By Brown S.B. No. 1226
75R8756 T
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain solid waste sites regulated under the Texas
1-3 Health and Safety Code. The bill concerns listing requirements for
1-4 the state registry, deletion conditions, liens, uses of the
1-5 hazardous and solid waste remediation fee fund, cost recovery,
1-6 settlements, procedures related to future land use, waiver of
1-7 certain fees, early action incentives, and lender and fiduciary
1-8 liability limitations.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 361.183, Texas Health and Safety Code, is
1-11 amended to read as follows:
1-12 Sec. 361.183. Registry Listing Procedure: Determination of
1-13 Eligibility. (a) Before the listing of a facility on the state
1-14 registry, the executive director shall determine whether the
1-15 potential endangerment to public health and safety or the
1-16 environment at the facility can be resolved by the present owner or
1-17 operator under the federal Resource Conservation and Recovery Act
1-18 of 1976 (42 U.S.C. Section 6901) or by some or all of the
1-19 potentially responsible parties identified in Subchapter I, under
1-20 an agreed administrative order issued by the commission or by an
1-21 agreement with the commission pursuant to Sections 361.601, et seq.
1-22 SECTION 2. Section 361.184, Texas Health and Safety Code, is
1-23 amended to read as follows:
1-24 Sec. 361.184. Registry Listing Procedure: Notice and
2-1 Hearing.
2-2 (g) If a facility has been deleted in accordance with
2-3 Section 361.189 based in whole or part on the facility being
2-4 addressed under Sections 361.601, et seq, and the executive
2-5 director determines that the facility is no longer being adequately
2-6 addressed, the site shall revert back to its status immediately
2-7 preceding the proceedings under Section 361.189. No public meeting
2-8 is required under this subsection.
2-9 SECTION 3. Section 361.189, Texas Health and Safety Code, is
2-10 amended to read as follows:
2-11 Sec. 361.189. Deletions from Registry. (a) The executive
2-12 director or a[A]ny owner or operator or other named responsible party
2-13 of a facility listed or to be listed on the state registry may
2-14 request the commission to delete the facility from the state
2-15 registry, or modify any information regarding the facility by
2-16 submitting a written statement setting forth the grounds of the
2-17 request in the form the commission may by rule require.
2-18 (b) The commission by rule shall establish procedures,
2-19 including public [hearings] meetings, for review of requests
2-20 submitted under this section.
2-21 SECTION 4. Section 361.194, Texas Health and Safety Code, is
2-22 amended to read as follows:
2-23 Sec. 361.194. Lien.
2-24 (c) An authorized representative of the commission [shall] may
2-25 execute the affidavit. In determining whether to execute the
2-26 affidavit, the executive director shall proceed in a manner that he
2-27 determines to most likely result in the least overall costs to the
3-1 state after any cost recovery action. The affidavit must show:
3-2 (1)-(3) same
3-3 SECTION 5. Section 361.133, Texas Health and Safety Code, is
3-4 amended to read as follows:
3-5 Sec. 361.133. Hazardous and Solid Waste Remediation Fee
3-6 Fund.
3-7 (c)(7) For a site eligible for listing under subchapter F,
3-8 proposed for listing under subchapter F, or listed under the state
3-9 registry prior to September, 1989, the Executive Director may use
3-10 the money collected and deposited to the credit of the fund under
3-11 this section, including interest credited under subsection (b)(4)
3-12 for expenses concerning a planned removal of a spill, release, or
3-13 potential threat of release of a hazardous substance where (i)
3-14 immediate action is appropriate to protect human health or the
3-15 environment, and there is a substantial likelihood that a planned
3-16 removal will prevent the site from being listed under subchapter F
3-17 or (ii) the site or any portion thereof is of sufficient simplicity
3-18 or scope that a planned removal can be completed without extensive
3-19 investigation and planning and a planned removal will achieve a
3-20 significant cost reduction for the site. At least 30 days before
3-21 proceeding under this subsection, the commission shall publish in
3-22 the Texas Register a notice of intent to perform a planned removal
3-23 under this section.
3-24 SECTION 6. Section 361.197, Texas Health and Safety Code, is
3-25 amended to read as follows:
3-26 Sec. 361.197. Cost Recovery.
