exemption if it establishes that any such new release has been remediated
according to the requirements of this Chapter and that any hazardous
substances remaining at the facility after remediation of the new release are
divisible from such new release;
D. A fiduciary in his, her, or its personal or individual capacity.
i. This exemption does not preclude a claim against the assets of the
estate or trust administered by the fiduciary or against a non-employee
agent or independent contractor retained by a fiduciary.
ii. This exemption also does not apply to the extent that a person is liable
under this Chapter independently of the person’s ownership as a
fiduciary or for actions taken in a fiduciary capacity which cause or
contribute to a new release or exacerbate an existing release of
hazardous substances.
iii. This exemption applies provided that, to the extent of the fiduciary’s
powers granted by law or by the applicable governing instrument
granting fiduciary powers, the fiduciary complies with all of the
following:
a. The fiduciary properly maintains the environmental compliance
measures already in place at the facility;
b. The fiduciary complies with the reporting requirements in the
rules adopted under this Chapter;
c. The fiduciary complies with any order issued to the fiduciary by
the Department to abate an imminent or substantial
endangerment;
d. The fiduciary 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;
e. Any remedial actions conducted by the fiduciary 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 the rules adopted under this Chapter; and
f. The fiduciary does not exacerbate an existing release.
E. The exemption in Section 34-1.03(u)(3)(C) does not apply to fiduciaries who
cause or contribute to a new release or threatened release or who are otherwise
liable under Sections 34-1.05(a)(2)-(5); provided however, that a fiduciary shall
not lose this exemption if it establishes that any such new release has been
remediated according to the requirements of this Chapter and that any
hazardous substances remaining at the facility after remediation of the new
release are divisible from such new release.
i. The exemption in Section 34-1.03(u)(3)(C) also does not apply where
the fiduciary’s powers to comply with Section 34-1.03(u)(3)(C) are
limited by a governing instrument created with the objective purpose of
avoiding liability under this Chapter or of avoiding compliance with this
Chapter; or
F. Any person who has any ownership interest in, operates, or exercises control
over real property where a hazardous substance has come to be located solely
as a result of migration of the hazardous substance to the real property through
the surface or ground water from a source off the property, if:
i. The person can demonstrate that the hazardous substance has not
been used, placed, managed, or otherwise handled on the property in a
manner likely to cause or contribute to a release of the hazardous
substance that has migrated onto the property;
270
Revised Spokane Law & Order Code, 5/14/2013