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Subject 391-1-2 PROCEDURES FOR DISPOSITION OF CONTESTED CASES

Rule 391-1-2-.01 Definitions

As used in this Chapter, the term:

(a) "Decision Maker" means the individual or entity within DNR that took or proposed the action to be reviewed under this Chapter. The term Decision Maker includes, without limitation, the CMPC, the Commissioner, the Director and the SAC.
(b) "ALJ" means an Administration Law Judge appointed by the Board.
(c) "APA" means the Georgia Administration Procedure Act (O.C.G.A. Title 50, Chapter 13).
(d) "Board" means the Board of Natural Resources.
(e) "Clerk" means the Administrative Hearing Clerk.
(f) "CMPC" means the Coastal Marshlands Protection Committee.
(g) "Commissioner" means the Commissioner of Natural Resources.
(h) "CPA" means the Civil Practice Act (O.C.G.A. Title 9, Chapter 11).
(i) "Director" means the Director of the Environmental Protection Division of DNR.
(j) "DNR" means the Georgia Department of Natural Resources.
(k) "SAC" means the Shore Assistance Committee.
(l) "Attorney General" means the Attorney General of the State of Georgia.
(m) "Person" means any individual, partnership, firm, corporation, association, or other entity.

Rule 391-1-2-.02 Applicability and Scope of These Rules

(1) The Rules in this Chapter govern all formal hearings in "contested cases," as that term is defined in the APA, which are conducted before an ALJ. An ALJ shall afford a liberal construction of these rules insofar as they are applied to cases wherein petitioners or respondents are unable to be represented by counsel.
(2) An ALJ shall hear all contested cases arising under the following laws:
(a) The Game and Fish Code (O.C.G.A. Title 27).
(b) The Coastal Marshlands Protection Act of 1970 (O.C.G.A. Title 12, Chapter 5, Article 4, Part 4).
(c) The Shore Assistance Act of 1979 (O.C.G.A. Title 12, Chapter 5, Article 4, Part 2).
(d) The Oil and Gas and Deep Drilling Act of 1975 (O.C.G.A. Title 12, Chapter 4, Article 2, Part 2).
(e) The Georgia Surface Mining Act of 1968 (O.C.G.A. Title 12, Chapter 4, Article 2, Part 3).
(f) The Solid Waste Management Act (O.C.G.A. Title 12, Chapter 8 Article 2).
(g) The Georgia Air Quality Act of 1978 (O.C.G.A. Title 12, Chapter 9)
(h) The Georgia Hazardous Waste Management Act (O.C.G.A. Title 12, Chapter 8, Article 3).
(i) The Georgia Water Quality Control Act (O.C.G.A Title 12, Chapter 5, Article 2).
(j) The Ground Water Use Act of 1972 (O.C.G.A. Title 12, Chapter 5, Article 3, Part 2).
(k) The Georgia Safe Drinking Water Act of 1977 (O.C.G.A. Title 12, Chapter 5, Article 3, Part 5).
(l) The Georgia Safe Dams Act of 1978 (O.C.G.A. Title 12, Chapter 5, Article 5, Part 3).
(m) The Erosion and Sedimentation Act of 1975 (O.C.G.A. Title 12, Chapter 7).
(n) The Metropolitan River Protection Act (O.C.G.A. Title 12, Chapter 5, Article 5, Part 6).
(o) The Georgia Asbestos Safety Act (O.C.G.A. Title 12, Chapter 12).
(p) All other laws providing for the Review by an ALJ of any decision, order or action.
(3) Procedural questions arising at any stage of the proceeding which are not addressed in the APA, any other applicable law or these Rules shall be resolved at the discretion of the ALJ, as justice requires. The ALJ may consult and utilize the CPA and the Uniform Rules for the Superior Courts in the exercise of this discretion.

Rule 391-1-2-.03 Petitions for Hearing; Time for Filing of Same

Petitions for hearing in contested cases shall be in writing and shall be filed in the manner and within the time required by applicable law or Rule.

