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State v. BNSF Ry. Co.

Citation: 40 ELR 20189
No. No. 08-6385, (D. Minn., 07/14/2010)

A district court held that a property owner's Minnesota Environmental Response and Liability Act (MERLA) claims against a former owner are not time-barred even though the state agency issued a "decision document" describing the former owner's cleanup of the site as "final" well beyond the statute of limitations period. The former owner remediated the site's soil lead level to 1,400 ppm as directed by the state environmental agency in 2001. When the current owner wanted to redevelop the land, the state agency directed it to remediate the lead level from 1,400 ppm to 700 ppm. The current owner therefore filed suit against the former owner for reimbursement of the costs it incurred. Relying on the decision document, the former owner argued that the claim is time barred. But the decision document did not establish a permanent response action or start the limitations period. Although the decision document terms the cleanup plan as "final," and the agency previously said the decision document's lead levels would "be in effect permanently," the agency remains the entity with the authority to establish the permanent remedy for the site and is free to change its mind. The decision document contemplates such a change when it says the former owner remains solely responsible for the contamination and may be liable for future cleanup. Because the current owner offered evidence that physical on-site construction of a permanent response action began in October 2003--the first time the Agency required plaintiff to remediate the soil to the current level of 700 ppm--the MERLA claim is not barred by the six-year statute of limitations. However, the current owner's nuisance, trespass, and waste claims were barred by Minnesota’s general six year statute of limitations.