Limitation of Expenses Following Approval of a Corrective Action Plan

  1. Law
  2. Georgia Code
  3. Conservation and Natural Resources
  4. Waste Management
  5. Georgia Brownfield Program
  6. Limitation of Expenses Following Approval of a Corrective Action Plan

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    1. Upon the director's approval of the prospective purchaser corrective action plan or concurrence with the certification of compliance described in this Code section, whichever first occurs, a prospective purchaser shall not be liable to the state or any third party for costs incurred in the remediation of, equitable relief relating to, or damages resultant from the preexisting release, nor shall the prospective purchaser be required to certify compliance with risk reduction standards for ground water, perform corrective action, or otherwise be liable for any preexisting releases to ground water associated with the qualifying property.
    2. The limitation of liability provided under this Code section shall also benefit a qualifying purchaser who applies for a limitation of liability within 30 days following acquisition of title or any other new property interest in the qualifying property and subsequently receives the director's approval of a prospective purchaser corrective action plan or concurrence with a certification of compliance described in this Code section.
    1. For qualifying properties which the director has designated as needing corrective action in accordance with paragraph (8) of subsection (a) of Code Section 12-8-97, any party desiring to qualify for a limitation of liability pursuant to this Code section shall submit a prospective purchaser corrective action plan to the division. The corrective action plan shall, at minimum, enumerate and describe in detail those actions planned and proposed to bring any source material or soil found on the qualifying property into compliance with all applicable rules and regulations adopted by the board governing the investigation, cleanup, and corrective action at properties listed on the hazardous site inventory. A corrective action plan submitted by a prospective purchaser under this subsection shall be in such form and meet such criteria as established by the board.
    2. The prospective purchaser shall submit proof of financial assurance, in such form as specified by the director, of his or her ability to implement the corrective action plan.
    3. Upon the director's approval of the prospective purchaser corrective action plan, it shall be the responsibility of the prospective purchaser to implement said plan. The director's approval of a prospective purchaser corrective action plan shall not in any way be construed as a guarantee, promise, or assurance that the director will concur with the prospective purchaser's certification of compliance for source material and soil in accordance with the provisions of this Code section. Compliance with the appropriate risk reduction standards for source material or soil in effect at the time the director's concurrence is sought is the sole responsibility of the prospective purchaser. The prospective purchaser shall not acquire a vested right to the director's concurrence regardless of the expenditure of money. The prospective purchaser shall implement the corrective action plan with the understanding that the requirements of corrective action necessary to obtain a limitation of liability are subject to change because of newly discovered facts or subsequent changes in state or federal laws, rules, or regulations.
    4. The director's approval of the prospective purchaser corrective action plan shall specify a time within which the prospective purchaser must certify the qualifying property to be in compliance with the risk reduction standards for source material or soil in order to maintain the limitation of liability provided for by subsection (a) of this Code section. The director may revoke the limitation of liability provided for by subsection (a) of this Code section if the prospective purchaser fails to certify compliance within such time.
    5. If at any time the director determines that any element of an approved prospective purchaser corrective action plan must be modified in order to achieve compliance with the risk reduction standards for source material or soil or that the corrective action is not being implemented in accordance with the corrective action plan, the director may revoke his or her approval of the plan and the limitation of liability by providing the prospective purchaser with written notification specifying the basis for making such determination and requesting modification and resubmission of a modified plan or an opportunity to address any deficiencies in implementing the corrective action plan within a specified time. If at any time the prospective purchaser determines that any element of an approved prospective purchaser corrective action plan must be modified in order to achieve compliance with the risk reduction standards for source material or soil, the prospective purchaser shall notify the director and obtain approval of the proposed modification.
    6. A prospective purchaser shall, upon completion of those activities specified in the corrective action plan, submit to the director a compliance status report certifying the compliance of any source material or soil found on the qualifying property with the risk reduction standards for source material or soil and corrective action requirements. The qualifying property will be deemed in compliance with the source or soil contamination risk reduction standards upon the prospective purchaser's receipt of the director's written concurrence with the compliance status report.
  3. For those qualifying properties which the director has not yet designated as being in need of corrective action, any party desiring to qualify for a limitation of liability as provided in this Code section shall certify the qualifying property to be in compliance with the risk reduction standards for source material or soil by submitting a compliance status report to the division in such form as provided by rules and regulations adopted by the board. A compliance status report submitted by a prospective purchaser under this subsection shall be in such form and meet such criteria as established by the board. The qualifying property will be deemed in compliance with the risk reduction standards for source material or soil upon the prospective purchaser's receipt of the director's written concurrence with the compliance status report.
  4. A person who holds indicia of ownership executed by the prospective purchaser primarily to protect said person's security interest in the qualifying property or who acts in good faith solely in a fiduciary capacity and who did not actively participate in the management, disposal, or release of hazardous wastes, hazardous constituents, or hazardous substances on or from the qualifying property shall not be liable to the state or any third party for costs incurred in the remediation of, equitable relief relating to, or damages resultant from the preexisting release at the qualifying property.
  5. When a person who holds indicia of ownership executed by the prospective purchaser primarily to protect said person's security interest in the qualifying property takes title to the qualifying property from the prospective purchaser via foreclosure or a deed in lieu of foreclosure, such new titleholder shall maintain his or her limitation of liability under subsection (d) of this Code section if:
    1. The director is informed in writing of the transfer of title; and
    2. Within 180 days, or such other time period as specified by the director, of said transfer of title, the new titleholder:
      1. Presents the name of a new party who qualifies as a prospective purchaser for the qualifying property along with said new party's written assurance, including financial assurance, that the prospective purchaser corrective action plan will be fully implemented; or
      2. Submits a statement in writing that the new titleholder complies with the requirements applicable to prospective purchasers under this article.

(Code 1981, §12-8-206, enacted by Ga. L. 1996, p. 993, § 4; Ga. L. 1998, p. 1667, § 2; Code 1981, §12-8-207, as redesignated by Ga. L. 2002, p. 927, § 6; Ga. L. 2006, p. 72, § 12/SB 465; Ga. L. 2014, p. 247, § 4/HB 957.)

The 2014 amendment, effective July 1, 2014, designated the existing provision of subsection (a) as paragraph (a)(1) and added paragraph (a)(2).

Editor's notes.

- Ga. L. 2002, p. 927, § 6, effective July 1, 2002, redesignated former Code Section 12-8-207 as present Code Section 12-8-208.


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