# BVS Construction Inc.

> United States Bankruptcy Court, W.D. Texas · March 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10462800

## Case

- **Court:** United States Bankruptcy Court, W.D. Texas
- **Decided:** March 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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Signed March 20, 2020.

Ronald B. King
Chief United States Bankruptcy Judge

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
IN RE: §
§
BVS CONSTRUCTION, INC., § CASE NO. 19-60004-RBK
§
DEBTOR § CHAPTER 11
OPINION
The issue in this case is whether post-petition penalties incurred by a chapter 11 debtor as
a result of workplace safety violations are allowable as administrative expenses under 11 U.S.C.
§ 503(b). BVS Construction, Inc. (the “Debtor’”) filed a voluntary chapter 11 petition on
November 11, 2014. The Debtor filed a second voluntary chapter 11 petition on January 2, 2019;
therefore, the Debtor is a “chapter 22” filer. Since the date of filing the second chapter 11
petition, the Debtor has been cited for 18 workplace safety violations by the Mine Safety and
Health Administration (“MSHA”) and has incurred a total of $34,676.58 in fines in connection
with the Debtor’s mining operations in Brazos County, Texas.

MSHA filed a motion to allow administrative expenses under 11 U.S.C. § 503(b), to
compel payment of the post-petition penalties. At the hearing, the Debtor cited case law from
Delaware and the Court of Appeals for the Third Circuit to support its assertion that the penalties
are not allowable as administrative expenses under § 503(b)(1)(A).
The Court finds that MSHA has met the requirements for administrative expenses under

§ 503(b). Case law cited by the Debtor, which bars criminal penalties from treatment as an
administrative expense, is inapposite in this case because the post-petition penalties incurred by
the Debtor are not criminal penalties. The Court finds that the post-petition penalties imposed
against the Debtor are civil in character and are therefore allowable as administrative expenses.
JURISDICTION AND VENUE
The Court finds that it has jurisdiction to render a final order in this core proceeding
pursuant to 28 U.S.C. §§ 157(b)(2)(B) and 1334. Venue is proper under 28 U.S.C. §§ 1408 and

1409. This Opinion constitutes the findings of fact and conclusions of law of the Court pursuant
to FED. R. BANKR. P. 7052 and 9014.
BACKGROUND
The Debtor filed its second voluntary petition for chapter 11 bankruptcy on January 2,
2019. The Debtor has continued to operate its business as a debtor-in-possession during the
pendency of this bankruptcy. As part of its ordinary business, the Debtor maintains a mining
operation in Brazos County, Texas.
MSHA is a component of the Department of Labor and is responsible for developing and

enforcing workplace safety regulations for mine operations across the country under the Mine
Safety and Health Act of 1977. See 30 U.S.C. §§ 801–820. MSHA exercises regulatory authority
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over the Debtor’s mining operations at the Palasota Mine in Brazos County. The Debtor has been
issued citations for MSHA violations dating back to January 2012. Since the petition date, the
Debtor has been cited for 18 workplace safety violations and has incurred a total of $34,676.58
in fines for those violations.
In its response to MSHA’s motion, the Debtor acknowledged that these penalties are not

contested, but argued that the penalties are not allowable as administrative expenses. The Debtor
cited two recent opinions from Delaware and the Third Circuit to support its assertion that these
penalties are not allowable as administrative expenses under § 503(b)(1)(A). See Pa. Dep’t of
Envtl. Res. v. Tri-State Clinical Labs., Inc., 178 F.3d 685 (3d Cir. 1999); In re Exide Techs.,
601 B.R. 271 (Bankr. D. Del. 2019) (Carey, J.).
DISCUSSION
Section 503(b) of the Bankruptcy Code states that, after notice and a hearing, “there shall

be allowed administrative expenses . . . including . . . the actual, necessary costs and expenses of
preserving the estate.” 11 U.S.C. § 503(b)(1)(A). To make a prima facie case for allowance of an
administrative expense, the movant is required to meet a two-pronged test by showing (1) that
the claim arises from a transaction with the debtor’s estate; and (2) that it has directly and
substantially benefitted the estate. McBride v. Riley (In re Riley), 923 F.3d 433, 439 (5th Cir.
2019).
Generally, liabilities incurred by a bankruptcy estate for post-petition operations
constitute “actual and necessary” costs. Al Copeland Enters. v. Texas (In re Al Copeland
Enters.), 991 F.2d 233, 238–40 (5th Cir. 1993). The first prong of the test for an administrative
expense is easily met in this case because the mine was operated by the Debtor during the

administrative claim period. MSHA argues that the second element for an administrative
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expense is also met because the penalties in this case are ordinary business expenses that
constitute “actual and necessary costs” under § 503(b). Even though post-petition penalties
relating to workplace safety violations do not benefit the bankruptcy estate in a traditional sense,
MSHA argues that the penalties are a direct “benefit to the estate” because they are costs
incident to the Debtor’s business operation.

