The
Division of Waste Management has several regulatory programs under its
authority. Each program is governed by
different Federal and/or State rules. Each
set of rules contains a list of definitions.
The
Division of Waste Management has identified the ten common terms that are
listed as a formal definition in the Definitions
section of any one DWM program that are also used anywhere in the Definitions section of a different DWM
program. Sometime the terms can have
different meanings in different programs.
Each
of the ten common terms is highlighted in the colors below to better show where
and how the terms are used throughout the Definitions
section of different DWM program rules.
If you are unsure of the context of any terms used in DWM programs, please
contact the Branch Supervisor for that respective program.
1. Contaminant
2. Release
3. Responsible party
4. Groundwater
5. Facility
6. On-site (similar, but not a formal
definition - site)
7. Remediation / remedial
8. Owner
9. Operator
10. Disposal / disposal
action / disposal site
------------------------------------------------------------------------------------------------------------
Underground Storage Tank Section
|
Brownfields Property Reuse Act § 130A-310.30.
Short title. This Part may be cited as The Brownfields Property Reuse Act of 1997. (1997-357, s. 2.) § 130A-310.31.
Definitions. (a) Unless a different meaning is
required by the context or unless a different meaning is set out in
subsection (b) of this section, the definitions in G.S. 130A-2 and G.S.
130A-310 apply throughout this Part. (b) Unless a different meaning is
required by the context: 1.
"Affiliate" has the same meaning as in 17
Code of Federal Regulations § 240.12b-2 ( (2) "Brownfields agreement"
means an agreement between the Department and a prospective developer that
meets the requirements of G.S. 130A-310.32. (3) "Brownfields property"
or "brownfields site" means abandoned, idled, or underused
property at which expansion or redevelopment is hindered by actual
environmental contamination or the possibility of environmental contamination
and that is or may be subject to remediation under any State remedial program other than Part 2A of Article 21A
of Chapter 143 of the General Statutes or that is or may be subject to remediation under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. § 9601 et seq.). (4) "Contaminant" means a regulated substance
released into the environment. (5) "Unrestricted use standards"
when used in connection with "cleanup", "remediated", or
"remediation"
means that cleanup or remediation
of contamination complies with generally applicable standards, guidance, or
established methods governing the contaminants that are established by statute or adopted,
published, or implemented by the Environmental Management Commission, the
Commission, or the Department instead of the risk-based standards established
by the Commission pursuant to this Part. (6) "Environmental
contamination" means contaminants
at the property requiring remediation
and that are to be remediated under the brownfields
agreement including, at a minimum, hazardous waste, as defined in G.S.
130A-290; a hazardous substance, as defined in G.S. 130A-310; a hazardous
substance, as defined in G.S. 143-215.77; or oil, as defined in G.S.
143-215.77. (7) "Local government"
means a town, city, or county. (8) "Parent" has the same
meaning as in 17 Code of Federal Regulations § 240.12b-2 ( (9) "Potentially responsible party"
means a person who is or may be liable for remediation under a remedial program. (10) "Prospective
developer" means any person who desires to either buy or sell a brownfields property for the purpose of developing or
redeveloping that brownfields property and who did
not cause or contribute to the contamination at the brownfields
property. (11) "Regulated substance"
means a hazardous waste, as defined in G.S 130A-290; a hazardous substance,
as defined in G.S. 143-215.77A; oil, as defined in G.S. 143-215.77; or other
substance regulated under any remedial program implemented by the Department other than Part
2A of Article 21A of Chapter 143 of the General Statutes. (12) "Remedial program" means a program
implemented by the Department for the remediation of any contaminant, including the Inactive Hazardous Sites Response Act of
1987 under Part 3 of this Article, the Superfund Program under Part 4 of this
Article, and the Oil Pollution and Hazardous Substances Control Act of 1978
under Part 2 of Article 21A of Chapter 143 of the General Statutes. (13) "Remediation" means action to clean up,
mitigate, correct, abate, minimize, eliminate, control, or prevent the
spreading, migration, leaking, leaching, volatilization, spilling, transport,
or further release of a contaminant
into the environment in order to protect public health or the environment. (14) "Subsidiary" has the
same meaning as in 17 Code of Federal Regulations § 240.12b-2 ( |
SECTION .0300 -
VOLUNTARY REMEDIAL
ACTION OVERSIGHT BY REGISTERED ENVIRONMENTAL CONSULTANTS
.0301 DEFINITIONS
Any word or phrase used in the Rules in this Section which is defined in G.S.
