Regents of the University of Minnesota v. United States of America et al

Filing 237

ORDER denying 184 Motion to Exclude Expert Testimony; denying 188 Motion for Partial Summary Judgment; denying 192 Motion to Exclude Expert Testimony; denying 193 Motion for Summary Judgment; denying 197 Motion to Exclude Expert Testimony; granting 201 Motion for Partial Summary Judgment; denying 208 Motion for Summary Judgment; denying 231 Motion to Supplement Record(Written Opinion) Signed by Judge David S. Doty on 11/3/2022. (JRC)

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 1 of 54

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 17-3690(DSD/ECW)
Regents of the University
of Minnesota,
Plaintiff,
v.

ORDER

United States of America; and
E.I. du Pont De Nemours and Company,
Defendants.
Rick E. Kubler, Esq., Richard C. Landon, Esq. and Lathrop GPM
LLP, 80 South 8th Street, Suite 500, IDS Center, Minneapolis,
MN 55402 and Brian J. Slovut, Esq., University of Minnesota,
Office of the General Counsel, 200 Oak Street SE, Suite 360,
Minneapolis, MN 55455 counsel for plaintiff.
Friedrich A.P. Siekert, United States Attorney’s Office, 300
South 4th Street, Suite 600, Minneapolis, MN 55415; Phillip
R. Dupre and Lauren Denise Grady, DOJ-ENRD P.O. Box 7611,
Washington, DC 20044, counsel for defendant United States of
America.
John McGahren, Esq. and Morgan Lewis & Bockius LLP, 502
Carnegie Center, Princeton, NJ 08540 counsel for defendant
E.I. du Pont De Nemours and Company.
This matter is before the court upon various motions by the
parties, including the motions to exclude the expert testimony of
David Heidlauf (joined by defendant E.I. du Pont De Nemours and
Company

(DuPont)),

for

partial

summary

judgment

prohibiting

recovery of certain costs under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) (joined by
DuPont), for summary judgment under CERLA Section 107 by defendant

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 2 of 54

United States of America (Government); and the motions to exclude
the expert testimony of Wiley Wright and Robert Zoch, for partial
summary judgment, and to correct the record by plaintiff Regents
of the University of Minnesota (University).
Based on a review of the file, record, and proceedings herein,
and for the following reasons, the court grants the University’s
motion

for

motion

to

partial
exclude

summary
expert

judgment,
testimony

denies
as

the

moot,

University’s

denies

without

prejudice the University’s motion to correct the record, denies
defendants’

motions

for

partial

summary

judgment,

and

denies

without prejudice defendants’ motion to exclude expert testimony.
BACKGROUND
This dispute arises out of competing cost recovery claims
under

CERCLA

and

the

Minnesota

Environmental

Response

and

Liability Act (MERLA) following investigations into releases of
hazardous substances at the Gopher Ordinance Works (GOW), a World
War II ordinance facility.
I.

The GOW
The GOW was located on 13,600 acres of land in Rosemount,

Minnesota, was owned by the Government and was designed, built,
and operated by DuPont to produce smokeless cannon and rifle
powder, oleum and other materials used in the manufacture of
smokeless powder.

ECF No. 124, at 2.

2

Between November 1944 and

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 3 of 54

August 1945, DuPont produced an estimated 29 million pounds of
smokeless powder, 80 million pounds of oleum and 51 million pounds
of nitric acid at GOW.
After

the

war,

Id.
the

Government

declared

the

GOW

surplus

property and transferred portions of the property to the University
through two quitclaim deeds: the first transferring a 4,687-acre
parcel in 1947, and the second transferring a 3,320-acre parcel
containing most of GOW’s buildings, infrastructure, and equipment
in 1948.

ECF No. 124, at 2-3.

The parties have stipulated that

the approximately 8,000 acres of former GOW property acquired by
the University in these two quitclaim deeds constitute the “Site,”
which is a “facility” within the meaning of Section 101(9) of
CERCLA.

ECF No. 181 ¶ 1.

This includes the western portion of

the Site now being mined for sand and gravel, which is referred to
herein as the UMore Mining Area or UMA.
In the mid-1980s, Congress passed the Defense Environmental
Restoration Act, 10 U.S.C. § 2701, et seq. (DERA).

Under DERA,

the Department of Defense (DoD) is required to
carry out (in accordance with the provisions of this
chapter and CERCLA) all response actions with respect to
releases of hazardous substances or pollutants or
contaminants from each of the following: ... (B) Each
facility or site which was under the jurisdiction of the
Secretary and owned by, leased to, or otherwise
possessed by the United States at the time of actions
leading to contamination by hazardous substances or
pollutants or contaminants.

