[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 394 Introduced in Senate (IS)]

  1st Session
                                 S. 394

To clarify the liability of banking and lending agencies, lenders, and 
                  fiduciaries, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

            February 10 (legislative day, January 30), 1995

  Mr. D'Amato introduced the following bill; which was read twice and 
       referred to the Committee on Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
To clarify the liability of banking and lending agencies, lenders, and 
                  fiduciaries, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Asset Conservation, Lender 
Liability, and Deposit Insurance Protection Act of 1995''.

SEC. 2. FEDERAL DEPOSIT INSURANCE ACT AMENDMENT.

    The Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.) is 
amended by adding at the end the following new section:

``SEC. 45. FEDERAL BANKING AND LENDING AGENCY LIABILITY.

    ``(a) Governmental Entities.--
            ``(1) Banking and lending agencies.--Except as provided in 
        paragraph (3), a Federal banking or lending agency shall not be 
        liable under any law imposing strict liability for the release 
        or threatened release of a hazardous substance at or from 
        property (including a right or interest in property) acquired--
                    ``(A) in connection with the exercise of 
                receivership or conservatorship authority, or the 
                liquidation or winding up of the affairs of an insured 
                depository institution, including a subsidiary of an 
                insured depository institution;
                    ``(B) in connection with the provision of a loan, a 
                discount, an advance, a guarantee, insurance, or other 
                financial assistance; or
                    ``(C) in connection with property received in a 
                civil or criminal proceeding, or administrative 
                enforcement action, whether by settlement or order.
            ``(2) Application of state law.--Nothing in this section 
        shall be construed as preempting, affecting, applying to, or 
        modifying a State law, or a right, action, cause of action, or 
        obligation under State law, except that the liability of a 
        Federal banking or lending agency under a State law shall not 
        exceed the value of the interest of the agency in the asset 
        giving rise to the liability. Nothing in this section shall 
        prevent a Federal banking or lending agency from agreeing with 
        a State to transfer property to the State in lieu of any 
        liability that might otherwise be imposed under State law.
            ``(3) Limitation.--Notwithstanding paragraph (1), and 
        subject to section 107(d) of the Comprehensive Environmental 
        Response, Compensation, and Liability Act of 1980 and section 
        9003 of the Solid Waste Disposal Act, a Federal banking or 
        lending agency that caused or contributed to the release of a 
        hazardous substance may be liable for removal, remedial, 
        corrective, or other response action pertaining to that 
        release.
            ``(4) Subsequent purchaser.--The immunity provided by 
        paragraph (1) shall extend to the first subsequent purchaser of 
        the property from a Federal banking or lending agency, unless 
        the purchaser--
                    ``(A) would otherwise be liable or potentially 
                liable for all or part of the costs of the removal, 
                remedial, corrective, or other response action due to a 
prior relationship with the property;
                    ``(B) is or was affiliated with or related to a 
                party described in subparagraph (A);
                    ``(C) fails to agree to take reasonable steps 
                necessary to remedy the release or threatened release 
                or to protect public health and safety in a manner 
                consistent with the purposes of applicable 
                environmental laws; or
                    ``(D) causes or contributes to any additional 
                release or threatened release on the property.
            ``(5) Federal or state action.--If a Federal agency or 
        State environmental agency is required to take remedial or 
        corrective action due to the failure of a subsequent purchaser 
        to carry out, in good faith, the agreement described in 
        paragraph (4)(C), the subsequent purchaser shall reimburse the 
        Federal or State environmental agency for the costs of the 
        remedial or corrective action. Any such reimbursement shall not 
        exceed the increase in the fair market value of the property 
        attributable to the remedial or corrective action.
    ``(b) Lien Exemption.--Notwithstanding any other provision of law, 
any property held by a subsequent purchaser referred to in subsection 
(a)(4) or held by a Federal banking or lending agency shall not be 
subject to a lien for costs or damages associated with the release or 
threatened release of a hazardous substance existing at the time of the 
transfer.
    ``(c) Exemption From Covenants To Remediate.--A Federal banking or 
lending agency shall be exempt from any law requiring the agency to 
grant a covenant warranting that a removal, remedial, corrective, or 
other response action has been, or will in the future be, taken with 
respect to property acquired in the manner referred to in subsection 
(a)(1).
    ``(d) Definitions.--As used in this section:
            ``(1) Federal banking or lending agency.--The term `Federal 
        banking or lending agency' means the Corporation, the 
        Resolution Trust Corporation, the Board of Governors of the 
        Federal Reserve System, the Comptroller of the Currency, the 
        Office of Thrift Supervision, a Federal Reserve Bank, a Federal 
        Home Loan Bank, the Department of Housing and Urban 
        Development, the National Credit Union Administration Board, 
        the Farm Credit Administration, the Farm Credit System 
        Insurance Corporation, the Farm Credit System Assistance Board, 
        the Farmers Home Administration, the Rural Electrification 
        Administration, the Small Business Administration, and any 
        other Federal agency acting in a similar capacity, in any of 
        their capacities, and their agents or appointees.
            ``(2) Hazardous substance.--The term `hazardous substance' 
        means--
                    ``(A) any substance defined in section 101(14) of 
                the Comprehensive Environmental Response, Compensation, 
                and Liability Act of 1980; and
                    ``(B) petroleum.
            ``(3) Release.--The term `release' has the same meaning as 
        in--
                    ``(A) section 101(22) of the Comprehensive 
                Environmental Response, Compensation, and Liability Act 
                of 1980, including the use, storage, disposal, 
                treatment, generation, or transportation of a hazardous 
                substance; and
                    ``(B) section 9002(5) of the Solid Waste Disposal 
                Act.
    ``(e) Savings Clause.--Nothing in this section shall--
            ``(1) affect the rights or immunities or other defenses 
        that are available under this Act, the Comprehensive 
        Environmental Response, Compensation, and Liability Act of 
        1980, subtitle I of the Solid Waste Disposal Act, or other 
        applicable law to any party;
            ``(2) create any liability for any party; or
            ``(3) create a private right of action against an insured 
        depository institution or lender, a Federal banking or lending 
        agency, or any other party.''.

