LWD PRP Group v. ACF Industries, LLC et al

Filing 1164

MEMORANDUM OPINION & ORDER granting in part and denying in part 1138 Motion for Reconsideration and Motion for Leave to File a Fourth Amended Complaint; see order for specifics. Signed by Judge Greg N. Stivers on 6/3/2015. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:12-CV-00127-GNS-HBB

LWD PRP GROUP

PLAINTIFF

V.

ACF INDUSTRIES LLC, et al.
DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Reconsideration and for Leave to
File an Amended Complaint, or Alternatively, Interlocutory Appeal. (Pl.’s Mot. for Recons. and
for Leave to File an Am. Compl., or Alternatively, Interlocutory Appeal [hereinafter Pl.’s Mot.
for Recons., DN 1138) The motion has been fully briefed and is ripe for decision. For the
reasons stated below, the Court GRANTS the motion in part and DENIES the motion in part.
I. BACKGROUND
The LWD Incinerator Site is part of the LWD, Inc. Superfund site in Calvert City,
Kentucky, which functioned as a hazardous waste incinerator from the 1970s-2004. LWD PRP
Group v. Alcan Corp. et al., No. 14-5730, at *6 (6th Cir. Jan. 14, 2015) (unpublished) (also DN
1106). It was subsequently abandoned. Id. At the request of the Kentucky Department of
Environmental Protection, the United States Environmental Protection Agency (“EPA”)
conducted initial waste removal activities. Id.

The EPA ultimately identified fifty-eight potentially responsible parties (“PRPs”). Id.
These PRPs entered into an Administrative Settlement Agreement and Order on Consent for
Removal Action (“ASAOCRA”) with the EPA on March 1, 2007. Id. The PRPs engaged in
certain removal activities at the LWD Incinerator Site pursuant to the ASAOCRA, and further
agreed in the ASAOCRA to compensate the EPA for future response costs. Id. On September 29,
2009, the EPA issued a notice of completion of the removal activities. Id. at 6-7.
Plaintiff in this action is an association composed of some of the fifty-eight PRPs that
entered into the ASAOCRA with the EPA. Id. at 6. Plaintiff filed its Complaint on August 31,
2012 (Compl., DN 1); its First Amended Complaint on January 30, 2013 (First Am. Compl., DN
581); its Second Amended Complaint on March 29, 2013 (Second Am. Compl., DN 758), and;
its Third Amended Complaint on February 27, 2014 (Third Am. Compl., DN 985). Between its
Second and Third Amended Complaints, Plaintiff entered into two “Settlement Agreement for
Recovery of Past Response Costs” agreements with the EPA. (Third Am. Compl. 8 ). The first of
these agreements (“EPA Past Costs AOC I”) was finalized in April 2013, and on August 27,
2013, Plaintiff paid the EPA $4,144,120 pursuant to that agreement. (Third Am. Compl. 8). The
second of these agreements (“EPA Past Costs AOC II”) requires Plaintiff to pay the EPA an
additional $667,845 plus interest from the effective date of the EPA Past Costs AOC II to the
date of actual payment. (Third Am. Compl. 8). Additionally, since September 2009, Plaintiff has
incurred an estimated $625,000 in voluntary response costs regarding activities by the Kentucky
Department of Environmental Protection at the LWD Incinerator Site. (Third Am. Compl. 9).
In its Third Amended Complaint, Plaintiff seeks: 1) cost recovery pursuant to 42 U.S.C. §
9607(a)(4) (section 107(a)(4) of the Comprehensive Environmental Response, Compensation,
and Liability Act (“CERCLA”)); 2) contribution pursuant to 42 U.S.C. § 9613(f)(1), (f)(3)(B)

