[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14173]


[[Page Unknown]]

[Federal Register: June 13, 1994]


_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 280 and 281



Underground Storage Tanks--Lender Liability; Proposed Rule
 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 280 and 281

[FRL-4895-3]
RIN 2050-AD67

Underground Storage Tanks--Lender Liability

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing this 
rule under the Resource Conservation and Recovery Act (RCRA), Subtitle 
I--Regulation of Underground Storage Tanks, 42 U.S.C. 6901 et seq., to 
limit the regulatory obligations of persons maintaining indicia of 
ownership in a petroleum underground storage tank (UST) or UST system 
primarily to protect a security interest. The rule is proposed in 
response to petitions received by the Agency in connection with the 
rulemaking related to lender liability under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), 42 
U.S.C. 9601 et seq. (See 57 FR 18349).
    The Agency is proposing conditions under which certain security 
interest holders may be exempted from the RCRA Subtitle I corrective 
action, technical, and financial responsibility regulatory requirements 
that apply to an UST owner and operator. (See 40 CFR part 280.)

DATES: Written comments on this proposed rule must be submitted on or 
before August 12, 1994.

ADDRESSES: Written comments on today's proposal should be addressed to 
the docket clerk at the following address: U.S. Environmental 
Protection Agency, OUST Docket (5405), 401 M Street, SW., Washington, 
DC 20460. The Docket is located at 401 M Street, SW., Room 2616. One 
original and two copies of comments should be sent and identified by 
regulatory docket reference number UST 3-16. The docket is open from 9 
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. 
Docket materials may be reviewed by appointment by calling (202) 260-
9720. Copies of docket materials may be made at a cost of $0.15 per 
page.

FOR FURTHER INFORMATION CONTACT: For further information about this 
proposal, contact the RCRA/Superfund Hotline, U.S. Environmental 
Protection Agency, Washington, DC. 20460, (800) 424-9346 (toll-free) or 
(703) 412-9810 (local). For the hearing impaired, the number is (300) 
553-7672 (toll-free), or (703) 412-3323 (local). For technical 
information on this proposal, contact Shelley Fudge in the EPA Office 
of Underground Storage Tanks at (703) 308-8886.
SUPPLEMENTARY INFORMATION: The contents of today's proposed preamble 
are listed in the following outline:

1. Background
II. Description of the UST Regulatory Program
    A. UST Technical Standards
    1. Leak Prevention
    2. Leak Detection
    3. Release Reporting
    4. Closure
    5. Notification, Reporting, and Recordkeeping
    B. Corrective Action Requirements
    C. Financial Responsibility Requirements
    D. State Program Approval Regulations
    E. Scope of the UST Program
III. The UST Security Interest Exemption and Intent of Today's 
Proposed Rule
    A. Overview
    B. Legal Authority
    C. Liability of a Holder as an Owner of an Underground Storage 
Tank or Underground Storage Tank System
    1. Petroleum Production, Refining, and Marketing
    2. Indicia of Ownership
    3. Primarily to Protect a Security Interest
    4. ``Holder'' of Ownership Indicia
    5. Participating in Management
    D. Liability of a Holder as an Operator of an Underground 
Storage Tank or Underground Storage Tank System
    1. Pre-Foreclosure Operation
    2. Post-Foreclosure Operation
    3. Lenders in Foreclosure Upon the Effective Date of the Rule
    4. Release Reporting Requirements Following Foreclosure
    E. Actions Taken to Protect Human Health and the Environment
IV. Financial Responsibility Requirements
V. State Program Approval
VI. Economic Analysis
VII. Regulatory Assessment Requirements
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act

I. Background

    EPA is proposing to establish regulatory criteria specifying which 
RCRA Subtitle I requirements are applicable to a secured creditor. 
Section 9003(h)(9) of RCRA exempts from the definition of ``owner,'' 
for purposes of section 9003(h)--EPA Response Program for Petroleum, 
those persons who, without participating in the management of the UST 
or UST system, and who are not otherwise engaged in petroleum 
production, refining, and marketing, maintain indicia of ownership in 
an UST or UST system primarily to protect a security interest. Those 
most affected by this ``security interest exemption'' include private 
lending institutions or other persons that guarantee loans secured by 
real estate containing an UST or UST system, or that acquire title to, 
or other indicia of ownership in, a contaminated UST or UST system.\1\ 
However, the security interest exemption is not limited solely to 
lending institutions; it potentially applies to any person whose 
indicia of ownership in an UST or UST system is maintained primarily to 
protect a security interest.
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    \1\Under the laws of some states, an interest in real property 
may include an interest in USTs or UST systems located on that 
property. See Sunnybrook Realty Co. Inc. v. State of New York, 
Kesbec, Inc. v. State of New York, Claim Nos. 32844, 33125, 15 Misc. 
2d 739; 182 N.Y.S. 2d 983. Of course, the loan documents may 
specifically include or exclude USTs as collateral securing the 
obligation.
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    The RCRA subtitle I security interest exemption not only affects 
secured creditors but also UST and UST system owners who seek capital 
through the private lending market. Today's proposed rule will provide 
a regulatory exemption from corrective action regulatory requirements 
for those persons who provide secured financing to UST and UST system 
owners. EPA expects this rule, in conjunction with the statutory 
exemption in section section 9003(h)(9), to encourage the extension of 
credit to credit-worthy UST owners. At present, EPA believes that 
concerns over environmental liability are making a significant number 
of lenders reluctant to make loans to otherwise credit-worthy owners 
and operators of USTs. The free flow of credit to UST owners (many of 
whom are small entities that may rely on secured financing mechanisms 
for capital) is expected to assist UST owners in meeting their 
obligations to upgrade, maintain, or otherwise comply with RCRA 
subtitle I and other environmental requirements. Conversely, the lack 
of such capital may adversely affect the ability of an UST owner to 
meet its obligations under Subtitle I, with concomitant adverse 
environmental impacts from USTs and UST systems that are out of 
compliance due to the lack of financing for the UST owner and operator. 
(For a more detailed discussion, please refer to the Regulatory 
Background Document for this proposed rule, located in the OUST Docket 
at 401 M Street, SW., room 2616, Washington, DC 20460.)
    The Agency is also concerned that if otherwise credit-worthy UST 
owners and operators are unable to obtain financing to perform leak 
detection tests, or to upgrade or replace deficient tanks, the market 
for UST equipment could be adversely affected, thereby limiting the 
availability and/or affecting the cost of such equipment. In addition, 
a lack of adequate capital could produce a ripple effect which would 
cut across other portions of the UST-related industrial sector. Based 
on letters received from UST equipment manufacturers, EPA believes that 
this sector has suffered as a direct result of the capital squeeze on 
UST owners and operators. The Agency is further concerned that many UST 
equipment manufacturers may find it increasingly difficult to sustain 
their production of UST equipment. Unnecessary constrictions on the 
free flow of capital for UST compliance and improvements could force 
companies to abandon their production of UST equipment or to close 
altogether, and it may have adverse impacts on the environment by 
making the investment or development of new UST technological 
innovations more difficult.
    The preamble to this proposed rule is structured as follows: The 
following section briefly describes the UST program. This section is 
followed by a discussion of this proposed rule, which includes a 
description of the various options lenders may exercise both pre- and 
post-foreclosure with respect to regulatory compliance for a secured 
UST or UST system. Proposed regulatory text concludes this proposed 
rule.

II. Description of the UST Regulatory Program

    Based on the Agency's study of the banking community's lending 
practices and discussions with representatives of both lenders and 
borrowers, EPA believes that the lending community in general is not 
particularly familiar with the UST statutory scheme and regulatory 
program. Because UST and UST systems are likely to be used as 
collateral in securing loans to borrowers, the Agency believes that it 
is appropriate and useful to briefly describe the UST program in the 
preamble of this proposed rule. The following discussion is general in 
nature and is intended to provide a framework for lenders or others to 
better understand the scope and intent of the program; it is not 
intended to be a substitute for the regulations themselves.
    Under the Hazardous and Solid Waste Amendments of 1984, Congress 
responded to the increasing threat to groundwater posed by leaking 
underground storage tanks by adding subtitle I to the Resource 
Conservation and Recovery Act. Subtitle I required EPA to develop a 
comprehensive regulatory program for USTs storing petroleum or 
hazardous substances. Congress directed the Agency to publish 
regulations that would require owners and operators of new tanks and 
tanks already in the ground to prevent and detect leaks, cleanup leaks, 
and demonstrate that they are financially capable of cleaning up leaks 
and compensating third parties for resulting damages.
    EPA's UST regulations, 40 CFR parts 280 and 281, apply to any 
person who owns or operates an UST or UST system. The term ``owner'' is 
defined in the statute generally to mean any person who owns an UST 
used for the storage, use, or dispensing of substances regulated under 
subtitle I of RCRA (which includes both petroleum and hazardous 
substances) (section 9001(3), 42 U.S.C. 6991(3)). Owners are 
responsible for complying with the ``technical requirements,'' 
``financial responsibility requirements,'' and ``corrective action 
requirements'' specified in the statute and regulations. These 
requirements are intended to ensure that USTs are managed and 
maintained safely, so that they will not leak or otherwise cause harm 
to human health and the environment. In addition, should a leak occur, 
the requirements provide that the owner is responsible for addressing 
the problem.
    These same requirements apply to any person who ``operates'' an UST 
system. The term ``operator'' is very broad and means ``any person in 
control of, or having responsibility for, the daily operation of the 
underground storage tank'' (section 9001(4), 42 U.S.C. 6991(4)). As 
with owners, there may be more than one operator of a tank at a given 
time. Each owner and operator has obligations under the statute and 
regulations. In this respect, it is important to understand that a 
person may have obligations under subtitle I either as an owner or as 
an operator, or both.
    The following subsections describe briefly each of the major 
components of the UST regulatory program applicable to persons who own 
or operate USTs and UST systems.

A. UST Technical Standards

    The technical standards of 40 CFR part 280 referred to here 
include: Subpart B--UST systems: Design, Construction, Installation, 
and Notification (including performance standards for new UST systems, 
upgrading of existing UST systems, and notification requirements); 
Subpart C--General Operating Requirements (including spill and overfill 
control, corrosion protection, reporting and recordkeeping); Subpart 
D--Release Detection; Sec. 280.50 (reporting of suspected releases) of 
Subpart E--Release Reporting, Investigation, and Confirmation; and 
Subpart G--Out of Service UST Systems (including temporary and 
permanent closure). These regulations impose obligations upon UST 
owners and operators, separate from the subtitle I corrective action 
requirements discussed in Section II. B of this preamble.
1. Leak Prevention
    Before EPA regulations were issued, most tanks were constructed of 
bare steel and were not equipped with release prevention or detection 
features. 40 CFR 280.21 requires UST owners and operators to ensure 
that their tanks are protected against corrosion and equipped with 
devices that prevent spills and overfills no later than December 22, 
1998. Tanks installed before December 22, 1988 must be replaced or 
upgraded by fitting them with corrosion protection and spill and 
overfill prevention devices to bring them up to new-tank standards. 
USTs installed after December 22, 1988 must be fiberglass-reinforced 
plastic, corrosion-protected steel, a composite of these materials, or 
determined by the implementing agency to be no less protective of human 
health and the environment and must be designed, constructed, and 
installed in accordance with a code of practice developed by a 
nationally recognized association or independent testing laboratory. 
Piping installed after December 22, 1988 generally must be protected 
against corrosion in accordance with a national code of practice. All 
owners and operators must also ensure that releases due to spilling or 
overfilling do not occur during product transfer and that all steel 
systems with corrosion protection are maintained, inspected, and tested 
in accordance with Sec. 280.31.
2. Leak Detection
    In addition to meeting the leak prevention requirements, owners and 
operators of USTs must use a method listed in Secs. 280.43 through 
280.44 for detecting leaks from portions of both tanks and piping that 
routinely contain product. Deadlines for compliance with the leak 
detection requirements have been phased in based on the tank's age: The 
oldest tanks, which are most likely to leak, had the earliest 
compliance deadlines.
3. Release Reporting
    UST owners and operators must, in accordance with Sec. 280.50, 
report to the implementing agency within 24 hours, or another 
reasonable time period specified by the implementing agency, the 
discovery of any released regulated UST substances, or any suspected 
release. Unusual operating conditions or monitoring results indicating 
a release must also be reported to the implementing agency.
4. Closure
    Owners or operators who would like to take tanks out of operation 
must either temporarily or permanently close them in accordance with 40 
CFR part 280, subpart G--Out-of-Service UST Systems and Closure. When 
UST systems are temporarily closed, owners and operators must continue 
operation and maintenance of corrosion protection and, unless all USTs 
have been emptied, release detection. If temporarily closed for three 
months or more, the UST system's vent lines must be left open and 
functioning, and all other lines, pumps, manways, and ancillary 
equipment must be capped and secured. After 12 months, tanks that do 
not meet either the performance standards for new UST systems or the 
upgrading requirements (excluding spill and overfill device 
requirements) must be permanently closed, unless a site assessment is 
performed by the owner or operator and an extension is obtained from 
the implementing agency. To close a tank permanently, an owner or 
operator generally must: Notify the regulatory authority 30 days before 
closing (or another reasonable time period determined by the 
implementing agency); determine if the tank has leaked and, if so, take 
appropriate notification and corrective action; empty and clean the 
UST; and either remove the UST from the ground or leave it in the 
ground filled with an inert, solid material.
5. Notification, Reporting, and Recordkeeping
    UST owners who bring an UST system into use after May 8, 1986 must 
notify state or local authorities of the existence of the UST and 
certify compliance with certain technical and other requirements, as 
specified in Sec. 280.22. Owners and operators must also notify the 
implementing agency at least 30 days (or another reasonable time period 
determined by the implementing agency) prior to the permanent closure 
of an UST. In addition, owners and operators must keep records of 
testing results for the cathodic protection system, if one is used; 
leak detection performance and upkeep; repairs; and site assessment 
results at permanent closure (which must be kept for at least three 
years).

