Opinion
Civil No. 3:94-CV-2477-H (SOUTHERN PACIFIC).
June 26, 2003.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs' Southern Pacific Transportation Company and St. Louis Southwestern Railway Company's (collectively referred to herein as "the Railroads") Motion for Rehearing or, in the Alternative, for Reconsideration, filed December 9, 2002; Meridian Housing Co.'s ("Meridian") Response thereto, filed December 30, 2002; and the Railroads' Reply, filed January 14, 2003. On June 19, 2003 the Court entered an Order denying the Railroads' Motion based on Rule 60(b)(6). Since then the Court has recognized that the Railroads' Motion was filed within the 10-day period allotted under Rule 59(e). The Order of June 19, 2003 is therefore VACATED.
Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that the Railroads' Motion for Rehearing or to Reconsider on its CERCLA § 107 claims against Meridian should be DENIED and its Motion to Reconsider on its CERCLA § 113 claims against Meridian should be GRANTED.
I. BACKGROUND
The Railroads assert claims against Meridian for cost recovery and contribution for response costs which they allege were "in excess of Southern Pacific's and SSW's equitable shares" for releases or threatened releases of hazardous substances at the High-Yield site in Commerce, Texas. (First Am. Compl. at 12-15). The Railroads' First Amended Complaint was filed November 1, 2001 seeking cost recovery under CERCLA, § 107(a)(4)(B) and contribution under CERCLA § 113(f) as well as recovery under the Texas Solid Waste Disposal Act and various other claims which will be heard in a later trial.
These claims are asserted in the No. 3:94-CV-2477-H lawsuit by the Railroads against Meridian, Bonny, and Chickasha Cotton Oil Company, and as cross-claims and third-party claims in fifteen other cases associated with the VPG litigation. The Court's decision reached all of these cases.
Meridian and Bonny Corporation filed an Amended Motion for Summary Judgment Against the Railroads on August 21, 2002. On November 22, 2002 this Court denied Bonny Corporation's Summary Judgment claims as moot, pursuant to the Railroads' Agreed Order of Partial Dismissal against Bonny; Meridian's Amended Summary Judgment Motion was granted as to the CERCLA §§ 107 and 113 claims against Meridian.
II. ANALYSIS
A. MOTION FOR RECONSIDERATION
The Federal Rules do not recognize a Motion to Reconsider. The Fifth Circuit, however, provides that such a motion can be considered either as a motion to "alter or amend" under FED. R. Civ. P. 59(e) or as a motion for relief from judgment under Rule 60(b). See Lavespere v. Niagara Machine Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds. Although the Railroads did not label their motion as a Rule 59(e) motion, any motion seeking reconsideration of a district court's judgment within ten days of its entry is considered a Rule 59(e) motion to alter or amend the judgment. Days v. Johnson, 322 F.3d 863, ft. 3, citing Harcon Barge co. v. D G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc).
Rule 59(e) provides: "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of judgment."
Rule 59(e) does not set forth any specific grounds for relief. Ford v. Elsbury, 32 F.3d 931, 937 (5th Cir. 1994). The Railroads appear to be asserting the ground of mistake of law by the Court as to (1) whether they can properly bring a CERCLA § 107 claim against Meridian, and (2) whether the Consent Decree entered into by Meridian and the State of Texas bars their contribution claims under CERCLA § 113.
B. CERCLA § 107 ACTION INAPPROPRIATE
In the November 22, 2002 Order the Court, relying on the Fifth Circuit in Availl Serv., Inc. v. Cooper Indus., Inc., held that because the Railroads were found liable as owners of a CERCLA facility in the Court's 1997 Order, they cannot pursue a § 107 action against Meridian, but must "pursue a contribution action [under CERCLA § 113 instead." Availl, 263 F.3d 134, 137 (2001) (holding that only "innocent parties" can file CERCLA § 107(a) suits).
The Railroads claim that a more recent Fifth Circuit opinion, Availl Servs. Inc., v. Cooper Indus., Inc., 312 F.3d 677 (2002) (Availl II) established their rights to bring a § 107 suit, even as PRP/liable parties. Availl II did no such thing. In fact, as detailed in the November 22 Order, in Availl lithe Fifth Circuit explicitly declined to decide the question of whether a PRP can bring a § 107 claim for contribution. See id. at ft. 15 ("The parties dispute whether Availl's pleadings seek contribution under the § 107 implied action as well as under § 113(f)(1). It is unnecessary to reach this question or to opine more concretely on the theoretical problems surrounding this `overlap' of remedies.")
The question in Avail II was whether CERCLA 113(f)(1) allows a PRP to seek contribution from other PRPs for environmental cleanup costs when no civil action has been brought under CERCLA §§ 9606, 9607(a), 9613(f)(1)(2000). The Circuit held that CERCLA does allow such actions. Availl II, 312 F.3d at 679.
Furthermore, in Availl II the Circuit clearly points to § 113 as the proper claim for one PRP to bring against another. See id. at 681-684. ("Section 113(f) was born as the `machinery' to govern and regulate actions for contribution, `providing the details and explicit recognition that were missing from the text of § 107'" quoting Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1302 (9th Cir. 1997)). The Court DENIES the Railroads' Motion for Rehearing or Reconsideration on the matter of its CERCLA § 107 claims against Meridian.
