| (a) A lender, as defined in §334.2 of this title (relating
to Definitions), is not liable as an owner or operator under this chapter
solely because the lender holds indicia of ownership to protect a security
or lienhold interest in property. A lender is not liable under this subsection
if:
(1) such lender has a security interest in a personal property
or in a fixture that is not attached to the real estate or a lienhold interest
on the real estate or fixture that is attached to the real estate as security
for a loan to finance the acquisition or development of property, to finance
the removal, repair, replacement, or upgrading of a regulated tank, or to
finance the performance of corrective action in response to a release of a
regulated substance from a tank, and the security or lienhold interest is
in:
(A) an underground storage tank (UST) or aboveground storage
tank (AST);
(B) real property on which an UST or AST is located; or
(C) in any other personal property attached to or located on
property on which an UST or AST is located; or
(2) the real or personal property described in paragraph (1)(A)-(C)
of this subsection constitutes collateral for a commercial loan.
(b) A lender that exercises control over property described
under subsection (a) of this section before foreclosure to preserve the collateral
or to retain revenues from the property for the payment of debt, or that otherwise
exercises the control of a mortgagee in possession, is not liable as an owner
or operator under this chapter unless that control leads to action that the
executive director finds is causing or exacerbating contamination associated
with the release of a regulated substance from a tank located on the property.
(c) A lender that has a bona fide security or lienhold interest
in any real or personal property as described under subsection (a) of this
section and that forecloses on or receives an assignment or deed in lieu of
foreclosure and becomes the owner of that real or personal property is not
liable as an owner or operator under this chapter if the lender:
(1) permanently removes from service any USTs or ASTs on the
property. A tank is permanently removed from service when the actions defined
in §334.55(b) of this title (relating to Permanent Removal from Service)
have been properly completed;
(2) undertakes, and with due diligence in a timely and persistent
manner completes, corrective action in response to any release from those
tanks. A lender acts with due diligence when the lender executes the corrective
action in conformance with Subchapter D of this title (relating to Release
Reporting and Corrective Action), or as otherwise directed by the executive
director; and
(3) performs the removal and corrective action in accordance
with all applicable commission rules.
(d) A lender acting under subsection (c) of this section must
begin removal of the tank from service or corrective action within 90 days
after the date on which the lender becomes the owner of the property.
(e) A lender described by subsection (a) of this section which
forecloses on or receives an assignment or deed in lieu of foreclosure on
real or personal property described in subsection (a) of this section is not
liable as an owner or operator under this chapter because the lender sells,
releases, liquidates, or winds up operations and takes measures to preserve,
protect, or prepare a secured AST or UST before sale or other disposition
of the storage tank or the property if the lender:
(1) did not participate in the management of an AST or UST
or real or personal property described by subsection (a) of this section before
foreclosure or its equivalent on the storage tank or the property; and
(2) establishes, as provided by subsection (f) of this section,
that the ownership indicia maintained after foreclosure continue to be held
primarily to protect a security interest.
(f) A lender may establish that the ownership indicia maintained
after foreclosure continues to be held primarily to protect a security interest
if, within 12 months after foreclosure, the lender:
(1) lists the AST or UST, or the facility or property on which
the tank is located, with a broker, dealer, or agent who deals in that type
of property; or
(2) advertises the AST or UST for sale or other disposition,
at least monthly, in:
(A) a real estate publication;
(B) a trade or other publication appropriate for the AST or
UST being advertised; or
(C) a newspaper of general circulation in the area in which
the AST or UST is located.
(g) For purposes of subsections (f) and (h) of this section
the 12-month period begins:
(1) when the lender acquires good and indefeasible title, if
the lender, after the expiration of any redemption period or other waiting
period required by law, was acting diligently to acquire such title; or
(2) on the date of foreclosure or its equivalent, if the lender
does not act diligently to acquire good and indefeasible title.
(h) A lender that meets the conditions of subsection (f) nonetheless
becomes liable as owner and/or operator at the end of the 12-month period,
or when the lender no longer holds ownership indicia primarily to protect
its security interest, whichever occurs first. If a lender outbids, rejects,
or does not act on an offer of fair consideration for the AST or UST or the
facility or property on which the storage tank is located, it is presumed
that the lender is not holding the ownership indicia primarily to protect
the security interest unless the lender is required, in order to avoid liability
under federal or state law, to make the higher bid, obtain the higher offer,
or seek or obtain an offer in a different manner.
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