Bill Text: GA SB486 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Natural Resources, Board of; provide deference by administrative law judges on technical issues; reviewing permits

Spectrum: Partisan Bill (Republican 3-0)

Status: (Introduced - Dead) 2010-03-24 - Senate Rule 7-1.6(b) [SB486 Detail]

Download: Georgia-2009-SB486-Amended.html

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10 AM 25 1181

ADOPTED
Senator Tolleson of the 20th offered the following amendment:

Amend SB 486 by revising lines 1 through 5 to read as follows:
To amend Title 12 of the Official Code of Georgia Annotated, relating to conservation and natural resources, so as to extensively revise various provisions relating to administrative law cases relative to the Department of Natural Resources and divisions thereof; to provide for judges, hearings, procedure, decisions, and review relative to such cases; to provide an effective date; to

By redesignating Sections 2 and 3 as Sections 15 and 16, respectively.

By revising lines 9 through 19 to read as follows:
Title 12 of the Official Code of Georgia Annotated, relating to conservation and natural resources, is amended in Code Section 12-1-2, relating to references to administrative law judge or hearing officer, references to final decision of Board of Natural Resources, and filing request for administrative review, by deleting and reserving subsection (b) and by revising subsection (a) as follows:

"(a) Any reference in this title to an administrative law judge or hearing officer shall mean an administrative law judge appointed by the chief state administrative law judge. Any hearing before an administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' and the rules and regulations adopted by the board pursuant thereto. The decision of an administrative law judge shall constitute the final administrative decision in any matter, and any Any party to the matter, including without limitation the department, the director of the Environmental Protection Division, the Asbestos Licensing Board, and the Shore Protection and Coastal Marshlands Protection Committees, shall have the right of judicial review in accordance with Chapter 13 of Title 50, including the right of judicial review as provided in said chapter."

SECTION 2.

Said title is further amended in Code Section 12-2-2, relating to Environmental Protection Division, Environmental Advisory Council, duties of council and its members and director, procedure for aggrieved persons, permit applications, and inspections, by revising subparagraph (c)(2)(D) and paragraph (4) of subsection (c) as follows:

"(D) The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the director, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50 The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

"(4) Notwithstanding any other law to the contrary, in seeking civil penalties for the violation of those laws to be enforced by the division and where the imposition of such penalties is provided for therein, the director upon written request may cause a hearing to be conducted before an administrative law judge appointed by the Board of Natural Resources for the purpose of determining whether such civil penalties should be imposed in accordance with the law there involved. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' and the rules and regulations adopted by the board pursuant thereto. The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the director, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

SECTION 3.

Said title is further amended in Code Section 12-3-50.2, relating to Georgia Register of Historic Places, by revising subsection (e) as follows:

"(e) Any person who is aggrieved or adversely affected by any order or action of the department pursuant to this Code section shall, upon petition within 30 days after the issuance of such order or taking of such action, have a right to a hearing before an administrative law judge. appointed by the Board of Natural Resources. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the department, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

SECTION 4.

Said title is further amended in Code Section 12-3-52, relating to archeological exploration, excavation, or surveying and administrative appeal of department orders, by revising subsection (e) as follows:

"(e) Any person who is aggrieved or adversely affected by any order or action of the department shall, upon petition within 30 days after the issuance of such order or taking of such action, have a right to a hearing before an administrative law judge. appointed by the Board of Natural Resources. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the department, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2. Persons are 'aggrieved or adversely affected' where the challenged action has caused or will cause them injury in fact and where the injury is to an interest within the zone of interests to be protected or regulated by the statutes that the department is empowered to administer and enforce. In the event the department asserts in response to the petition before the administrative law judge that the petitioner is not aggrieved or adversely affected, the administrative law judge shall take evidence and hear arguments on this issue and thereafter make a ruling on same before continuing on with the hearing. The burden of going forward with evidence on this issue shall rest with the petitioner."

SECTION 5.

Said title is further amended in Code Section 12-4-48, relating to actions by director to enforce provisions relative to deep drilling for oil, gas, and other minerals, civil penalties, and effect of Code section on cause of action by royalty owners, lienholders, or other claimants, by revising subsections (a), (b), and (d) as follows:

"(a) Whenever the director has reason to believe that any person is violating the provisions of this part or any rule or regulation adopted pursuant to this part, the director may issue an administrative order to that person. The order shall specify the provisions of this part alleged to have been violated and shall order that corrective action be taken within a reasonable period of time prescribed in the order. Any such order shall become final and enforceable unless the person or persons named therein request in writing a hearing before an administrative law judge appointed by the board no later than 30 days after the issuance of the order.

