THOMAS H. FULTON, Bankruptcy Judge.
These jointly administered cases come before the Court
These are coal mining cases. As often happens in coal mining cases, the Court must navigate a morass of complex facts and circumstances, procedural history, and legal issues. It is helpful, then, to begin not with the usual findings of fact, but with a discussion of the regulation of surface coal mining. Fortunately, the United States Bankruptcy Appellate Panel of the Sixth Circuit (the "BAP") provided a succinct but thorough discussion of the regulatory environment in In re Appalachian Fuels, LLC, 493 B.R. 1 (6th Cir. BAP 2013).
Id. at 22-24, 26-28 (hereinafter the SMCRA, WVSCMRA, Clean Water Act and WVWPCA shall be referred to herein as the "Environmental Laws").
In 2001, Larry Addington, Robert Addington, and Stephen Addington (the "Addingtons") formed Appalachian Fuels, LLC ("AppFuels"). The Addingtons created AppFuels to carry out coal mining activities in West Virginia and Kentucky. In November 2003, AppFuels and its affiliated entities entered into a transaction with the Pittston Coal Company ("Pittston") to purchase certain companies held by Pittston. As a result of this transaction, Appalachian Coal Holdings, Inc. ("AppCoal") was created and acquired 100% ownership in the Pittston-held company, Kanawha Development Corporation ("KDC").
AppFuels and AppCoal were members of a web of incorporated entities that were jointly administered in this bankruptcy proceeding. At the center of the web was Appalachian Holding Co., Inc. ("AppHolding"). AppFuels and AppCoal were direct, wholly-owned subsidiaries of AppHolding. AppFuels owned 100% of Appalachian Premium Fuels, LLC ("AppPremFuels") and Appalachian Environmental, LLC ("AppEnviron"). AppCoal, as previously stated, owned 100% of KDC.
After the Pittston transaction, KDC held three West Virginia mining permits, O-38-84, O-14-81, and H-631, and one West Virginia National Pollution Discharge Elimination System ("WV/NPDES") permit,
AppFuels continued using the KDC Permits as they had been used under Pittston. There were other permits used at the Alloy Mining Complex; the KDC Permits only represented a fraction of the environmental oversight of the mining operations at the Alloy Mining Complex.
AppFuels and AppPremFuels operated the Alloy Mining Complex from 2003 through 2009. AppFuels operated the surface mines. AppPremFuels operated the subsurface mines. AppFuels employed, controlled, and provided oversight for the surface mines covered by the KDC Permits. According to the credible testimony of Bernie Mason, former Chief Operating Officer of AppFuels, "Everything was operated by Appalachian Fuels." Transcript of Evidentiary Hearing on June 23, 2014, p. 24. KDC had no employees, mining or reclamation equipment or any assets other than the KDC Permits. KDC did not enter into contracts or make payments and had no bank accounts or other financial resources. It had no independent management or decision-making authority.
Operating the mines and running the Alloy Mining facilities included oversight of reclamation activities. AppFuels monitored the reclamation and ensured permit compliance on the KDC Permits. There was no distinction between the mining operations of AppFuels and KDC. AppFuels engineers were responsible for all monthly maintenance and water monitoring related to the KDC Permits. If contractors needed to be hired, they would be hired at AppFuels' expense. AppFuels employees coordinated with the WVDEP concerning the KDC Permits when necessary.
In December 2008, AppFuels defaulted on lease payments due under a contract with Penn Virginia Operating Company ("Penn Virginia") for property relating to the Alloy Mining Complex. Because of their close working relationship, Penn Virginia did not provide formal notice of the default until April 2009. The default was evidence of the poor financial condition of AppFuels and sparked discussions about liquidation and alternatives to liquidation within AppFuels. In May 2009, AppFuels and its affiliates agreed to an assignment for the benefit of creditors. James H. Frazier, III ("Frazier") was appointed assignee to marshal assets to preserve their value for liquidation for the benefit of creditors.
Upon his appointment, Frazier took several actions to marshal assets. Among other things, he sought to employ certain AppFuels employees, including its chief operating officer and employees responsible for its mining and reclamation operations and permit maintenance. He also retained a mine engineering consultant to deal with state and federal regulators and hired a forensic accountant to prepare an accounting of Debtor assets.
On June 11, 2009, three creditors filed an involuntary bankruptcy petition against AppFuels under 11 U.S.C. § 303. Frazier filed an emergency motion for authority to remain in possession, management and control of AppFuels' assets. Among other things, Frazier sought to "continue to move forward in commencing and completing reclamation projects ... to maximize value of the mining permits for a potential purchaser" and "to resolve certain regulatory actions against Appalachian Fuels, in cooperation with OSM, KYDNR, and WVDEP, including abatement of cessation orders which, if not promptly resolve, will
On June 26, 2009, Frazier moved to convert the AppFuels case to a case under Chapter 11 of the Bankruptcy Code and filed Chapter 11 petitions for four AppFuels affiliates. AppFuels' and its affiliates' bankruptcy cases were later administratively consolidated and jointly administered.
On July 24, 2009, the Court entered an agreed final order appointing Frazier Chief Liquidating Officer ("CLO") for each of the Debtor entities. That order, among other things, directed him to manage the Debtor entities "in full compliance with all state and federal laws, as required by 28 U.S.C. § 959(b)." Among the powers granted Frazier as CLO was the authority to cause Debtor to comply with SMCRA and WVSCMRA and "cause the Debtors to perform all bonding and reclamation obligations so as to comply with state and federal laws and regulations and further to perform such obligations calculated to effect the release of bonds for the benefit of the Debtors' estates."
