05 SB190/AP
Senate
Bill 190
By:
Senators Tolleson of the 20th, Bulloch of the 11th, Johnson of the 1st and
Pearson of the 51st
AS PASSED
AS PASSED
AN
ACT
To
amend Title 12 of the Official Code of Georgia Annotated, relating to
conservation and natural resources, so as to change certain provisions relating
to the Environmental Protection Division, the Environmental Advisory Council,
duties of the council, its members, and the director of the division, procedure
for aggrieved persons, and inspections; to provide that the filing of a petition
in certain instances shall result in a limited stay of an order or action of the
director; to provide time limits for administrative judicial decision making; to
provide for exceptions; to change certain provisions relating to hearing and
judicial review relative to air quality; to amend Code Section 50-13-19 of the
Official Code of Georgia Annotated, relating to judicial review of contested
cases, so as to provide that the filing of a petition in certain instances shall
not result in a stay of a decision except under certain conditions; to provide
for exceptions; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
12 of the Official Code of Georgia Annotated, related to conservation and
natural resources, is amended in Code Section 12-2-2, relating to the
Environmental Protection Division, the Environmental Advisory Council, duties of
the council, its members, and the director of the division, procedure for
aggrieved persons, and inspections, by striking paragraph (2) of subsection (c)
and inserting in lieu thereof the following:
"(2)(A)
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.
(B)
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.
(C)
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.
(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."
SECTION
2.
Said
title is further amended in Code Section 12-9-15, relating to hearing and
judicial review relative to air quality, by designating the provisions of
subsection (a) as paragraph (1) of said subsection and adding a new paragraph to
read as follows:
"(2)
The provisions of subparagraph (c)(2)(B) of Code Section 12-2-2 shall apply to
proceedings under this Code
section."
SECTION
3.
Code
Section 50-13-19 of the Official Code of Georgia Annotated, relating to judicial
review of contested cases, is amended by striking subsection (d) and inserting
in lieu thereof the following:
"(d)(1)
The filing of the petition for judicial review in superior court does not itself
stay enforcement of the agency decision. Except as otherwise provided in this
subsection, the agency may grant, or the reviewing court may order, a stay upon
appropriate terms for good cause shown.
(2)
In cases involving the grant of a permit, permit amendment, or variance by the
director of the Environmental Protection Division of the Department of Natural
Resources in which the petition for judicial review in superior court was filed
by any person to whom such contested order or action is not directed, a stay
shall not be granted unless by order of the superior court upon motion for a
temporary restraining order or interlocutory injunction in accordance with Code
Section 9-11-65.
(3)
The provisions of paragraphs (1) and (2) of this subsection notwithstanding, in
any case involving the grant of a permit, permit amendment, or variance by the
director of the Environmental Protection Division of the Department of Natural
Resources regarding water withdrawal for farm uses under Code Section 12-5-31 or
Code Section 12-5-105, no stay shall be authorized if the petition for judicial
review in superior court was filed by any person to whom such order or action is
not directed.
(4)
In contested cases involving a license to practice medicine or a license to
practice dentistry in this state, a reviewing court may order a stay or an
agency may grant a stay only if the court or agency makes a finding that the
public health, safety, and welfare will not be harmed by the issuance of the
stay."
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.