Free Designated Record on Appeal - District Court of Delaware - Delaware

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IN THE UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE

In re: W.R. Grace & Co., et al. Debtor(s) W.R. Grace & Co., et al. Plaintiff(s) v.

Bankruptcy No. 01-1139-JKF Chapter 11 Jointly Administered

Adversary No. 05-52724 Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection, in his official capacity; Peter C. Harvey, Attorney General of New Jersey, in his official capacity Defendants

DESIGNATION OF ITEMS TO BE INCLUDED IN THE RECORD ON APPEAL Pursuant to Rule 8006, Fed. R. Bankr. P., the State of New Jersey, Department of Environmental Protection ("Department" or "State") respectfully submits its Designation of the Items to be included in the Record on Appeal. Designation of Items to Be Included in the Record on Appeal: DATE 04/01/2008 04/08/2008 9/19/2005 DOCKET NO. 30 31 1 DESCRIPTION Memorandum Opinion and Order Notice of Appeal W.R. Grace Complaint for Declaratory and Injunctive Relief by W.R. GRACE

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& CO., et al. Against Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection 9/19/2005 3 Motion for Preliminary Injunction Debtor's Motion for an Injunction Under Sections 105 and 362 of the Bankruptcy Code Motion to Dismiss Adversary Proceeding Filed by Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection Brief Filed by Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection Objection to Defendants' Motion to Dismiss Filed by W.R. Grace & Co. Certification of Counsel Regarding Debtors' Motion for an Injunction Under Sections 105 and 362 of the Bankruptcy Code Filed by W.R. GRACE & CO. Order (Modified) Regarding Debtors' Motion for Injunction Under Sections 105 and 362 of the Bankruptcy Code Order (Second) Regarding Debtor's Motion for an Injunction Order (Third) Regarding Debtor's Motion for an Injunction Order (Fourth) Regarding Debtor's Motion for an Injunction Certification of Counsel Regarding Order Regarding Debtors' Motion for an Injunction Under Sections 105 and 362 of the Bankruptcy Code Order (Fifth) Regarding Debtor's Motion for an Injunction. Order

10/07/2005

6

10/07/2005

7

10/28/2005 11/18/2005

8 9

01/17/2006

10

01/31/2006 02/23/2006 03/29/2006 05/18/2006

11 12 13 14

06/05/2006

15

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Signed on 6/5/2006.(LCN,)(Entered: (06/05/2006) 06/20/2006 06/26/2006 16 17 Order (Sixth) Regarding Debtor's Motion for an Injunction. Certification of Counsel Regarding Corrected Order Regarding Debtors' Motion for an Injunction Under Sections 105 and 362 of the Bankruptcy Code Order (Corrected Sixth) Regarding Debtor's Motion for an Injunction Order (Eighth) Regarding Debtor's Motion for an Injunction Order (Ninth) Regarding Debtor's Motion for an Injunction Order (Tenth) Regarding Debtor's Motion for an Injunction Order (Eleventh) Regarding Debtor's Motion for an Injunction Order Continuing Hearing on Debtors' Motion for Injunction to the April 2, 2007 Order Requiring Status Report and Setting Status Conference Status Report of Debtor W.R. Grace & Co. et al. Filed by W.R. GRACE & CO., et al. Status Report Letter re Status Report Filed by Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection

06/29/2006 09/26/2006 11/21/2006 12/20/2006 01/24/2007 02/23/2007

18 20 21 22 24 25

10/05/2007 10/16/2007

26 28

10/22/2007

29

Docket No. 01-01139 1/18/2006 11563 Transcript of 11/14/05 Hearing

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4/09/2007

15117

Transcript of 4/02/2007 Hearing

Respectfully submitted, ANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY By: /S/ Rachel Jeanne Lehr Rachel Jeanne Lehr Deputy Attorney General

Dated: April 18, 2008

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IN THE UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE

In re: W.R. Grace & Co., et al. Debtor(s) W.R. Grace & Co., et al. Plaintiff(s) v.

Bankruptcy No. 01-1139-JKF Chapter 11 Jointly Administered

Adversary No. 05-52724 Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection, in his official capacity; Peter C. Harvey, Attorney General of New Jersey, in his official capacity Defendants STATEMENT OF ISSUES PRESENTED ON APPEAL Pursuant to Rule 8006, Fed. R. Bankr. P., Bradley M. Campbell, et al, respectfully submits this Statement of Issues Presented on Appeal. Statement of Issues to Be Presented: A. Whether the Bankruptcy Court erred in finding that

the State's action was not subject to the State's exemption from the automatic stay, 11 U.S.C. 362 (b)(4), for actions pursuant to the police power or the State. B. Whether the Bankruptcy Court erred in finding that

because the EPA later remediated the site, there was no danger to

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the public health and the environment from the debtor's signing false certifications as to the asbestos-ridden condition of the site; the State's motion to file a late proof of claim considering the totality of the circumstances, which included the fact that the debtor, W.R. Grace, had sworn to false information about the contamination at the site that the State had no way of knowing about before the bar date. F. Whether the Bankruptcy Court erred in ignoring such

decisions as State of New Jersey, Department of Environmental Protection and Energy v. Madison Industries, Inc., 161 B.R. 363 (D.N.J. 1993) in which Chief Judge Garrett Brown of the District of New Jersey wrote that rather than the penalty aspect of the an enforcement action constituting an action to collect a "money judgment" and thus not exempt from the automatic stay, found that the "DEP's statutory penalties merely gave 'teeth' to New Jersey's environmental laws."

Respectfully submitted, ANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY By: /S/ Rachel Jeanne Lehr Deputy Attorney General

Dated: April 18, 2008