This appeal by the Rhode Island Attorney General and the Director of the Rhode Island Department of Environmental Management challenges various rulings which prompted the district court to hold that appellee David LaRoche’s obligations to the State of Rhode Island, for its costs in remediating water contamination on property owned by LaRoche and for related civil penalties, were expunged by the chapter 7 discharge subsequently obtained by LaRoche. We vacate and remand, with directions that judgment enter for appellants.
I
BACKGROUND
In 1988, appellants joined in citizen lawsuits brought against LaRoche in the United States District Court for the District of
*571
Rhode Island, claiming violations of the Clean Water Act (“CWA”), 33 U.S.C. § 1251
et seq.,
and the Rhode Island Water Pollution Control Act (“RIWPCA”), R.I. Gen. Laws § 46-12-1
et seq.
(the “CWA/RIWPCA action”). Ultimately, the district court entered partial summary judgment for appellants, after determining that LaRoche had known, prior to purchasing the property, that its faulty septic system was polluting an adjacent river.
See Friends of Sakonnet v. Dutra,
Creditors instituted involuntary chapter 11 reorganization proceedings against La-Roche in January 1991; the order for relief was entered in February 1991,
see In re LaRoche,
Meanwhile, the parties had negotiated a settlement of all the remedial issues in the CWA/RIWPCA action pending before the federal district court. Whereupon the district court entered a consent decree, which stated, inter alia: “The intention of the parties is to resolve any pending disputes arising out of this matter. The only responsibilities and obligations that will survive are those set forth in this Stipulation.”
In due course, a special master was appointed to marshal a settlement fund from the State and the former owners of the LaRoche property for the purpose of acquiring an adjacent tract of land upon which to construct a new waste water collection and treatment facility. Any excess acreage, over and above that required for the new facility, was to be sold to cover related project costs.
LaRoche agreed to reimburse the State for any “shortfall amount,” defined as the difference between ninety percent of the cost of the new waste water collection and treatment facility and the net proceeds from the sale of any excess acreage. In addition, LaRoche promised to “affirm his obligation to pay the [shortfall amount], to the extent then unpaid, as a debt not discharged in any bankruptcy proceeding in which he is the bankrupt whether now pending or hereafter filed.” 1 Finally, LaRoche pledged to “procure an order of the United States Bankruptcy Court for the District of Rhode Island in [his involuntary bankruptcy proceeding] affirming his obligation to pay the [shortfall amount] and to perform his other obligations hereunder.”
All parties agreed to proceed “expeditiously” and “in good faith” with their respective obligations under the consent decree, which further provided as follows:
LaRoche hereby agrees to the imposition of a civil penalty under the Rhode Island Water Pollution Control Act and regulations issued thereunder equal to the [shortfall amount ]. DEM and the Attorney General agree that the imposition of such civil penalty will be stayed for so long as LaRoche complies with his obligations under Section II.3.C of this Stipulation [viz., to seek reaffirma *572 tion of Ms obligation to pay this debt in his involuntary bankruptcy case] and/or for so long as any order procured from the Bankruptcy Court under Section II.3.D [viz., an order approving La-Roche’s reaffirmation of his prepetition debt ] remains in effect. LaRoche specifically agrees that the civil penalty imposed hereunder constitutes a debt for a fine, penalty or forfeiture payable to and for the benefit of a governmental unit, is not compensation for actual pecuniary loss and is specifically non-dischargeable under 11 U.S.C. [ § ] 523(a)(7).
(Emphasis added.) The district court explicitly retained “continuing jurisdiction over this Stipulation and the performance of the parties hereto.”
Although LaRoche was granted a chapter 7 discharge, see 11 U.S.C. § 727, 2 on March 3, 1995, it was more than two years later, on April 10, 1997, before he finally submitted a motion to reaffirm the “shortfall amount” indebtedness.
Following a hearing which appellants elected not to attend, the bankruptcy court rejected the motion to reaffirm submitted by LaRoche. 3 At the same time, the bankruptcy court expressed concern that its rejection of the motion to reaffirm might obstruct the State’s efforts to recover the “shortfall amount.” Accordingly, the bankruptcy court directed that its order— rejecting LaRoche’s motion to reaffirm the “shortfall amount” indebtedness — be served upon all parties to the CWA/RIWP-CA consent decree and “[t]hat all entities who oppose the entry of this Order shall have ten (10) days from the entry of this Order within which to file a motion under Fed. R. Bankr.P. 9023 to alter and amend this Order.”