3-27 (d) Where the state performs a planned removal in accordance
4-1 with Section 361.133(c)(7), the commission shall file a cost
4-2 recovery action against all responsible parties for the total costs
4-3 of the planned removal.
4-4 (e) The commission shall file a cost recovery action against
4-5 all responsible parties for the total costs of actions taken
4-6 pursuant to 361.133(c) (1), (2) and (3).
4-7 SECTION 7. Section 361.200, Texas Health & Safety Code, is
4-8 amended to read as follows:
4-9 Sec. 361.200. [DE MINIMIS] SETTLEMENT.
4-10 The commission shall assess and by rule may develop and
4-11 implement a [de minimis] settlement program. Under the program, the
4-12 commission shall consider the advantages of developing a final
4-13 settlement with potentially responsible parties that are
4-14 responsible for [only a minor portion of the] response costs at a
4-15 facility because [the] of hazardous substances. [the party is
4-16 responsible for are minimal in amount or in hazardous effect by
4-17 comparison with the hazardous substances attributable to other
4-18 parties.] The settlement program may include de minimis
4-19 settlements, covenants not to sue, mixed funding, and partial
4-20 settlements.
4-21 SECTION 8. Section 361.185, Texas Health and Safety Code, is
4-22 amended to read as follows:
4-23 Sec. 361.185. INVESTIGATION/FEASIBILITY STUDY.
4-24 (d)(1) Prior to completion of the remedial
4-25 investigation/feasibility study, if the commission, or a
4-26 potentially responsible party who has entered into an agreed order
4-27 with the commission, proposes that a future land use other than
5-1 residential is appropriate for the site and the land is not already
5-2 zoned other than residential by a local authority, the commission
5-3 shall hold a public meeting that is legislative in nature to obtain
5-4 public input on the land use proposal. Any interested person may
5-5 comment.
5-6 (2) The commission shall publish notice of the meeting held
5-7 pursuant to 361.185(d)(1) in the Texas Register and in a newspaper
5-8 of general circulation in the county in which the facility is
5-9 located at least 30 days before the date of the public meeting.
5-10 The notice shall provide information regarding the proposed land
5-11 use, and the date, time, and place of the meeting. The commission
5-12 shall also mail the same information to each potentially
5-13 responsible party by certified mail, return receipt requested, at
5-14 the party's last known address at least 30 days before the public
5-15 meeting. Contemporaneously with the issuance of notice of the
5-16 public meeting, the executive director shall make available to all
5-17 interested parties the public records the executive director has
5-18 regarding the facility. Nonreceipt of any notice mailed to a
5-19 potentially responsible party under this section does not affect
5-20 the responsibilities, duties, or liabilities imposed on the party.
5-21 After the public meeting the Executive Director shall select the
5-22 appropriate land use.
5-23 SECTION 9. Section 361.188, Texas Health and Safety Code, is
5-24 amended to read as follows:
5-25 Sec. 361.188. FINAL ADMINISTRATIVE ORDER. (a)(2) specify
5-26 the selected land use and remedial action
5-27 SECTION 10. Section 361.187, Texas Health and Safety Code,
6-1 is amended to read as follows:
6-2 Sec. 361.187. PROPOSED REMEDIAL ACTION.
6-3 (b) The commission shall publish notice of the meeting in
6-4 the Texas Register and in a newspaper of general circulation in the
6-5 county in which the facility is located at least [45] 30 days before
6-6 the date of the public meeting. The notice shall provide
6-7 information regarding the proposed remedial action and the date,
6-8 time, and place of the meeting. The commission shall also mail the
6-9 same information to each potentially responsible party by certified
6-10 mail, return receipt requested, at the party's last known address
6-11 at least [45] 30 days before the public meeting. Contemporaneously
6-12 with the issuance of notice of the public meeting, the executive
6-13 director shall make available to all interested parties the public
6-14 records the executive director has regarding the facility. For
6-15 purposes of providing this information, the executive director
6-16 shall provide a brief summary of those public records and make
6-17 those public records available for inspection and copying during
6-18 regular business hours. Nonreceipt of any notice mailed to a
6-19 potentially responsible party under this section does not affect
6-20 the responsibilities, duties, or liabilities imposed on the party.
