Section 12-8-95. Hazardous waste trust fund

   (a) There shall continue in existence the hazardous waste trust fund. The hazardous waste trust fund shall be funded in accordance with subsection (b) of Code Section 12-8-91. All moneys deposited in the fund shall be deemed expended and contractually obligated and shall not lapse to the general fund. The director shall serve as trustee of the hazardous waste trust fund.

(b) The moneys deposited in the hazardous waste trust fund may be expended by the director as follows:

   (1) For activities associated with the investigation, detoxification, removal, and disposal of any hazardous wastes, hazardous constituents, or hazardous substances at sites where corrective action is necessary to mitigate a present or future danger to human health or the environment;

   (2) For emergency actions the director considers necessary to protect public health, safety, or the environment whenever there is a release of hazardous wastes, hazardous constituents, or hazardous substances;

   (3) For activities of the division associated with the administration of this part, including reviewing and overseeing investigations, corrective action, and other actions by federal agencies required under this article and supporting the reduction of hazardous waste and pollution prevention activities by federal agencies;

   (4) In accordance with rules promulgated by the board, for financing of the state and local share of the costs associated with the investigation, remediation, and postclosure care and maintenance of sites placed on the National Priority List pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, or sites placed on the hazardous site inventory pursuant to Code Section 12-8-97; provided, however, that the director shall ensure that beginning July 1, 2003, and annually in each following year, an amount equal to at least one-half of the sum of annual collections made pursuant to subsection (e) of Code Section 12-8-39 and appropriated to the department in accordance with subsection (b) of Code Section 12-8-91 shall be available to be used for the purposes of this paragraph; provided, further, that if a county or municipal corporation has been or is the owner of or operator of such site, not less than $500,000 of such costs shall be paid from the hazardous waste trust fund; and

   (5) For activities administered by the director associated with pollution prevention, including reduction of hazardous wastes generated in this state.

(c) The director may require the demonstration of financial responsibility as a condition of an order requiring corrective action for the release of hazardous wastes, hazardous constituents, or hazardous substances.

(d) If the director determines that corrective action has not been carried out as required by a condition of an order of the director to the reasonable 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 the hazardous waste trust fund.

(e) In any case where a person is in bankruptcy, reorganization, or other 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 a person 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 person 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.

(f) 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 subsection shall be construed to limit any other state or federal statutory, contractual, or common-law liability of a guarantor to a person 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, as amended, or any other applicable law.

Code 1981, § 12-8-95, enacted by Ga. L. 1992, p. 2234, § 5; Ga. L. 2002, p. 415, § 12; Ga. L. 2002, p. 927, § 3; Ga. L. 2004, p. 631, § 12; Ga. L. 2013, p. 856, § 3/HB 276.