Rule 391-3-19-.08. Property Notices

1. (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.

   1. (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. (b) Rule 391-3-19-.08(1)(a) shall not apply after filing of the affidavit referred to in Rule 391-3-19-.08(6).
2. (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. (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. (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. (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. (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. (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.

   1. (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.

   2. (b) The covenant may include, but not necessarily be limited to, provisions to accomplish the following:

      1. 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. 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. 3. Allow the Director to enforce the restrictions set forth in the covenant by legal action in a court of appropriate jurisdiction.
      4. 4. Require the installation and maintenance of a permanent marker that denotes a Type 5 restriction.
      5. 5. Describe uses of the property that are prohibited.

Authority: O.C.G.A. § 12-8-90 et seq.

History. 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.