75-1-109 - Duty to comply with environmental laws -- Definitions.
75-1-109. Duty to comply with environmental laws -- Definitions.
(1) From the inception of the trust or estate, a fiduciary shall have the following powers,without court authorization, which it may use in its sole discretion to comply with environmentallaw:
(a) to inspect and monitor property held by the fiduciary, including interests in soleproprietorships, partnerships, or corporations and any assets owned by any such businessenterprise, for the purpose of determining compliance with environmental law affecting theproperty and to respond to any actual or threatened violation of any environmental law affectingthe property held by the fiduciary;
(b) to take, on behalf of the estate or trust, any action necessary to prevent, abate, orotherwise remedy any actual or threatened violation of any environmental law affecting propertyheld by the fiduciary, either before or after the initiation of an enforcement action by anygovernmental body;
(c) to refuse to accept property if the fiduciary determines that any property to be donatedto the trust or estate either is contaminated by any hazardous substance or is being used or hasbeen used for any activity directly or indirectly involving hazardous substance which could resultin liability to the trust or estate or otherwise impair the value of the assets held in the trust orestate;
(d) to settle or compromise at any time any and all claims against the trust or estate whichmay be asserted by any governmental body or private party involving the alleged violation of anyenvironmental law affecting property held in trust or in an estate;
(e) to disclaim any power granted by any document, statute, or rule of law which, in thesole discretion of the fiduciary, may cause the fiduciary to incur personal liability under anyenvironmental law; or
(f) to decline to serve as a fiduciary if the fiduciary reasonably believes that there is ormay be a conflict of interest between it in its fiduciary capacity and in its individual capacitybecause of potential claims or liabilities which may be asserted against it on behalf of the trust orestate because of the type or condition of assets held in the trust or estate.
(2) For purposes of this section "environmental law" means any federal, state, or locallaw, rule, regulation or ordinance relating to protection of the environment or human health. Forpurposes of this section, "hazardous substances" means any substance defined as hazardous ortoxic or which is otherwise regulated by any environmental law.
(3) The fiduciary is entitled to charge the cost of any inspection, review, abatement,response, cleanup, or remedial action authorized in this section against the income or principal ofthe trust or estate. A fiduciary shall not be personally liable to any beneficiary or other party forany decrease in value of assets in trust or in an estate by reason of the fiduciary's compliance withany environmental law, specifically including any reporting requirement under the law. Neitherthe acceptance by the fiduciary of property or a failure by the fiduciary to inspect property shallbe considered to create any inference as to whether or not there is or may be any liability underany environmental law with respect to the property.
(4) This section applies to all estates and trusts in existence upon and created after July 1,1991.
(5) No exercise by a fiduciary of any of the powers granted in this section shall constitutea transaction which is affected by a substantial conflict of interest on the part of the fiduciary.
Enacted by Chapter 133, 1991 General Session