3

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 4 of 54

10 U.S.C. § 2701 (c)(1).

Sites that were formerly owned, leased,

or possessed by DoD are referred to as Formerly Used Defense Sites
or FUDS.
Pursuant to a Defense and State Memorandum of Agreement with
DoD, MPCA has overseen FUDS Program activities in Minnesota at all
times relevant to this matter.

See ECF No. 203-2 (describing the

Memorandum of Agreement).
In October 1999, the United States Army Corps of Engineers
(USACE) submitted an Inventory Project Report (INPR) concerning
the GOW to the MPCA that listed GOW as a FUDS and acknowledged
that several areas of the Site had not been fully investigated and
therefore required further study.

ECF No. 176, at 4.

In November 1999, MPCA provided written comments to the INPR
and requested that USACE investigate the Site and perform a Phase
I Site Assessment of the GOW “to aid in the design of an effect
[sic] field program to evaluate potential impacts this FUDS may
pose to human health and the environment.”

ECF No. 203-1, at 4.

USACE did not perform the Phase I Site Assessment.
II.

MPCA’s Investigation Requests
In May 2001, MPCA notified the University of its intention to

require USACE to complete a full investigation of GOW.
203-2.

ECF No.

MPCA stated its “focus is making sure that the USACE

fulfills its obligations to investigate the GOW and remediate any
releases that may be found.”

Id.

4

USACE refused to investigate

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 5 of 54

the Site, claiming the University assumed that responsibility in
the 1948 quitclaim deed and because the University and DuPont were
also Potentially Responsible Parties (PRPs).

Id.

Because USACE refused to do so, the University agreed in late
2002 to join with MPCA and Dakota County to perform a preliminary
environmental investigation of former GOW operational areas.

The

University retained Peer Environmental and Engineering Resources,
Inc. (PEER) to perform this study.

PEER’s report confirmed the

presence of GOW-era releases of hazardous substances in several
areas of the Site in excess of regulatory criteria.

ECF No. 204-

14, at 12-13.
In November 2003, MPCA and the University met with USACE
representatives

to

discuss

the

preliminary

environmental

investigation, and the MPCA again requested that the Government
fully

investigate

the

Site.

In

response,

USACE

initially

identified several environmental projects it would complete at the
Site.

ECF No. 203-3.

However, on September 18, 2004, USACE

changed course and declined to complete any investigation, again
citing to the language in the 1948 quitclaim deed.

ECF No. 203-

4, at 5.
In 2006, USACE performed a limited Preliminary Assessment
(PA), which was a study looking only at the 1947 parcel in order
to determine whether DoD may have responsibility for releases of
hazardous substances during DoD’s ownership or operation of the

5

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 6 of 54

Site but did not investigate other activities at the Site.
No. 199-13, at 57:19-58:9.

ECF

Although the PA did not investigate

University activities, and although the draft final version of the
PA that was submitted to the MPCA included no references to the
University or post-GOW activities, see ECF No. 199-7, at 65:8–12,
the final version of the PA added references to the University in
its executive summary in an attempt to support the University’s
potential status as a PRP.1
On January 4, 2006, MPCA sent correspondence to USACE with
comments on the PA and USACE’s refusal to fully investigate the
Site, stating that “the owner and/or operator of GOW, in this case
the Federal Government, would be considered a responsible party
for environmental contamination found at the site,” regardless of
the language found in the historical deed or property transfers,
and

that

“it

is

MPCA’s

position

that

the

Corps

must

fully

investigate the nature and extent of contamination to all media
associated with all aspects and areas of the GOW operation.”
No.

203-6.

USACE

again

investigation of the Site.

rejected

MPCA’s

request

for

a

ECF
full

ECF No. 203-7.

The PA did not advance response actions at the Site, but
rather “advanced the Corps in its prioritization of funding.” ECF
No. 199-8, at 153:13–154:14.
1

6

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 7 of 54

III. USACE’s Environmental Studies
After

continued

Congressional

pressure

delegation,

from

USACE

MPCA

and

completed

a

Minnesota’s
Focused

Site

Inspection Report for the 1947 parcel (FSI), a limited PA for the
26.7-acre Steam Plant parcel (Limited Steam Plant PA), and an
Expanded

Site

Inspection

Report

(ESI).

See

ECF

No.

203-6

(requesting additional investigation); ECF No. 199-8, at 168:4-17
(identifying

Congressional

investigation).
were

to

pressure

as

reason

for

additional

USACE admitted its objectives for the FSI and ESI

“support

the

Department

of

the

Army

(DA)

with

PRP

determination and closeout of eligible areas in a timely manner.”
ECF No. 203-10.

