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HATCO CORP. v. W.R. GRACE & CO. - CONN.

April 29, 1994

HATCO CORPORATION, Plaintiff,
v.
W.R. GRACE & CO. - CONN., Defendant, Third-Party Plaintiff, v. ALLSTATE INSURANCE CO., et al., Third-Party Defendants.



The opinion of the court was delivered by: ALFRED M. WOLIN

 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. *fn1"

 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 ...


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