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2018 Georgia Code 12-8-68 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 12-8-68 Case Law from Google Scholar Amendments to OCGA 12-8-68

TITLE 12 CONSERVATION AND NATURAL RESOURCES

Section 8. Waste Management, 12-8-1 through 12-8-210.

ARTICLE 3 HAZARDOUS WASTE

12-8-68. Requirement of financial responsibility for persons operating or maintaining hazardous waste storage, treatment, or disposal facility; hazardous waste facility trust fund.

  1. No hazardous waste storage, treatment, or disposal facility shall be operated or maintained by any person unless adequate financial responsibility, by bonding or other methods approved by the director, has been demonstrated to the director to ensure the satisfactory maintenance, operation, closure, and postclosure care of the facility, any corrective action which may be required as a condition of a permit, and payment of any liabilities to third parties as set forth in the regulations adopted pursuant to this part.
  2. The director may require the demonstration of financial responsibility prior to issuing a permit for any hazardous waste storage, treatment, or disposal facility to assure the availability of funds to meet sufficiently the requirements for proper closure, maintenance, or postclosure care of the facility and the hazardous waste contained therein, to assure any corrective action required as a condition of such a permit, and to guarantee payment of any liabilities to third parties as set forth in regulations adopted pursuant to this part. The director is authorized to establish the financial responsibility requirements for permit applicants and classes of permit applicants, including the establishment of a range of monetary amounts.
  3. The board may adopt rules and regulations pursuant to this article establishing the criteria for approval, time periods for coverage, and other terms and conditions for the demonstration of financial responsibility required by this article and for the implementation of financial responsibility instruments.
  4. If the director determines that a hazardous waste storage, treatment, or disposal facility has been abandoned, that the owner or operator thereof has become insolvent, or that for any other reason there is a demonstrated inability of the owner or operator to maintain, operate, or close the facility, to carry out postclosure care of the facility, or to carry out corrective action required as a condition of a permit, to the satisfaction of the director, the director may implement the applicable financial responsibility instruments.The proceeds from any applicable financial responsibility instruments shall be deposited in a special account designated as the hazardous waste facility trust fund.The director shall serve as trustee of any such hazardous waste facility trust fund and the funds deposited in any such fund shall be used only for closure, postclosure care, or corrective action required for the facility. The determination of whether there has been an abandonment, default, or other refusal or inability to perform and comply with closure, postclosure, or corrective action requirements shall be made by the director.
  5. An order or other action of the director under this Code section shall become final unless a petition for hearing in accordance with Code Section 12-8-73 is filed.
  6. In any case where the owner or operator is in bankruptcy, reorganization, or arrangement pursuant to the federal Bankruptcy Code or where, with reasonable diligence, jurisdiction in any state court or any federal court cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this Code section may be asserted directly against the guarantor providing such evidence of financial responsibility.In the case of any action pursuant to this subsection, such guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which will have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.
  7. The total liability of any guarantor shall be limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this part. Nothing in this subsection shall be construed to limit any other state or federal statutory contractual or common law liability of a guarantor to its owner or operator including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection shall be construed to diminish the liability of any person under Section 107 or 111 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or other, applicable law.

(Ga. L. 1979, p. 1127, § 10; Ga. L. 1985, p. 266, § 6; Ga. L. 1986, p. 761, § 3; Ga. L. 1992, p. 2234, § 5.)

U.S. Code.

- The federal Bankruptcy Code, referred to in this Code section, is codified at 11 U.S.C. § 1 et seq. The federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, referred to in this Code section, is codified throughout Titles 26, 42, and 49 U.S.C.

JUDICIAL DECISIONS

Constitutionality.

- Financial responsibility requirements under O.C.G.A. Art. 3, Ch. 8, T. 12, and the regulations adopted thereunder meet the constitutional due process standard of bearing a rational relation to a proper and constitutionally permitted legislative purpose. Georgia Dep't of Natural Resources v. Union Timber Corp., 258 Ga. 873, 375 S.E.2d 856 (1989).

Director not obligated to establish requirements for individual facilities.

- Director is not obligated to establish financial responsibility requirements for individual hazardous-waste facilities. Indeed, if the director is obligated at all, the director is to exercise discretion in a manner consistent with the federal act and such criteria as the board shall establish. Georgia Dep't of Natural Resources v. Union Timber Corp., 258 Ga. 873, 375 S.E.2d 856 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Third party's action on corporate guarantee for subsidiary's liability.

- Parent corporation's guarantee for its subsidiary's liability for sudden and nonsudden accidental occurrences at hazardous waste treatment, storage, and disposal facilities would be fully valid and enforceable by third parties who have sustained injury or damage caused by such occurrences. 1986 Op. Att'y Gen. No. 86-35.

RESEARCH REFERENCES

Am. Jur. 2d.

- 51 Am. Jur. 2d, Licenses and Permits, § 50 et seq.

C.J.S.

- 53 C.J.S., Licenses, §§ 58, 59, 96.

ALR.

- 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.

Cases Citing O.C.G.A. § 12-8-68

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Georgia Dep't of Nat. Resources v. Union Timber Corp., 375 S.E.2d 856 (Ga. 1989).

Cited 20 times | Published | Supreme Court of Georgia | Feb 15, 1989 | 258 Ga. 873, 29 ERC (BNA) 1703

...OCGA § 12-8-66 (d) provides: *875 An application for a permit shall include a demonstration of financial responsibility including, but not limited to, guarantees, liability insurance, the posting of bonds, or any combination of guarantees, liability insurance, or bonds in accordance with Code Section 12-8-68, which financial responsibility shall be related to the type and size of facility. [Emphasis supplied.] This provision requires a permit applicant to demonstrate financial responsibility. The italicized clause does not refer to the EPD director's responsibility, but rather to the applicant's responsibility. OCGA § 12-8-68 (b), which does refer to the director's responsibility, states: ... The director is authorized to establish the financial responsibility requirements for permit applicants and classes of permit applicants, including the establishment of a range of monetary amounts. OCGA § 12-8-68 (c) then provides that "[t]he board may adopt rules and regulations ......
...l hazardous waste facilities. Indeed, if the director is obligated at all, he is to exercise his discretion in a manner consistent with the federal Act and such criteria as the board shall establish. OCGA §§ 12-8-62 (5); 12-8-65 (a) (16) and (21); 12-8-68 (c)....
...Indeed, the regulations specifically so state. 40 CFR § 265.147 (b). The fact that the director chose not to lower financial responsibility limits for Union or larger facilities in the midst of an "insurance crisis," simply represents an exercise of discretion entrusted to him by OCGA § 12-8-68 (b)....