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this defense on behalf of Shillman or the partnership, who were not then parties to this case.2 The Remand is affirmed.

So ordered.

2 It would be inappropriate to respond to the footnote on page 11 of EPA's Motion for Reconsideration. In the event that this case proceeds to further litigation, this matter may arise again before the Administrator on appeal.

IN THE MATTER OF FISHER-CALO CHEMICALS AND

SOLVENTS CORP.

RCRA Appeal No. 85-5

ORDER DENYING PETITION FOR REVIEW

Decided January 7, 1987

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Lee M. Thomas, Administrator:

In a joint petition filed pursuant to 40 CFR § 124.19, FisherCalo Chemicals and Solvents Corp. and David Fisher1 (petitioners) seek review of a decision by EPA Region V denying a hazardous waste management permit for Fisher-Calo's storage facility located in Kingsbury, Indiana. An application for the permit had been submitted by the corporation under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §6901 et seq. After reviewing the petition for review, Region V's response in opposition thereto, FisherCalo's reply to the Region's response,2 and the materials submitted for the record, I hold that further review is unwarranted and deny the petition.3

1 David Fisher is Fisher-Calo's president. He joins in Fisher-Calo's petition in his individual capacity as the owner of the land on which Fisher-Calo's facility is located.

2 Although Fisher-Calo made arrangements with the Chief Judicial Officer to submit its reply by the latter part of January 1986, the reply together with a "Motion for Extension of Time to File Reply" was not submitted until mid-February 1986. Region V opposes the Motion for Extension. Nevertheless, I have decided to grant Fisher-Calo's Motion. The reply brief is accepted and has been fully considered.

3 Review of RCRA permit decisions is discretionary. Petitions for review of RCRA permit decisions are not usually granted unless the permit determination is clearly erroneous or involves an exercise of discretion or policy that is important and therefore should be reviewed as a discretionary matter. 40 CFR § 124.19(a) (1) and (2) (1985). The burden of demonstrating that the permit decision should be reviewed is on the party petitioning for review. Petitioners have simply not met that burden in this instance.

In Fisher-Calo's opinion I lack the authority to make this determination because this proceeding supposedly has been stayed by operation of the federal bankruptcy laws. In that regard, in an undated document styled "Notice," which was received on January 23, 1986, Fisher-Calo's bankruptcy attorney advised EPA's Chief Judicial Officer that Fisher-Calo had filed a petition for relief under the United States Bankruptcy Code on February 1, 1985.4 The Notice stated:

Please keep in mind the automatic stay provisions

of Section 362 of the United States Bankruptcy Code,
Title 11 of the United States Code.

*** As a result of the automatic stay provisions,
which as of this date remain fully in effect as to
all matters (including environmental protection mat-
ters) the special environmental counsel, Mr. Gordon
A. Etzler, has been advised to cease proceeding until
such time as the automatic stay is modified.

In other words, Fisher-Calo believes that filing its Chapter 11 bankruptcy petition had the effect of automatically staying further proceedings on its RCRA permit, even including the instant proceedings which are for the purpose of determining whether I should review Region V's decision denying Fisher-Calo's permit application.5 The automatic stay provisions are part of the Bankruptcy Code and are found at 11 U.S.C. § 362(a),6

4 The petition was filed under Chapter 11 of the Bankruptcy Code which provides for reorganization rather than liquidation of a debtor company.

5 Fisher-Calo currently is operating its facility under interim status. With this final Agency order denying its permit application, Fisher-Calo's interim status is automatically terminated. RCRA §3005(e). Upon termination of interim status FisherCalo must execute its closure responsibilities pursuant to 40 CFR §265.112 (1985), which almost certainly will necessitate an expenditure of funds by Fisher-Calo.

611 U.S.C. § 362(a) states, among other things:

* *

(a) Except as provided in subsection (b) of this section, a petition
filed under section 301, 302, or 303 of this title *
as a stay, applicable to all entities, of—

operates

(1) the commencement or continuation, including the issuance or
employment of process, of a judicial, administrative, or other pro-
ceeding against the debtor that was or could have been com-
menced before the commencement of the case under this title,
or to recover a claim against the debtor that arose before the
commencement of the case under this title;

(3) any act to obtain possession of property of the estate or of
property from the estate;

(4) any act to create, perfect, or enforce any lien against property
of the estate;

Region V responded to the "Notice" by writing a letter to FisherCalo's bankruptcy attorney, with copies to the Bankruptcy Judge and Chief Judicial Officer, pointing out that "11 U.S.C. §362(b)(4) provides that the filing of a petition for relief under the Bankruptcy Code does not operate as a stay 'of the commencement or continuation of an action or proceeding by a government unit to enforce such government unit's police or regulatory power.'" The Region went on to characterize RCRA permit proceedings as falling within § 362(b)(4)'s exemption. I agree for the reasons set forth below.7

