Hazardous Waste and Bankruptcy: Confronting the Unasked Questions
![handle is hein.journals/velj13 and id is 195 raw text is: ARTICLE
HAZARDOUS WASTE AND BANKRUPTCY:
CONFRONTING THE UNASKED QUESTIONS
David H. Topol*
[T]he answer to a problem largely depends on the way the
question it presents is put. A wrong question is not likely to
beget a right answer.
Felix Frankfurter'
I. INTRODUCTION
The total cost of cleaning up all of the hazardous waste sites in
the United States is expected to exceed one trillion dollars. With
the cleanup costs at individual waste sites often exceeding forty
million dollars,3 an increasing number of companies that gener-
ated4 or disposed ofr hazardous waste are filing for bankruptcy
because they lack the money to pay the cleanup costs required by
the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (CERCLA).6 As a result, over the past dec-
ade, federal bankruptcy courts have confronted an increasing
number of cases questioning whether the unique harms associated
with hazardous waste justify special treatment under the Bank-
* Associate, Wilmer, Cutler & Pickering, Washington, D.C; B.A., Cornell University,
1988; J.D., Yale Law School, 1992. T am grateful to E. Donald Elliott, Carol M. Rose and
Harry H. Wellington for their contributions to this article as well as to my legal education.
I have also benefitted from helpful comments provided by William J. Perlstein, James A.
Rogers and Daniel H. Squire. The opinions expressed in this article do not necessarily
reflect the views of the firm of Wilmer, Cutler & Pickering.
1 In re Sawyer, 360 U.S. 622, 649 (1958) (Frankfurter, J., dissenting).
2 Philip H. Abelson, Remediation of Hazardous Waste Sites, Sci., Feb. 21, 1992, at 901.
3 Patricia L. Quentel, Emerging Tensions Between CERCLA and the Bankruptcy Code,
23 Envtl. L. Rep. 10268, 10268 (1993) (citing Arlene E. Mirsky, infra note 4, at 674).
4 See Arlene E. Mirsky et al., The Interface Between Bankruptcy and Environmental
Laws, 46 Bus. Law. 623, 626 (1991); Amal K. Naj, Can $100 Billion Have No Material
Effect on Balance Sheets, Wall St. J., May 11, 1988, at 1.
5 See U.S. General Accounting Office, Hazardous Waste, Environmental Safeguards
Jeopardized When Facilities Cease Operating 18 (1986).
6 42 U.S.C. §§ 9601-9674 (1988).](ViewImageLocal?handle=hein.journals/velj13&div=13&collection=journals&method=preview&ext=.png&size=3)
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Hazardous Waste and Bankruptcy: Confronting the Unasked Questions
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