Appellants elected not to submit a Rule 9023 motion, opting instead for a motion before the district court (which had retained jurisdiction over the CWA/RIWP-CA consent decree) seeking a judicial declaration that LaRoche had breached the reaffirmation agreement, thereby rendering himself liable for the alternative civil penalty in a sum equal to the “shortfall amount,” estimated at more than one million dollars. LaRoche responded that (i) the consent decree was void and unenforceable due to appellants’ failure to comply with the prerequisites to reaffirmation, see Bankruptcy Code § 524(c), 11 U.S.C. § 524(c), and (ii) consequently, the general discharge he was granted relieved him of all liabilities, including those asserted by appellants.
For their part, appellants argued that the consent decree itself expressly defined the civil penalty imposed upon LaRoche as a fine payable to and for the benefit of a governmental unit, rather than as compensation for actual pecuniary loss. Accordingly, appellants contended, the civil penalty imposed against LaRoche was rendered nondischargeable as a matter of law. See id. § 523(a)(7).
In due course, the district court determined that the characterization which the consent decree ascribed to the LaRoche indebtedness for the civil penalty in the shortfall amount — viz., a nondischargeable “civil penalty” — was not conclusive. Con *573 sequently, the district court opined, in order to safeguard their rights it was incumbent upon appellants not only to have submitted a proof of claim, but also to have commenced an adversary proceeding to obtain a bankruptcy court ruling that the LaRoche indebtedness for the shortfall amount was a nondisehargeable civil penalty. Failing that, the district court reasoned, the general discharge in bankruptcy granted LaRoche in the bankruptcy court presumptively discharged the civil penalty in the “shortfall amount” as contemplated by the CWA/RIWPCA consent decree.
II
DISCUSSION
Appellants contend that the explicit language employed in the CWA/RIWPCA consent decree — triggering a contingent “civil penalty’ if and whenever LaRoche were to default on his obligation to procure bankruptcy court approval of the reaffirmation agreement relating to the “shortfall amount” indebtedness to appellants — rendered the civil penalty nondisehargeable under Bankruptcy Code § 523(a)(7), 11 U.S.C. § 523(a)(7). Accordingly, appellants insist, the interpretation the district court ascribed to the CWA/RIWPCA consent decree contravened the “law of the case” doctrine, which “makes binding upon a court a ruling made [in] the same ... level [of court] during prior stages of the same litigation.”
Lacy v. Gardino,
The district court
rulin
g—viz., that appellants failed either to establish or preserve their entitlement to a judicial determination that their claim was excepted from discharge — presents us with a mixed question of law and fact subject to
de novo
review.
See, e.g., Warfel v. City of Saratoga,
Bankruptcy Code § 523(a)(7) excepts from discharge in bankruptcy any debt “for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, [which] is not compensation for actual pecuniary loss.” 11 U.S.C. § 523(a)(7). Thus, in order to establish that the instant consent decree imposed a nondischargeable obligation upon LaRoche, appellants needed to establish that their claim was based on (i) a “fine, penalty, or forfeiture,” (ii) “payable to and for the benefit of a governmental unit,” and (iii) “not compensation for actual pecuniary loss.” Id. Were appellants required to relitigate the dischargeability issue de novo, there may well have been substantial impediments to overcome. We explain.
Although Bankruptcy Code § 523(a)(7) applies both to civil
and
criminal penalties,
see U.S. Dep’t of Hous. & Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of Va., Inc.,
Appellants contend that these civil penalties, imposed pursuant to Rhode Island law, see R.I. Gen. Laws § 46-12-13, were designed to deter and remediate environmental contamination, a particularly important governmental function implemented under the State’s police and regulatory *574 powers. Moreover, appellants argue, La-Roche potentially was exposed to fines up to $25,000 per day, a sum which bears neither any obvious nor essential correlation to the amount needed to compensate the State for its actual response costs.
On the other hand, there can be no question but that the
consent decree itself explicitly equates the amount of these civil penalties with the “shortfall amount
which in turn plainly was designed to reimburse the State for its
actual losses,
neither more nor less. Appellants respond, however, that their decision to calculate the punitive fines under that convenient methodology cannot deprive these civil penalties of their “punitive” nature. See,
e.g., State Bar of Mich. v. Doerr (In re Doerr),
First, the district court erred, as a matter of law, in ruling that appellants forfeited their rights by not commencing a timely adversary proceeding to determine the dischargeability of these debts while the LaRoche bankruptcy proceeding was pending. Normally, the Bankruptcy Code enables a debtor to obtain a discharge “from all debts that arose before the date of the order for relief.” Bankruptcy Code § 727(b); see also id. § 524(a). Any claim for environmental contamination asserted against LaRoche plainly arose prior to the chapter 11 petition. See id. § 101(5) (defining “claim” as a “right to payment, whether or not such right is reduced to judgment, ... fixed, [or] contingent”). Consequently, absent exceptional circumstances not present here, any liability incurred for environmental contamination would have been extinguished by the discharge in bankruptcy LaRoche obtained in 1995.
