Tetra Technol Inc v. Kansas City So Rwy

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 5, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
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.

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2 Fed. R. Civ. P. 12(b)(6).
2
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

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3
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

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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

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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.
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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.

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