130A, Article 9 shall have the meaning provided therein. The following words
and phrases shall have the following meanings:
(1) "Applicant" means an environmental consulting or engineering firm
seeking Department approval to act as a Registered Environmental Consultant.
(2) "Applicant RSM" means an individual proposed by an applicant to
fill the role of Registered Site
Manager.
(3) "Registered Environmental Consultant" or "REC" means an
environmental consulting or engineering firm approved to implement and oversee
voluntary remedial
actions pursuant to G.S. 130A-310.9(c).
(4) "Registered Site
Manager" or "RSM" means the key person or persons approved by
the Department to manage all site
activities and make certifications on behalf of the Registered Environmental
Consultant in its role as consultant to responsible parties for implementation
and oversight of a voluntary remedial
action pursuant to G.S. 130A-310.9(c).
(5) "Remediating Party" means any site owner, operator, or responsible party
engaging in a voluntary remedial
action pursuant to G.S. 130A-310.9(c).
(6) "Request for Approval" means the application and qualifications
documentation package which must be submitted by an environmental consulting or
engineering firm to the Department so that the Department may determine an
applicant's eligibility to operate as a Registered Environmental Consultant.
The Department shall make available a format for submission of such
information.
(7) "Source Area" means any area of sludge, soil, sediment, or other
solid medium contaminated by a release of one or more hazardous substances.
(8) "Voluntary Remedial
Action" is a remedial
action as defined in G.S. 130A-310(7) conducted voluntarily by an owner, operator, or responsible party and
undertaken with the approval of the Department pursuant to G.S. 130A-310.9(c).
History Note:
Authority G.S. 130A-310.12(b);
Eff.
---------------------------------------------------
Dry Cleaning Solvent Cleanup Act Program Definitions
DSCA STATUTE DEFINITIONS
(1) "Abandoned dry-cleaning facility site" or "abandoned site" means any real property or individual leasehold space on which a dry-cleaning facility or wholesale distribution facility formerly operated.
(2) "Affiliate" has the same meaning as in 17 Code of Federal Regulations § 240.12b-2 (1 April 1996 Edition).
(3) "Commission" means the Environmental Management Commission.
(4) "Contaminant" means a regulated substance released into the environment.
(5) Renumbered.
(6) "Disposal" shall have the meaning ascribed to it in G.S. 130A-290.
(7) "Dry-cleaning facility" means a place of business located in this State and engaged in on-site dry-cleaning operations, other than a commercial uniform service or commercial linen supply facility.
(8) "Dry-cleaning operations" means cleaning of apparel and household fabrics by using one or more dry-cleaning solvents instead of water.
(9) "Dry-cleaning solvent" means Perchloroethylene F-1,1,3 or 1,1,1 tricholorethane, a petroleum-based solvent, another comparable product used as a cleaning agent in a dry-cleaning operation or the degradation products from these hazardous substances.
(10) "Dry-cleaning solvent assessment agreement" or "assessment agreement" means an agreement between the Commission and a potentially responsible party who desires to assess whether a release of dry-cleaning solvents at a dry-cleaning facility, an abandoned dry-cleaning facility site, or a wholesale distribution facility may be eligible for remediation under this Part and whether any other contaminants that are identified in the agreement may require remediation under other remedial programs operated or administered by the Department.
(11) "Dry-cleaning solvent contamination" means the presence of dry-cleaning solvent in the waters or surface or subsurface soils of the State, the bedrock or other rock formations, or buildings in a concentration above the level requiring remediation pursuant to the rules implementing Article 21A of Chapter 143.
(12) "Dry-cleaning solvent remediation agreement" or "remediation agreement" means an agreement between the Commission and a potentially responsible party who desires to clean up dry-cleaning solvent contamination resulting from a release at a dry-cleaning facility, an abandoned dry-cleaning facility site, or a wholesale distribution facility under this Part and any other contaminants that are identified in the agreement under other remedial programs operated or administered by the Department.
(13) "Facility" means a dry-cleaning facility or a wholesale distribution facility.
(14) "Fund" means the Dry-Cleaning Solvent Cleanup Fund.
(15) "Hazardous waste" shall have the meaning ascribed to it in G.S. 130A-290.
