Lender liability: evaluating risk under CERCLA and the security interest exemption
CERCLA imposes direct liability on lenders for cleanup of hazardous waste sites, and increases both lenders' collateral risks and the possibility of borrowers' default. Lenders can minimize liability by auditing properties for environmental problems prior to making loans, maintaining insurance protection, entering indemnification agreements with those borrowers who warranty their compliance with all environmental laws, and by avoiding involvement in borrowers' hazardous waste management and business decisions. The EPA lender liability rule was abrogated by court decisions.
Publication Name: Commercial Law Journal
EPA's CERCLA lender liability proposal: secured creditors "hit the jackpot."
The EPA responded to the increase in lender concerns engendered by the savings and loan crisis with the issuance of a proposed rule interpreting CERCLA's secured creditor exemption in mid-1991. The draft rule's deference to lenders undermines the legislative intent to shift cleanup costs from taxpayers to those responsible. The final rule came out in 1992 and retains the draft rule's defects, suggesting that the legislature rather than an agency needs to address the issue of lender liability.
Publication Name: Natural Resources Journal
The new EPA lender liability rule: a partial solution
The EPA lender liability rule issued on Apr 23, 1992 provides needed reassurance to real estate lenders after United States v Fleet Factors Corp. While that case seemed to have disabled the security interest exemption, the EPA's definition of that exemption in the new rule allows a lender to protect its collateral in a number of ways without falling under the 'participation in management' dictum of Fleet Factors. This rule does much to lessen lenders' CERCLA liability concerns.
Publication Name: Uniform Commercial Code Law Journal
- Abstracts: Leveraged leasing: perfecting a security interest in an owner trust. Mexico's secured lending reforms
- Abstracts: Strict liability of individuals under CERCLA: a normative analysis. Putting the remedial cart before the statutory horse: the Ninth Circuit reopens debate on CERCLA's definition of disposal
- Abstracts: Products liability exposure: the sacrifice of American innovation. The Moorman doctrine and insurance broker liability law: does Bulk Services represent two worlds in collision?
- Abstracts: The role of a bill of rights. Originalism and interpretive conventions. The true wisdom of the Bill of Rights
- Abstracts: Has legislative history become history? A critical examination. Banking law - "Superholder" in due course protection of FDIC extended: Kilpatrick v. Riddle bars investors' federal securities fraud claims under the D'Oench, Duhme doctrine