Section 25395.104 Of Article 7. Bona Fide Ground Tenant Immunity From California Health And Safety Code >> Division 20. >> Chapter 6.82. >> Article 7.
25395.104
. (a) Except as otherwise provided in this section, a bona
fide ground tenant shall qualify for the following immunities:
(1) The bona fide ground tenant shall not be liable under any
applicable statute for a claim made by a person, other than an
agency, for response costs or other relief associated with a release
or threatened release of a hazardous material at the site once the
bona fide ground tenant obtains a certification pursuant to
subdivision (b) or (c) that the immunity provided by this section has
attached.
(2) (A) Except as provided in subparagraph (B), an agency shall
not, subsequent to the date of the agreement, take any action under
any applicable statute to require a bona fide ground tenant to take a
response action on account of a release or threatened release of a
hazardous material at a site.
(B) The agency that entered into the agreement pursuant to this
article may take action under any applicable statute to enforce the
conditions imposed on the bona fide ground tenant pursuant to the
agreement.
(b) Except as provided in subparagraph (B) of paragraph (2) of
subdivision (a), the immunity provided in this section shall attach
to a bona fide ground tenant once the agency certifies in writing
that all of the following have occurred:
(1) A site assessment has been completed sufficient for the agency
to determine the remedial measures necessary to allow the site to be
used for its intended purposes without unreasonable risk to the
human health and safety of the intended site occupants.
(2) Except for site monitoring, reporting, institutional controls,
operation and maintenance activities, and other ongoing obligations
of the bona fide ground tenant, if any, the portion of the site
investigation and the response plan necessary to allow the site to be
used for its intended purposes without unreasonable risk to the
human health and safety of the intended site occupants, including any
confirmation sampling required by the agency to confirm that this
standard has been met, has been implemented to the agency's
satisfaction.
(3) To the extent required in the agreement entered into pursuant
to this article, all wells, piping, extraction systems, or similar
materials or equipment required for the conduct of remediation
efforts to be performed by a person other than the bona fide ground
tenant have either been installed to the agency's satisfaction or
have been accounted for to the agency's satisfaction in site
development plans and specifications.
(4) If applicable, an instrument that restricts or imposes
obligations on the present of future uses or activities on the site
has been executed and recorded pursuant to Section 1471 of the Civil
Code.
(c) A party to an agreement pursuant to this article may request
the agency to issue a written certification confirming that the
conditions stated in subdivision (b) have been met and that the
immunity provided for in this section is in effect. The agency shall
provide this certification within 60 days of the date it finds that
the conditions stated in subdivision (b) have been met.
(d) The agency that issued a certification pursuant to subdivision
(c) may withdraw that certification if it first provides reasonable
notice and opportunity for the bona fide ground tenant to take action
to prevent the withdrawal, and subsequent to the notice and cure
opportunity makes any of the following findings:
(1) A material deviation from those requirements applicable to the
bona fide ground tenant under the agreement entered into pursuant to
this article that has not been approved by the agency exists and
continues to exist subsequent to the notice and cure period.
(2) The bona fide ground tenant induced the agency to issue the
certification by fraud, or intentional nondisclosure or
misrepresentation.
(e) Upon the agency's certification pursuant to subdivision (c),
the immunity provided in this section extends to all of the
following:
(1) The bona fide ground tenant and any successor who demonstrates
to the agency that the person meets the qualifying conditions of
subdivision (b) of Section 25395.102 and subdivisions (c), (d), (e),
and (f) of Section 25395.80 and who assumes the bona fide ground
tenant's obligations of any agreement entered into pursuant to this
article.
(2) A person who provides financing to a person specified in
paragraph (1).
(f) The immunity provided in this section does not extend to, and
may not be transferred to, a person who was a responsible party, as
that term is defined in Section 25323.5 for the release at the site
prior to acquiring an interest in the site from the bona fide ground
tenant or providing financing as specified in paragraph (3) of
subdivision (e).
(g) The immunity provided in this section shall be in addition to
any other immunity provided by law.
(h) This section shall not modify or limit the existing authority
of a state or local agency to impose a condition on the issuance of a
discretionary permit relating to the development, use, or occupancy
of a site.
(i) This section shall not relieve a bona fide ground tenant from
reporting, disclosure, and notification requirements under any
applicable statute.
(j) The entry into an agreement pursuant to this article shall not
constitute an admission of any fact or liability or conclusion of
law for any purpose or proceeding and a person who enters into an
agreement under this article shall not be deemed liable under any
other provision of law solely by reason of entering into the
agreement.
(k) If the use of the property changes, after a response plan is
approved, to a use that requires a higher level of protection, the
agency may require the preparation and implementation of a new
response plan pursuant to this article.
(l) A bona fide ground tenant that purchases a site subsequent to
leasing, or taking an easement in the site, may convert its status to
that of a bona fide purchaser pursuant to Article 6 (commencing with
Section 25395.90) if the bona fide ground tenant otherwise meets the
requirements of Section 25395.69 and Article 6 (commencing with
Section 25395.90). Upon the conversion, the bona fide ground tenant
shall qualify for any and all immunities available to a bona fide
purchaser under this chapter.
(m) If the response plan relies on the use of institutional or
engineering controls to make the site suitable for its intended
purposes without unreasonable risk to the human health and safety of
the intended occupants of the site, the bona fide ground tenant
seeking immunity shall provide any applicable financial assurances,
using financial assurance guidelines and mechanisms approved by a
board, department, or organization of the California Environmental
Protection Agency; periodic reports as required by the agency to
demonstrate that there remains no unreasonable risk to the human
health and safety of the intended occupants. The bona fide ground
tenant shall not make any change in use of the site that is
inconsistent with any land use control recorded for the site unless
the change is approved by the agency pursuant to Sections 25233 and
25234 or, in the case of the board or a regional board, substantially
similar procedures.