* Pursua nt to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

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 delive red hydrochloric

acid to Tetra’s facility, c ausing 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.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 A ct, 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 co ntrolling the

outcome of this case.

We review the district court’s grant of a 12(b)(6) motion to

dismiss de novo

. J ackson v. City of Beaumont Police Dept. , 958

F.2d 616, 618 (5th Cir. 199 2). First, we conclude that the3

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 h olding that

Tetra failed to state a claim for breach of an implied warranty to

t ransport freight safely because Tetra did not allege in its

complaint that the limestone was damaged in the accident. S ee La.

Rev. Stat. Ann. § 45:1100.

Tetra’s claims under the Louisiana Hazardous Substances

Remedial Acti on Act were also properly dismissed because, by not

making a written demand on KCS at least sixty days befo re 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).

N ext, Tetra’s claim for unjust enrichment under the Cle a n

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 fromKCS 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,” in4

this case, the pipeline, must belong to the liable party. Here,

Tetr a 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. S ee 42 U.S.C. § 9607(a); Uniroyal

Chemical Company, Inc. v. Deltech Corp.

, 160 F.3d 238 ( 5 th Cir.

1998).

Finally, we turn to T etra’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’s3 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 subs ection) and (b)(3) requiring an actual

discharge into navigable waters or onto shorelines.

5 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.