Union Pacific Railroad Company (UP) appeals from a final judgment entered in the United States District Court
1
for the
Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331, 1332. Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notices of appeal were timely filed pursuant to Fed. R.App.P. 4(a).
Background
The following is a brief summary of the undisputed facts as set forth in greater detail in the district court’s summary judgment order dated November 3, 1997.
See id.,
In 1987, the Minneapolis Community Development Agency (MCDA) entered into an agreement with UP to conduct tests on the 23.8-acre tract to assess possible environmental concerns which might arise if UP were to sell the property. Barr Engineering was hirеd to conduct a preliminary environmental investigation, and it produced a document referred to as the “Barr Report.”
In 1990, UP engaged in negotiations to sell the 23.8-acre tract to the University of Minnesota (the University). At issue in the negotiations was the anticipated need to clean up the soil and groundwater contamination. UP hired Dahl & Associates, Inc., (Dahl), to investigate the contamination further. Dahl researched the historical ownership and uses of the property, conducted limited subsurface sampling and analyses, and issued a “Phase I and Phase II Property Evaluation,” dated June 18, 1990. According to Dahl, the soil and groundwater were contaminated with PAHs at or near the five-acre parcel formerly leased by Reilly (hereinafter “the UP site”). Dahl conductеd additional sampling and analyses and issued a “Phase II Property Evaluation,” dated August 1, 1990, which purported to document the contamination and recommended enrollment of the UP site in the Minnesota Pollution Control Agency (the MPCA)’s Voluntary Investigation and Cleanup (VIC) Program.
In a letter dated August 17, 1990, UP informed Reilly’s general counsel of the results of Dahl’s investigations.
UP directed Dahl to consider the known remediation options (which included bior-emediation, thermal desorption, incineration, and landfilling) and to recommend a course of action. Dahl initially reсommended using bioremediation, but changed its recommendation after the MPCA, in February 1993, informed UP and Dahl that the PAH cleanup goal would be in the range of 10 to 100 parts per million (ppm). That range was lower than Dahl’s original expectation. UP and Dahl then decided to focus on thermal desorption (also referred to as “high temperature thermal desorption” or “HTTD”), which was believed to be more effective than bioremediation. UP selected Advanced Soil Technologies, Inc. (AST), to conduct the thermal desorption cleanup process. In May 1994, the MPCA formally established a cleanup goal for the UP site of 10 ppm PAH.
On August 1, 1994, a public meeting was held at which MPCA informed local residents of clean up projects at several locations, including the UP site. Thе notice for the meeting stated that a fact sheet would be distributed. A fact sheet was distributed at the meeting, and it stated that the UP site was required to meet the cleanup standards for residential property. It further stated that several options for remediating the UP site had been considered, and that “[t]he only remedy that results in complete destruction of PAHs in a reasonable amount of time is high-temperature thermal desorption.” Slip op. at 9 (Nov. 3, 1997) (quoting fact sheet). A spokesperson for the MPCA described the thermal desorption process and stated that it had been selected from among several alternatives.
Following MPCA’s verbal approval of Dahl’s proposed thermal desorption plan, soil excavation at the UP site began in November 1994. On November 30, 1994, a second public meeting was held. The notice of that meeting stated:
The purpose of this follow-up meeting is to discuss and receive comments on the specifics of the cleanup action proposed for the former CN & W property. A member of the [MPCA] and the consultant who will conduct the cleanup will be available at the meeting to answers questions.
A Remedial Action Workplan (Work-plan) has been submitted to the [MPCA.]. The full administrative record on this site and the Workplan is available for review at the Minnesota Pollution Control Agency.... Please provide any written comments on the Workplan ... by December 1,1994.
Id. at 1234 (quoting public notice).
The public was informed at the November 30 meeting that MPCA had verbally approved the thermal desorption plan, that most of the soil had been excavated, and that the comment period regarding the cleanup action would end at 10 a.m. on December 1,1994 (the following day).
The soil excavation was completed on December 16, 1994, and thermal treatment of the soil began on December 28, 1994. On January 13, 1995, MPCA gave formal written approval of the thermal desorption treatment, which was concluded on January 27, 1995. On February 7, 1995, MPCA approved the backfilling of the treated soil.
