SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Environmental Lender
and Fiduciaries Liability Amendments Act of 1995’’.
SEC. 2. AMENDMENTS TO COMPREHENSIVE ENVIRON-
MENTAL RESPONSE, COMPENSATION, AND LI-
ABILITY ACT OF 1980.
The Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 is amended—
(1) by striking the last sentence of paragraph
101(20)(A); and
(2) by inserting the following new paragraphs
101(20) (E) and (F):
‘‘(E)(i) The term ‘owner or operator’ does
not include a person who, without participating
in the management of a vessel or facility, holds
indicia of ownership primarily to protect his or
her security interest in the vessel or facility.
‘‘(ii) The term ‘indicia of ownership’ means
any legal or equitable interest in property ac-
quired directly or indirectly—
‘‘(I) for the purpose of securing pay-
ment of a loan or indebtedness, a right of
reimbursement or subrogation under a
guaranty, or the performance of another
obligation,
‘‘(II) evidencing ownership under a
lease financing transaction where the les-
sor does not initially select or ordinarily
control the daily operation or maintenance
of the property, or
‘‘(III) in the course of protecting a se-
curity interest or right of reimbursement
or subrogation under a guaranty.
‘Indicia of ownership’ include evidence of inter-
ests in mortgages, deeds of trust, liens, surety
bonds, guaranties, lease financing transactions
where the lessor does not initially select or ordi-
narily control the daily operation or mainte-
nance of the property, other forms of encum-
brances against property recognized under ap-
plicable law as vesting the holder of the security
interest with some indicia of title, legal or equi-
table title obtained at, or in lieu of, foreclosure,
and their equivalents. A person may, but is not
required to, hold title in property in order to
hold indicia of ownership in that property.
‘‘(iii) A ‘holder of a security interest’ is a
person who holds indicia of ownership in prop-
erty primarily to protect a security interest. A
‘holder of a security interest’ includes the initial
holder (such as a loan originator) and any sub-
sequent holder (such as a successor-in-interest
or subsequent purchaser of the security interest
on the secondary market); guarantor; lease fin-
ancier or any successor where the lessor does
not initially select or ordinarily control the daily
operation or maintenance of the property; any
person who holds indicia or ownership primarily
to protect a security interest; or a receiver or
other person who acts on behalf or for the bene-
fit of a holder of a security interest.
‘‘(iv) The term ‘security interest’ means an
interest in property created or established for
the purpose of securing a loan, right of reim-
bursement or subrogation under a guaranty, or
other obligation or constituting a lease financ-
ing transaction. Security interests include mort-
gages, deeds of trust, liens, lease financing
transactions in which the lessor does not ini-
tially select or ordinarily control the daily oper-
ation or maintenance of the property, trust re-
ceipt transactions, and their equivalents. Secu-
rity interests may also arise from transactions
such as sales and leasebacks, conditional sales,
installment sales, certain assignments, factoring
agreements, accounts receivable financing ar-
rangements, and consignments, if the trans-
action creates or establishes an interest in prop-
erty for the purpose of securing a loan, right of
reimbursement or subrogation under a guaranty
or other obligation.
‘‘(v) The term ‘participating in the man-
agement of property’ means actual participation
in the management or operational affairs of the
property by the holder, and does not include the
mere capacity to influence, or ability to influ-
ence, or the unexercised right to control facility
operations. A holder is participating in manage-
ment while the borrower is still in possession of
the property encumbered by the security inter-
est, only if the holder either—
‘‘(I) exercises decisionmaking control
over the borrower’s environmental compli-
ance, such that the holder has undertaken
responsibility for the borrower’s solid waste
handling or disposal practices; or
‘‘(II) exercises control at a level com-
parable to that of a manager of the bor-
rower’s enterprise, such that the holder
has assumed or manifested responsibility
for the overall management of the enter-
prise encompassing the day-to-day deci-
sionmaking of the enterprise with respect
to—
‘‘(aa) environmental compliance;
or
‘‘(bb) all, or substantially all, of
the operational (as opposed to finan-
cial or administrative) aspects of the
enterprise other than environmental
compliance. Operational aspects of the
enterprise include functions such as
that of facility or plant manager, op-
erations manager, chief operating offi-
cer, or chief executive officer. Finan-
cial or administrative aspects include
functions such as that of credit man-
ager, personnel manager, controller,
chief financial officer, or similar func-
tions.
‘‘(vi) The term ‘primarily to protect a se-
curity interest’ includes indicia of ownership ac-
quired as a consequence of having or exercising
rights as a holder of a security interest where
the same is necessary or appropriate to protect
the security interest, to provide for compliance
with laws, to preserve the value of the property
or benefits therefrom, or to recover a loan, in-
debtedness or right of reimbursement or sub-
rogation under a guaranty or to redress any
other obligation secured by such interest or to
recover property subject to a finance lease. A
holder of a security interest who directly or in-
directly acquires full title or a right to title or
possession of such property upon default under
the security interest, or at, or in lieu of, fore-
closure, or, in the case of a finance lease, upon
expiration, cancellation, or termination of such
lease, shall continue to hold indicia of owner-
ship primarily to protect a security interest so
long as such holder is diligently proceeding to
sell or convey title or the right to title or to re-
lease such property on commercially reasonable
terms at the earliest possible time, while pre-
serving the property in the interim.
