(s) "Nature and Extent of Contamination" is the medium-specific, 3 dimensional, physical
demarcation determined by the Department which depicts wherever the hazardous substance or
substances have come to be located.
(1) In most instances, this volume is determined by comparing background physicochemical conditions to the physico-chemical conditions in the vicinity of the alleged
release.
(t) “Operating a facility primarily to protect a security interest” occurs when all of the following are
met:
(1) Operating the facility where the borrower has defaulted on the loan or otherwise
breached the security agreement;
(2) Operating the facility to preserve the value of the facility as an ongoing business;
(3) The operation is being done in anticipation of a sale, transfer, or assignment of the
facility; and
(4) The operation is being done primarily to protect a security interest. Operating a facility
for longer than 1 year prior to foreclosure or its equivalents shall be presumed to be
operating the facility for other than to protect a security interest.
(u) “Owner or operator” means:
(1) Any person with any ownership interest in the facility or who exercises any control over
the facility; or
(2) In the case of an abandoned facility, any person who had owned, or operated, or
exercised control over the facility any time before its abandonment;
(3) The term does not include:
A. The Tribe or any Tribal instrumentality which acquired ownership or control
involuntarily through bankruptcy, tax delinquency, abandonment, or
circumstances in which the Tribe or Tribal instrumentality involuntarily acquires
title.
i. This exclusion does not apply to an instrumentality of the Tribe which is
subject to a waiver of sovereign immunity, which has caused or
contributed to the release or threatened release of a hazardous
substance from the facility;
B. A person who, without participating in the management of a facility, holds
indicia of ownership primarily to protect the person’s security interest in the
facility. Holders after foreclosure and its equivalent and holders who engage in
any of the activities identified in Sections 34-1.03(v)(1)(E)-(G) shall not lose this
exemption provided the holder complies with all of the following:
i. The holder properly maintains the environmental compliance measures
already in place at the facility;
ii. The holder complies with the reporting requirements in the rules
adopted under this Chapter;
iii. The holder complies with any order issued to the holder by the
Department to abate an imminent or substantial endangerment;
iv. The holder allows the Department or potentially liable persons under an
order, agreed order, or settlement agreement under this Chapter access
to the facility to conduct remedial actions and does not impede the
conduct of such remedial actions;
v. Any remedial actions conducted by the holder are in compliance with
any preexisting requirements identified by the Department, or, if the
Department has not identified such requirements for the facility, the
remedial actions are conducted consistent with this Chapter; and
vi. The holder does not exacerbate an existing release.
C. The exemption in 34-1.03(u)(3)(B) does not apply to holders who cause or
contribute to a new release or threatened release or who are otherwise liable
under s 34-1.05(a)(2)-(5); provided, however, that a holder shall not lose this
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Revised Spokane Law & Order Code, 5/14/2013