O.C.G.A.
O.C.G.A.

O.C.G.A. § 12-9-23 (2019)

Civil penalties; procedures for imposing penalties

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) Any person violating any provision of this article or rules or regulations promulgated pursuant to this article or any permit condi1064 tion or limitation established pursuant to this article, or failing or refusing to comply with any final order of the director issued as provided in this article shall be liable for a civil penalty of not more than $25,000.00 per day. Each day during which the violation or failure continues shall be a separate violation.

(b) Whenever the director has reason to believe that any person has violated any provision of this article or any rules or regulations promulgated pursuant to this article or any permit condition or has failed or refused to comply with any final order of the director, he may, upon written request, cause a hearing to be conducted before a hearing officer appointed by the Board of Natural Resources. Upon a finding that such person has violated any provisions of this article or any rule or regulation promulgated pursuant to this article or any permit condition, or has failed or refused to comply with any final order of the director, the hearing officer shall issue his initial decision imposing civil penalties as provided in subsection (a) of this Code section. Such hearing and any administrative or judicial review thereof shall be conducted in accordance with Code Section 12-9-15.

(c) In rendering a decision under subsection (b) of this Code section imposing civil penalties, the hearing officer shall consider all factors which are relevant, including, but not limited to, the following:

(1) The amount of assessment necessary to ensure immediate and continued compliance and the extent to which the violator may have profited by failing or delaying compliance;

(2) 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;

(3) The conduct of the person incurring the civil penalty in taking all feasible steps or procedures necessary or appropriate to comply or to correct the violation or failure;

(4) Any prior violations by such person, or failures by such person to comply with, statutes, regulations, orders, or permits administered, adopted, or issued by the director;

(5) The character and degree of injury to, or interference with, public health, safety, or welfare which is caused or threatened to be caused by such violation or failure;

(6) The character and degree of injury to, or interference with, reasonable use of property which is caused or threatened to be caused by such violation or failure.

(d) All civil penalties recovered by the director as provided in this Code section shall be paid into the state treasury to the credit of the general fund.

CONSERVATION & NATURAL RES.

History

Ga. L. 1978, p. 275, § 16; Ga. L. 1992, p. 918, § 2; Ga. L. 1992, p. 2886, § 1.

Annotations

Code Commission notes. - Pursuant

to Code Section 28-9-5, in 1992, ‘‘article’’ was substituted for ‘‘chapter’’ in subsections (a) and (b).

JUDICIAL DECISIONS Imposition of a civil penalty was supported by the evidence after the administrative law judge found violations of the Air Quality Act, DNR Rules, and the conditions of a permit and specifically considered each of the factors set forth in subsections (c)(1) through (6) of O.C.G.A. § 12-9-23 and found that evidence ad-

duced on four of these factors weighed in favor of imposing a penalty. Reheis v. Drexel Chem. Co., 237 Ga. App. 87, 514 S.E.2d 867 (1999). Cited in Action Marine, Inc. v. Cont’l Carbon, Inc., 481 F.3d 1302 (11th Cir. 2007); Meredith v. Thompson, 312 Ga. App. 697, 719 S.E.2d 592 (2011).

RESEARCH REFERENCES C.J.S. - 36A C.J.S., Fines, § 3. ALR. - Recovery of cumulative statutory penalties, 71 A.L.R.2d 986. Air pollution control: sufficiency of evidence of violation in administrative proceeding in abatement order, 48 A.L.R.3d 795. Validity of state statutory provision per-

mitting administrative agency to impose monetary penalties for violation of environmental pollution statute, 81 A.L.R.3d 1258. Liability insurance coverage for violations of antipollution laws, 87 A.L.R.4th 444.

Notes of Decisions
Cited in 4 cases, 1995–2011 · leading case: Reheis v. Drexel Chem. Co., 514 S.E.2d 867 (Ga. Ct. App. 1999).
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Reheis v. Drexel Chem. Co., 514 S.E.2d 867 (Ga. Ct. App. 1999). · cites it 32× “, but struck the $42,000 civil penalty imposed under OCGA § 12-9-23. Because we find the administrative law judge’s decision to impose the penalty is supported by the evidence, we reverse the superior court’s judgment as to that issue.”
Action Marine, Inc. v. Cont'l Carbon Inc., 481 F.3d 1302 (11th Cir. 2007). “See O.C.G.A. § 12-9-23 (2006) (establishing civil penalty of up to $25,000 per day for violations of the Georgia Air Quality Act, §§ 12-9-1 to 12-9-25).”
United States v. Georgia Dep't of Nat. Resources, 897 F. Supp. 1464 (N.D. Ga. 1995). · cites it 2× “O.C.G.A. § 12-9-23(a) (1992) provides that violations of the GAQA may be punished by civil penalties of not more than $25,000.”
Meredith v. Thompson, 719 S.E.2d 592 (Ga. Ct. App. 2011). · cites it 2× “Notably, their counsel informed the court at the summary judgment hearing that a nuisance per se theory had been abandoned; and the court granted summary judgment on the strict liability theory because the residents had made no argument to oppose the summary judgment motion.”
— 12-9-23(a) — 1 case
United States v. Georgia Dep't of Nat. Resources, 897 F. Supp. 1464 (N.D. Ga. 1995). “O.C.G.A. § 12-9-23(a) (1992) provides that violations of the GAQA may be punished by civil penalties of not more than $25,000.”
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