6-21 SECTION 11. Section 361.136(i), Texas Health & Safety Code,
6-22 is amended to read as follows:
6-23 Sec. 361.136. INDUSTRIAL SOLID WASTE AND HAZARDOUS WASTE
6-24 MANAGEMENT FEE.
6-25 (i) The storage, processing, or disposal of industrial solid
6-26 wastes or hazardous wastes generated in a removal or remedial
6-27 action accomplished through the expenditure of public funds from
7-1 the hazardous and solid waste remediation fee fund or generated in
7-2 a removal or remedial action within the state conducted by the
7-3 Environmental Protection Agency shall be exempt from the assessment
7-4 of a waste management fee under this section.
7-5 SECTION 12. Section 361.343(a), Texas Health & Safety Code,
7-6 is amended to read as follows:
7-7 Sec. 361.343. APPORTIONMENT OF COSTS. (a)(5) In
7-8 apportionment, the court shall recognize and give credit to a
7-9 responsible party for that party's previous expenditures connected
7-10 with the TNRCC approved cleanup at issue. The court shall also
7-11 give an equitable and just discount from the relative share of the
7-12 responsible party for previous expenditures connected with the
7-13 early TNRCC approved cleanup at issue.
7-14 SECTION 13. Section 361.344, Texas Health & Safety Code, is
7-15 amended to read as follows:
7-16 Sec. 361.344. COST RECOVERY BY LIABLE PARTY OR THIRD PARTY.
7-17 (a) A person [subject to a court injunction or an administrative
7-18 order issued under this chapter, or a third person identified by
7-19 Section 361.192(c)] who, with TNRCC approval, acts to eliminate a
7-20 release or threatened release, in addition to having the right to
7-21 file an action for contribution or indemnity, or both, in an appeal
7-22 proceeding or in an action brought by the attorney general, may
7-23 bring suit in a district court to recover costs incurred to
7-24 eliminate the release or threatened release and other costs as the
7-25 court, in its discretion, considers reasonable.
7-26 ...
7-27 (f) A person who has resolved his liability to the state
8-1 regarding a site that is subject to subchapter F of this code shall
8-2 not be liable under this section or section 26.265 of the Texas
8-3 Water Code for contribution, indemnity, or cost recovery to a
8-4 person identified in subsection (a) of this section regarding
8-5 matters addressed in the settlement with the state. Such
8-6 settlement does not discharge any of the other potentially
8-7 responsible parties unless its terms so provide, but it reduces the
8-8 potential liability of the others by the amount of the settlement.
8-9 SECTION 14. A new section 361.281 of the Texas Health &
8-10 Safety Code is added as follows:
8-11 Sec. 361.281. Liability of Fiduciaries.--(a) In
8-12 general.--The liability of a fiduciary under any provision of this
8-13 Code or the Texas Water Code for the release or threatened release
8-14 of a solid waste at, from, or in connection with a solid waste
8-15 facility held in a fiduciary capacity shall not exceed the assets
8-16 held in the fiduciary capacity.
8-17 (b) Exclusion.--Subsection (a) does not apply to the extent
8-18 that a person is liable independently of the person's ownership of
8-19 a solid waste facility as a fiduciary or actions taken in a
8-20 fiduciary capacity.
8-21 (c) Limitation.--Subsections (a) and (d) do not limit the
8-22 liability pertaining to a release or threatened release of a solid
8-23 waste if negligence of a fiduciary causes or contributes to the
8-24 release or threatened release.
