defense to petitioner's claim.
(2) If there is not an applicable rule, the respondent has the
burden of establishing that:
(A) there is no feasible and prudent alternative; and
(B) the conduct, program, or product at issue is consistent
with and reasonably required for the promotion of the public
health, safety, and welfare in light of the state's paramount
concern for the protection of the environment from
pollution, impairment, or destruction.
(b) Upon the respondent establishing the proof under subsection
(a):
(1) the respondent is considered to have rebutted the prima facie
showing; and
(2) the petitioner has the burden of going forward with the
evidence. As added by P.L.1-1996, SEC.20.
IC 13-30-1-9 Venue
Sec. 9. An action under this chapter must be brought in a circuit
or superior court in the county in which the significant pollution,
impairment, or destruction is alleged to have occurred. As added by P.L.1-1996, SEC.20.
IC 13-30-1-10 Master or referee; appointment
Sec. 10. The court may appoint a master or referee, who must be
a disinterested person and technically qualified, to take testimony
and make a report to the court in the action. The costs of the master
or referee may be apportioned to the parties if the interests of justice
require. As added by P.L.1-1996, SEC.20.
IC 13-30-1-11 Temporary and permanent equitable relief
Sec. 11. The court may:
(1) grant temporary and permanent equitable relief; or
(2) impose the conditions upon the respondent that are required
to protect the environment of the state from pollution,
impairment, and destruction. As added by P.L.1-1996, SEC.20.
IC 13-30-1-12 Failure to intervene; effect
Sec. 12. (a) In an action in which a petitioner or an intervenor
seeking judicial adjudication as provided by this chapter has failed
to intervene in an administrative, a licensing, or other similar
proceeding, the court may:
(1) remit the petitioner or intervenor to the proceeding for
amplification of the record in the proceeding; and
(2) order the granting of intervention and the granting of review
in the proceeding as provided in of this chapter.
(b) However, if:
(1) intervention was available in the proceeding; and
(2) the petitioner or intervenor seeking judicial adjudication
under this chapter willfully and inexcusably refused
intervention in the proceeding;
the court may dismiss the action with prejudice to the petitioner or
intervenor. As added by P.L.1-1996, SEC.20.
IC 13-30 ARTICLE 30. ENFORCEMENT AND LEGAL
ACTIONS
IC 13-30-1
Chapter 1. Standing to Sue for Declaratory and Equitable Relief
in the Name of the State
IC 13-30-1-1 Declaratory or equitable relief in name of state
Sec. 1. Under this chapter:
(1) the attorney general;
(2) a state, city, town, county, or local agency or officer vested
with the authority to seek judicial relief;
(3) a citizen of Indiana; or
(4) a corporation, a limited liability company, a partnership, or
an association maintaining an office in Indiana;
may bring an action for declaratory and equitable relief in the name
of the state of Indiana against an individual, a partnership, a
copartnership, a firm, a company, a corporation, a limited liability
company, an association, a joint stock company, a trust, an estate, a
state agency or an officer of the state, a city, a town, a county, a local
governmental unit, an agency, or an official of a city, a town, a
county, a local governmental unit, or an agency, or any other legal
entity or their legal representative, agent, or assigns for the protection
of the environment of Indiana from significant pollution, impairment,
or destruction. As added by P.L.1-1996, SEC.20.
IC 13-30-1-2 Notice
Sec. 2. (a) A citizen, a partnership, a corporation, a limited
liability company, an association, or a public officer or agency, as a
condition precedent to maintaining an action, must give notice in
writing by registered or certified mail to:
(1) the department of natural resources;
(2) the department; and
(3) the attorney general.
(b) The attorney general shall promptly notify all state
administrative agencies having jurisdiction over or control of the
pollution, impairment, destruction, or protection of the environment
for which relief is sought. As added by P.L.1-1996, SEC.20.
IC 13-30-1-3 Maintenance of action; agency not required to be joined as party
Sec. 3. (a) An individual or entity that is identified in section 1(2)
through 1(4) of this chapter and that brings an action under section
1 of this chapter may not maintain the action unless:
(1) none of the agencies that receives notice of the action under
section 2 of this chapter:
(A) commences an administrative proceeding or a civil
action on the alleged pollution, impairment, or destruction
not later than ninety (90) days after receiving notice under
section 2 of this chapter; or
(B) takes steps not later than ninety (90) days after receiving
notice under section 2 of this chapter to have a criminal
prosecution commenced on the alleged pollution,
impairment, or destruction; or
(2) the agency that commences an administrative proceeding or
a civil action on the alleged pollution, impairment, or
destruction does not diligently pursue the administrative
proceeding or civil action after the administrative proceeding or
civil action is commenced.
(b) The agency does not have to be joined as a party in an action
under this section. As added by P.L.1-1996, SEC.20.