With the commencement of these bankruptcy proceedings, mining activity ceased at the Alloy Mining Complex. Frazier made an effort to reduce the liabilities of AppFuels and its affiliates to facilitate a sale of the assets at the Alloy Mining Complex. Even with the initiation of bankruptcy proceedings, maintenance and reclamation work continued to some extent with respect to the KDC Permits. Frazier wanted to ensure that the liabilities assumed by a potential buyer did not accumulate while there was a lapse in mining activity. Potential purchasers of the Alloy Mining Complex soon appeared, including the A.T. Massey Coal Company ("Massey").
During this period, WVDEP continued to perform its regulatory functions, including inspecting the AppFuels permit sites and issuing notices with respect to various violations. At the same time, WVDEP exercised its regulatory discretion to refrain from issuing certain notices of violations that might impair the CLO's ability to sell the Debtor's assets, including refraining from citing the AppFuels estate for reclamation and water treatment violations with respect to the KDC Permits.
On September 4, 2009, the Debtor submitted a motion under 11 U.S.C. § 363 to approve the sale of assets to Massey (the "Massey Transaction"), which the Court approved by Order entered on September 28, 2009 (the "Massey Sale Order"). Under the terms of the Asset Purchase Agreement (the "Massey Sale Agreement") approved by the Court, the Massey Transaction transferred substantially all of
For AppFuels' creditors, the ideal outcome would have been to sell all of the mining related permits held by the corporate family, including the KDC Permits. A sale of such permits would absolve AppFuels from any continued obligations related to environmental reclamation and thus would limit the future liability to creditors. Indeed, WVDEP recognized how important it was to be able to transfer the permits and worked with Frazier to facilitate the transfer of the permits. During these interactions between Frazier and WVDEP it became clear that to maximize the benefit to the creditors it was important that all of the permits be sold and that no `orphan permits' remain. Unfortunately, the KDC Permits had little value and merely existed as reclamation projects that guaranteed future reclamation liability with virtually no benefit to the holder. As a result, Frazier was unable to find a buyer for the KDC Permits.
On March 21, 2011, WVDEP filed a general unsecured proof of claim for $282,829.00, which finalized the "pre-petition civil penalties, fines, assessments and damages incurred by the Debtors" relating to the KDC permits. WVDEP, however, differentiated between the pre- and post-petition claims. WVDEP specifically noted that "`final' total amount penalties that will be incurred by the Debtor during the pendency of this bankruptcy case is unknown at this time" and expressly reserved the right to apply for administrative expenses for post-petition violations at a later date.
A few months later, on August 11, 2011, Debtor filed its proposed Chapter 11 Plan of Reorganization and Disclosure Statement. In response, on October 5, 2011, WVDEP filed an objection to the Disclosure Statement, asserting, among other things, that Debtor had not adequately addressed what WVDEP estimated at the time would be $4.5-4.6 million dollars of liability for reclamation associated with the KDC Permits. It also asserted that "numerous environmental civil penalty violations and fees have been and continue to be incurred by the Debtors" and stated its intention that "post-petition civil penalties and fees will be addressed with the other administrative claims of WVDEP when it files its Application For Administrative Expenses." WVDEP also objected to what it perceived as the Debtor's wrongful attempt to "subordinate WVDEP's post-petition administrative expense reclamation and civil penalty claims into general unsecured claims." Citing the same cases cited herein, WVDEP argued forcefully that it was entitled to administrative expense priority for reclamation liabilities associated with the KDC Permits.
On October 12, 2011, Debtor filed an amended Chapter 11 Plan and Disclosure Statement. In response to WVDEP's objection to the original plan and disclosure statement, Debtor added statements to the Disclosure Statement setting forth WVDEP's position but also disclaiming agreement with, and reserving the right to object to, that position. Debtor also amended its proposed plan, among other things adding a provision expressly stating that no environmental permits would be
Around this time, WVDEP began to suspect that the reclamation would not continue on the KDC Permits going forward. During the bankruptcy case, it had become apparent to WVDEP that the reclamation associated with the KDC Permits was deficient and that proper reclamation needed to be conducted. WVDEP sent reports of violations to AppFuels, but the reports were being returned to WVDEP unopened. Recognizing that AppFuels was going to walk away from its environmental obligations, WVDEP began the formal process to revoke the KDC Permits on December 2, 2011, by issuing cessation orders under W. Va.Code § 22-3-17. The KDC Permits were not formally revoked until sometime after confirmation of the Debtor's plan of reorganization.
Around the same time, on November 29, 2011, WVDEP filed a motion for substantive consolidation of these various estates, reasserting the environmental concerns and arguments that it raised and asserted in its objection to Debtor's disclosure statement. In urging substantive consolidation, WVDEP also expressed particular concern that Debtor was "attempting to use the corporate form here to perpetrate an injustice, justify a wrong, to defeat public convenience and to defend a crime" by "attempting to change an environmental obligation into a claim, have the claim subordinated to unsecured status and then compartmentalize the claim into a `liability subsidiary' where there will be no distribution to WVDEP." Debtor objected to WVDEP's motion and the matter was ultimately set for hearing on December 9, 2011, the date of the hearing on confirmation of Debtor's amended plan.
