94-14173. ENVIRONMENTAL PROTECTION AGENCY  

  • [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.
    
    -----------------------------------------------------------------------
    
    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.
    ---------------------------------------------------------------------------
    
        \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.
    ---------------------------------------------------------------------------
    
        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).
    ---------------------------------------------------------------------------
    
        \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.
    ---------------------------------------------------------------------------
    
        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
    ---------------------------------------------------------------------------
    
        \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.
    ---------------------------------------------------------------------------
    
        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
    
    
    

Document Information

Published:
06/13/1994
Entry Type:
Uncategorized Document
Action:
Proposed rule.
Document Number:
94-14173
Dates:
Written comments on this proposed rule must be submitted on or before August 12, 1994.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: June 13, 1994
CFR: (11)
40 CFR 280.210(a)
40 CFR 280.200(a)
40 CFR 280.210(c)(2)
40 CFR 280.50
40 CFR 280.200
More ...