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(section 113(f)(1), (f)(3)(B) of CERCLA), and; 3) declaratory relief pursuant to 42 U.S.C. §
9613(g)(2) (section 113(g)(2) of CERCLA). (Third Am. Compl. ¶¶ 671-701).
Following the filing of the Second Amended Complaint, Defendant Dresser-Rand
Company filed a Motion to Dismiss. (Def.’s Mot. to Dismiss Pursuant to Rule 12(b)(6), DN
958). After the Third Amended Complaint was allowed, various Defendants filed motions to
dismiss certain claims in the Third Amended Complaint. (Defs.’ Mot. to Dismiss Pursuant to
Rule 12(b)(6), DN 1002; Def.’s Mot. to Dismiss, DN 1031). On March 13, 2015, the Court
granted the motions to dismiss and dismissed the Third Amended Complaint in its entirety.
(Mem. Op. & Order, DN 1137). Three days later, Plaintiff filed the instant motion seeking
reconsideration. (Pl.’s Mot. for Recons., DN 1138).
II. JURISDICTION
This case involves the liability of and contribution by PRPs pursuant to CERCLA. This
Court has original jurisdiction over “all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. As to Plaintiff’s state law claims, this Court has
jurisdiction over those claims as the Court has “supplemental jurisdiction over all other claims
that are so related to claims in the action within [the Court’s] original jurisdiction that they form
part of the same case or controversy under Article III of the United States Constitution.” 28
U.S.C. § 1367(a).
III. STANDARD OF REVIEW
Motions for reconsideration are analogous to a motion to alter or amend a judgment
pursuant to Federal Rule of Civil Procedure 59(e). Cobb v. City of Detroit Common Council, 897
F.2d 529, 1990 WL 25055, at *1 (6th Cir. 1990) (unpublished table decision) (citations omitted).
“[A] court may alter the judgment based on: (1) a clear error of law; (2) newly discovered

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evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest
injustice.” Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010)
(internal quotation marks omitted) (citation omitted).
Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading
only with opposing party’s written consent or the court’s leave. The Court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “[M]otions to amend are “frequently
filed and, generally speaking, ‘freely’ allowed.” Moncier v. Jones, 557 F. App’x 407, 410 (6th
Cir. 2014) (quoting Leisure Caviar, LLC, 616 F.3d at 615) (internal quotation marks omitted).
District Courts may certify an order for interlocutory appeal that would not otherwise be
appealable if “the order involves a controlling question of law as to which there is a substantial
ground for difference of opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). As the legislative
history notes, “section 1292(b) should be sparingly applied. It is to be used only in exceptional
cases where an intermediate appeal may avoid protracted and expensive litigation and is not
intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary
litigation.” Cardwell v. Chesapeake & Ohio Ry. Co., 504 F.2d 444, 446 (6th Cir. 1974) (citation
omitted).
IV. DISCUSSION
In its March 13, 2015 Memorandum Opinion and Order, this Court relied primarily on
LWD PRP Group v. Alcan Corp. et al., No. 14-5730 (6th Cir. Jan. 14, 2015) (unpublished).
(Mem. Op. and Order, DN 1137). Upon further review of that case and Plaintiff’s motion, the
Court has determined that the holding of the Sixth Circuit applied only to recovery sought as to

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the ASAOCRA only—not to recovery sought as to EPA Past Costs AOC I, EPA Past Costs AOC
II, or money owed to the Kentucky Department of Environmental Protection.
Of the Defendants, only Defendant Dresser-Rand Company makes the argument that the
Court’s analysis was correct in its entirety for the reasons set out by the Court. (Def.’s Resp. to
Pl.’s Mot. for Recons., DN 1138). It does not, however, offer any explanation as to why the costs
separate from those associated with the ASAOCRA are similarly situated despite the fact that
they arose three years or more after the signing of the ASAOCRA and are expenses incurred for
activities separate from those covered by the ASAOCRA.
The remaining Defendants who joined in a joint response argue that the Court correctly
dismissed the entire Third Amended Complaint on grounds other than those addressed by the
Court. (Defs.’ Resp. in Opp’n to Pl.’s Mot. for Recons., DN 1143). The Court will not entertain
those arguments at this time, as they were not relied upon in its March 13, 2015, Memorandum
Opinion and Order. Defendants may raise those grounds in support of a timely motion for
summary judgment.
Accordingly, the Court finds that there is a need to prevent manifest injustice, which
warrants granting Plaintiff’s motion for reconsideration and granting leave to file its Fourth
Amended Complaint.
V. CONCLUSION
For the forgoing reasons, IT IS HEREBY ORDERED THAT Plaintiff’s Motion for
Reconsideration and for Leave to File an Amended Complaint, or Alternatively, Interlocutory
Appeal (Pl.’s Mot. for Recons., DN 1138) is GRANTED IN PART as to Plaintiff’s request to
file an amended complaint. To the extent that Plaintiffs seek interlocutory appeal, its motion is

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DENIED IN PART AS MOOT. The Clerk SHALL file Plaintiff’s tendered Fourth Amended
Complaint (Fourth Am. Compl., DN 1138-1) in the docket.

June 3, 2015

cc:

counsel of record

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