[Federal Register Volume 62, Number 123 (Thursday, June 26, 1997)]
[Rules and Regulations]
[Page 34602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16756]


      

[[Page 34601]]

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Part VI





Environmental Protection Agency





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40 CFR Part 300



National Oil and Hazardous Substances Pollution Contingency Plan; 
Involuntary Acquisition of Property by the Government; Rule

  Federal Register / Vol. 62, No. 123 / Thursday, June 26, 1997 / Rules 
and Regulations  

[[Page 34602]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-5847-9]


National Oil and Hazardous Substances Pollution Contingency Plan; 
Involuntary Acquisition of Property by the Government

AGENCY: Environmental Protection Agency.

ACTION: Notice of congressional reinstatement of regulations.

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SUMMARY: On September 30, 1996, the Asset Conservation, Lender 
Liability, and Deposit Insurance Protection Act (``Asset Conservation 
Act'' or ``Act''), 110 Stat. 3009-462 (1996), reinstated regulations 
pertaining to liability under the Comprehensive Environmental Response, 
Compensation, and Liability Act, (CERCLA), for the involuntary 
acquisition of property by governmental entities. The regulations were 
codified at 40 CFR 300.1105 in 1992, but were subsequently vacated by 
the U.S. Court of Appeals for the District of Columbia.

EFFECTIVE DATE: September 30, 1996.

FOR FURTHER INFORMATION CONTACT: Laura Bulatao, Office of Site 
Remediation Enforcement, U.S. Environmental Protection Agency, 401 M 
St., SW (mail code 2273-A), Washington, DC 20460 (202-564-6028).

SUPPLEMENTARY INFORMATION: In 1992, EPA issued its ``Final Rule on 
Lender Liability Under CERCLA'' (``CERCLA Lender Liability Rule'' or 
``Rule''), 57 FR 18344 (April 29, 1992). In addition to addressing 
lender liability, the rule clarified the language of Section 101(20)(D) 
of CERCLA, 42 U.S.C. 9601(20)(D), which provides an exemption from the 
definition of ``owner or operator'' for certain government entities 
that involuntarily acquire property, and Section 101(35)(A) of CERCLA, 
42 U.S.C. 9601(35)(A), which pertains to the ``third-party'' defense 
potentially available to government entities that involuntarily acquire 
property. The Rule was codified at 40 CFR 300.1100 and 300.1105.
    In 1994, the U.S. Court of Appeals for the District of Columbia 
Circuit vacated the rule. Kelley v. EPA, 15 F.3d 1100 (D.C. Cir. 1994), 
reh'g denied, 25 F.3d 1088 (D.C. Cir. 1994), cert. denied, American 
Bankers Ass'n v. Kelley, 115 S. Ct. 900 (1995). Consequently, in 1995, 
EPA removed the Rule from the Code of Federal Regulations. ``Final Rule 
on Removal of Legally Obsolete Rules,'' 60 FR 33912, 33913 (June 29, 
1995).
    In 1996, Section 2504 of the Asset Conservation Act reinstated, 
effective September 30, 1996, the portion of the rule that addresses 
involuntary acquisitions by government entities. Additionally, Section 
2504 of the Act provides that any reference in the now reinstated 
portion of the rule (40 CFR 300.1105) to the remaining portion of the 
vacated rule (40 CFR 300.1100) shall be deemed to be a reference to 
CERCLA's secured creditor exemption as amended by the Asset 
Conservation Act. See 42 U.S.C. 9601(20) (E)-(G).
    This document also corrects a typographical error in the Rule as 
published on April 29, 1992. In 40 CFR 300.1105(a)(1), the word 
``virtue'' appeared incorrectly as ``virture.''

List of Subjects in 40 CFR Part 300

    Environmental protection, Hazardous substances, Intergovernmental 
relations, Superfund.

    Dated: June 19, 1997.
Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance 
Assurance.

    For the reasons set forth in the preamble, 40 CFR part 300 is 
amended as follows:

PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION 
CONTINGENCY PLAN

    1. The authority citation for part 300 continues to read as 
follows:

    Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 
2923, 3 CFR, 1987 Comp., p. 193.

    2. By adding subpart L to read as follows:
Subpart L--National Oil and Hazardous Substances Pollution Contingency 
Plan; Involuntary Acquisition of Property by the Government
Sec.
300.1105  Involuntary acquisition of property by the government.

Subpart L--National Oil and Hazardous Substances Pollution 
Contingency Plan; Involuntary Acquisition of Property by the 
Government


Sec. 300.1105  Involuntary acquisition of property by the government.

    (a) Governmental ownership or control of property by involuntary 
acquisitions or involuntary transfers within the meaning of CERCLA 
section 101(20)(D) or section 101(35)(A)(ii) includes, but is not 
limited to:
    (1) Acquisitions by or transfers to the government in its capacity 
as a sovereign, including transfers or acquisitions pursuant to 
abandonment proceedings, or as the result of tax delinquency, or 
escheat, or other circumstances in which the government involuntarily 
obtains ownership or control of property by virtue of its function as 
sovereign;
    (2) Acquisitions by or transfers to a government entity or its 
agent (including governmental lending and credit institutions, loan 
guarantors, loan insurers, and financial regulatory entities which 
acquire security interests or properties of failed private lending or 
depository institutions) acting as a conservator or receiver pursuant 
to a clear and direct statutory mandate or regulatory authority;
    (3) Acquisitions or transfers of assets through foreclosure and its 
equivalents (as defined in 40 CFR 300.1100(d)(1)) or other means by a 
Federal, state, or local government entity in the course of 
administering a governmental loan or loan guarantee or loan insurance 
program; and
    (4) Acquisitions by or transfers to a government entity pursuant to 
seizure or forfeiture authority.
    (b) Nothing in this section or in CERCLA section 101(20)(D) or 
section 101(35)(A)(ii) affects the applicability of 40 CFR 300.1100 to 
any security interest, property, or asset acquired pursuant to an 
involuntary acquisition or transfer, as described in this section.
    Note to paragraphs (a)(3) and (b) of this section: Reference to 40 
CFR 300.1100 is a reference to the provisions regarding secured 
creditors in CERCLA sections 101(20)(E)-(G), 42 U.S.C. 9601(20)(E)-(G). 
See Section 2504(a) of the Asset Conservation, Lender Liability, and 
Deposit Insurance Protection Act, Public Law, 104-208, 110 Stat. 3009-
462, 3009-468 (1996).

[FR Doc. 97-16756 Filed 6-25-97; 8:45 am]
BILLING CODE 6560-50-P