SEC. 3. CERCLA AMENDMENTS.

    (a) Lender and Fiduciary Liability Limitations.--Title I of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980 (42 U.S.C. 9601 et seq.) is amended by adding at the end the 
following:

``SEC. 127. INSURED DEPOSITORY INSTITUTION AND OTHER LENDER LIABILITY.

    ``(a) Liability Limitations.--The liability of an insured 
depository institution or other lender that is liable under any other 
provision of this Act or subtitle I of the Solid Waste Disposal Act (42 
U.S.C. 6991 et seq.) for the release or threatened release of a 
hazardous substance at, from, or in connection with property--
            ``(1) acquired through foreclosure;
            ``(2) subject to a security interest held by the 
        institution or lender;
            ``(3) held by a lessor pursuant to the terms of an 
        extension of credit; or
            ``(4) subject to financial control or financial oversight 
        pursuant to the terms of an extension of credit;
shall be limited to the actual benefit conferred on the institution or 
lender by a removal, remedial, corrective, or other response action 
undertaken by another party.
    ``(b) Actual Benefit.--For purposes of this section, the actual 
benefit conferred on an institution or lender by a removal, remedial, 
corrective, or other response action shall be equal to the net gain, if 
any, realized by the institution or lender due to the action. For 
purposes of this subsection, the net gain shall not exceed the amount 
realized by the institution or lender on the sale of property less 
acquisition, holding, and disposition costs.
    ``(c) Exclusion.--Notwithstanding subsection (a), but subject to 
section 107(d) and section 9003 of the Solid Waste Disposal Act (42 
U.S.C. 6991b), a depository institution or lender that caused or 
contributed to the release of a hazardous substance may be liable for 
removal, remedial, corrective, or other response action pertaining to 
that release.
    ``(d) Environmental Assessments.--
            ``(1) Depository institutions.--The Administrator, after 
        consultation with the Federal Deposit Insurance Corporation, 
        shall issue and publish guidelines for insured depository 
        institutions and other lenders to develop and carry out 
        adequate procedures to evaluate actual and potential 
        environmental risks that may arise from or at property prior to 
        making an extension of credit secured by the property. The 
        requirements may provide for exclusions or different types of 
        environmental assessments as may be appropriate under the 
        circumstances to account for the levels of risk that may be 
        posed by different classes of collateral. Each Federal agency 
        having the authority under Federal law to make an examination 
        of an insured depository institution shall take compliance with 
        the guidelines into account in performing the examinations.
            ``(2) Final guidelines.--Final guidelines required to be 
        issued pursuant to paragraph (1) shall be issued not later than 
        180 days after the date of enactment of this section.
    ``(e) Definitions.--As used in this section:
            ``(1) Appropriate federal banking agency.--The term 
        `appropriate Federal banking agency'--
                    ``(A) has the same meaning as in section 3 of the 
                Federal Deposit Insurance Act (12 U.S.C. 1813); and
                    ``(B) includes the National Credit Union 
                Administration Board.
            ``(2) Extension of credit.--The term `extension of credit' 
        includes a lease finance transaction--
                    ``(A) in which the lessor does not initially select 
                the leased property and does not during the lease term 
                control the daily operations or maintenance of the 
                property; or
                    ``(B) that conforms with regulations issued by the 
                appropriate Federal banking agency or the appropriate 
                State banking regulatory agency.
            ``(3) Hazardous substance.--The term `hazardous substance' 
        has the same meaning as in section 45(d)(2) of the Federal 
        Deposit Insurance Act.
            ``(4) Insured depository institution.--The term `insured 
        depository institution' has the same meaning as in section 3(c) 
        of the Federal Deposit Insurance Act (12 U.S.C. 1813(c)), and 
        shall also include--
                    ``(A) an insured credit union, as defined in 
                section 101 of the Federal Credit Union Act (12 U.S.C. 
                1752);
                    ``(B) a bank or association chartered under the 
                Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.); and
                    ``(C) a leasing or trust company that is an 
                affiliate of an insured depository institution (as the 
                term is defined in this paragraph).
