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Citations: F. United States District Court, D. Minnesota, Fourth Division. November 6, Wayne G. Serkland, Soo Line Railroad Co.

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Soo Line opposes Carney's motion, moves for summary judgment on the same issue, and moves this Court to reconsider the portion of its order granting Carney's motion for summary judgment on all common-law claims. These motions came before the Court at a hearing on October 17, For the reasons set forth below, Carney's motion is granted, and Soo Line's motions are denied. Carney owned an ading piece of property now known as the Walker Lumber property "Walker site".

During the leasehold period, Carney was the sole operator of a single pole-treating facility on the Soo Line site and the ading Walker site. It is undisputed that Carney shut down this pole-treating operation by After Carney had removed its equipment, Soo Line inspected the Soo Line site and determined the premises had been satisfactorily restored in accordance with the terms of the leases. Sinceno pole treating has occurred on the Soo Line or Walker sites.

The site was listed under the name of B. Carney, and Soo Line claims it had no actual knowledge of the listing. Soo Line responded to the MPCA's request in a memorandum dated May 25,indicating a visit to the site had revealed nothing unusual.

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Shortly thereafter, Soo Line was sued for contamination at another wood-treating site, known as the National Pole Yard, located in Fridley, Minnesota. The case was commenced inand Soo Line was brought in as a third-party defendant in InSoo Line was found liable on various claims. Soo Line contends it did not have actual knowledge of contamination of the site untilwhen it undertook to sell the property.

It commenced this action inalleging Carney's pole-treating operations caused releases of various hazardous substances that ultimately contaminated the Soo Line site.

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The parties filed cross motions for summary judgment in In a memorandum opinion and order dated March 31,the Honorable Michael J. Davis, held, inter alia, that Soo Line's common-law claims are time-barred under the applicable statute of limitations. In so holding, Judge Davis stated as follows: Soo Line's state law claims began to accrue at the time it knew or should have known of the property damage caused by the wood treating operation on the site.

Defendants argue Soo Line knew or should have known of its mow in Delamrwhen it was notified by the MPCA of its concerns regarding waste disposal at the site, as well as other properties owned by Soo Line.

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This court agrees. The corporation was the only operator on the site, therefore Soo Line knew or should have known of the bases of its common law claims in ddlmar Accordingly, Soo Line's claims under breach of contract, trespass, waste and strict liability are time barred. The Court therefore dismissed Soo Line's common-law claims.

Because the Court finds Soo Line's claims are barred under section B. This provision provides in relevant part: [A]ny person who is responsible for the release of a hazardous substance from a facility is strictly liable for the following damages which result from the release or to which the release ificantly contributes: a all damages for economic loss. Section B. The noww of this section, which was amended inis "clearly to cut off liability for past actions.

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United States, F. A separate limitation on liability under section B. Sections B. Hence, according to Soo Line, some of the hazardous substances contaminating the Eelmar Line site were not placed and did not come to be located there wholly before July 1, In City of Minneapolis v. Arkla, Inc. February 18,the Court, in a decision by the Honorable James M. Rosenbaum, held, in circumstances similar to the one presented here, that section B.

See also Werlein, F.

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This Court agrees with the Arkla court's conclusion and finds that Soo Line's interpretation of section B. First, Soo Line's interpretation conflates the concept of "release of a hazardous substance" with that of "placed or came to be located in or on the facility.

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The legislature's inclusion of both the term "release" and the phrase "placed or came to be located in or on" in section B. Because the two concepts must refer to different events, the Court rejects Soo Line's suggestion that they mean the same thing in this context. Likewise, if "placed or came to be located in or on" contemplates underground migration of contaminants and therefore can have the same meaning as "release," section B. The Court finds no reason why the legislature would have enacted two, independent repose provisions to address the same event the release of hazardous substances.

Soo Line's interpretation of section B. Under MERLA, a "facility" is, inter alia, "[a]ny site or area where a hazardous substance, or a pollutant or contaminant, has been delkar, stored, disposed of, or placed, or otherwise came to be located. As set forth above, Soo Line seeks recovery under section B. Soo Line claims the source of the migrating contamination is the Walker site. However, under Soo Line's reading of ddelmar B.

Obviously, "facility" cannot refer to the source site in one provision of MERLA and the recipient site in another. The purpose of the statute was to cut off liability for past actions.

If the statute were construed to allow liability any time there is continuing migration of contaminants from one property to another after July 1,the statute would provide little protection for those whose actions occurred entirely before that date. Thus, in this context, the only reasonable interpretation of heed "placed or came to be located in or on the facility" is that it refers to when Carney placed the hazardous substances or allowed the hazardous substances to be placed on the Walker site.

The Court finds nothing in the record that persuades it to second-guess Judge Davis's determination.

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Soo Line has cited to no intervening change in the applicable law. Moreover, Soo Line's motion papers do not convince the Court that Judge Davis clearly erred in determining that Soo Line knew or should have known the bases of its common-law claims well before six years in advance of bringing its claim.

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Carney"Soo Line received the notice from the MPCA that year, and shortly thereafter, Soo Line was sued and ultimately found liable in litigation involving contamination at a nearby pole-treating facility. These facts support the conclusion that, at minimum, a reasonable person in Soo Line's position should have known of the bases of its claims in the early s.

The Court sees no need to revisit nj related issues which were addressed before Judge Davis. Defendants' motion for partial summary judgment [Docket No. Plaintiff's motion for partial summary judgment [Docket No. Plaintiff's motion for reconsideration of a portion of this Court's order dated March 31, [Docket No. In addition, there is nothing inconsistent about the legislature incorporating two, independent repose provisions that limit liability under MERLA based on the occurrences of separate events.

Simply because Soo Line's claims for economic losses would survive under section B. Newsletter up to receive the Free Law Project newsletter with neex and announcements.

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