[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]]
_______________________________________________________________________
Part VI
Environmental Protection Agency
_______________________________________________________________________
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
