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Environmental Protection Division; Environmental Advisory Council; Duties of Council and Its Members and Director; Appeal Procedures Generally; Permit Applications; Inspections

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There is created within the Department of Natural Resources an Environmental Protection Division.
1. The division shall have a director who shall be both appointed and removed by the Board of Natural Resources with the approval of the Governor.The director shall appoint an assistant director of the division.The director and the assistant director shall be qualified professionals, competent in the field of environmental protection.The director and the assistant director shall be in the unclassified service. In the event of a vacancy in the office of the director or in his absence or if he is disabled, the assistant director shall perform all the duties of the director.The director shall be responsible for enforcing the environmental protection laws of Georgia. The director shall hire the personnel for the division and shall supervise, direct, account for, organize, plan, and execute the functions vested in the division.
2. 1. The Governor shall appoint an Environmental Advisory Council. The council shall consist of 15 members who shall be representative of professional and lay individuals, organizations, and governmental agencies associated or involved with environmental matters.The term of each member of the council shall be for two years, provided that of the members first appointed, seven shall be appointed for terms of one year and eight for terms of two years.Vacancies shall be filled by similar appointment for unexpired terms.
  2. The council shall advise the Governor, the board, and the director as to the efficacy of the state's environmental protection programs, the need for legislation relating to the environment, the need for expansion or reduction of specific environmental programs, and the need for specific changes in the state's environmental protection programs.The council may review and prepare written comments on proposed state plans and on standards, rules, and regulations proposed by the division.Such comments may be submitted to the director, the board, and any other individual or agency deemed appropriate.
  3. Members of the council shall serve without compensation but shall receive the same expense allowance as that received by members of the General Assembly and the same mileage allowance for the use of a personal car or a travel allowance of actual transportation cost if traveling by public carrier as that received by all other state officials and employees.
1. 1. The director shall issue all orders and shall grant, deny, revoke, or amend all permits or variances provided for in the laws to be enforced by the division. The director shall also issue any certification which is required by any law of this state or the United States to be issued by the director, the Department of Natural Resources, or the State of Georgia relating to pollution control facilities or matters. The director shall develop and implement procedures for timely processing of applications made to the division for issuance or renewal of permits or variances, including but not limited to procedures for expedited review and granting of applications upon payment of a fee in an amount established by the director to offset the cost of expediting, all subject to compliance with requirements of law regarding such applications. Such procedures shall also provide any applicant who has applied to the division for issuance or renewal of a permit or variance with the ability to securely track the status of his or her application, with real time updates, via the division's Internet website. The director shall notify all permit or variance applicants within ten days of receipt of the application as to the completeness of the application and, if the director finds the same to be incomplete, what specific additional materials the applicant need submit to make the application complete. The director shall notify applicants within ten days of receipt of a completed application as to the name and address of the person assigned to perform the review and the date, time, and location of the application review. The director shall grant or deny any permit or variance within 90 days after receipt of all required application materials by the division, provided that the director may for any application order not more than one extension of time of not more than 60 days within which to grant or deny the permit or variance.
  2. 1. The director may identify professionals qualified to review certain permit applications in accordance with rules and regulations adopted by the board of the Department of Natural Resources.
    2. A permit applicant may retain a qualified professional to review an application prior to submittal to the division. If the qualified professional certifies an application as complete, the division shall act expeditiously on the application.
    3. A qualified professional certifying an application shall be independent of any professional preparing the application.
    4. The applicant shall directly pay the fees of the qualified professional.
    5. The director may remove the qualified status of a professional if the professional provides a certification for an inaccurate application.
2. 1. Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director 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 of the Office of State Administrative Hearings assigned under Code Section 50-13-40 and acting in place of 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 assigned 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.
  2. In any case involving the grant of a permit, permit amendment, or variance by the director, the filing of such a petition by a person to whom such order or action is not directed shall stay such order or action 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 petition shall be transmitted to the administrative law judge not more than seven days after the date of filing. The provisions of subsection (c) of Code Section 50-13-41 notwithstanding, 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 by such a person unless such period is extended for a time certain by order of the administrative law judge upon consent of all parties; in addition, the administrative law judge may extend the 90 day period for good cause shown for a period not to exceed an additional 60 days.
  3. The provisions of subparagraph (B) of this paragraph notwithstanding, 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, the filing of a petition under subparagraph (A) of this paragraph by any person to whom such order or action is not directed shall not stay such order or action.
  4. 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.
