Lyondell Chemical Company and Millennium Custodial Trust

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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
_______________________________________
)
In re: 	) 	Chapter 11
)
LYONDELL CHEMICAL COMPANY, et al., 	)
) 	Case No. 09-10023 (REG)
)
Debtors. 	) 	Jointly Administered
_______________________________________)
BENCH DECISION 1 ON MOTION TO ENFORCE
AND CLARIFY THE COURT’S MARCH 13, 2009
ORDER AUTHORIZING THE (I) LONG-TERM
IDLING OF THE CHOCOLATE BAYOU
OLEFINS FACILITY; (II) REDUCTION OF THE
WORKFORCE AT THE FACILITY; AND (III)
REJECTION OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES RELATING TO THE
FACILITY
APPEARANCES:
CADWALADER, WICKERSHAM & TAFT LLP
Attorneys for Debtors
One World Financial Center
New York, NY 10281
By: 	Deryck A. Palmer, Esq.
John J. Rapisardi, Esq.
George A. Davis, Esq.
Christopher R. Mirick, Esq.
700 Sixth Street, N.W.
Washington, DC 20001
By: 	David F. Williams, Esq. (argued)
1 	I use bench decisions to lay out in writing decisions that are too long, or too important, to dictate
in open court, but where the circumstances do not permit more leisurely drafting or more extensive
or polished discussion. Because they often start as scripts for decisions to be dictated in open
court, they typically have less in the way of citations and footnotes, and have a more
conversational tone.
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KIRKLAND & ELLIS LLP
Counsel for Solutia Inc.
601 Lexington Avenue
New York, NY 10022
By: 	Richard M. Cieri, Esq.
M. Natasha Labovitz, Esq. (argued)
Ashleigh L. Blaylock, Esq.
MORGAN, LEWIS & BOCKIUS LLP
Counsel for Ascend Performance Materials, LLC
101 Park Avenue
New York, NY 10128
By: 	Neil E. Herman, Esq. (argued)
TEXAS ATTORNEY GENERAL’S OFFICE
Attorneys for the Texas Commission on Environmental Quality
P.O. Box 12548 	MC-008
Austin, TX 78711
By: 	Hal F. Morris, Esq. (argued)
Ashley F. Bartram, Esq.
LEV L. DASSIN
Acting United States Attorney for the Southern District of New York
86 Chambers Street
New York, NY 10007
By: 	Pierre G. Armand, Esq. (argued)
Brandon Cowart, Esq.
BEFORE: 	ROBERT E. GERBER
UNITED STATES BANKRUPTCY JUDGE
In this contested matter under the umbrella of the jointly administered chapter 11
cases of Lyondell Chemical Co. (“Lyondell Chemical”) and its affiliates, Solutia Inc.
(“Solutia”) and Ascend Performance Materials, LLC (“Ascend”) move for an order
“enforcing and clarifying” my order dated March 13 of this year (the “March 13
Order”), which had authorized rejection of a ground lease, described more fully below.
Enforcement of the March 13 order is neither necessary or appropriate. But the movants’
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request for clarification of the March 13 Order is granted. As described more fully
below:
(1) The Debtors did not give notice of abandonment when they sought the
March 13 Order, and the March 13 Order did not speak to the extent to which
personal property on the premises of the ground lease could be abandoned;
(2) The rejected ground lease did not provide for a “put” in favor of the
lessee with respect to any personal property on the premises, and even if it did,
the lessee could not exercise such a put upon rejecting the ground lease; and
(3) What is proposed here is an “abandonment” of property, as that word
is used in ordinary English usage and in the Bankruptcy Code and Rules.
Especially where, as here, personal property left behind upon a lease rejection
raises potential environmental issues, the requirements of the Code and Rules for
notice and opportunity to object must be complied with before that property can
be abandoned.
My Findings of Fact and Conclusions of Law in connection with these determinations
follow.
Findings of Fact2
1. Background
Debtor Equistar Chemicals, L.P. (“Equistar”) owns and until recently operated
the Chocolate Bayou Olefins Facility (the “Facility”), located on part of the site of the
Chocolate Bayou plant, in Alvin, Texas (the “Chocolate Bayou Plant”). The Chocolate
Bayou Plant was owned and operated by Solutia until June 1, 2009, when Ascend
2 	Pursuant to the parties’ agreement and the provisions of Case Management Order #1, all of the
facts (but not necessarily arguments and conclusions) in the declarations submitted to me have
been taken as true.