On March 30,1994, Dahl submitted a Remedial Action Implementation Report, documenting the remedial action, to the MPCA. MPCA thereafter confirmed that the cleanup goal had been achieved and approved Dahl’s Remedial Action Implementation Report on September 18, 1995.
In February 1995, UP notified Reilly that its remediаtion costs had totaled $1,025,518, excluding attorneys’ fees and interest.
UP filed this action on December 22, 1995, alleging that Reilly is liable for some
The case went to trial. The district court submitted all of the remaining claims to the jury, except for the MERLA claim and the indemnity and contribution claims which were equitable in nature. The district court used a special verdict form which required the jury to decide liability on the appropriate state law claims and to resolve factual disputes underlying the statute of limitations issue. The jury’s responses on the special verdict form rendered UP’s state law claims, except for the indemnity and contribution claims, barred by the statute of limitations. See id. at 5-6 (Dec. 28, 1998) (post-trial order). On the indemnity claim, the district court held that UP had faded to meet its burden of proof because it had not established an express or implied legal relationship which rendered Reilly entirely responsible for UP’s expenditures. See id. at 11. On the contribution claim, the district court held that equitable principles and public policy mandated judgment for Reilly, especially in light of UP’s unexcused delay in bringing its claim. See id. at 13-15. Judgment was entered for Reilly, and UP appealed.
UP subsequently sought relief from the judgment in the district court pursuant to Fed.R.Civ.P. 60(b) on the ground that the Eighth Circuit’s then-recent decision in
Minnesota v. Kalman W. Abrams Metals, Inc.,
Discussion
CERCLA claims
UP first argues on appeal that the district court erred in granting summary judgment for Reilly on its CERCLA claims. The district court held that UP failed as a matter of law to substantially comply with the NCP because, under the undisputed facts of the present case, (1) UP did not provide a meaningful opportunity for public participation and comment
We review a grant of summary judgment
de novo.
The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 66(c);
Celotex Corp. v. Catrett, 477
U.S. 317, 322-23,
The NCP, more fully known as the National Oil and Hazardous Substances Pollution Contingency Plan,
see
40 C.F.R., Part 300, is comprised of EPA regulations setting forth procedures and standards for responding to releases of hazardous substances.
See, e.g., Abrams Metals,
Failure to provide a meaningful opportunity for public participation and comment in the selection of a remedial action at a particular cleanup site is inconsistent with the NCP.
See
40 C.F.R. § 300.700(c)(6) (“private parties undertaking response actions should provide аn opportunity for public comment concerning the selection of the response action”);
accord County Line Inv. Co. v. Tinney,
In challenging the district court’s determination that UP failed as a matter of law to substantially comply with the NCP’s public participation and comment provisions, UP first emphasizes that, under the applicable 1990 version of the NCP, “immaterial or insubstantial deviations” are permitted. UP also emphasizes that the public comment provision of the NCP does not use mandatory language; it states that “private parties undertaking response actions
should
provide an opportunity for public comment concerning the selection of the response.” 40 C.F.R. § 300.700(c)(6) (emphasis added). These provisions, UP argues, have been interpreted to invoke a “case-by-case balancing approach that evaluates clean-up efforts as a whole.” Brief for Appellant at 21 (quoting
Bedford Affiliates,
UP highlights the undisputed facts that two public meetings were held, that notice of the meetings was given in advance through widely distributed local newspapers and by mail to local residents and public officials, that the remedial alternatives including thermal desorption were specifically discussed at the meetings, that transcripts of both meetings were created and made publicly available, that an opportunity for written comments was provided, and that no objections to the proposed remedy were ever received at the meetings or in writing. As to the district court’s conclusion that thermal desorption was a forgone conclusion by the time the first meeting was held, UP argues that the contract it had with Dahl specifically allowed UP to unilaterally cancel pending approval of the thermal desorption remedy by the MPCA and that MPCA was not even aware of the Dahl contract before it approved UP’s remedial plan. UP admits that soil excavation had already began by the time the second meeting occurred, but discounts the significance of that fact. UP notes that the first meeting had already occurred some three months earlier. Moreover, UP argues, because soil excavation was consistent with landfilling and bioremediation as well as thermal desorption, thermal desorption was not necessarily the final remedial selection at the time soil excavation occurred.