3. 1. Persons are "aggrieved or adversely affected," except as set forth in subparagraph (B) of this paragraph, 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 director is empowered to administer and enforce.In the event the director 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 this issue before continuing with the hearing.The burden of going forward with evidence on this issue shall rest with the petitioner.
  2. Persons are not aggrieved or adversely affected by the listing of property in the hazardous site inventory in accordance with Code Section 12-8-97 if such property was so listed prior to July 1, 2014, nor are persons aggrieved or adversely affected by an order of the director issued pursuant to Part 2 of Article 3 of Chapter 8 of this title, the "Georgia Hazardous Site Response Act," unless or until the director seeks to recover response costs, enforce the order, or recover a penalty for violation of such order; provided, however, that persons are aggrieved or adversely affected if the director designates property as needing corrective action pursuant to paragraph (8) of subsection (a) of Code Section 12-8-97. Any person aggrieved or adversely affected by any such listing occurring after July 1, 2014, or any such designation shall be entitled to a hearing as provided in Code Section 12-8-73.
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.
5. Notwithstanding any other law to the contrary, for purposes of establishing criminal violations of the standards, rules, and regulations promulgated by the Board of Natural Resources as provided in this title, the term "standards, rules, and regulations" shall mean those standards, rules, and regulations of the Board of Natural Resources in force and effect on January 1, 2016.
6. Notwithstanding any other law to the contrary, whenever the division determines that a violation of any provision of this title or any rule or regulation promulgated pursuant to this title relating to those laws to be enforced by the division has occurred, the division shall be required to attempt by conference, conciliation, or persuasion to convince the violator to cease such violation.If the director finds that the public health, safety, or welfare requires emergency action and incorporates a finding to that effect in his or her order, such order may summarily provide for the immediate cessation of any activity constituting such violation. Whether negotiated or directed, such order shall specify the alleged violation and shall prescribe a reasonable time for corrective action to be accomplished.Any order issued pursuant to this subsection shall become final unless the person aggrieved requests a hearing in writing before the director not later than 30 days after such order is served.
Whenever the Constitution and laws of the United States or the State of Georgia require the issuance of a warrant to make an inspection under any law administered by the director, the procedure set forth in paragraphs (1) through (7) of this subsection shall be employed.
1. The director or any person authorized to make inspections for the division shall make application for an inspection warrant to a person who is a judicial officer within the meaning of Code Section 17-5-21.
2. An inspection warrant shall be issued only upon cause and when supported by an affidavit particularly describing the place, dwelling, structure, premises, or vehicle to be inspected and the purpose for which the inspection is to be made. In addition, the affidavit shall contain either a statement that consent to inspect has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent. Cause shall be deemed to exist if either reasonable legislative or administrative standards for conducting a routine or area inspection are satisfied with respect to the particular place, dwelling, structure, premises, or vehicle, or there is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, premises, or vehicle.
3. An inspection warrant shall be effective for the time specified therein, but not for a period of more than 14 days, unless extended or renewed by the judicial officer who signed and issued the original warrant, upon satisfying himself that such extension or renewal is in the public interest. Such inspection warrant must be executed and returned to the judicial officer by whom it was issued within the time specified in the warrant or within the extended or renewed time. After the expiration of such time, the warrant, unless executed, is void.
4. An inspection pursuant to an inspection warrant shall be made between 8:00 A.M. and 6:00 P.M. of any day or at any time during operating or regular business hours. An inspection should not be performed in the absence of an owner or occupant of the particular place, dwelling, structure, premises, or vehicle unless specifically authorized by the judicial officer upon a showing that such authority is reasonably necessary to effectuate the purpose of the regulation being enforced. An inspection pursuant to a warrant shall not be made by means of forcible entry, except that the judicial officer may expressly authorize a forcible entry where facts are shown which are sufficient to create a reasonable suspicion of a violation of this title, which, if such violation existed, would be an immediate threat to health or safety, or where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful. Where prior consent has been sought and refused and a warrant has been issued, the warrant may be executed without further notice to the owner or occupant of the particular place, dwelling, structure, premises, or vehicle to be inspected.
5. It shall be unlawful for any person to refuse to allow an inspection pursuant to an inspection warrant issued as provided in this subsection. Any person violating this paragraph shall be guilty of a misdemeanor.
6. Under this subsection, an inspection warrant is an order, in writing, signed by a judicial officer, directed to the director or any person authorized to make inspections for the division, and commanding him or her to conduct any inspection required or authorized by this title or regulations promulgated pursuant to this title.
7. Nothing in this subsection shall be construed to require an inspection warrant when a warrantless inspection is authorized by law or a permit issued under this title.
Where this title does not otherwise specify the disposition of moneys collected by the division pursuant to an order issued by the director or the disposition of civil penalties collected by the division, such moneys and civil penalties shall be deposited in the state treasury to the credit of the general fund but shall be available for appropriation by the General Assembly to the department for inclusion in the hazardous waste trust fund continued in existence by subsection (a) of Code Section 12-8-95 in keeping with the legislative intent expressed in subsection (b) of Code Section 12-8-91.

