Extensions of Remarks
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June 18, 1993 EXTENSIONS OF REMARKS 13409 EXTENSIONS OF REMARKS CERTAINTY UNDER SUPERFUND: A self in two areas, where environmental con Second, the EPA rule does not address CATALYST FOR INCREASED tamination is already known or may occur. If RCRA, the solid waste regulatory law which SMALL BUSINESS LENDING a small business engages in a line of com covers a broad range of business and other merce that may produce any environmental activities. HON. JOHN J. LaFALCE risks, such as dry cleaners, construction firms Third, the EPA rule does not address fidu OF NEW YORK and builders, convenience stores and gas sta ciary issues. Since CERCLA and RCRA are IN THE HOUSE OF REPRESENTATIVES tions, creditors may simply refuse to make a silent on the extent of fiduciary liability, EPA loan, to avoid the ·threat of liability inherent in felt constrained from adopting a rule that satis Friday, June 18, 1993 the court decisions. If a small business oper factorily addresses this important question. Mr. LAFALCE. Mr. Speaker, the issue of ates in an area of existing environmental The recent court case of City of Phoenix v. cleaning up the environment remains as criti harm, then a lender may require extensive Garbage Services Co., (No. C 89-1709SC (D. cal today as it did 13 years ago, when we preloan testing for contamination to protect it-: Ariz)) is the latest manifestation of liability for began our efforts to seek a Federal response self, which makes any loan simply uneco fiduciaries, such as trustees, for environmental to environmental problems resulting from re nomic for many businesses. harm they did not cause. As a result of deci lease of hazardous substances. The response The environment suffers as well. Lenders, sions like this, thousands of banks and pen was the Comprehensive Environmental Re guarantors, mortgage and title insurers, and sion trustees, as well as many other individ sponse, Compensation and Liability Act or secondary market players . all are wary of un uals and institutions which act as fiduciaries, Superfund. At the same time, the need for dertaking secured arrangements that involve are exposed to personal liability for Superfund credit for business has been a key issue for property that has or may easily incur any envi cleanups and RCRA remediation far in excess us and the people of this country. ronmental contamination. This is exactly the of the usually minor fees they service. Fidu As chairman of the Small Business Commit wrong result. At a time when we are seeking ciaries need clarification of the extent of their tee and a member of the Banking Committee, private action in community development and liabilities under these environmental laws. I have seen the convergence of these two is the creation of new jobs, we should facilitate The revised legislation I have introduced sues in one area-that is-the problems cre private action in assisting with environmental balances the concerns of secured parties and ated by erroneous court decisions interpreting cleanup. Simply put, if we clarify the extent of fiduciaries, the small business community and the Superfund law's exemption for secured liability of secured parties, specifying the limits the environment. Clarifying the secured party parties for environmental problems they did of such liability, then lenders may lend to busi exemption and providing certainty will result in not cause. The solid waste law, the Resource nesses which desire to clean up property. greater lending not only for business pur Conservation and Recovery Act [RCRA], Ironically, lack of clarity in Superfund can poses, but for private sector environmental poses similar liability issues for lenders. The impact not only on lending to clean up the en cleanup as well. Clarifying the extent of fidu risk of unjustified liability has increased the re vironment, but also compliance with other en ciary liability will ensure that these important luctance of banks to lend at a time our econ vironmental laws. For example, a small busi functions performed for the benefit of third par omy can afford it, and has, in fact, damaged ness may seek a loan to buy equipment to ties are not unduly burdened. Because the bill efforts at environmental cleanup. meet Clean Air or Clean Water Act require closely tracks the EPA rule on the matters THE SOURCE OF THE PROBLEM ments. The borrowing must be based on col covered by the rule, the legislation will also Through judicial erosion of this exemption, lateral, usually real property. Lender concerns show that the Congress fully supports EPA's lenders, small businesses, and indeed, the en about the Superfund and RCRA liabilities for efforts, and intends that additional clarity and vironment have suffered. Uncertainty has pro the real property may prevent extending