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purchased substantially all of the assets of Solutia’s nylon business (the “Nylon
Business”), including the Chocolate Bayou Plant.
In March of this year, Equistar moved before me for authorization for (a) the
“long-term idling” for the Facility; (b) reduction of the workforce there; and (c) rejection
of executory contracts relating to the Facility—one of which was a ground lease (the
“Ground Lease”)3 upon which Equistar occupied the Facility, with tanks, piping and
other equipment (the “Personal Property”) owned by Equistar that had been used in
production. I granted the motion, by order dated March 13, 2009.
Equistar now seeks to implement a “transition plan” (the “Transition Plan”),
which, as originally proposed, would have provided for Equistar’s exit from the Equistar
Facility and the Chocolate Bayou Plant by August 4, 20094 —leaving possible
environmental cleanup or maintenance obligations associated with the Personal Property
with Solutia or Ascend, or both. The cost for anyone to address those obligations may
amount to many millions of dollars.
The parties debate whether my earlier approval of the rejection of the Ground
Lease authorized Equistar to saddle Solutia and Ascend with those expenses, and whether
the Ground Lease itself, or the Ground Lease rejection process, authorized such a result.
Solutia and Ascend contend that leaving the Personal Property behind amounts to an
abandonment of the Personal Property, and that Equistar must thus give notice of
abandonment—at which time they can raise objections to the abandonment based on
3 	Technically speaking, Equistar operated its facility pursuant to a sublease on a portion of the
Chocolate Bayou property (the “Sublease”), which granted Equistar rights to enforce compliance
under a related lease agreement (the “Primary Lease”). Debtors’ Response, at 3, fn. 2. They are
referred to together as the Ground Lease.
4 	Equistar, Solutia, and Ascend agreed to take steps to ensure that the transition would not pose a
danger to public health and safety, and Equistar’s full exit was postponed past August 4 to give me
time to determine the parties’ pending disputes.
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caselaw placing limits on a debtor’s ability to abandon property when that would be in
contravention of applicable environmental laws.5 Equistar argues that it has a contractual
right to “yield up” the Equistar Facility to Solutia or Ascend or both, under the Ground
Lease, and that it achieved such a result through the previously approved rejection.
2. The March 13 Order
On December 18, 2008, Equistar announced that it would temporarily idle the
Equistar Facility due to declining market conditions. Equistar engaged in cleanup and
maintenance activities in order to preserve the Equistar Facility, while keeping open the
option that the operations might later restart.
On January 29, 2009, approximately three weeks after the Debtors filed for
chapter 11 protection, Solutia filed a motion seeking, among other things, an order
compelling the Debtors to assume or reject leases and contracts relating to the Chocolate
Bayou Plant. Before the hearing on Solutia’s motion, the Debtors filed their own motion
(the “Idling and Rejection Motion”), seeking an order authorizing the long-term idling
of the Equistar Facility, a reduction of the workforce at the Facility, and the rejection of
leases and executory contracts related to the Facility (the “Chocolate Bayou Contracts
and Leases”), including the Sublease. Solutia then filed a limited objection to that
motion (the “Idling Limited Objection”) which, among other things, sought additional
information from Equistar as to the plans to reject the Chocolate Bayou Contracts and
Leases.
Some additional information was furnished, but the Debtors did not commit
themselves as to their ultimate intentions with respect to the Personal Property. For
5 	See, e.g., Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Protection., 474 U.S. 494 (1986)
(“Midlantic”).
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instance, a proposed form of order attached to the Debtors’ reply, reflecting discussions
with the federal Environmental Protection Agency (“EPA”) and Texas Commission on
Environmental Quality (“TCEQ”) with respect to environmental compliance and
compliance with a consent decree, provided, in part:
From and after the date hereof and to the extent
otherwise required by applicable permits, the
Consent Decree … and applicable environmental
statutes and regulations, the Debtors shall
coordinate the long-term idling and any re-start of
the Facility with the United States Environmental
Protection Agency and the Texas Commission on
Environmental Quality to Ensure that any ongoing
and outstanding environmental obligations are
managed in compliance with such applicable
permits, the Consent Decree, and otherwise
applicable environmental statutes and
regulations…6
The Debtors’ use of the term “long-term idling” did not convey notice of a permanent
abandonment. To the contrary, it implied some kind of continued operation at a very low
level, or a mothballing, with a very real possibility of a “re-start of the Facility,” as their
proposed order described. I find as facts that the Debtors did not then provide notice of
abandonment, and that I did not rule on a permanent abandonment or disposition of the
Personal Property at the hearing that led to the March 13 Order.