Rule 391-1-2-.04 Filing of Petitions for Hearing

(1) An original and three copies of all petitions for hearing in contested cases shall be filed on 8 1/2 by 11 inch paper with the Decision Maker. Submissions shall be deemed filed on the date on which they are received by the Decision Maker, c/o Commissioner of Natural Resources, 2 Martin Luther King, Jr. Drive, S.E., Suite 1252 East, Atlanta, Georgia 30334-9000, or when mailed by first class mail, with proper postage attached, and properly addressed directly to the Decision Maker, whichever date comes first. The petitioner shall simultaneously serve a copy of such petition by certified mail or personal service upon the Attorney General, and, if applicable, upon the persons or entity to whom the permit or license was issued.
(2) The office hours of the Decision Maker shall be 8:00 a.m. to 4:30 p.m., Monday through Friday, except State legal holidays.
(3) All submissions shall meet the applicable requirements of the OSAH Rules, Chapter 616-1-2, and of Rule 391-1-2-.06 below.
(4) Failure to comply with this Rule or any other requirement of this Chapter relating to form or content of submissions to be filed may result in the non-complying portions of the submission being excluded from consideration. If the Decision Maker or the Attorney General determines that a submission fails to meet any requirement of this Chapter, the Decision Maker may return the submission by mail together with a reference to the applicable Rule(s). A party whose submission has been returned shall have 10 days from the date the submission is mailed back by the Decision Maker within which to conform the submission to the applicable Rule(s) and refile it with the Decision Maker.

Rule 391-1-2-.05 Content of Petitions for Hearing

(1) A petition for hearing on the grant or denial of a permit or license shall contain:
(a) A copy of the license or permit of which review is sought.
(b) A statement of the legal authority and jurisdiction under which a hearing is requested;
(c) A short and plain statement of the factual matters asserted;
(d) A statement of each specific section (including subsection and paragraph if applicable) of the laws or rules involved in any questions of law;
(e) The name and current mailing address of the petitioner's counsel;
(f) A short and plain statement of the nature of the petitioner's interest in the matter;
(g) In cases contesting the issuance of a license or permit, those suggested permit conditions or limitations which the petitioner believes required to implement the provisions of the law under which the permit or license was issued; and
(h) In cases contesting conditions, limitations or requirements placed on the issuance of a license or permit, specific reference to the conditions, limitations or requirements contested, as well as suggested revised or alternative permit conditions, limitations or requirements which the petitioner believes required to implement the provisions of the law under which the permit or license was issued.
(2) A petition for a hearing on an order requiring or imposing administrative enforcement relief or the revocation, suspension, amendment, modification or non-renewal of a permit or license shall contain:
(a) A copy of the notice or order for which review is sought;
(b) A statement of the legal authority and jurisdiction under which a hearing is requested; and
(c) A reply to the allegations set forth in the order which reply shall address all the factual allegations set forth in the order.
(3) For hearings on the revocation of the privilege of operating a vessel pursuant to O.C.G.A. §52-7-12.5(e), the following information must be included:
(a) The petitioner's full name, current address, driver's license or Social Security number, date of birth and telephone number at which the petitioner can be reached between the hours of 8:00 a.m. and 4:30 p.m.;
(b) The name and address of all interested parties who may testify;
(c) A clear and concise statement of the facts upon which the contested case arises;
(d) A statement setting forth the relief sought; and
(e) If represented by counsel, the name, address, and phone number of that counsel.
(4) A petition for a hearing on any action not covered in Paragraphs (1) through (2) above shall contain the information required to be included in petitions for hearing by subparagraphs (a) through (f) of paragraph (1) above.

Rule 391-1-2-.06 Referral of Petitions for Hearing to Office of State Administrative Hearings

Upon receipt of a timely petition for hearing, the Decision Maker shall forward the original and two copies of the petition to the Attorney General along with a request that an OSAH Form 1 be prepared and transmitted along with the petition for hearing to OSAH. Referral of a petition for hearing to OSAH is not a determination that the petition satisfied Rule 391-1-2-.04(4) above or that the petitioner is entitled to a hearing. Rather, referral of a petition for hearing to OSAH shall constitute a request that such issues be decided by the ALJ and a hearing conducted pursuant to state law, if appropriate.