(16) "Imminent hazard" means a situation that is likely to cause an immediate threat to human life, an immediate threat of serious physical injury, an immediate threat of serious adverse health effects, or a serious risk of irreparable damage to the environment if no immediate action is taken.
(17) "Local government" means a town, city, or county.
(18) "Operator" means any person operating a dry-cleaning facility or wholesale distribution facility, whether by lease, contract, or any other form of agreement.
(19) "Parent" has the same meaning as in 17 Code of Federal Regulations § 240.12b-2 (1 April 1996 Edition).
(20) Repealed by Session Laws 2000, ch. 19, s. 3, effective on and after April 1, 1998.
(21) "Potentially responsible party" means any person who may have liability for assessment, monitoring, treatment, mitigation, or remediation of dry-cleaning solvent contamination resulting from a release at a dry-cleaning facility, an abandoned dry-cleaning facility site, or a wholesale distribution facility.
(22) "Public health" means public health as the term is used in Article 9 of Chapter 130A of the General Statutes and "human health" as the term is used in Articles 21 and 21A of Chapter 143 of the General Statutes.
(23) "Regulated substance" means a hazardous waste, as defined in G.S. 130A-290; a hazardous substance, as defined in G.S. 143-215.77A; oil, as defined in G.S. 143-215.77; or other substance regulated under any remedial program implemented by the Department other than Part 2A of Article 21A of Chapter 143 of the General Statutes.
(24) "Release" means any spillage, leakage, pumping, placement, emptying, or dumping of dry-cleaning solvents resulting from a dry-cleaning operation or the operation of a wholesale distribution facility.
(25) "Remedial program" means a program implemented by the Department for the remediation of any contaminant, including the programs implemented under Article 9 of Chapter 130A of the General Statutes and the Oil Pollution and Hazardous Substances Control Act of 1978 under Part 2 of Article 21A of Chapter 143 of the General Statutes but not the remedial program implemented under Part 2A of Article 21A of Chapter 143 of the General Statutes.
(26) "Remediation" means action to clean up, mitigate, correct, abate, minimize, eliminate, control, or prevent the spreading, migration, leaking, leaching, volatilization, spilling, transporting, or further release of a contaminant into the environment in order to protect public health or the environment.
(27) "Response costs" means costs incurred in connection with a certified facility or abandoned site that the Commission determines are reasonably necessary and consistent with the applicable requirements of the Commission and any applicable dry-cleaning solvent assessment agreement or dry-cleaning solvent remediation agreement.
(28) "Subsidiary" has the same meaning as in 17 Code of Federal Regulations § 240.12b-2 (1 April 1996 Edition).
(29) "Treatment" shall have the meaning ascribed to it in G.S. 130A-290.
(29a) "Unrestricted use standards" when used in connection with "cleanup," "remediated", or "remediation" means that cleanup or remediation of contamination complies with generally applicable standards, guidance, or established methods governing the contaminants that are established by statute or adopted, published, or implemented by the Commission, the Commission for Health Services, or the Department instead of the risk-based standards established by the Commission pursuant to this Part.
(30) "Waters" means any stream, river, creek, brook, run, canal, swamp, lake, sound, tidal estuary, bay, reservoir, waterway, wetlands, or any other body or accumulation of water, surface or underground, public or private, natural or artificial, that is contained within, flows through, or borders upon this State, or any portion thereof, including those portions of the Atlantic Ocean over which this State has jurisdiction.
(31) "Wholesale distribution facility" means a place of business located in this State and engaged in the storage, distribution, or sale of dry-cleaning solvents for use in dry-cleaning facilities.
(32) "Wholesale distributor" means a person who operates a wholesale distribution facility. (1997-392, s. 1; 2000-19, s. 3; 2001-384, s. 11.)
(1) "Act" means the Dry-Cleaning Solvent Cleanup Act of 1997 and any amendments thereto.
(2) "Apparel and household fabrics" means apparel and fabrics that have been purchased at retail or have been purchased at wholesale for rental at retail.
(3) "Business" means "business" as defined in 15A
NCAC 13A .0104, which is hereby incorporated by reference including subsequent
amendments and editions. A copy may be inspected or obtained at no cost from
the Division of Waste Management, Dry-Cleaning Solvent Cleanup Act Program,
(4) "Closed container solvent transfer system" means a device or system specifically designed to fill a dry-cleaning machine with dry-cleaning solvent through a mechanical valve or sealed coupling in order to prevent spills or other loss of solvent liquids or vapors to the environment.
