1. (a) Affiliates means persons who have one or more of the following relationships with each other:

   1. (1) Familial relationship.
   2. (2) Fiduciary relationship.
   3. (3) A relationship of direct or indirect control or shared interests.

2. (b) Affiliates include any of the following:

   1. (1) Parent corporation and subsidiary.
   2. (2) Subsidiaries that are owned by the same parent corporation.
   3. (3) Business entities involved in a reorganization, as defined in section 181 of the Corporations Code.
   4. (4) Corporate officer and corporation.
   5. (5) Shareholder that owns a controlling block of voting stock and the corporation.
   6. (6) Partner and the partnership.
   7. (7) Member and a limited liability company.
   8. (8) Franchiser and franchisee.
   9. (9) Settlor, trustee, and beneficiary of a trust.
   10. (10) Debtor and bankruptcy trustee or debtor-in-possession.

   11. (11) Principal and agent.

       “Applicant” means a person who files an application to the Orphan Site Cleanup Fund.

       “Causes or contributes to an unauthorized release” means any of the following:

3. (a) Operate the underground storage tank.

4. (b) Own the underground storage tank from which the unauthorized release originated unless:

   1. (1) The unauthorized release began before the applicant became the owner of the underground storage tank, and the applicant properly removed, closed, or permitted the underground storage tank within a reasonable period of time from when the applicant became the owner of the underground storage tank; or
   2. (2) The applicant acquired real property on which an underground storage tank is situated and, despite the exercise of reasonable diligence, was unaware of the existence of the underground storage tank when the real property was acquired, the applicant properly removed, closed, or permitted the underground storage tank within a reasonable period of time from when the applicant should have become aware of the existence of the underground storage tank, and the unauthorized release began before the applicant closed or permitted the underground storage tank.

5. (c) Exacerbate the effects of the unauthorized release.

   “Economic activity” means a governmental activity, a commercial, agricultural, industrial, or not-for-profit enterprise, or other economic or business concern.

   “Eligible site” means a site that meets all of the following requirements:

6. (a) Petroleum contamination is the principal source of contamination at the site.
7. (b) The source of the petroleum contamination is, or was, an underground storage tank.

8. (c) The site meets all of the following requirements:

   1. (1) The site is located in an urban area.
   2. (2) The site was previously the site of an economic activity that is no longer in operation at that location.
   3. (3) The site has been vacant or has had no occupant engaged in year-round economically productive activities for a period of not less than the 12 months previous to the date of application pursuant to this article.
9. (d) The site is not listed, or proposed for listing, on the National Priorities List pursuant to section 105(a)(8)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Sec. 9601 et seq.).
10. (e) The site is not and was not owned or operated by a department, agency, or instrumentality of the United States.

11. (f) The site will not be the site of a contiguous expansion or improvement of an operating industrial or commercial facility, unless the site meets the requirements of subdivision (c) of “eligible site” and is the site of a contiguous expansion of an operating industrial or commercial facility owned or operated by one of the following:

    1. (1) A small business.
    2. (2) A nonprofit corporation formed under the Nonprofit Public Benefit Corporation Law (part 2 (commencing with section 5110) of division 2 of title 1 of the Corporations Code) or the Nonprofit Religious Corporation Law (part 4 (commencing with section 9110) of division 2 of title 1 of the Corporations Code).

    3. (3) A small business incubator that is undertaking the expansion with the assistance of a grant authorized by section 15339.3 of the Government Code or a loan guarantee provided pursuant to section 14090 of the Corporations Code.

       “Familial relationship” means relationships between family members, including, and limited to, a husband, wife, child, stepchild, parent, grandparent, grandchild, brother, sister, stepbrother, stepsister, stepmother, stepfather, mother-in-law, father-in-law, brother-in-law, sister-in-law, daughter-in-law, son-in-law, and, if related by blood, uncle, aunt, niece, or nephew.

       “Independent consultant and contractor” means a consultant or contractor that meets the following requirements:

12. (a) The consultant or contractor is not an employee of, general or limited partner or a shareholder in, or does not have any other ownership or management interest in the applicant, an identified responsible party, or a prospective buyer of the eligible site; and

13. (b) Within twelve months before the application is submitted to the Orphan Site Cleanup Fund, the consultant or contractor does not receive any source of income from the applicant, an identified responsible party, or a prospective buyer of the eligible site, other than the payment of fees for professional services unless the consultant or contractor is acting in his or her capacity as an employee of a governmental entity.

    “Infill development” means development or redevelopment of vacant or underutilized properties within established urban communities, where those communities are already served with streets, water, sewer and other public services.

    “No longer in operation” means an economic activity that is, or previously was, located on a property that is not conducting operations on the property of the type usually associated with the economic activity.