On the other hand, under the terms of the consent decree, LaRoche became liable to appellants for two distinct debts: the “shortfall amount” and the contingent civil penalty. Thus, as appellants correctly point out, the present case implicates two distinct dischargeability “exceptions.”
First, a debtor represented by counsel may reaffirm any lawful debt by entering into a written reaffirmation agreement which strictly comports with the criteria prescribed in Bankruptcy Code § 524(c). The mandated criteria require that the reaffirmation agreement (i) be executed before the subsection 727(a) discharge has been granted; (ii) be in consideration for a dischargeable debt, whether or not the debtor waived discharge of the debt; (iii) include clear and conspicuous statements that the debtor may rescind the reaffirmation agreement at any time prior to the granting of the general discharge, or within sixty days after the execution of the reaffirmation agreement, whichever occurs later, and that reaffirmation is neither required by the Bankruptcy Code nor by nonbankruptcy law; (iv) be filed with the bankruptcy court; and (v) be accompanied by an affidavit of the debtor’s attorney attesting that the debtor was fully advised of the legal consequences of the reaffirmation agreement, that the debtor executed the reaffirmation agreement knowingly and voluntarily, and that the reaffirmation agreement would not cause the debtor “undue (e.g., financial] hardship.” Id. § 524(c). 4
*575
An entirely voluntary, fully informed reaffirmation agreement meeting the demanding requirements of Bankruptcy Code § 524 enables a creditor to undertake all lawful efforts to recover a reaffirmed debt as though no petition in bankruptcy had been filed.
See Ripple v. Boston Whaler Fin. Servs. (In re Ripple),
The consent decree in the instant case required that LaRoche submit a motion to reaffirm only the non-“penalty ” debt for the “shortfall amount ” (“non-penalty shortfall debt”). Unlike the contingent civil penalty, which was stayed, the “non-penalty shortfall debt” presumptively constituted a dischargeable debt; that is, one which could not be excepted from discharge unless LaRoche entered into a valid agreement to reaffirm it.
Second, and altogether apart from whether a particular reaffirmation agreement is enforceable, an eligible creditor may be entitled to invoke any one or more among the sixteen exceptions to discharge enumerated in Bankruptcy Code § 523(a). In this connection, appellants once again posit that the alternative civil penalty contemplated by the CWA/RIWPCA consent decree came within an exception to discharge, since it “is for a fine, penalty or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” Bankruptcy Code § 523(a)(7); 11 U.S.C. § 523(a)(7).
Unlike motions to reaffirm, which may be filed only by debtors,
see supra
note 1, either a debtor or a creditor may commence an adversary proceeding to determine the dischargeability
vel non
of a debt under subsection 523(a).
See Galbreath v. Ill. Dep’t. of Rev. (In re Galbreath),
Although Bankruptcy Code sections 523 and 524 frequently overlap in application, each entails discrete criteria and procedures pertinent to the instant case. The LaRoche reaffirmation agreement purported to serve two distinct ends: (A) LaRoche promised to submit a subsection *576 524(c) motion to “confirm” (viz., reaffirm) the prepetition obligation to reimburse appellants for the “shortfall amount,” presumably because that indebtedness (i) had not yet been converted to a contingent civil “fine” or penalty; (ii) would not qualify for an exception to discharge under subsection 523(a)(7); and (iii) presumptively would be covered by a general discharge in bankruptcy; and (B) the reaffirmation agreement explicitly stipulated that should LaRoche default on his reaffirmation agreement with regard to the “shortfall amount,” the “shortfall amount” would become a nondischargeable civil penalty under subsection 523(a)(7).
Appellants correctly refrain from contending that the first component of the CWA/RIWPCA consent decree (ie., the reaffirmation provision relating to the “shortfall amount”) is enforceable, since the consent decree did not include the requisite clear and conspicuous statement either informing LaRoche that he could rescind the reaffirmation agreement or that reaffirmation was not obligatory under either the Bankruptcy Code or applicable nonbankruptcy law. Moreover, the debt reaffirmation provision contained no representation that reaffirmation would not cause LaRoche “undue hardship.” Accordingly, even if a timely motion to reaffirm the “shortfall amount” indebtedness had been submitted by LaRoche, see supra note 3, it would not have been allowable.
