§ 27-1323. Liability exemptions and defenses.\n 1. Lender exemption. (a) For purposes of this title no lender shall\nincur any liability from any statutory claims of the state as an owner\nor operator of a site, or a person responsible for the disposal of a\nhazardous waste at such site, provided such lender, without\nparticipating in the management of such site, holds indicia of ownership\nprimarily to protect the lender's security interest in the site or, if\nsuch lender did not participate in the management of such site prior to\na foreclosure on such site, notwithstanding that such lender:\n (1) forecloses on such site; and\n (2) after foreclosure, sells, releases (in the case of a lease finance\ntransaction), or liquidates such site, maintains business activities,\nwinds up operations, or takes any other measure to preserve, protect or\nprepare such site prior to sale or disposition; provided, however, that\nsuch lender shall take actions to sell, release (in the case of a lease\nfinance transaction), or otherwise divest itself of such site at the\nearliest practicable, commercially reasonable time, on commercially\nreasonable terms, taking into account market conditions and legal and\nregulatory requirements.\n (b) This exemption shall not apply to any lender that has caused or\ncontributed to the release or threatened release of a hazardous waste\nfrom or onto the site, or to any lender that generated, transported, or\ndisposed of, arranged for, or that caused the generation,\ntransportation, or disposal of hazardous waste from or onto such site.\n (c) For purposes of this section:\n (1) The term "participating in management" means actually\nparticipating in the management or operational affairs of a site and\ndoes not include merely having the capacity to influence, or the\nunexercised right to control, site operations.\n (i) A lender who holds indicia of ownership primarily to protect a\nsecurity interest in such site shall be considered to participate in\nmanagement only if, while the borrower is in possession of such site\nencumbered by the security interest, the lender:\n (A) exercises decision making control over the environmental\ncompliance related to such site, such that the lender has undertaken\nresponsibility for the hazardous waste handling or disposal practices\nrelated to such site; or\n (B) exercises control at a level comparable to that of a manager of\nsuch site, such that the lender has assumed or manifested\nresponsibility:\n (I) for the overall management of such site encompassing day-to-day\ndecision making with respect to environmental compliance; or\n (II) over all or substantially all of the operational functions,\nexcluding financial or administrative functions, of such site other than\nthe function of environmental compliance.\n (ii) The term "participate in management" does not include:\n (A) Performing an act or failing to act prior to the time at which a\nsecurity interest is created in a site;\n (B) Holding a security interest or abandoning or releasing a security\ninterest;\n (C) Including in the terms of an extension of credit, or in a contract\nor security agreement relating to such extension, a covenant, warranty,\nor other term or condition that relates to environmental compliance;\n (D) Monitoring or enforcing the terms and conditions of the extension\nof credit or security interest;\n (E) Monitoring or undertaking one or more inspections of such site;\n (F) Requiring a response action or other lawful means of addressing\nthe release or threatened release of a hazardous waste in connection\nwith such site prior to, during, or on the expiration of the term of the\nextension of credit;\n (G) Providing financial or other advice or counseling in an effort to\nmitigate, prevent, or cure default or diminution in the value of such\nsite;\n (H) Restructuring, renegotiating, or otherwise agreeing to alter the\nterms and conditions of the extension of credit or security int
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