(b) Whenever the director finds that an emergency exists requiring immediate action to protect the public interest, the director may issue a provisional order reciting the existence of such an emergency and requiring that such action be taken as is reasonably necessary to meet the emergency under the circumstances, provided that such an emergency order shall be issued only after an affidavit has been filed with the director showing specific facts of such an emergency condition. Such order shall be effective immediately. Any person against whom such order is directed shall upon appropriate notice comply therewith immediately but on application to the director shall be afforded a hearing before an administrative law judge appointed by the board within ten days of receipt of such application by the director or, if the party applying so requests, within 48 hours of receipt of such application by the director. Prior to such hearing, the director shall be authorized to modify or revoke such order. After the hearing, the administrative law judge shall be authorized to make such order as is just and reasonable, including an order continuing, revoking, or modifying such provisional order."

"(d) Any person who willfully or negligently violates any provision of this part, any rule or regulation adopted under this part, or any permit or final or emergency order of the director shall be subject to a civil penalty of not less than $50.00, but in any event not to exceed $10,000.00 for each act of violation. Each day of continued violation shall subject such person to a separate civil penalty. An administrative law judge appointed by the board, after a hearing, shall determine whether or not any person has violated any provision of this part or any rule or regulation adopted under this part or any permit or final or emergency order of the director, and shall upon proper finding issue an order imposing such civil penalties as provided in this Code section. Any person so penalized under this Code section is entitled to judicial review. In this connection, all hearings and proceedings for judicial review under this Code section shall be in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2. All civil penalties recovered by the director as provided by this chapter shall be paid into the state treasury to the credit of the general fund."

SECTION 6.

Said title is further amended in Code Section 12-5-31, relating to permits for withdrawal, diversion, or impoundment of surface waters, by revising paragraph (1) of subsection (o) as follows:

"(o)(1) Except as otherwise provided in subsection (l) of this Code section for emergency orders, any person who is aggrieved or adversely affected by any order or action of the director pursuant to this Code section shall, upon petition within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge appointed by the Board of Natural Resources. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' and the rules and regulations adopted by the board pursuant thereto. Any administrative law judge so appointed by the board conducting such hearing shall fully meet and qualify as to all applicable conflict of interest requirements provided for in Section 304(h)(2)(D) of the Federal Water Pollution Control Act of 1972, as amended, and the rules, regulations, and guidelines promulgated thereunder. The decision of the administrative law judge shall constitute the final decision of the board. Any party to the hearing, including the director, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, including the right to seek judicial review in the superior court of the county of the applicant's or permittee's residence. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

SECTION 7.

Said title is further amended in Code Section 12-5-96, relating to permits to withdraw, obtain, or use ground water, by revising paragraph (1) of subsection (h) as follows:

"(h)(1) Except as otherwise provided in Code Section 12-5-102 for emergency orders, any person who is aggrieved or adversely affected by any order or action of the director pursuant to this Code section shall, upon petition within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge appointed by the Board of Natural Resources. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' and the rules and regulations adopted by the board pursuant thereto. Any administrative law judge so appointed by the board conducting such hearing shall fully meet and qualify as to all applicable conflict of interest requirements provided for in Section 304(h)(2)(D) of the Federal Water Pollution Control Act Amendments of 1972, as amended, and the rules, regulations, and guidelines promulgated thereunder. The decision of the administrative law judge shall constitute the final decision of the board. Any party to the hearing, including the director, shall have a right of judicial review thereof in accordance with Chapter 13 of Title 50, including the right to seek judicial review in the superior court in the county of the applicant's or permittee's residence. For the purposes of this part, such review is also specifically subject to subsection (a) of Code Section 50-13-19. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

SECTION 8.

Said title is further amended in Code Section 12-5-129, relating to suspension and revocation of licenses relative to water well standards, hearings, reissuance of revoked licenses, injunction, cessation of well operation, and seizure of equipment, by revising subsection (e) as follows:

"(e) The director shall be authorized to order the cessation of operation of any well operated in violation of this part and the seizure of all drilling equipment used in such drilling operation; provided, however, that the operator of any such drilling operation shall be afforded a hearing before the administrative law judge of the Department of Natural Resources on such order of the director within 48 hours."

SECTION 9.

