In re apco liquidating trust

In the bankruptcy court, EPI filed two motions to disallow claims filed by the Rasmussen claimants and the Springfield Township claimants.

The claim filed by the Rasmussen claimants consists of ,030.25 for EPI's share of site administration activities undertaken to date at the Rasmussen Dump Site pursuant to an agreement between the Rasmussen claimants and the EPA known as the "Participation Agreement";

In the bankruptcy court, EPI filed two motions to disallow claims filed by the Rasmussen claimants and the Springfield Township claimants.The claim filed by the Rasmussen claimants consists of $7,030.25 for EPI's share of site administration activities undertaken to date at the Rasmussen Dump Site pursuant to an agreement between the Rasmussen claimants and the EPA known as the "Participation Agreement"; $1,020,000 in EPA response costs through April 30, 1991, which the EPA is seeking from claimants but which have not been paid; and $18,350,000 in future costs.The court rejected claimants' argument that even if the EPA Special Notice letters rendered both the claimants and EPI liable, the consent orders pursuant to which the claimants assumed responsibility for remediating the sites absolved EPI of any liability to the EPA.The bankruptcy court found that pursuant to the consent orders, the EPA had expressly reserved the right to pursue EPI for future cleanup costs: Therefore, EPI and the claimants were co-liable to the EPA for such costs.

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In the bankruptcy court, EPI filed two motions to disallow claims filed by the Rasmussen claimants and the Springfield Township claimants.

The claim filed by the Rasmussen claimants consists of $7,030.25 for EPI's share of site administration activities undertaken to date at the Rasmussen Dump Site pursuant to an agreement between the Rasmussen claimants and the EPA known as the "Participation Agreement"; $1,020,000 in EPA response costs through April 30, 1991, which the EPA is seeking from claimants but which have not been paid; and $18,350,000 in future costs.

The court rejected claimants' argument that even if the EPA Special Notice letters rendered both the claimants and EPI liable, the consent orders pursuant to which the claimants assumed responsibility for remediating the sites absolved EPI of any liability to the EPA.

The bankruptcy court found that pursuant to the consent orders, the EPA had expressly reserved the right to pursue EPI for future cleanup costs: Therefore, EPI and the claimants were co-liable to the EPA for such costs.

The parties agreed that the claims should be disallowed if (1) the claims are for reimbursement or contribution, (2) the claims are asserted by an entity co-liable with the debtor on a primary creditor's claim, and (3) the claim is contingent as of the time of the disallowance.

,020,000 in EPA response costs through April 30, 1991, which the EPA is seeking from claimants but which have not been paid; and ,350,000 in future costs.

The court rejected claimants' argument that even if the EPA Special Notice letters rendered both the claimants and EPI liable, the consent orders pursuant to which the claimants assumed responsibility for remediating the sites absolved EPI of any liability to the EPA.

The bankruptcy court found that pursuant to the consent orders, the EPA had expressly reserved the right to pursue EPI for future cleanup costs: Therefore, EPI and the claimants were co-liable to the EPA for such costs.

The parties agreed that the claims should be disallowed if (1) the claims are for reimbursement or contribution, (2) the claims are asserted by an entity co-liable with the debtor on a primary creditor's claim, and (3) the claim is contingent as of the time of the disallowance.

The court also rejected the claimants' request for an estimation hearing on the ground that an estimation of contingent liability for purposes of claims allowance pursuant to § 502(c) is a method of treating direct contingent claims, i.e., the claims of the debtor's creditors, rather than claims of co-liable parties.

In response, the Rasmussen claimants entered into a consent decree and the Springfield Township claimants entered into an Administrative Order with the EPA under which they became obligated to clean up the sites.

EPI was not a party to either the decree or the order. The claimants filed essentially identical proofs of claim against EPI based on the following facts: (1) the claimants were jointly and severally liable under CERCLA § 107(a)(3) for the cost of cleaning up hazardous waste allegedly disposed of at the sites; (2) the claimants have entered into an agreement with the government to perform the cleanup; and (3) the claimants seek contribution payments from EPI for past and future response costs.

EPI has reserved its right to object to claims relating to past response costs at a future date.

The bankruptcy court set forth the following facts which gave rise to the filing of the claims and EPI's motion to disallow same: Prior to EPI's filing of its Chapter 11 petition, the EPA sent letters to EPI and the claimants notifying each that it was a potentially responsible party (PRP) for the cleanup of the sites in question. § 9604(a), the EPA and MDNR had initiated Remedial Investigation/Feasibility Studies to determine what further action should be taken with regard to the sites.

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The parties have submitted their briefs and the appeals are now ripe for disposition.

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