IC 13-30-1-4 Hearing; final determination; appeal
Sec. 4. If the administrative agency that has jurisdiction and that
is given notice by the attorney general under section 2 of this
chapter:
(1) holds a hearing; and
(2) makes a final determination;
after receiving the notice, an appeal from the agency's action may be
taken in the manner prescribed by law. As added by P.L.1-1996, SEC.20.
IC 13-30-1-5 Intervention
Sec. 5. In an administrative, a licensing, or any other proceeding,
and in an action for judicial review of an administrative, a licensing,
or any other proceeding that is made available by law:
(1) the attorney general;
(2) a state, city, town, county, or local agency or officer vested
with the authority to seek judicial relief;
(3) a citizen of Indiana; or
(4) a corporation, a limited liability company, a partnership, or
an association maintaining an office in Indiana;
shall be permitted to intervene as a party upon the filing of a verified
pleading asserting that the proceeding or action for judicial review
involves conduct, programs, or products that may have the effect of
significantly impairing, polluting, or destroying the environment of
Indiana. As added by P.L.1-1996, SEC.20.
IC 13-30-1-6 Consideration of impairment, pollution, or destruction of
environment
Sec. 6. In the administrative, licensing, or other procedure, the
agency shall consider the alleged significant impairment, pollution,
or destruction of the environment of Indiana. A program, a product,
or conduct that:
(1) has; or
(2) is reasonably likely to have;
the effect of impairing, polluting, or destroying the environment may
not be authorized, approved, or permitted to continue if there is a
feasible and prudent alternative consistent with the reasonable
requirements of the public health, safety, and welfare. As added by P.L.1-1996, SEC.20.
IC 13-30-1-7 Judicial review
Sec. 7. In an action for judicial review of proceedings described
in section 4 of this chapter, the court shall, in addition to other duties
imposed upon the court by law, grant review of claims that the
conduct, program, or product under review:
(1) has impaired, significantly polluted, or destroyed the
environment of Indiana; or
(2) is reasonably likely to impair, significantly pollute, or
destroy the environment of Indiana. As added by P.L.1-1996, SEC.20.
IC 13-30-1-8 Respondent's burden
Sec. 8. (a) In an action under this chapter, whenever the petitioner
has made a prima facie showing that the conduct of the respondent
has or is reasonably likely to impair, pollute, or destroy the
environment of Indiana, the respondent has the burden of
establishing the following:
(1) If there is an applicable rule adopted by a state agency
setting standards for pollution, impairment, or destruction, or
for antipollution devices, the respondent has the burden of
establishing compliance with the rule, which constitutes a prima
facie defense to petitioner's claim.
(2) If there is not an applicable rule, the respondent has the
burden of establishing that:
(A) there is no feasible and prudent alternative; and
(B) the conduct, program, or product at issue is consistent
with and reasonably required for the promotion of the public
health, safety, and welfare in light of the state's paramount
concern for the protection of the environment from
pollution, impairment, or destruction.
(b) Upon the respondent establishing the proof under subsection
(a):
(1) the respondent is considered to have rebutted the prima facie
showing; and
(2) the petitioner has the burden of going forward with the
evidence. As added by P.L.1-1996, SEC.20.
IC 13-30-1-9 Venue
Sec. 9. An action under this chapter must be brought in a circuit
or superior court in the county in which the significant pollution,
impairment, or destruction is alleged to have occurred. As added by P.L.1-1996, SEC.20.
IC 13-30-1-10 Master or referee; appointment
Sec. 10. The court may appoint a master or referee, who must be
a disinterested person and technically qualified, to take testimony
and make a report to the court in the action. The costs of the master
or referee may be apportioned to the parties if the interests of justice
require. As added by P.L.1-1996, SEC.20.
IC 13-30-1-11 Temporary and permanent equitable relief
Sec. 11. The court may:
(1) grant temporary and permanent equitable relief; or
(2) impose the conditions upon the respondent that are required
to protect the environment of the state from pollution,
impairment, and destruction. As added by P.L.1-1996, SEC.20.
IC 13-30-1-12 Failure to intervene; effect
Sec. 12. (a) In an action in which a petitioner or an intervenor
seeking judicial adjudication as provided by this chapter has failed
to intervene in an administrative, a licensing, or other similar
proceeding, the court may:
(1) remit the petitioner or intervenor to the proceeding for
amplification of the record in the proceeding; and
(2) order the granting of intervention and the granting of review
in the proceeding as provided in of this chapter.
(b) However, if:
(1) intervention was available in the proceeding; and
(2) the petitioner or intervenor seeking judicial adjudication
under this chapter willfully and inexcusably refused
intervention in the proceeding;
the court may dismiss the action with prejudice to the petitioner or
intervenor. As added by P.L.1-1996, SEC.20.