Said title is further amended in Code Section 12-5-244, relating to administrative and judicial review relative to shore protection, by revising subsection (a) as follows:

"(a) Any person who is aggrieved or adversely affected by any order or action of the committee shall, upon petition within 30 days after the issuance of such order or taking of such action, have a right to a hearing before an administrative law judge appointed by the board. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' and the rules and regulations adopted by the board pursuant thereto. The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the committee, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

SECTION 10.

Said title is further amended in Code Section 12-5-247, relating to enforcement of provisions relative to shore protection, by revising paragraph (2) of subsection (a) and subsection (b) as follows:

"(2) Whenever the committee finds that an emergency exists requiring immediate action to protect the public or private interest where the public interest is served, it may issue an order reciting the existence of such an emergency and requiring or allowing that such action be taken as it deems necessary to meet the emergency. Notwithstanding any other provision of this part, such order shall be effective immediately. If an order requiring a person to take action is issued pursuant to this paragraph, such person shall be entitled to a hearing within ten days of the date of issuance of the order. Any person who is aggrieved or adversely affected by an emergency order of the committee, upon petition within ten days after issuance of such order, shall have a right to a hearing before an administrative law judge appointed by the board. The committee shall hold a meeting no sooner than 30 days after the issuance of an emergency order to review such order to determine whether the order has been complied with, whether the order should continue in force, and any possible effects of such order on the sand-sharing system;"

"(b) Any person who violates any provision of this part or any rule or regulation adopted under this part, any permit issued under this part, or final or emergency order of the department shall be subject to a civil penalty not to exceed $10,000.00 for each act of violation. Each day of continued violation shall subject said person to a separate civil penalty. An administrative law judge appointed by the board after a hearing conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' , after a hearing, shall determine whether or not any person has violated any provision of this part, any rule or regulation adopted under this part, any permit, or any final or emergency order of the department or permit-issuing authority and shall upon proper finding issue an order imposing such civil penalties as provided in this subsection. Review of such order shall be available as provided in subsection (a) of Code Section 12-5-244. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2. All civil penalties recovered by the department as provided in this subsection shall be paid into the state treasury to the credit of the general fund."

SECTION 11.

Said title is further amended in Code Section 12-5-283, relating to Coastal Marshlands Protection Committee, members, powers, per diem and expenses, administrative hearings and review, and permits for minor alterations, by revising subsection (b) as follows:

"(b) Any person who is aggrieved or adversely affected by any order or action of the committee shall, upon petition within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge appointed by the board. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' and the rules and regulations adopted by the board pursuant thereto. The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the committee, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

SECTION 12.

Said title is further amended in Code Section 12-8-30.6, relating to civil penalties for violations relative to solid waste management and procedures, by revising subsection (b) as follows:

"(b) Whenever the director has reason to believe that any person has violated any provision of this part or any rule or regulation effective under this part or has failed or refused to comply with any final order or emergency order of the director, he may upon written request cause a hearing to be conducted before an administrative law judge appointed by the board. Upon finding that said person has violated any provision of this part or any rule or regulation effective under this part or has failed or refused to comply with any final order or emergency order of the director, the administrative law judge shall issue his decision imposing civil penalties as provided in this Code section. Such hearing and any administrative or judicial review thereof shall be conducted in accordance with subsection (c) of Code Section 12-2-2. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

SECTION 13.

Said title is further amended in Code Section 12-9-15, relating to hearing and judicial review relative to air quality, by revising paragraph (1) of subsection (a) as follows:

"(a)(1) Any person who is aggrieved or adversely affected by any order or action of the director pursuant to this article shall, upon petition within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge appointed by the Board of Natural Resources The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The decision of the administrative law judge shall constitute the final decision of the board. Any party to the hearing, including the director, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50. Such action shall be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."

SECTION 14.

Said title is further amended in Code Section 12-12-16, relating to civil penalty for violation, hearing and judicial review, and disposition of penalties relative to asbestos safety, by revising subsection (b) as follows:

"(b) Whenever the director has reason to believe that any person has violated any provision of this chapter or any rules or regulations under this chapter or has failed or refused to comply with any final order issued under this chapter, he or she may, upon written notice, require a hearing before an administrative law judge appointed by the board to determine whether applicable civil penalties should be imposed. The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the director, shall have a right of judicial review as provided in this chapter. Such hearing and judicial review shall be conducted in accordance with subsection (c) of Code Section 12-2-2. The hearing and decision of the administrative law judge and any review thereof shall be subject to Code Section 12-1-2."