Liability for Cleanup Costs; Punitive Damages; Action for Recovery of Costs and Damages; Claims for Contribution

  1. Law
  2. Georgia Code
  3. Conservation and Natural Resources
  4. Waste Management
  5. Hazardous Waste
  6. Hazardous Site Response
  7. Liability for Cleanup Costs; Punitive Damages; Action for Recovery of Costs and Damages; Claims for Contribution

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  1. Each and every person who contributed to a release of a hazardous waste, a hazardous constituent, or a hazardous substance shall be jointly, severally, and strictly liable to the State of Georgia for the reasonable costs of activities associated with the cleanup of environmental hazards, including legal expenses incurred by the state pursuant to subsection (a) of Code Section 12-8-96, as a result of the failure of such person to comply with an order issued by the director. Any such person shall be so liable notwithstanding the absence of the issuance of an order to such person pursuant to subsection (a) of Code Section 12-8-96 if the director is unable to identify such person prior to the commencement of clean-up action after making a reasonable effort to do so pursuant to such Code section, or if such person contributed to a release which resulted in an emergency action by the director and issuance of such an order would cause a delay in corrective action that could endanger human health and the environment. The person may, in addition, be liable for punitive damages in an amount at least equal to the costs incurred by the state and not more than three times the costs incurred by the state for activities associated with the cleanup of environmental hazards. Costs and damages incurred by the state may be recovered in a civil action instituted in the name of the director. All costs recovered by the state pursuant to this Code section shall be deposited into the hazardous waste trust fund.
  2. Any action for the recovery of costs and for punitive damages shall be commenced within six years of the date on which all costs have been incurred.
  3. No person shall be liable for costs or damages pursuant to this Code section if he can show by a preponderance of the evidence that the release of a hazardous waste, a hazardous constituent, or a hazardous substance was caused solely by:
    1. An act of God;
    2. An act of war;
    3. An act or omission of a third party other than an employee or agent of the person or other than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the person, if the person establishes by a preponderance of the evidence that:
      1. He had no relationship with the third party nor exercised any control over activities of the third party; and
      2. He took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or
    4. Any combination of paragraph (1), (2), or (3) of this subsection.
    1. For purposes of paragraph (3) of subsection (c) of this Code section, a contractual relationship may be conclusively established by, but not limited to, land contracts, deeds, or other instruments transferring title or possession, unless the real property on which the disposal or release of hazardous wastes, hazardous constituents, or hazardous substances has occurred or is occurring was acquired by the person after the disposal or release of the hazardous wastes, hazardous constituents, or hazardous substances and one or more of the following circumstances are established by a preponderance of the evidence:
      1. At the time the person acquired the site, the person did not know and had no reason to know that any hazardous waste, hazardous constituent, or hazardous substance had been disposed of or released at the site;
      2. The person is a government entity which acquired the site by escheat, through any other involuntary transfer or acquisition, or through the exercise of eminent domain by purchase or condemnation; or
      3. The person acquired the site by inheritance or bequest

        and that one or more of the circumstances described in paragraph (1), (2), or (3) of subsection (c) of this Code section are applicable.

    2. To establish that the person had no reason to know as provided in subparagraph (A) of paragraph (1) of this subsection, the person must have undertaken, at the time of acquisition, all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability.For purposes of the preceding sentence, the finder of fact shall take into account any specialized knowledge or experience on the part of the person, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.
    3. Nothing in this subsection shall diminish the liability of any previous owner of such property who would otherwise be liable under this part. Notwithstanding this paragraph, if a person obtained actual knowledge of the disposal or release of a hazardous waste, hazardous constituent, or hazardous substance at the site when the person owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, the person so transferring the property shall be treated as liable under subsection (a) of this Code section, and no defense under subsection (c) of this Code section shall be available to such person. Nothing in this subsection shall affect the liability under this part of a person who, by any act or omission, causes or contributes to the disposal or release of a hazardous waste, a hazardous constituent, or a hazardous substance which is the subject of the action relating to the site.
  5. During or following the undertaking of any corrective action, any person may seek contribution from any other person who has contributed or is contributing to any release of a hazardous waste, a hazardous constituent, or a hazardous substance. Such claims for contribution shall be governed by the law of this state.In resolving contribution claims, the court may allocate costs among liable parties using such equitable factors as the court determines to be appropriate.In any action filed by the director for the recovery of costs and damages pursuant to this Code section, any third-party claim for contribution may, upon the motion of the director, be severed and maintained as a separate action.
  6. A person who has voluntarily agreed to perform corrective action pursuant to an administrative consent order with the director shall not be liable for claims for contribution regarding matters addressed in the administrative consent order.Such administrative consent order does not discharge any other person who has contributed or is contributing to a release of hazardous wastes, hazardous constituents, or hazardous substances unless the terms of the administrative consent order so provide, and the other persons remain liable for any corrective action deemed necessary by the director but not agreed to in the administrative consent order.

