Subject 391-1-2 PROCEDURES FOR DISPOSITION OF CONTESTED CASES
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. |
| (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. |
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.
| (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. |
| (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. |
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.
| (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). |
|
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.
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. |
