Wolin, District Judge
Currently pending before the Court are three motions for reconsideration of the Court's Opinion -- Hatco Corp. v. W.R. Grace & Co., 836 F. Supp. 1049 (D.N.J. 1993) (the "Apportionment Opinion"), and the related Order dated November 1, 1993. Plaintiff Hatco has filed two motions, one concerning Hatco's contribution claim under the New Jersey Spill Act, and the other regarding paragraph 4 of the Order. Defendant Grace has also filed a motion for reconsideration, taking issue with various aspects of the apportionment scheme set forth in the Apportionment Opinion. The Court has reviewed the parties written submissions and has considered the motions pursuant to Federal Rule of Civil Procedure 78.
Before turning to the parties' motions, it serves to note that the Court has not been idle during the months intervening the issuance of the Apportionment Opinion and the current consideration of the pending motions. During this time, the Court thrice amended the 110-page Apportionment Opinion and also issued a related 125-page Opinion, dated March 1, 1994 (the "Allocation Opinion"), in which the Court allocated between the parties costs incurred to remediate the environmental contamination at the Fords property, in accordance with the apportionment scheme predominantly established in the Apportionment Opinion. As a consequence, the Court has, without intention, already addressed certain of the issues raised in the pending motions.
A. Standard of Review
A motion for reconsideration, brought pursuant to Federal Rule of Civil Procedure 12(I), may address only factual and legal matters that the Court may have overlooked. This statement gives rise to two limitations that control the Court's review.
First, a motion for reconsideration will only succeed where "dispositive factual matters or controlling decisions of law" were presented to the Court but not considered. Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987). A motion for reconsideration is not an appeal. It is improper on a motion for reconsideration to "'ask the Court to rethink what [it] had already thought through -- rightly or wrongly.'" Oritani Sav. & Loan Ass'n v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J.) (quoting Above the Belt v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Thus, a party "must show more than a disagreement with the court's decision." Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991). A mere "recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989).
Instead, the moving party is obligated to point out controlling facts or dispositive case law that the Court necessarily overlooked in rendering its decision. Very often, this obligation requires the moving party to produce "newly discovered, non-cumulative evidence." Oritani S & L, 744 F. Supp. at 1314 (citing Johnson v. Township of Bensalem, 609 F. Supp. 1340, 1342 n.1 (E.D. Pa. 1985)).
Second, the rule "does not contemplate a Court looking to matters which were not originally presented." Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). Indeed, there is a strong policy against entertaining reconsideration motions based on evidence that was readily available at the time that the original motion was heard, but, for whatever reasons, was not presented to the Court. As a result, the court may, in its discretion, refuse to consider such evidence. Florham Park Chevron, 680 F. Supp. at 162-63.
It should be noted, however, that if a court finds that its consideration of evidence offered for the first time on a motion for reargument may lead to a different result than was reached originally, the court has discretion to consider it. Panna, 760 F. Supp. at 435. In its discretion, the Court may grant a motion for reconsideration where the record was inadequately developed on a particular issue. New York Guardian Mortgagee Corp. v. Cleland, 473 F. Supp. 409, 422 (S.D.N.Y. 1979).
But, the Court is also aware that relief under Rule 121 should only be granted "very sparingly." Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986). Moreover, Local Rule 12(I) obligates the moving party to concisely specify the suspect aspects of a court's opinion with all due particularity. It is with these standards in mind that the Court reviews the parties' arguments.
B. Hatco's Motion Regarding the Spill Act
In the Apportionment Opinion, the Court addressed Hatco's claim for contribution under the Spill Act and concluded that compliance with the National Contingency Plan ("NCP") was a condition for recovery under the Spill Act. See Allocation Opinion, 836 F. Supp. at 1093. In one of its pending motions, Hatco has urged the Court to reconsider whether NCP compliance is an element of a cause of action for contribution under the Spill Act.