3. The Transition Plan
After the March 13 Order was entered, Equistar’s remaining on-site staff began
preparing to vacate by August 4. The Transition Plan included steps that the Debtors
have taken, or will take, to decontaminate and idle the equipment and materials
associated with the Equistar Facility. Equistar has worked with the EPA and the TCEQ
6 	Exh. A to the Idling Response, at 3 (emphasis added).
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to ensure compliance with applicable environmental laws as it prepares to vacate the
Equistar Facility, and neither agency has expressed any formal opposition to the
Transition Plan. But the Transition Plan requires ongoing maintenance of the Equistar
Facility, even after the Debtors have vacated the Chocolate Bayou Plant. If the Debtors
vacate the Equistar Facility, someone—Solutia or Ascend—must maintain the property
left behind. So far as the record reflects, the Personal Property is not now an
environmental hazard, but in the absence of appropriate maintenance, very well could be.
On June 26, 2009, and June 30, 2009, respectively, Ascend and Solutia filed
proofs of claim against Equistar for damages arising from the lease rejection and
Equistar’s failure to remove the Personal Property from the leased premises.7 Then, on
July 6, 2009, Solutia and Ascend filed the Motion before me, claiming that Equistar bears
primary responsibility for the decontamination of the Equistar Facility prior to vacating
the Chocolate Bayou Plant. Granting their motion would require, at the least, delay in
implementation of the Transition Plan.
4. The Ground Lease
Equistar is the successor to the Sublease, which provides that “[Equistar] shall
have the right to exercise in its own name and that of the Sublessor all of the rights to
enforce compliance with the terms of the Primary Lease on the part of Lessor as are
available to Sublessor.”8
7 	They did so with appropriate reservations of rights, including with respect to whether their claims
would be entitled to administrative expense treatment. As I noted at oral argument, I don’t believe
that it can be seriously argued that they waived any rights they had in this regard.
8 	Sublease, at 6.
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The portion of the Lease that is relevant to the current dispute is a provision
allowing the “yielding up” of the Leased Premises—the Equistar Facility. Section 9 of
the Primary Lease reads as follows:
9. Yielding Up. Upon the expiration or termination
of the term of this Lease, Lessee shall peaceably
yield up and surrender possession of the Leased
Premises to the Lessor in as good order, repair, and
condition as they were in at the commencement of
the term of this Lease. In this connection, Lessee,
at its own expense and within three hundred sixty-
five (365) days after the expiration or termination of
this Lease, [a] shall remove Lessee’s Facilities or
any other property of the Lessee from the Leased
Premises, restore the Leased Premises to a
condition suitable for industrial use, and leave in
good working order all of the utility systems and
other improvements of Lessor now on the Leased
Premises or as may be installed by the Lessor.
During such removal period all obligations of
Lessee under this Lease shall continue including
without limitation, the payment of rentals. [b] Any
of Lessee’s Facilities or other property of the
Lessee not so removed by Lessee within three
hundred sixty-five (365) days after the expiration or
termination of this Lease shall, at Lessor’s option,
be forfeited to and become the absolute property of
Lessor, or may be removed by Lessor and the
Leased Premises restored as above set forth and the
cost of such removal and restoration shall be paid
by Lessee to Lessor on demand, and no claim
against Lessor shall be created by or made on
account of such removal or restoration.9
Discussion
Based on the quoted language (and the italicized language in particular), the
Debtors contend that Equistar has a contractual right to pass the Facility on to Solutia and
Ascend, along with any attendant obligations. The Debtors further contend that while
9 	Primary Lease, § 9 (Debtors’ Response, Exh. 2) (emphasis added; bracketed letters “[a]” and “[b]”
added for the discussion to follow).
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any costs incurred in maintaining the Equistar Facility could give rise to a claim by
Solutia or Ascend against Equistar, any such claim would not be an administrative
expense claim, but would instead simply give rise to unsecured pre-petition claims
against the Equistar estate, along with any other rejection damages.
Solutia and Ascend contend, by contrast, that the March 13 Order covers only
rejection of the Ground Lease, and that the Ground Lease can’t be affirmatively invoked
to give rise to a “put” in Equistar’s favor, requiring Solutia or Ascend to accept the
Personal Property, with its substantial actual or prospective environmental liabilities.
