The opinion of the court was delivered by: John T. Curtin, District Judge.
On August 14, 2002, this court issued a decision and order granting
summary judgment in favor of third-party defendants Bay State Smelting
Company, Inc. and Benjamin Sack (collectively, "Bay State") on the action
brought against them by defendant/third-party plaintiff Solvent Chemical
Company, Inc. ("Solvent") seeking contribution pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. § 9613(f), for response costs associated with
environmental remediation at the inactive hazardous waste disposal site
located at 3163 Buffalo Avenue in Niagara Falls, New York (Item 1147).
The court also denied Solvent's cross-motion for summary judgment
declaring Bay State liable under CERCLA. Solvent has now moved for
reconsideration pursuant to Fed.R.Civ.P. 60(b) (Item 1156), and Bay State
has moved for an order pursuant to Fed.R.Civ.P. 54(b) directing the entry
of partial final judgment in its favor (Item 1158). Oral argument of
these motions was heard on October 7, 2002. For the following reasons,
Solvent's motion for reconsideration is denied, and Bay State's motion
for entry of judgment is granted.
Solvent seeks relief under Rule 60(b), which by its terms provides that
"the court may relieve a party . . . from a final judgment, order, or
proceeding" on various grounds, including "any other reason justifying
relief from the operation of the judgment" if made within a reasonable
time. Fed.R.Civ.P. 60(b)(6). While recognizing that this rule may provide
a basis for reconsideration of a non-final order (such as the summary
judgment ruling at issue here), see, e.g., DeMaio v. Mitchell, 1998 WL
9226, at *1 (N.D.N.Y. January 7, 1998), courts in the Second Circuit have
repeatedly cautioned that a motion for reconsideration is not to be used
as a vehicle for wasteful repetition of arguments already briefed,
considered, and decided. See Torf v. Metromedia Paging Services, Inc.,
1996 WL 118559, at *4 (E.D.N.Y. March 5, 1996); Schonberger v. Serchuk,
742 F. Supp. 108, 119 (S.D.N.Y. 1990)). This is because, "where litigants
have once battled for the court's decision, they should neither be
required, nor without good reason permitted, to battle for it again."
Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.), cert. denied,
377 U.S. 934 (1964), quoted in Virgin Atlantic Airways, Ltd. v. National
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992).
Indeed, the standard for granting a motion for reconsideration is
"strict, and reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the court overlooked
— matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court." Shrader v. CSX
Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). Thus, the limited
grounds recognized by the courts as justifying reconsideration are "an
intervening change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent manifest injustice."
Virgin Atlantic Airways, 956 F.2d at 1255 (quoting 18 C. Wright, A.
Miller & E. Cooper, Federal Practice & Procedure § 4478 at
790); see also Peca v. Delta Air Lines, Inc., 2000 WL 914112, at *1
(W.D.N.Y. July 7, 2000).
No such grounds have been convincingly presented here. In its
forty-page decision and order, rendered on the papers after the parties
declined oral argument (see August 20, 2001 Order, Item 1036), the court
found that the zinc oxide "flue dust" and "sal skimmings" which Bay State
sold to Solvent during the period from 1974 to 1978, and which Solvent
used in its zinc chloride manufacturing process, qualified under the
"useful product" defense to CERCLA arranger liability. The court
thoroughly examined the facts pertaining to the business arrangement
between Bay State and Solvent as set forth in the pleadings, affidavits,
and exhibits on record, and found the following facts to be undisputed:
• Bay State collected and sold zinc oxide as a
• The zinc oxide was collected in bag house
filters and was sold to Solvent "as is," without
further treatment or processing by Bay State.
• The sale of zinc oxide was one of several
sources of revenue generated by Bay State's
non-ferrous scrap smelting operations.
• Solvent purchased zinc oxide from a number of
suppliers in addition to Bay State.
• Solvent listed "flue dust" as a "raw material"
in its production reports.
• The cost of zinc oxide was included by Solvent
as a production cost for its final product, zinc
(See Item 1147, p. 22). Focusing on the legal significance of these facts
in light of the various factors which the cases have found pertinent to
the "useful product" inquiry, the court determined that Bay State had
properly asserted and established the defense, and was entitled to summary
judgment dismissing Solvent's complaint against it as a matter of law.
The court also devoted a significant portion of its analysis to
determining the reliability of the opinions expressed in the affidavit of
Solvent's chemical engineering expert, Dr. E. Bruce Nauman. The court
carefully examined the factual support offered by Dr. Nauman as a basis
for his conclusion that the zinc material sold by Bay State to Solvent
was "waste" rather than "product" — specifically, the price paid by
Solvent for the material, as contrasted with the concurrent market price
for zinc oxide as listed in the Chemical Market Reporter; intra-company
memoranda indicating that the materials shipped by Bay State were
contaminated with debris; and, inventory documents suggesting that
Solvent considered large quantities of the material valueless. The court
found Dr. Nauman's opinions unreliable and "probative of no material fact
. . ." (Item 1147, p. 39), and struck the expert affidavit from the
record. The court also found that the exhibits attached to the Nauman
affidavit, while admissible, did not provide evidence "enough to raise a
question of material fact that the useful product defense does not
To bolster the position that Bay State's flue dust and sal skimmings
were waste and not useful product, counsel for Solvent asserted at the
October 7, 2002 oral argument that the materials contained between sixty
percent and eighty percent zinc oxide. While this position finds some
support in the record, see Item 1157, Ex. A ("[t]hese flue dusts are very
good in quality with an average of 70-80% ZnO content and very few other
impurities"), it was not clearly or forcefully presented in the prior
briefs and affidavits. Instead, Solvent focused on the contaminated
condition of the flue dust shipments, see id. ("[t]he only drawback with
these flue dusts is that they are full of `junk' — plastic sheets,
beer cans, steel plates, and other garbage"), and the disparity between
the price it paid for the flue dust and the price for commercial grade
zinc oxide listed in the Chemical Market Reporter (see, e.g., Dow Aff.,
Item 1056, ¶¶ 15, 19-21). In this court's view, this apparent shift
in emphasis with respect to ...