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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — June 1985


Bankruptcy and the Cleanup of Hazarous Waste: Caveat Creditor

by Murray Drabkin, Laurence S. Kirsch, and James W. Moorman

Editors' Summary: The huge liabilities associated with cleanup of hazardous waste sites have driven some waste generators and disposers into bankruptcy. When this happens, business creditors find themselves fighting with the government and cleanup-related claimants over the bankrupt's assets.These confrontations have become more common: the Supreme Court has already handed down one ruling in a cleanup-bankruptcy case, Kovacs, and has granted certiorari in two more. The authors give a brief overview of federal hazardous waste and bankruptcy laws and then explore their interaction in four key areas: the discharge of cleanup liability, the priority of a cleanup claim in relation to other creditors, the abandonment of waste sites to avoid liability, and the effect of the automatic bankruptcy stay on hazardous waste litigation. They suggest how many of the unresolved legal issues in these areas could be decided and discuss how the law will affect parties responsible for cleanup and their creditors.


"Arranging for Disposal" Under CERCLA: When Is a Generator Liable?

by James L. Conner II

Editors' Summary: A close reading of the broad and convoluted liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act suggests that generators who arranged for the disposal of wastes are not liable for cleaning up subsequent hazardous substance releases to the environment, unless they chose the unsafe sites at which the releases occurred. The legal battles that have been waged over the scope of generator liability under the Act have largely bypassed this issue, concentrating instead on joint and several liability and causation. While those fights are not over, the results to date have been one-sided, in favor of expanding generator liability in accordance with the legislative history and policy considerations of the Act. In two recent cases raising the site selection issue, generator defendants fared no better. While the most recent decision lends some support to the argument that generators that did not choose the leaking disposal site should be exculpated, the court found a way to make the generator potentially liable for cleanup of its toxic wastes.


Dangerous Chemicals in International Perspective: The Developing United Nations Role

by Martha Traylor

The impact of toxic chemicals and waste on the environment and human life is of worldwide concern. The United Nations has been working for over a decade on development of a legal system to protect against toxic effects possible from the vast array of chemicals that now are manufactured and used in the world, and from the abandonment of toxic wastes. For several years, the U.N. quietly has been developing an international information and notification system. Every country in any stage of development is concerned to prevent another Bhopal. This recent tragedy has provided a dramatic push toward some kind of orderly preventive process to which all nations can agree. Because the United Nations is not a regulatory body, but must operate on the basis of consensus rules and guidelines, the legal system it is developing takes the form of voluntary contributions of information and mutual agreement to protective guidelines. There has been important progress, but in recent months, the United States has emerged as an obstacle.

The concern of the United Nations Environment Programme (UNEP) with the possible worldwide impact of chemicals and toxic wastes dates back to the Action Plan for the Human Environment of the United Nations Conference on the Human Environment, held at Stockholm from June 5-16, 1972 (1972 Stockholm Conference). In that plan, Recommendation 21 on international programs for integrated pest control and reduction of the harmful effects of agro-chemicals, and Recommendation 74 on an international registry of data on chemicals in the environment, form the structure for the developing legal system.1 Two major programs have been undertaken, the creation of an international registry of dangerous chemicals to make available information concerning chemicals and wastes to all who need it, and a working group of experts who are developing guidelines concerning the movement of dangerous chemicals in the international trade.