Northern Pacific Center, Inc. v. BNSF Railway Company

Jul 24: In the U.S. Court of Appeals, Eighth Circuit, Case Nos. 11-3103 & 11-3139. The Appeals Court explains that the Northern Pacific Center incurred costs to reduce pollution on a property it owns in Brainerd, Minnesota which had formerly been owned by BNSF Railway and used as a railcar construction and maintenance facility. The Center sued BNSF under the Minnesota Environmental Response and Liability Act (MERLA), Minn. Stat. § 115B.01 et seq., to recover its costs. BNSF moved for summary judgment on the basis of MERLA's statute of limitations, which the district court denied. Both parties later moved for summary judgment on the merits, which the district court granted to BNSF, concluding that "the type of costs the Center had incurred were not recoverable under MERLA." The Center appealed the adverse grant of summary judgment and BNSF cross appealed the district court's denial of summary judgment on statute of limitations grounds. The Appeals Court ruled, "We affirm the grant of summary judgment to BNSF and dismiss BNSF's cross appeal as moot."

 

    The key determination in the case is whether the type of costs incurred was "remedial" or "removal." The Appeals Court concluded, ". . .the agency itself approved BNSF's excavation as the selected 'remedial' action and provided approval for the excavation done by the Center in each of its redevelopment projects. This suggests that the lead cleanup taken by the Center can be considered remedial. We conclude that the costs the Center seeks to recover were not removal costs and thus are not recoverable. Because we affirm the district court's grant of summary judgment to BNSF on the merits, we dismiss as moot BNSF's cross appeal of the district court's denial of summary judgment on statute of limitations grounds."

 

    Access the complete opinion (click here). [#Remed, #CA8]

 

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