Section 69-05.2-01-07 - Petitions for award of costs and expenses - Answer -Awards - Judicial review1. Any person may file a petition for an award of costs and expenses, including attorneys' fees, reasonably incurred as a result of participation in any administrative proceeding under North Dakota Century Code chapter 38-14.1 or this article, which results in a final order being issued by the commission. 2. The petition must be filed within forty-five days after receipt of the order. Failure to timely file may constitute a waiver of the right to an award. 3. The petition must include the name of the person from whom costs and expenses are sought, and: a. An affidavit setting forth in detail all costs and expenses, including attorneys' fees, reasonably incurred for, or in connection with, participation in the proceeding; b. Receipts or other evidence of those costs and expenses; and c. Where attorneys' fees are claimed, evidence concerning the hours expended, the customary commercial rate for similar services in the area, and the experience, reputation, and ability of the individuals performing the services. 4. Any person served with a copy of the petition has thirty days from service to file an answer. 5. Appropriate costs and expenses, including attorneys' fees, may be awarded: a. To any person from the permittee if the person initiates administrative proceedings reviewing enforcement actions, upon a finding that a violation of North Dakota Century Code chapter 38-14.1, this article, or the permit 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 commission determines that the person made a substantial contribution to the full and fair determination of the issues. b. To any person, other than a permittee or the permittee's representative, from the commission if the person initiates or participates in any proceeding under North Dakota Century Code chapter 38-14.1 or this article upon a finding that the person made a substantial contribution to a full and fair determination of the issues. c. To a permittee from the commission when the permittee demonstrates that the commission or its authorized representative 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 to harass or embarrass the permittee. d. To a p e rmittee from any person where the permittee demonstrates that the person initiated a proceeding under North Dakota Century Code section 38-14.1-30 or participated in the proceeding in bad faith to harass or embarrass the permittee. e. To the commission where it demonstrates that any person applied for review pursuant to North Dakota Century Code section 38-14.1-30 or that any person participated in the proceeding in bad faith and to harass or embarrass the government. 6. An award under this section may include: a. All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation or participation in a proceeding under North Dakota Century Code chapter 38-14.1 or this article; and b. All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award. 7. Any person aggrieved by a decision on the award of costs and expenses in an administrative proceeding may seek review of the decision under North Dakota Century Code section 38-14.1-35. N.D. Admin Code 69-05.2-01-07
Effective June 1, 1983; amended effective May 1, 1990.General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-35, 38-14.1-36