(5) "Discovery Site" means the physical site or area where dry-cleaning solvent contamination has been discovered. A discovery site may or may not be the same property as the facility site.
(6) "Division" means the Division of Waste Management of the Department of Environment and Natural Resources.
(7) "Dry-Cleaning Business" means a business having engaged in dry-cleaning operations or the operation of a wholesale distribution facility at a facility site.
(8) "Environmental media" means soil, sediment, surface water, groundwater or other physical substance.
(9) "Facility site" means the physical location of a dry-cleaning facility, a wholesale distribution facility or an abandoned site.
(10) "Material impervious to drycleaning solvent" means a material that has been demonstrated by the manufacturer, an independent testing laboratory such as Underwriters Laboratory, or another organization determined by the Division to be comparable, to maintain its chemical and structural integrity in the presence of the applicable dry-cleaning solvent and prevent the movement of dry-cleaning solvent for a period of a least 72 hours.
(11) "Number of full time employees" means the number of full-time equivalent employees employed by a person who owns a dry-cleaning facility, as calculated pursuant to 15A NCAC 02S .0103.
(12) "Person" means "person" as defined in G.S.
130A-290, which is hereby incorporated by reference including subsequent
amendments and additions. A copy may be inspected or obtained at no cost from
the Division of Waste Management, Dry-Cleaning Solvent Cleanup Act Program,
(13) "Petitioner" means a potentially responsible party who submits a petition for certification of a facility site.
--------------------------------------------------------------------------------------------------------------------------------
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and February 12, 2003]
[CITE: 42USC9601]
TITLE 42--THE PUBLIC HEALTH AND WELFARE
CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY
SUBCHAPTER I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
Sec. 9601. Definitions
For purpose of this subchapter--
(1) The term ``act of God'' means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.
(2) The term ``Administrator'' means the Administrator of the
United States Environmental Protection Agency.
(3) The term ``barrel'' means forty-two
(4) The term ``claim'' means a demand in writing for a sum
certain.
(5) The term ``claimant'' means any person who presents a claim
for compensation under this chapter.
(6) The term ``damages'' means damages for injury or loss of
natural resources as set forth in section 9607(a) or 9611(b) of this
title.
(7) The term ``drinking water supply'' means any raw or finished
water source that is or may be used by a public water system (as
defined in the Safe Drinking Water Act [42 U.S.C. 300f et seq.]) or
as drinking water by one or more individuals.
(8) The term ``environment'' means (A) the navigable waters, the
waters of the contiguous zone, and the ocean waters of which the
natural resources are under the exclusive management authority of
the
and Management Act [16 U.S.C. 1801 et seq.], and (B) any other
surface water, ground water, drinking water supply, land surface or
subsurface strata, or ambient air within
the
the jurisdiction of the
(9) The term ``facility'' means (A) any building, structure,
installation, equipment, pipe or pipeline (including any pipe into a
sewer or publicly owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container, motor vehicle,
rolling stock, or aircraft, or (B) any site or area where a
hazardous substance has been deposited, stored, disposed of, or
placed, or otherwise come to be located; but does not include any
consumer product in consumer use or any vessel.
(10) The term ``federally permitted Release'' means (A)
discharges in compliance with a permit under section 402 of the
Federal Water Pollution Control Act [33 U.S.C. 1342], (B) discharges
resulting from circumstances identified and reviewed and made part
of the public record with respect to a permit issued or modified
under section 402 of the Federal Water Pollution Control Act and
subject to a condition of such permit, (C) continuous or anticipated
intermittent discharges from a point source, identified in a permit
or permit application under section 402 of the Federal Water
Pollution Control Act, which are caused by events occurring within
the scope of relevant operating or treatment systems, (D) discharges
in compliance with a legally enforceable permit under section 404 of
the Federal Water Pollution Control Act [33 U.S.C. 1344], (E)
Releases in compliance with a legally enforceable final permit
issued pursuant to section 3005(a) through (d) of the Solid Waste
Disposal Act [42 U.S.C. 6925(a)-(d)] from a hazardous waste
treatment, storage, or disposal facility when such permit
specifically identifies the hazardous substances and makes such
substances subject to a standard of practice, control procedure or
bioassay limitation or condition, or other control on the hazardous
substances in such Releases, (F) any Release in compliance with a
legally enforceable permit issued under section 1412 of title 33 of
\1\ section 1413 of title 33, (G) any injection of fluids authorized
under Federal underground injection control programs or State
programs submitted for Federal approval (and not disapproved by the
Administrator of the Environmental Protection Agency) pursuant to
part C of the Safe Drinking Water Act [42 U.S.C. 300h et seq.], (H)
any emission into the air subject to a permit or control regulation
under section 111 [42 U.S.C. 7411], section 112 [42 U.S.C. 7412],
title I part C [42 U.S.C. 7470 et seq.], title I part D [42 U.S.C.