            ``(5) Lender.--The term `lender' means--
                    ``(A) a person (other than an insured depository 
                institution) that--
                            ``(i) makes a bona fide extension of credit 
                        to or takes a security interest from a 
                        nonaffiliated party; and
                            ``(ii) substantially and materially 
                        complies with the environmental assessment 
                        requirements imposed under subsection (d), 
                        after final guidelines under the subsection 
                        have been issued;
                and includes a successor or assignee of any such 
                person;
                    ``(B) the Federal National Mortgage Association, 
                the Federal Home Loan Mortgage Corporation, the Federal 
                Agricultural Mortgage Corporation, or other entity that 
                in a bona fide manner is engaged in the business of 
                buying or selling loans or interests in loans, if the 
                Association, Corporation, or entity requires 
                institutions from which it purchases loans (or other 
                obligations) to comply substantially and materially 
                with the requirements of subsection (d), after final 
                guidelines under that subsection have been issued;
                    ``(C) a person engaged in the business of insuring 
                or guaranteeing against a default in the repayment of 
                an extension of credit, or acting as a surety with 
                respect to an extension of credit, to nonaffiliated 
                parties; and
                    ``(D) a person regularly engaged in the business of 
                providing title insurance who acquires the property as 
                a result of assignment or conveyance in the course of 
                underwriting claims and claims settlement.
            ``(6) Property acquired through foreclosure.--
                    ``(A) In general.--The term `property acquired 
                through foreclosure' means property acquired, or the 
                act of acquiring property, from a nonaffiliated party 
                by an insured depository institution or other lender--
                            ``(i) through purchase at sales under 
                        judgment or decree, power of sales, nonjudicial 
                        foreclosure sales, or from a trustee, deed in 
                        lieu of foreclosure, or similar conveyance, or 
                        through repossession, if the property was 
                        security for an extension of credit previously 
                        contracted;
                            ``(ii) through conveyance pursuant to an 
                        extension of credit previously contracted, 
                        including the termination of a lease agreement; 
                        or
                            ``(iii) through any other formal or 
                        informal manner by which the insured depository 
                        institution or other lender temporarily 
                        acquires, for subsequent disposition, 
                        possession of collateral in order to protect 
                        the interest of the institution or lender.
                    ``(B) Exclusion.--Property is not acquired through 
                foreclosure if the insured depository institution or 
                lender does not seek to sell or otherwise divest the 
                property at the earliest practical, commercially 
                reasonable time, on commercially reasonable terms, 
                taking into account market conditions and legal and 
                regulatory requirements.
            ``(7) Release.--The term `release' has the same meaning as 
        in section 45(d)(3) of the Federal Deposit Insurance Act.
            ``(8) Security interest.--The term `security interest' 
        includes rights under a mortgage, deed of trust, assignment, 
        judgment lien, pledge, security agreement, factoring agreement, 
        lease, or any other right accruing to a person to secure the 
        repayment of money, the performance of a duty, or some other 
        obligation.
    ``(f) Savings Clause.--Nothing in this section shall--
            ``(1) affect the rights or immunities or other defenses 
        that are available under this Act, subtitle I of the Solid 
        Waste Disposal Act (42 U.S.C. 6991 et seq.), or other 
        applicable law to a party subject to this section;
            ``(2) create any liability for a party; or
            ``(3) create a private right of action against an insured 
        depository institution or lender, a Federal agency that 
        regulates an insured depository institution or other lender, or 
        any other party.