(Ga. L. 1972, p. 1015, §§ 17, 1534; Ga. L. 1972, p. 1266, § 1; Ga. L. 1973, p. 344, § 2; Ga. L. 1981, p. 838, § 1; Ga. L. 1984, p. 404, § 1; Ga. L. 1985, p. 1465, § 2; Ga. L. 1991, p. 1738, § 1; Ga. L. 1992, p. 2234, § 1; Ga. L. 1993, p. 500, § 1; Ga. L. 1994, p. 1101, § 1; Ga. L. 1996, p. 319, § 1; Ga. L. 1998, p. 253, § 1; Ga. L. 2000, p. 877, § 1; Ga. L. 2005, p. 818, § 1/SB 190; Ga. L. 2006, p. 237, § 1/SB 191; Ga. L. 2007, p. 127, § 1/HB 463; Ga. L. 2012, p. 622, § 1/SB 427; Ga. L. 2013, p. 171, § 3/HB 320; Ga. L. 2013, p. 274, § 6/HB 226; Ga. L. 2014, p. 817, § 1/SB 333; Ga. L. 2014, p. 819, § 1/HB 904; Ga. L. 2016, p. 432, § 1/HB 840.)

The 2012 amendment, effective July 1, 2013, in subparagraph (c)(1)(A), added the third and fourth sentences, and deleted subparagraph (c)(1)(C), which read: "When any application for a permit or variance is pending before the director and the director has not either granted or denied the permit or variance within the time specified for the director to do so, the director shall immediately refund any and all fees which were required to be submitted by the applicant as a condition of the permit application, except for fees required to be levied pursuant to federal law. Such fee refund shall not otherwise affect the application process, and the application shall be granted, denied, or otherwise handled as it otherwise would have been, except that the fee requirement shall be waived."

The 2013 amendments. The first 2013 amendment, effective July 1, 2013, substituted "2013" for "1998" at the end of paragraph (c)(5). The second 2013 amendment, effective April 30, 2013, made identical changes.

The 2014 amendments. The first 2014 amendment, effective July 1, 2014, in subparagraph (c)(3)(B), inserted "if such property was so listed prior to July 1, 2014" near the beginning of the first sentence and substituted "any such listing occurring after July 1, 2014, or any such" for "such" near the middle of the second sentence. The second 2014 amendment, effective July 1, 2014, made identical changes.

The 2016 amendment, effective July 1, 2016, substituted "January 1, 2016" for "January 1, 2013" at the end of paragraph (c)(5). See Editor's notes for applicability.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "Act," was substituted for "Act" in paragraphs (c)(2) and (c)(4).

Editor's notes.

- Ga. L. 2000, p. 877, § 2, not codified by the General Assembly, provides that the Act shall apply with respect to applications pending on July 1, 2000, as well as applications submitted on or after July 1, 2000.

Ga. L. 2016, p. 432, § 6/HB 840, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2016, and shall apply to all offenses occurring on or after such date."

Law reviews.

- For article, "State Administrative Agency Contested Case Hearings," see 24 Ga. St. B.J. 193 (1988). For article, "From Marshes to Mountains, Wetlands Come Under State Regulation," see 41 Mercer L. Rev. 865 (1990). For annual survey of administrative law, see 67 Mercer L. Rev. 1 (2015). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 55 (1993). For note on 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 26 (2000).

JUDICIAL DECISIONS

Failure to address constitutional issue on part of trial court.

- Trial court erred by failing to address whether a 1993 county zoning ordinance was constitutional because the record established that the landfill permit applicant raised a constitutional challenge to the zoning ordinance before the trial court in its response to the challengers' motion for partial summary judgment and, in fact, in its transfer order to the appellate court, the trial court specifically stated that the court did not rule on the applicant's constitutional argument. Southern States-Bartow County, Inc. v. Riverwood Farm Prop. Owners Ass'n, Inc., 331 Ga. App. 878, 769 S.E.2d 823 (2015).