7501 et seq.], or State implementation plans submitted in accordance
with section 110 of the Clean Air Act [42 U.S.C. 7410] (and not
disapproved by the Administrator of the Environmental Protection
Agency), including any schedule or waiver granted, promulgated, or
approved under these sections, (I) any injection of fluids or other
materials authorized under applicable State law (i) for the purpose
of stimulating or treating wells for the production of crude oil,
natural gas, or water, (ii) for the purpose of secondary, tertiary,
or other enhanced recovery of crude oil or natural gas, or (iii)
which are brought to the surface in conjunction with the production
of crude oil or natural gas and which are reinjected, (J) the
introduction of any pollutant into a publicly owned treatment works
when such pollutant is specified in and in compliance with
applicable pretreatment standards of section 307(b) or (c) of the
Clean Water Act [33 U.S.C. 1317(b), (c)] and enforceable
requirements in a pretreatment program submitted by a State or
municipality for Federal approval under section 402 of such Act [33
U.S.C. 1342], and (K) any Release of source, special nuclear, or
byproduct material, as those terms are defined in the Atomic Energy
Act of 1954 [42 U.S.C. 2011 et seq.], in compliance with a legally
enforceable license, permit, regulation, or order issued pursuant to
the Atomic Energy Act of 1954.
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``or''.
---------------------------------------------------------------------------
(11) The term ``Fund'' or ``Trust Fund'' means the Hazardous
Substance Superfund established by section 9507 of title 26.
(12) The term ``ground water'' means water in a saturated zone
or stratum beneath the surface of land or water.
(13) The term ``guarantor'' means any person, other than the
owner or operator, who provides evidence of financial responsibility
for an owner or operator under this chapter.
(14) The term ``hazardous substance'' means (A) any substance
designated pursuant to section 311(b)(2)(A) of the Federal Water
Pollution Control Act [33 U.S.C. 1321(b)(2)(A)], (B) any element,
compound, mixture, solution, or substance designated pursuant to
section 9602 of this title, (C) any hazardous waste having the
characteristics identified under or listed pursuant to section 3001
of the Solid Waste Disposal Act [42 U.S.C. 6921] (but not including
any waste the regulation of which under the Solid Waste Disposal Act
[42 U.S.C. 6901 et seq.] has been suspended by Act of Congress), (D)
any toxic pollutant listed under section 307(a) of the Federal Water
Pollution Control Act [33 U.S.C. 1317(a)], (E) any hazardous air
pollutant listed under section 112 of the Clean Air Act [42 U.S.C.
7412], and (F) any imminently hazardous chemical substance or
mixture with respect to which the Administrator has taken action
pursuant to section 7 of the Toxic Substances Control Act [15 U.S.C.
2606]. The term does not include petroleum, including crude oil or
any fraction thereof which is not otherwise specifically listed or
designated as a hazardous substance under subparagraphs (A) through
(F) of this paragraph, and the term does not include natural gas,
natural gas liquids, liquefied natural gas, or synthetic gas usable
for fuel (or mixtures of natural gas and such synthetic gas).
(15) The term ``navigable waters'' or ``navigable waters of the
United States'' means the waters of the United States, including the
territorial seas.
(16) The term ``natural resources'' means land, fish, wildlife,
biota, air, water, ground water, drinking water supplies, and other
such resources belonging to, managed by, held in trust by,
appertaining to, or otherwise controlled by
the
(including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C. 1801 et seq.]), any State or local
government, any foreign government, any Indian tribe, or, if such
resources are subject to a trust restriction on alienation, any
member of an Indian tribe.
(17) The term ``offshore facility'' means any facility of any
kind located in, on, or under, any of the navigable waters of the
United States, and any facility of any kind which is subject to the
jurisdiction of the
any other waters, other than a vessel or a public vessel.