UP alternatively argues that the MPCA’s involvement at every stage of the remedy selection process satisfied the NCP’s public participation and comment requirements because state agency involvement in the selection of a remedy may “substitute” for public participation and comment.
See
Brief for Appellant at 28-31 (citing, e.g.,
Public Serv. Co. v. Gates Rubber Co.,
While UP’s noncompliance with the NCP’s public participation and cоmment provisions was not as blatant as that of the
The public was informed at the August 1 meeting that bioremediation had been considered and rejected, recycling had been considered and rejected, landfilling had been considered and rejected, but — in contrast — thermal desorption had
not
been rejected and, in fact, plans were already in place to use thermal desorption to address the PAH contamination at the UP site.
See
Appellant’s Appendix (Vol.4) at 1126-33 (transcript of public meeting on August 1, 1994).
5
Although the public was given an opportunity to ask questions about the nature and effects of the thermal desorption process, there was no indication that the
selection
of the response action was open to discussion or change. On October 26, 1994, Dahl submitted to the MPCA its written remedial action work plan for conducting the thermal desorption cleanup at the site (“the work plan”). The MPCA verbally approved the work plan on November 14, 1994. Soil excavation also began in November 1994. At the second meeting on November 30, 1994, the public was informed that the work plan was publicly available. Howevеr, the period for submitting written or oral comments lasted only until the next day, December 1, 1994.
See id.
at 1280-81 (statement at the meeting that the comment period was open “until tomorrow”). It is therefore beyond genuine factual dispute that the public was not given “a reasonable opportunity, not less than 30 calendar days, for submission of written and oral comments on the pro
We now turn to UP’s argument that MPCA’s involvement in the remediation selection process effectively fulfilled UP’s responsibility to provide an opportunity for meaningful public participation and comment. To begin, we do not quarrel with the Second Circuit’s observation that, “[w]here a state agency responsible for overseeing remediation of hazardous wastes gives comprehensive input, and the private parties involved act pursuant to those instructions, the state participation
may
fulfill the public participation requirement.”
Bedford Affiliates,
Moreover, contrary to UP’s argument, our holding today comports with Abrams Metals. In Abrams Metals, the cost recovery action was brought by the state, not a private party as in the present case. In Abrams Metals, this court observed:
If the State establishes that it incurred response costs to remedy a release or threatened release of hazardous substances from a facility, and that defendants are responsible persons, then defendants have the burden of proving that the costs incurred were inconsistent with the NCP, an issue that is judicially reviewed under the arbitrary and capricious standard of review for agency action.
In sum, we hold that the district court did not err in dismissing UP’s CERCLA claims on summary judgment because UP failed as a matter of law to substantially comply with the NCP’s public participation and comments requirements. 7
MERLA claim
UP next argues, with respect to its MERLA claim, that the district court erroneously held that the applicable six-year statute of limitations period began to run on the date UP knew or should have known about thе creosote contamination, rather than the date upon which UP first incurred response costs. UP argues that, because MERLA specifically states that a claim for personal injury accrues according to the discovery rule (i.e., when the plaintiff knew or should have known of the injury) but is silent as to when a claim for property damage accrues, the state legislature must have intended not to apply the discovery rule to claims for property damage. UP relies on statutory construction and policy arguments to urge us to hold that its claim accrued once response costs were incurred. Reilly, on the other hand, maintains that a MERLA claim for prop
In its order dated February 9, 1998, the district court held that UP’s state common law claims and its MERLA claim were governed by the six-year statute of limitations set forth in Minn.Stat. § 541.05 subd. 1, and that, “[bjecause [§ 541.05 subd. 1] does not provide for an accrual date for the recovery of response costs, ... the same accrual date applies under MERLA as provided for under Minnesota common law for damages to real property.” UP v. Reilly, slip op. at 10 (Feb. 9, 1998). The district court noted that under the common law, accrual occurs when the plaintiff knows or reasonably should know of the damage to property. See id. In a later order, dated May 26, 1998, the district court considered for the first time the relevance of 42 U.S.C. § 9658, 8 in the context of denying a motion by Reilly for reconsideration of its earlier decision regarding the applicable accrual date. The district court reasoned: “CERCLA preempts Minnesota’s statute of limitations for hazardous substance cases and imposes the federally required commencement date: the date that [UP] knew or reasonably should have known of the contamination.” See id. at 16-20 (May 26, 1998). We essentially agree.