The Court will not reexamine the issue here and refers the parties to the Allocation Opinion, wherein the Court concluded that Hatco substantially complied with the relevant NCP provisions while undertaking the various remediation projects which to date have been the subject of the pending cost recovery action. See Allocation Opinion, Conclusions of Law ("COL") PP 61-74. Given this determination, the Court concluded that Hatco could recover under the Spill Act regardless of whether NCP compliance is a requirement under the Spill Act. Id. at COL P 87. Accordingly, the Court advised that its earlier assessment of the NCP's relevance to the Spill Act should be viewed as nonbinding and thus expressly left to another day -- and to another court -- the question of whether NCP compliance is prerequisite for recovery under the Spill Act. Id.
B. Hatco's Motion Regarding Paragraph 4 of the Order
In formulating the apportionment scheme set forth in the Apportionment Opinion, the Court recognized that much of the remediation at the Fords property may be driven by PCB contamination, a majority of which has been attributed to Grace. The Court expressed concern that Hatco might, as a consequence, enjoy a "free ride" when other contaminants (BNs and VOCs) for which Hatco has been assigned a comparatively greater portion of responsibility, are removed along with the PCBs.
To settle this concern, the Court initially determined that
in areas of that contain PCBs and other categories of contaminants . . . Grace will be able to deduct Hatco's share of the response costs that would have been incurred if no PCBs were present. Otherwise, Hatco would bear no financial responsibility for the release of chemicals during its fourteen years of operation.
See Apportionment Opinion, COL P 38 n.29 (language existing prior to Order dated February 18, 1994, amending the Apportionment Opinion -- specifically footnote 29). Paragraph Four of the Order ("Paragraph Four") tracks the language of the earlier footnote 29. On its pending motion, Hatco asserts that the language of Paragraph Four is too general, which consequently leaves the Court's intentions subject to various and inaccurate interpretations.
The Court speculates that Hatco's fears have been assuaged by the language of the revised footnote 29, which reads in pertinent part: "In areas that contain PCBs and other categories of contaminants, Grace will be able to deduct Hatco's share of the response costs that have or would be incurred in excess of the response cost allocated to PCB removal." Apportionment Opinion, 836 F. Supp. at 1089 n.29.
The Court will not delve into the hypothetical problems proffered by Hatco on the pending motion, but again refers the parties to the Allocation Opinion, in which the Court undertook to explain the revised footnote 29. See Allocation Opinion, COL P 142. Given the revision and the subsequent explanation, the Court is satisfied that its ruling and apportionment scheme may be readily applied to allocate response costs without engendering an inordinate amount of confusion or controversy.
The Court recognizes that there may potentially exist a set of circumstances or conditions at the Fords property that may not conform to the current apportionment and allocation model. However, such circumstances have not been presented for consideration and the Court will not address such potentialities here. Paragraph Four has been clarified, but for purposes of uniformity, the Court will amend the language of Paragraph Four so it tracks the language of the revised footnote 29.
C. Grace's Motion
Grace asserts that the Court's apportionment scheme suffers from several inconsistencies and factual errors, specifically: (1) the Court overlooked and did not factor the benefits deriving from Grace's 1971 pond elimination program, and failed to recognize that the ponds occupied only a fraction of the ponds region (AEC 2); (2) the Court erred in allocating to Grace responsibility for the presence and clean-up of certain contaminants -- benzene, TCA, TCA daughter products, xylene and metals; and (3) the Court failed to allocate to Hatco the costs of PCB remediation in Well 17S.
Given the applicable standard of review for reconsideration motions, the Court is not satisfied that certain of the issues raised by Grace are appropriate matters for reconsideration. Federal Rule of Civil Procedure 12(I) does not serve as vehicle by which a dissatisfied party may press a court to justify or explain a decision. However, the Court also acknowledges that some of Grace's arguments have merit and as a consequence, the Court may be inclined to clarify or modify the Apportionment Opinion if necessary.
1. The Ponds and the Ponds Region
In its brief supporting the pending motion, Grace asserts that the Court incorrectly apportioned liability in the ponds area (1) by failing to account for the 1971 pond elimination program and (2) by applying an inappropriate formula for apportionment of PCB contamination in both the areas near the ponds and in the entire ponds region (AEC 2).
