In recent years, the critical risks of improper storage and disposal of hazardous and toxic substances have become frighteningly apparent,' and the regulation of hazardous waste disposal has become increasingly comprehensive and complex, on both the federal and state level. On the federal level, the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Super fund Act) together provide a comprehensive statutory and regulatory scheme designed to cleanup existing hazardous waste disposal sites and to prevent the growth of future dangerous sites. Other federal statutes address in a more general way the problem of toxic or hazardous substances in the airs and water. In addition, both RCRA and CERCLA allow, encourage, and even demand state participation in establishing and enforcing hazardous waste regulations on a local level. On the state level, regulatory schemes are similar to the federal laws, or even more stringent.
With the increasingly comprehensive federal regulation of the hazardous waste disposal industry, the cost of safe and legal disposal has skyrocketed." The huge costs have forced some companies out of business and have prompted other companies to evade regulations by using illegal disposal methods.' Often the companies go into bankruptcy. Conflicts then arise between the goals, policies,and provisions of the Federal Bankruptcy Code and the goals,policies, and provisions of state and federal hazardous waste laws.'
The purpose of this Note is to identify the basic conflicts be-tween the Bankruptcy Code and hazardous waste laws and to pro-pose a balancing approach to resolve these conflicts. Part II of this Note identifies points of conflict that have arisen in recent cases and characterizes the conflict as a clash between the economic interests under the Bankruptcy Code and public health and safety concerns under CERCLA and RCRA. Part III proposes a "balancing of the equities" approach to resolve these conflicts. This approach considers three factors: qualitative interests, quantitative interests, and the good or bad faith of the parties. Part IV concludes that a balancing test is necessary to ensure the proper resolution of the competing concerns at issue and suggests that the courts should balance the equities according to Congress' expressed priorities.
Katherine S. Allen,
Belly Up Down in the Dumps: Bankruptcy and Hazardous Waste Cleanup,
38 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol38/iss4/9