``SEC. 128. LIABILITY OF FIDUCIARIES.

    ``(a) In General.--The liability of a fiduciary that is liable 
under any other provision of this Act or subtitle I of the Solid Waste 
Disposal Act (42 U.S.C. 6991 et seq.) 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 assets held 
in the fiduciary capacity that are available to indemnify the 
fiduciary.
    ``(b) Exclusion.--Subsection (a) does not apply to the extent that 
a person is liable under this Act independently of the person's 
ownership or actions taken in a fiduciary capacity.
    ``(c) Limitation.--Notwithstanding subsections (a) and (d), a 
fiduciary whose failure to exercise due care caused or contributed to 
the release of a hazardous substance may have liability in its personal 
capacity for a response or corrective action pertaining to the release.
    ``(d) Safe Harbor.--A fiduciary shall not be liable in its personal 
capacity under this Act for--
            ``(1) undertaking or directing another person to undertake 
        a response action under section 107(d)(1) or under the 
        direction of an on-scene coordinator;
            ``(2) undertaking or directing another to undertake a 
        corrective action under section 9003(h) of the Solid Waste 
        Disposal Act (42 U.S.C. 6991b(h));
            ``(3) undertaking or directing another to undertake any 
        other lawful means of addressing hazardous substances in 
        connection with the property;
            ``(4) terminating the fiduciary relationship;
            ``(5) including in the terms of the fiduciary agreement a 
        covenant, warranty, or other term or condition that relates to 
        compliance with an environmental law, or monitoring or 
        enforcing the term;
            ``(6) monitoring or undertaking 1 or more inspections of 
        the property;
            ``(7) providing financial or other advice or counseling to 
        other parties to the fiduciary relationship, including the 
        settler or beneficiary;
            ``(8) restructuring, renegotiating, or otherwise altering 
        the terms and conditions of the fiduciary relationship; or
            ``(9) declining to take any of the actions referred to in 
        paragraphs (3) through (8).
    ``(e) Definitions.--As used in this section:
            ``(1) Fiduciary.--The term `fiduciary'--
                    ``(A) means a person acting for the benefit of 
                another party as a bona fide--
                            ``(i) trustee;
                            ``(ii) executor;
                            ``(iii) administrator;
                            ``(iv) custodian;
                            ``(v) guardian of estates or guardian ad 
                        litem;
                            ``(vi) receiver;
                            ``(vii) conservator;
                            ``(viii) committee of estates of lunatics 
                        or other disabled persons;
                            ``(ix) personal representative; or
                            ``(x) representative in any other capacity 
                        that the Administrator, pursuant to public 
                        notice, determines to be similar to the persons 
                        listed in clauses (i) through (ix); and
                    ``(B) does not include any person who is acting as 
                a fiduciary with respect to a trust or other fiduciary 
                estate that--
                            ``(i) was not created as part of, or to 
                        facilitate, 1 or more estate plans or pursuant 
                        to the incapacity of a natural person; and
                            ``(ii) was organized for the primary 
                        purpose of, or is engaged in, actively carrying 
                        on a trade or business for profit.
            ``(2) Fiduciary capacity.--The term `fiduciary capacity' 
        means the capacity of a person in holding title to the 
        property, or otherwise having control of or an interest in the 
        property, pursuant to the exercise of the responsibilities of 
        the person as a fiduciary.
            ``(3) Federal banking or lending agency.--The term `Federal 
        banking or lending agency' has the same meaning as in section 
        45(d)(1) of the Federal Deposit Insurance Act.
            ``(4) Hazardous substance.--The term `hazardous substance' 
        has the same meaning as in section 45(d)(2) of the Federal 
        Deposit Insurance Act.
            ``(5) Release.--The term `release' has the same meaning as 
        in section 45(d)(3) of the Federal Deposit Insurance Act.
    ``(f) Savings Clause.--Nothing in this section shall affect the 
rights or immunities or other defenses that are available under this 
Act, subtitle I of the Solid Waste Disposal Act (42 U.S.C. 6991 et 
seq.), or other law that is applicable to a person subject to this 
section. Nothing in this section creates any liability for a party or a 
private right of action against a fiduciary or any other party.
    ``(g) Inapplicability to Federal Banking and Lending Agencies.--
Nothing in this section applies to a Federal banking or lending agency.
    ``(h) No Effect on Certain Persons.--Nothing in this section 
affects the liability, if any, of a person who--
            ``(1)(A) acts in a capacity other than a fiduciary 
        capacity; and
            ``(B) directly or indirectly benefits from a trust or 
