Section 12-13-9. Establishing financial responsibility; claims against guarantor; Underground Storage Tank Trust Fund

   (a) The board shall promulgate regulations containing requirements for maintaining evidence of financial responsibility as deemed necessary and desirable for taking corrective action and for compensation of third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operating an underground storage tank.

(b) Financial responsibility required by this Code section may be established in accordance with regulations promulgated by the board by any one or combination of the following: insurance, guarantee, surety bond, letter of credit, qualification as a self-insurer, or any other method satisfactory to the board. In promulgating requirements under this Code section, the board is authorized to specify policy or other contractual terms, conditions, or defenses which are necessary or are acceptable in establishing such evidence of financial responsibility in order to effectuate the purposes of this chapter and comply with financial responsibility requirements.

(c) Financial responsibility programs established pursuant to this chapter and administered by the division may be submitted as evidence of financial responsibility required under this chapter.

(d) 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 the federal courts 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 would have been available to the guarantor if any action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.

(e) 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 Code section. Nothing in this Code section 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 Code section shall be construed to diminish the liability of any person under Sections 107 and 111 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as amended by P.L. 99-499, 1986.

(f) There is hereby established the Underground Storage Tank Trust Fund. The director shall serve as trustee of this fund. The principal of the moneys deposited in such fund pursuant to Code Section 12-13-10 may be expended by the director for the following purposes:

   (1) To take whatever emergency action is necessary or appropriate to assure that the public health or safety is not threatened whenever there is a release or substantial threat of a release of regulated substances from an underground storage tank;

   (2) To take preventive or corrective actions where the release of the regulated substances presents an actual or potential threat to human health or the environment where the owner or operator has not been identified or is unable, as determined by the director, to perform corrective action, including but not limited to, provisions for providing alternative water supplies;

   (3) To provide compensation for third-party liabilities; provided, however, that any such expenditure shall be subject to the following limitations:

      (A) A property owner shall not be considered a third party if the property was transferred by the owner or operator of an underground storage tank in anticipation of damage due to a release;

      (B) Third-party liability property damage shall be reimbursed from the Underground Storage Tank Trust Fund based on the rental costs of comparable property during the period of loss of use up to a maximum amount equal to the fair market value. In the case of property that is actually destroyed as a result of a petroleum release, reimbursement shall be an amount necessary to replace or repair the destroyed property, whichever is less; and

      (C) Payments for third-party liability damages, as defined in this chapter, shall never exceed the amount of the Underground Storage Tank Trust Fund coverage as provided in this chapter for any owner or operator and shall not include payments for any claims for attorney's fees for third-party claimants or punitive damages or mental anguish;

   (4) To pay for any portion of the administrative cost of administering the Underground Storage Tank Trust Fund which exceeds the amount of interest earned on the corpus of such fund; provided, however, that no more than 10 percent of the fees collected annually pursuant to subsection (a) of Code Section 12-13-10 shall be used for such purpose;

   (5) To provide reimbursements to eligible participating owners and operators who have conducted corrective action;

   (6) To provide payments to state contractors for eligible participating owners and operators who are unable, as determined by the director, to conduct corrective action for petroleum releases from underground storage tanks; and

   (7) To provide repayments for any grant, general appropriation, or bond issue as are authorized by general law which are advanced to the principal of the Underground Storage Tank Trust Fund to accomplish any of the purposes enumerated in paragraphs (1) through (6) of this subsection when the terms of the grant, appropriation, or bond issue require such repayment.

(g) Any interest earned upon the corpus of the Underground Storage Tank Trust Fund shall not become a part thereof but shall be paid over to the division to be utilized by the division for administration of the state Underground Storage Tank Program. Any such funds not expended for this purpose in the fiscal year in which they are generated shall be deposited in the state treasury, provided that nothing in this Code section shall be construed so as to allow the division to retain any funds required by the Constitution of Georgia to be paid into the state treasury; provided, further, that the division shall comply with all provisions of Part 1 of Article 4 of Chapter 12 of Title 45, known as the "Budget Act," except Code Section 45-12-92, prior to expending any such funds.

(h) If any person chooses to make a claim against the fund and accepts payment from the fund, then the state shall be subrogated to any cause of action that the claimant may have to the extent of such payment or judgment. In any such action, the amount of damages shall be proved by the division by submitting to the court a written report of the amounts paid or owed from the fund to claimants. Such written report shall be admissible in evidence and the amounts paid from or owed by the fund to the claimants stated therein shall be presumed to be the amount of the damages.

(i) Notwithstanding any other provisions of law to the contrary, the Underground Storage Tank Trust Fund shall not be considered an insurance company or insurer under the laws of this state.

Code 1981, § 12-13-9, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L. 1989, p. 14, § 12; Ga. L. 1994, p. 804, §§ 3, 4; Ga. L. 1999, p. 658, § 2; Ga. L. 2013, p. 141, § 12/HB 79.