Exceptions to Limitation of Liability

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  6. Exceptions to Limitation of Liability

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  1. The limitation of liability provided by subsection (a) of Code Section 12-8-207 shall be contingent upon the prospective purchaser's good faith implementation of the corrective action plan as approved by the director as well as the certification of compliance with the risk reduction standards and corrective action requirements. Such limitation of liability shall not be applicable during any time the director's approval of the corrective action plan has been suspended or revoked.
  2. The limitation of liability provided by this article shall not affect any right of indemnification which any person has or may acquire by contract against any other person who is otherwise liable for creating an environmental hazard; apply to persons who intentionally, wantonly, or willfully violate federal or state regulations in the cleanup process; or apply to any release occurring or continuing after the date of the certification of compliance unless any such continuing release is specifically addressed in the director's concurrence with the certification of compliance.
    1. The limitation of liability provided by this article shall survive any subsequent change in the nature of a prospective purchaser's interest in the qualifying property and shall automatically inure to the benefit of heirs, assigns, successors in title, and designees of the person to whom such limitation of liability is granted and to any person acquiring any other property interest in the property for which the limitation of liability was granted; provided, however, that in no event shall the director's approval of a corrective action plan or concurrence with a certification of compliance operate to absolve from liability any party deemed to be a person who has contributed or is contributing to a release at the qualifying property.
    2. Any voluntary transfer of the title to a property or any portion thereof for which a limitation of liability has been granted to any party that would be disqualified from obtaining a limitation of liability for such property under Code Section 12-8-206 shall terminate any limitation of liability applicable to the transferor under this article.
  4. For the purpose of determining liability for continuing or future releases of regulated substances upon or from any qualifying property for which the director has concurred with a certification of compliance pursuant to Code Section 12-8-207, the background or baseline concentration for any and all releases for which corrective action was performed or compliance certified or both shall be equivalent to the risk reduction standard for which compliance was certified in order to invoke the limitation of liability.
  5. The limitation of liability provided by this article shall have no effect on liability for releases of hazardous waste, hazardous constituents, or hazardous substances not addressed in the corrective action plan or the certification of compliance. Any such release shall constitute a new, separate, and distinct release, subject to the provisions of Part 2 of Article 3 of this chapter.
  6. Nothing in this article shall limit the authority of the director or the division to take action in response to any release or threat of release. Except as provided in this article, nothing shall limit the authority of the director or the division to seek recovery of costs from persons liable under Part 2 of Article 3 of this chapter.

(Code 1981, §12-8-207, enacted by Ga. L. 1996, p. 993, § 4; Ga. L. 1998, p. 1667, § 2; Code 1981, §12-8-208, as redesignated by Ga. L. 2002, p. 927, § 6; Ga. L. 2005, p. 1227, § 3/SB 277; Ga. L. 2012, p. 843, § 2/HB 1102; Ga. L. 2014, p. 247, § 5/HB 957.)

The 2012 amendment, effective May 1, 2012, in subsection (c), substituted "shall automatically inure to the benefit of heirs" for "shall be fully transferable to the heirs" near the beginning, substituted "to any" for "back to the owner of the property from which the subject property was purchased, any" near the middle, and, near the end, substituted "to any person" for "or any person" and inserted ", or back to the owner of the property from which the subject property was purchased".

The 2014 amendment, effective July 1, 2014, deleted "to any activities conducted on the qualifying property before the director's approval of the corrective action plan or concurrence with a certification of compliance, whichever first occurs, or" following "applicable" near the middle of the second sentence of subsection (a); and substituted the present provisions of subsection (c) for the former provisions, which read: "The limitation of liability provided by this article shall automatically inure to the benefit of heirs, assigns, successors in title, and designees of the person to whom such limitation of liability is granted; provided, however, that in no event shall the director's approval of a corrective action plan or concurrence with a certification of compliance operate to absolve from liability any party deemed to be a person who has contributed or is contributing to a release at the qualifying property; and provided, further, that a transfer of the title to the qualifying property or any portion thereof from the prospective purchaser to any other party deemed to be a person who has contributed or is contributing to a release at the property, to any person disqualified from obtaining a limitation of liability under Code Section 12-8-206, or back to the owner of the property from which the subject property was purchased shall terminate any limitation of liability applicable to the transferor under this article."


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