On December 7, 2011, WVDEP filed an objection to confirmation of Debtor's amended plan, raising the same environmental concerns and making the same arguments as were raised in its prior objection to Debtor's disclosure statement. In this objection, however, WVDEP provided additional detail as to particular provisions of the plan that it found troubling and again expressed concern about Debtor attempting to "compartmentalize" its environmental liabilities in entities with no assets. It also objected to the plan on grounds that it "unlawfully releases, exculpates and acts as an injunction in favor of the Debtors and the above-mentioned individuals via an assertion of Bankruptcy Court jurisdiction in manner which abrogates or purports to abrogate State Sovereign and/or 11th Amendment immunity."
On December 9, 2011, the Court held a hearing to consider confirmation of Debtor's amended plan, with U.S. Bankruptcy Judge Joseph Scott, since retired, presiding. At this hearing, counsel for WVDEP and Debtor engaged in a considerable discussion with the Court regarding WVDEP's objection to the proposed plan and its right to pursue an administrative expense claim against all of the Debtor entities, Debtor's opposition to WVDEP's position, and WVDEP's motion for substantive consolidation. WVDEP ultimately withdrew its objection to confirmation and its motion for substantive consolidation. From the transcript of the hearing, it is clear that WVDEP only did so with the understanding that it would be able to reassert its arguments as part of the administrative expense application process. Debtor similarly expressly reserved its right to object to WVDEP's position at that time. As stated on the record by counsel for Debtor, "The way I look at this is they're not waiving anything, and we're not waiving anything. This will be taken care of when and if they file an application for administrative expense, and we'll of course object to the payment of that by
Shortly after the December 9, 2011 confirmation hearing, an Agreed Order of Confirmation of Debtors' and Committees' Plan of Orderly Liquidation and Distribution was submitted to the Court, which the Court entered on December 19, 2011 (the "Confirmation Order"). Among other things, the Confirmation Order approved Debtor's proposed plan of reorganization, subject to certain amendments set out in Paragraph 29 of the Confirmation Order, and further conditioned upon an express reservation of rights set out in Paragraph 30, as follows:
(hereinafter, the plan, as approved and modified by the Court in the Confirmation Order, shall be referred to as the "Plan").
WVDEP filed its Application for Administrative Expenses on January 13, 2012 (the "WVDEP Application"). In the WVDEP Application, WVDEP originally
On February 3, 2012, the Trustee and the AppPremFuels unsecured creditors committee filed separate objections to the WVDEP Application, arguing that the amounts sought do not qualify as administrative expenses. In addition, the Trustee argued that WVDEP's claim should be brought against KDC, not AppFuels. The
WVDEP appealed that decision to the Sixth Circuit BAP in July 2012. On April 19, 2013, the BAP rendered its decision in In re Appalachian Fuels, LLC, 493 B.R. 1, partially affirming and partially reversing this Court's June 25, 2012 Order. In its decision, the BAP distinguished between AppFuels and AppPremFuels. With regard to AppPremFuels, the BAP affirmed the denial of the administrative expense claims. Based on the evidence presented to the BAP, it was clear that only AppFuels, which worked on surface mines, conducted reclamation with respect to the KDC Permits. AppPremFuels conducted sub-surface mining operations and would not have dealt with the KDC Permits. The BAP also held that neither AppFuels nor AppPremFuels could be held liable for reclamation associated with the KDC Permits under a theory of "derivative" liability.
The BAP, however, also concluded that it was possible that AppFuels could be held directly liable as an "operator" under the Environmental Laws. As can be seen in the extensive excerpt from its opinion included in the Introduction to this Memorandum-Opinion above, the BAP looked at both the federal and West Virginia law to determine what liability extends to a non-owner operator. After analyzing the statutory language at both the federal and state level, and applicable case law, the BAP determined that an operator could be held liable for excess reclamation costs on KDC Permits. Id. Moreover, it noted that "[a]s long as reclamation work is still going on, a party can remain liable as an `operator' even if the actual mining operations have stopped." Id. at 25 (citing Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1094 (6th Cir.1981)). The BAP found that this Court had failed to consider direct operator liability and had failed to make fact findings that would allow application of such theory. It remanded these cases back to this Court to make appropriate findings of fact and determine whether AppFuels was an "operator" with respect to the KDC Permits. It also held that, if this Court found that AppFuels was an "operator," this Court would have to determine whether and to what extent WVDEP's claim should be treated as an administrative expense claim.
As ordered by the BAP, this Court held an evidentiary hearing on June 23-25, 2014, to consider whether AppFuels was an "operator" with respect to the KDC Permits and, if so, whether and to what extent the WVDEP Application should be approved. WVDEP presented several witnesses in support of the WVDEP Application, all of whom the Court found credible and persuasive. The Trustee also presented largely credible witnesses; however, the Court found WVDEP's environmental consultant more persuasive than the Trustee's environmental consultant. Also, the Trustee provided no persuasive evidence to rebut WVDEP's evidence that AppFuels employees made all decisions and took all actions with respect to the KDC Permits. The Court found WVDEP's evidence supporting its estimated costs of reclamation thorough, credible and persuasive.