That, Solutia and Ascend contend, amounts to an abandonment, and can be authorized
only upon an abandonment motion, at which they can be heard with respect to limitations
on debtor abandonment rights imposed under Midlantic and its progeny.
I agree with Solutia and Ascend. I can’t read the language in Section 9 of the
Primary Lease as creating a put. And even if it did, any such put couldn’t be enforced
while rejecting the agreement in which such a put were contained. And while I don’t
decide today the extent, if any, to which Midlantic or its progeny would preclude or
impair abandonment of the Person Property—a debatable question, since the Personal
Property is not, in its present condition, hazardous, but without substantial expenditures
of funds, could be—I conclude that reliance on terms in the rejected Ground Lease is
insufficient to justify avoidance of Midlantic-type scrutiny.
1. Rights Under Ground Lease and as a Result of Its Rejection
The Debtors argue that Equistar is contractually permitted to vacate the Equistar
Facility (which Equistar plainly can), and then pass on any ongoing responsibilities vis-à-
vis the Facility to the owner of the Chocolate Bayou Plant—which is more debatable.
The Debtors rely on the “Yielding Up” section of the Lease, Section 9, quoted in full
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above.10 I first must decide, as a matter of contract and bankruptcy law, whether the
Yielding Up section creates a substantive right on the part of Equistar to require Solutia
and Equistar to accept the Personal Property against their will—by what amounts to a
put—and, if so, whether any such substantive right can be invoked as part of a lease
rejection.11
The Ground Lease contains potentially relevant language in two separate portions
of Section 9. The first, which I’ve marked with the bracketed reference “[a]” (“Clause
A”), provides that the lessee Equistar:
shall remove Lessee’s Facilities or any other
property of the Lessee from the Leased Premises,
restore the Leased Premises to a condition suitable
for industrial use, and leave in good working order
all of the utility systems and other improvements of
Lessor now on the Leased Premises or as may be
installed by the Lessor.
Clause A provides for a duty on the part of lessee Equistar that’s common in real
property leases. It provides in substance for a contractual covenant on the part of the
lessee to remove the Personal Property—not unlike the provision we often see requiring
leased premises to be delivered back to a landlord in “broom-clean” condition.
Performance of covenants of that character is frequently burdensome, and landlords have
sometimes contended that performance of that covenant must be a condition precedent to
rejection.
10 	Primary Lease, § 9, quoted above.
11 	In either event, Equistar does not contend that it could do so at zero price. But Equistar contends
that the price would be in the form of an unsecured claim, which could result in recompense in
amounts considerably less than the full resulting damages.
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But I, like other courts before me,12 have previously rejected contentions of that
character.13 As I explained in Ames, rejection of an executory contract can’t be
conditioned upon compliance with a covenant in the contract to be rejected. 14 As I there
stated:
It would frustrate the entire purpose of rejection if,
in order to reject and thereby be relieved of a
burdensome executory contract, the debtor were
required, as a condition to doing so, to comply with
one of the very aspects of the agreement that is
burdensome. And Ames is correct when it argues
that acceptance of the Landlords’ position would
amount to acceptance of the notion that a cure of
defaults-which is required to assume a lease-is
likewise a condition to reject a lease, and when it
argues that any such holding would eviscerate the
important benefits provided under the Code to reject
burdensome lease obligations.15
For that reason, I authorized rejection of the Ground Lease under the March 13
Order, even though Equistar hadn’t yet complied with the requirements of Clause A, and
it was at least possible that Equistar never would. Similarly, Solutia and Ascend can’t
now rely on the language in Clause A to create contractual restraints on Equistar’s
leaving the Personal Property behind.
But to say that Solutia and Ascend can’t prohibit Equistar from leaving the
Personal Property behind—either by contract or by conditioning rejection upon such—is
not the same thing as saying that Equistar can require Solutia or Ascend to take the
12 	See In re Unidigital, Inc., 262 B.R. 283 (Bankr. D. Del. 2001) (Walrath, J.); In re National
Refractories & Minerals Corp., 297 B.R. 614 (Bankr. N.D. Cal. 2003) (Tchaikovsky, J.).