Yet the district court ruled as well that appellants’ right to recover the civil penalty had been forfeited irretrievably— after the bankruptcy court rejected the LaRoche motion to reaffirm — due to either (i) their deliberate refusal to intervene in the reaffirmation proceeding for the purpose of submitting a motion to amend the bankruptcy court order disallowing the reaffirmation, but see supra note 1, and/or (ii) their failure to commence an adversary proceeding to obtain a judicial determination that the contingent civil penalty asserted against LaRoche was nondischargeable under Bankruptcy Code § 523(a)(7). These district court rulings constituted reversible error.
A creditor intent on establishing that its claim is excepted from discharge,
ie.,
nondischargeable under Bankruptcy Code § 523(a)(2), (4), (6) or (15), must commence a timely adversary proceeding to determine dischargeability
vel non;
otherwise, the nondischargeability issue is deemed waived.
See
11 U.S.C. § 523(c)(1) (prescribing that creditor asserting nondischargeability, under Bankruptcy Code § 523(a)(2), (4), (6) or (15),
must
litigate issue in bankruptcy court,
or else
the “debtor shall be discharged from [the] debt”);
In re Walker,
On the other hand, creditors relying upon any of the twelve other exceptions to discharge prescribed in Bankruptcy Code § 523(a), including subsection 523(a)(7),
may
seek a nondischargeability determination in the bankruptcy court,
but are not required to do so. See In re Walker,
At the time the bankruptcy court disallowed LaRoche’s motion to reaffirm the indebtedness relating to the “shortfall amount,” the most extensive
conceivable
scope of its ruling would have been that any attempt to reaffirm the indebtedness for the “shortfall amount” — the one and only issue LaRoche was contractually obligated to raise — was a nullity. Thus, the bankruptcy court ruling stands only for the proposition that the reaffirmation effort undertaken by LaRoche did
not
render the “shortfall amount” indebtedness
de facto
“nondischargeable.”
See In re Ripple,
As appellants correctly point out, the bankruptcy court ruling which disallowed the motion to reaffirm filed by LaRoche never purported to resolve the altogether distinct matter relating to the discharge-ability of the contingent civil penalty under Bankruptcy Code § 523(a)(7). And since LaRoche commenced no adversary proceeding relating to the dischargeability of the contingent civil penalty, appellants were free to forego their own adversary proceeding. Consequently, their decision not to intervene, notwithstanding the bankruptcy court’s invitation, did not forfeit their right to litigate the subsection 523(a)(7) nondischargeability issue at some later date in an appropriate nonbankrupt-cy forum, viz., the United States District Court for the District of Rhode Island, which had retained jurisdiction for the purpose of monitoring the implementation of the CWA/RIWPCA consent decree.
Accordingly, at the present juncture this appeal reduces to two principal issues: (i) whether the CWA/RIWPCA consent decree constituted
either
a binding contractual agreement between the parties
or
a controlling judicial determination — in or by a nonbankruptcy forum possessing concurrent jurisdiction — that the contingent civil penalty imposed upon LaRoche is nondischargeable under Bankruptcy Code § 523(a)(7);
and
(ii) if not, whether the district court ruling that the civil penalty is dischargeable should be affirmed on other grounds apparent from the record on appeal,
see Spenlinhauer v. O’Donnell,
The CWA/RIWPCA consent decree unambiguously expunged whatever prospective legal entitlement LaRoche may have had to receive a discharge from the civil penalty.
6
To be sure, on rare occasions courts have either declined on
*578
public policy grounds to enforce prebank-ruptcy waivers of a discharge in bankruptcy, or have ruled that prebankruptcy waivers must strictly comport with the reaffirmation requirements prescribed by Bankruptcy Code § 524(c).
See, e.g., Hayhoe v. Cole (In re
Cole),
Nevertheless, these decisions invariably involved the four “waivable” exceptions to discharge identified in Bankruptcy Code § 523(a)(2), (4), (6), and (15),
over which the bankruptcy court exercises exclusive jurisdiction. See In re Cole,
Where an asserted exception to discharge relies upon none of the four waiva-ble exceptions to discharge, however, the jurisdiction of the bankruptcy court is concurrent, hence nonexclusive. And since any creditor may opt to litigate, in an appropriate nonbankruptcy forum, its asserted entitlement to an exception from discharge, a debtor’s voluntary waiver of objection to such a dischargeability exception in a nonbankruptcy forum would appear to offend no established policy fostered by the Bankruptcy Code.
