(1)
Notices of private property instruments. This Rule applies to the
owner of any property that is included in a site which is listed on the
Hazardous Site Inventory and which has been designated as needing corrective
action pursuant to Rule
391-3-19-.06(6).
The requirements of this paragraph do not apply to the owner of any property at
the site where the Director concurs with a demonstration that the property
complies, independently of other properties at the site, with either Type 1 or
Type 2 risk reduction standards.
(a) From and
after the date any owner receives written notice from the Director under Rule
391-3-19-.06(6)(d)
that property of such owner that is listed on Hazardous Site Inventory has been
designated as needing corrective action, the owner of any such property shall
include the following notice in any warranty deed, mortgage, security deed,
lease, rental agreement, or other instrument that is thereafter given or caused
to be given by the property owner which creates an interest in or grants a use
of the property:
"This property has been listed on the state's
hazardous site inventory and has been designated as needing corrective action
due to the presence of hazardous wastes, hazardous constituents, or hazardous
substances regulated under state law. Contact the property owner or the Georgia
Environmental Protection Division for further information concerning this
property. This notice is provided in compliance with the Georgia Hazardous Site
Response Act."
[Note: The term "instrument that is thereafter given or
caused to be given by the property owner which creates an interest in or grants
a use of the property" does not include options or contracts to purchase real
property.]
(2)
Affidavit in
county deed records. No later than forty five (45) days from the date
the Director issues the written notice pursuant to Rule
391-3-19-.06(6)(d)
that a property or part thereof listed on the Hazardous Site Inventory has been
designated as needing corrective action, the owner of any such property shall
cause to be prepared an affidavit of such fact in recordable form as set forth
in O.C.G.A. §
44-2-20 and shall file such
affidavit with the clerk of the superior court of each county in which the real
property or any part thereof lies. Such affidavit shall be recorded in the
clerk's deed records pursuant to O.C.G.A. §
44-2-20. Such affidavit shall
include the statement provided in Rule
391-3-19-.08(1).
The requirements of this paragraph do not apply to the owner of any property
where the Director concurs with a demonstration that the property complies,
independently of other properties at the site, with either Type 1 or Type 2
risk reduction standards.
(3)
Petitions for hearing. The notices required by Rule
391-3-19-.08(1) and
(2) shall be stayed if the property owner
files a petition for a hearing in accordance with O.C.G.A. Section
12-8-73 within thirty (30) days of
the date the Director issues the written notice pursuant to Rule
391-3-19-.06(6)(d)
that the site upon which the property is located needs corrective
action.
(4)
Documentation of
property notices. Within thirty (30) days after the recorded affidavit
required by Rule
391-3-19-.08(2) is
returned by the county clerk to the property owner, the property owner shall
submit a copy of such recorded affidavit to EPD.
(5)
Director's affidavit in county deed
records. Where ownership or control of any real property at a site
subject to Rule
391-3-19-.08(1) and
(2) is involuntarily acquired by a unit of
state or local government through bankruptcy, tax delinquency, abandonment, or
other circumstances in which the government involuntarily acquires title by
virtue of its function as sovereign, the Director shall give thirty (30) days
notice to any person who owned, operated, or otherwise controlled activities at
the property immediately beforehand that the property is subject to the
requirements of Rule
391-3-19-.08 and that, barring said
person's contest under Rule
391-3-19-.08(3),
the Director shall prepare and file the notice referenced in Rule
391-3-19-.08(2).
(6)
Subsequent affidavits. If,
subsequent to the filing of the initial affidavit referenced in Rule
391-3-19-.08(2),
the Director determines that no further action is needed, and the property is
removed from the Hazardous Site Inventory pursuant to Rule
391-3-19-.05(4),
the Director shall notify the property owner in writing of such determination
whereupon the property owner may file an additional affidavit with the clerk of
superior court attaching a copy of such determination, which shall be
restricted to the following declaration:
"This property was listed on the state's hazardous
site inventory (HSI) and was designated as needing corrective action. The
property has since been determined to meet the delisting requirements of
Section 391-3-19-.05(4) of
the Rules for Hazardous Site Response, and it has been removed from the HSI. A
copy of the determination is attached hereto, and no further action is required
except as noted to maintain compliance. The notice requirements of O.C.G.A.
§
12-8-97 no longer apply to this
property and prior notices given under this code section are no longer in
effect. The property owner or the Georgia Environmental Protection Division may
be contacted for further information concerning this property. This notice is
provided in compliance with the Georgia Hazardous Site Response
Act."
(7)
Environmental covenants. The owner of any property at which Type
3, 4 or 5 risk reduction standards of Rule
391-3-19-.07(8),
(9), or 10) are being used shall, upon the
request of the Director, execute an environmental covenant for such property as
provided for in O.C.G.A. §
44-16-1 et seq. The covenant shall
be recorded with the clerk of superior court for the county in which the
property is located, and a copy shall be provided to any zoning or land use
planning authority that has jurisdiction over the property. Such restrictions
shall run with the land and be binding on the owner's successors and assigns.
(a) If the Director determines subsequent to
the execution and recording of the covenant that the property is in compliance
with Type 1 or 2, risk reduction standards and removes the property from the
Hazardous Site Inventory, the Director shall so notify the property owner
whereupon the covenant may be terminated.
(b) The covenant may include, but not
necessarily be limited to, provisions to accomplish the following:
1. Prohibit activities on the property that
may substantially interfere with a remedial action, operation and maintenance,
long-term monitoring, or other measures necessary to ensure the integrity of
the remedial action.
2. Prohibit
activities that may result in human exposures above those specified for
residential scenarios in Rule
391-3-19-.07(6) and
(7) or for nonresidential scenarios at Rule
391-3-19-.07(8) and
(9), whichever scenario is applicable, and
activities that would result in the release of a regulated substance which has
been remedied in accordance with Rule
391-3-19-.07(10).
3. Allow the Director to enforce the
restrictions set forth in the covenant by legal action in a court of
appropriate jurisdiction.
4.
Require the installation and maintenance of a permanent marker that denotes a
Type 5 restriction.
5. Describe
uses of the property that are prohibited.
Notes
Ga. Comp. R.
& Regs. R.
391-3-19-.08
O.C.G.A. §
12-8-90 et
seq.
Original
Rule entitled "Property Notices" adopted. F. Jul. 1,
1994; eff. July 21,
1994.
Amended: F. Nov. 25,
2009; eff. Dec. 15,
2009.
Amended: F. Sep. 24,
2014; eff. Oct. 14,
2014.
Amended: F. Sep. 5,
2018; eff. Sept. 25,
2018.