‘‘(vii) The term ‘property’ means real and
personal property and includes facilities, stor-
age tanks, equipment, vessels, vehicles, and
other modes of transportation whether by sea,
land, or air.
‘‘(viii)(I) The term ‘guarantor’ includes
guarantors and sureties of security interests,
securities, and other obligations, issuers of let-
ters of credit and other credit enhancements,
title insurers, and entities which directly or in-
directly acquire indicia of ownership in the
course of protecting a security interest or acting
as such guarantors, sureties, issuers of letters
of credit or other credit enhancements or title
insurers, and the term ‘guaranty’ includes guar-
anties, surety bonds, title insurance policies, let-
ters of credit and other credit enhancements,
and other agreements with a guarantor relating
to the obligations described in this subclause
(I).
‘‘(II) ‘Directly or indirectly’ includes any
interest in property, security interest, indicia of
ownership title, or right to title held or acquired
by a fiduciary or similar entity for the benefit
of a holder of a security interest.
‘‘(ix) The terms ‘borrower’, ‘debtor’, and
‘obligor’ mean a person whose property is en-
cumbered by a security interest and includes a
lessee under a lease financing transaction.
‘‘(x) Actions taken by a holder of a secu-
rity interest to foreclose, sell, liquidate, release
or otherwise divest or cause the transfer of
property subject to a security interest; or pre-
serve or protect the value of such property; or
otherwise to exercise rights of a holder of a se-
curity interest specified in subparagraph (v)
above; or to assist the borrower, debtor, obligor,
or lessee in winding down its operations or ac-
tivities related to such property; or to abandon
or release the property prior to foreclosure or
its equivalents; or to require or conduct re-
sponse action on, or relating to, the property;
shall not be deemed ‘participating in the man-
agement of property’ within the meaning of this
subsection (101)(20)(E). Completion of an envi-
ronmental inspection or evaluation consistent
with good commercial or customary practice by
or for the use of a holder of a security interest
is probative evidence that a holder of a security
interest is acting to preserve and protect the
property during the time the holder of a secu-
rity interest may have possession or control of
such property, except that this Act does not re-
quire a holder of a security interest to conduct
nor does it require any environmental inspec-
tion or evaluation to qualify for this exemption.
‘‘(xi) A holder of a security interest who,
in taking actions referred to in subparagraph
(x) above respecting property, actively and di-
rectly causes or exacerbates a release of a haz-
ardous waste for which a Federal or an author-
ized State government determines that response
action is necessary, shall be liable for the cost
of such response action to the extent only that
the release is directly attributable to such hold-
er’s activities, except that such a holder shall
not be liable for response action costs arising
from a release which commences before and
continues after such holder takes any action re-
ferred to in subparagraph (x) above.
‘‘(F)(i) The term ‘fiduciary’ means any en-
tity which is considered a fiduciary under sec-
tion 3(21) of the Employee Retirement Income
Security Act of 1974, as amended from time to
time, or who is acting as trustee, executor, ad-
ministrator, custodian, guardian of estates, con-
servator, committee of estates of disabled per-
sons, personal representative, receiver, agent,
nominee or in any other fiduciary capacity for
the benefit of another entity.
‘‘(ii) A fiduciary who acquires ownership or
control of property without having owned, oper-
ated, or participated in the management of that
property prior to assuming ownership or control
as fiduciary, other than for the benefit of a
holder of a security interest, shall not be an
‘owner’ or ‘operator’ under this Act.
‘‘(iii) Such a fiduciary who willfully, know-
ingly, or recklessly causes (in a direct and ac-
tive manner) a release of a hazardous sub-
stance, for which a Federal or an authorized
State government determines that response ac-
tion is necessary, shall be liable for the cost of
such response action to the extent only that the
release is directly attributable to the fiduciary’s
activities, except that such a fiduciary shall not
be liable for response action costs arising from
a release which commences before and contin-
ues after such fiduciary acquires ownership or
control of the property.
‘‘(iv) Nothing in this subsection shall pre-
vent claims against the assets that constitute
the estate held by the fiduciary or the filling of
actions against the fiduciary in its representa-
tive capacity.’’.
SEC. 3. AMENDMENTS TO SOLID WASTE DISPOSAL ACT.
The Solid Waste Disposal Act is amended—
(1) by adding at the end of section 1004 the
following paragraph:
‘‘(41) The terms ‘owner’, ‘operator’, ‘generator’,
‘transporter’, and ‘person’ do not include any entity
which would not be an ‘owner’ or ‘operator’ within
the meaning of paragraphs 101(20) (E) or (F) of
the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980.’’;
(2) by adding at the end of paragraph
9003(h)(a) the following sentence: ‘‘This definition
shall be construed to be parallel to the provisions of
paragraph 101(20)(E) of the Comprehensive Envi-
ronmental Response, Compensation, and Liability
Act of 1980.’’, and
(3) by adding at the end of section 3006 the
following subsection:
‘‘(i) AMENDMENTS MADE BY 1993 ACT.—The provi-
sions of section 1004(41) of this Act shall apply in each
State having an interim or finally authorized State pro-
gram to the same extent that such provisions apply in
other States.’’.
SEC. 4. SCOPE OF APPLICATION.
The provisions of this Act shall apply to—
(1) all indicia of ownership acquired prior to
the date of enactment that are held primarily to pro-
tect a security interest in property; and
(2) each fiduciary with respect to any property
acquired by the fiduciary prior to the date of enact-
ment.
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