USACE nevertheless continued to refuse to conduct

any investigation of the 1948 parcel.
In commenting on the draft FSI, MPCA noted, “as the MPCA has
previously stated to the Corps, a full and complete Remedial
Investigation/Feasibility

Study

(RI/FS)

is

necessary

for

the

entire GOW site, regardless of when the property transfer took
place.” ECF No. 203-11. MPCA also stated that “this investigation
does confirm previous data collected by the MPCA which documents
releases of hazardous substances has [sic] occurred at the Site,
and those releases are attributable to GOW operations.”

Id.

After USACE finalized the ESI report, in early 2010, it
announced no further FUDS funds would be spent at GOW, except to
defend claims against the DoD.

ECF No. 203-15.

7

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 8 of 54

In a May 28, 2010, response to the ESI, MPCA noted it is the
lead regulator for Superfund investigations in Minnesota, that
USACE did not provide any opportunity for MPCA to review and
comment on the USACE’s sampling plan for the ESI and identified
several perceived shortcomings of the ESI.
stated

that

“the

ESI

again

documented

ECF No. 203-16.
releases

of

MPCA

hazardous

substances to the environment as a result of GOW operations under
… [DoD] ownership, and determined that additional investigations
are warranted.”

Id.

The MPCA again requested that USACE complete

a full RI/FS of the entire Site.
Months

later,

USACE’s

Id.

legal

counsel

responded

to

MPCA’s

comments on the ESI, advising MPCA that:
The ... [FUDS] Program is limited to addressing
contamination resulting from ... DoD activities. The
FUDS Program may not assume responsibility released by
other parties nor can it relieve the terms under which
the property was transferred.
To determine DoD
responsibilities at a FUDS, the Army reviews historical
documents of DoD property use and transfer documents and
conducts limited investigations.
ECF No. 203-17.

USACE’s lawyer then suggested that “other parties

should take responsibility for further investigations that may be
necessary.”

Id.

It is undisputed that USACE did no further work

at the Site after 2009.
In November 2009, Minnesota Congressman John Kline wrote to
the Department of the Army asking that USACE perform an RI of the
1948 parcel.

ECF No. 203-14.

After a meeting at Congressman

8

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 9 of 54

Kline’s office in March 2010, USACE maintained its position that
the University or DuPont should complete the RI: “[T]he Army cannot
commit to initiating a ... [DoD] led cleanup under the ... [FUDS]
Program of the GOW property for several reasons as discussed during
the March 2 meeting.

The Army is, however, willing to enter into

discussions with the UMN under appropriate circumstances regarding
the

legal

issues

between

the

United

potentially responsible parties.”
IV.

States,

UMN

and

other

ECF No. 203-15.

The University’s Initial RI Activities
Because of USACE’s refusal to conduct the full RI, pressure

from the MPCA fell on the University, as the current owner of the
property, to complete that investigation.
University

issued

a

Request

for

In May 2008, the

Proposals

(RFP)

for

an

environmental consultant to perform a Remedial Investigation and
Feasibility Study of the entire Site.
competitive

bidding

process,

the

ECF No. 220-1.
University

After a

selected

Barr

Engineering Company (Barr) to complete the work and entered into
a Master Service Agreement (MSA) with Barr in August 2008.
No. 206-7, at UMNR00195010.
RI/FS of the entire Site.

ECF

The MSA required Barr to complete the
Id.

Although Barr’s work would eventually address the entire
Site, MSA Work Order #1, dated September 8, 2008, defined the
initial area for RI study as the UMA.
4, at 22:1–23:16.

9

ECF No. 220-2; ECF No. 220-

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 10 of 54

Work Order #1 directed Barr to prepare an RI Work Plan and
supporting documents that would “satisfy the requirements of”
CERCLA, MERLA and the National Contingency Plan (NCP).
220-2, at 5.

ECF No.

The supporting documents required in Work Order #1

for the RI included a Quality Assurance Project Plan (QAPP), a
Sampling and Analysis Plan (SAP), and a Health and a Safety Plan
(HASP).

Id.

Preparation and use of each of these supporting

documents is required to comply with CERCLA, MERLA, and the NCP.
ECF No. 205-1, at 25.
The RI work completed by Barr from 2008 to 2010 included the
Phase II Investigation, Sites of Concern (SOCs) 1-3 and 6-8 (Phase
II),

the

Supplemental

Site

Inspection

(SOC

4)

and

Remedial

Investigation (SOC 5) (SSI/RI), the Groundwater Assessment, and
the Ancillary Use Facility Investigation.