B. Corrective Action Requirements

    Owners and operators of UST systems containing petroleum or 
hazardous substances must investigate, confirm, and respond to 
confirmed releases, as specified in Secs. 280.51 through 280.67. These 
requirements include, where appropriate: Performing a release 
investigation when a release is suspected or to determine if the UST 
system is the source of an off-site impact (investigation and 
confirmation steps include conducting tests to determine if a leak 
exists in the UST or UST system and conducting a site check if tests 
indicate that a leak does not exist but contamination is present); 
notifying the appropriate agencies of the release within a specified 
period of time; taking immediate action to prevent any further release 
(such as removing product from the UST system); containing and 
immediately cleaning up spills or overfills; monitoring and preventing 
the spread of contamination into the soil and/or groundwater; 
assembling detailed information about the site and the nature of the 
release; removing free product to the maximum extent practicable; 
investigating soil and groundwater contamination; and, in some cases, 
outlining and implementing a detailed corrective action plan for 
remediation.

C. Financial Responsibility Requirements

    The financial responsibility regulations (40 CFR part 280, subpart 
H) require that UST owners or operators demonstrate the ability to pay 
the costs of corrective action and to compensate third parties for 
injuries or damages resulting from the release of petroleum from USTs. 
The regulations require all owners or operators of petroleum USTs to 
maintain an annual aggregate of financial assurance of $1 million or $2 
million, depending on the number of USTs owned. Financial assurance 
options available to owners and operators include: Purchasing 
commercial environmental impairment liability insurance; demonstrating 
self-insurance; obtaining guarantees, surety bonds, or letters of 
credit; placing the required amount into a trust fund administered by a 
third party; or relying on coverage provided by a state assurance fund.

D. State Program Approval Regulations

    Subtitle I of RCRA allows state UST programs approved by EPA to 
operate in lieu of the federal program. EPA's state program approval 
regulations under 40 CFR part 281 set standards for state programs to 
meet.

E. Scope of the UST Program

    There are certain types or classes of tanks that are exempt from 
all or part of subtitle I's requirements. Specifically excluded by 
statute are: Farm and residential tanks of 1,100 gallons or less 
capacity used for storing motor fuel for noncommercial purposes; tanks 
used for storing heating oil for consumptive use on the premises where 
stored; tanks stored on or above the floor of underground areas (such 
as basements or tunnels); septic tanks; systems for collecting 
stormwater or wastewater; flow-through process tanks; emergency spill 
and overfill tanks that are expeditiously emptied after use; and tanks 
holding 110 gallons or less (42 U.S.C. 6991(1)).
    In addition, and of particular importance to today's proposal, the 
statute excludes one type of potential ``owner'' from the corrective 
action requirements applicable to owners. Specifically, the statute 
excludes from the definition of owner any person ``who, without 
participating in the management of an UST, and otherwise not engaged in 
petroleum production, refining, and marketing, holds indicia of 
ownership primarily to protect the owner's security interest in the 
tank'' (RCRA section 9003(h)(9), 42 U.S.C. 6991b(h)(9)). This statutory 
provision is intended to exempt from cleanup responsibility a person 
whose only connection with a tank is as the holder of a security 
interest; i.e., a bank or other secured creditor who has extended 
credit to a borrower (commonly the tank's owner) and who has in return 
secured the loan or other obligation by taking a security interest in 
the tank. EPA has promulgated regulations governing corrective action 
under subtitle I. (See 40 CFR part 280, Secs. 280.51 through 280.67.) 
The regulation proposed today addresses the requirements of subtitle I 
that are applicable to a person who holds a security interest in a tank 
(a ``security holder'' or merely ``holder'') from the time that the 
person extends the credit up through and including foreclosure and re-
sale. As described in this proposed rule, a holder may face obligations 
either as an owner or as an operator, depending upon the specific 
activities undertaken by the holder.

III. The UST Security Interest Exemption and Intent of Today's 
Proposed Rule

A. Overview

    The security interest exemption under subtitle I, section 
9003(h)(9) of RCRA, 42 U.S.C. 6991b(h)(9), provides:

    As used in this subsection, the term ``owner'' does not include 
any person who, without participating in the management of an 
underground storage tank and otherwise not engaged in petroleum 
production, refining, and marketing, holds indicia of ownership 
primarily to protect the owner's security interest in the tank.

    Limited legislative history exists concerning the RCRA subtitle I 
security interest exemption. No guidance or other indication is 
available concerning the types of activities that Congress considered 
to be consistent with the subtitle I security interest exemption, or 
about the types of activities that Congress considered to be 
impermissible participation in an UST or UST system's management.
    The statutory exemption is limited to liability for corrective 
action at petroleum-contaminated sites. Since the subtitle I security 
interest exemption applies only to the corrective action requirements 
for petroleum--Part 280 Subpart F and portions of subpart E, one 
interpretation of the statute could hold that the holder is not exempt 
from complying with other portions of the statute and regulations 
applicable to an ``owner'' of a tank. These other parts include 40 CFR 
part 280, subparts B, C, D, E (Sec. 280.50 only), and G (hereafter 
referred to as the ``UST technical standards'' for purposes of this 
rule), and Subpart H--Financial Responsibility. However, the statute is 
silent with respect to a holder's liability for these requirements 
solely as a consequence of having ownership rights in a tank primarily 
to protect a security interest. The Agency does not believe that these 
limited ownership rights rise to the level of full ``ownership'' 
sufficient to make the holder an ``owner'' of the tank, as that term is 
used in section 9001(3) of RCRA subtitle I. Therefore, EPA is 
proposing, under its broad rulemaking authority in section 9003, that a 
holder who meets the criteria specified in this proposed rule (i.e., 
whose only connection with the tank is as the bona fide holder of a 
security interest in the UST or UST system) is not subject to the UST 
technical standards and financial responsibility requirements otherwise 
applicable to a tank owner. EPA believes that this is both appropriate 
under the Agency's rulemaking authority and consistent with 
Congressional intent in providing the section 9003(h)(9) exemption for 
those persons who provide only financing to owners of a tank. 
Accordingly, a qualifying holder will not be required to comply with 
the full panoply of EPA regulations implementing subtitle I that apply 
to tank owners prior to or following foreclosure, provided that the 
requirements of today's proposed rule are satisfied.
    With respect to a holder's potential to be an ``operator'' of a 
tank prior to foreclosure, consistent with the provisions of this 
proposed rule, the holder typically will not be involved in the day-to-
day operations of the tank, and will therefore not incur liability as 
an ``operator.''2 By foreclosing, however, the holder takes 
affirmative action with respect to the tank and displaces the borrower; 
therefore, by necessity, the holder has taken ``control of . . . [and] 
responsibility for . . .'' the tank, and is therefore a tank operator 
under the definition at 42 U.S.C. 6991(4). However, under today's 
proposed rule, a foreclosing holder's responsibility for corrective 
action as an operator is limited in certain circumstances: In general, 
a holder's obligations would be limited under the provisions of this 
rule where the foreclosed-on tank is no longer storing petroleum, or 
where the holder itself empties the tank within a certain time period. 
In these circumstances, while a holder is an operator and therefore 
subject to the UST program's technical requirements and other 
obligations, a holder may remain exempt from the corrective action 
requirements and satisfy the technical requirements by exercising one 
of the options for compliance described in Section III. D. 2 of this 
preamble. These options allow a holder to satisfy its regulatory 
obligations as an ``operator'' by undertaking specified minimally 
burdensome and environmentally protective actions to secure and protect 
the UST or UST system. On the other hand, a holder who operates a tank 
by, for example, storing or dispensing product following foreclosure 
will be subject to the full range of requirements applicable to any 
person operating a tank (including corrective action requirements).
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    \2\Of course, a lender which has control of or responsibility 
for the daily operation of a tank would be an ``operator'' under 
section 9001(4), and therefore subject to all requirements 
applicable to an operator of a tank, including corrective action. 
Similarly, such acts may also constitute ``participation in the 
management'' of the tank, which would void the section 9003(h)(9) 
exemption and obligate the lender to comply with these same 
technical, financial, and corrective action requirements as an 
owner.
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    In developing today's proposal, EPA examined the potential 
obligations under subtitle I of government entities that act as 
conservators or receivers of assets acquired from failed lending and 
depository institutions, such as the Federal Deposit Insurance 
Corporation (FDIC) and Resolution Trust Corporation (RTC). Where a 
government entity or its designee is acting as a conservator or 
receiver, EPA interprets the security interest exemption in RCRA 
subtitle I section 9003(h)(9) to preclude the imposition of the 
insolvent estate's liabilities against the government entity acting as 
the conservator or receiver, and considers the liabilities of the 
institution being administered to be limited to the institution's 
assets. The situation of a conservator or receiver of a failed or 
insolvent lending institution is analogous to that of a trustee 
(particularly a trustee in bankruptcy) that is administering an 
insolvent's estate and, in accordance with those principles, the 
insolvent's liabilities are to be satisfied from the estate being 
administered and not from the assets of the conservator or receiver. 
Therefore, satisfaction of an estate's debts or liabilities would not 
reach the general assets of the FDIC, the RTC, those of any other 
government entity acting in a similar capacity, or those of a private 
person acting on behalf of the government conservator or receiver.

B. Legal Authority

    The legal basis for this proposed rule is the Agency's broad 
authority to issue regulations interpreting and implementing the 
provisions of RCRA subtitle I at issue in this proposal. Section 
9003(b), 42 U.S.C. 6991b(b) provides EPA with authority to ``promulgate 
release detection, prevention, and correction regulations applicable to 
all owners and operators of underground storage tanks, as may be 
necessary to protect human health and the environment.''3
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    \3\The recent decision by the U.S. Court of Appeals for the D.C. 
Circuit in Kelley, et al. v. EPA, No. 93-1312 (Feb. 4, 1994) does 
not apply to or affect the rule the Agency is proposing today. The 
Kelley decision vacated the Agency's rule on lender liability under 
CERCLA, which interpreted a statutory exemption under CERCLA which 
is similar to that under RCRA Subtitle I, because ``EPA lack[ed] 
statutory authority to restrict by regulation private rights of 
action arising under the statute. . .'' Kelley, slip op. at 3. As 
noted above, Sec. 9003 expressly confers upon EPA a broad rulemaking 
authority; to the extent that the grants of rulemaking authority 
were not sufficiently explicit under CERCLA, such is not the case 
under RCRA Subtitle I.
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    The Agency is proposing to define the regulatory terms under which 
a secured creditor may, consistent with the statutory exemption, avoid 
responsibility for corrective action as an owner and operator of an 
underground storage tank, as well as proposing an exemption from 
certain financial responsibility requirements. As discussed elsewhere 
in this preamble (See Section III.D), the statutory exemption from 
corrective action liability addresses only owners of underground 
storage tanks, while the statute and EPA's implementing regulations 
extend liability to both owners and operators. The Agency believes that 
without promulgating a rule under EPA's broad grant of rulemaking 
authority applying the protection found in the statutory security 
interest exemption to operators as well as owners, the statutory 
exemption may be rendered virtually meaningless, since an owner of an 
UST is also typically an UST operator. EPA does not believe that 
Congress, in creating section 9003(h)(9), intended for an otherwise 
exempt holder of a security interest to nonetheless fall subject to 
corrective action obligations as an operator. As such, EPA's exercise 
of its rulemaking authority in the proposed rule is appropriate and, 
perhaps, needed to fully effectuate the purpose of the statute.
    In addition, the Agency has explicit rulemaking authority to, in 
its discretion, exempt certain classes of owners and operators from 
corrective action obligations (i.e., holders of security interests as 
described in this proposal). Section 9003(b) permits the Agency, in 
promulgating regulations under subtitle I, to make distinctions in its 
UST regulations between types or classes of tanks, based upon, inter 
alia, ``the technical capability of the owners and operators.'' Because 
security interest holders are typically not as a general matter engaged 
in the operation and maintenance of USTs (and thus do not possess the 
technical capacity of most UST owners and operators), EPA does not 
believe that requiring them to comply with highly detailed technical 
requirements is appropriate where requiring them to do so is not 
necessary for protection of human health and the environment. 
Furthermore, the Agency believes an exemption from these regulatory 
requirements is appropriate in the context of this proposed rule, where 
an exemption will serve, albeit indirectly, to advance the goals of 
subtitle I by making credit more available and thus aiding in the 
implementation of tank upgrade requirements.
    However, this authority is not open-ended, as section 9003(a) 
requires EPA to promulgate regulations that are protective of human 
health and the environment. Without compromising the level of 
protectiveness established by the UST program, EPA previously relied on 
its section 9003(b) authority when it excluded a group of owners and 
operators from RCRA subtitle I requirements in the final Financial 
Responsibility Rule (53 FR 43322, Oct. 26, 1988). (In relevant part, 
the preamble to the final Financial Responsibility Rule states: ``The 
Agency does not interpret the Congressional intent of subtitle I to 
preclude exempting any class of USTs from otherwise applicable 
requirements when the Agency has determined that such requirements are 
not necessary to protect human health or the environment.'') That rule 
exempted states and the federal government from the UST financial 
responsibility requirements since those entities were, as a class, able 
to satisfy the purpose of the financial responsibility requirements in 
the absence of regulation.
    Similarly, for purposes of this proposal, EPA believes that it is 
reasonable, in light of the purposes behind this proposal, to exempt a 
holder from RCRA subtitle I corrective action requirements as an 
operator if its USTs are empty and secure (as would be required under 
today's proposal) or if the holder chooses to also engage in 
environmentally beneficial activities (as discussed in Section III. E 
of this preamble). Because of the requirements a holder must meet 
before enjoying this proposed exemption, EPA's UST regulations will 
satisfy the statutory requirement that they be protective of human 
health and the environment.