8-25 (d) Safe harbor.--A fiduciary shall not be liable in its
8-26 personal capacity under this Code or the Texas Water Code for--
8-27 (1) undertaking or directing another person to
9-1 undertake a response action in accordance with the National
9-2 Contingency Plan or a TNRCC-approved cleanup plan or under the
9-3 direction of an on scene coordinator designated under the National
9-4 Contingency Plan or a TNRCC-approved cleanup plan;
9-5 (2) undertaking or directing another person to
9-6 undertake any other lawful means of addressing a solid waste in
9-7 connection with the solid waste facility;
9-8 (3) terminating the fiduciary relationship;
9-9 (4) including in the terms of the fiduciary agreement
9-10 a covenant, warranty, or other term or condition that relates to
9-11 compliance with an environmental law, or monitoring or enforcing
9-12 the term or condition;
9-13 (5) monitoring or undertaking 1 or more inspections of
9-14 the solid waste facility;
9-15 (6) providing financial or other advice or counseling
9-16 to other parties to the fiduciary relationship, including the
9-17 settlor or beneficiary;
9-18 (7) restructuring, renegotiating, or otherwise
9-19 altering the terms and conditions of the fiduciary relationship;
9-20 (8) administering, as a fiduciary, a solid waste
9-21 facility that was contaminated before the fiduciary relationship
9-22 began; or
9-23 (9) declining to take any of the actions described in
9-24 paragraphs (2) through (8).
9-25 (e) Definitions. -- As used in this Section:
9-26 (1) Fiduciary. -- The term 'fiduciary'--
9-27 (A) means a person acting for the benefit of
10-1 another party as a bona fide-
10-2 (i) trustee;
10-3 (ii) executor;
10-4 (iii) administrator;
10-5 (iv) custodian;
10-6 (v) guardian of estates or guardian ad
10-7 litem;
10-8 (vi) receiver;
10-9 (vii) conservator;
10-10 (viii) committee of estates of
10-11 incapacitated persons;
10-12 (ix) personal representative;
10-13 (x) trustee (including a successor to a
10-14 trustee) under an indenture agreement, trust agreement, lease, or
10-15 similar financing agreement, for debt securities, certificates of
10-16 interest or certificates of participation in debt securities, or
10-17 other forms of indebtedness as to which the trustee is not, in the
10-18 capacity of trustee, the lender; or
10-19 (xi) representative in any other capacity
10-20 that the commission, after providing public notice, determines to
10-21 be similar to the capacities described in clauses (i) through (x);
10-22 and
10-23 (B) does not include--
10-24 (i) a person that is acting as a fiduciary
10-25 with respect to a trust or other fiduciary estate that was
10-26 organized for the primary purpose of, or is engaged in, actively
10-27 carrying on a trade or business for profit, unless the trust or
11-1 other fiduciary estate was created as part of, or to facilitate, 1
11-2 or more estate plans or because of the incapacity of a natural
11-3 person; or
11-4 (ii) a person that acquires ownership or
11-5 control of a solid waste facility with the objective purpose of
11-6 avoiding liability of the person or of any other person.
11-7 (2) Fiduciary capacity.--The term 'fiduciary capacity'
11-8 means the capacity of a person in holding title to a solid waste
11-9 facility or otherwise having control of or an interest in the solid
11-10 waste facility pursuant to the exercise of the responsibilities of
11-11 the person as a fiduciary.
11-12 (3) Solid waste facility.--The term 'solid waste
11-13 facility' means:
11-14 (A) all contiguous land, including structures,
11-15 appurtenances, and other improvements on the land, used for
11-16 processing, storing, or disposing of solid waste. The term
11-17 includes a publicly or privately owned solid waste facility
11-18 consisting of several processing, storage, or disposal operational
11-19 units such as one or more landfills, surface impoundments, or a
11-20 combination of units; and
11-21 (B) any building, structure, installation,
11-22 equipment, pipe, or pipeline (including any pipe into a sewer or
11-23 publicly owned treatment works, well, pit, pond, lagoon,
11-24 impoundment, ditch, landfill, storage container, motor vehicle,
11-25 rolling stock, or aircraft), or any site or area where a hazardous
11-26 substance has been deposited, stored, disposed of, or placed or
11-27 otherwise come to be located. The term does not include any
12-1 consumer product in consumer use or any vessel.
12-2 (f) Savings clause.--Nothing in this section--
12-3 (1) affects the rights or immunities or other defenses
12-4 that are available under this Code or the Texas Water Code that are
12-5 applicable to a person subject to this section; or
12-6 (2) creates any liability for a person or a private
12-7 right of action against a fiduciary or any other person.
