July 19, 2010

On July 14, 2010, U.S. District Court Judge James Rosenbaum issued a decision denying a defendant summary judgment on a cost recovery claim under the Minnesota Environmental Response and Liability Act (MERLA), Minn. Stat. Ch. 115B.  The case, which raises an issue of first impression under MERLA, arises out of the redevelopment of a former railroad maintenance shop in Brainerd, Minnesota which has been turned into a mixed use commercial development.

In the 1980s and 1990s the railroad had worked with the Minnesota Pollution Control Agency (MPCA) and negotiated a cleanup standard of 1,400 parts per million (ppm) or milligrams per kilogram (mg/kg).  The plaintiff, Northern Pacific Center (NPC), purchased the property from a subsequent owner.  When NPC presented redevelopment plans for the site that involved soil handling and removal, the Minnesota Pollution Control Agency (MPCA) determined that NPC was required to cleanup lead impacted soils to a more stringent level of 700 mg/kg.

NPC incurred significant responses costs and sought recovery under common law and the Minnesota Environmental Response and Liability Act (MERLA).  Judge Rosenbaum ruled that NPC’s claims under nuisance, trespass, waste and violations of the Minnesota Environmental Rights Act (MERA) were subject to a six year statute of limitations period.  Finding that the plaintiffs were aware of the presence of lead for more than six years, Judge Rosenbaum concluded that the common law and MERA claims were time barred.  The defendant was granted summary judgment as to those claims.

With regard to the MERLA claim, Judge Rosenbaum applied the statute of limitations in MERLA which provides that an action “may be commenced any time after costs and expenses have been incurred but must be commenced no later than six years after initiation of physical on-site construction of a response action.”  See Minn. Stat. § 115B.11, subd. 2.  The Court noted that after a 2003 Minnesota Department of Health report, the MPCA mandated soil lead cleanups of 700 mg/kg at the Brainerd site.  NPC completed response actions in 2003, 2005 and 2006 to the lower 700 mg/kg standard, incurred response costs and received authorization from the MPCA that the voluntary cleanup actions were consistent with MERLA.  Judge Rosenbaum denied the railroad’s motion for summary judgment of the MERLA claims noting that the costs were incurred well within the six year statute of limitations period.

Hessian & McKasy’s Environmental Law Attorney Practice Group Chair Joseph Maternowski and attorney Kristin Heebner represent NPC in the case.  The case is State of Minnesota ex rel. Northern Pacific Center, Inc., et al v. BNSF Railway Co., No. 08-CV-6385 (JMR/RLE), 2010 WL 2777157 (D. Minn. July 14, 2010).  A copy of the decision can be found at:http://www.enviroattorney.net/articles/Order_on_SJ_Motion.pdf.

The attorneys at Hessian & McKasy’s Environmental Law Attorney Practice Group have experience in federal and state courts and regularly appear in administrative proceedings involving federal and state environmental agencies.  Our environmental law attorneys and environmental litigators handle a range of matters including cost recovery claims, insurance defense and defense of enforcement actions.  For information about the attorneys and professional services at Hessian & McKasy’s Environmental Law Attorney Practice Group, please visit: http://www.enviroattorney.net/practice/professional_services.php.

The views contained within this entry and on this website are my own and do not constitute those of Hessian & McKasy, P.A.

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