PUBLIC LAW 104-208—SEPT. 30, 1996 110 STAT. 3009-464
engaged in, actively carrying on a trade or business
for profit, unless the trust or other fiduciary estate
was created as part of, or to facilitate, 1 or more
estate plans or because of the incapacity of a natural person; or
"(11) a person that acquires ownership or control of a vessel or facility with the objective purpose
of avoiding liability of the person or of any other
person.
"(B) FIDUCIARY CAPACITY. —The term 'fiduciary capacity means the capacity of a person in holding title to
a vessel or facility, or otherwise having control of or an
interest in the vessel or facility, pursuant to the exercise
of the responsibilities of the person as a fiduciary.
"(6) SAVINGS CLAUSE. —Nothing in this subsection—
"(A) affects the rights or immunities or other defenses
that are available under this Act or other law that is
applicable to a person subject to this subsection; or
"(B) creates any liability for a person or a private
right of action against a fiduciary or any other person.
"(7) No EFFECT ON CERTAIN PERSONS.— Nothing in this
subsection applies to a person if the person—
"(A)(i) acts in a capacity other than that of a fiduciary
or in a beneficiary capacity; and
"(ii) in that capacity, directly or indirectly benefits
from a trust or fiduciary relationship; or
"(B)(i) is a beneficiary and a fiduciary with respect
to the same fiduciary estate; and
"(ii) as a fiduciary, receives benefits that exceed customary or reasonable compensation, and incidental benefits, permitted under other applicable law.
"(8) LIMITATION.— Th is subsection does not preclude a claim
under this Act against—
"(A) the assets of the estate or trust administered
by the fiduciary; or
"(B) a nonemployee agent or independent contractor
retained by a fiduciary.".
(b) DEFINITION OF OWNER OR OPERATOR. — Section 101(20) of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601(20)) is amended by adding
at the end the following:
"(E) EXCLUSION OF LENDERS NOT PARTICIPANTS IN
MANAGEMENT. —
"(i) INDICIA OF OWNERSHIP TO PROTECT SECURITY. —
The term 'owner or operator' does not include a person
that L a lender that, without participating in the
management of a vessel or facility, holds indicia of
ownership primarily to protect the security interest
of the person in the vessel or facility.
"(ii) FORECLOSURE. — The term 'owner or operator'
does not include a person that is a lender that did
not participate in management of a vessel or facility
prior to foreclosure, notwithstanding that the person—
"(I) forecloses on the vessel or facility; and
"(II) after foreclosure, sells, re-leases (in the
case of a lease finance transaction), or liquidates
the vessel or facility, maintains business activities.
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