I
104TH CONGRESS
1ST SESSION
H. R. 200
To amend the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 4, 1995
Mr. UPTON (for himself and Mr. TAUZIN) introduced the following bill; which
was referred to the Committee on Commerce and, in addition, to the
Committee on Transportation and Infrastructure, for a period to be sub-
sequently determined by the Speaker, in each case for consideration of
such provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980, and for other pur-
poses.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Lender and Fiduciary
Fairness in Liability Act of 1995’’.
SEC. 2. LENDER AND FIDUCIARY LIABILITY.
(a) DEFINITIONS.—Section 101(20) of the Com-
prehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601(20)) is amended
by adding at the end the following new subparagraphs:
‘‘(E) DEFINITION
OF
PARTICIPATION
IN
MANAGEMENT.—
‘‘(i) The term ‘participation in man-
agement’ does not include—
‘‘(I) the mere capacity to influ-
ence, or ability to influence, or the
unexercised right to control vessel or
facility operations; or
‘‘(II) any act of the security in-
terest holder to require another per-
son or itself, to comply with applicable
laws or to respond lawfully to disposal
of any hazardous substance.
‘‘(ii) A security interest holder will not
be deemed to be participating in manage-
ment of a facility unless the security inter-
est holder—
‘‘(I) has undertaken responsibil-
ity for the facility’s hazardous sub-
stance handling or disposal practices;
or
‘‘(II) 
has 
undertaken 
overall
management of the facility encom-
terms and conditions that related
to environmental compliance;
‘‘(cc) monitoring or enforc-
ing the terms and conditions of
the extension of credit or security
interest;
‘‘(dd) monitoring or under-
taking 1 or more inspections of
the vessel or facility;
‘‘(ee) requiring or conduct-
ing response action or other law-
ful means of addressing the re-
lease or threatened release of a
hazardous substance in connec-
tion with the vessel or facility
prior to, during, or upon the ex-
piration of the term of the exten-
sion of credit;
‘‘(ff) providing financial or
other advice or counseling in an
effort to mitigate, prevent, or
cure default or diminution in the
value of the vessel or facility;
‘‘(gg) 
restructuring,
renegotiating, or otherwise agree-
ing to alter the terms and condi-
tions of the extension of credit or
security interest, exercising for-
bearance; or
‘‘(hh) exercising other rem-
edies that may be available under
applicable law for the breach of
any term or condition of the ex-
tension of credit or security
agreement;
if such actions do not rise to the level
of participating in management, as
defined in above.
‘‘(iv) Legal or equitable title acquired
by a security interest holder through fore-
closure or its equivalents will be deemed to
be held primarily to protect a security in-
terest provided that the holder undertakes
to sell, re-lease, or otherwise divest the
property in a reasonably expeditious man-
ner on commercially reasonable terms.
‘‘(v) The term ‘security interest’ in-
cludes rights under a mortgage, deed of
trust, assignment, judgment lien, pledge,
security agreement, factoring agreement,
lease, or any other right accruing to person
to secure the repayment of money, the per-
formance of a duty, or some other obliga-
tion.
‘‘(F) PROTECTION FOR FIDUCIARIES FROM
INDIVIDUAL LIABILITY—
‘‘(i) The term ‘owner or operator’
does not include a fiduciary who holds
legal title to, is the mortgagee or secured
party with respect to, controls, or man-
ages, directly or indirectly, any facility or
vessel for purposes of administering an es-
tate or trust of which such facility or ves-
sel is a part.
‘‘(ii) For purposes of clause (i), the
term ‘fiduciary’ means a person who is act-
ing in any of the following representative
capacities, but only to the extent such per-
son is acting in such representative capac-
ity:
‘‘(I) An executor or adminis-
trator of an estate, including a vol-
untary executor or a voluntary admin-
istrator.
‘‘(II) A guardian.
‘‘(III) A conservator.
‘‘(IV) A trustee under a will
under which the trustee takes title to,
or otherwise controls or manages,
property for the purpose of protecting
or conserving such property under the
ordinary rules applied in State courts.
‘‘(V) A court-appointed receiver.
‘‘(VI) A trustee appointed in pro-
ceedings under Federal bankruptcy
laws.
‘‘(VII) An assignee or a trustee
acting under an assignment made for
the benefit of creditors.
‘‘(VIII) A trustee, or any succes-
sor thereto, pursuant to an indenture
agreement, trust agreement, lease, or
similar financing agreement, for debt
securities, certificates of interest of
participation in any such debt securi-
ties, or other forms of indebtedness as
to which it is not, in its capacity as
trustee, the lender.
‘‘(iii) FIDUCIARY
CAPACITY.—A per-
son acts in a ‘fiduciary capacity’ with re-
spect to property if the person holds title
to such property, or otherwise has control
of or an interest in such property, pursu-
ant to the exercise of such person’s respon-
sibilities as a fiduciary.’’.
(b) LIABILITY.—Section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9607), is amended by adding the fol-
lowing new subsections at the end:
‘‘(n) LIABILITY OF FIDUCIARIES.—
‘‘(1) IN GENERAL.—The liability of a fiduciary
that is liable under any other provision of this Act
for the release or threatened release of a hazardous
substance at, from, or in connection with property
held in a fiduciary capacity, may not exceed the as-
sets held in such fiduciary capacity that are avail-
able to indemnify the fiduciary.
‘‘(2) EXEMPTION.—Except as provided in para-
graph (3), a fiduciary (as defined in section
101(20)) shall not be liable in its individual capacity
under this section.
‘‘(3) EXCEPTIONS.—Nothing in this paragraph
may be construed as preventing claims under this
Act against—
‘‘(A) the assets of the estate or trust ad-
ministered by a fiduciary; or
‘‘(B) non-employee agents or independent
contractors retained by a fiduciary.
‘‘(4) 
NEGLIGENCE
OR
INTENTIONAL
MIS-
CONDUCT.—Nothing in this paragraph may be con-
strued as preventing claims under this Act against
a fiduciary in its individual capacity whose negligent
acts or intentional misconduct caused a release or
threatened release of hazardous substances at a fa-
cility or vessel. A fiduciary shall not be attributed
with negligence or intentional misconduct of non-em-
ployee agents or independent contractors if the fidu-
ciary has conducted itself without negligence or in-
tentional misconduct with regard to its relationship
with such agents or contractors.
‘‘(5) SAFE HARBOR.—A fiduciary shall not be
liable in its individual capacity under this Act—
‘‘(A) for undertaking or directing another
to undertake a response action under section
107(d)(1) or under the direction of an on-scene
coordinator;
‘‘(B) for undertaking or directing another
to undertake any other lawful means of ad-
dressing hazardous substances in connection
with the property;
‘‘(C) for terminating the fiduciary relation-
ship;
‘‘(D) for including in the terms of the fidu-
ciary agreement covenants, warranties, or other
terms and conditions that relate to compliance
with environmental laws, or monitoring or en-
forcing such terms;
‘‘(E) for monitoring or undertaking 1 or
more inspections of the property;
‘‘(F) for providing financial or other advice
or counseling to other parties to the fiduciary
relationship, including the settler or beneficiary;
‘‘(G) for restructuring, renegotiating, or
otherwise altering the terms and conditions of
the fiduciary relationship;
‘‘(H) if the property was contaminated be-
fore the fiduciary’s period of service began; or
‘‘(I) for declining to take any of the ac-
tions described in paragraphs (2) through (7).
‘‘(o) LIABILITY LIMITATIONS.—
‘‘(1) ACTUAL BENEFIT.—The liability of a lend-
er that is liable under any other provision of this Act