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GSW Inc. v. The Dep't of Natural Resources

O.C.G.A. § 50-13-19 h 1 allows a superior court to consider a claim raised in an administrative hearing that a statute is unconstitutional both on its face and as applied provided that the claim is preserved in the administrative proceeding below.

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On March 9, 1993, GSW, Inc. applied to operate a landfill in Long County. GSW asserted that after it obtained a site suitability letter from the Environmental Protection Division of the Department of Natural Resources, it began the process of designing the landfill to suit the EPD’s requirements. According to GSW, there was an initial indication that EPD officials would grant the permit, but the U. S. military later objected to the landfill because of its proximity to the Townsend Bombing Range. In fact, a portion of the proposed landfill was located within a restricted air space zone in which military aircraft fly at speeds of up to 500 mph and altitudes as low as 500 feet above ground level.1

On May 12, 1995, Harold F. Reheis, director of the EPD, notified GSW that its permit had been denied under DNR Rule 391-3-4-.04 1, which provides for the denial of a permit if it is likely to cause a threat to public health, safety or well-being.2 The EPD’s letter cited the department’s concern that birds attracted to the landfill could possibly strike an aircraft, causing the potential for injury to military personnel and civilians. GSW appealed the department’s decision to deny its permit, but the decision was affirmed by an administrative law judge.

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