Remedies.

- Superior court had jurisdiction to enter an injunction against the city to prevent the city from taking action on a siting decision for a landfill, when the city failed to follow the notice and meeting requirements for selecting and siting landfills, and aggrieved citizens did not have adequate remedy at law, because the existing landfill permit process and appeal under O.C.G.A. § 12-2-2 did not provide an administrative remedy to prevent the city's ultra vires actions. Emmons v. City of Arcade, 270 Ga. 196, 507 S.E.2d 464 (1998).

Legislative intent.

- Homeowners lacked standing to appeal consent orders entered by the Director of the Environmental Protection Division of the Department of Natural Resources until the Director sought to enforce the orders, but the homeowners were authorized to sue those directly responsible for polluting the homeowners' property, irrespective of the homeowners' right of access to the courts; hence, the underlying intent of O.C.G.A. § 12-2-2(c)(3)(B) was to preclude such attacks on the director's exercise of the administrative authority to determine the scope of remedial measures set forth in consent orders issued under the Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq. Couch v. Parker, 280 Ga. 580, 630 S.E.2d 364 (2006).

Judicial review of air quality permit.

- Trial court decision invalidating an air quality permit issued by the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources to a power company to construct a pulverized coal-fired electric power plant in a particular county contained an erroneous ruling that the permit was invalid because the permit failed to include a limit on the power plant's carbon dioxide gas (CO2) emissions since no provisions of the Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., or the state implementation plan controlled or limited CO2 emissions. Because CO2 was not a pollutant that "otherwise is subject to regulation under the CAA," CO2 was not a regulated new source review pollutant in the Prevention of Significant Deterioration (PSD) program and was not required to be controlled by use of best available control technology (BACT), therefore, the trial court erred by ruling that the PSD permit was required to include a BACT emission limit to control the power company's CO2 emissions. Longleaf Energy Assocs., LLC v. Friends of the Chattahoochee, Inc., 298 Ga. App. 753, 681 S.E.2d 203 (2009), cert. denied, No. S09C1879, 2009 Ga. LEXIS 809 (Ga. 2009).

Failure to challenge consent order.

- Because a city could have challenged an agency consent order under O.C.G.A. §§ 12-2-2(c) and50-13-19 but did not, the city's appeal of a judgment to enforce the consent order arose from proceedings under O.C.G.A. § 12-5-189; since the city did not appeal the director's decision, the appellate issue was limited to the propriety of the judgment and not the correctness of the decision. City of Rincon v. Couch, 272 Ga. App. 411, 612 S.E.2d 596 (2005).

Organization lacked standing to appeal consent order.

- Trial court erred by concluding that an organization had standing to appeal a consent order between a property owner and the Director of the Environmental Protection Division (EPD) with regard to soil erosion as it lacked standing to appeal based upon its inability to demonstrate redressability as it failed to identify a procedural requirement the EPD violated, and the consent order did not fall within the categories of orders that required provision of notice and opportunity for comment. Ctr. for a Sustainable Coast, Inc. v. Turner, 324 Ga. App. 762, 751 S.E.2d 555 (2013).

Cited in George v. Department of Natural Resources, 250 Ga. 491, 299 S.E.2d 556 (1983); Chambers of Ga., Inc. v. Department of Natural Resources, 232 Ga. App. 632, 502 S.E.2d 553 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Division responsible for handling and managing solid waste.

- Former Solid Waste Management Act, Ga. L. 1972, p. 1002 et seq., places the responsibility and power to regulate solid waste handling and management in Georgia in the hands of the Environmental Protection Division. 1976 Op. Att'y Gen. No. 76-17.

RESEARCH REFERENCES

Am. Jur. 2d.

- 61B Am. Jur. 2d, Pollution Control, §§ 3, 4, 5. 63C Am. Jur. 2d, Public Officers and Employees, § 43.

C.J.S.

- 39A C.J.S., Health and Environment, § 130. 73 C.J.S., Public Administrative Law and Procedure, §§ 12, 13, 14, 20.

ALR.

- Conclusiveness of governor's decision in removing or suspending officers, 92 A.L.R. 998.

Third-party defense to liability under § 107 of Comprehensive Environmental Response, Compensation, and Liability Act (42 USCS § 9607), 105 A.L.R. Fed 21.

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