ii.
The person has not caused or contributed to the release of the
hazardous substance;
iii. The person does not engage in activities that damage or interfere with
the operation of remedial actions installed on the person’s property or
engage in activities that result in exposure of humans or the
environment to the contaminated surface or ground water that has
migrated onto the property;
iv. If requested, the person allows the Department, potentially liable
persons who are subject to an order, agreed order, or consent decree,
and the authorized employees, agents, or contractors of each, access to
the property to conduct remedial actions required by the Department.
The person may attempt to negotiate an access agreement before
allowing access; and
v. Legal withdrawal of surface or ground water does not disqualify a
person from the exemption in Section 34-1.03(u)(3)(D).
(v) “Participation in management” means exercising decision-making control over the borrower’s
operation of the facility, environmental compliance, or assuming or manifesting responsibility for
the overall management of the enterprise encompassing the day-to-day decision making of the
enterprise.
(1) The term does not include any of the following:
A. A holder with the mere capacity or ability to influence, or the unexercised right
to control facility operations;
B. A holder who conducts or requires a borrower to conduct an environmental
audit or an environmental site assessment at the facility for which indicia of
ownership is held;
C. A holder who requires a borrower to come into compliance with any applicable
laws or regulations at the facility for which indicia of ownership is held;
D. A holder who requires a borrower to conduct remedial actions including setting
minimum requirements, but does not otherwise control or manage the
borrower’s remedial actions or the scope of the borrower’s remedial actions
except to prepare a facility for sale, transfer, or assignment;
E. A holder who engages in workout or policing activities primarily to protect the
holders security interest in the facility;
F. A holder who prepares a facility for sale, transfer, or assignment or requires a
borrower to prepare a facility for sale, transfer, or assignment;
G. A holder who operates a facility primarily to protect a security interest or
requires a borrower to continue to operate, a facility primarily to protect a
security interest; and
H. A prospective holder who, as a condition of becoming a holder, requires an
owner or operator to conduct an environmental audit conduct an environmental
site assessment, come into compliance with any applicable laws or regulations,
or conduct remedial actions prior to holding a security interest is not
participating in the management of the facility.
(w) “Person” means an individual, firm, corporation, association, partnership, consortium, joint
venture, commercial entity, state government agency, unit of local government, federal
government agency or a Tribal instrumentality subject to a waiver of sovereign immunity.
(x) “Policing activities” means actions the holder takes to insure that the borrower complies with the
terms of the loan or security interest or actions the holder takes or requires the borrower to take
to maintain the value of the security.
(1) Policing activities include: Requiring the borrower to conduct remedial actions at the
facility during the term of the security interest; requiring the borrower to comply or
come into compliance with applicable Tribal, federal, state, and local environmental and
other laws, regulations, and permits during the term of the security interest; securing or
exercising authority to monitor or inspect the facility including on-site inspections, or to
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Revised Spokane Law & Order Code, 5/14/2013