See ECF No. 204-14, at

UMP024932, UMP024936; ECF No. 205-1, at 20–22.
The University has submitted testimony from its expert, David
Heidlauf, a hydrogeologist with over 35 years’ experience in
managing Superfund site investigations and cleanups, who opines
that the studies completed by Barr between 2008 and 2010 were
“necessary” and complied with CERCLA, the NCP, and MERLA.
205-1, at 15–16, 20–22.

ECF No.

It is undisputed that these Barr studies

10

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 11 of 54

were cited and relied on in the final RI.

ECF No. 204-14, at

UMP024925–24936.2
A.

Groundwater Assessment

The

Government

and

DuPont

argue

that

the

Groundwater

Assessment was prepared in support of an Environmental Impact
Statement (EIS) for a mining project located at the UMA, and
therefore is not recoverable as a necessary or reasonable response
cost under CERCLA.

ECF No. 189, at 12.

The University entered into a separate MSA Work Order #2 with
Barr to prepare a Groundwater Assessment Work Plan.
3.

ECF No. 220-

Work Order #2 expressly contemplated that the data generated

in the Groundwater Assessment would be used in the RI: “[Barr] ...
is preparing a Remedial Investigation Work Plan (RI Work Plan)
under Work Order #1 to be completed concurrently with the EIS
Groundwater Assessment Work Plan.

Installation of the monitoring

wells and associated sampling and data collection will be addressed
in future contact work orders, and shall be completed in accordance
with the requirements of the Quality Assurance Procedures Plan to
be prepared by ... [Barr] under Work order #1.”

Id.

The Groundwater Assessment was performed under a November 11,
2008, work plan submitted to the MPCA.

2

ECF No. 190-3.

The

A breakdown for costs of Barr’s studies is included at ECF
No. 227-2, at 37.

11

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 12 of 54

Groundwater
monitoring
groundwater

Assessment
wells

involved

within

and

elevations

hydrogeologic data.

and

Id.

installation

outside

the

collection

of

UMA,
of

a

network

of

measurement

of

other

Site-wide

Barr issued the final Groundwater

Assessment Report on June 30, 2009.

See ECF No. 205-1, at 5-6.

Barr relied on, cited to, and referenced the Groundwater
Assessment in the Phase II, [ECF No. 220-12, at UMP007224-25,
07236, 07243], the SSI/RI, [ECF No. 220-14, at UMP018120-21,
UMP018148], the Remedial Investigation of UMore East, [ECF No.
220-19, at UMP013326, UMP013330, UMP013335, UMP013338-39, and
UMP013413], and the Remedial Investigation of UMore Park/GOW, [ECF
No. 204-14, at UMP02924, UMP024932-33, and UMP024985], regarding
hydrogeologic conditions and the groundwater flow regime across
the Site.
The University has presented testimony that the study of
hydrogeological conditions in the Groundwater Assessment were
necessary for a full characterization of the Site, as required
under the NCP, CERCLA, and MERLA, and that the RI would have been
incomplete without it.
In

challenging

ECF No. 205-2, at 60:2–61:1.

the

necessity

of

the

Groundwater

Study,

defendants argue that the study “did not investigate the presence
of

CERCLA

hazardous

operations at the Site.”

substances

associated

with

historical

ECF No. 212-4, at 2, 13 -14.

Defendants

do not, however, identify evidence that the RI could have been

12

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 13 of 54

completed in compliance with MERLA, CERCLA, and the NCP without
fully assessing the hydrogeological conditions at the Site, as was
done in the Groundwater Assessment.
No.

205-2,

at

60:2–61:1

(stating

See ECF No. 205-1, at 10; ECF
that

a

full

hydrogeologic

assessment is a required element of an RI).
B.

Phase II Environmental Site Assessment

The Government and DuPont argue generally that the Phase II
investigation by Barr was also meant to support the EIS rather
than the RI, [ECF No. 189, at 12-14], but they have not challenged
that it was incorporated in and relied on in the RI or submitted
evidence that the RI could have been completed without it.
The Phase II work plan was prepared “to address possible
subsurface
activities

environmental
in

the

UMA.

impacts
The

Plan

resulting
has

been

from

previous

developed

to

be

consistent with the National Continency Plan (NCP) requirements
and will be administered under the authority of the MPCA Superfund
Program.”

ECF No. 220-6, at UMP004297.

The MPCA reviewed and

commented on prior drafts of the Phase II work plan.
7; ECF No. 220-8.

ECF No. 220-

The MPCA directed that “a full and complete

Superfund Remedial Investigation is needed for the UMore Park/GOW
site/property.”

ECF No. 220-8.

