In re Allegheny Intern., Inc.

• Decision Date: 06 May 1991
• Docket Number: Bankruptcy No. 88-448.,Civ. A. No. 90-1081
• Citation: 126 BR 919
• Parties: In re ALLEGHENY INTERNATIONAL, INC., et al., Debtors. AL TECH SPECIALTY STEEL CORPORATION, Appellant, v. ALLEGHENY INTERNATIONAL, INC., Appellee.
• Court: U.S. District Court — Eastern District of Pennsylvania

126 B.R. 919 (1991)

In re ALLEGHENY INTERNATIONAL, INC., et al., Debtors.

AL TECH SPECIALTY STEEL CORPORATION, Appellant, v. ALLEGHENY INTERNATIONAL, INC., Appellee.

Civ. A. No. 90-1081, Bankruptcy No. 88-448.

United States District Court, W.D. Pennsylvania.

May 6, 1991.

George L. Cass, Pittsburgh, Pa., William Gardner, Washington, D.C., J.A. Katarincic, Pittsburgh, Pa., for Allegheny Intern., Inc.

Robert Sable, Pittsburgh, Pa., for Committee of unsecured creditors of A.I.

David K. Floyd, Buffalo, N.Y., H. Brian Peck, Pittsburgh, Pa., for Al Tech Specialty Steel Corp.

MEMORANDUM OPINION

BLOCH, District Judge.

Presently before the Court is an appeal of the bankruptcy court's Order and Memorandum Opinion entered on April 30, 1990. In re Allegheny International, Inc., No. 88-448 (Bankr.W.D.Pa. 4/30/90). For the reasons stated hereafter, this Court affirms the bankruptcy court's opinion in part, reverses in part, and remands for further proceedings.

I. Facts

On August 2, 1976, Allegheny Ludlum Industries, Inc., the predecessor of Allegheny International, Inc. (the debtor), sold its Dunkirk and Watervliet steel plants to AL Tech Specialty Steel Corporation (Old AL Tech). The purchase agreement obligated Allegheny Ludlum to indemnify Old AL Tech against all liabilities and obligations stemming from Allegheny Ludlum's ownership of the plants. The purchase agreement also contained a non-assignability clause. On April 29, 1981, Old AL Tech sold the plants to GATX Corporation pursuant to a merger agreement between Old AL Tech, GATX, and New AL Tech Corporation. Pursuant to this agreement, Old AL Tech and New AL Tech were merged, with the surviving corporation being New AL Tech. The name of New AL Tech was subsequently changed to AL Tech Specialty Steel Corporation (AL Tech). On June 30, 1986, GATX sold AL Tech to Rio Algom, Inc.

On May 26, 1988, AL Tech filed a proof of claim against the estate of the debtor alleging that the debtor was liable for response costs incurred, and to be incurred, for the investigation and remediation of hazardous wastes located at AL Tech's Dunkirk and Watervliet plants. AL Tech contends that these waste sites arose in whole or in part during the debtor's ownership of these properties. AL Tech asserts that the debtor is liable for response costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act, the New York Oil Spill Prevention, Control and Compensation Act (Oil Spill Act), and the indemnity provision in the 1976 sale agreement. On January 12, 1990, the debtor moved for summary judgment and for disallowance of AL Tech's claim. On January 22, 1990, AL Tech filed a cross-motion contending that a portion of its claim is not dischargeable because it did not arise prior to the bankruptcy. On April 30, 1990, the bankruptcy court issued its opinion granting debtor's motion for summary judgment and denying AL Tech's cross-motion. The court determined that: (1) the non-assignment clause of the 1976 agreement of sale bars AL Tech from relying on the indemnity provision; (2) AL Tech's claims are excluded by 11 U.S.C. § 502(e)(1)(B); and (3) AL Tech's claims arose pre-petition and thus are dischargeable in the bankruptcy.

II. Discussion

As an initial matter, de novo review is appropriate because the bankruptcy court's decision involved a grant of summary judgment. This Court must utilize the same standard employed by the bankruptcy court. Under this standard, summary judgment can be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bankr.R. 7056; Fed.R. Civ.P. 56(c).

AL Tech first argues that the right to indemnification contained in the 1976 agreement of sale was not eliminated by the agreement's non-assignment clause and subsequent mergers and sales involving AL Tech. Upon review of the bankruptcy court's resolution of this dispute, and after consideration of the arguments raised by the parties, this Court affirms the bankruptcy court regarding AL Tech's right to contractual indemnification for the reasons set forth in the bankruptcy court's opinion. In re Allegheny International, slip op. at 7-10.