13 	See In re Ames Department Stores, Inc., 306 B.R. 43 (Bankr. S.D.N.Y. 2004).
14 	See id. at 51 (“The Court necessarily must reject the Landlords’ implicit contention that the
Debtors’ statutory right to reject can be qualified by requirements not in the Bankruptcy Code
itself, and especially by an implied requirement of compliance with lease covenants that are
burdensome to the debtor, and that may form part of the rationale for rejection in the first place.“)
15 	Id. at 52.
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Personal Property when they don’t want to do so. The latter is what Equistar wants, and
to achieve this, Equistar relies not on Clause A (which plainly does not embody a put),
but on the second italicized clause, preceded by a bracketed “[b]” (“Clause B”).
Clause B, it will be remembered, provides:
Any of Lessee’s Facilities or other property of the
Lessee not so removed by Lessee within three
hundred sixty-five (365) days after the expiration or
termination of this Lease shall, at Lessor’s option,
be forfeited to and become the absolute property of
Lessor, or may be removed by Lessor and the
Leased Premises restored as above set forth and the
cost of such removal and restoration shall be paid
by Lessee to Lessor on demand…
In substance, Clause B describes remedies for the failure to comply with
Clause A. But I can’t read the quoted language in Clause B to grant Equistar an option or
other contractual right to require the Lessor to take any of the Lessee’s property. It
grants the Lessor rights if any property is not removed. And while the “shall” in Clause
B is subject to multiple constructions—as denoting future tense or something
mandatory—the better reading (especially since it is followed by a “may” later in the
same sentence) is that Clause B does not say that the Lessor must avail itself of those
rights, or choose one or another of the options, if it prefers not to avail itself of any
remedies whatever. Clause B rather conveys rights to, rather than burdens upon, the
Lessor. Clause B is not structured, in words or substance, to grant a put, and if it had
been intended to achieve such a result, it would have been drafted in a materially
different way. Clause B may (and probably does) set forth the measure of damages that
the Lessor may claim for a failure to comply—a matter not now before me—but it does
not embody a contractual duty on the part of the Lessor to accept any property it does not
want.
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Additionally, even if Clause B did embody a put, I can’t see how it could be
enforced by the debtor Equistar when the agreement containing the put had been rejected.
“[T]he rejection of an executory contract … constitutes a breach of such contract.”16 And
rejection excuses future performance under that contract by the contract counter-party,
and deprives the debtor from securing the contract’s future benefits.17 Because that is so,
even if Section 9 of the rejected contract contained a put, Equistar could not enforce the
contract to require Solutia or Ascend to accept the Personal Property against its will.
2. Abandonment
But I further need to consider whether what Equistar proposes is, as Solutia and
Ascend contend, a “de-facto” abandonment—i.e., an abandonment in substance—and if
so, whether that can be done only with notice and opportunity to object. I agree that it is.
When leaving the Personal Property behind, Equistar “abandoned” it in accordance with
that word’s everyday meaning, and when we consider the Code and Rules, we come to
the same result.
Section 554(a) of the Code provides that “[a]fter notice and a hearing,”18 a debtor
“may abandon any property of the estate that is burdensome to the estate or that is of
16 	Code section 365(g).
17 	See, e.g., Pacific Express, Inc. v. Teknekron Infoswitch Corp. (In re Pacific Express, Inc.),
780 F.2d 1482, 1486 n.3 (9th Cir. 1986) (“After rejection, the performance of the non-bankruptcy
obligee is excused.”); In re Crippin, 877 F.2d 594, 597 (7th Cir. 1989) (“since rejection constitutes
a breach, it also excuses performance by the nonbankrupt party. … Thus, rejecting a contract
allows a debtor to escape a contract’s burdens; but, at the same time, the debtor must also give up
any future benefit he might receive from the contract.”); In re Executive Technology Data Systems,
79 B.R. 276, 282 (Bankr. E.D. Mich. 1987) (“if a debtor elects to reject an executory contract, he
rejects the benefits as well as the burdens”).
18 	“Notice and a hearing” requires a hearing if, but only if, there is an objection. See Bankruptcy
Code section 102.
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inconsequential value and benefit to the estate.”19 In this case, the very existence of this
controversy underscores how nobody wants the Personal Property; it will be burdensome
to whomever is saddled with it. And implicit in the controversy is the further reality that,
especially in light of the costs of maintaining it, the Personal Property is of
inconsequential value as well.
