Wilson Road Development Corporation et al v. Fronabarger Concreters, Inc. et al

Filing 420

MEMORANDUM AND ORDER re: 407 MOTION to Alter Judgment Or Amend Judgment filed by Plaintiff Brenda K. Dumey, Plaintiff Daniel E. Dumey, Plaintiff Wilson Road Development Corporation. IT IS HEREBY ORDERED that the movant's motion to alter or amend the judgment [Doc. # 407] is denied. Signed by District Judge Carol E. Jackson on 1/17/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILSON ROAD DEVELOPMENT
CORPORATION, et al.,
Plaintiffs,
vs.
FRONABARGER CONCRETERS, INC.,
et al.,
Defendants.

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Case No. 1:11-CV-84 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiffs, pursuant to Rule
59(e) of the Federal Rules of Civil Procedure, to alter or amend the judgment
entered on September 16, 1016. Defendants have filed a response in opposition
and the issues are fully briefed.
Rule 59(e) allows a district court to correct its own mistakes in the time
period immediately following entry of judgment. Norman v. Ark. Dep’t of Educ., 79
F.3d 748, 750 (8th Cir. 1996) (citing White v. N.H. Dep’t of Emp’t Sec., 455 U.S.
445, 450 (1982)). Rule 59(e) motions serve a limited function of correcting
“manifest errors of law or fact or to present newly discovered evidence.”
Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d
1284, 1286 (8th Cir. 1998) (internal quotation and citations omitted). “Such
motions cannot be used to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised prior to entry of
judgment.” Id.
“To prevail on a Rule 59(e) motion, the movant must show that (1) the
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evidence was discovered after trial; (2) the movant exercised due diligence to
discover the evidence before the end of trial; (3) the evidence is material and not
merely cumulative or impeaching; and (4) a new trial considering the evidence
would probably produce a different result.” United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006).
In support of the instant motion, plaintiffs first argue that they discovered
new evidence after the trial. [Doc. #408 at 3]. Specifically, they claim that they
learned of a settlement agreement between the United States Environmental
Protection Agency (EPA) and defendants Union Electric Company and Citizens
Electric Corporation (the “Utility Defendants”). Plaintiffs assert that this settlement
agreement would have changed the outcome of the Court’s decision. According to
the plaintiffs, the agreement demonstrates that plaintiffs’ “investigative and
monitoring costs,” which they sought to recover under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), were (1)
necessary and (2) consistent with the National Contingency Plan (NCP). Id. at 5–6;
see 42 U.S.C. §§ 9601 et seq.
The settlement agreement, and more accurately, the work plan incorporated
therein,1 acknowledges the potential validity of plaintiffs’ studies, and describes the
sum of the data collected from investigations conducted by various entities in 2005,
2006, 2009, 2011, 2012, and 2014 as “robust.”2 [Doc. #408-1 at 42–43]. It notes
that although no additional “field sampling is anticipated,” that “[t]his will be

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The Remedial Investigation Work Plan prepared by PSC Industrial Outsourcing, LP, is
incorporated into the settlement agreement pursuant to section XXVII. [Doc. #408-1 at 26].
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For example, the 2005 and 2006 reports “were done in coordination with the USEPA.” Id.
at 42. The report lists the plaintiffs’ contested reports as “Limited Soil Investigation Report,
Wilson Road Property by S&ME (April 2011)” and “Limited Soil Investigation Report by
Burnside Environmental Group (September 2012).” Id. at 53.

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confirmed when the data is validated, analyzed and submitted to USEPA as part of
the [remedial investigation].” Id. at 48.3 One of the stated goals of the work plan is
to evaluate the data, which a preliminary review indicated to be “valid and usable.”
Id. at 59. More precisely, the work plan aims to “document that the data collected
for the litigation efforts also conforms to USEPA quality requirements for usability in
the [remedial investigation/ feasibility study] process.” Id. at 43. As such, the work
plan expressly details the extensive “focused quality assurance validation” that will
be required for those reports. Id. at 59–64.
The Court finds that this agreement does not constitute “new evidence,” but
rather, “is merely a newly created opinion based on facts known to or accessible” to
plaintiffs at the time of trial; such a submission “cannot warrant relief under Rule
59(e).” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 935 (8th Cir.
2006); see also Swope v. Siegel-Robert, Inc., 243 F.3d 486 (8th Cir. 2001). The
Court agrees with defendants that this type of expert opinion evidence could have
been presented at trial.
Assuming arguendo that this settlement agreement did constitute “new
evidence” as an admission, it would not sufficiently cure deficiencies in plaintiffs’
case such that the result would differ. See [Doc. #417 at 1]. The Court identified a
number of evidentiary problems with plaintiffs claim for response costs. See [Doc.
#401]. The scientific validity of the S&ME and Burnside Environmental reports was
only one of the problems the Court found.