C. Liability of a Holder as an Owner of an Underground Storage Tank or 
Underground Storage Tank System

    The following sections describe the key terms used in this proposed 
rule. For the most part, these are also terms used in the section 
9003(h)(9) security interest exemption. This section specifies the 
activities that are not ``participating in the management'' of a tank 
and which a holder may under today's proposal, engage in consistent 
with subtitle I regulatory requirements.
1. Petroleum Production, Refining, and Marketing
    ``Production of petroleum'' includes, but is not limited to, 
activities involved in the production of crude oil or other forms of 
petroleum, as well as the production of petroleum products from 
purchased materials, either domestically or abroad. ``Refining'' 
includes the processes of cracking, distillation, separation, 
conversion, upgrading, and finishing of refined petroleum or petroleum 
products. ``Marketing'' includes the distribution, transfer, or sale of 
petroleum or petroleum products for wholesale or retail purposes. A 
holder who stores petroleum products in USTs for on-site consumption 
only, such as to provide heat to an office building or to refuel its 
own vehicles, is not considered to be engaged in petroleum production, 
refining, or marketing for the purposes of the UST regulatory program.
2. Indicia of Ownership
    EPA is proposing that ``indicia of ownership'' means ownership or 
evidence of an ownership interest in a petroleum UST or UST system. EPA 
is not proposing to limit or qualify type, quality, or quantity of 
ownership indicia that may be held by a person for the purpose of the 
regulatory exemption. The nature of the ownership interest may vary 
according to the type of secured transaction and the nature of the 
holder's relationship (such as that of a guarantor or surety). 
Accordingly, indicia of ownership may be evidence of any ownership 
interest or right to an UST or UST system, such as a security interest, 
an interest in a security interest, or any other interest in an UST or 
UST system. For purposes of this proposed rule, examples of such 
indicia include, but are not limited to, a mortgage, deed of trust, or 
legal or equitable title obtained pursuant to foreclosure or its 
equivalents, a surety bond, guarantee of an obligation, or an 
assignment, lien, pledge, or other right to or form of encumbrance 
against an UST or UST system. Accordingly, it is not necessary for a 
person to hold actual title or a security interest in order to maintain 
some indicia or evidence of ownership in an UST or UST system.
3. Primarily To Protect a Security Interest
    EPA is proposing that the term ``primarily to protect a security 
interest'' as used in this proposed regulation means a holder's indicia 
of ownership are held primarily for the purpose of securing payment or 
performance of an obligation. EPA intends this phrase to require that 
the ownership interest be maintained primarily for the purpose of, or 
primarily in connection with, securing payment or performance of a loan 
or other obligation (a security interest), and not an interest in the 
UST or UST system held for some other reason.
    A security interest may arise pursuant to a variety of statutory or 
common law financing transactions. While a security interest is 
ordinarily created by mutual consent, such as a secured transaction 
within the scope of Article 9 of the Uniform Commercial Code, there are 
other means by which a security interest may be created, some of which 
may or may not be the result of a consensual arrangement between the 
parties to the transaction. In general, a transaction that gives rise 
to a security interest within the ambit of this proposed rule is one 
that provides the holder with recourse against an UST or UST system of 
the person pledging the security; the purpose of the interest is to 
secure the repayment of money, the performance of a duty, or of some 
other obligation. See generally J. White & R. Summers, Handbook on the 
Uniform Commercial Code Sec. 22 (2d Ed. 1980); Restatement of Security 
(1941).
    As a matter of general law, security interests may arise from 
transactions in which an interest in an UST or UST system is created or 
established for the purpose of securing a loan or other obligation, and 
includes mortgages, deeds of trust, liens, and title held pursuant to 
lease financing transactions. Security interests may also arise from 
transactions such as sale-and-leasebacks, conditional sales, 
installment sales, trust receipt transactions, certain assignments, 
factoring agreements or accounts receivable financing agreements, 
consignments, among others, provided that the transaction creates or 
establishes an interest in an UST or UST system for the purpose of 
securing a loan or other obligation.
    In contrast, ``indicia of ownership'' held ``primarily to protect 
[a] security interest'' do not include evidence of interests in the 
nature of an investment in the UST or UST system, or an ownership 
interest held primarily for any reason other than as protection for a 
security interest. The person holding ownership indicia to protect a 
security interest may have additional, secondary reasons for 
maintaining the indicia in addition to protecting a security interest; 
maintaining indicia for reasons in addition to protecting a security 
interest may be consistent with the exemption and this proposed rule. 
However, any such additional reasons must be secondary to protecting a 
security interest in the secured UST or UST system. EPA recognizes that 
lending institutions have revenue interests in the loan transactions 
that create security interests; such revenue interests are not 
considered to be investment interests, but are considered secured 
transactions falling within the proposed security interest regulatory 
exemption.
4. ``Holder'' of Ownership Indicia
    A ``holder'' as used in this proposed regulation is a person who 
maintains ownership indicia primarily to protect a security interest, 
however acquired or held. The term ``holder'' includes the initial 
holder (such as the loan originator) and any subsequent holder, such as 
a successor-in-interest, subsequent purchaser on the secondary market, 
loan guarantor, surety, or other person who maintains indicia of 
ownership primarily to protect a security interest. The term also 
includes any person acting on behalf of or for the benefit of the 
holder, such as a court-appointed receiver or a holder's agent, 
employee, or representative.
    Finally, it should be noted that lending institutions, which 
typically hold a large number of security interests, may also act in 
some trustee, fiduciary, or other capacity with respect to an UST or 
UST system. However, this rule does not address circumstances in which 
a lending institution or any person acts as a trustee, or in a non-
lending capacity, or has any interest in an UST or UST system other 
than as provided in this rule. Because this proposed regulation, as 
well as the exemption in section 9003(h)(9), addresses only persons who 
maintain a ``security interest,'' any discussion of persons with other 
interests or involvement in an UST or UST system is beyond the scope of 
this proposed rule. Of course, a trustee or other fiduciary with 
respect to an UST or UST system (or any person who independent of the 
status as trustee or fiduciary) who holds indicia of ownership in the 
UST or UST system primarily to protect a security interest may fall 
within this proposed security interest regulatory exemption.
5. Participating in Management
    EPA proposes that, as used in this proposed rule, ``participation 
in the management of an UST or UST system'' means the actual 
involvement in the management or control of decisionmaking related to 
the UST or UST system by the holder. Participation in management does 
not include the mere capacity or unexercised right or ability to 
influence UST or UST system operations. This proposal contains a list 
of activities that is not all-inclusive, but which generally describes 
activities that are not considered to be evidence that a holder is 
participating in the management of an UST or UST system. In addition, 
to address those other activities not specifically listed, a general 
test of management participation is proposed. The general test 
specifies that a holder is considered to be participating in 
management, within the scope of this proposed regulatory exemption, 
when it exercises decisionmaking control over the borrower's UST or UST 
system, or where the holder assumes overall management responsibility 
encompassing decisionmaking authority over the enterprise that includes 
day-to-day operation of the UST or UST system.
    Under the proposed rule, activities that are evidence that a holder 
is participating in the management of an UST or UST system, and thus 
acting outside the scope of this proposed regulatory exemption, 
include: Exercising management control or decisionmaking authority over 
operational aspects of an UST or UST system, or securing a lease 
agreement, contractual arrangement, or employee relationship with any 
other person to manage or operate the UST or UST system. Such 
activities indicate that a holder is involved in or exercising 
decisionmaking control of operations of the UST or UST system in which 
the holder has a security interest.
    For purposes of this proposed rule, a holder performing the 
functions of a plant manager, operations manager, chief operating 
officer, chief executive officer, and the like, of the facility or 
business at which the UST is located is considered to be exercising 
management control or decisionmaking authority over the operational 
aspects of the UST or UST system and therefore, participating in 
management, unless the responsibilities for the position specifically 
exclude all UST responsibilities. Control over the operational aspects 
of management should not be confused, however, with those activities 
which constitute administrative or financial management or involvement 
in non-operational activities. Such activities may be engaged in by a 
holder in the course of managing a loan portfolio and do not exceed the 
boundaries of the security interest exemption. Such activities may 
include providing financial or other assistance, environmental 
investigations or monitoring of the borrower's business and collateral, 
engaging in ``loan work out'' activities, foreclosing on a secured UST 
or UST system, winding down operations following foreclosure or its 
equivalents, or divesting itself of the foreclosed-on property 
containing an UST or UST system. These, as well as other actions 
related to a holder's financial and administrative obligations, are 
discussed in more detail in the following section.
    a. General Test of Management Participation. It is not possible to 
specifically cover in this proposed rule or any regulation every 
conceivable situation in which a holder might act, or to make specific 
provisions for every action that a holder might undertake that might 
make it ineligible for the protection of the proposed security interest 
regulatory exemption, voiding the security interest exemption. A 
general test or standard of participation in an UST or UST system's 
management has therefore been formulated to provide a framework within 
which to assess the consistency of a holder's actions with the 
limitations of the proposed regulatory exemption.
    This proposal's two-prong test or standard of management 
participation provides that while the borrower is still in possession 
of an UST or UST system (i.e., pre-foreclosure), a holder participates 
in the management of an UST or UST system only where the holder either 
exercises decisionmaking control over the UST or UST system, or where 
the holder's actions manifest or assume responsibility for the overall 
management of the UST or UST system's day-to-day operations. The 
general test adopts a functional approach which focuses on the holder's 
actual decisionmaking involvement in the operational (as opposed to the 
financial or administrative) affairs of the borrower's UST or UST 
system. The first prong looks to whether the holder has exercised 
decisionmaking control over the borrower's environmental compliance. If 
so, the holder is ``participating in the management'' of the UST or UST 
system as defined in the proposed rule. Similarly, the second prong 
looks to where the holder is functioning as the overall manager by 
exercising management at a level encompassing the borrower's 
environmental obligations, or over all or substantially all of the 
operational aspects of the borrower's enterprise, regardless of whether 
decisionmaking control over compliance with the regulations governing 
the UST or UST system has been explicitly assumed or not. This level of 
actual involvement in the management of the UST or UST system is 
sufficient to constitute management participation for purposes of this 
proposed regulatory exemption.
    Under the first prong of the general test, a holder cannot remain 
within the scope of the exemption if it controls the borrower's 
environmental compliance activities associated with the UST or UST 
system. Under the second prong of the general test, the ability to 
carve out environmental compliance responsibilities from other 
operational aspects of the borrower's business or enterprise 
demonstrates that the holder has manifested or assumed operational 
responsibility at a management level that includes environmental 
matters, and in doing so is considered to be participating in the UST 
or UST system's management.
    However, management participation does not include the unexercised 
right to become involved in operational UST or UST system 
decisionmaking. In other words, if the holder does not exercise its 
rights to participate in the management of the UST or UST system, it 
still may qualify for the security interest exemption. Whether the 
exercise of rights that a holder might have--whether under contract or 
other agreement (if any) or otherwise, including the enforcement of 
loan terms and covenants or other rights--rises to the level of 
participation in the UST or UST system's management is measured by 
reference to the general test.
    b. Actions that are not participation in management. Participation 
in the following activities will not exclusively, in themselves, exceed 
the bounds of this proposed regulatory exemption: Policing the loan, 
undertaking financial work out with a borrower where the obligation is 
in default or in threat of default, undertaking foreclosing and winding 
up operations (as described later in this proposal), or preparing the 
UST or UST system for sale or liquidation. In addition, the holder is 
not considered to be participating in the management of the UST or UST 
system by monitoring the borrower's business; by requiring or 
conducting on-site investigations, including site assessments, 
inspections, and audits, of the environmental condition of the UST or 
UST system or the borrower's financial condition; by monitoring other 
aspects of the UST or UST system considered relevant or necessary by 
the holder; by requiring certification of financial information or 
compliance with applicable duties, laws, or regulations, or by 
requiring other similar actions, provided that the holder does not 
otherwise participate in the management or operation of the UST or UST 
system, as provided in this proposed regulation. Such oversight and 
obligations of compliance imposed by the holder are not considered part 
of the management of an UST or UST system. Although such requirements 
and oversight may inform and perhaps strongly influence the borrower's 
management of an UST or UST system, the holder is not considered to be 
participating in management where the borrower continues to make 
operational decisions concerning the UST or UST system.
    The protected activities of a holder that are specifically 
identified in this rule are consistent with the language of RCRA 
section 9003(h)(9) and the overall purpose of subtitle I. Judicial 
decisions construing the substantially similar language of CERCLA 
section 101(20)(A) have addressed the issue of the appropriate degree 
of a holder's involvement at a facility in which it held a security 
interest (i.e., the standard of ``participation in management''). 
Although the cases articulated the CERCLA standard using different 
language, these cases generally held that the exemption is abrogated 
once a holder has divested the borrower or debtor of its management 
authority prior to foreclosure, such as when the holder becomes 
involved in the facility's day-to-day operations, where it becomes 
overly entangled in the affairs of the facility, or where its 
involvement otherwise affects a facility's hazardous waste practices. 
See United States v. Maryland Bank & Trust Co., 632 F. Supp. 573 (D. 
Md. 1986); United States v. Mirabile, 15 Envtl. L. Rep. (Envtl. L. 
Inst.) 20994 (E.D. Pa. 1985) (participation in financial management 
insufficient to void the security interest exception to owner 
liability); United States v. Fleet Factors Corp., 901 F.2d 1550 (11th 
Cir. 1990), cert. denied, 111 S.Ct. 752 (1991).
    Other cases interpreting the provisions of CERCLA established that 
a holder's involvement in financially related matters--such as periodic 
monitoring or inspections of secured property, loan refinancing and 
restructuring, financial advice, and similar activities--will not void 
the exemption. See Guidice v. BFG Electroplating and Manufacturing Co., 
732 F. Supp. 556 (W.D. Pa. 1989); United States v. Nicolet, 29 Envtl. 
Rep. Cas. (BNA) 1851 (E.D. Pa. 1989); United States v. Mirabile, 15 
Envtl. L. Rep. (Envtl. L. Inst.) 20994 (E.D. Pa. 1985) (participation 
in financial management insufficient to void the security interest 
exception to owner liability). The variations in the courts' 
articulations of the standard, however, left unclear the precise degree 
of involvement that could be undertaken without voiding the CERCLA 
exemption. See, e.g., Fleet Factors Corp., 901 F.2d at 1557 (secured 
creditor may incur CERCLA liability by participating in the financial 
management of a facility to a degree indicating a capacity to influence 
the corporation's treatment of hazardous waste); In re Bergsoe Metal 
Corp., 910 F.2d 668 (9th Cir. 1990) (``there must be some actual 
management of the facility before a secured creditor will fall outside 
the exception [found in CERCLA section 101(20)(A)]''). However, more 
recent cases under CERCLA have articulated a standard of management 
participation that is substantially similar to that in this proposed 
rule. See United States v. McLamb, 5 F. 3d 69 (4th Cir. 1993); 
Waterville Industries, Inc. v. Finance Authority of Maine, 984 F 2d. 
549 (1st Cir. 1993).
    While the cases listed above describe particular activities and 
draw a line between the actions of a holder that are and are not 
evidence of management participation for purposes of CERCLA, there 
remains uncertainty about the effect of activities commonly or 
routinely undertaken by a holder in the course of managing a loan 
secured by an UST or UST system. EPA believes that the uncertainty 
created for holders examining their potential for liability under 
CERCLA also exist when holders assess their potential obligations under 
RCRA subtitle I. Therefore, this proposed rule is intended to specify 
the compliance obligations for lenders when conducting normal business 
activities and to define with greater precision the point at which a 
holder's actions pass from loan oversight and advice to actual UST or 
UST system management.
    The following sections discuss and describe the specific activities 
of a holder that the proposed rule defines as either activities that 
indicate the holder's participation in the management of an UST or UST 
system or those that are not instances of participation in the 
management of an UST or UST system by a person holding indicia of 
ownership primarily to protect a security interest in the UST or UST 
system.
    It bears repeating, however, that the activities identified in this 
proposed rule do not specify the only activities that may be undertaken 
by a holder without losing the protection of the proposed security 
interest regulatory exemption, and one should not infer that activities 
not specifically mentioned in this rule are automatically considered 
evidence of participation in an UST or UST system's management--those 
must be addressed on a case-by-case basis based on the general test 
provided in this rule.
    (1) Actions at the inception of the loan or other transaction 
giving rise to a security interest. Actions undertaken by a holder 
prior to the inception of a transaction in which indicia of ownership 
are held primarily to protect a security interest are irrelevant with 
respect to the general test of participation in management, and thus 
are not considered evidence of participation in the management of the 
UST or UST system. Thus, consultation and negotiation concerning the 
structure and terms of the loan or other obligation, the payment of 
