United States v. Amtreco, Inc.

858 F. Supp. 1189, 25 Envtl. L. Rep. (Envtl. Law Inst.) 20139, 39 ERC (BNA) 1382, 1994 U.S. Dist. LEXIS 9984, 1994 WL 378521
District Court, M.D. Georgia·Decided July 1, 1994·No. Civ. No. 90-31-VAL(WDO)·Published·Cited by 1 cases

Opinion

ORDER

OWENS, Chief Judge.

Before the court are defendants’ motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and defendants’ motion for relief from judgment under Rules 60(a) and 60(b)(6) of the Federal Rules of Civil Procedure. After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court issues the following order.

DISCUSSION

A motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure may be granted on one of three grounds: “An intervening change in controlling law, the availability of new evidence, and the need to correct clear error or prevent manifest injustice.” Estate of Pideock v. Sunnyland America, Inc., 726 F.Supp. 1322, 1333 (S.D.Ga.1989); see also Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss.1990); Natural Resources Defense Council v. Environmental Protection Agency, 705 F.Supp. 698, 702 (D.D.C.1989). “As a general rule, a motion to amend ... should not be ‘employed to introduce evidence that was available at trial but was not proffered, to relitigate old issues, to advance new theories, or to secure a rehearing on the merits.’ ” Estate of Pidcock, 726 F.Supp. at 1334 (quoting Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir.1986)). Defendants do not contend that the March 22, 1994 order of this court should be set aside on the basis of new evidence or a change in controlling law. Instead, defendants assert that the court should set aside its prior order on the basis of clear error of law. In this regard, other courts have cautioned “that any litigant considering bringing a motion to [alter or amend judgment] upon that ground should evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant.” Atkins, 130 F.R.D. at 626.

Defendants contend that the court should set aside its March 22, 1994 order, 846 F.Supp. 1578, for three reasons: (1) The court failed to address the issue of the proper allocation of liability among defendants; (2) the court failed to consider the owner’s response to the Environmental Protection Agency’s (“EPA”) administrative order; and (3) genuine issues of material fact exist concerning the reasonableness and necessity of costs claimed by the EPA. Further, defendants assert that the court should set aside its December 22, 1992 order granting plaintiffs motion for partial summary judgment on liability because genuine issues of material fact exist concerning James L. Dickerson, Sr.’s alleged personal liability, 809 F.Supp. 959.

I. Allocation of Liability

On August 13, 1992, the United States filed a motion for partial summary judgment regarding defendants’ liability for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, (“CERCLA”) 42 U.S.C. § 9601 et seq. In the motion, the United States requested “that the court find that James L. Dickerson and Amtreco Inc. are liable parties pursuant to Section 107(a) by virtue of [1191]*1191being “owners” and/or “operators” of the Dickerson Site, and such, they are jointly and severally liable for all response costs not inconsistent with the NCP.” (Pl.’s Mot. Part.Summ.J. at 2) (emphasis added). On December 22, 1992, this court granted the United States’ motion for partial summary-judgment regarding CERCLA liability. Although the court failed to specifically recite that defendants are jointly and severally ha-ble, implicit in the granting of the United States’ motion is that determination. Accordingly, defendants’ motion to alter or amend judgment on the basis that the court has failed to allocate liability, is DENIED.

II. Owner’s Response

Defendants contend that their motion to alter or amend judgment should be granted because the court failed to consider the owner’s response to the EPA’s administrative order. Previously, this court held that should it be determined that defendants’ proposed response “was a proper response, the EPA potentially could only recover the cost that [defendants] would have otherwise incurred in implementing their plan.” United States v. Dickerson, 660 F.Supp. 227, 233 (M.D.Ga.1987); see also 42 U.S.C. § 9604(a)(1)(A).1 The court, however, in its March 22, 1994 order, failed to address the issue of whether the EPA properly rejected defendants’ proposed response. Accordingly, defendants’ motion to alter or amend judgment is GRANTED as to defendants’ claim that the court failed to consider the owner’s response to the EPA’s administrative order.

III. Reasonableness of Costs

Defendants contend that this court’s March 22, 1994 order should be set aside because genuine issues of material fact exist concerning the reasonableness and necessity of costs claimed by the EPA. In United States v. Hardage, 982 F.2d 1436 (10th Cir. 1992), the United States Court of Appeals for the Tenth Circuit, in addressing this same argument, held:

CERCLA ... is a strict liability statute. The only way a responsible party can escape liability for the government’s cost incurred at a particular site is to demonstrate that the government’s response actions ... are inconsistent with the NCP. [The defendant] contends that a challenge that an individual cost is excessive or unreasonable demonstrates inconsistency with the NCP. However, CERCLA ... does not limit the government’s recovery to “all reasonable costs;” rather, it permits the government to recover “all costs of removal or remedial action incurred ... not inconsistent with the [NCP].” Costs, by themselves, cannot be inconsistent with the NCP. Only response actions — i.e., removal or remedial actions — can be inconsistent with the NCP, which can be demonstrated by a showing that the government’s choice of response action was arbitrary and capricious. As long as the government’s choice of response action is not inconsistent with the NCP, its costs are presumed to be reasonable and therefore recoverable.

Hardage, 982 F.2d at 1443 (emphasis in original).

In the March 22, 1994 order, this court, relying on the above language in Hardage, held that “defendants have failed to raise a genuine issue of material fact as to whether the response chosen by the United States was arbitrary and capricious.” United States v. Amtreco, Inc., 846 F.Supp. 1578, 1584 (M.D.Ga.1994). As the court finds no basis for revisiting that determination, the costs incurred by the EPA “are presumed to be reasonable and therefore recoverable.” Hardage, 982 F.2d at 1443. Accordingly, defendants’ motion to alter or amend judg[1192]

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Amtreco, Inc., 858 F. Supp. 1189, 25 Envtl. L. Rep. (Envtl. Law Inst.) 20139, 39 ERC (BNA) 1382, 1994 U.S. Dist. LEXIS 9984, 1994 WL 378521 (M.D. Ga. 1994).

858 F. Supp. 1189 (United States v. Amtreco, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In Re Novak
223 B.R. 363 (M.D. Florida, 1997)