SAFETY-KLEEN, INC., (PINEWOOD) v. WYCHE

Nos. 00-2170, 00-2179 to 00-2182, 00-2213 and 00-2214.

274 F.3d 846 (2001)

SAFETY-KLEEN, INCORPORATED (PINEWOOD), Plaintiff-Appellant, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. Bradford W. WYCHE, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants-Appellees, Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources; South Carolina Public Service Authority, Intervenors/Defendants-Appellees, and State of South Carolina, Defendant. United States of America, Amicus Curiae. Safety-Kleen, Incorporated (Pinewood), Plaintiff-Appellee, Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs-Appellees, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants-Appellants, and State of South Carolina, Defendant, and Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources; South Carolina Public Service Authority, Intervenors/Defendants, United States of America, Amicus Curiae. Safety-Kleen, Incorporated (Pinewood), Plaintiff-Appellee, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. State Of South Carolina; Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants, and Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources, Intervenors/Defendants, and South Carolina Public Service Authority, Intervenor/Defendant-Appellant, United States of America, Amicus Curiae. Safety-Kleen, Incorporated (Pinewood), Plaintiff-Appellee, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. State of South Carolina; Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants, South Carolina Department of Natural Resources; South Carolina Public Service Authority, Intervenors/Defendants, and Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE), Intervenors/Defendants-Appellants. United States of America, Amicus Curiae. Safety-Kleen, Incorporated (Pinewood), Plaintiff-Appellee, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. State of South Carolina; Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants, and Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Public Service Authority, Intervenors/Defendants, and South Carolina Department of Natural Resources, Intervenor/Defendant-Appellant. United States of America, Amicus Curiae. Safety-Kleen, Incorporated (Pinewood), Plaintiff, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs-Appellants, Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants-Appellees, Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources; South Carolina Public Service Authority, Intervenors/Defendants-Appellees, and State of South Carolina, Defendant. United States of America, Amicus Curiae. Safety-Kleen, Incorporated (Pinewood), Plaintiff, Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae-Appellant, v. Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants-Appellees, Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources; South Carolina Public Service Authority, Intervenors/Defendants-Appellees, and State of South Carolina, Defendant. United States of America, Amicus Curiae.

United States Court of Appeals, Fourth Circuit.

Decided December 19, 2001.


Attorney(s) appearing for the Case

ARGUED: Stuart Henry Newberger, CROWELL & MORING, L.L.P., Washington, DC; Richard Chase Tufaro, Milbank, Tweed, Hadley & McCloy, L.L.P., Washington, DC, for Appellants. Benjamin A. Hagood, Jr., Craver, Hagood & Kerr, Charleston, SC; James Stuart Chandler, Jr., Georgetown, SC, for Appellees. ON BRIEF: Clifton S. Elgarten, Ellen B. Steen, Aryeh S. Portnoy, Adam Gajadharsingh, Crowell & Moring, L.L.P., Washington, DC; Henry H. Taylor, Vice President and General Counsel, Safety-Kleen Corporation, Columbia, SC; David Kurtz, Skadden, Arps, Slate, Meagher & Flom, L.L.P., Chicago, IL; Harvey R. Miller, David R. Berz, John J. Rapisardi, Weil, Gotshal & Manges, L.L.P., New York, NY; Thomas S. Tisdale, Stephen L. Brown, Young, Clement, Rivers & Tisdale, L.L.P., Charleston, SC; Luc A. Despins, Milbank, Tweed, Hadley & McCloy, L.L.P., Washington, DC, for Appellants. Robert A. Kerr, Jr., Wendy L. Wilkie, Craver, Hagood & Kerr, Charleston, SC; Carlisle Roberts, Jr., Jacquelyn S. Dickman, E. Katherine Wells, Office of General Counsel, South Carolina Department of Health and Environmental Control, Columbia, SC, for Appellees. Lois J. Schiffer, Assistant Attorney General, John A. Bryson, Alan S. Tenenbaum, Randall M. Stone, United States Department of Justice, Washington, DC; Nina Rivera, Christine McCullouch, Environmental Protection Agency, Washington, DC, for Amicus Curiae United States.

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.


Affirmed in part, reversed in part, and dismissed in part by published opinion. Judge MICHAEL wrote the opinion, in which Judge WIDENER joined and in which Judge LUTTIG joined except for part III.A. Judge WIDENER wrote a concurring opinion, and Judge LUTTIG wrote a concurring opinion.

OPINION

MICHAEL, Circuit Judge.

Safety-Kleen, Inc., a Chapter 11 debtor, filed this adversary proceeding against the...

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