credit protection be afforded to secured parties and duced tight credit, unnecessary costs and to clean up the property or to meet other envi fiduciaries. even the denial of credit for certain type of ronmental goals. Today, I am joined in introducing this legis borrowers. Ironically, all of this has happened The EPA took a strong first step in adopting lation by one of the most active supporters of in the face of fairly clear action by the Con the Superfund rule. It is incumbent on Con the environment and small business, the able gress in 1980, to exempt from liability secured gress to now finish the job. I have introduced Congressman from Kansas [Mr. SLATIERY]. parties who do not cause environmental harm. legislation to accomplish this; the bill follows He has been actively working for a resolution These problems have been thoroughly aired my remarks with an accompanying section-by of this issue at the earliest possible time. He in hearings before the Small Business Com section analysis. This bill generally parallels is a leader in the Energy and Commerce mittee. A positive response was forthcoming H.R. 1450, sponsored by over 270 Members Committee and I look forward to working with from the Environmental Protection Agency in the last Congress, with additions made to him to see this legislation enacted. I am also [EPA] in 1992. EPA promulgated a rule that make the legislation consistent with the EPA joined by Congressmen LARocco and clarifies that simply holding indicia of owner rule and to clarify technical terms related to fi McCOLLUM of the House Banking Committee. ship primarily to protect a security interest nancial transactions. The time has come to finally resolve this should not create liability for the lender for en THE NEED FOR LEGISLATION issue. Cosponsorship has been strong, EPA vironmental problems created by others. How Legislation is needed for a variety of rea has recognized the problem and it is now up ever, under the rule, actions which directly sons. First, the EPA rule is just that, a rule. It to the Congress to act to produce needed cer lead to environmental harm do create liability. is currently under challenge in court and it will tainty and stability while enhancing the oper I join EPA in that reasoning. likely be some time before there is a decision ation of our environmental laws. This rule is an enormous step forward. But in that case. In the meantime, there still is un The text of the bill follows: it is not enough. In calling for legislative and certainty for lenders as to whether trans H.R.- regulatory action over the past 4 years, I have actions covered by the rule are actually pro Be it enacted by the Senate and House of Rep been motivated by the needs of both small tected from Superfund liability. Indeed, some resentatives of the United States of America in business and the environment. recent court cases addressing the secured Congress assembled, Small businesses often face the most dif creditor exemption have been decided without SECTION 1. AMENDMENTS TO COMPREHENSIVE ficulty in borrowing and are required, fre reference to the rule. Further, EPA made the ENVIRONMENTAL RESPONSE, COM PENSATION, AND LIABILITY ACT OF quently, to have unusually strong collateral, rule binding only prospectively, so it is unclear 1980. generally their real and personal property. Any what protection is afforded to transactions The Comprehensive Environmental Re hint of additional costs to a lender may pre started prior to the rule but still continuing sponse, Compensation, and Liability Act of clude the extension of credit. This manifests it- today. 1980 is amended- e This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor. 13410 EXTENSIONS OF REMARKS June 18, 1993 (1) by striking the last sentence of para borrower is still in possession of the property "(x) Actions taken by a holder of a secu graph 101(20)(A); and encumbered by the security interest, only if rity interest to foreclose, sell, liquidate, re (2) by inserting the following new para the holder either- lease or otherwise divest or cause the trans graphs 101(20)(E) and (F): "(!) exercises decisionmaking control over fer of property subject to a security interest; "(E)(i) The term 'owner or operator' does the borrower's environmental compliance, or preserve or protect the value of such prop not include a person who, without partici such that the holder has undertaken respon erty; or otherwise to exercise rights of a pating in the management of a vessel or fa sibility for the borrower's solid waste han holder of a security interest specified in sub cility, holds indicia of ownership primarily dling or disposal practices; or paragraph (v) above; or to assist the bor to protect his or her security interest in the "(II) exercises control at a level com rower, debtor, obligor, or lessee in winding vessel or facility.