Current through Register Vol. 48, No. 12, March 22, 2024
a) Who may
file. Any person may file a petition for award of costs and expenses including
attorneys' fees reasonably incurred as a result of that person's participation
in any administrative proceeding under the State Act which results in a final
order being issued by the Department.
b) Where to file; time for filing. The
petition for an award of costs and expenses including attorneys' fees must be
filed with the Department within forty-five (45) days of receipt of such order.
Failure to make a timely filing of the petition may constitute a waiver of the
right to such an award.
c) Contents
of petition. A petition filed under Section
1843.22
shall include the name of the person from whom costs and expenses are sought
and the following shall be submitted in support of the petition:
1) An affidavit setting forth in detail all
costs and expenses including attorney's fees reasonably incurred for, or in
connection with, the person's participation in the proceeding;
2) Receipts or other evidence of such costs
and expenses; and
3) Where
attorney's fees are claimed, evidence concerning the hours expended on the
case, the customary commercial rate of payment for such services in the area,
and the experience, reputation and ability of the individual or individuals
performing the services.
d) Answer.
Any person served with a copy of the petition shall have thirty
(30) days from service of the petition within which to file an answer to such
petition.
e) Appropriate
costs and expenses including attorney's fees may be awarded:
1) To any person from the permittee if:
A) The person initiates any administrative
proceedings reviewing enforcement actions, upon a finding that a violation of
the State Act, regulations or permit has occurred, or that an imminent hazard
existed, or to any person who participates in an enforcement proceeding where
such a finding is made if the hearing officer determines that the person made a
substantial contribution to the full and fair determination of the issues;
or
B) The person initiates or
participates in any proceeding under the State Act upon a finding that the
person made a substantial contribution to a full and fair determination of the
issues.
2) To a
permittee from the Department when 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; or
3) To a permittee from any person where the
permittee demonstrates that the person initiated a proceeding under Section
8.07 of the State Act or participated in such a proceeding in bad faith for the
purpose of harassing or embarrassing the permittee.
4) To the Department where it demonstrates
that any person applied for review pursuant to Section 8.07 of the State Act or
that any party participated in such a proceeding in bad faith and for the
purpose of harassing or embarrassing the Department.
f) Awards. An award under these Sections may
include:
1) All costs and expenses, including
attorneys' fees; and
2) Expert
witness fees, reasonably incurred as a result of initiation and/or
participation in a proceeding under the State Act.