Grace asserts that the Court incorrectly applied a full use/partial use analysis to the ponds area because such a formula allegedly fails to account for the pond elimination program. In short, Grace contends that the pond elimination program ended its full use of the ponds, leaving behind only identifiable pockets of contaminated soil. Thus, the balance of the subsurface soil should have been apportioned by time-of-use given the use of backfill and the impact of other surface events affecting the area.
The Court rejected once -- and rejects again -- Grace's proffered theories with respect to the former ponds area. The pond elimination program and its deleterious effects were expressly the subject of numerous factual findings by the Court. Apportionment Opinion, 836 F. Supp. at 1066-68. The Court is satisfied that the formula set forth in the Apportionment Opinion reflects an accurate characterization of the contamination in the former ponds area. The Court's analysis may be hard for Grace to accept, but should not be difficult to comprehend. In fact, Grace exhibits a keen understanding of the circumstances when it points out that despite the fact that 7,000 tons of contaminated soil were removed during the pond elimination program, the fact remains that "Grace bears the identical share of liability with or without having undertaken the pond elimination program." Grace's Reply Brief at 3. This is true and the Court concludes this is rightly so.
Grace fails to grasp the relevance of the pond elimination program to the Court's analysis. Although Grace may deserve kudos for undertaking the pond elimination program, the Court expressly found that Grace did not deserve the same high marks for the manner in which the program was implemented. At issue here is not the soil that was removed and discarded by Grace through the pond elimination program, but rather, the contaminated soil that was carelessly spread throughout the former ponds area during this particular remediation effort.
To the extent the Apportionment Opinion remains ambiguous regarding the relevance of the pond elimination program to the Court's utilization of a full use/partial use apportionment formula for the former ponds area, the Court adopts Hatco's proposed supplemental findings, but only for purposes of clarification:
The Court's apportionment of the actionable contamination in AEC 2 takes into account the effect of the pond elimination program. Although that program removed a large volume of contamination from the site, Grace also left behind a large volume of contamination which is the direct result of Grace's full use of the ponds. The methods employed in the pond elimination program also spread the remaining contamination throughout the area, contaminating the surrounding soil and even the backfill brought into the area.
The determination in AEC 2 that one month of partial use equates with two days of full use also takes into account the effect of the pond elimination program. "Full use" refers to the amount of contamination that was caused by Grace's operation of the ponds and was left behind after the completion of the pond elimination program. The Court determined the ratio between the partial and full use by comparing the impact of surface runoff in the ponds region with the contamination left behind after Grace's completion of the pond elimination program.
Hatco's Opposition to Grace' Motion at 12.
The Court also rejects Grace's arguments that even under the Court's analysis, Grace's full use of the ponds should not have been cited for apportionment of PCB contamination in the portions of AEC 2 outside the immediate vicinity of the ponds and muck storage areas. Grace asserts that PCB contamination in these outlying areas of AEC 2 should have been apportioned by a straight time of use formula given the impact of surface water and spill events. The Court, however, already rejected such a finding. See Apportionment Opinion, 836 F. Supp. at 1068 (stating that "it is unlikely that subsequent periodic impacts to the surface soils redistributed PCBs" spread by Grace over AEC 2 during the pond elimination program).
Grace's exclusive use -- or more specifically, its closure -- of the former ponds resulted in dispersement of PCBs throughout AEC 2 via regrading, tracking by equipment and diversionary trenching. See Apportionment Opinion, 836 F. Supp. at 1066-68. The Court stands by its findings.
Grace also asserts that the Court disregarded the evidence presented and incorrectly utilized a time-of-use formula to apportion liability for incidents of VOC contamination in the following areas: (1) the sludge layer above the east lagoon (AEC 1); (2) the Ester I complex; (3) Ester I tank farm (AEC 9A); (4) the ZAA complex (AEC 19); and (5) the groundwater. Grace argues that Hatco should be fully responsible for these VOC occurrences, which are attributable, according to the Court's findings, to chemicals used exclusively by Hatco. Where appropriate, the Court will address each area separately.
a. East Lagoon