Does CERCLA provide a “safe harbor” to fiduciary liability?

Yes. CERCLA also provides a “safe harbor” and states that a fiduciary shall not be liable in his personal capacity for:

  • Undertaking or directing another person to undertake a response action;
  • Undertaking or directing another person to undertake any other lawful means of addressing a hazardous substance in connection with the vessel or facility;
  • Terminating the fiduciary relationship;
  • Including in the terms of the fiduciary agreement a covenant, warranty, or other term or condition that relates to compliance with an environmental law, or monitoring, modifying or enforcing the term or condition;
  • Monitoring or undertaking one or more inspections of the vessel or facility;
  • Providing financial or other advice or counseling to other parties to the fiduciary relationship, including the settlor or beneficiary;
  • Restructuring, renegotiating, or otherwise altering the terms and conditions of the fiduciary relationship;
  • Administering, as a fiduciary, a vessel or facility that was contaminated before the fiduciary relationship began; or
  • Declining to take any of the actions described in subparagraphs above.

However, the fiduciary liability exemption does not apply to a person that: (1) is acting as a fiduciary with respect to a trust that is actively carrying on a trade or business for profit, unless the trust was created because of the incapacity of a natural person; or (2) acquires ownership or control of a vessel or facility in order to avoid liability.

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