12-8 (g) No effect on certain persons.--Nothing in this section
12-9 applies to a person if the person--
12-10 (1) (A) acts in a capacity other than that of a
12-11 fiduciary or in a beneficiary capacity; and
12-12 (B) in that capacity, directly or indirectly
12-13 benefits from a trust or fiduciary relationship; or
12-14 (2) (A) is a beneficiary and a fiduciary with respect
12-15 to the same fiduciary estate; and
12-16 (B) as a fiduciary, receives benefits that
12-17 exceed customary or reasonable compensation, and incidental
12-18 benefits, permitted under other applicable law.
12-19 (h) Limitation.--This section does not preclude a claim
12-20 under this Code or the Texas Water Code against--
12-21 (1) the assets of the estate or trust administered by
12-22 the fiduciary; or
12-23 (2) a nonemployee agent or independent contractor
12-24 retained by a fiduciary.
12-25 SECTION 15. Section 361.271, Texas Health & Safety Code is
12-26 amended to read as follows:
12-27 Sec. 361.271. PERSONS RESPONSIBLE FOR SOLID WASTE.
13-1 (e) Exclusion of lenders not participants in management.--
13-2 (1) Lender that holds a security interest.--The term
13-3 'owner or operator' does not include a person that is a lender
13-4 that, without participating in the management of a solid waste
13-5 facility, holds a security interest in or with regard to the solid
13-6 waste facility.
13-7 (2) Foreclosure.--The term 'owner or operator' does
13-8 not include a person that is a lender that did not participate in
13-9 management of a solid waste facility prior to foreclosure,
13-10 notwithstanding that the person--
13-11 (A) forecloses on the solid waste facility; and
13-12 (B) after foreclosure, sells, re-leases (in the
13-13 case of a lease finance transaction), or liquidates the solid waste
13-14 facility, maintains business activities, winds up operations,
13-15 undertakes a response action with respect to the solid waste
13-16 facility in accordance with the National Contingency Plan or a
13-17 TNRCC-approved cleanup plan or under the direction of an on-scene
13-18 coordinator appointed under the National Contingency Plan or a
13-19 TNRCC-approved cleanup plan, or takes any other measure to
13-20 preserve, protect, or prepare the solid waste facility prior to
13-21 sale or disposition, if the person seeks to sell, re-lease (in the
13-22 case of a finance transaction), or otherwise divest the person of
13-23 the solid waste facility at the earliest practicable, commercially
13-24 reasonable time, on commercially reasonable terms, taking into
13-25 account market conditions and legal and regulatory requirements.
13-26 A lender is presumed to divest itself of the solid waste facility
13-27 at the earliest practicable, commercially reasonable time if,
14-1 within 12 months after foreclosure, the lender--
14-2 (i) lists the solid waste facility with a
14-3 broker, dealer, or agent who deals in that type of property; or
14-4 (ii) advertises the solid waste facility
14-5 for sale or other disposition, at least monthly in--
14-6 (aa) a real estate
14-7 publication;
14-8 (bb) a trade or other
14-9 publication appropriate for the solid waste facility being
14-10 advertised; or
14-11 (cc) a newspaper of general
14-12 circulation in the area in which the solid waste facility is
14-13 located.
14-14 (C) For the purposes of subparagraph (B), the
14-15 12-month period begins--
14-16 (i) when the lender acquires marketable
14-17 title, if the lender, after the expiration of any redemption period
14-18 or other waiting period required by law, was acting diligently to
14-19 acquire marketable title; or
14-20 (ii) on the date of foreclosure or its
14-21 equivalent, if the lender does not act diligently to acquire
14-22 marketable title.
14-23 (3) A lender shall not be liable under this Code or
14-24 the Texas Water Code, to undertake a removal or remedial action or
14-25 pay a fine or penalty arising from the release or threatened
14-26 release of solid waste, at, from or in connection with the solid
14-27 waste facility in which the lender maintains a security interest or
15-1 which the lender has acquired through foreclosure, provided that
15-2 the lender has not participated in management prior to foreclosure,
15-3 the conditions giving rise to the release or threat of release
15-4 existed prior to foreclosure, and the lender seeks to divest itself
15-5 of the property in accordance with (e)(2)(B). Provided, however,
15-6 that where a lender after foreclosure operates, directs the
15-7 operation of, or maintains the operation of business activities,
15-8 this subsection does not exempt or excuse that lender from
15-9 compliance with legal requirements applicable to the operation of
15-10 that business. Such operational requirements include, but are not
15-11 limited to, permitting, reporting, monitoring, compliance with
15-12 emission limitations, financial responsibility and assurance
15-13 requirements, payment of fees, and payment of fines and penalties
15-14 for noncompliance with such requirements.
