§13.3 FIDUCIARY ENVIRONMENTAL LIABILITY
Environmental liability for fiduciaries under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 -9675, Model Toxics Control Act (MTCA), Chapter 70.105D RCW, and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 -6992k, is discussed below. For additional discussion of fiduciary environmental liability, see §10.4 in Chapter 10 (Minimizing Hazardous Waste Liability in Real Estate Transactions) of this deskbook.
(1) CERCLA liability
The original vacated rule, discussed in §13.2(l)(b), above, did not apply to financial institutions acting in a fiduciary capacity as trustees, receivers, custodians, or personal representatives. When Congress adopted the Asset Conservation Act in 1996, it also included protections against CERCLA's strict liability scheme for fiduciaries. The Act provides two primary protections: first, it limits the liability of a fiduciary to the value of the assets held in fiduciary capacity; second, it protects a fiduciary from personal liability for engaging in a list of enumerated activities. 42 U.S.C. § 9607(n), (n)(4).
| Caveat: | 42 U.S.C. §
9607(n)(1) limits the magnitude of the fiduciary's liability
It does not protect the fiduciary from personal liability or
require that the trust assets be used to satisfy the liability
Assuming this section applies to the United States, it limits a fiduciary's liability to the value of the trust assets—in this case, the Indian lands and revenues therefrom—but does not, as the United States suggests, require that the payment for potential liability be from the trust assets. Any liability apportioned to the United States would not necessitate the sale of Indian lands. United States v. Newmont USA Ltd., 504... |