As discussed above, the BAP remanded this proceeding back to this Court to determine whether Debtor might be held liable for reclamation obligations associated with the Permits as an "operator" under
The facts in the record weigh heavily, if not exclusively, in favor of a conclusion that AppFuels acted as an "operator" with respect to the KDC Permits and that, therefore, it may be held liable for associated reclamation. The BAP in In re Appalachian Fuels, LLC remanded these cases back to this Court to make findings of fact that would determine whether AppFuels was such an "operator." According to the BAP, there was a "genuine issue of material fact as to whether AppFuels performed coal mining and reclamation operations under the KDC Mining permits and is thus liable for the reclamation obligations." Id.
As discussed above, credible, persuasive, and essentially un-rebutted testimony by AppFuels's former Chief Operating Officer shows that, prior to the initiation of the AppFuels bankruptcy case, "[e]verything was operated by Appalachian Fuels." After Frazier took over AppFuels, first as assignee for the benefit of creditors, later as Chief Liquidating Officer for the AppFuels bankruptcy estate, he largely employed AppFuels employees in managing the estate assets associated with the surface mine portion of the Alloy Mining Complex, including reclamation work related to the KDC Permits. Essentially, the bankruptcy estate of AppFuels continued to take all actions with regard to the KDC Permits. The bankruptcy estate for KDC existed as a hollow shell, only nominally the holder of the KDC Permits. In light of this clear record, applying the legal standards discussed in the Introduction to this Memorandum-Opinion above, the Court must conclude that AppFuels and the bankruptcy estate of AppFuels acted as an "operator" with respect to the KDC Permits.
In determining whether to approve the WVDEP Application, the Court faces the more difficult task of analyzing the intersection of two principles of Sixth Circuit bankruptcy jurisprudence. On one hand, a trustee in bankruptcy must ensure that the bankruptcy estate complies with applicable environmental laws during the pendency of the bankruptcy case, and expenses arising as a result of such compliance must be accorded administrative expense priority under 11 U.S.C. § 503. See Lancaster v. State of Tennessee (In re Wall Tube & Metal Products Co.), 831 F.2d 118, 122-24 (6th Cir.1987) citing, inter alia, Midlantic Nat'l Bank v. New Jersey Dept. of Envtl. Prot., 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) and Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985); see also 28 U.S.C. § 959. On the other hand, the Sixth Circuit requires that administrative expenses under 11 U.S.C. § 503 be strictly construed, because priority claims reduce the funds available for creditors and other claimants. See National Union Fire Ins. Co. v. VP Bldgs., Inc., 606 F.3d 835, 838 (6th Cir.2010). Tension arises between these two principles here because of the unique nature of the "expenses" at issue in these cases — largely consisting of funds that will have to be expended in the future to correct existing environmental violations.
Upon appeal from the Third Circuit, the Supreme Court held that the trustee could not use Bankruptcy Code § 554 to abandon the contaminated property. The Court began its analysis by considering the legislative history of § 554. It noted that prior to the adoption of 11 U.S.C. § 554, bankruptcy trustees' power to abandon property had been limited by a judicially created doctrine intended to protect legitimate state and federal interests. Midlantic, 474 U.S. at 500, 106 S.Ct. 755. It found that Congress had codified that judicially created restriction on trustees' power when enacting § 554, citing the rule of statutory construction that "if Congress intends for legislation to change the interpretation of a judicially created concept, it makes the intent specific." Id. at 501, 106 S.Ct. 755 (internal citation omitted). The Court then concluded that "[n]either the Court nor Congress has granted a trustee in bankruptcy powers that would lend support to a right to abandon property in contravention of state or local laws designed to protect public health and safety." Id. at 502, 106 S.Ct. 755.
In reaching this conclusion, the Court first cited its own decision from the preceding term, Kovacs, 469 U.S. at 285, 105 S.Ct. 705, wherein it had held that a trustee must comply with environmental laws and "may not maintain a nuisance, pollute the waters of the State, or refuse to remove the source of such conditions." The Court then noted that "Congress has repeatedly expressed its legislative determination that the trustee is not to have carte blanche to ignore non-bankruptcy law." Midlantic, 474 U.S. at 502, 106 S.Ct. 755. By way of example, it cited the exceptions provided to the automatic stay by 11 U.S.C. § 362(b), "despite the importance of § 362(a) in preserving the debtor's estate," that "allow the Government to commence or continue legal proceedings." Id. at 503, 106 S.Ct. 755. It found that "Title 28 U.S.C. § 959(b) provides additional evidence that Congress did not intend for the Bankruptcy Code to pre-empt all state laws." Id. at 505, 106 S.Ct. 755. Significantly, it also stated: "Although the reasons elaborated above suffice for us to conclude that Congress did not intend for the abandonment power to abrogate certain state and local laws, we find additional support for restricting that power in repeated congressional emphasis on its `goal of protecting the environment against toxic
Wall Tube also involved a debtor with contaminated property. There, the Chapter 7 trustee sold some of the debtor's property as part of his liquidation efforts but retained as part of the bankruptcy estate drums and storage tanks containing hazardous wastes. The State of Tennessee's environmental inspectors analyzed the retained drums and storage tanks and reported them as "threatened release locations." Wall Tube, 831 F.2d at 121. The State of Tennessee sought administrative expense treatment for the cost of inspection, which the bankruptcy court denied on grounds that such expenses were not "actual necessary costs and expenses of preserving the estate." Id. In doing so, the bankruptcy court concluded that 28 U.S.C. § 959(b) does not apply to a Chapter 7 trustee liquidating an estate and found that the "State's activity neither benefitted the estate nor fulfilled a legal obligation under State law...." Id. The District Court for the Eastern District of Tennessee affirmed the bankruptcy court, also concluding that 28 U.S.C. § 959(b) does not apply to liquidation trustees.
