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CERCLA's New Safe Harbors for Banks, Lenders, and Fiduciaries

December 1996

Citation: 26 ELR 10656

Issue: 12

Author: William W. Buzbee

Buried deep within the several thousand page Omnibus Consolidated Appropriations Act signed by President Clinton in the waning days of the 104th Congress are the first significant amendments in a decade to the much-debated Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). CERCLA is the federal law that creates a broad class of parties potentially liable for expenses incurred in cleaning up sites contaminated with hazardous substances. CERCLA also gives the federal government broad authority to undertake, or force liable parties to undertake, cleanups of contaminated sites.

The new amendments to CERCLA, enacted as Subtitle E of the Appropriations Act, are entitled "The Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996." These 1996 lender-liability amendments provide significant new protections from liabilities under CERCLA and portions of the Resource Conservation Recovery Act (RCRA) to banks, other lenders, a broad variety of fiduciaries, and involuntary governmental holders of contaminated property. The amendments were passed with little contemporaneous public debate or discussion and, in fact, were generated out of congressional banking committees, instead of the usual environment committees and subcommittees.

William W. Buzbee is Associate Professor of Law at Emory Law School. The author thanks Frank Alexander, Ralph Brubaker, William Carney, James Hughes, and research assistant Andrew Thompson for their thoughts and suggestions. He also thanks Michael Gerrard of Arnold & Porter, Randy Deitz of the U.S. Environmental Protection Agency, Karen Florini of the Environmental Defense Fund, and Alfred Pollard of the Bankers' Roundtable for their willingness to discuss the history and implications of the amendments. The author, of course, takes sole blame for the Article's content.

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