15-15 Participation in management.--For purposes of subsection
15-16 (e)--
15-17 (1) the term 'participate in management'--
15-18 (A) means actually participating in the
15-19 management or operational affairs of a solid waste facility; and
15-20 (B) does not include merely having the capacity
15-21 to influence, or the unexercised right to control, solid waste
15-22 facility or facility operations;
15-23 (2) a person that is a lender that holds a security
15-24 interest in or with regard to a solid waste facility shall be
15-25 considered to participate in management only if, while the borrower
15-26 is still in possession of the solid waste facility encumbered by
15-27 the security interest, the person--
16-1 (A) exercises decision making control over the
16-2 environmental compliance related to the solid waste facility such
16-3 that the person has undertaken responsibility for the solid waste
16-4 handling or disposal practices related to the solid waste facility;
16-5 or
16-6 (B) exercises control at a level comparable to
16-7 that of a manager of the solid waste facility such that the person
16-8 has assumed or manifested responsibility--
16-9 (i) for the overall management of the
16-10 solid waste facility encompassing day-to-day decision making with
16-11 respect to environmental compliance; or
16-12 (ii) over all or substantially all of the
16-13 operational functions (as distinguished from financial or
16-14 administrative functions) of the solid waste facility other than
16-15 the function of environmental compliance;
16-16 (3) the term 'participate in management' does not
16-17 include performing an act or failing to act prior to the time at
16-18 which a security interest is created in a solid waste facility; and
16-19 (4) the term 'participate in management' does not
16-20 include--
16-21 (A) holding a security interest or abandoning or
16-22 releasing a security interest;
16-23 (B) including in the terms of an extension of
16-24 credit, or in a contract or security agreement relating to the
16-25 extension, a covenant, warranty, or other term or condition that
16-26 relates to environmental compliance;
16-27 (C) monitoring or enforcing the terms and
17-1 conditions of the extension of credit or security interest;
17-2 (D) monitoring or undertaking 1 or more
17-3 inspections of the solid waste facility;
17-4 (E) requiring a response action or other lawful
17-5 means of addressing the release or threatened release of a solid
17-6 waste in connection with the solid waste facility prior to, during,
17-7 or on the expiration of the term of the extension of credit;
17-8 (F) providing financial or other advice or
17-9 counseling in an effort to mitigate, prevent, or cure default or
17-10 diminution in the value of the solid waste facility;
17-11 (G) restructuring, renegotiating, or otherwise
17-12 agreeing to alter the terms and conditions of the extension of
17-13 credit or security interest, exercising forbearance;
17-14 (H) exercising other remedies that may be
17-15 available under applicable law for the breach of a term or
17-16 condition of the extension of credit or security agreement; or
17-17 (I) conducting a response action in accordance
17-18 with the National Contingency Plan or a TNRCC-approved cleanup
17-19 plan, under the direction of an on-scene coordinator appointed
17-20 under the National Contingency Plan or a TNRCC-approved cleanup
17-21 plan, if the actions do not rise to the level of participating in
17-22 management (within the meaning of paragraphs (1) and (2)).
17-23 (g) Other terms.--For the purposes of this subsection and
17-24 subsection (e)--
17-25 (1) Extension of credit.--The term 'extension of
17-26 credit' includes a lease finance transaction--
17-27 (A) in which the lessor does not initially
18-1 select the leased solid waste facility and does not during the
18-2 lease term control the daily operations or maintenance of the solid
18-3 waste facility; or
18-4 (B) that conforms with regulations issued by the
18-5 appropriate Federal banking agency or the appropriate State bank
18-6 supervisor (as those terms are defined in section 3 of the Federal
18-7 Deposit Insurance Act (12 U.S.C. 1813) or with regulations issued
18-8 by the national Credit Union Administration Board, as appropriate.
