In his Comment¹ on United States v. Maryland Bank & Trust Co.,² Phillip Reed suggests, "[L]ike other landowners and hazardous waste generators who have learned too late just how broad CERCLA's liability scheme can be, they [banks and other creditors] may simply have to pay the piper."³ Without intending to be contentious, I believe the contrary is true. Banks and other creditors will only have to dance to a new tune. The public will end up paying the piper.

Two district courts have held that bank creditors could be liable under the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA)⁴ for the cost of cleanup of hazardous waste facilities created and maintained by their debtors. In rendering their decision, these courts analyzed the so-called "security interest exception"⁵ under CERCLA to find that the banks were "owners or operators" of the facilities. The exception was incorporated into CERCLA by Congress to protect creditors holding security interests in hazardous waste facilities, where the creditor did not dominate the debtor or manage the hazardous waste facility.⁶ Mr. Reed, in discussing Maryland Bank & Trust Co. and an earlier case that also relied on the security interest exception,⁷ states that the results in the cases "may be reconciled"⁸ and that the "reasoning" of the court in Maryland Bank & Trust Co. is "persuasive."⁹ While the ultimate decisions in both cases may be correct, the reasoning of both is erroneous. The reliance by both courts on public policy arguments is also misplaced.