        fiduciary relationship; or
            ``(2) who--
                    ``(A) is a beneficiary and a fiduciary with respect 
                to the same fiduciary estate; and
                    ``(B) as a fiduciary, receives benefits that exceed 
                customary or reasonable compensation, and incidental 
                benefits, permitted under other applicable law.
    ``(i) Regulations.--The Administrator, after consultation with the 
Federal Deposit Insurance Corporation, may promulgate regulations to 
carry out this section.''.
    (b) Definition of Owner or Operator.--Section 101(20) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980 (42 U.S.C. 9601(20)) is amended--
            (1) in subparagraph (A)--
                    (A) in clause (iii) of the first sentence, by 
                inserting ``the United States or'' after ``abandonment, 
                or similar means to''; and
                    (B) by striking the second sentence;
            (2) in subparagraph (D)--
                    (A) in the first sentence, by inserting ``the 
                United States or'' after ``does not include''; and
                    (B) in the second sentence--
                            (i) by inserting ``any department, agency, 
                        or instrumentality of the United States or'' 
                        after ``shall not apply to''; and
                            (ii) by striking ``, and such a'' and 
                        inserting ``, and the department, agency, or 
                        instrumentality of the United States or''; and
            (3) by adding at the end the following:
                    ``(E) Exclusion of united states, conservator, or 
                receiver.--The term `owner or operator' shall not 
                include the United States or any department, agency, or 
                instrumentality of the United States, or a conservator 
                or receiver appointed by a department, agency, or 
                instrumentality of the United States, if the United 
                States or the conservator or receiver meets both of the 
                following conditions:
                            ``(i) Authority.--The United States, 
                        conservator, or receiver acquired ownership or 
                        control of a vessel or facility (or any right 
                        or interest in a vessel or facility)--
                                    ``(I) in connection with the 
                                exercise of receivership or 
                                conservatorship authority or the 
                                liquidation or winding up of the 
                                affairs of an entity subject to a 
                                receivership or conservatorship, 
                                including a subsidiary of the entity;
                                    ``(II) in connection with the 
                                exercise of any seizure or forfeiture 
                                authority; or
                                    ``(III) pursuant to a law 
                                specifying the property to be acquired.
                            ``(ii) Nonparticipation in management.--The 
                        United States, conservator, or receiver does 
                        not participate in the management of the vessel 
                        or facility operations that result in a release 
                        or threat of release of hazardous substances 
                        and complies with such other requirements as 
                        the Administrator, after consultation with the 
                        Federal Deposit Insurance Corporation, may 
                        establish by regulation.
                    ``(F) Exclusion of persons not participants in 
                management.--
                            ``(i) Indicia of ownership to protect 
                        security interest.--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 the security interest of 
                        the person in the vessel or facility.
                            ``(ii) Nonparticipation in management prior 
                        to foreclosure.--The term `owner or operator' 
                        does not include a person who did not 
                        participate in management of a vessel or 
                        facility prior to foreclosure, even if the 
                        person forecloses on the vessel or facility, 
                        sells, re-leases (in the case of a lease 
                        finance transaction), or liquidates the vessel 
                        or facility, maintains business activities, 
                        winds up operations, undertakes a response 
                        action under section 107(d)(1) or under the 
                        direction of an on-scene coordinator, or 
                        undertakes a corrective action under section 
                        9003 of the Solid Waste Disposal Act (42 U.S.C. 
                        6991b), with respect to the vessel or facility, 
                        or takes other measures to preserve, protect, 
                        or prepare the vessel or facility prior to sale 
or disposition, if the person seeks to sell, re-lease (in the case of a 
lease finance transaction), or otherwise divest the vessel or facility 
at the earliest practical, commercially reasonable time, on 