C. SEPTEMBER 7, 2000 CONSENT DECREE
On June 5, 2000 the State of Texas filed a complaint pursuant to CERCLA §§ 107 and 1 13 and Section 261.191 of the Texas Health and Safety Code against Bonny Corporation, Inc., Meridian Housing Company f/k/a Universal Chemical Company, Michael D. Smith and H. Dean Smith. This complaint related to costs incurred by the Texas Natural Resource Conservation Commission ("TNRCC") at the former Hi-Yield Superfund Site in Commerce, Texas, and natural resource damages associated with the Site. (Consent Decree at 1).
On September 7, 2000 the State and the above-named Defendants entered into a Consent Decree providing reimbursement by the Defendants to the State for response actions in connection with the release or threatened release of hazardous substances at the Site and for associated natural resource damages. (Consent Decree at 1-2).
Under CERCLA § 113(f)(2), 42 U.S.C. § 9613(f)(2) and the laws of the State of Texas, including the Texas Solid Waste Disposal Act ("TSWDA") TEX. HEALTH SAFETY CODE ANN. § 361 et seq., the Settling Defendants to a Consent Decree are entitled to protection from contribution action and claims for matters addressed in the Consent Decree.
The Consent Decree sets forth the "matters addressed" by the Decree as follows:
(i) all response actions (and associated costs) taken by the State of Texas, VPG, or by Settling Defendants at or in connection with the Site and
(ii) all natural resource damages associated with the Site.
Meridian, in its Amended Motion for Summary Judgment, filed August 21, 2002; in its Reply, filed September 17, 2002; and in its Response to the Railroads' Motion for Reconsideration, filed December 30, 2002, argues that the September 7, 2000 Consent Decree protects it from all related contribution claims in connection with cleanup costs of the Hi-Yield Site. It provides no evidence, however, that the Railroads' claims for contribution are related to "matters addressed" by the Consent Decree.
Meridian also points to a Consent Decree between the State and VPG dated August 1, 2001, but gives no explanation as to why it should apply to the Railroads' claims against them. In its Order granting summary judgment against the Railroads the Court did not rely on this Consent Decree. (November 22, 2002 Order at 10).
The Railroads, in their Response to Meridian's Motion for Summary Judgment, argue that their claims are not barred by the consent decree because the Railroads' claims are not "matters addressed" by the Consent Decree. They raise several issues regarding the property concerned, the type of activity undertaken, and the type of costs they incurred.
The Court's Memorandum Opinion and Order of August 7, 1997 found the entire Commerce Site, including the Railroads' property to be one CERCLA "facility" based on EPA conclusions. (1997 Order at 10). Thus, any argument that costs related to the Railroads' property are separate from the Hi-Yield facility as a whole is undermined. In their Motion for Reconsideration the Railroads again assert that their remediation costs were for their own property only-an argument which is moot in light of the Court's 1997 findings.
In addition, the Railroads attempt to draw a distinction between "response costs" and "remediation." They argue that their costs were related to "remediation" and not "response." Under CERCLA, however, the definition of "respond" or "response" includes: "remove, removal, remedy, and remedial action." 42 U.S.C. § 9601(25). Thus, the distinction which the Railroads try to draw is not present in the statute.
Finally, however, in their Reply, filed January 14, 2003, the Railroads argue that their costs of remediation were taken as a part of a separate consent decree. (Reply at 4-5). They argue that because the remediation actions which they took were not a recovery by the State of costs incurred by the State, were not in relation to costs expended by VPG or the Settling Defendants, and were not in relation to natural resource damage, the Consent Decree does not bar them from seeking contribution from Meridian for these costs. They provide no evidence on these matters for the Court to consider in either their Response to Meridian's Motion for Summary Judgment, nor in their Motion for Reconsideration, nor in their Reply associated with that Motion. They argue that as the moving party Meridian has the burden to show that their costs are "matters addressed" in the Consent Decree.
The Court agrees. Meridian, as the moving party for summary judgment, has the burden of demonstrating "the absence of a genuine issue of material fact" regarding the Railroads' CERCLA claims against it. See Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998). It has not provided, in either its Motion for Summary Judgment or its Reply to the Railroads' Response, or in its Response to the Railroads' Motion for Rehearing or Reconsideration any evidence that the Railroads' claims for contribution for its expenditures for remediation of the Hi-Yield site are barred by the Consent Decree between the Settling Defendants and the State of Texas. There is no evidence in the record that the Railroads' expenditures were either related to response actions or costs incurred by the State of Texas, VPG, or the Settling Defendants, nor is there evidence that the Railroads' costs were for natural resource damages to the Site. If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
The Railroads' Motion for Reconsideration in the matter of its § 113 CERCLA claims against Meridian is GRANTED.
III. CONCLUSION
For the reasons stated above, the Court DENIES the Railroads' Motion for Rehearing or Reconsideration on their claims against Meridian under CERCLA § 107 and GRANTS their Motion for Reconsideration on their contribution claims under CERCLA § 113.
SO ORDERED.