There were also issues with the

specificity and clarity of invoices, the dearth of witness testimony to explain claimed
expenses, the adequacy of documentation, and the simplicity of a report that

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And should “deficiencies or gaps” after a review of the whole data set, “then sampling
work plans will be prepared to address those needs.” Id. at 43.

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seemed to only confirm what plaintiffs already knew. See id. Moreover, the
plaintiffs overstate the agreement’s validation of the data;4 although the work plan
states that a preliminary review indicated the data might be usable, it does not rise
to the level of proving these were necessary response costs consistent with the
NCP. The remedial investigation work plan does not fully cure nor even address all
of the informational gaps and NCP compliance issues in plaintiffs’ case.
Plaintiffs also argue that the Court made manifest errors of law. [Doc. #408
at 9]. First, citing Young v. United States, 394 F.3d 858 (10th Cir. 2005), plaintiffs
assert that the costs incurred constituted “preliminary efforts to identify the extent
of the PCB contamination.” Id. Accordingly, they argue that the studies did not
solely serve plaintiffs’ litigation efforts. Id. This argument fails. The Court previously
found that “[b]y 2003 it was known that the Dumey property was contaminated
with PCBs from the MEW site,” and that “[t]he evidence shows that S&ME’s
investigation in 2010 sought to prove that same information.” [Doc. #401 at 33].
And, moreover, Burnside Environmental employee Felix Fleshas “testified that
Burnside Environmental’s goal was to determine ‘whether hazardous substances
had been released from the MEW site to the Dumey property,’ not to prove the
scope of the contamination or reveal new contamination.” Id. Accordingly, plaintiff’s
claim is not supported by the record.
Plaintiffs also claim that the Court “mistakenly determined that [p]laintiffs’
response costs were inconsistent with the NCP.” [Doc. # 408 at 10]. The Court

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Additionally, the assertion that “if Plaintiffs had not performed their sampling, Utility
Defendants would have had to incur similar costs developing the data,” finds no support in
the record and is merely speculative. See [Doc. #408 at 8]. Similarly unavailing is plaintiffs’
contention that they “were forced” to hire consultants due to the Utility Defendants’
gamesmanship. This argument does not tend to show that these response costs were
necessary or substantially complied with NCP requirements. See id. at 11–12.

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erred, according to plaintiff, in requiring more than substantial compliance with the
NCP. Id. at 11. But, plaintiffs still do not provide any evidence of compliance with
the NCP. Rather, they argue that Young should not apply; they claim that “other
courts that have specifically addressed the issue of preliminary investigatory and
monitoring costs’ consistency with the NCP are in agreement that those costs are
recoverable irrespective of their consistency with the NCP.” Id. (citing Am. Nat’l
Bank & Trust Co. v. Harcros Chem., Inc., 997 F. Supp. 994 (N.D. Ill. 1998); Gache
v. Town of Harrison, N.Y., 813 F. Supp. 1037 (S.D.N.Y. 1993); City of New York v.
Chem. Waste Disposal Corp., 836 F. Supp. 968 (E.D.N.Y. 1993); Marriott Corp. v.
Simkins Indus., Inc., 825 F. Supp. 1575 (S.D. Fla. 1993)). [Doc. #408 at 10]. As
previously noted, the Court already determined that these were not mere
preliminary investigatory tests, and in fact, were duplicative of “tests previously
conducted by the EPA.” [Doc. #401 at 23].5 Regardless, the Court finds no manifest
error of law in its application of Young.
As a corollary to the above argument, plaintiffs claim that the Court’s finding
of non-compliance with the NCP is based on faulty grounds. [Doc. #408 at 12].
They assert that response costs should have been classified as a “removal action.”
[Doc. #408 at 13]. Plaintiffs claim that as a function of that classification, only the
requirements of 40 C.F.R. § 300.415 apply to this case. And further, plaintiffs
caveat, that the requirements of § 300.415(b)(4)(ii) do not govern preliminary site
evaluations. Id. at 13. Again, an argument resting on the premise that these were
preliminary investigations fails. Thus, as the Court previously reasoned, whether

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This conclusion similarly precluded plaintiffs’ argument, on the basis of Young, that “costs
for initial investigation and monitoring might be compensable if linked to an actual effort to
contain or cleanup an actual or potential release of hazardous substances.” 394 F.3d 858 at
865.

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characterized as a removal or a remedial action, the plaintiffs failed to substantially
comply with the NCP. The Court therefore disagrees with plaintiffs and finds no
manifest errors of law in its prior decision.
Accordingly,
IT IS HEREBY ORDERED that the movant=s motion to alter or amend the
judgment [Doc. # 407] is denied.

______________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of January, 2017.

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