Section 12-13-11. Corrective action for release of petroleum product into environment

   (a) Whenever the director has reason to believe that there is or has been a release of a petroleum product into the environment from an underground tank, regardless of the time at which storage of such material occurred, and has reason to believe that such release poses a danger to health or the environment, the director shall obtain corrective action for such release from any current owner or operator or from any past owner or operator who has contributed to such release, either individually or jointly. Such corrective action shall be performed in accordance with a plan approved by the director.

(b) If the tank owner or operator is unable, as determined by the director, to perform corrective action as provided for in subsection (a) of this Code section, the director may undertake preventive or corrective actions utilizing funds from the Underground Storage Tank Trust Fund.

(b.1) The owner or operator of an underground storage tank shall be liable for all costs of preventive, corrective, and enforcement actions incurred by the State of Georgia as a result of a release or a substantial threat of release of a petroleum product from an underground storage tank unless the owner or operator, or both, are participants in the Underground Storage Tank Trust Fund and enter into a consent agreement with the state. In such consent agreement, at a minimum, the owner or operator, or both, must agree that:

   (1) Whenever costs have been incurred by the director pursuant to this subsection for taking corrective or enforcement action, the owner or operator shall be liable for the first $10,000.00 per occurrence for corrective action, such funds to be paid into the Underground Storage Tank Trust Fund within 90 days of notice by the director;

   (2) The State of Georgia and the Underground Storage Tank Trust Fund are relieved of all liability for loss of business, damages, and taking of property associated with the corrective action;

   (3) The division or its contractors may enter upon the property of the owner or operator or the real property where the underground storage tank of the owner or operator is located if the real property owner and the underground storage tank owner or operator are not the same person, at such time and in such manner as deemed necessary to effectuate corrective action to protect health and the environment, such right-of-entry by the division or its contractors being implied by the willingness of the real property owner to allow the underground storage tank of the owner or operator to be placed on the real property of the real property owner;

   (4) The owner or operator shall be fully responsible for replacement or retrofitting or both of leaking tanks and associated piping or shall allow division contractors to refill excavated areas resulting from removal of leaking tanks and associated piping with clean earth to its original elevation;

   (5) The liability of the state and the state Underground Storage Tank Trust Fund shall not exceed $1 million per occurrence; and

   (6) Such other provisions as are deemed appropriate by the board to ensure adequate protection of health and the environment.

(c) To encourage voluntary corrective action, an owner or operator conducting corrective action under this chapter and participating in the Underground Storage Tank Trust Fund, either through the owner's or operator's own personnel or through response action contractors or subcontractors, is entitled, as evidenced by an executed corrective action agreement with the division, to reimbursement of reasonable cost from the trust fund, subject to the following provisions:

   (1) Prior to initiating such corrective action, the owner or operator must submit to and receive approval from the division of the proposed corrective action plan, together with projected costs of the corrective action, and once approved the owner or operator shall not substantially deviate from the approved costs and corrective actions without the prior approval of the division;

   (2) The owner or operator or the owner's or operator's agents shall keep and preserve suitable records demonstrating compliance with the approved corrective action plan and all invoices and financial records associated with costs for which reimbursement will be requested;

   (3) Upon receipt of a complete corrective action plan, the director shall make a determination and provide written notice as to whether the owner or operator responsible for corrective action is eligible or ineligible for reimbursement of costs. Should the director determine the owner or operator is ineligible, he or she shall include in his or her written notice an explanation setting forth in detail the reasons for the determination;

   (4) The owner or operator shall submit to the director a written notice that corrective action has been completed within 30 days of completing corrective action;

   (5) No later than 30 days from the submission of the notice as required by paragraph (4) of this subsection, the owner or operator must submit an application for reimbursement of costs in accordance with criteria established by the director. The application for reimbursement must include the total amount of the corrective action and the amount of reimbursement sought;

   (6) The first $10,000.00 of eligible costs incurred by the owner or operator are not eligible for reimbursement from the trust fund nor are costs for replacement or retrofitting of leaking tanks and associated piping; and

   (7) No costs may be reimbursed to the owner or operator until such time as corrective action has been completed in accordance with the plan approved by the division; provided, however, that interim payments may be made if the corrective action is being conducted in accordance with a plan approved by the division which allows interim payments.

(d) Notwithstanding the provisions of subsections (b), (b.1), and (c) of this Code section, should the division find that any of the following situations exist, the owner or operator, or both, shall be liable for 100 percent of costs associated with preventive, corrective, or enforcement actions necessary to protect health or the environment:

   (1) The release was due to willful or negligent actions by the owner or operator;

   (2) The owner or operator is in arrears for moneys owed to the Underground Storage Tank Trust Fund;

   (3) The owner or operator moves in any way to obstruct the efforts of the division or its contractors to effectuate corrective action; or

   (4) The owner or operator of a petroleum product underground tank has stored a petroleum product, after July 1, 1988, in such tank which has not been subjected to the environmental assurance fee imposed in subsection (a) of Code Section 12-13-10 and the late participation fee provided for in subsection (c) of Code Section 12-13-10.

(e) Notwithstanding the provisions of subsections (b), (b.1), and (c) of this Code section, should the division find, based upon rules promulgated by the board, that any of the following situations exist, the owner or operator, or both, may be liable for up to 100 percent of costs associated with preventive, corrective, or enforcement actions necessary to protect health or the environment:

   (1) The release is from a tank not registered in accordance with Code Section 12-13-13;

   (2) The owner or operator fails to comply with any provision of the agreement required by subsection (b.1) or (c) of this Code section; or

   (3) The owner or operator has failed to comply with any provisions of this chapter or rules promulgated under this chapter.

(f) If no underground storage tank owner or operator can be found, the director may undertake preventive or corrective actions utilizing funds from the Underground Storage Tank Trust Fund or any appropriate federal funds as provided by the federal act, and any real property owner by virtue of the fact that he or she has allowed these underground storage tanks to exist or be placed on his or her real property shall be deemed to have granted permission to the division or its contractors or agents to enter its real property to investigate and take samples and, when deemed necessary by the director, to effectuate the necessary corrective action to protect health and the environment.

Code 1981, § 12-13-11, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L. 1989, p. 256, § 3; Ga. L. 1994, p. 804, § 6; Ga. L. 1995, p. 10, § 12; Ga. L. 1996, p. 6, § 12.