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Minnesota v. BNSF Railway Co.

ELR Citation: 42 ELR 20164
Nos. 11-3103, -3139, (8th Cir., 07/24/2012)

The Eighth Circuit held that costs a developer incurred to reduce pollution on a property it owns in Brainerd, Minnesota, that had formerly been owned by a railway company were not removal costs and thus not recoverable under the Minnesota Environmental Response and Liability Act (MERLA). Although no Minnesota court has squarely addressed the differences between the terms "removal" and "remedial" as used in MERLA, the court agreed with the lower court's conclusion that removal costs are those "intended to mitigate immediate harm" while remedial costs are "long-term cleanup costs." Here, the evidence indicates that the developer's costs were not removal costs. By taking steps to redevelop the property and delist it from superfund status, the developer was seeking to achieve a permanent remedy, making its costs remedial costs, which are not recoverable to private parties. The lower court, therefore, properly dismissed on motions for summary judgment the developer's MERLA claim against the railway company.