The Eighth Circuit Court of Appeals has denied a plaintiff’s claim for cost recovery under the Minnesota Environmental Response and Liability Act (MERL A) because the claimed costs were “remedial” rather than “removal” costs. N. Pac. Ctr., Inc. v. BNSF Ry. Co., No, 11-3103/3139 (8th Cir. 7/24/12).  

Plaintiff incurred costs to reduce contamination on its Brainerd, Minnesota, property, which defendant previously owned and operated as a railcar construction and maintenance facility. Plaintiff sued defendant under MERL A to recover its costs. Under MERL A, the state may recover either removal or remedial costs but private parties are limited to the recovery of removal costs only. The statute defines removal costs as costs intended to mitigate immediate harm, while remedial costs are those that are consistent with a “permanent remedy” and taken ‘instead of or in addition to removal actions.”  

Ruling that plaintiff’s costs were not expended to respond to an immediate threat of harm and were thus not removal costs, the district court granted defendant’s motion for summary judgment, and plaintiff appealed. On appeal, plaintiff argued that “the district court’s definitions of removal and remedial costs lack support in the statute’s text or state case law.” It also argued that the court’s interpretation is contrary to the statute’s goal of facilitating site cleanup and conflicts with the state’s voluntary cleanup program that allows parties to recover their costs.  

The Eighth Circuit examined statutory definitions and MERL A case law and reviewed definitions in the federal Comprehensive Environmental Response, Compensation and Liability Act on which MERL A was modeled. Upholding the district court, the appeals court agreed that under MERL A private parties may not claim costs intended for long-term results at a site cleanup. The court also rejected plaintiff’s argument that the district court’s interpretation is contrary to MERL A’s goal and that it conflicts with the voluntary cleanup program.