commercially reasonable terms, taking into account market conditions 
and legal and regulatory requirements.
                    ``(G) Participation in management.--For purposes of 
                subparagraph (F)--
                            ``(i) the term `participate in management' 
                        means actually participating in the management 
                        or operational affairs of a vessel or facility, 
                        and does not include merely having the capacity 
                        to influence, or the unexercised right to 
                        control, vessel or facility operations;
                            ``(ii) a person shall be considered to 
                        participate in management while the borrower is 
                        still in possession of the vessel or facility 
                        encumbered by the security interest only if the 
                        person--
                                    ``(I) exercises decisionmaking 
                                control over the environmental 
                                compliance of a borrower, such that the 
                                person has undertaken responsibility 
                                for the hazardous substance handling or 
                                disposal practices of the borrower; or
                                    ``(II) exercises control at a level 
                                comparable to that of a manager of the 
                                enterprise of the borrower, such that 
                                the person has assumed or manifested 
                                responsibility for the overall 
                                management of the enterprise 
                                encompassing day-to-day decisionmaking 
                                with respect to environmental 
                                compliance, or with respect to 
                                substantially all of the operational 
                                aspects (as distinguished from 
                                financial or administrative aspects) of 
                                the enterprise, other than 
                                environmental compliance;
                            ``(iii) the term `participate in 
                        management' does not include conducting an act 
                        or failing to act prior to the time that a 
                        security interest is created in a vessel or 
                        facility; and
                            ``(iv) the term `participate in management' 
                        does not include--
                                    ``(I) holding such a security 
                                interest or abandoning or releasing 
                                such a security interest;
                                    ``(II) including in the terms of an 
                                extension of credit, or in a contract 
                                or security agreement relating to the 
                                extension, a covenant, warranty, or 
                                other term or condition that relates to 
                                environmental compliance;
                                    ``(III) monitoring or enforcing the 
                                terms and conditions of the extension 
                                of credit or security interest;
                                    ``(IV) monitoring or undertaking 1 
                                or more inspections of the vessel or 
                                facility;
                                    ``(V) requiring or conducting 
                                response action or other lawful means 
                                of addressing the release or threatened 
                                release of a hazardous substance in 
                                connection with the vessel or facility 
                                prior to, during, or on the expiration 
                                of the term of the extension of credit;
                                    ``(VI) 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;
                                    ``(VII) restructuring, 
                                renegotiating, or otherwise agreeing to 
                                alter the terms and conditions of the 
                                extension of credit or security 
                                interest, exercising forbearance; or
                                    ``(VIII) exercising other remedies 
                                that may be available under applicable 
                                law for the breach of a term or 
                                condition of the extension of credit or 
                                security agreement;
                        if the actions do not rise to the level of 
                        participating in management, as defined in 
                        clauses (i) and (ii).
                    ``(H) Other terms.--As used in subparagraphs (E) 
                through (G), and this subparagraph:
                            ``(i) Extension of credit.--The term 
                        `extension of credit' includes a lease finance 
                        transaction--
                                    ``(I) in which the lessor does not 
