ELR Citation: ELR 20139
No(s). 90-31-VAL(WDO) (M.D. Ga. Jul 1, 1994)

A district court denies a motion to alter or amend, under Fed. R. Civ. P. 59(e) and 60, its judgments holding two owners and operators of a contaminated site liable for over $2 million in U.S. Environmental Protection Agency (EPA) response costs incurred at the site. The court first holds that it did not fail to allocate liability between the defendants. Although the court failed to recite specifically that the defendants are jointly and severally liable that determination is implicit in the finding of liability. The court next grants defendants' motion to alter or amend its judgment as to their claim that it failed to consider their response to EPA's administrative order regarding the site. The court had held that should it be determined that defendants' proposed response action was proper, EPA potentially could only recover the cost that defendants would have otherwise incurred in implementing their plan. In its March 22, 1994, order, however, the court failed to address the issue of whether EPA properly rejected defendants' proposed response. The court next holds that it finds no basis for reconsidering its determination that defendants failed to raise genuine issues of material fact as to whether the response action the United States chose was arbitrary or capricious. Therefore, the costs EPA incurred are presumed to be reasonable. The court also denies defendants' motion that it set aside its judgment finding one of the defendants liable on the basis that genuine issues of material fact exist concerning the defendant's personal liability. The motion is nothing more than an attempt to relitigate that issue.

[The district court's decisions on liability are published at 23 ELR 20740 and 24 ELR 21455.]

Counsel for Plaintiff
James A. Lofton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Brian M. Rosenthal
Rose Law Firm
120 E. 4th St., Little Rock AR 72201
(501) 375-9131