The issue which I must address is whether this proceeding should be automatically stayed pursuant to § 362(a), or exempted from automatic stay pursuant to §362(b)(4). This is not the first time the Agency has found it necessary to determine whether administrative proceedings under RCRA are exempt from §362(a)'s automatic stay provision. In Wheeling Pittsburgh Steel Corporation, RCRA (3008) Appeal No. 84-8 (September 18, 1985), the Agency's Chief Judicial Officer affirmed an initial decision in which an Administrative Law Judge issued a compliance order and assessed a civil penalty of $17,500 against the corporation as a result of a violation of RCRA and its implementing regulations. After the initial decision was issued, the corporation informed the Agency that it had filed for bankruptcy, contending that a petition in bankruptcy "operates as a stay of the continuation of all actions or proceedings against [it]" including

(5) any act to create, perfect, or enforce against property of the
debtor any lien to the extent that such lien secures a claim that
arose before the commencement of the case under this title.

(Subparagraphs (6), (7), and (8) have been omitted since they have no arguable relevance to these proceedings. Fisher-Calo argues its position regarding automatic stay based only on subparagraphs (1), (3), (4) and (5). Subparagraph 2, which is similar to (3)-(5), is omitted because Fisher-Calo did not refer to it).

Despite Fisher-Calo's argument to the contrary I agree with Region V-the only subsection of § 362 that has any relevance to these proceedings is § 362(a)(1).

I note with interest that the bankruptcy petition was filed before the Region issued its final permit decision (denial). It is curious that Fisher-Calo waited to invoke automatic stay until now when it clearly had the opportunity to do so when this matter was being considered at the Regional level.

7 Accordingly, as fully explained later in this order, this simply means that my determination not to review the Region's denial of Fisher-Calo's permit application is not automatically stayed. Of course, it is still possible for a bankruptcy court to issue a stay on a discretionary basis, upon motion of the trustee. U.S. v. Professional Sales Corp., No. 85 C 5791, slip. op (N.D. Ill, E.D. December 16, 1985); Garrity v. Goldstein (In re National Hospital & Institutional Builders Co.), 658 F.2d 39, 43 (2d Cir. 1981), cert. denied, 454 U.S. 1149 (1982); SEC v. First Financial Group of Texas, 645 F.2d 429, 440 (5th Cir. 1981); In re Skippers Interstate Service, Inc., 618 F.2d 9, 13 (7th Cir. 1980); In re Bel Air Chateau Hospital, Inc., 611 F.2d 1248, 1251 (9th Cir. 1979).

the RCRA civil penalty proceeding. The Chief Judicial Officer held that the civil penalty proceeding, which was then on appeal before him, was exempted under § 362(b)(4) from automatic stay. Accordingly, he issued a final Agency decision affirming the presiding officer's compliance order and civil penalty assessment.8

However, the matter did not end with the final Agency decision. In October 1985, the United States Bankruptcy Court for the Western District of Pennsylvania dismissed Wheeling Pittsburgh's complaint that charged EPA with contempt for failing to comply with § 362(a)'s automatic stay provision. Wheeling Pittsburgh Steel Corp. v. U.S. EPA, Bankruptcy Case No. 85-793 PGH, Adversary Case No. 850236 (October 31, 1985).9 The Bankruptcy Court rejected Wheeling Pittsburgh's claim that § 362(a)'s automatic stay was applicable to the penalty proceeding. The Court indicated that enforcement of EPA's compliance order against Wheeling Pittsburgh could proceed. 10 The Court also permitted the entry (but restricted the enforcement) of a money judgment for civil penalties against Wheeling Pittsburgh.11

In summary, the Bankruptcy Court held that § 362(a)'s automatic stay provision was inapplicable to the Agency's civil penalty proceeding against Wheeling Pittsburgh. Indeed, the Court specifically permitted enforcement of EPA's compliance order (which required closing of Wheeling Pittsburgh's hazardous waste facility) despite the fact that compliance would likely diminish the debtor's resources.

There is no reason, as far as I can tell, why the principles underlying the Chief Judicial Officer's and the U.S. Bankruptcy Court's decisions in Wheeling Pittsburgh should not apply with equal vigor here. The fact that Wheeling Pittsburgh involved a RCRA penalty proceeding while Fisher-Calo involves a RCRA permit proceeding is of no significance. The question to be resolved in each case is

8 The Chief Judicial Officer also stated: “I make no finding today regarding the enforceability of this decision. That ultimately is a matter for the courts to decide." Wheeling Pittsburgh at 2.

9 In December 1986, the U.S Court of Appeals for the Fourth Circuit dismissed (without written opinion) Wheeling Pittsburgh's appeal of the Agency's final order upon an uncontested motion of the government that the proper forum was the District Court for the District of Columbia. A separate appeal of the Agency's final order is pending before the District Court for the District of Columbia.

10 The compliance order required Wheeling Pittsburgh to close its hazardous waste storage facility in accordance with a plan approved by the Agency.

11 The Court held that the enforcement of any such monetary judgment against Wheeling Pittsburgh "shall not be permitted during the pendency of the bankruptcy proceeding without an order from this court authorizing the same."

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