                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              January 5, 2005
                       FOR THE FIFTH CIRCUIT
                       _____________________              Charles R. Fulbruge III
                                                                  Clerk
                            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.


     *
       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this opinion should not be published and is not precedent except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.
     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


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

                                      2
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



                                       3
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



                                        4
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.




     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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