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Section 25395.102 Of Article 7. Bona Fide Ground Tenant Immunity From California Health And Safety Code >> Division 20. >> Chapter 6.82. >> Article 7.
25395.102
. (a) Except as otherwise provided in this article, the
definitions in Article 2 (commencing with Section 25395.63) and
Article 6 (commencing with Section 25395.90) shall govern the
interpretation of this article.
(b) "Bona fide ground tenant" means a person who establishes by a preponderance of evidence and maintains all of the following:
(1) The person acquires a nonfee interest in, and control of, the real property at a site on or after January 1, 2007, pursuant to one of the following:
(A) A ground lease with a term of 25 years or more.
(B) An easement with a term of 25 years or more.
(C) Any other legal means for site access and use that provides for a term of 25 years or more, and is acceptable to the agency entering into an agreement pursuant to this article.
(2) The person is in compliance with subdivisions (c), (d), (e), and (f) of Section 25395.80.
(3) All releases of hazardous materials at the site occurred before the person obtained legal access to and control over the site, except for a release that is of a type, nature or amount that does not require reporting to a regulatory authority pursuant to applicable law or other applicable statutory or regulatory reporting requirements and for which the agency determines all appropriate actions have been taken.
(4) The person did not cause or contribute to a release of hazardous materials at the site, other than a release that is of a type, nature or amount that does not require reporting to a regulatory authority pursuant to applicable law or other applicable statutory or regulatory reporting requirements.
(5) (A) The person has contractually agreed with one or more persons or entities set forth in subdivision (a) of Section 25395.103 that either of the following revenue sources be dedicated to, or pledged to secure a loan the proceeds of which are dedicated to, implementation of the response plan approved pursuant to this article:
(i) All payments by that person to the site owner, at least until such time as a response plan has been approved by the agency and the agency has determined that something less than all of the payments are sufficient to implement the response plan.
(ii) Any alternate assets or revenue streams that are acceptable to the agency.
(B) To ensure that the revenue stream required by subparagraph (A) remains available to implement the response plan approved pursuant to this article, the person may utilize an Internal Revenue Code Section 468B settlement trust or other acceptable security mechanism that allows the agency to utilize the earmarked funds to complete the cleanup if there is a default by a party that is contractually obligated to implement the response plan pursuant to an agreement under this article. Agreements pursuant to this article shall permit subordination of the security mechanism to permit financing for site cleanup.
(6) The person is not potentially liable, or affiliated with a person who is potentially liable, for the release at issue through any of the following circumstances:
(A) A direct or indirect familial relationship.
(B) A contractual, corporate, or financial relationship, unless the contractual, corporate, or financial relationship is created by the instruments by which the person obtains control and implements the development of the site, or is created by a contract for the sale of goods or services.
(C) The result of a reorganization of a business entity that was potentially liable for the hazardous substances at issue.
(c) For the purpose of this article, "release" does not include passive migration.
(d) "Site" shall have the definition set forth in Section 25395.79.2, except that the exclusion for petroleum sites set forth in paragraph (3) of subdivision (b) of that section shall not apply.
(b) "Bona fide ground tenant" means a person who establishes by a preponderance of evidence and maintains all of the following:
(1) The person acquires a nonfee interest in, and control of, the real property at a site on or after January 1, 2007, pursuant to one of the following:
(A) A ground lease with a term of 25 years or more.
(B) An easement with a term of 25 years or more.
(C) Any other legal means for site access and use that provides for a term of 25 years or more, and is acceptable to the agency entering into an agreement pursuant to this article.
(2) The person is in compliance with subdivisions (c), (d), (e), and (f) of Section 25395.80.
(3) All releases of hazardous materials at the site occurred before the person obtained legal access to and control over the site, except for a release that is of a type, nature or amount that does not require reporting to a regulatory authority pursuant to applicable law or other applicable statutory or regulatory reporting requirements and for which the agency determines all appropriate actions have been taken.
(4) The person did not cause or contribute to a release of hazardous materials at the site, other than a release that is of a type, nature or amount that does not require reporting to a regulatory authority pursuant to applicable law or other applicable statutory or regulatory reporting requirements.
(5) (A) The person has contractually agreed with one or more persons or entities set forth in subdivision (a) of Section 25395.103 that either of the following revenue sources be dedicated to, or pledged to secure a loan the proceeds of which are dedicated to, implementation of the response plan approved pursuant to this article:
(i) All payments by that person to the site owner, at least until such time as a response plan has been approved by the agency and the agency has determined that something less than all of the payments are sufficient to implement the response plan.
(ii) Any alternate assets or revenue streams that are acceptable to the agency.
(B) To ensure that the revenue stream required by subparagraph (A) remains available to implement the response plan approved pursuant to this article, the person may utilize an Internal Revenue Code Section 468B settlement trust or other acceptable security mechanism that allows the agency to utilize the earmarked funds to complete the cleanup if there is a default by a party that is contractually obligated to implement the response plan pursuant to an agreement under this article. Agreements pursuant to this article shall permit subordination of the security mechanism to permit financing for site cleanup.
(6) The person is not potentially liable, or affiliated with a person who is potentially liable, for the release at issue through any of the following circumstances:
(A) A direct or indirect familial relationship.
(B) A contractual, corporate, or financial relationship, unless the contractual, corporate, or financial relationship is created by the instruments by which the person obtains control and implements the development of the site, or is created by a contract for the sale of goods or services.
(C) The result of a reorganization of a business entity that was potentially liable for the hazardous substances at issue.
(c) For the purpose of this article, "release" does not include passive migration.
(d) "Site" shall have the definition set forth in Section 25395.79.2, except that the exclusion for petroleum sites set forth in paragraph (3) of subdivision (b) of that section shall not apply.
