Tetra Technologies, Inc. v. Kansas City Southern Railway Co. , 122 F. App'x 99 ( 2005 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    January 5, 2005
    FOR THE FIFTH CIRCUIT
    _____________________              Charles R. Fulbruge III
    Clerk
    No. 04-30366
    _____________________
    TETRA TECHNOLOGIES, INC.,
    Plaintiff - Appellant,
    versus
    KANSAS CITY SOUTHERN RAILWAY CO.,
    Defendant - Appellee.
    __________________________________________________________________
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 03-CV-1272
    _________________________________________________________________
    Before KING, Chief Judge, JOLLY and DENNIS, Circuit Judges.
    PER CURIAM:*
    This case arises from the November 2001 derailment of a Kansas
    City Southern Railway (“KCS”) train carrying limestone to Tetra
    Technologies’ (“Tetra”) plant in Lake Charles, Louisiana.        A rail
    car struck an above-ground pipeline that delivered hydrochloric
    acid to Tetra’s facility, causing the pipeline to shift several
    feet onto the shoreline of an adjacent waterway.        Although the
    inner wall of the pipe ruptured, the pipe’s outer wall did not.
    Thus the acid was contained within the pipe, and no leakage or
    spillage occurred.
    *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    Tetra repaired the pipeline and demanded that KCS pay $236,395
    to compensate it for costs related to the accident.                On July 3,
    2002, KCS responded in a letter that stated it would pay $24,387.96
    to compensate Tetra for the cost of repairing the pipeline; it
    further stated that it considered the additional amount demanded by
    Tetra unreasonable and exorbitant.
    Further negotiations were unsuccessful, and, on July 2, 2003,
    Tetra filed this action.          The complaint alleged various claims
    under Louisiana law, the Clean Water Act, and the Comprehensive
    Environmental Response, Compensation and Liability Act (“CERCLA”).
    KCS filed a 12(b)(6)2 motion to dismiss on two basic grounds: (1)
    Tetra’s state law tort claim had prescribed; and (2) Tetra could
    not state     a   claim   under   either    of   the   federal   environmental
    statutes cited in its complaint.            The district court agreed and
    dismissed all of Tetra’s claims.           We have reviewed the briefs and
    the pleadings, and we have heard oral argument well presented by
    the parties.      We are unpersuaded that the district court erred.
    Furthermore, there is little to be said in resolving this appeal
    because the precedents and statutes are clear in controlling the
    outcome of this case.
    We review the district court’s grant of a 12(b)(6) motion to
    dismiss de novo.      Jackson v. City of Beaumont Police Dept., 
    958 F.2d 616
    , 618 (5th Cir. 1992).              First, we conclude that the
    2
    Fed. R. Civ. P. 12(b)(6).
    2
    district court properly found that Tetra’s Louisiana tort claim had
    prescribed because KCS’s July 2003 letter was a settlement offer
    and not an acknowledgment of liability.           It therefore did not toll
    prescription, which ran from November 2001.            See Lima v. Schmidt,
    
    595 So. 2d 624
    , 634 (La. 1992).
    Furthermore, the district court did not err in holding that
    Tetra failed to state a claim for breach of an implied warranty to
    transport freight safely because Tetra did not allege in its
    complaint that the limestone was damaged in the accident.             See La.
    Rev. Stat. Ann. § 45:1100.
    Tetra’s    claims   under   the       Louisiana   Hazardous   Substances
    Remedial Action Act were also properly dismissed because, by not
    making a written demand on KCS at least sixty days before filing
    suit, Tetra failed to follow the statute’s procedural requirements
    for private suits against a generator, transporter or disposer of
    hazardous substances.      See La. Rev. Stat. Ann. § 30:2276(G)(3).
    Next, Tetra’s claim for unjust enrichment under the Clean
    Water Act must fail because no acid was discharged from the
    pipeline as a result of the accident.            Therefore, the Government
    could not have recovered from KCS pursuant to § 1321(g), and KCS
    was not unjustly enriched as a result of the Government’s failure
    to seek a recovery.      See 
    33 U.S.C. § 1321
    (g).
    We also affirm the district court’s dismissal of Tetra’s claim
    under CERCLA.   Under CERCLA, the relevant “vessel or facility,” in
    3
    this case, the pipeline, must belong to the liable party.                Here,
    Tetra    owns   the   pipeline   from       which   the   acid   threatened   to
    discharge.      Therefore, KCS is not a “responsible person” such that
    it can be sued under CERCLA.        See 
    42 U.S.C. § 9607
    (a); Uniroyal
    Chemical Company, Inc. v. Deltech Corp., 
    160 F.3d 238
     (5th Cir.
    1998).
    Finally, we turn to Tetra’s reimbursement claim under the
    Clean Water Act.      Tetra attempts to fit its Clean Water Act claim
    into three separate provisions of that statute –- §§ 1321(g), (h),
    and (i). We have already determined that § 1321(g) is inapplicable
    here because there was no discharge.                Section 1321(h) does not
    create a cause of action.         Thus, Tetra’s Clean Water Act claim
    depends on its assertion that § 1321(i) permits recovery in this
    case.    We hold that it does not.
    Section 1321(i) provides that, “where an owner or operator of
    a vessel or onshore facility from which ... a hazardous substance
    is discharged in violation of subsection (b)(3)” acts to remove the
    hazardous substance, said owner or operator may recover removal
    costs from a third party if it can establish that an “act or
    omission of [the] third party” caused the discharge.               A “discharge
    in violation of subsection (b)(3)” is defined as a “discharge of
    oil or hazardous substances into or upon the navigable waters of
    the United States [or] adjoining shorelines.”                It is undisputed
    that no hydrochloric acid ever escaped the pipeline at Tetra’s
    4
    facility.   Thus, Tetra has no cause of action under § 1321(i).3
    In sum, the district court’s dismissal of Tetra’s claims is,
    in all respects,
    AFFIRMED.
    3
    At oral argument, Tetra noted that § 1321(a)(25)(a definition
    subsection, not a liability subsection) defines “removal costs” to
    include the costs incurred to mitigate or minimize the threat of a
    discharge. Tetra then contended that because § 1321(i) permits
    recoveries for removal costs, it should be able to recover under
    that subsection. This reading of § 1321 is without merit because,
    among other reasons, it would render superfluous the language of §§
    1321(i)(a liability subsection) and (b)(3) requiring an actual
    discharge into navigable waters or onto shorelines.
    5
    

Document Info

Docket Number: 04-30366

Citation Numbers: 122 F. App'x 99

Judges: King, Jolly, Dennis

Filed Date: 1/5/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024