interest, the payment period, and specific or general financial or 
other advice, suggestions, counseling, guidance, or other actions at or 
prior to the time that indicia of ownership are first held are not 
considered evidence of participation in the management of the UST or 
UST system for purposes of this proposed rule. Activities that take 
place prior to holding indicia of ownership are not relevant for 
determining whether the holder has participated in the management of 
the UST or UST system after the time that the holder acquires indicia 
of ownership.
    In addition to such pre-loan involvement, a holder may determine 
(whether for risk management or any other business purpose) to 
undertake or require an environmental investigation (which could 
include a site assessment, inspection, and/or audit) of an UST or UST 
system securing the loan or other obligation. Such environmental 
investigation may be undertaken by the holder, for example, or the 
holder may require one to be conducted by another party (such as the 
borrower) as a condition of the loan or other transaction. Neither RCRA 
Subtitle I nor this proposed rule require that such an environmental 
investigation be undertaken to qualify for the security interest 
exemption, and the obligations of a holder seeking to avail itself of 
the exemption cannot be based on or affected by the holder's not 
conducting or not requiring an environmental investigation in 
connection with the security interest. Similarly, a holder is not 
engaged in management participation solely as a result of undertaking 
or requiring an environmental investigation, and nothing in this 
proposed rule should be understood to discourage a holder from 
undertaking or requiring such an environmental investigation in 
circumstances deemed appropriate by the holder. Because lender-
conducted or -required investigations of a borrower's business or 
collateral are information-gathering in nature, such activities cannot, 
alone, be considered to be management participation by a holder.
    In the event that a pre-loan environmental investigation of a UST 
or UST system reveals contamination, the holder may undertake any one 
of a variety of responses that it deems appropriate: For example, the 
holder may refuse to extend credit or to follow through with the 
transaction or instead maintain indicia of ownership in other, non-
contaminated property as protection for the security interest. 
Alternatively, a holder may determine that the risk of default is 
sufficiently slight (or that the extent of contamination is minimal and 
does not significantly affect the value of the UST or UST system as 
collateral) to proceed to extend credit and maintain indicia of 
ownership in the UST or UST system. Additionally, the holder may 
require the borrower to clean up the contamination as a condition for 
extending the loan. Such activities are not considered participation in 
the UST or UST system's management, and a holder that knowingly takes a 
security interest in contaminated collateral is not subject to 
compliance with the RCRA Subtitle I corrective action regulatory 
program solely on this basis.
    (2) Policing the security interest or loan. A holder may undertake 
actions that are consistent with holding ownership indicia primarily to 
protect a security interest which include, but are not limited to, a 
requirement that the borrower clean up a release from the UST or UST 
system which may have occurred prior to or during the life of the loan 
or security interest (as described in the last section); a requirement 
of assurance of the borrower's compliance with applicable federal, 
state, and local environmental or other laws and regulations during the 
life of the loan or security interest; securing authority or permission 
for the holder to periodically or regularly monitor or inspect the UST 
or UST system in which the holder possesses indicia of ownership, or 
the borrower's business or financial condition, or both; or to comply 
with legal requirements to which the holder is subject; or other 
requirements or conditions by which the holder is able to police 
adequately the loan or security interest, provided that the exercise by 
the holder of such other loan policing activities are not considered 
evidence of management participation as provided in the proposed rule's 
``general test'' of management participation.
    The authority for the holder to take such actions may be contained 
in contractual (e.g., loan) documents or other relevant documents 
specifying requirements for financial, environmental, and other 
warranties, covenants, and representations or promises from the 
borrower. While the regulatory exemption in this proposed rule requires 
that the actions undertaken by a holder in overseeing or managing the 
loan or other obligation be consistent with those of a person whose 
indicia of ownership in an UST or UST system is held primarily to 
protect a security interest, a holder is not expected to be an insurer 
or guarantor of environmental safety or quality at a secured UST or UST 
system. The inclusion of environmental warranties and covenants is not 
considered to be evidence of a holder's acting as an insurer or 
guarantor, and a finding of ``management participation'' cannot be 
premised solely on the existence of such terms or upon the holder's 
actions that ensure that the UST or UST system is managed in an 
environmentally sound manner. Since these actions are consistent with 
holding indicia of ownership primarily to protect a security interest, 
they are not considered to be participation in management in this 
proposed rule.
    (3) Loan work out. The holder may determine that actions need to be 
taken with respect to the UST or UST system to safeguard the security 
interest from loss. These actions may be necessary when, for example, a 
loan is in default or threat of default, and are commonly referred to 
as ``loan work out'' activities. ``Loan work out'' is largely an 
undefined term but is generally understood in the financial community 
to mean those activities undertaken to prevent, mitigate, or cure a 
default by the obligor or to preserve or prevent the diminution of the 
value of the security. Loan work out activities are recognized by EPA 
as a common lender undertaking and, as such, these actions will not 
take a holder outside of the scope of the security interest exemption 
provided for in this proposed rule, provided that such actions are 
consistent with the proposed general test of management participation.
    When the holder undertakes loan work out activities, provides 
financial or other advice, or similar support to a financially 
distressed borrower, the holder will remain within the scope of the 
proposed security interest regulatory exemption only so long as the 
holder does not participate in management as provided by this proposed 
rule's general test. Loan work out actions that are not evidence of 
``participation in management'' include, but are not limited to: 
Restructuring or renegotiating the terms of the security interest; 
requiring payment of additional rent or interest; exercising 
forbearance with regard to the security interest; requiring or 
exercising rights pursuant to an assignment of accounts or other 
amounts owing to an obligor; requiring or exercising rights pursuant to 
an escrow agreement pertaining to amounts owing to an obligor; 
providing specific or general financial or other advice, suggestions, 
counseling, or guidance; and exercising any right or remedy the holder 
is entitled to by law or under any warranties, covenants, conditions, 
representations, or promises from the borrower.
    (4) Foreclosure and sale or liquidation. Foreclosure and possession 
of property for purposes of sale or liquidation are often the only 
remedy the holder may have to secure performance of an obligation. The 
process of foreclosure and sale or liquidation of a foreclosed-on UST 
or UST system often results in the exclusive possession of the UST or 
UST system by the holder and may require or result in the holder's 
taking record title to the UST or UST system under the laws of some 
states. For purposes of this proposed rule, the term ``foreclosure or 
its equivalents'' includes foreclosure, purchase at foreclosure sale, 
acquisition or assignment of title in lieu of foreclosure, acquisition 
of a right to possession or title, or other agreement in settlement of 
the loan obligation, or any other formal or informal manner by which 
the holder acquires possession of the borrower's collateral for 
subsequent disposition in partial or full satisfaction of the 
underlying obligation. These actions are considered to fall within the 
scope of the proposed regulatory exemption as necessary incidents to 
holding ownership indicia primarily to protect a security interest. 
However, a holder is under the coverage of the proposed rule and is not 
considered an ``owner'' of a UST or UST system only so long as the 
holder's acquisition pursuant to foreclosure is reasonably necessary to 
ensure satisfaction or performance of the obligation, is temporary in 
nature, and occurs while the holder is actively seeking to sell or 
otherwise divest the foreclosed-on UST or UST system.
    To meet the requirements of the proposed rule's exemption from 
regulatory compliance as an ``owner'' following foreclosure, a holder 
must be acting consistently with the security interest exemption's 
requirement that the ownership indicia maintained by the holder 
continue to be held primarily to protect the security interest. Where a 
holder's actions indicate that it is not seeking to sell or liquidate 
the secured assets, the exemption is voided because such actions are 
akin to holding the asset for investment purposes. This proposed 
regulation describes circumstances under which a holder may avoid being 
considered an ``owner'' of property on which it forecloses for purposes 
of certain Subtitle I regulations. It is only by complying with the 
provisions of this proposed rule that the limited ownership rights of a 
security holder do not rise to the level of full ``ownership'' 
sufficient to make the security holder an ``owner'' of the tank, as 
that term is used in EPA's UST regulations. The proposed rule first 
provides a set of general criteria for offering an UST or UST system 
for sale, and when and under what circumstances an offer of purchase 
may or may not be rejected. In addition, even though a holder is 
permitted to use whatever means are appropriate and available to sell 
or otherwise divest itself of foreclosed-on property, as a measure of 
certainty this proposed rule contains an objective test that, if 
followed by a holder, establishes that the holder is meeting the 
general obligation to divest itself of a foreclosed-on UST or UST 
system in a reasonably expeditious manner. EPA believes that this 
aspect of the proposed rule is consistent with the RCRA Subtitle I 
security interest exemption.
    In general, under this proposal, a foreclosing holder must, in 
order to maintain consistency with the security interest exemption, 
seek to sell or otherwise divest itself of foreclosed-on property in a 
reasonably expeditious manner using whatever commercially reasonable 
means are available or appropriate, taking all facts and circumstances 
into account. A holder cannot, under the terms of the proposed rule, 
reject or refuse offers for the property that represent fair 
consideration for the asset and remain within the proposed regulatory 
exemption. A holder that outbids or refuses offers from parties 
offering fair consideration for the property establishes that the 
property is no longer being held primarily to protect a security 
interest. The terms of the bid are relevant for this purpose, and a 
holder is not required to accept offers that would require it to breach 
duties owed to other holders, the borrower, or other persons with 
interests in the property that are owed a legal duty. In addition, the 
term ``fair consideration'' refers to an all cash offer, which is 
intended to ensure that this proposed rule would not require a holder 
to accept a bid that contains unacceptable conditions, such as 
requirements for indemnification agreements, non-cash offers, 
``bundled'' offers, etc. This proposed provision should not be read to 
require that a holder may accept only cash offers, however; a holder is 
always free to accept any offer satisfactory to the holder. The exact 
requirement that would be imposed by this proposed regulation is that a 
holder may not reject a cash offer of fair consideration for the 
foreclosed-on property. If it does, or if it outbids others offering 
fair consideration, then the holder would, under today's proposal, be 
considered to be an owner of the UST or UST system in the same manner 
as any other purchaser.
    This proposed rule's provisions defining ``fair consideration'' and 
specifying when the foreclosing holder may reject or outbid offers for 
the property are formulated to reflect the amount that the holder may 
bid at the foreclosure sale, or not reject during the foreclosure sale 
or thereafter, in order to recover on its loan or other obligation. In 
addition, there may be multiple security interests in a borrower's 
property held by secured creditors, which the definition of ``fair 
consideration'' must account for. Therefore, for a senior creditor, the 
term ``fair consideration'' is proposed to mean a cash amount that 
represents a value equal to or greater than the outstanding obligation 
owed to the holder (including the fees, penalties, and other charges 
incurred by the holder in connection with the property). ``Fair 
consideration'' is further proposed to indicate that the amount that 
will recover the holder's ``security interest'' in the property may 
vary depending on the seniority of the loan or other obligation that is 
being foreclosed upon. Specifically, a junior creditor may be required 
to outbid senior creditors in order to recover the value of its loan or 
other obligation. The definition of fair consideration therefore 
distinguishes between what junior or senior creditors may bid or not 
reject for purposes of maintaining the exemption. In addition, in order 
to avoid liability under law (for example, to the borrower), the 
foreclosing holder may be required to seek an amount at the foreclosure 
sale that is greater than the outstanding obligation owed to the 
foreclosing holder, or to sell the property in a different manner; 
therefore, the proposed rule does not require a holder to accept an 
offer of ``fair consideration'' if to do so would subject the holder to 
liability under federal or state law.
    In this way the proposed rule's provisions with respect to the sale 
or disposition of property will not conflict with the manner in which 
such sales are required to be conducted under general principles of law 
applicable to the holder and the disposition of the property including 
the UST. For purposes of this proposed rule, the definition of ``fair 
consideration'' is an objective, ``bright-line'' test to determine 
whether the foreclosing holder has an investment or other interest in 
the property that is not within the exemption, or whether the holder's 
post-foreclosure activities indicate that it continues to maintain its 
ownership indicia in the property primarily to protect a security 
interest, and is therefore within the protective ambit of the proposed 
rule.
    While a holder may use whatever means are reasonable and 
appropriate for marketing foreclosed-on property to establish that it 
is seeking to divest itself of property in an expeditious manner, this 
proposed rule also provides a mechanism by which a holder can 
definitely establish that it continues to hold indicia of ownership 
primarily to protect a security interest and is not an ``owner,'' for 
purposes of complying with the UST regulatory program, of foreclosed-on 
property. This mechanism is intended to act as another ``bright line'' 
to provide clear and unambiguous evidence that a holder is not the UST 
or UST system's ``owner'' following foreclosure: A holder choosing to 
avail itself of this bright line test must, within 12 months following 
the acquisition of marketable title, list the property with a broker, 
dealer, or agent who deals with the type of property in question, or 
advertise the property as being for sale or disposition on at least a 
monthly basis in either a real estate publication or a trade or other 
publication suitable for the property in question, or a newspaper of 
general circulation (defined as one with a circulation over 10,000, or 
one suitable under any applicable federal, state, or local rules of 
court for publication required by court order or rules of civil 
procedure) covering the area where the property is located. If the 
holder satisfies these criteria, the holder is considered to have 
complied with the requirement in the proposed rule that it is seeking 
to sell or otherwise divest the property in an expeditious manner.
    EPA also recognizes that market conditions, the condition of the 
property, and other factors may mean that despite reasonable efforts to 
expeditiously sell or divest foreclosed-on property, the property may 
not be quickly sold. Therefore, this regulation does not impose a time 
requirement for the ultimate disposition of foreclosed-on property. 
Provided that the property is being actively offered for sale by the 
holder and no offers of fair consideration are ignored, outbid, or 
rejected, foreclosed-on property may continue to be held by the holder 
without the holder being considered an ``owner'' of the UST or UST 
system for purposes of complying with the UST regulatory program, as 
detailed in this proposed rule.
    Regardless of the manner in which the foreclosing holder chooses to 
market the property, if at any time after six months following the 
acquisition of marketable title the holder rejects, or does not act 
upon within 90 days of receipt of, a written, bona fide, firm offer of 
fair consideration for the property, the holder will lose the 
protection of the proposed rule. Under this proposal, a ``written, bona 
fide, firm offer'' is a legally enforceable, commercially reasonable, 
offer, including all material terms of the transaction, from a ready, 
willing, and able purchaser who demonstrates to the holder's 
satisfaction the ability to perform. Where a holder outbids, rejects, 
or fails to act upon an offer of fair consideration, the holder is 
considered, for the purpose of the proposed regulatory exemption, to be 
maintaining its indicia of ownership in the property as protection for 
investment purposes, and not as security for the obligation.
    The proposed exemption from regulatory compliance would also permit 
a foreclosing holder to undertake actions with respect to the UST or 
UST system to protect or preserve the value of the secured asset. For 
example, a holder may determine that it needs to take certain actions 
with respect to an UST or UST system's operations in order to preserve 
the value of the foreclosed-on assets or to prevent a future release 
(such as by the removal of an UST or UST system's contents as described 
below), or to otherwise prepare property for safe public access 
incident to sale or liquidation of assets. Precisely because a holder 
in charge of an UST or UST system may need to take affirmative action 
with respect to the UST or UST system incident to foreclosure and with 
respect to any petroleum products that are known to be present, the 
proposal provides that such actions of dominion and control over the 
UST or UST system are considered necessary components of holding 
ownership indicia primarily to protect a security interest, provided 
such actions are undertaken to protect the asset's value and are not 
undertaken for investment purposes. Therefore, under this proposed 
rule, such mitigative or preventative measures are considered to be 
actions that are consistent with holding ownership indicia primarily to 
protect the security interest in the UST or UST system.
    (5) Winding up operations after foreclosure. In addition, in the 
post-foreclosure context, this proposed rule provides that a holder 
that forecloses on an UST or UST system with ongoing operations may 
wind up the UST or UST system's operations without also being 
considered to be participating in management. Winding up is considered 
a protected activity by a foreclosing holder because, without such 
protection, foreclosure would not be possible where practical or 
commercial necessity dictates that the foreclosing holder undertake 
such actions. ``Winding up'' in the post-foreclosure context includes 
those actions that are necessary to close down an UST or UST system's 
operations, secure the site, and otherwise protect the value of the 
foreclosed assets for subsequent sale or liquidation. In winding up an 
UST or UST system, a holder may undertake all necessary security 
measures or take other actions that protect and preserve an UST or UST 
system's assets, including steps taken to prevent or minimize the risk 
of a release or threat of release of the UST or UST system's contents.