Upon appeal, the Sixth Circuit reversed the District Court and remanded the case back to the bankruptcy court, directing it to enter an order granting the State of Tennessee's administrative expense request. The Sixth Circuit looked to Midlantic and concluded that "if the Wall Tube trustee could not have abandoned the estate in contravention of the State's environmental law, neither then should he have maintained or possessed the estate in continuous violation of that same law." Id. at 122 (emphasis original). The Sixth Circuit rejected the lower courts' conclusion that 11 U.S.C. § 959(b) does not apply to trustees in the process of liquidating an estate, finding it "inconsequential" whether the trusting was liquidating or reorganizing an estate, "especially in the critical context of the public's welfare." Id. "In either case, an environmental hazard on the estate's property is within the control of the trustee." Id. Most importantly for this Court's purposes, the Sixth Circuit in Wall Tube looked to the "special emphasis on the importance of complying with laws that protect the public health and safety" created by Midlantic and Kovacs and concluded that the funds expended by the State of Tennessee "in the absence of compliance by the debtor's estate" were "actual and necessary, both to preserve the estate in required compliance with state law and to protect the health and safety of a potentially endangered public." Id. at 123-24.
The Trustee cannot dispute that the Environmental Laws protect the public health and safety. Clearly, the Environmental Laws do so, and, therefore, the Debtor had a duty to maintain the bankruptcy estate in compliance with the Environmental Laws and could not abandon
Complicating these cases, however, is the fact that most of the "expenses" sought to be recovered by WVDEP in the WVDEP Application do not represent amounts already expended by WVDEP. In both Midlantic and Wall Tube, the creditors sought reimbursement for funds previously expended. Here, the administrative expenses sought by WVDEP consist primarily of amounts that it estimates it will have to spend in the future to correct Debtor's failure to abide by the Environmental Laws.
This distinction forms the primary basis for the Trustee's objection to the WVDEP Application. The Trustee urges the Court to construe § 503(b) strictly and deny it because the sum requested therein does not reflect expenses actually and necessarily incurred by WVDEP during the bankruptcy cases.
The Trustee makes several assertions as to why WVDEP's administrative expense claim does not represent "actual" and "necessary" costs under a strict interpretation of 11 U.S.C. § 503(b). Relying upon Zurich American Ins. Co. v. Lexington Coal Co., LLC (In re HNRC Dissolution Co.), 371 B.R. 210 (E.D.Ky.2007) aff'd, 536 F.3d 683 (6th Cir.2008), the Trustee argues that WVDEP's claim remains "contingent" and, therefore, its expenses will not become "actual" for § 503(b) purposes, until WVDEP has completed certain steps under West Virginia law — i.e., exhausted forfeited reclamation bond proceeds and calculated the amount, if any, of additional funds that must be expended to complete reclamation. Citing HNRC Dissolution, among other cases, the Trustee also argues that WVDEP's expenditure of funds after Plan confirmation cannot be deemed "necessary" to preservation of Debtor's bankruptcy estate because the estate ceased to exist at Plan confirmation. The Trustee argues more generally that WVDEP's claim fails the Sixth Circuit's "benefit to the estate" test, as articulated in In re White Motor Corp., 831 F.2d 106, 110 (6th Cir.1987). For its part, WVDEP asserts that its claim arose immediately upon the AppFuels estate's failure to perform its necessary reclamation obligations with respect to the KDC Permits, which occurred prior to confirmation.
1. Are the expenses "actual" expenses?
The fact that WVDEP has not yet spent the majority of funds that it estimates will have to be expended on reclamation in and of itself has no bearing on when the obligation to pay for such reclamation arose. The Sixth Circuit has recognized that post-petition claims may be eligible for administrative expense priority treatment even if in the form of unliquidated damages. In United Trucking Serv., Inc. v. Trailer Rental Co., Inc. (In re United Trucking Serv., Inc.), 851 F.2d 159 (6th Cir.1988), the Sixth Circuit held that the damages for a post-petition breach of equipment lease was properly treated as administrative expense. It stated that
Id. at 162. Notably, the Court approved of the lower court's adoption of estimated cost of repairs as the measure of damages rather than the cost of the repairs actually made. Id. at 164. Other courts, including the Supreme Court, have allowed administrative expense treatment for types of claims arising post-petition that would not necessarily, or even probably, be liquidated at the time of plan confirmation. See e.g., Reading Co. v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L.Ed.2d 751 (1968) (tort claims); Caradon Doors & Windows, Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 447 F.3d 461 (6th Cir.2006) (patent-infringement claims); and In re Cook & Sons Mining,
In the relatively recent HNRC Dissolution, which was affirmed by the Sixth Circuit, the Court looked to the time when a legal obligation to pay arises to determine whether a claim is eligible for administrative expense treatment. See In re HNRC Dissolution, 371 B.R. at 226. In that case, the creditor in question sought administrative expense treatment for insurance payments it believed it would have to make in the future for injuries occurring during the pendency of the bankruptcy case. In affirming the bankruptcy court's denial of administrative expense treatment, the Court stated: "The bottom line remains that Zurich is not contractually obligated to pay any of the deductible obligations in question until claims are filed, which will necessarily occur post-confirmation." Id. It found also that
Id. at 228. From the foregoing, it is logical to conclude that the Court in HNRC Dissolution would have decided in favor of granting administrative priority for the expenses if the converse had been true; that is, if the expenses had indeed been "pre-confirmation expenses from post-petition events that will be paid post-confirmation."
