GA Code § 12-8-96 (2021)
2021 Georgia Code|Title 12 - Conservation and Natural Resources|Chapter 8 - Waste Management|Article 3 - Hazardous Waste|Part 2 - Hazardous Site Response|§ 12-8-96. Corrective Action Upon Release of Hazardous Wastes, Hazardous Constituents, or Hazardous Substances; Notice; Administrative Consent Order; Expenditure of Funds From Trust Fund

  Whenever the director has reason to believe that there is or has been a release of hazardous wastes, hazardous constituents, or hazardous substances into the environment, regardless of the time at which release of such hazardous wastes, hazardous constituents, or hazardous substances occurred, and has reason to believe that such release poses a danger to health or the environment, the director shall make a reasonable effort to identify each person who has contributed or who is contributing to such a release.The director shall then notify each such person in writing of the opportunity to perform voluntarily corrective action in accordance with an administrative consent order entered into with the director within such period of time as may be specified by the director in written correspondence to the person.If the person fails or refuses to enter into an administrative consent order with the director within the period of time specified by the director, the director may issue an order directed to any such person.The order may direct that necessary corrective action be taken within a reasonable time to be prescribed in the order.   If a person fails to comply with such an order or if all necessary corrective action cannot be obtained from the responsible person or persons, the director may undertake corrective action utilizing funds from the hazardous waste trust fund.   The division or its corrective action contractors may enter upon the property of any person, at such time and in such manner as deemed necessary by the director, to effectuate the necessary corrective action to protect human health and the environment.   The State of Georgia and the hazardous waste trust fund are relieved from all liability for loss of business, damages, and taking of property associated with the corrective action.   Whenever the director utilizes funds from the hazardous waste trust fund, such expenditure shall constitute a debt to the state. Any such debt, together with interest accruing at a rate of 12 percent per annum, shall constitute a lien on the real property for which such funds are being expended or have been expended. In order to perfect the lien created by this article, the director shall file a claim of lien with the clerk of the superior court in the county in which the real property is located. Such claim of lien shall, at a minimum, accurately describe the property on which the lien is imposed and shall state the type of corrective action, the authority pursuant to which the corrective action is being performed, the date the corrective action began, the cost to date of the claim, and the estimated total cost. Such claim of lien may be updated from time to time. The director shall mail a copy of the claim of lien to the owner of the real property and to all other persons the director believes to be liable for the cost of the corrective action. The clerk of the superior court shall index the claim of lien in the land records of the court. The filing of the claim of lien shall be notice to all persons of the state's lien against the real property. The lien provided by this Code section shall be superior to all other liens except liens for taxes and other prior perfected recorded liens or claims of record. The lien created by this Code section may be foreclosed as provided in Code Section 44-14-530. All funds obtained from the foreclosure or settlement of any lien filed under this Code section shall be deposited into the hazardous waste trust fund subject to the provisions of Code Section 45-12-92. No transferral of title, sale, or execution of lien, whether judicial or nonjudicial, shall divest the lien provided by this Code section. However, the lien provided for in this subsection shall not be available where the present owner of the real property otherwise subject to such lien did not cause or contribute to a release which resulted in the expenditure of hazardous waste trust funds upon the property, unless that owner knew or in the exercise of reasonable diligence should have known that the release was occurring during his or her period of ownership or that the release had occurred prior to his or her acquisition of ownership.     (Code 1981, §12-8-96, enacted by Ga. L. 1992, p. 2234, § 5; Ga. L. 1997, p. 1050, § 1.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1997, "lien" was substituted for "liens" in the eighth sentence of subsection (e).   JUDICIAL DECISIONS   "Corrective action" explained.    - "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, No. S08C1908, 2008 Ga. LEXIS 947 (Ga. 2008).   Individual liability.    - Polluting facility's president who negotiated a consent order for the facility did not have "actual notice" that the president could be personally liable for remediation costs under O.C.G.A. §§ 12-8-96(a) and12-8-96.1(a) of Georgia's Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq., and, therefore, was not liable for such costs. Reheis v. Baxley Creosoting & Osmose Wood Preserving Co., 268 Ga. App. 256, 601 S.E.2d 781 (2004).    Order issued by the Director of the Environmental Protection Division providing each person the opportunity to perform corrective action is a prerequisite to the imposition of individual liability under the Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq. Reheis v. Baxley Creosoting & Osmose Wood Preserving Co., 268 Ga. App. 256, 601 S.E.2d 781 (2004).   Legislative intent.    - Homeowners lacked standing to appeal consent orders entered by the Director of the Environmental Protection Division of the Department of Natural Resources until the Director sought to enforce the orders, but the homeowners were authorized to sue those directly responsible for polluting the homeowners' property, irrespective of the homeowners' right of access to the courts; hence, the underlying intent of O.C.G.A. § 12-2-2(c)(3)(B) was to preclude such attacks on the Director's exercise of the administrative authority to determine the scope of remedial measures set forth in consent orders issued under the Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq. Couch v. Parker, 280 Ga. 580, 630 S.E.2d 364 (2006).    Cited in McElmurray v. Augusta-Richmond County, 274 Ga. App. 605, 618 S.E.2d 59 (2005).