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Commonwealth of Pennsylvania v. Beazer East

September 28, 2011

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION,
PLAINTIFF,
v.
BEAZER EAST, INC., BOLDAN, INC., CARNEGIE MELLON UNIVERSITY, CBS CORPORATION, AND EXXON MOBIL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lenihan

Re: ECF No. 100

MEMORANDUM OPINION

Presently before the Court is the Motion for Reconsideration pursuant to Fed. R. Civ. P. 59(e) or, in the alternative, for Certification for Appeal pursuant to Fed. R. Civ. P. 54(b) filed by Plaintiff Pennsylvania Department of Environmental Protection ("DEP") at ECF No. 100. For the reasons discussed below, DEP‟s Motion for Reconsideration will be denied, and its Motion for Certification for Appeal will be denied without prejudice.

DEP filed this civil action pursuant to § 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675, ("CERCLA"), 42 U.S.C. § 9607(a) against Defendants Carnegie Mellon University ("CMU") CBS Corporation ("CBS"), Exxon Mobil Corporation ("Exxon"), Beazer East, Inc. ("Beazer"), and Boldan, Inc. ("Boldan"). DEP seeks recovery from Defendants of response costs and interest incurred by Plaintiff in responding to the release or threatened release from the former Boldan Landfill ("Site") located in Penn Township, Westmoreland County, Pennsylvania.

Defendants CMU, CBS, and Exxon filed Motions to Dismiss DEP‟s Amended Complaint which were granted by this Court on November 3, 2010 at ECF Nos. 88 & 89. The Court dismissed with prejudice DEP‟s Amended Complaint against these moving Defendants as time barred by the applicable statute of limitations under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq. ("CERCLA"). DEP now moves for reconsideration of this Order, or in the alternative, certification for appeal pursuant to Fed. R. Civ. P. 54(b).

Motion for Reconsideration

The United States Court of Appeals for the Third Circuit has instructed that "[t]he purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (citation omitted). Moreover, evidence that is not newly discovered may not be submitted in support of a motion for reconsideration. Id. at 909 (citing DeLong Corp. v. Raymond Int'l Inc., 622 F.2d 1135, 1139-40 (3d Cir. 1980)). Therefore, motions for reconsideration will be granted only where a party demonstrates: "(1) an intervening change in the law has occurred, (2) new evidence not previously available has emerged, or (3) the need to correct a clear error of law or prevent a manifest injustice arises." D'Angio v. Borough of Nescopeck, 56F. Supp. 2d 502, 504 (M.D. Pa. 1999) (citing North River Ins. Co. v. CKGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Granting a motion for reconsideration is an extraordinary remedy, and therefore, is done sparingly. Id. at 504 (citing NL Indus. v. Commercial Union Ins. Co., 935 F. Supp. 513 (D.N.J. 1996) (other citation omitted)).*fn1

DEP did not raise this argument in its oppositions to the two rounds of motions to dismiss the original and amended complaints filed by CBS, CMU, and Exxon. Instead, DEP argues that the Court should have somehow gleaned this argument from its Amended Complaint even though DEP never raised the argument in any of its briefings to the Court. It is not the province of the Court to raise arguments on behalf of litigants represented by counsel. The statute of limitations has been squarely before the Court in both rounds of motions to dismiss. Yet, DEP‟s alleged theory of consistency waiver is before the Court for the first time. In its responsive arguments to the motions to dismiss, DEP did not argue consistency waiver in the alternative in the event that the Court ruled that the underlying response action was a removal. As discussed above, "[t]he purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp., 779 F.2d at 909. Therefore, "[a] motion for reconsideration is not an opportunity for a party to present previously available evidence or new arguments." Federico v. Charterers Mut. Assurance Ass'n, LTD., 158 F. Supp.2d 565, 577-78 (E.D. Pa. 2001) (quoting Fed. Deposit Ins. Corp. v. Parkway Exec. Office Ctr., Civ. A. 96-121, Civ. A. 96-122, 1997 WL 611674, at *1 (E.D. Pa. Sept. 24, 1997) (citing that the Court committed legal error rather than "mistake, inadvertence, surprise, or excusable neglect," the function of DEP‟s motion is more closely related to Rule 59(e). See United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003).

Corrigan v. Methodist Hosp., 885 F. Supp. 127, 127 (E.D. Pa. 1995)). "A motion for reconsideration may not be used to present a new legal theory for the first time or to raise new arguments that could have been made in support of the original motion." McNeal v. Maritank Philadephia, Inc., No. Civ. A. 97-0890, 1999 WL 80268, at *4 (E.D. Pa. Jan. 29, 1999). Consequently, the Court is precluded from considering DEP‟s new argument.

In addition, it is clear that DEP‟s new argument is without merit because a consistency waiver pursuant to section 104(c)(1)(C) of CERCLA is applicable only to the expenditure of funds from the Superfund. Here, the allegations of the Amended Complaint indicate that Pennsylvania state funds were used in the cleanup. Likewise, there are no averments that the President, acting through the United States Environmental Protection Agency (or any other federal government authority) acted to grant a consistency waiver. DEP states that "[w]hile the Amended Complaint does not specify that the disbursement was made as the result of a consistency waiver, such is a reasonable inference given the lack of emergency conditions . . . ." (DEP‟s Memorandum in Support of Motion for Reconsideration, ECF No. 101 at 9-10.) DEP‟s statement flies in the face of the Halloran Affidavit, attached and incorporated by reference into the Amended Complaint. The Halloran Affidavit indicates that DEP exceeded $2 million in costs partly because of "an emergency" and "an immediate risk to public health." (ECF No. 54-1 at 6.)*fn2 The Court is troubled by DEP‟s inconsistent submissions to this Court.

Clearly, any amendment by DEP to allege a consistency waiver would be futile, and the Court must deny its request for leave to amend the complaint a second time. See Great Western

Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174-75 (3d Cir. 2010); Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

Motion for Certification for Appeal

Federal Rule of Civil Procedure 54(b) provides in relevant ...


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