Did the WVDEP claim arise pre-confirmation or post-confirmation? The Trustee's asserts the latter, arguing that, under West Virginia law, WVDEP's claims against persons defaulting on reclamation obligations remain contingent — do not arise — until after WVDEP follows the applicable procedures for revoking permits and making use of reclamation bonds. The Trustee relies upon Section 38-2-12.4 of the West Virginia Code of State Rules (the "West Virginia Rules") in support of its argument. It points in particular to Section 38-2-12.4.b of the West Virginia Rules, which states that "[in] the event forfeiture of a bond is required by this section.... the proceeds shall be used by the Secretary to accomplish completion of reclamation...." Section 38-2-12.4.c of the West Virginia Rules states that "[a]fter notice of forfeiture has been served, the Secretary shall in a timely manner, but not later one hundred eighty (180) days after such notice, initiate reclamation operations to reclaim the site in accordance with the approved reclamation plan or modification thereof...." Section 38-2-12.4.d of the West Virginia Rules states that "[w]here the proceeds of bond forfeiture are less than the actual cost of reclamation, the Secretary shall make expenditures from the special reclamation fund to complete reclamation...." Section 38-2-12.4.e of the West Virginia Rules states that "[t]he operator or permittee shall be liable for all costs in excess of the amount forfeited...."
The Court has considered the foregoing provisions of the West Virginia Rules carefully and concludes that they do not establish a permit operator's fundamental liability for reclamation but rather are the procedures by which WVDEP liquidates its already existing claim against the operator for that operator's failure to abide by its permit obligations. As discussed above in the Introduction to this Memorandum-Opinion, under the Environmental Laws,
Unlike the duties at issue in HNRC Dissolution, which would only arise, if at all, upon the satisfaction of certain contractual obligations after plan confirmation and dissolution of the bankruptcy estate, the AppFuels estate had an ongoing duty to comply with the Environmental Laws during the life of the bankruptcy, which it clearly breached by failing to perform the reclamation obligations under the KDC Permits. Although the record is somewhat unclear as to the precise moment at which the AppFuels estate failed to perform its obligations under the KDC Permits, it certainly signaled its intention to abandon those obligations when it filed its proposed plan of reorganization on August 11, 2011. That proposed plan, which, as amended, became the confirmed Plan, contemplated abandonment of the KDC Permits and made no express provision for continuation by the Trustee or any other entity of the reclamation required under the KDC Permits. Thus, at least as of the instant before the Court's entry of the Confirmation Order,
3. What about the "benefit to the estate" test? The Trustee argues that the expenses sought to be recovered fail the more general "benefit to the estate" test enunciated in In re White Motor Corp., 831 F.2d 106 (6th Cir.1987) (whether the claimed expense arose from a transaction with the estate or claimant gave consideration to the debtor-in-possession and the same directly and substantially benefited the estate). That more general test, however, is tempered by the holding in Wall Tube in the special circumstances where the expenses are related to compliance with laws protecting the public health and safety. As discussed above, Wall Tube essentially mandates that such expenses be treated as administrative expenses under Bankruptcy Code § 503, without needing to resort to other tests that might be applied in other contexts.
Even if the "benefit to the estate" test were to be applied, however, the expenses at issue did arise from a transaction between AppFuels's estate and WVDEP and/or consideration given by WVDEP to the estate. WVDEP allowed AppFuels' estate to act as an operator under the KDC Permits and deferred permit enforcement and revocation proceedings during most of the bankruptcy case so that the CLO could try to sell the KDC Permits. Such transaction and/or consideration substantially benefited AppFuels' estate, and more generally, the Debtor, because it allowed the CLO to direct resources not expended on compliance with the KDC Permits elsewhere within the Debtor's estate, to the ultimate benefit of creditors. WVDEP's actions, and deferral of action, also allowed the estate assets to be marketed without a regulatory "cloud," which facilitated the sale of a substantial portion of the assets.
4. Did WVDEP waive its right to pursue administrative expense treatment? The Trustee also argues that WVDEP waived its right to pursue administrative expense treatment for various of the expenses
The Trustee argues that the confirmed Plan bars payment of WVDEP's claim as an administrative expense. It cites the last sentence of Paragraph 29 of the Confirmation Order and Section 4.1.2 of the Plan in support of its argument. Paragraph 29 of the Confirmation Order, titled "Errata to the Plan," contains several amendments to the Plan and the last sentence reads as follows: "Nothing in this section, however, shall cause permit or authorize WVDEP from seeking financial recovery from the Debtors, the Liquidating Trust, or the AppPremFuels Funds." The pertinent portion of Section 4.1.2 of the Plan states as follows: "... Any claim of the West Virginia Parties related to reclamation obligations of the Debtor have been fully satisfied by the assumption of liabilities by third parties and/or the transfer of any permit on which AppFuels was liable. Any remaining West Virginia Parties Reclamation Claims not treated previously shall be transferred to and become an AppFuels Class 9 Unsecured Claims."