(18) The term ``onshore facility'' means any facility
(including, but not limited to, motor vehicles and rolling stock) of
any kind located in, on, or under, any land or nonnavigable waters
within the
(19) The term ``otherwise subject to the jurisdiction of the
United States'' means subject to the jurisdiction of the United
States by virtue of United States citizenship, United States vessel
documentation or numbering, or as provided by international
agreement to which the
(20)(A) The term ``owner or operator'' means (i) in the case of
a vessel, any person owning, operating, or chartering by demise,
such vessel, (ii) in the case of an onshore facility or an offshore
facility, any person owning or operating such facility, and (iii) in
the case of any facility, title or control of which was conveyed due
to bankruptcy, foreclosure, tax delinquency, abandonment, or similar
means to a unit of State or local government, any person who owned,
operated, or otherwise controlled activities at such facility
immediately beforehand. Such term does not include a person, who,
without participating in the management of a vessel or facility,
holds indicia of ownership primarily to protect his security
interest in the vessel or facility.
(B) In the case of a hazardous substance which has been accepted
for transportation by a common or contract carrier and except as
provided in section 9607(a)(3) or (4) of this title, (i) the term
``owner or operator'' shall mean such common carrier or other bona
fide for hire carrier acting as an independent contractor during
such transportation, (ii) the shipper of such hazardous substance
shall not be considered to have caused or contributed to any Release
during such transportation which resulted solely from circumstances
or conditions beyond his control.
(C) In the case of a hazardous substance which has been
delivered by a common or contract carrier to a disposal or treatment
facility and except as provided in section 9607(a)(3) or (4) of this
title, (i) the term ``owner or operator'' shall not include such
common or contract carrier, and (ii) such common or contract carrier
shall not be considered to have caused or contributed to any Release
at such disposal or treatment facility resulting from circumstances
or conditions beyond its control.
(D) The term ``owner or operator'' does not include a unit of
State or local government which acquired ownership or control
involuntarily through bankruptcy, tax delinquency, abandonment, or
other circumstances in which the government involuntarily acquires
title by virtue of its function as sovereign. The exclusion provided
under this paragraph shall not apply to any State or local
government which has caused or contributed to the Release or
threatened Release of a hazardous substance from the facility, and
such a State or local government shall be subject to the provisions
of this chapter in the same manner and to the same extent, both
procedurally and substantively, as any nongovernmental entity,
including liability under section 9607 of this title.
(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 is 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, winds up
operations, undertakes a response action under section
9607(d)(1) of this title or under the direction of an on-
scene coordinator appointed under the National Contingency
Plan, with respect to the vessel or facility, or takes any
other measure to preserve, protect, or prepare the vessel or
facility prior to sale or disposition,
if the person seeks to sell, re-lease (in the case of a lease
finance transaction), or otherwise divest the person of the
vessel or facility at the earliest practicable, commercially
reasonable time, on commercially reasonable terms, taking into
account market conditions and legal and regulatory requirements.
(F) Participation in management.--For purposes of subparagraph
(E)--
(i) the term ``participate in management''--
(I) means actually participating in the management or
operational affairs of a vessel or facility; and
(II) does not include merely having the capacity to
influence, or the unexercised right to control, vessel or
facility operations;
(ii) a person that is a lender and that holds indicia of
ownership primarily to protect a security interest in a vessel
or facility shall be considered to participate in management
only if, while the borrower is still in possession of the vessel
or facility encumbered by the security interest, the person--
(I) exercises decisionmaking control over the
environmental compliance related to the vessel or facility,
such that the person has undertaken responsibility for the
hazardous substance handling or disposal practices related
to the vessel or facility; or
(II) exercises control at a level comparable to that of
a manager of the vessel or facility, such that the person
has assumed or manifested responsibility--
(aa) for the overall management of the vessel or
facility encompassing day-to-day decisionmaking with
respect to environmental compliance; or
(bb) over all or substantially all of the
operational functions (as distinguished from financial
or administrative functions) of the vessel or facility
other than the function of environmental compliance;
(iii) the term ``participate in management'' does not
include performing an act or failing to act prior to the time at
which a security interest is created in a vessel or facility;
and
(iv) the term ``participate in management'' does not
include--
(I) holding a security interest or abandoning or
releasing a security interest;
(II) including in the terms of an extension of credit,
or in a contract or security agreement relating to the
extension, a covenant, warranty, or other term or conditi