The “federally required commencement date” is “the date the plaintiff knew (or reasonably should have known)” that the hazardous substance caused or contributed to the personаl injury or property damages. 42 U.S.C. § 9658(b)(4)(A). Practically speaking, CERCLA essentially preempts state statutes of limitations if those state law claims are based upon exposure to hazardous substances released into the environment and the applicable limitations period provides for an earlier commencement date than federal law.
Tower Asphalt, Inc. v. Determan Welding & Tank Serv.,
However, under § 9658, the federally required commencement date arguably yields to state law if the commencement date under the applicable state statute of limitations is later than that federally required commencement date. In other words, if MERLA’s limitations period commences when response costs are first incurred, as UP now contends, then that commencement date arguably should govern in the present case according to the terms of § 9658. We must therefore determine when the MERLA limitations period commences under Minnesota law.
We decide questions of state law
de novo. See Salve Regina College v. Russell,
Indemnity and contribution claims
Finally, UP argues that the district court erred in entering judgment for Reilly on its common law claims seeking indemnification or contribution. See UP v. Reilly, slip op. at 9-15 (Dec. 28, 1998). UP maintains that the district court’s disposition of these equitable claims is inconsistent with Minnesota law and contrary to principles of equity, justice, and sound public policy. We disagree, and affirm the district court on the indemnity and contribution claims for the reasons set forth in the district court’s opinion. See id.
As the district court explained, UP’s indemnity claim fails because “[a] party seeking indemnity must show an express contractual relationship or implied legal duty that requires one party to reimburse the other entirely.”
Id.
at 10 (citing
Hendrickson v. Minnesota Power & Light Co.,
[UP] has not proven any express or implied legal relationship that would require Rеilly to be wholly responsible for [UP’s] expenditures. In fact, the court has specifically found that both Reilly and [UP] are responsible for the reasonable response costs incurred by [UP].
Id. at 11.
As to the contribution claim, the district court correctly noted that UP has failed to establish that it and Reilly share a common liability as joint tortfeasors to an injured third party, with that common liability existing at the time the tort was committed, as generally required under Minnesota law.
See id.
at 9-13 (citing, e.g.,
Vesely, Otto, Miller & Keefe v. Blake, 311
N.W.2d 3, 4-5 (Minn.1981)). The district court observed, however, that Minnesota courts “will sometimes allow
We assume for the sake of argument that the Minnesota Supreme Court would allow UP’s common law contribution action to proceed, absent common liability, if equitable and public policy considerations warranted the action. Accordingly, we now assess those considerations in the present case.
To begin, as the district court noted, UP was not without a legal remedy under Minnesota law. UP had a MERLA claim that was barred only because of UP’s оwn failure to bring its claim within the applicable statutory limitations period. Therefore, as the district court reasoned, while the Minnesota courts might permit a claim for contribution where an otherwise available legal remedy was foreclosed by circumstances beyond the plaintiffs control, that could not be said about UP in the present case. UP’s untimeliness was a matter of its own doing. In our opinion, therefore, equitable considerations disfavor UP’s position.
Moreover, we agree with the district court that public policy weighs against allowing UP’s contribution claim. As the district court reasoned,
[T]o grant a party the option of resting on its MERLA rights would be to grant it the option of sitting quietly on its polluted property. And this, of course, would be contrary to a “primary goal оf [CERCLATs] and MERLA’s] private cost recovery framework[s],” namely, “to ‘encourage timely cleanup of hazardous waste sites.’ ”
Id.
at 14 (quoting
Control Data Corp. v. S.C.S.C. Corp.,
In sum, we hold that the district court did not err in granting judgment for Reilly on UP’s common law claims for indemnity and contribution. 11
Each of UP’s remaining arguments on appeal is either meritless or moot in light of this opinion.