    “Operation and maintenance” means activities initiated or continued at a site following completion of a response action that are deemed necessary by a regulatory agency to protect public health or safety or the environment, to maintain the effectiveness of the response action at the site, or to achieve or maintain the response action standards and objectives established by the final remedial action plan or final removal action workplan applicable to the site.

    “Orphan Site Cleanup Fund” means the Underground Storage Tank Petroleum Contamination Orphan Site Cleanup Fund created pursuant to section 25299.50.2 of the Health and Safety Code.

    “Person” means an individual, trust, firm, joint stock company, corporation, or other entity, including a government corporation, partnership, limited liability company, or association. The term includes a public agency.

    “Project” means any response action and the planned future development of the eligible site.

    “Public agency” means any county, city and county, city, regional agency, public district, or other political subdivision and includes a redevelopment agency. The term does not include the state or any agency or department thereof, or the federal government.

    “Remedy” or “remedial action” means those actions consistent with a permanent remedy that are taken instead of, or in addition to, removal actions in the event of an unauthorized release or threatened release of petroleum into the environment, as further defined by section 101(24) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.). The term includes actions that are necessary to monitor, assess, and evaluate an unauthorized release or a threatened unauthorized release and site operation and maintenance.

    “Remove” or “removal” means the cleanup or removal of an unauthorized release from the environment or the taking of other actions as may be necessary to prevent, minimize, or mitigate damage that may otherwise result from an unauthorized release or a threatened unauthorized release, as further defined by section 101(23) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).

    “Response actions” means removal actions and remedial actions, and includes corrective action as defined in section 25299.14 of the Health and Safety Code.

14. (a) Costs of response actions also include:

    1. (1) Professional fees and costs that are directly related to removal actions and remedial actions.
    2. (2) Costs of supervision by an applicant of response actions.
    3. (3) Costs of underground storage tank system removal if there is an unauthorized release or threat of unauthorized release.

15. (b) Costs of response actions exclude, among other costs:

    1. (1) Costs of environmental audits or pre-purchase site investigations, unless performed in response to an unauthorized release or threatened unauthorized release.

    2. (2) Economic losses and damages, including damages for lost business and diminution in property value.

       “Responsible party” means a responsible party as defined in California Code of Regulations, title 23, chapter 16, section 2720.

       “Small business” means:

16. (a) An independently owned and operated business, that is not dominant in its field of operation, that, together with its affiliates, as described in California Code of Regulations, title 2, chapter 3, section 1896.12, has 100 or fewer employees, and that has average annual gross receipts of $10,000,000 or less over the previous three years; or

17. (b) A business that is a manufacturer with 100 or fewer employees. A manufacturer is a business that is:

    1. (1) Primarily engaged in the chemical or mechanical transformation of raw materials or processed substances into new products; and

    2. (2) Classified between Codes 2000 to 3999, inclusive, of the Standard Industrial Classification (SIC) Manual published by the United States Office of Management and Budget, 1987 edition. The SIC Manual is accessible at the following website maintained by the California Department of General Services: http://www.pd.dgs.ca.gov/smbus/default.htm.

       “Urban area” means the central portion of a city or a group of contiguous cities with a population of 50,000 or more, together with adjacent densely populated areas having a population density of at least 1,000 persons per square mile.

Unless the context clearly requires otherwise, the terms used in this article shall have the following meanings:

“Affiliates”

Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25281, 25296.10, 25299.11, 25299.25, 25299.50.2, 25318.5, 25322, 25323, 25323.3, 25395.20(a)(2)(A), 25395.20(a)(2)(B), 25395.20(a)(5), 25395.20(a)(6)(C), 25395.20(a)(12), 25395.20(a)(15) and 25396.20(a)(19), Health and Safety Code; and 42 USC 9601, Sections (23)-(25).

History

1. New article 7 (sections 2814.20-2814.37) and new section filed 11-28-2005 as an emergency; operative 11-28-2005 (Register 2005, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-28-2006 or emergency language will be repealed by operation of law on the following day.

2. New article 7 (sections 2814.20-2814.37) and section refiled 3-22-2006 as an emergency; operative 3-28-2006 (Register 2006, No. 12). A Certificate of Compliance must be transmitted to OAL by 7-26-2006 or emergency language will be repealed by operation of law on the following day.

3. Certificate of Compliance as to 3-22-2006 order, including amendment of definitions of “Causes or contributes to an unauthorized release” and “Small business,” transmitted to OAL 6-12-2006 and filed 7-25-2006 (Register 2006, No. 30).

4. Repealer and new article 7 (sections 2814.20-2814.37) and section filed 9-16-2009; operative 10-16-2009 (Register 2009, No. 38).