D. Liability of a Holder as an Operator of an Underground Storage Tank 
or Underground Storage Tank System

    Although this proposed rule would be promulgated under authority to 
write regulations governing UST activities, EPA intends that it be 
consistent with and further the purposes of the statutory security 
interest exemption found at Section 9003(h)(9). One critical aspect of 
the RCRA subtitle I statutory security interest exemption is that while 
it excludes a holder from the definition of ``owner'' for corrective 
action purposes, the statute does not explicitly address a holder's 
responsibilities as an UST or UST system ``operator.''4 The 
absence of explicit language in the statute regarding operators creates 
a potential problem for holders, since EPA's UST corrective action 
regulations (as described in Section II. B of this preamble) apply to 
both owners and operators of underground storage tanks. Thus, although 
RCRA subtitle I clearly exempts holders from corrective action 
liability as ``owners'' of USTs, the statute does not address whether 
such otherwise exempt persons face correction action liability as 
``operators'' of USTs. Without clear protection from corrective action 
liability as potential operators of USTs, EPA believes that lenders 
will continue to be reluctant to make loans to UST-related businesses 
due to continued uncertainty about their potential liability for 
corrective action. This regulatory proposal therefore addresses a 
holder's potential liability for RCRA subtitle I corrective action as 
an ``operator'' of an UST or UST system.
---------------------------------------------------------------------------

    \4\Under RCRA Subtitle I, being an ``operator'' is not 
synonymous with ``participating in the management'' of an UST or UST 
system. Section 9001(3)--Definitions and Exemptions--defines the 
term ``operator'' to mean ``any person in control of, or having 
responsibility for, the daily operation of the UST system.'' A 
person may, without being an ``operator'' of an UST or UST system, 
be sufficiently involved so as to be participating in the management 
(as that term is defined elsewhere in this proposal) of an UST or 
UST system.
---------------------------------------------------------------------------

1. Pre-Foreclosure Operation
    Prior to foreclosure, a holder who is in control of, or has 
responsibility for, the daily operation of an UST or UST system is 
subject to the full range of requirements applicable to operators of 
USTs. In addition, a holder may also forfeit the protection of the 
proposed regulatory security interest exemption from compliance with 
the UST regulatory program as an owner if the holder participates in 
the management of an UST or UST system as defined in this proposal.
    However, a holder will not, as a general matter, have control of, 
or responsibility for, the daily operation of an UST or UST system 
prior to foreclosure in its capacity as a secured creditor who holds 
indicia of ownership primarily to protect a security interest. Prior to 
foreclosure, a holder is permitted to conduct those activities related 
to its financial and administrative obligations of managing a loan 
portfolio. The holder in this position will not lose its ability to 
take advantage of the proposed regulatory exemption exclusively as a 
result of engaging in these activities. See Section III.C.5 of this 
preamble for a more complete discussion of this issue.
2. Post-Foreclosure Operation
    If a borrower defaults on its loan obligation and the holder, 
primarily to protect its security interest, forecloses on the 
borrower's UST or UST system, the holder is faced with the decision to 
continue or suspend the storage or dispensing of product from the UST. 
As with activities prior to foreclosure, a holder who operates an UST 
following foreclosure (in any manner other than placing the UST in 
temporary or permanent closure as specified in this proposal) would, 
under the current regulatory scheme, be an ``operator'' and subject to 
all subtitle I requirements. If the holder complies with the 
requirements of this rule for placing a tank into temporary or 
permanent closure, a holder, although nevertheless an operator, would 
be exempt from the subtitle I corrective action regulatory requirements 
otherwise applicable to operators.
    The strategies for complying with the UST technical standards 
described in this proposal include emptying tanks, leaving vent lines 
open and functioning, capping and securing lines within 15 days after 
foreclosure, and performing either temporary or permanent closure of 
the UST or UST system. Conversely, a foreclosing security holder who 
exercises some other strategy for complying with the subtitle I 
technical requirements (or who fails to comply) could be an 
``operator'' under the subtitle I regulations and would therefore be 
subject to the full panoply of subtitle I regulatory obligations 
applicable to all operators of tanks including the corrective action 
regulations.
    As long as an UST or UST system continues to store product, future 
releases are possible. Consequently, EPA believes that the best way to 
ensure that a holder's tanks will not contribute to contamination after 
the holder has taken possession of the UST or UST system (particularly 
if the holder is exempted from EPA's corrective action regulations) is 
to require the holder to empty its tanks of all petroleum product. An 
UST or UST system is empty--in accordance with Sec. 280.70--when all 
materials have been removed using commonly employed practices so that 
no more than 2.5 centimeters (one inch) of residue, or 0.3 percent by 
weight, of the total capacity of the UST system, remain in the system. 
To ensure that the UST system has been adequately secured, vent lines 
must be left open and functioning, and all other lines, pumps, manways, 
and ancillary equipment must be capped and secured (Sec. 280.70). Under 
today's proposal, holders who engage in these activities within 15 days 
after foreclosure will be exempted from the corrective action 
requirements applicable to ``operators.'' This is a reasonable 
condition on which to base this exemption since the threat of future 
contamination will have been effectively abated for the temporary 
period of time that the property remains in foreclosure by emptying the 
tank and complying with the other requirements of 40 CFR part 280, as 
described in this proposed rule. Compliance with these requirements 
will also satisfy the technical requirements applicable to foreclosing 
holders as ``operators'' under the rule proposed today.
    EPA is proposing that 15 days be allowed to empty the tank, and cap 
and secure all lines and equipment based on its familiarity with 
companies that specialize in providing UST technical services and on 
the Agency's knowledge of the steps required to properly complete these 
tasks. Based on this, EPA proposes that 15 days is a reasonable and 
adequate time frame that limits the period of time during which a tank 
containing petroleum product may be left largely unattended. However, 
the Agency is interested in receiving comments from any holders who 
feel that a 15-day time frame would be inadequate for a holder to 
arrange for the completion of these tasks. EPA requests comments and 
data about the adequacy of a 15-day time frame and information 
supporting an alternative time frame. Information supporting EPA's 
proposed time frame is available from the Agency OUST docket, reference 
number UST 3-16.
    In addition to emptying and securing the UST or UST system, a 
holder who wishes to take advantage of the proposed exemption from 
subtitle I corrective action regulatory requirements as an operator 
must comply with the subtitle I requirements for either temporary or 
permanent closure. A holder who chooses to permanently close its UST or 
UST system, must do so in accordance with Secs. 280.71 through 280.74, 
Subpart G--Out of Service UST Systems and Closure. A holder who chooses 
to temporarily close its tanks is required, throughout the first 12 
months following foreclosure, to maintain corrosion protection and 
report any known or suspected releases from the UST system. In 
accordance with Sec. 280.70, release detection is not required as long 
as the UST system is empty.
    If, after 12 months in temporary closure status, the holder 
possesses an UST or UST system that does not meet either the 
performance standards in Sec. 280.20 for new UST systems or the 
upgrading requirements in Sec. 280.21 (excluding the spill and overfill 
equipment requirements), and the holder has not successfully disposed 
of the UST or UST system, the holder must either permanently close the 
UST system in accordance with Secs. 280.71 through 280.74 or perform a 
site assessment in accordance with Sec. 280.72(a) and apply for an 
extension through the appropriate implementing agency.
    A holder will only need to perform a site assessment if it has 
failed to sell or otherwise divest of its UST or UST system property 
within 12 months after entering temporary closure and only if the tanks 
it has acquired have not been upgraded or replaced to meet the 
requirements of Sec. 280.20 for new UST systems or Sec. 280.21 for 
upgraded systems. (UST systems that are adequately protected from 
corrosion and equipped with leak detection devices pose a significantly 
lower threat to human health and the environment than do substandard 
tanks.) The site assessment requirement can also be satisfied if one of 
the external release detection methods allowed in Sec. 280.43(e) or (f) 
is operating at the end of the 12-month period, and the release 
detection method operating indicates that no release has occurred. For 
those who are still in possession of tanks 12 months after foreclosure, 
many are expected to possess upgraded or replaced tanks since much of 
the credit that is expected to be extended subsequent to this rule 
should be used for upgrading or replacing substandard tanks. Under 
these circumstances, the holder would be allowed to remain in temporary 
closure indefinitely. Therefore, EPA believes that few situations 
should call for a site assessment while the holder is in temporary 
closure. For those cases in which a holder will find it necessary to 
perform a site assessment and apply for a temporary closure extension, 
EPA does not believe that such a requirement will pose a significant 
additional burden upon the holder, since it is increasingly a standard 
business practice for a site assessment to be conducted upon most 
transfers of commercial property. (See Guidelines for an Environmental 
Risk Program, Federal Deposit Insurance Corporation, February 25, 
1993.) While in some cases the requirement may oblige a holder to 
perform a site assessment sooner (within 12 months after foreclosure) 
rather than later (upon the date of sale or disposition of the UST or 
UST system), EPA expects that in most cases a site assessment will, in 
all probability, be performed before the UST or UST system is 
transferred to a subsequent purchaser.
    The purpose of the provision that requires an UST owner and 
operator to perform a site assessment in order to apply for an 
extension 12 months after entering temporary closure (if a substandard 
UST or UST system has not been replaced or upgraded) was to allow a 
variance mechanism for UST owners to avoid permanent closure of tanks, 
on a case-by-case basis. The reason for requiring the site assessment 
before applying for an extension was based on EPA's concerns that prior 
contamination could have occurred and could continue to spread from a 
temporarily closed UST system. Although a holder would not be required 
to comply with EPA's UST corrective action regulations if contamination 
is discovered (provided, of course, the holder satisfies the 
requirements of this proposed rule), it would be required to report 
evidence of the contamination to the implementing agency (as discussed 
in the following subsection), who can then decide on the appropriate 
course of action.
    Of course, a holder may choose to continue to operate the UST by 
storing or dispensing product after foreclosure, or otherwise not 
exercise either of the options described above. The holder may 
determine that its interests will be best served by forgoing the 
security interest exemption, continuing operation of the UST system, 
and perhaps realizing a greater return of capital on the security 
interest by selling the property with the UST system as a going 
concern. In such cases, the tank would be regulated in the same manner 
as a tank operated by any other person, and the holder would be fully 
responsible as an operator for compliance with RCRA subtitle I 
regulations, including corrective action, the UST technical standards, 
and financial responsibility requirements.
    EPA believes that the environment is adequately protected where a 
holder chooses either of the post-foreclosure options described above 
for complying with the technical requirements of Subtitle I. Where the 
tank is removed from service and emptied of its contents, the threat of 
an unknown or undetected leak resulting in environmental contamination 
is abated; accordingly, the Agency believes it is appropriate to exempt 
a foreclosing holder from UST corrective action regulatory requirements 
under these circumstances.
3. Lenders in Foreclosure Upon the Effective Date of the Rule
    The Agency recognizes that some lenders may already hold UST 
properties through foreclosure or its equivalents at the time the final 
rule is promulgated. Although EPA is primarily concerned about the 
future availability of capital to UST owners and operators, rather than 
loans that have already been extended, the Agency recognizes that 
holders may be concerned about their potential liability associated 
with current holdings acquired through foreclosure or its equivalents 
affecting the extension of future UST loans. A holder who possesses an 
UST property at the time the rule is promulgated may have tanks that 
still store product. It would be difficult to determine whether or not 
contamination caused by a release from such tanks had occurred during 
the time that the holder had possession of the UST property. A holder, 
therefore, could potentially be held liable as an UST operator if he 
has possession of a tank at the time the final rule is promulgated.
    EPA requests comments on this aspect of today's proposal. We are 
interested in collecting data that will clarify whether future UST loan 
decisions would be negatively affected if the security interest 
exemption is not extended to holders possessing UST properties through 
foreclosure or its equivalents upon promulgation of this rule. In 
addition, EPA is interested in comments addressing whether and how an 
exemption from the UST regulatory requirements could be structured for 
holders of such tanks. Finally, we are also interested in receiving 
comments addressing the extent to which such a regulatory exemption 
could impact human health and the environment.
4. Release Reporting Requirements Following Foreclosure
    Under today's proposal, upon foreclosure, a holder taking advantage 
of the proposed exemption from corrective action regulations must 
nevertheless comply with the requirement in Sec. 280.50 that the 
discovery of any releases from the UST be reported to the implementing 
agency. Only the reporting requirement must be followed; the holder 
need not comply with Sec. 280.52, despite the reference to that 
provision in Sec. 280.50. The release reporting requirement of 
Sec. 280.50 is part of Subpart E, which details the obligations for 
reporting known or suspected releases, investigating off-site impacts, 
confirming that a release has occurred, and cleaning up spills and 
overfills. While subpart E generally implements Subtitle I's corrective 
action and site investigation requirements, from which a holder may be 
excluded under today's proposed rule, Sec. 280.50 has historically been 
viewed by EPA as part of the UST technical standards.
    A holder is responsible, following foreclosure or its equivalents, 
for reporting to the implementing agency, any discovery of released 
regulated substances, or any suspected release at an UST site or in the 
surrounding area. Such reporting is considered necessary to ensure 
protection of human health and the environment. By informing the 
implementing agency of a release, the implementing agency can then 
determine the appropriate response action, if any.
    In the absence of today's proposed rule, a holder would have to 
perform release investigation and confirmation in accordance with 
Secs. 280.51 through 280.53. Under today's proposal, a holder who 
chooses to take the tank(s) out of service as described in this 
proposal is required to follow the procedures established in 
Sec. 280.50 but is not subject to the release investigation and 
confirmation requirements in Secs. 280.51 through 280.53. A holder who 
elects to keep the tank(s) in operation is obligated to comply with all 
of the Subpart E requirements, including those related to release 
investigation and confirmation, and corrective action.

