concurring.
I agree with the majority opinion that Bankruptcy Rule 9006(b)(1) and the holding in Pioneer Investment Services make it possible for the Environmental Protection Agency or the New Jersey Department of Environmental Protection and Energy to bring claims against Eagle-Picher even though the bar date for doing so has passed. Therefore, I agree that it would be premature to disallow Norpak’s claims at this point, and that Norpak’s claims can be viewed as a form of compensation or reimbursement. I write separately, however, to express my concern about an unaddressed issue — namely, the fact that this opinion and Pioneer Investment Services could potentially be read to allow corporations or individuals that cause environmental harms to hide behind the shield of a bankruptcy claim to escape responsibility for their lack of sound environmental stewardship. I wish to emphasize my belief that this case and Pioneer Investment Services do not allow such evasion.
The majority opinion requires the disallowance of contingent claims against debtors when the debtor and claimant are potentially co-liable to a third party. Debtors could, however, argue that if that third party does actually bring a claim against the debtor, the majority opinion still allows the debtor to raise its bankruptcy as a defense. This is, in fact, what Eagle-Picher concedes it plans to do if the Environmental Protection Agency or the New Jersey Department of Environmental Protection and Energy bring a claim against it. In doing so, Eagle-Picher is clearly relying on the hope that Norpak’s claims will be disallowed, its bankruptcy defense will be accepted, and it will be able to walk away from the mess it made without bearing any responsibility for it. This cannot be allowed.
To read this case as allowing such a scenario contravenes Congress’s clear intention in passing CERCLA. By passing CERCLA, Congress intended to respond efficiently and expeditiously to toxic spills, and to hold those parties responsible for the release of environmental toxins liable for the costs of the clean-up. See, e.g., B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2nd Cir.1992). Interpreting Pioneer Investment Services or the majority’s opinion as allowing polluters to circumvent CERCLA’s goals would be tantamount to turning a blind eye to clear Congressional mandate. Such flagrant disregard for legislative intent should not be tolerated.
I do not believe that Pioneer Investment Services allows the loophole that Eagle-Picher’s argument envisions, and I write separately to emphasize that this case should not be seen as creating one.