United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
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.
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
prevail on a Rule 59(e) motion, the movant must show that (1)
the 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).
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
settlement agreement, and more accurately, the work plan
incorporated therein,  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.” [Doc. #408-1 at 42-43]. It notes that
although no additional “field sampling is anticipated,
” that “[t]his will be confirmed when the data is
validated, analyzed and submitted to USEPA as part of the
[remedial investigation].” Id. at
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.
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.
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 seemed to
only confirm what plaintiffs already knew. See Id.
Moreover, the plaintiffs overstate the agreement's
validation of the data; 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
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.
also claim that the Court “mistakenly determined that
[p]laintiffs' response costs were inconsistent with the
NCP.” [Doc. # 408 at 10]. The Court 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]. Regardless, the Court finds no
manifest error of law in its application of Young.
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
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.
IT IS HEREBY ORDERED that the movant's
motion to alter or amend the judgment [Doc. # 407] is