E. Actions Taken to Protect Human Health and the Environment

    Because of the special position and role played by bona fide 
holders, as has been recognized by Congress in creating the statutory 
exemption from corrective action liability, the Agency believes that it 
is appropriate to include within the scope of protected UST or UST 
system activities certain lender actions which protect human health and 
the environment. EPA believes that there are a number of activities in 
which a holder may engage after foreclosure which can contribute to the 
protection of human health and the environment and in which the holder 
may engage and still meet the terms of the proposed rule's exemption 
from regulatory requirements. Such activities include: Release response 
and corrective action for UST systems, permanent or temporary closure 
of an UST or UST system, tank upgrades or replacements, environmental 
investigations, maintenance of corrosion protection, and release 
reporting. The Agency believes that protection of human health and the 
environment can be advanced by allowing a holder to participate in 
activities associated with environmental compliance either prior to or 
following foreclosure on an UST or UST system. Environmental compliance 
activities are generally considered to be integral to the daily 
operations of an UST or UST system, and a person who participates in 
those activities would typically be considered an operator. However, a 
reasonable holder may also undertake such activities in the course of 
maintaining its indicia of ownership in the tank to protect its 
security interest. Therefore, the Agency believes that it is 
appropriate to propose that environmental compliance activities, if 
undertaken by a holder, will nevertheless allow the holder to take 
advantage of the proposed exemption from regulatory requirements. The 
Agency is not proposing that these activities be required of a holder 
as a condition for obtaining the security interest exemption as an UST 
owner, but that holders be able to participate in these activities 
without losing the protection of the proposed exemption.
    Prior to foreclosure, therefore, and where the holder is otherwise 
permitted,5 a holder may require the borrower to comply, or itself 
undertake to ensure compliance, with the subtitle I regulations 
applicable to the tank owner and operator (typically, the borrower), 
without being deemed an ``operator'' under the provisions of this 
proposed rule. EPA believes that a holder who is ensuring that a tank 
is operated as specified in 40 CFR part 280 (even if the holder is 
itself performing the activities authorized or required by part 280) is 
acting both to preserve the collateral (and therefore acting consistent 
with its capacity as a security interest holder) and to protect human 
health and the environment. It is appropriate for a holder to intervene 
in such circumstances in which human health and the environment are 
threatened by an UST owner or operator's improper management or 
operation of its tank(s). However, undertaking activities that bring 
the tank(s) into compliance (i.e., regulatory compliance actions such 
as tank testing, leak detection, upgrading, etc.) will not exempt a 
holder from complying with the UST corrective action regulatory 
requirements if the holder is otherwise involved in the day-to-day 
operation of the tank(s). All other acts of operation undertaken by a 
holder (such as filling the tank(s) with product, selling and/or 
dispensing tank product, performing overall management functions, etc.) 
are not shielded activities under this proposed rule because by doing 
so the holder displaces the borrower as the primary operator of the 
tank(s).
---------------------------------------------------------------------------

    \5\For example, where the lender is permitted pursuant to the 
loan document or under applicable state laws.
---------------------------------------------------------------------------

    Furthermore, following foreclosure, where the holder chooses to 
take advantage of the conditional exemption from the corrective action 
regulations by emptying and removing the tank from operation, as 
specified above, the Agency proposes that the holder may--without 
losing the protection of the proposed rule--undertake cleanup 
activities consistent with the corrective action requirements of 40 CFR 
part 280, subpart F at or in connection with the UST or UST system. EPA 
specifically requests comments on this aspect of today's proposal.

IV. Financial Responsibility Requirements

    RCRA section 9003(d), as implemented by EPA at 40 CFR part 280, 
subpart H--Financial Responsibility, requires owners or operators of 
petroleum USTs to demonstrate financial responsibility for taking 
corrective action and for compensating third parties for bodily injury 
and property damage caused by accidental UST releases. As discussed 
earlier under Section III. A of this proposal, EPA is defining, for 
purposes of its Subtitle I corrective action and technical 
requirements, the term ``owner'' to mean that a holder who maintains 
ownership rights in an UST or UST system primarily to protect a 
security interest does not rise to level of a full ``owner,'' and 
therefore is not subject to compliance with those regulatory 
requirements. As described earlier, this proposed revision of EPA's 
corrective action regulatory program is consistent with the Subtitle I 
statutory security interest exemption. Similarly, the Agency believes 
that a holder is not subject to the financial responsibility 
requirements as an UST owner. The Agency is also proposing to exempt a 
holder as an UST operator from the financial responsibility 
requirements.
    Before a holder takes possession of an UST or UST system, a holder 
is not considered an UST operator, for purposes of EPA's technical and 
financial responsibility regulations, if it is acting merely as a 
holder and is not in control of the daily operation of the UST or UST 
system. Therefore, a holder typically is not subject to the UST 
financial responsibility requirements of 40 CFR part 280, subpart H as 
an operator prior to foreclosure. EPA is today proposing that a holder 
be exempted from corrective action as an operator after foreclosure if 
it ensures that its tanks no longer store petroleum and it complies 
with the temporary or permanent closure requirements specified in this 
rule. (See Section III. D. 2 of this preamble). In these situations, 
where the tanks are empty and pose little threat of release, it would 
serve no useful purpose to require a holder to demonstrate compliance 
with the financial responsibility requirements for corrective action. 
Therefore, the Agency is proposing to exempt holders who satisfy all 
the other requirements in this proposed rule from demonstrating 
Subtitle I financial responsibility for UST corrective action.
    A holder's responsibility for demonstrating UST financial 
responsibility for third-party bodily injury and property damage 
compensation poses a different issue. While RCRA Subtitle I does not 
include provisions that actually impose third-party liability upon UST 
owners and operators, it does require UST owners and operators to 
demonstrate their ability to compensate third parties for bodily injury 
and property damage caused by accidental releases arising from the 
operation of an UST or UST system. The Agency believes that a holder 
who complies with all the conditions set forth in today's proposal 
should not be required to comply with any of the UST financial 
responsibility requirements as an owner or operator, including those 
for both corrective action and third-party liability coverage. EPA has 
chosen to propose this exemption based on the statutory authority 
provided in section 9003. The proposed exemption is consistent with the 
interpretation of that language adopted in the preamble to the UST 
financial responsibility final rule (53 FR 43323). In that rule, EPA 
exempted tanks taken out of operation prior to the effective date of 
the rule from UST financial responsibility compliance. In the preamble 
to the final rule, EPA recognized that ``insurance providers would be 
extremely reluctant to assure tanks taken out of operation because of 
the perceived greater uncertainty associated with them'' (53 FR 43327). 
In particular, insurers have indicated that in the case of foreclosed 
USTs, they would be concerned about vandalism and other threats to USTs 
at non-operational, unattended gas stations or similar locations with 
public access. The preamble also states that ``even if providers of 
assurance would assure these tanks, it is unlikely that they would 
cover leaks which occurred before the effective date of the policy'' 
(53 FR 43327).
    A similar situation exists for holders who empty their tanks and 
enter temporary or permanent closure after foreclosure. EPA has 
discovered that it is practically impossible to obtain third-party 
environmental insurance coverage for a new owner of empty tanks. 
Providers of financial assurance are very reluctant to provide any 
coverage for tanks that no longer store petroleum product. Further, 
providers are reluctant to provide coverage for damages that occur 
after the effective date of the policy for releases that might have 
occurred prior to the effective date of the policy. Under this proposed 
rule a holder is required to empty its tanks in order to be exempt from 
corrective action regulatory requirements. Since providers are unlikely 
to provide any coverage for empty tanks at non-operational facilities 
or for releases that occurred prior to foreclosure, and since third-
party damages would be extremely unlikely to stem from releases 
occurring after the holder forecloses on and empties its tanks, the 
Agency believes it is unnecessary to require third-party liability 
coverage for such tanks.
    RCRA section 9003(c)(6) supports this proposed exemption. That 
provision emphasizes the connection between the UST financial 
responsibility requirement and a tank's operational status: ``The 
regulations promulgated pursuant to this section shall include: . . . 
(6) requirements for maintaining evidence of financial responsibility 
for taking corrective action and compensating third parties for bodily 
injury and property damage caused by sudden and nonsudden accidental 
releases arising from operating an underground storage tank.'' 
[emphasis added.] The Agency believes that since a holder must 
demonstrate that its tanks are empty and that it is complying with the 
UST temporary or permanent closure requirements in order to avoid 
corrective action liability as an operator, there should be no need for 
a holder who meets these requirements to demonstrate financial 
responsibility for corrective action or third-party damages. By 
requiring the holder to empty the tank in order to be exempt from 
corrective action requirements, EPA is ensuring that damages caused by 
future releases from that tank will be minimized if not avoided 
altogether. As a result, EPA is proposing that holders who act in 
accordance with the requirements described in this proposed rule be 
exempt from all subtitle I financial responsibility requirements.

