Appearing in JNREL Vol. 22 No. 2 this comment was written by former staff member Marlene Bennett. Staff member Bryan Henley wrote this abstract.
In the United States, bankruptcy laws allow discharge of most debts in exchange for liquidating of most of the debtor's assets in an attempt to repay as much of the debt is possible. By definition, the claims sought by creditors to a bankrupt debtor exceed, in aggregate, the debtor's available assets. Often, the purpose of bankruptcy proceedings is to mete out the available assets. As one might imagine, excluding a claim has a profound effect for all other creditors. Reduction in any one debt necessarily increases the assets available for all other debts. Such a situation provides a strong incentive for creditors to bicker over debts, often so much so that the bankruptcy estate is devoured by the legal process as opposed to paying the actual debts. Accordingly, efficiency is a strong motivation for bankruptcy procedures, like estimation of debts. Parties often submit arguments praying that the court follow one method or another for estimating the amount owed under a given debt. Such was exactly the salient issue for In re Steel and Wire Co., a bankruptcy case involving environmental cleanup debt. 372 B.R. 446 (Bankr. E.D. Wis. 2007).
In 1989, the Environmental Protection Agency ("EPA") identified the Sherman Wire Company as one of the parties responsible for the environmental harm caused to the Chemical Recycling, Inc. site. This dubious distinction bound the Sherman Wire Company to bear a share of the cleanup costs of this site, which operated as a debt. In 2004, Sherman Wire Co. declared bankruptcy. The committee in charge of the site cleanup (CRI committee) urged the court to estimate the debt at nearly two-million dollars due, among other costs, the expense of hauling away mass amounts of soil. The debtor, Sherman Wire Company, contested the need to remove the soil and argued that other proposed actions by the committee could cause more harm than good. The debtor submitted an estimate of seventy-five thousand dollars. The bankruptcy court is afforded great discretion in determining the proper method to estimate a given debt, and here the court used that discretion. It chose, as a bankruptcy court, to find that the soil removal and other expensive processes proposed by the committee were not necessary.
This interaction between bankruptcy law and environmental is not uncommon. Business entities that have breached environmental regulation are unlikely to be able to predict the cleanup costs that the EPA might bring to bear. These costs can be surprisingly burdensome, as this case exemplifies. The bankruptcy court must act quickly to preserve assets. Environmental law also encourages swift action to handle compromised sites, as faster cleanup abates the risks of harm to the surrounding environment and human life. In her comment titled "Environmental Law and Application in Bankruptcy Law", Marlene Bennett thoroughly analyzes one court's synthesis of environmental law and bankruptcy. If history serves as a model for the future, this will not be the last time that these questions arise and we would all be well served in maintaining a familiarity with these issues.