• September 3, 2010

The BNSF Railway Company once owned a railroad maintenance shop in Brainerd, Minnesota.  About 20-30 years ago, BNSF worked with the Minnesota Pollution Control Agency (“MPCA”) to clean up the site, agreeing to a limit of 1,400 parts per million (“ppm”) for lead contamination.  But when current owner Northern Pacific Center (“NPC”) wanted to redevelop the site, the MPCA required soil to be remediated to 700 ppm.

NPC wants BNSF to pay NPC’s clean-up costs.  BNSF answered, “Time’s up, the statute of limitations has run.”   U.S. District Court Judge James M. Rosenbaum (D. Minn.) agreed with BNSF as to all of NPC’s claims but one – the remediation claim under the Minnesota Environmental Response and Liability Act (“MERLA”) but he called it “an unusual, interesting, and unresolved question…”

The key statutory language:  an action “must be commenced no later than six years after initiation of physical on-site construction of a response action.”  This language, in turn, was analyzed in a single Minnesota Court of Appeals decision.   That court read the statute to refer to a “permanent response action.”  Judge Rosenbaum, in turn, concluded that clean-up down to 1,400 ppm was not permanent “because at the same time [NCP] was doing its remediation, the Agency was in the process of changing its mind, and changing standards are inconsistent with a permanent remedy.”

Pouncing on Judge Rosenbaum’s language about the unique and unresolved question, BNSF, now before U.S. District Court Paul A. Magnuson (D. Minn.) in light of Judge Rosenbaum’s retirement, seeks interlocutory appeal, that is, an appeal before the U.S. District Court has fully adjudicated the lawsuit before it to final judgment.

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