In Reading Co. v. Brown, the Supreme Court held that consideration of “fundamental
fairness and logic” sometimes requires the allowance of a claim of administrative priority, and
that “actual and necessary” costs should include “costs ordinarily incident to operation of a
business.” Reading Co. v. Brown, 391 U.S. 471, 483 (1968). Multiple court of appeals cases also
support the proposition that post-petition civil fines and penalties are simply part of the cost of
doing business and are allowed as an administrative expense. See Cumberland Farms, Inc. v.
Fla. Dep’t of Envtl. Prot., 116 F.3d 16 (1st Cir. 1997); Ala. Surface Mining Comm’n v. N.P.
Mining Co. (In re N.P. Mining Co.), 963 F.2d 1449 (11th Cir. 1992); U.S. Dep’t of Interior v.
Elliott (In re Elkins Energy Corp.), 761 F.2d 168 (4th Cir. 1985). Payment of civil fines and

penalties are generally part of the cost of doing business. So, if the MSHA penalties are civil in
character, then the requirements for an administrative expense under § 503(b) have been met
because the post-petition MSHA penalties are related to the Debtor’s mine which was operated
during the pendency of the bankruptcy case.
The Debtor relied heavily on the Delaware case of Exide Technologies, which involved
post-petition penalties imposed on the chapter 11 debtor-in-possession by the South Coast Air
Quality Management District (the “District”), an air pollution agency in southern California. In
re Exide Techs., 601 B.R. at 275–76. The debtor in Exide manufactured lead-acid batteries, and
issues arose due to environmental contamination at the debtor’s facility in Vernon, California.
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Id. at 275. The District filed a proof of claim alleging $38,915,000 in fines and penalties in
connection with the debtor’s operations. Id. Violations were for items such as failing to file
reports and emission exceedances. Id. at 276. The debtor was accused of, and later admitted to,
violating numerous provisions under the federal Resource Conservation and Recovery Act and
the Hazardous Materials Transportation Act. Id. at 278.

In a related state court suit between the debtor and the District which was removed to
federal district court, the District argued that the suit should be remanded to California state
court because the penalties at issue in the case were “quasi-criminal” in character. Id. at 277. The
District Court for the Central District of California agreed that the penalties were quasi-criminal
in nature and granted the District’s motion for remand. Id.
Later, in bankruptcy court, the District in Exide claimed that the penalties were entitled to
administrative expense priority treatment under § 503(b). Id. at 284–85. Judge Kevin Carey
affirmed the two-prong test for an administrative expense under § 503(b)(1)(A), that “the debt
must arise from a transaction with the [estate] . . . [and] the consideration supporting the

claimant’s right to payment [must be] beneficial to the debtor-in-possession in the operation of
the business.” Id. at 285. To determine whether these penalties qualified, the Exide court looked
to the Third Circuit’s decision in Tri-State. See Pa. Dep’t of Envtl. Res. v. Tri-State Clinical
Labs., Inc., 178 F.3d 685 (3d Cir. 1999).
The Third Circuit Court of Appeals in Tri-State held that “noncompensatory criminal
penalties” resulting from post-petition conduct are not given administrative expense priority
because they are not “ordinarily incident to operation of a business.” Id. at 698 (“We hold that
punitive criminal fines arising from post-petition behavior are not administrative expenses under
11 U.S.C. § 503(b), and therefore, are not accorded priority status pursuant to § 507(a)(1).”). The
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Delaware bankruptcy court in Exide, therefore, had to determine whether the post-petition
penalties imposed against the debtor were criminal, civil, or a hybrid (quasi-criminal). The
bankruptcy court in Exide followed Tri-State and ultimately held that the penalties were not
entitled to treatment as an administrative expense because, by the District’s own argument, the
penalties were quasi-criminal in nature. In re Exide Techs., 601 B.R. at 285 (“To support its