V. State Program Approval

    RCRA subtitle I section 9004, as implemented by 40 CFR part 281, 
provides states the ability to operate an UST regulatory program in 
lieu of the federal program if they first submit the program for review 
and receive approval from EPA. EPA approval of a state program means 
that the requirements in the state's laws and regulations will be in 
effect rather than the federal requirements. Program approval ensures 
that a single set of requirements (the state's) will be enforced in 
that state, thus eliminating the duplication and confusion that can 
result from having separate state and federal requirements. EPA 
considers state program approval to be an integral part of the UST 
regulatory program.
    EPA's approval review focuses primarily on the basic state 
authorities (laws and regulations) needed to achieve the underlying 
objectives of the federal regulations covering the UST technical 
standards, corrective action, and financial responsibility 
requirements. The UST state program approval process is also based upon 
a performance-oriented approach. The statutory test for an approvable 
state program is that it be ``no less stringent'' than the federal 
requirements and include as many categories of UST systems (or be as 
broad in scope) as the federal requirements. EPA reviews the state's 
specific statutory and regulatory provisions as well as their 
interpretation by the attorney general of the state.
    Today's proposed rule is not intended to present a barrier for 
states to receive state program approval. A state is not required to 
have enacted a security interest exemption in order to receive approval 
of its program from EPA, since failure to have such a provision would 
merely make the state program broader in scope than the federal one. 
However, EPA encourages states to adopt statutory and/or regulatory 
provisions comparable to the final federal UST lender liability rule so 
that credit-worthy UST owners and operators will have access to funds 
to upgrade or replace their tanks.
    If a state program includes an UST security interest exemption, EPA 
will evaluate it against the criteria in Sec. 281.39, as proposed in 
this notice. These criteria stem from the key components contained in 
this proposed rule. A state program that exempts a holder from UST 
corrective action, financial responsibility, and technical requirements 
as an owner may be approved if: The holder is maintaining indicia of 
ownership primarily to protect a security interest in a petroleum UST 
or UST system; the holder does not participate in the management of the 
UST or UST system; and the holder does not engage in petroleum 
production, refining, and marketing. In addition, a state program may 
be approved if it exempts a holder from corrective action and financial 
responsibility as an operator and if, in addition to the three previous 
criteria, it requires the holder to demonstrate that its tanks have 
been emptied and secured, and that it has either permanently or 
temporarily closed the UST or UST system.
    The state's program application should address the issue of UST 
lender liability in the ``Scope'' section of its state program 
description, under Sec. 281.21(a)(3) of the State Program Approval 
regulations.

VI. Economic Analysis

    As discussed elsewhere in this proposal, EPA believes that concerns 
over environmental liability are making a significant number of lenders 
reluctant to make loans to otherwise credit-worthy owners and operators 
of USTs. A more analytical approach to describing the current lending 
climate and the potential effects associated with today's proposal is 
through a discussion of lending rates that UST owners are currently 
faced with, in comparison to those that may prevail after promulgation 
of a final rule.
    In analytical terms, prior to final promulgation of today's 
proposed rule, the rate that lenders charge now when considering making 
an UST-related loan can be described as:

rmarket-i=rb+re
where:

rmarket=Prevailing interest rate on UST-related loans
i=Risk-free rate of return
rb=Risk premium banks charge for loans to small businesses. (This 
factor includes the financial risk for a business with certain assets 
that is unable to repay its loan.)
re=Risk premium charged for UST owners. (This factor includes the 
financial risk that a lender may have to pay for contamination, or 
uncertainty regarding the true value of collateral, in the event of 
contamination.)

    Due to the current uncertainty regarding a holder's obligations to 
comply with the UST regulatory requirements, the risk premium 
``re'' that banks have to charge in order to be adequately 
compensated for their risk in an UST-related loan may often be so high 
that it effectively precludes lenders from making loans at this level. 
A related barrier to lending is that since all UST owners bear a 
systematic risk imposed by government regulations, lenders cannot 
diversify to substantially reduce or eliminate the UST-related risk 
premium, re, by holding a portfolio of UST-related loans with 
different characteristics and risks. Since most UST owners and 
operators are small businesses that cannot self finance, they will 
either forego or delay UST facility improvements. While many UST-
related loans are expected to be used for financing tank upgrades or 
replacements, these loans may also be used to provide additional 
services at the facility (e.g., an expanded area for food items at a 
convenience store). If lenders are precluded from making UST-related 
loans, both environmental protection and economic growth may suffer.
    By providing the exemption for holders from UST regulatory 
requirements contained in this proposed rule and thus reducing the 
uncertainty associated with making an UST-related loan, the risk 
premium is expected to be significantly reduced. The interest rate 
relationship after final promulgation of today's proposed rule can be 
described as:

rmarket (post rule)=i+rb+re (post rule)

where:

rmarket (post rule)=Prevailing interest on UST-related loans after 
final promulgation of today's proposed rule
re (post rule)=Risk premium charged for UST owners after final 
promulgation of today's proposed rule

    Although re (post rule) will still exist, it is expected to be 
significantly less than re. The result would be the reduction of 
the prevailing interest rate on UST-related loans to a level, 
rmarket (post rule), that is both adequate to compensate lenders 
for their perceived risk and at the same time affordable for credit-
worthy UST owners.
    There are social costs associated with owners' and operators' 
inability to use the least costly financial mechanism to comply with 
the existing UST regulations. By reducing the risk premium to a level 
at which lenders are both willing and able to make UST-related loans, 
this proposed regulation is expected to increase the ability of UST 
owners and operators to comply with subtitle I regulations, thereby 
reducing these social costs. To the extent that loans are made for 
environmental compliance purposes, social costs would also be reduced 
by decreasing the number and severity of releases from old USTs that 
might otherwise occur in the absence of upgrading or replacing tanks.
    The Agency is interested in obtaining comments on how this proposed 
rule might allow UST owners and operators to use less costly financial 
mechanisms to comply with UST regulations. Specifically, the Agency 
requests information from lenders on the current interest rate charged 
for loans when property with one or more USTs is used as collateral. 
The Agency also requests information from lenders regarding the extent 
to which credit might have been extended to UST owners and operators in 
the past had this proposed rule been in effect.
    Further information and a more detailed discussion of the costs and 
benefits associated with today's proposal is contained in the 
``Regulatory Background Document'' for this proposed rule, located in 
the OUST Docket at 401 M Street, SW.; room 2616; Washington, DC 20460.

VII. Regulatory Assessment Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51,735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to review by the U.S. Office of Management and 
Budget (OMB) and the requirements of the Executive Order. The Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof, or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this proposed rule is a ``significant regulatory 
action'' because it raises policy issues. As such, this action was 
submitted to OMB for review. Changes made in response to OMB 
suggestions or recommendations will be documented in the public record.

B. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act of 1980, agencies 
must evaluate the effects of a regulation on small entities. If the 
rule is likely to have a ``significant impact on a substantial number 
of small entities,'' then a Regulatory Flexibility Analysis must be 
performed. Because this proposed rule may actually result in cost 
savings for small entities that hold security interests in USTs or UST 
systems, EPA certifies that today's proposed rule would not have a 
significant impact on a substantial number of small entities.

C. Paperwork Reduction Act

    This proposed rule does not contain any new information collection 
requirements under the provision of the Paperwork Reduction Act, 44 USC 
3501 et seq.
    To the extent that this proposed rule discusses any information 
collection requirements imposed under existing underground storage tank 
regulations, those requirements have been approved by the OMB under the 
Paperwork Reduction Act and have been assigned control number 2050-0068 
(ICR no. 1360).

List of Subjects in 40 CFR Parts 280 and 281

    Environmental liability, Financial institutions, Ground water, 
Lender liability, Oil pollution, Petroleum, State program approval, 
Underground storage tanks, Water pollution control.

    Dated: June 3, 1994.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, chapter I, title I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 280--TECHNICAL STANDARDS AND CORRECTIVE ACTION REQUIREMENTS 
FOR OWNERS AND OPERATORS OF UNDERGROUND STORAGE TANKS (USTs)

    1. The authority citation for part 280 continues to read as 
follows:

    Authority: 42 U.S.C. 6912, 6991a, 6991b, 6991c, 6991d, 6991e, 
6991f, 6991h.

    2. Part 280 is proposed to be amended by adding subpart I 
consisting of Secs. 280.200 through 280.250 to read as follows:

Subpart I--Lender Liability

Sec.
280.200  Definitions.
280.210  Participation in management.
280.220  Ownership of an underground storage tank or underground 
storage tank system.
280.230  Operating an underground storage tank or underground 
storage tank system.
280.240  Actions taken to protect human health and the environment 
under 40 CFR part 180.
280.250  Financial responsibility.

Subpart I--Lender Liability


Sec. 280.200  Definitions.

    (a) UST technical standards, as used in this subpart, refers to the 
UST preventative and operating requirements under 40 CFR part 280, 
subparts B, C, D, G, and Sec. 280.50 of subpart E.
    (b) Petroleum production, refining, and marketing.--(1) Petroleum 
production means the production of crude oil or other forms of 
petroleum (as defined in Sec. 280.12) as well as the production of 
petroleum products from purchased materials.
    (2) Petroleum refining means the cracking, distillation, 
separation, conversion, upgrading, and finishing of refined petroleum 
or petroleum products.
    (3) Petroleum marketing means the distribution, transfer, or sale 
of petroleum or petroleum products for wholesale or retail purposes.
    (c) Indicia of ownership means evidence of a secured interest, 
evidence of an interest in a security interest, or evidence of an 
interest in real or personal property securing a loan or other 
obligation, including any legal or equitable title to real or personal 
property acquired incident to foreclosure or its equivalents. Evidence 
of such interests include, but are not limited to, mortgages, deeds of 
trust, liens, surety bonds and guarantees of obligations, title held 
pursuant to a lease financing transaction in which the lessor does not 
select initially the leased property (hereinafter ``lease financing 
transaction''), legal or equitable title obtained pursuant to 
foreclosure, and their equivalents. Evidence of such interests also 
includes assignments, pledges, or other rights to or other forms of 
encumbrance against property that are held primarily to protect a 
security interest. A person is not required to hold title or a security 
interest in order to maintain indicia of ownership.
    (d) A holder is a person who maintains indicia of ownership (as 
defined in Sec. 280.200(c)) primarily to protect a security interest 
(as defined in Sec. 280.200(f)(1)) in a petroleum UST or UST system. A 
holder includes the initial holder (such as a loan originator); any 
subsequent holder (such as a successor-in-interest or subsequent 
purchaser of the security interest on the secondary market); a 
guarantor of an obligation, surety, or any other person who holds 
ownership indicia primarily to protect a security interest; or a 
receiver or other person who acts on behalf or for the benefit of a 
holder.
    (e) A borrower, debtor, or obligor is a person whose UST or UST 
system is encumbered by a security interest. These terms may be used 
interchangeably.
    (f) Primarily to protect a security interest means that the 
holder's indicia of ownership are held primarily for the purpose of 
securing payment or performance of an obligation.
    (1) Security interest means an interest in a petroleum UST or UST 
system or in the facility or property on which the UST or UST system is 
located, created, or established for the purpose of securing a loan or 
other obligation. Security interests include but are not limited to 
mortgages, deeds of trusts, liens, and title pursuant to lease 
financing transactions. Security interests may also arise from 
transactions such as sale and leasebacks, conditional sales, 
installment sales, trust receipt transactions, certain assignments, 
factoring agreements, accounts receivable financing arrangements, and 
consignments, if the transaction creates or establishes an interest in 
an UST or UST system or in the facility or property on which the UST or 
UST system is located, for the purpose of securing a loan or other 
obligation.
    (2) Primarily to protect a security interest, as used in this 
subpart, does not include indicia of ownership held primarily for 
investment purposes, nor ownership indicia held primarily for purposes 
other than as protection for a security interest. A holder may have 
other, secondary reasons for maintaining indicia of ownership, but the 
primary reason why any ownership indicia are held must be as protection 
for a security interest.


Sec. 280.210  Participation in management.