Conclusion
For the reasons we have stated, the judgment of the district court is affirmed.
Notes
. The Honorable David S. Doty, United States District Judge for the District of Minnesota.
. The district court noted that it is undisputed in the present case that the response action at the UP site was a "remedial,” as opposed to a "removal action,” which entails less stringent regulatory oversight.
See Union Pacific R.R. Co. v. Reilly Indus., Inc.,
. In the same order, the district court dismissed without prejudice UP's state law claims, see UP v. Reilly, at 1238-1239 (1997), but subsequently the district court reinstated those claims upon determining that it could exercise jurisdiction based on diversity of citizenship. See id. (Jan. 12, 1998) (order granting motion for reconsideration).
.
See County Line Inv. Co. v. Tinney,
. Lynn Grigor, a representative of the VIC program, discussed the remediation options that had been considered. With respect to bioremediation, she said:
We looked at using the local microorganisms to complete the cleanup, but ... we found that it would just take too long a period of time.... We couldn’t use bior-emediation.
With respect to recycling, she said:
We also looked at re-using the material in the creosote soils in the asphalt, in building materials; say for a parking lot.... [W]e decided it just wasn't reasonable to use it in asphalt.
With respect to landfilling, she said:
The third option, which we really didn’t like, was to take this material to a landfill. ... [But,] [w]hat we wanted here was a permanent remedy where the railroad would do a cleanup and then walk away from the property and have the property ready for development and not have to worry about future cleanup of a landfill.
With respect to thermal desorption, she said:
We heard about a system called, "Thermal desorption with an afterburner” and we actually do have a unit, which as of mid-August, we hope to have а permit for use in Minnesota.
We hope to have the desorption unit here sometime in September and we hope to do a quick run-through of the soil. It should lake about two weeks, we figure, to get the soil all cleaned up and once this soil is cleaned up; the unit, which is mobile, will go to another site.
So we’re only going to be cleaning up the soils from this particular piece of property, at this location, and then [the thermal desorption unit] it will go on to another location.
Appellant’s Appendix (Vol.4) at 1126-33 (transcript of Aug. 1, 1994, public meeting); see also id. at 1259-60, 1270-71 (transcript of Nov. 30,. 1994, public meeting) (similarly stating that bioremediation was considered and rejected and that ”[w]e were quite happy when AST came along with a technology that would work, and we’ve [the MPCA] kind of been working with them [AST] quite a bit to see them through thе process”) (statement of Jerry Stahnke, representing the MPCA).
. The notice announcing the meeting on November 30, 1994, stated:
A Remedial Action Workplan (Workplan) has been submitted to the [MPCA], The full administrative record on this site and the Workplan is available for review at the Minnesota Pollution Control Agency ... Please provide any written comments on the Workplan .... by December 1, 1994.
UP v. Reilly, at 1234 (1997) (quoting public notice (contained in Appellant’s Appendix (Vol.4) at 1252)). The record does not clearly reveal the date on which that notice was publicized; however, UP makes no allegation, and we discern no factual dispute, that this notice was publicized at least 30 days before the December 1, 1994, deadline for submission of written and oral comments.
. Because we dispose of the CERCLA claims on the basis of UP's failure as a matter of law to substantially comply with the NCP's public participation and comment requirements, we decline to address the district court's additional holding that UP failed as a matter of law to substantially comply with the NCP’s RI/FS requirements.
. Section 9658 provides in relevant part:
In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the Stale statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.
42 U.S.C. § 9658(a)(1).
. The jury was required to make an advisory finding as to when UP knew or should have known the property was damaged by creosote. In response to an interrogatory, the jury found that UP knew or should have known about the creosote contamination pri- or to December 22, 1988, more than six years prior to the commencement of this action.
.
Hendrickson v. Minnesota Power & Light Co.,
. Because UP’s common law indemnity and contribution claims are not viable under Minnesota state law, the district court declined to reach the question of whether those claims are otherwise preempted by CERCLA. See UP v. Reilly, slip op. at 15 n. 3 (Dec. 28, 1998). We similarly decline to address the preemption issue at this time.