                                initially select the leased vessel or 
                                facility and does not during the lease 
                                term control the daily operations 
or maintenance of the vessel or facility; or
                                    ``(II) that conforms with 
                                regulations issued by the appropriate 
                                Federal banking agency or the 
                                appropriate State bank supervisor (as 
                                those terms are defined in section 3 of 
                                the Federal Deposit Insurance Act (12 
                                U.S.C. 1813)) or with regulations 
                                issued by the National Credit Union 
                                Administration Board, as appropriate.
                            ``(ii) Financial or administrative 
                        aspect.--The term `financial or administrative 
                        aspect' includes a function such as a function 
                        of a credit manager, accounts payable officer, 
                        accounts receivable officer, personnel manager, 
                        comptroller, or chief financial officer, or a 
                        similar function.
                            ``(iii) Foreclosure; foreclose.--The terms 
                        `foreclosure' and `foreclose' mean, 
                        respectively, acquiring, and to acquire, a 
                        vessel or facility through--
                                    ``(I) purchase at sale under a 
                                judgment or decree, a power of sale, a 
                                nonjudicial foreclosure sale, or from a 
                                trustee, deed in lieu of foreclosure, 
                                or similar conveyance, or through 
                                repossession, if the vessel or facility 
                                was security for an extension of credit 
                                previously contracted;
                                    ``(II) conveyance pursuant to an 
                                extension of credit previously 
                                contracted, including the termination 
                                of a lease agreement; or
                                    ``(III) any other formal or 
                                informal manner by which the person 
                                acquires, for subsequent disposition, 
                                possession of collateral in order to 
                                protect the security interest of the 
                                person.
                            ``(iv) Hazardous substance.--The term 
                        `hazardous substance' has the same meaning as 
                        in section 45(d)(2) of the Federal Deposit 
                        Insurance Act.
                            ``(v) Operational aspect.--The term 
                        `operational aspect' includes a function such 
                        as a function of a facility or plant manager, 
                        operations manager, chief operating officer, or 
                        chief executive officer.
                            ``(vi) Release.--The term `release' has the 
                        same meaning as in section 45(d)(3) of the 
                        Federal Deposit Insurance Act.
                            ``(vii) Security interest.--The term 
                        `security interest' includes a right under a 
                        mortgage, deed of trust, assignment, judgment 
                        lien, pledge, security agreement, factoring 
                        agreement, or lease, or any other right 
                        accruing to a person to secure the repayment of 
                        money, the performance of a duty, or some other 
                        obligation.
                            ``(viii) Vessel or facility.--The term 
                        `vessel or facility' includes an underground 
                        storage tank as defined in section 9001(1) of 
                        the Solid Waste Disposal Act (42 U.S.C. 
                        6991(1)).''.

SEC. 4. SOLID WASTE DISPOSAL ACT AMENDMENTS.

    (a) Definition of Owner and Operator.--Section 9001 of the Solid 
Waste Disposal Act (42 U.S.C. 6991) is amended by adding at the end the 
following:
            ``(9) Owner and operator.--The terms `owner' and `operator' 
        do not include any person excluded from the definition of an 
        `owner or operator' under subparagraphs (E) through (H) of 
        section 101(20) of the Comprehensive Environmental Response, 
        Compensation, and Liability Act of 1980 (42 U.S.C. 
        9601(20)).''.
    (b) Lender and Fiduciary Liability.--Subtitle I of the Act (42 
U.S.C. 6991 et seq.) is amended by adding at the end the following:

``SEC. 9011. LENDER AND FIDUCIARY LIABILITY.

    ``This subtitle shall be subject to the limitations on liability in 
sections 127 and 128 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980.''.

SEC. 5. EFFECTIVE DATE.

    The amendments made by this Act shall be applicable with respect to 
any claim that has not been finally adjudicated as of the date of 
enactment of this Act.
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