Rule 391-1-2-.07 Stay Pending Final Action

(1) Except as otherwise provided by law or regulation concerning a specific type of order or action taken by a Decision Maker, or by paragraphs (2) and (3) of this rule, any order or action of a Decision Maker shall be stayed upon the filing of a petition for review of the order or action pursuant to Rule 391-1-2-.03.
(2) When the filing of the petition is with the Director and by a person to whom the order or action is not directed and when the order or action involves the grant of a permit, permit amendment or variance, the filing shall stay such order or action of the Director only until such time as the hearing has been held and for ten days after the administrative law judge renders his or her decision on the matter. The hearing shall be held and the decision of the administrative law judge shall be rendered not later than 90 days after the date of the filing of the petition. Such period may be extended for a time certain by order of the administrative law judge upon consent of all parties or by order of the administrative law judge for good cause shown for a period not to exceed an additional 60 days.
(3) The following actions shall not stay the order or action of a Decision Maker.
(a) The filing of a petition with the Director by any person to whom such order or action is not directed in any case involving the grant of a permit, permit amendment, or variance by the Director regarding water withdrawal for farm uses under Code Section 12-5-31 or Code Section 12-5-105.
(b) The filing of a petition for hearing contesting any order issued or action taken by the Director pursuant to the Georgia Hazardous Site Response Act, O.C.G.A. § 12-8-90, et. seq. The filing shall not stay any further order or action by the Director, or any obligation imposed by the Georgia Hazardous Site Response Act, O.C.G.A. § 12-8-90, et seq., or the rules and regulations promulgated pursuant thereto, Department of Natural Resources Rules Chapter 391-3-19, except as provided in O.C.G.A. § 12-8-97(f).

Rule 391-1-2-.08 Final Decision

A proposed decision by an ALJ shall not be subject to further review by the Department of Natural Resources or the Board and shall become final without expiration of the 30-day review period provided for in the APA.

Rule 391-1-2-.09 Criteria for Review and for Determining Civil Penalties

In rendering a decision imposing civil penalties, the ALJ shall consider all factors which are relevant including the factors listed below to the extent applicable and not inconsistent with statutory or more specific regulatory provisions.

(a) The amount of civil penalty necessary to ensure immediate and continued compliance and the extent to which the violator may have profited by failing or delaying to comply;
(b) The character and degree of impact of the violation or failure on the natural resources of the state, especially any rare or unique natural phenomena;
(c) The nature of the violator's conduct which resulted in the violation in terms and inadvertence, negligence, recklessness, or knowing intent;
(d) The conduct of the violator to take promptly, or in failing or refusing to take promptly, all feasible steps or procedures necessary or appropriate to comply of to correct the violation or failure;
(e) Any prior violations of, or failures by, such person to comply with statutes, rules, regulations, orders, or permits administered, adopted, or issued by a Department of Natural Resources Decision Maker;
(f) The character and degree of injury to or interference with the reasonable use of property which is caused or threatened to be caused by such violation or failure; and
(g) The character and degree of injury to or interference with public health and safety which is caused or threatened to be caused by such violation or failure.

Rule 391-1-2-.10 Repealed

Rule 391-1-2-.11 Repealed

Rule 391-1-2-.12 Repealed

Rule 391-1-2-.13 Repealed

Rule 391-1-2-.14 Repealed

Rule 391-1-2-.15 Repealed

Rule 391-1-2-.16 Repealed

Rule 391-1-2-.17 Repealed

Rule 391-1-2-.18 Repealed

Rule 391-1-2-.19 Repealed

Rule 391-1-2-.20 Repealed

Rule 391-1-2-.21 Repealed

Rule 391-1-2-.22 Repealed

Rule 391-1-2-.23 Repealed

Rule 391-1-2-.24 Repealed

Rule 391-1-2-.25 Repealed

Rule 391-1-2-.26 Repealed

Rule 391-1-2-.27 Repealed

Rule 391-1-2-.28 Repealed

Rule 391-1-2-.29 Repealed

Rule 391-1-2-.30 Repealed

Rule 391-1-2-.31 Repealed

Rule 391-1-2-.32 Repealed

Rule 391-1-2-.33 Repealed

Rule 391-1-2-.34 Repealed

Rule 391-1-2-.35 Repealed

Rule 391-1-2-.36 Repealed

Rule 391-1-2-.37 Repealed