Solutia argues that there are only a limited number of ways by which property can
leave a chapter 11 estate—by use, transfer (normally by sale), or abandonment. Equistar
doesn’t dispute, much less refute, this point. And Solutia further observes, properly, that
in the absence of a put right, only the last of those could be applicable here. At least as a
general matter,20 all of these means, except where transfer takes place in the ordinary
course of business,21 require notice, and approval of the court if there is objection.
Equistar’s desire to leave its Personal Property behind—because continued ownership is
burdensome, because it’s of inconsequential value, or both—is the paradigmatic
“abandonment” as that concept is used under the Code, just as it is under common
English usage and common sense.
Whether abandonment of the Personal Property here is or isn’t appropriate is not
yet before me. Under the Code and Rules, a proposed abandonment must be achieved
19 	11 U.S.C. § 554(a). Then, Fed R. Bankr. Proc. 6007(a) provides that a debtor must provide notice
of a proposed abandonment to the United States Trustee, all creditors, indenture trustees, and
committees appointed or elected under the Code, and Local Bankruptcy Rule 6007-1 further
provides that such notice must describe the property to be abandoned, the reason for the
abandonment, and the entity to which the property is to be abandoned.
20 	Sometimes, particularly in our larger chapter 11 cases, we enter orders providing general authority
to effect sales or abandonment of property that is of minimal value in the context of the case,
without further notice when the value of the property does not exceed a specified amount.
21 	See Code section 363(a).
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only after notice, and if there are then objections, as there may well be here,22 any
objections can (and should) be considered at that time. At this juncture, I express no
view as to whether I’ll ultimately determine that abandonment is permissible at such time
as any abandonment motion is made. In fact, other than noting a few issues that counsel
should be prepared to address if and when any such motion is made,23 I express no views
whatever concerning the subject. Of course, until notice of abandonment is given and
any objections can be considered, the Transition Plan must be put on hold.
22 	Underlying all of this, of course, are the issues as to whether the Personal Property may be
abandoned under Midlantic and its progeny, as under Midlantic, abandonment may not occur “in
contravention of a state statute or regulation that is reasonably designed to protect the public
health or safety from identified hazards.” 474 U.S. at 507. My decision in Ames, wherein the
property left behind was racks, shelving and similar trade fixtures, did not involve environmental
issues, and the lessor agreed that Ames could abandon it. See 306 B.R. at 50-51. I had no
occasion there to address any issues that might arise when the abandonment might involve
environmental remediation costs.
23 	Without foreclosing counsel from making any other points they would wish to make, parties
should be prepared to address, as factual matters, whether the Personal Property now presents a
situation in contravention of applicable statutes or regulations protecting the public health or
safety, and, if not, what would happen in the absence of further action. Parties should also be
prepared to address as a legal matter, how bankruptcy courts consider situations where the status
quo is presently benign but where, in the absence of material efforts or expenditures, hazards to
the public would be expected to result, or at least would be foreseeable (which might be a different
question or imply a different legal standard). Parties should also be prepared to address, either on
an abandonment motion or in connection with any request for administrative expense claim status
(as contrasted to unsecured claim), in addition to Midlantic and its progeny, the decisions by
Judges Walrath and Tchaikovsky, respectively, in Unidigital and National Refractories &
Minerals, and decisions by Judges Winfield and Blackshear, respectively, in In re Mahoney-
Troast Constr. Corp., 189 B.R. 57 (Bankr. D.N.J. 1995), and In re McCrory Corp., 188 B.R. 763
(Bankr. S.D.N.Y. 1995).
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Conclusion
For the foregoing reasons, I rule that that notice of abandonment was not
previously given; my order approving rejection of the Ground Lease did not address
Equistar’s ability to abandon the Personal Property, one way or another; Equistar cannot
rely on contractual provisions in the Ground Lease to require Solutia or Ascend to accept
the Personal Property; and that if Equistar wishes to leave the Personal Property behind,
it must do so by abandonment, providing notice and an opportunity to object. While
Debtors generally may leave personal property behind when rejecting leases for premises
and may be subject only to unsecured claims for their failures to comply with contractual
covenants to leave the premises in “broom-clean” or similar condition, limits on their
right to abandon their property may apply when Debtors leave environmentally
hazardous property behind. I now express no view as to how I would decide any
disputed matters if and when notice of abandonment was made.
SO ORDERED.
Dated: New York, New York 	s/Robert E. Gerber
September 9, 2009 	United States Bankruptcy Judge
09-10023-reg Doc 2718 Filed 09/09/09 Entered 09/09/09 16:22:10 Main Document
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