Treatment of CERCLA Claims for Hazardous Waste Cleanup Costs in Bankruptcy

摘要

According to a September 2010 report of the Business Cycle Dating Committee of the National Bureau of Economic Research, the nationwide recession that began in December 2007 ended in June 2009, although this fact does not mean that economic conditions since that time "have been favorable or that the economy has returned to operating at normal capacity."' In this challenging economic climate, it is not uncommon for some companies who are potentially responsible parties (PRPs) involved in hazardous substances cleanup litigation under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)2 to file for bankruptcy protection. Where government authorities propose to spend millions of dollars to clean up hazardous substances at a site, and where one or more of the PRPs potentially liable for these costs files for bankruptcy protection, the following question necessarily arises: What steps can the remaining solvent PRPs involved in the litigation take to try to ensure that funds of the insolvent PRP (debtor-PRP) are preserved for cleanup? The answer can depend in part on what CERCLA claims for relief a solvent PRP is asserting, i.e., a CERCLA §107 claim for cleanup costs that the PRP has itself expended to clean up a site, or a CERCLA §113 claim for contribution for any costs that the PRP may have to pay over to another PRP, or the state or federal government, who has incurred costs in cleaning up hazardous substances at a site.