18-9 (2) Financial or administrative function.--The term
18-10 'financial or administrative function' includes a function such as
18-11 that of a credit manager, accounts payable officer, accounts
18-12 receivable officer, personnel manager, comptroller, or chief
18-13 financial officer, or a similar function.
18-14 (3) Foreclosure; foreclose.--The terms 'foreclosure'
18-15 and 'foreclose' mean, respectively, acquiring, and to acquire, a
18-16 solid waste facility through--
18-17 (A) (i) purchase at sale under a judgment or
18-18 decree, power of sale, or nonjudicial foreclosure sale;
18-19 (ii) a deed in lieu of foreclosure, or
18-20 similar conveyance from a trustee; or
18-21 (iii) repossession, if the solid waste
18-22 facility was security for an extension of credit previously
18-23 contracted;
18-24 (B) conveyance pursuant to an extension of
18-25 credit previously contracted, including the termination of a lease
18-26 agreement; or
18-27 (C) any other formal or informal manner by which
19-1 the person acquires, for subsequent disposition, title to or
19-2 possession of a solid waste facility in order to protect the
19-3 security interest of the person.
19-4 (4) Lender.--The term 'lender' means--
19-5 (A) an insured depository institution (as
19-6 defined in section 3 of the Federal Deposit Insurance Act (12
19-7 U.S.C. 1813));
19-8 (B) an insured credit union (as defined in
19-9 section 101 of the Federal Credit Union Act (12 U.S.C. 1752));
19-10 (C) a bank or association chartered under the
19-11 Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.);
19-12 (D) a leasing or trust company that is an
19-13 affiliate of an insured depository institution;
19-14 (E) any person (including a successor or
19-15 assignee of any such person) that makes a bona fide extension of
19-16 credit to or takes or acquires a security interest from a
19-17 nonaffiliated person;
19-18 (F) the Federal National Mortgage Association,
19-19 the Federal Home Loan Mortgage Corporation, the Federal
19-20 Agricultural Mortgage Corporation, or any other entity that in a
19-21 bona fide manner buys or sells loans or interests in loans;
19-22 (G) a person that insures or guarantees against
19-23 a default in the repayment of an extension of credit, or acts as a
19-24 surety with respect to an extension of credit, to a nonaffiliated
19-25 person; and
19-26 (H) a person that provides title insurance and
19-27 that acquires a solid waste facility as a result of assignment or
20-1 conveyance in the course of underwriting claims and claims
20-2 settlement.
20-3 (5) Operational function.--The term 'operational
20-4 function' includes a function such as that of a facility or plant
20-5 manager, operations manager, chief operating officer, or chief
20-6 executive officer.
20-7 (6) Security interest.--The term 'security interest'
20-8 includes a right under a mortgage, deed of trust, assignment,
20-9 judgment lien, pledge, security agreement, factoring agreement, or
20-10 lease and any other right accruing to a person to secure the
20-11 repayment of money, the performance of a duty, or any other
20-12 obligation by a nonaffiliated person.
20-13 (7) Solid waste facility.--The term 'solid waste
20-14 facility' means:
20-15 (A) all contiguous land, including structures,
20-16 appurtenances, and other improvements on the land, used for
20-17 processing, storing, or disposing of solid waste. The term
20-18 includes a publicly or privately owned solid waste facility
20-19 consisting of several processing, storage, or disposal operational
20-20 units such as one or more landfills, surface impoundments, or a
20-21 combination of units; and
20-22 (B) any building, structure, installation,
20-23 equipment, pipe, or pipeline (including any pipe into a sewer or
20-24 publicly owned treatment works, well, pit, pond, lagoon,
20-25 impoundment, ditch, landfill, storage container, motor vehicle,
20-26 rolling stock, or aircraft), or any site or area where a hazardous
20-27 substance has been deposited, stored, disposed of, or placed or
21-1 otherwise come to be located. The term does not include any
21-2 consumer product in consumer use or any vessel.
21-3 SECTION 16. This Act takes effect September 1, 1997.
21-4 SECTION 17. The importance of this legislation and the
21-5 crowded condition of the calendars in both houses create an
21-6 emergency and an imperative public necessity that the
21-7 constitutional rule requiring bills to be read on three several
21-8 days in each house be suspended, and this rule is hereby suspended.