efforts for remand of the California State Action, the District emphasized the criminal or ‘quasi-
criminal’ nature of its penalties. Ultimately, the District . . . [persuaded] the federal court that,
while the District’s penalties are nominally civil, they fulfill the same function as a criminal
enforcement action. Now, as Exide points out, the District has changed course and characterizes
its penalties as ‘civil.’ Accordingly, Exide argues that judicial estoppel should apply . . . .”).
To distinguish Exide and Tri-State, MSHA argues that the facts of the present case
warrant a different result because this case does not involve criminal or quasi-criminal penalties.
Rather, the post-petition MSHA penalties are civil in nature. The Court agrees that the post-
petition MSHA penalties are civil in nature and that Exide and Tri-State are inapposite to the

present case. Tri-State involved a criminal fine. Additionally, while the fines in Exide appear to
be similar to the MSHA penalties, the Exide court treated them as quasi-criminal because the
creditor in that case had previously argued that the fines were quasi-criminal in nature; therefore,
judicial estoppel applied. Here, MSHA has never argued that the post-petition penalties were
criminal or quasi-criminal in nature. Finally, the Court is persuaded by case law interpreting the
Mine Safety and Health Act of 1977 (and its statutory predecessor), and by the language of the
statute itself, which indicates that the penalties are civil in character.
The Mine Safety and Health Act of 1977 (the “Act”) was enacted for the purpose of
protecting the health and safety of miners. 30 U.S.C. § 801. The Act establishes “standards . . . to
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protect the health and safety of the Nation’s coal or other miners,” and requires each operator of
a mine to comply with such standards. Id. If the Secretary of Labor (through his authorized
representative) finds violations of the statute, citations are issued to the operator. Id. § 814. The
Act states that operators in violation “shall be assessed a civil penalty by the Secretary which
penalty shall not be more than $50,000 for each such violation.” Id. § 820(a)(1). Section 820(d)

specifically addresses the potential for criminal penalties, separate from civil penalties. Id. §
820(d). Criminal penalties may be issued against operators who “willfully” or “knowingly”
violate MSHA standards, and these penalties are limited to a $250,000 fine or imprisonment for
not more than one year. Id. The citations issued in this case, however, do not allege that the
Debtor violated MSHA health and safety standards “willfully” or “knowingly.”
The categorization of MSHA penalties as “civil” in nature, except when they are
specifically alleged as criminal penalties under § 820(d), is supported by case law. See United
States v. Finley Coal Co., 345 F. Supp. 62 (E.D. Ky. 1972), aff’d and remanded, 493 F.2d 285
(6th Cir. 1974), cert. denied, 419 U.S. 1089 (1974). The dispute in Finley Coal arose from an

underground explosion of interconnected mines, resulting in multiple fatalities and charges of
multiple violations of the Act’s statutory predecessor. Id. at 63. The defendant coal company
was issued a civil penalty under the statute in the amount of $53,600, similar to the penalties
imposed on the Debtor. Id. Separately, a federal indictment was returned against the defendant
charging 24 counts of MSHA violations. In a motion to dismiss, the defendant argued that “the
dual civil and criminal proceedings” constituted double jeopardy in violation of the Fifth
Amendment. Id. The District Court for the Eastern District of Kentucky held that “the threat of a
civil assessment and a criminal penalty” against the defendant under the Coal Mine Health and
Safety Act of 1969 did not constitute double jeopardy. Id. at 64.
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The Finley Coal court reasoned that Congress clearly enacted the predecessor statute to
establish “comprehensive penalties to be imposed under stated conditions, some of which are
civil and remedial in nature and . . . others criminal in nature to be sought only against wilful
violators.” Id. at 65. The citations issued in this case do not involve willful or knowing
violations. The Finley Coal case, interpreting penalties issued under the predecessor statute,

strongly supports the finding that the penalties imposed against the Debtor for MSHA violations
are civil in character.
CONCLUSION
Because the post-petition MSHA penalties are civil in character, the Court finds that the
post-petition penalties constitute (1) a transaction with the estate; and (2) directly benefit the
estate because civil penalties are generally part of the cost of doing business. For these reasons,
the Court has granted MSHA’s motion to allow an administrative expense for the post-petition

penalties under § 503(b)(1)(A). A separate order has been entered.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10462800. Public record. Not legal advice.