Hearing; Judicial Review

  1. Law
  2. Georgia Code
  3. Conservation and Natural Resources
  4. Prevention and Control of Air Pollution
  5. Air Quality
  6. Hearing; Judicial Review

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    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.
    2. The provisions of subparagraph (c)(2)(B) of Code Section 12-2-2 shall apply to proceedings under this Code section.
  2. Persons are aggrieved or adversely affected where the challenged action has caused or will cause them injury in fact or where the injury is to an interest within the zone of interests to be protected or regulated by the director pursuant to this article. A person shall also be considered aggrieved or adversely affected solely for purposes of administrative and judicial review pursuant to this article if he actively participated in the public hearing and comment process and the director decided the matter adverse to his interest.A continuous and substantial involvement in the review process, including attendance at public hearings and submission in writing of specific objections to the permit as proposed and specific suggested permit conditions or limitations which the person believes are required to implement the provisions of this article, shall constitute active participation.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.The hearing and review procedure provided in this Code section is to the exclusion of all other means of hearing or review.

(Ga. L. 1978, p. 275, § 17; Ga. L. 1992, p. 918, § 2; Ga. L. 1992, p. 2886, § 1; Ga. L. 2005, p. 818, § 2/SB 190.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "article" was substituted for "chapter" throughout this Code section.

JUDICIAL DECISIONS

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).

OPINIONS OF THE ATTORNEY GENERAL

Compliance with 1990 Clean Air Act Amendment.

- Provision in O.C.G.A. § 12-9-15 which grants standing to those individuals who can demonstrate some injury or threatened injury as a result of an action or of interests to be protected by the Georgia Air Quality Act, O.C.G.A. § 12-9-1 et seq., meets the judicial review requirements found in 42 U.S.C. § 7661a, as interpreted by the Environmental Protection Agency. 1993 Op. Att'y Gen. No. 93-13.

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Administrative Law, §§ 269, 404.

C.J.S.

- 73A C.J.S., Public Administrative Law and Procedure, §§ 223, 224, 225, 313, 314, 316.

ALR.

- Air pollution control: sufficiency of evidence of violation in administrative proceeding in abatement order, 48 A.L.R.3d 795.


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