    The term participating in the management of an UST or UST system 
means that the holder is engaging in acts of petroleum UST or UST 
system management, as defined herein.
    (a) Actions that are participation in management pre-foreclosure. 
Participation in the management of an UST or UST system means, for 
purposes of this subpart, actual participation in the management or 
control of decisionmaking related to the UST or UST system by the 
holder and does not include the mere capacity or ability to influence 
or the unexercised right to control UST or UST system operations. A 
holder is participating in management, while the borrower is still in 
possession of the UST or UST system encumbered by the security 
interest, only if the holder either:
    (1) Exercises decisionmaking control over the borrower's 
environmental compliance, such that the holder has undertaken 
responsibility for the borrower's UST or UST system management; or
    (2) Exercises control at a level comparable to that of a manager of 
the borrower's enterprise, such that the holder has assumed or 
manifested responsibility for the overall management of the enterprise 
encompassing the day-to-day decisionmaking of the enterprise with 
respect to:
    (i) Environmental compliance; or
    (ii) All, or substantially all, of the operational (as opposed to 
financial 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, operations 
manager, chief operating officer, or chief executive officer. Financial 
or administrative aspects include functions such as that of credit 
manager, accounts payable/receivable manager, personnel manager, 
controller, chief financial officer, or similar functions.
    (b) Actions that are not participation in management pre-
foreclosure.
    (1) Actions at the inception of the loan or other transaction. No 
act or omission prior to the time that indicia of ownership are held 
primarily to protect a security interest constitutes evidence of 
participation in management within the meaning of this Subpart. A 
prospective holder who undertakes or requires an environmental 
investigation (which could include a site assessment, inspection, and/
or audit) of the UST or UST system in which indicia of ownership are to 
be held or requires a prospective borrower to clean up contamination 
from the UST or UST system or to comply or come into compliance 
(whether prior or subsequent to the time that indicia of ownership are 
held primarily to protect a security interest) with any applicable law 
or regulation is not by such action considered to be participating in 
the UST's or UST system's management.
    (2) Loan policing and workout. Actions that are consistent with 
holding ownership indicia primarily to protect a security interest do 
not constitute participation in management for purposes of this 
subpart. The authority for the holder to take such actions may, but 
need not, be contained in contractual or other documents specifying 
requirements for financial, environmental, and other warranties, 
covenants, conditions, representations or promises from the borrower. 
Loan policing and workout activities cover and include all such 
activities up to foreclosure or its equivalents, exclusive of any 
activities that constitute participation in management.
    (i) Policing the security interest or loan. A holder who engages in 
policing activities prior to foreclosure will remain within the 
exemption provided that the holder does not by such actions participate 
in the management of the UST or UST system as provided in 
Sec. 280.210(a). Such actions include, but are not limited to, 
requiring the borrower to clean up contamination from the UST or UST 
system during the term of the security interest; requiring the borrower 
to comply or come into compliance with applicable federal, state, and 
local environmental and other laws, rules, and regulations during the 
term of the security interest; securing or exercising authority to 
monitor or inspect the UST or UST system (including on-site 
inspections) in which indicia of ownership are maintained, or the 
borrower's business or financial condition during the term of the 
security interest; or taking other actions to adequately police the 
loan or security interest (such as requiring a borrower to comply with 
any warranties, covenants, conditions, representations, or promises 
from the borrower).
    (ii) Loan work out. A holder who engages in work out activities 
prior to foreclosure or its equivalents will remain within the 
exemption provided that the holder does not by such action participate 
in the management of the UST or UST system as provided in 
Sec. 280.210(a). For purposes of this rule, work out refers to those 
actions by which a holder, at any time prior to foreclosure or its 
equivalents, seeks to prevent, cure, or mitigate a default by the 
borrower or obligor; or to preserve, or prevent the diminution of, the 
value of the security. Work out activities include, but are not limited 
to, restructuring or renegotiating the terms of the security interest; 
requiring payment of additional rent or interest; exercising 
forbearance; requiring or exercising rights pursuant to an assignment 
of accounts or other amounts owing to an obligor; requiring or 
exercising rights pursuant to an escrow agreement pertaining to amounts 
owing to an obligor; providing specific or general financial or other 
advice, suggestions, counseling, or guidance; and exercising any right 
or remedy the holder is entitled to by law or under any warranties, 
covenants, conditions, representations, or promises from the borrower.
    (c) Foreclosure on an UST or UST system and participation in 
management activities post-foreclosure--(1) Foreclosure. Indicia of 
ownership that are held primarily to protect a security interest 
include legal or equitable title acquired through or incident to 
foreclosure or its equivalents. For purposes of this subpart, the term 
foreclosure or its equivalents includes purchase at foreclosure sale; 
acquisition or assignment of title in lieu of foreclosure; termination 
of a lease or other repossession; acquisition of a right to title or 
possession; an agreement in satisfaction of the obligation; or any 
other formal or informal manner (whether pursuant to law or under 
warranties, covenants, conditions, representations, or promises from 
the borrower) by which the holder acquires title to or possession of 
the secured UST or UST system. The indicia of ownership held after 
foreclosure continue to be maintained primarily as protection for a 
security interest provided that the holder undertakes to sell, re-lease 
an UST or UST system held pursuant to a lease financing transaction 
(whether by a new lease financing transaction or substitution of the 
lessee), or otherwise divest itself of the UST or UST system in a 
reasonably expeditious manner, using whatever commercially reasonable 
means are relevant or appropriate with respect to the UST or UST 
system, taking all facts and circumstances into consideration, and 
provided that the holder did not participate in management (as defined 
in Sec. 280.210(a)) prior to foreclosure or its equivalents. For 
purposes of establishing that a holder is seeking to sell, re-lease an 
UST or UST system held pursuant to a lease financing transaction 
(whether by a new lease financing transaction or substitution of the 
lessee), or divest an UST or UST system in a reasonably expeditious 
manner, the holder may use whatever commercially reasonable means as 
are relevant or appropriate with respect to the UST or UST system, or 
may employ the means specified in Sec. 280.210(c)(2). A holder that 
outbids, rejects, or fails to act upon a written bona fide, firm offer 
of fair consideration for the UST or UST system, as provided in 
Sec. 280.210(c)(2), is not considered to hold indicia of ownership 
primarily to protect a security interest.
    (2) Holding foreclosed property for disposition and liquidation. A 
holder, who did not participate in management prior to foreclosure or 
its equivalents, may sell, re-lease an UST or UST system held pursuant 
to a lease financing transaction (whether by a new lease financing 
transaction or substitution of the lessee), liquidate, wind up 
operations, and take measures to preserve, protect, or prepare the 
secured UST or UST system prior to sale or other disposition. The 
holder may conduct these activities without voiding the exemption, 
subject to the requirements of this subpart.
    (i) A holder establishes that the ownership indicia maintained 
following foreclosure or its equivalents continue to be held primarily 
to protect a security interest by, within 12 months following 
foreclosure, listing the UST or UST system or the facility or property 
on which the UST or UST system is located, with a broker, dealer, or 
agent who deals with the type of property in question, or by 
advertising the UST or UST system as being for sale or disposition on 
at least a monthly basis in either a real estate publication or a trade 
or other publication suitable for the UST or UST system in question, or 
a newspaper of general circulation (defined as one with a circulation 
over 10,000, or one suitable under any applicable federal, state, or 
local rules of court for publication required by court order or rules 
of civil procedure) covering the area where the UST or UST system is 
located. For purposes of this provision, the 12-month period begins to 
run from the time that the holder acquires marketable title, provided 
that the holder, after the expiration of any redemption or other 
waiting period provided by law, was acting diligently to acquire 
marketable title. If the holder fails to act diligently to acquire 
marketable title, the 12-month period begins to run on the date of 
foreclosure or its equivalents.
    (ii) A holder that outbids, rejects, or fails to act upon an offer 
of fair consideration for the UST or UST system or the facility or 
property on which the UST or UST system is located establishes by such 
outbidding, rejection, or failure to act, that the ownership indicia in 
the secured UST or UST system are not held primarily to protect the 
security interest, unless the holder is required, in order to avoid 
liability under federal or state law, to make a higher bid, to obtain a 
higher offer, or to seek or obtain an offer in a different manner.
    (A) Fair consideration, in the case of a holder maintaining indicia 
of ownership primarily to protect a senior security interest in the UST 
or UST system, is the value of the security interest as defined in this 
section. The value of the security interest is calculated as an amount 
equal to or in excess of the sum of the outstanding principal (or 
comparable amount in the case of a lease that constitutes a security 
interest) owed to the holder immediately preceding the acquisition of 
full title (or possession in the case of an UST or UST system subject 
to a lease financing transaction) pursuant to foreclosure or its 
equivalents, plus any unpaid interest, rent, or penalties (whether 
arising before or after foreclosure or its equivalents), plus all 
reasonable and necessary costs, fees, or other charges incurred by the 
holder incident to work out, foreclosure or its equivalents, retention, 
preserving, protecting, and preparing the UST or UST system prior to 
sale, re-lease of an UST or UST system held pursuant to a lease 
financing transaction (whether by a new lease financing transaction or 
substitution of the lessee) or other disposition, plus environmental 
investigation and corrective action costs incurred under Secs. 280.51 
through 280.67; less any amounts received by the holder in connection 
with any partial disposition of the property and any amounts paid by 
the borrower subsequent to the acquisition of full title (or possession 
in the case of an UST or UST system subject to a lease financing 
transaction) pursuant to foreclosure or its equivalents. In the case of 
a holder maintaining indicia of ownership primarily to protect a junior 
security interest, fair consideration is the value of all outstanding 
higher priority security interests plus the value of the security 
interest held by the junior holder, each calculated as set forth in the 
preceding sentence.
    (B) Outbids, rejects, or fails to act upon an offer of fair 
consideration means that the holder outbids, rejects, or fails to act 
upon within 90 days of receipt of a written, bona fide, firm offer of 
fair consideration for the UST or UST system received at any time after 
six months following foreclosure or its equivalents. A ``written, bona 
fide, firm offer'' means a legally enforceable, commercially 
reasonable, cash offer solely for the foreclosed UST or UST system, 
including all material terms of the transaction, from a ready, willing, 
and able purchaser who demonstrates to the holder's satisfaction the 
ability to perform. For purposes of this provision, the six-month 
period begins to run from the time that the holder acquires marketable 
title, provided that the holder, after the expiration of any redemption 
or other waiting period provided by law, was acting diligently to 
acquire marketable title. If the holder fails to act diligently to 
acquire marketable title, the six-month period begins to run on the 
date of foreclosure or its equivalents.


Sec. 280.220  Ownership of an underground storage tank or underground 
storage tank system.

    (a) Ownership of an UST or UST system for purposes of corrective 
action. A holder is not an ``owner'' of a petroleum UST or UST system 
for purposes of compliance with corrective action requirements under 
Secs. 280.51 through 280.67, provided the person:
    (1) Does not participate in the management of the UST or UST system 
as defined in Sec. 280.210; and
    (2) Does not engage in petroleum production, refining, and 
marketing.
    (b) Ownership of an UST or UST system for purposes of the UST 
technical standards. A holder is not an ``owner'' of a petroleum UST or 
UST system for purposes of the UST technical standards provided that 
the holder:
    (1) Does not participate in the management of the UST or UST system 
as defined in Sec. 280.210; and
    (2) Does not engage in petroleum production, refining, and 
marketing.


Sec. 280.230  Operating an underground storage tank or underground 
storage tank system.

    (a) Operating an UST or UST system prior to foreclosure. A holder, 
prior to foreclosure or its equivalents, is not an ``operator'' of a 
petroleum UST or UST system for purposes of compliance with the 
corrective action requirements of Secs. 280.51 through 280.67 and the 
UST technical standards, provided the holder is not in control of or 
does not have responsibility for the daily operation of the UST or UST 
system.
    (b) Operating an UST or UST system after foreclosure. 
    (1) A holder who has not participated in management prior to 
foreclosure and who acquires a petroleum UST or UST system through 
foreclosure or its equivalents is not an ``operator'' of the UST or UST 
system for purposes of compliance with the corrective action 
requirements under Secs. 280.51 through 280.67, provided that the 
holder within 15 days following foreclosure or its equivalents, empties 
all of its USTs and UST systems so that no more than 2.5 centimeters 
(one inch) of residue, or 0.3 percent by weight of the total capacity 
of the UST system, remains in the system; leaves vent lines open and 
functioning; and caps and secures all other lines, pumps, manways, and 
ancillary equipment.
    (2) In addition, the holder must either:
    (i) Permanently close the UST or UST system in accordance with 
Secs. 280.71 through 280.74, except Sec. 280.72(b); or
    (ii) Temporarily close the UST or UST system in accordance with the 
applicable provisions of Sec. 280.70 as follows:
    (A) A holder may remain in temporary closure for up to 12 months 
by:
    (1) Continuing operation and maintenance of corrosion protection in 
accordance with Sec. 280.31; and
    (2) Reporting suspected releases to the implementing agency.
    (B) If the UST system is temporarily closed for more than 12 
months, the holder must permanently close the UST system if it does not 
meet either the performance standards in Sec. 280.20 for new UST 
systems or the upgrading requirements in Sec. 280.21 except that the 
spill and overfill equipment requirements do not have to be met. A 
substandard UST system must be permanently closed in accordance with 
Secs. 280.71 through 280.74, except Sec. 280.72(b), unless the 
implementing agency provides an extension of the 12-month temporary 
closure period. The holder must complete a site assessment in 
accordance with Sec. 280.72(a) before such an extension can be applied 
for.
    (3) A holder who acquires a petroleum UST or UST system through 
foreclosure or its equivalents is not an ``operator'' of the UST or UST 
system for purposes of 40 CFR part 280, subparts B, C, and D of the 
technical standards for the first 15 days following foreclosure or its 
equivalents, provided the holder complies with Sec. 280.230(b).


Sec. 280.240  Actions taken to protect human health and the environment 
under 40 CFR part 280.

    A holder is not considered to be an operator of an UST or UST 
system or to be participating in the management of an UST or UST system 
solely on the basis of undertaking actions under 40 CFR part 280, 
subparts B through H, provided that the holder does not otherwise 
participate in the management or daily operation of the UST or UST 
system. Such actions include, but are not limited to, release 
reporting, release response and corrective action, temporary or 
permanent closure of an UST or UST system, UST upgrading or 
replacement, and maintenance of corrosion protection. A holder who 
undertakes these actions must do so in compliance with the applicable 
requirements in 40 CFR part 280.


Sec. 280.250  Financial responsibility.

    A holder is exempt from the requirement to demonstrate financial 
responsibility under subpart H--Financial Responsibility, provided the 
holder:
    (a) Does not participate in the management of the UST or UST system 
as defined in Sec. 280.210;
    (b) Does not engage in petroleum production, refining, and 
marketing as defined in Sec. 280.200(b); and
    (c) Complies with the requirements of Sec. 280.230.

PART 281--APPROVAL OF STATE UNDERGROUND STORAGE TANK PROGRAMS

    1. The authority citation for part 281 continues to read as 
follows:

    Authority: Sections 2002, 9004, 9005, 9006 of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery 
Act of 1976, as amended (42 U.S.C. 6912, 6991 (c), (d), (e)).

Subpart C--[Amended]

    2. Section 281.39 to added to subpart C to read as follows:


Sec. 281.39  Lender liability.

    (a) A state is not required to have a security interest exemption 
to obtain or maintain RCRA Subtitle I program approval. If a state 
enacts a security interest exemption provision, it does not have to be 
as extensive as the security interest exemption provided for in 40 CFR 
part 280, subpart I, as defined in Secs. 280.200 through 280.250, to 
obtain or maintain RCRA subtitle I program approval. However, a state's 
security interest exemption cannot be broader in scope or less 
stringent than the security interest exemption provided for in 40 CFR 
part 280, subpart I.
    (b) A state program will be considered to be no less stringent 
than, and as broad in scope as, the federal program provided that the 
state provision:
    (1) Mirrors the security interest exemption provided for in 40 CFR 
part 280, subpart I; or
    (2) Achieves the same effect as provided by the following key 
criteria:
    (i) A holder, meaning a person who maintains indicia of ownership 
primarily to protect a security interest in a petroleum UST or UST 
system, who does not participate in the management of the UST or UST 
system as defined under Sec. 280.210 and who does not engage in 
petroleum production, refining, and marketing as defined under 
Sec. 280.200(a) is not:
    (A) An ``owner'' of a petroleum UST or UST system for purposes of 
compliance with 40 CFR part 280 requirements;
    (B) An ``operator'' of a petroleum UST or UST system for purposes 
of compliance with 40 CFR part 280 requirements prior to foreclosure or 
its equivalents, provided the holder is not in control of or does not 
have responsibility for the daily operation of the UST or UST system;
    (C) An ``operator'' of a petroleum UST or UST system for purposes 
of compliance with 40 CFR part 280 corrective action and financial 
responsibility requirements after foreclosure or its equivalents, 
provided the holder complies with the requirements of Sec. 280.230(b).
    (ii) [Reserved]

[FR Doc. 94-14173 Filed 6-10-94; 8:45 am]
BILLING CODE 6560-50-P