A full and fair reading of all of the provisions of the Confirmation Order and the Plan leads to the Court to conclude that the Plan does not bar treatment of WVDEP's claim as an administrative expense. Paragraph 30 of the Confirmation Order expressly, and unequivocally, preserves WVDEP's right to pursue administrative expense treatment for reclamation expenses, especially when considered in the context of the record of the December 19, 2012 confirmation hearing, which is incorporated by reference into the Confirmation Order.
Moreover, the provisions cited by the Trustee in support of its argument do not actually operate to bar WVDEP from seeking administrative expense treatment for its claim. The last sentence of Paragraph 29 of the Confirmation Order must be read in the context of the immediately preceding sentences, which state as follows:
Section 4.1.2 of the Plan seems on its face to provide for unsecured treatment of WVDEP's claim. Again, though, that provision must be read in conjunction with the express reservation of rights by WVDEP in Paragraph 30 of the Confirmation Order, keeping in mind that, under Paragraph 12 of the Confirmation Order, the Confirmation Order "controls the Plan." Reading both together leads the Court to the very logical conclusion that WVDEP's claim would be treated as an unsecured claim only to the extent that it was not otherwise qualified for administrative expense treatment.
The Trustee cites to one of the preliminary recitals of the Reclamation Transition Agreement in support of its position that the Agreement served to waive WVDEP's right to pursue reimbursement for the reclamation associated with the KDC Permits. That recital states as follows: "This Agreement is intended to address all previously cited violations, current violations, and all existing site conditions of the Alloy Mining Complex, whether or not such violations are subject to an existing reclamation plan, which are the result of the Debtor's prior operations at the Alloy Mining Complex." The Trustee also points to the language of Section 5 of the Reclamation Transition Agreement, which states in pertinent part as follows: "This Agreement is intended to address all previously cited violations, current violations, and all existing site conditions of the Alloy Mining Complex, whether or not such violations are subject to an existing reclamation plan, which are the result of the Debtor's prior operations at the Alloy Mining Complex."
Based on a full and fair reading of all of the provisions of the Reclamation Transition Agreement, however, the Court must conclude that WVDEP did not waive its rights with respect to the KDC Permits. The other recitals to the Reclamation Transition Agreement make clear that the Agreement was being entered into in conjunction with Massey's purchase of the Alloy Mining Complex assets other than the KDC Permits, and, indeed, makes reference to a list of permits and violations of the same that does not include the KDC Permits. In Sections 1.(a) and 2.(a) of the Reclamation Transition Agreement, Massey agrees to perform the reclamation plans "described on Schedule 1" and "described on Schedule 2." Those schedules do not include the KDC Permits. In Section 6.(a), "WVDEP recognizes that Massey is not assuming any responsibility or liability under certain permits particularly set forth on Schedule 3 attached hereto." Schedule 3 lists the KDC Permits. Reading the language cited by the Trustee in context with the foregoing, the Court must conclude that Reclamation Transition Agreement was intended to apportion liability for reclamation associated with only those permits that were being transferred to Massey in its purchase of the Alloy Mining Complex.
The Trustee argues that WVDEP cannot pursue administrative expense treatment for certain expenses that it did not include in the original WVDEP Application. It points generally to the deadline in the Plan for filing administrative expense applications. In the case of expenses associated with the so-called "Aerial Tramway," the Trustee also cites the following statement in a footnote to the WVDEP Application wherein WVDEP appears to waive pursuing such expenses: "The Court should note that these estimated `environmental compliance costs' do not include the costs associated with the Aerial Tramway at Coal Mining/NPDES permit site No. O-38-84, the WVDEP is not seeking these costs from the Debtors."
As with the Trustee's other waiver assertions, a full and fair reading of all of the relevant provisions of the Plan and WVDEP Application leads the Court to an opposite conclusion. In Section V of the WVDEP Application, WVDEP states as follows: "This Application reflects the known liabilities of the Debtors to the WVDEP. The WVDEP reserves its rights to amend this Application to assert any subsequently discovered liabilities." In the schedule attached to the WVDEP Application that itemized WVDEP's estimated expenses, WVDEP noted that "[t]he `Aerial Tramway' portion of this permit site was not included in the original reclamation estimate done for this site by the Office of Special Reclamation" and that "[t]he steep slope and established trees and vegetatation of the tramway site are challenges to be considered when developing an estimated reclamation cost for this area." Also in that attachment, WVDEP included a line item for "$Unkown amount to reclaim the over-head tram area" and a note that "[t]his estimate does not include costs to reclaim the overhead tram." Reading the Trustee's cited language in context with the foregoing, the Court concludes that the original WVDEP Application did not by itself waive any of WVDEP's rights to pursue administrative expense treatment for expenses not included therein and that WVDEP preserved its right to amend the WVDEP Application as it gained a better understanding of all of its reclamation expenses with respect to the KDC Permits.
That begs the question, of course, as to whether the terms of the Plan itself permit WVDEP to amend the WVDEP Application after the deadline for filing administrative expense applications. The Plan and Confirmation Order both require that claims for administrative expenses be filed within thirty days after the effective date of the Plan or "be forever barred." On the other hand, neither the Plan nor the Confirmation Order specify what must be included in such claims. The Plan and Confirmation Order are also silent as to the process by which such claims will be liquidated. There is no express prohibition of amending otherwise timely filed claims. The Court, therefore, must supply the missing details, which could conceivably include amendment of administrative expense applications.
