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December 3, 2002


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 raw material.
• 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 chloride.

(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 apply." (Id.)

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 ...

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