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

   (a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) 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.