In this regard, the Court is aware of the well-established judicial doctrine of permitting amendment of claims after plan confirmation only under compelling circumstances. See e.g., IRT Partners, L.P. v. Winn-Dixie Stores, Inc. (In re Winn-Dixie Stores, Inc.), 639 F.3d 1053, 1056 (11th Cir.2011). The rationale for this doctrine is that allowing free amendment of claims after confirmation would upset the bargained-for expectations of the other creditors and perhaps result in the plan becoming unfeasible. In these cases, compelling circumstances do exist that warrant permitting
5. May the penalties component of the WVDEP Application be treated as a priority administrative expense? The Trustee asserts that amounts requested in the WVDEP Application for penalties assessed under W. Va.Code § 22-3-17 should not be given administrative expense priority because they are not compensatory and do not otherwise constitute a cost "ordinarily incident to operation of a business." For support, the Trustee cites Alabama Surface Mining Commission v. N.P. Mining Company, Inc. (In re N.P. Mining Company, Inc.), 963 F.2d 1449 (11th Cir.1992), wherein the Court held that only post-petition penalties assessed while the debtor was actually engaged in mining activities could be treated as administrative expenses.
Basing its decision on 28 U.S.C. § 959(b)'s requirement that "trustees `operate' an estate in compliance with state law,"
As an initial matter, this Court agrees with WVDEP that the penalties in question all relate to post-petition violations. The only remaining issue is whether this Court should follow the Eleventh Circuit's holding in N.P. Mining Company. On one hand, this Court agrees with the Eleventh Circuit's reasoning behind its conclusion that "punitive, civil penalties assessed for postpetition mining activities qualify as an administrative expense." On the other hand, this Court does not believe that it should follow N.P. Mining Company to conclude that only penalties arising from active mining operations merit administrative expense treatment.
The Court in N.P. Mining Company essentially based its ultimate holding on its view that penalties for violations occurring
Id. at 1458. While it may be that the facts and circumstances leading to the decision in N.P. Mining Company were very different than are present in these cases,
6. Is WVDEP's estimate of reclamation expenses sufficient for the the Court to grant such expenses administrative expense priority? Much of the testimony and evidence presented at trial concerned the efforts made and methodology used by WVDEP in determining how much it will cost to accomplish all of the reclamation work necessary for the KDC Permits. As noted above, the Court found such testimony and evidence thorough, credible and persuasive.
In addition to challenging the necessity of the work proposed by WVDEP and the methodology used to calculate expected costs of the same, however, the Trustee argues that WVDEP failed in its burden of proof because WVDEP never introduced the KDC Permit reclamation plans themselves into evidence. The Trustee essentially argues that there is no way for the Court to determine that the estimated expenses are reasonable and necessary because the Court cannot compare what is proposed by WVDEP with what must be done under the terms of the KDC Permits. For its part, WVDEP asks the Court to take judicial notice of the KDC Permits, which are public records.
If it were necessary at this time to order the payment of a sum certain to WVDEP, the Court would be required to undertake a detailed examination of the reclamation plans themselves, whether through judicial notice or by ordering the record to be supplemented. But, the Court need not order funds to be paid to WVDEP at this time. The Court need only establish an "outside" estimate of costs be established, so that the Trustee can set aside funds for the same to be paid at a later time. WVDEP has begun little, if any, of the necessary reclamation work. Prudence dictates that the Court order the Trustee to make payments to WVDEP only as
For the foregoing reasons, in accordance with Federal Rule of Bankruptcy Procedure 9021, the Court by separate Order to be entered this same date in conjunction with this Memorandum-Opinion will overrule the Trustee's objection to the WVDEP Application and sustain the WVDEP Application, under the conditions and to the extent set forth in that Order.
In retrospect, the Plan should not have been confirmed without more express provision being made for payment by Debtor's estate, or the Trust, of all of the costs of reclamation with respect to the KDC Permits. Midlantic and Wall Tube require this and this Court should have recognized at the time of confirmation that the Plan might be interpreted as shifting reclamation liability from the Debtor/Trust to the State of West Virginia. Under such an interpretation, the Plan would violate the provisions of 11 U.S.C. § 1129(a), notwithstanding this Court's finding otherwise in the Confirmation Order. But see Forklift LP Corp. v. iS3C Consultancy Serv. Ltd. (In re Forklift LP Corp.), 363 B.R. 388, 394 (Bankr.D.Del.2007) (when multiple interpretations of a plan are possible, courts should favor an interpretation that is consistent with the Bankruptcy Code over one that contravenes it). If the Court's decision set forth in this Memorandum-Opinion and accompanying Order are ultimately reversed, the Debtor will have accomplished in the Plan something not permitted under Midlantic and Wall Tube, meaning that the Plan should not have been confirmed. Unfortunately, the Plan was confirmed and now operates as res judicata. See, e.g., Browning v. Levy, 283 F.3d 761, 772 (6th Cir.2002). The best that this Court can do now is to provide detailed findings of fact and conclusions of law for review in the appeal that will undoubtedly follow and, more generally, to offer these jointly administered cases as a lesson to future bankruptcy courts.
