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A Whole New Ballgame: Judicial Review and Estimation of CERCLA Claims in Bankruptcy

December 1992

Citation: 22 ELR 10785

Issue: 12

Author: Laurence S. Kirsch, Elizabeth T. Van Horn and David F. Williams

Editors' Summary: One of the lessons of recent Superfund litigation is that, in general, defendants unhappy with the government's cleanup plans face an uphill battle challenging those plans in court. Congress wrote the 1986 Superfund Amendments to favor a free hand for EPA in cleaning up hazardous waste sites, even if the cleanup bill will later be handed to a private defendant. Generally, this reflects Congress' policy preference for speedy cleanups.

But the rules can be very different under the Bankruptcy Code, where Congress wrote to encourage careful stewardship of limited funds available in bankruptcy. In this Article, the authors, who represented a debtor in a recent bankruptcy proceeding, show how the Bankruptcy Code can lead a court to estimate a company's liability on terms much more favorable than would be available under standard Superfund procedures. And, the authors suggest, the results hint at a need to rethink Superfund's restrictions on judicial review.

Messrs. Williams and Kirsch are partners, and Ms. Van Horn is an associate, in the Washington, D.C., office of the law firm of Cadwalader, Wickersham & Taft. The authors represented National Gypsum Co. in the proceeding discussed in this Article.

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