See Saler v. Saler (In re Saler),
*579
Furthermore, even assuming LaRoche may have realized some perceived advantage had he litigated the nondischarge-ability issue in the bankruptcy court, presumably he was free in 1991 either to “remove” the nondischargeability action to the bankruptcy court,
see supra
note 5, or to commence an adversary proceeding for a declaratory judgment that the debt did not qualify for subsection 523(a)(7) treatment,
see
Fed. R. Bankr.4007(a). Nevertheless, LaRoche did neither, preferring instead to wait six years before complying with his promise to provide the “expeditious” and good faith reaffirmation agreement required under the 1991 consent decree.
Cf. Richardson v. Chrysler First Fin. Servs. Corp. (In re Richardson),
Accordingly, in the present circumstances we need not consider whether appellants may have been entitled to a non-dischargeability determination with regard to the civil penalty under Bankruptcy Code § 523(a)(7), nor whether any such civil penalty qualified for a nondischarge-ability exception as “compensation for actual pecuniary loss” sustained by appellants. Consequently, we announce no sweeping rule of law regarding the validity of prepetition waivers of discharge, especially since these matters are almost invariably best assessed on a case-by-case basis. Instead, we conclude that because the district court plainly possessed concurrent jurisdiction over the subsection 523(a)(7) dischargeability issue in 1991, when it approved the consent decree, LaRoche cannot now be heard to contend that the general discharge he was granted in 1995 relieved him of liability for the civil penalty-
Accordingly, the district court judgment is vacated and the case is remanded for the entry of judgment for appellants; costs to be borne by appellees.
SO ORDERED.
Notes
. By negative inference, from Federal Rule of Bankruptcy Procedure 4008 ("A motion by the debtor for approval of a reaffirmation agreement shall be filed before or at the hearing.”), only the chapter 7 debtor may request bankruptcy court approval of a reaffirmation agreement.
See BankBoston v. Claflin (In re Claflin),
. The chapter 11 proceeding was converted to chapter 7 on August 1, 1994.
. Although the basis for the denial by the bankruptcy court is not disclosed in the record on appeal, the parties are in agreement that the ruling was grounded in the United States Trustee's objection that the motion to reaffirm was untimely. See Fed. R. Bankr.P. 4008 (stating that hearing on application to reaffirm prepetition debt is to be held within 30 days of order granting or denying general discharge). For present purposes, we accept their characterization.
. These detailed prophylactic measures were designed to protect unwitting debtors from creditors bent on coercing reaffirmations in relation to otherwise dischargeable prepetition debts,
see In re Turner,
Thus, it is immaterial that the CWA/RIWP-CA consent decree did not employ the term "reaffirmation agreement.” Bankruptcy Code § 524 "grew out of a long history of coercive and deceptive actions by creditors to secure reaffirmation of discharged debts. The subsections have been applied strictly by courts to carry out their remedial purposes and to ensure that they are not evaded by agreements which, though not labeled as reaffirmations, have the effect of waiving protections of the discharge.” 4 Collier on Bankruptcy ¶ 524.04, at 524-30 (emphasis added).
. Assuming
arguendo
that LaRoche might have opted to "remove” the case from the nonbankruptcy forum to the bankruptcy court,
see In re Galbreath,
. A consent decree is a hybrid, consisting of a contractual agreement among the parties to the dispute, as well as a judicial imprimitur enforceable through the contempt power.
See Martin
v.
Wilks,
. Since the present case involved no waiver of the general discharge, Bankruptcy Code § 727(10) — which requires that the debtor obtain the bankruptcy court's approval to waive a general discharge during the bankruptcy proceeding, see 11 U.S.C. § 727(10)—is inapposite.
. The
Saler
court aptly noted that even if the provisions of § 523(a) were not so plain. Congress was then considering an amendment to § 524(c), which would explicitly permit debtors to enter into prepetition settlements of these nondischargeability claims; the
Saler
court also cited relevant legislative history relating to the current version of § 524(c), suggesting the same congressional intent.
See In re Saler,
.For present purposes, we need not determine whether LaRoche was either contractually bound or judicially estopped,
e.g.,
by
res judicata,
collateral estoppel, or the “law of the case” doctrine.
See, e.g., In re Saler,