(Code 1981, §12-8-96.1, enacted by Ga. L. 1992, p. 2234, § 5; Ga. L. 1993, p. 500, § 7; Ga. L. 2002, p. 927, § 5.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "paragraph" was substituted for "paragraphs" in the undesignated language following subparagraph (d)(1)(C).

Pursuant to Code Section 28-9-5, in 1994, "constituents" was substituted for "constitutents" near the middle of the introductory language in paragraph (d)(1).

Law reviews.

- For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For note on the 2002 amendment of this Code section, see 19 Ga. St. U.L. Rev. 59 (2002).

JUDICIAL DECISIONS

Strict construction of O.C.G.A. § 12-8-96.1(a) does not permit the Director of the Georgia Environmental Protection Division to negotiate consent corrective action orders with corporate officers and ignore the statutorily-mandated due process requirements for subjecting those officers to personal liability for the discharge of hazardous waste. Reheis v. Baxley Creosoting & Osmose Wood Preserving Co., 268 Ga. App. 256, 601 S.E.2d 781 (2004).

Action taken without agency involvement.

- "Corrective action" referenced in O.C.G.A. § 12-8-96.1(e) does not contemplate environmental cleanup efforts undertaken independently by a party without the involvement of the Director of the Environmental Protection Division of the Georgia Department of Natural Resources (EPD). Rather, when read in conjunction with O.C.G.A. §§ 12-8-96(a) and12-8-96.1(a), it is clear that "corrective action" taken by a person refers to action taken pursuant to an administrative consent order entered with the EPD Director, or action taken pursuant to an administrative order issued by the EPD Director directing that the necessary action be taken. Walker County v. Tri-State Crematory, 292 Ga. App. 411, 664 S.E.2d 788 (2008), cert. denied, 2008 Ga. LEXIS 947 (Ga. 2008).

As there was no evidence that a consent or remediation order had been issued, a facility owner could not show a required "corrective action" for purposes of seeking contribution pursuant to O.C.G.A. § 12-8-96.1(e) for an alleged chemical contamination. Barrett Props., LLC v. Roberts Capitol, Inc., 316 Ga. App. 507, 729 S.E.2d 621 (2012).

County not entitled to contribution for cleanup of crematorium property.

- County could not seek contribution from owners and operators of a crematorium and from funeral homes that sent bodies there for the costs associated with the county's voluntary cleanup of crematorium property. The cleanup was done without the involvement of the Director of the Environmental Protection Division, and the statute did not contemplate independent activities conducted without the Director's involvement. Walker County v. Tri-State Crematory, 292 Ga. App. 411, 664 S.E.2d 788 (2008), cert. denied, 2008 Ga. LEXIS 947 (Ga. 2008).

Buyer liable for actions on site disturbing arsenic and lead particles.

- In a soil contamination contribution action in which a buyer, in developing the property, disturbed and moved cinders containing arsenic and lead left by the seller and the seller's predecessors, the trial court erred in interpreting the parties' assumption agreement to require the seller to indemnify the buyer; apportionment of fault was required. Viad Corp v. United States Steel Corp., 343 Ga. App. 609, 808 S.E.2d 58 (2017).

Third party defense.

- Statute requires that in addition to establishing the lack of a contractual relationship in connection with the release of a hazardous waste, the party asserting the third party defense under subsection (c) of O.C.G.A. § 12-8-96.1 must also establish the lack of any other relationship between oneself and the third party. Briggs & Stratton Corp. v. Concrete Sales & Servs., 20 F. Supp. 2d 1356 (M.D. Ga. 1998).

Availability of jury trial.

- Defendants sued under O.C.G.A. § 12-8-96.1(a) of the Georgia Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq., had no right to a jury trial on the issue of whether the actual clean-up costs of the defendants' site were reasonable, but the defendants were entitled to a jury trial on the issue of punitive damages. Reheis v. Baxley Creosoting & Osmose Wood Preserving Co., 268 Ga. App. 256, 601 S.E.2d 781 (2004).

Cited in McElmurray v. Augusta-Richmond County, 274 Ga. App. 605, 618 S.E.2d 59 (2005).

RESEARCH REFERENCES

ALR.

- Secured lender liability: application of security interest exemption from definition of "owner or operator" under § 101(20)(A) of Comprehensive Environmental Response, Compensation, and Liability Act (42 USCS § 9601(20)(A)), 131 A.L.R. Fed. 293.

Construction and application of §§ 2Q1.2 and 2Q1.3 of United States Sentencing Guidelines (18 USCS Appx 2Q1.2 and 2Q1.3), pertaining to offenses involving hazardous or toxic substances, or other environmental pollutants, 138 A.L.R. Fed 507.

Equitable considerations in allocating response costs to owner or occupant of previously contaminated facility in action pursuant to § 113(f) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USCA § 9613(f)), 148 A.L.R. Fed. 203.

Amount and characteristics of wastes as equitable factors in allocation of response costs pursuant to § 113(f)(1) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USCA § 9613(f)(1): multiple waste streams, 162 A.L.R. Fed. 371.


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