AL Tech next argues that the bankruptcy court erred in determining that AL Tech's claims pursuant to CERCLA and the Oil Spill Act are excluded by 11 U.S.C. § 502(e)(1)(B). Section 502(e)(1)(B) provides that:

The court shall disallow any claim for reimbursement or contribution of an entity that is liable with the debtor on or has secured the claim of a creditor, to the extent that . . . such claim for reimbursement or contribution is contingent as of the time of allowance or disallowance of such claim for reimbursement or contribution.

This provision has generally been construed as requiring three elements: (1) the claim must be one for reimbursement or contribution; (2) the entity asserting the claim must be liable with the debtor on the claim of a creditor; and (3) the claim must be contingent at the time of its allowance or disallowance. In re Provincetown-Boston Airlines, Inc., 72 B.R. 307, 309 (Bankr. M.D.Fla.1987); In re A & H, Inc., 122 B.R. 84, 85 (Bankr.W.D.Wis.1990).

In the present case, the dispute centers upon the second Provincetown-Boston factor: whether AL Tech is liable with the debtor on the claim of a creditor. AL Tech contends that the claim it asserts is a direct claim, and does not involve a mutual creditor. The debtor, on the other hand, argues that AL Tech's claim involves the Environmental Protection Agency (EPA) and the New York Department of Environmental Conservation (DEC) as creditors to whom AL Tech is liable with the debtor.

In construing § 502(e)(1)(B), this Court must begin with the language of the statute itself. If the language is plain, the Court need not inquire further. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030-31, 103 L.Ed.2d 290 (1989). Section 502(e)(1)(B) expressly applies to claims "for reimbursement or contribution of an entity that is liable with the debtor on . . . the claim of a creditor." 11 U.S.C. § 502(e)(1). The natural reading of this language demonstrates that Congress intended to exclude claims where the claimant and the debtor are jointly liable to a third party. The legislative history of § 502(e) supports such a reading. As stated in the House and Senate Reports, § 502(e)

requires disallowance of the claim for reimbursement or contribution of a co-debtor, surety or guarantor of an obligation of a debtor, unless the claim of the creditor on such obligation has been paid in full. The provision prevents competition between a creditor and his guarantor for the limited proceeds in the estate.

S.Rep. No. 95-989, 95th Cong., 2nd Sess. 65 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5851; H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 354 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6310.

Neither the language of § 502(e)(1) nor its legislative history evince congressional intent to exclude direct contingent claims. Instead, under a plain reading of the language of § 502(e)(1), only claims involving joint or secondary liability owed to a third-party creditor are excluded. Moreover, 11 U.S.C. § 502(c) provides an express method for treating direct contingent claims.¹ Thus, this Court finds that § 502(e)(1)(B) does not exclude direct contingent claims. See, e.g., 3 Collier on Bankruptcy ¶ 502.05, at XXX-XX-XX (15th ed. 1990) (§ 502(e)(1)(B) applies to claims of sureties and entities secondarily liable whereas § 502(c) applies to claims of the debtor's creditors).

In order to determine the applicability of § 502(e)(1)(B) in this case, the Court must analyze the claim asserted by AL Tech. AL Tech's proof of claim asserts theories of liability pursuant to, inter alia, CERCLA and the Oil Spill Act. The bankruptcy court limited its § 502(e)(1)(B) discussion to AL Tech's CERCLA claim.² The parties have not briefed the applicability of § 502(e)(1)(B) to the Oil Spill Act claim. This Court will thus limit its discussion to the CERCLA claim, reserving the effect of § 502(e)(1)(B) on AL Tech's Oil Spill Act claim for further consideration by the bankruptcy court. Regarding the CERCLA claim, the proof of claim does not specify the CERCLA provision on which AL Tech relies. However, AL Tech has clarified in its briefs to this Court that it relies on 42 U.S.C. § 9607(a)(4)(B). (Brief of appellant at 27; reply brief of appellant at 10).

Section 9607(a) provides, in pertinent part:

The owner and operator of a vessel or a facility, and any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of . . . shall be liable for

(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; and

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan.

Section 9607(a) thus authorizes two types of actions: (1) a joint-tortfeasor type contribution action for response costs incurred by a government entity, and (2) a direct action for recovery of response costs incurred by a non-government entity.³

AL Tech concedes, as it must, that § 9607(a)(4)(A) actions for recovery of response costs incurred by a government entity fall within the scope of § 502(e)(1)(B). AL Tech argues, however, that its claim is for direct costs recoverable pursuant to § 9607(a)(4)(B). AL Tech contends that direct costs do not involve liability with the debtor owed to a third-party creditor, and thus fall outside the ambit of § 502(e)(1)(B).

Two courts have considered the question of whether § 9607(a)(4)(B) response costs are covered by § 502(e)(1)(B). In In re Charter, 862 F.2d 1500,...