Based on comments by MPCA and Dakota County, the University
submitted a revised Phase II work plan to MPCA for review and
approval on May 1, 2009.

ECF No. 220-6, at UMP004295.

13

The MPCA

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 14 of 54

also provided several rounds of comments on the QAPP and SAP
developed for the Phase II investigation.
220-10.

ECF No. 220-9; ECF No.

MPCA approved the Phase II work plan on June 16, 2009.

ECF No. 220-11.
Barr completed the Phase II investigation and submitted the
Report to MPCA on November 12, 2009. ECF No. 204-14, at UMP024932.
MPCA reviewed and provided technical comments to the Phase II
Investigation Report on February 24, 2010, concurring with Barr’s
findings.
C.

ECF No. 220-13.
Supplemental Site Inspection

The Government and DuPont similarly challenge the SSI/RI as
prepared for the support of the EIS rather than the RI, but again
present no evidence that it was not incorporated in and relied on
in the RI or that the RI could have been completed without it.
The University submitted the SSI/RI work plan to MPCA for
review on June 25, 2009.
2009 Work Plan).

See ECF No. 220-15 (approving June 25,

The purpose of the SSI/RI was “to evaluate the

nature and extent of environmental impacts related to operations
that occurred at the subject SOCs during and after operation of
the former Gopher Ordnance Works (GOW).”
UMP005477.

ECF No. 220-14, at

MPCA approved the SSI/RI work plan on August 12, 2009.

ECF No. 220-15.
Barr completed the field work and submitted the SSI/RI Report
to MPCA on January 12, 2010.

ECF No. 220-16.

14

MPCA reviewed and

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 15 of 54

commented on the SSI/RI report on March 11, 2010, concurring with
the findings and stating that further investigation and other
response actions would be necessary in the future.

ECF No. 220-

27.
D.

AUF Investigation

The

University

also

completed

a

Preliminary

Subsurface

Investigation, Ancillary Use Facility, UMore Mining Area (AUF
Investigation).

The AUF Investigation was performed under a work

plan that was submitted to and reviewed by the MPCA.
17.

ECF No. 220-

The AUF work plan was developed to “evaluate six areas of

concern identified for the AUF. The AUF will include test trenching
excavations and the collection of soil samples for laboratory
analysis.”

Id.

The AUF Investigation incorporated the field and

sampling methods from the QAPP and SAPs for the Phase II and
SSI/RI.

Id.

The AUF Investigation Report was submitted to MPCA

on May 11, 2010.
V.

ECF No. 220-18.

The University’s RI Work From 2011-2017
In March 2011, the University advised MPCA that because USACE

refused to do so, it would complete a RI of the 1948 parcel, but
reserved all of its rights to pursue cost recovery from USACE.
ECF No. 203-18.

MPCA hosted a public meeting on May 19, 2011, to

review the University’s draft RI work plan.

ECF No. 203-19.

The

University issued its final RI for the 1948 Parcel in February
2012, finding that “[t]he areas with the greatest environmental

15

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 16 of 54

impacts appear to be consistent with the historical operations of
the GOW.”

ECF No. 203-22.

MPCA agreed.

ECF No. 203-23.

The MPCA then asked the University and USACE to enter into a
Cooperative Cleanup Memorandum Agreement (CCMA) to address future
investigation and cleanup of the Site.

ECF No. 203-24.

The

University agreed to do so if USACE was also a signatory to the
CCMA.

ECF No. 204-6.

USACE, however, refused and again invited

the University to file a lawsuit.

ECF No. 204-1. USACE’s lawyer

told MPCA that opening the PRP Project for the Site was for done
“for

management

purposes

Department of Defense.”

and

to

defend

claims

against

the

ECF No. 203-25.

In October 2013, Minnesota Governor Mark Dayton wrote to
Secretary

of

the

Army

John

McHugh,

stating

Minnesota’s

“longstanding concern about the polluted condition of the GOW
site,” and requested that Secretary McHugh direct USACE to enter
an agreement with the University and MPCA to complete the necessary
steps to address the pollution.

ECF No. 204-2.

The Army refused.

ECF No. 204-4.
On November 5, 2013, the MPCA issued a Commissioner’s Notice
Letter (CNL) identifying the University and USACE as PRPs, and
threatening issuance of a formal Request for Response Action (RFRA)
and potential civil penalties if they did not enter into a CCMA to
complete the RI.
CNL to DuPont.

ECF No. 204-5.

ECF No. 204-7.

16

The MPCA later sent a similar

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 17 of 54

Around that time, MPCA again directed the parties to complete
the RI.

ECF No. 204-3.

MPCA later agreed to delay issuing a RFRA

if a party would agree serve as lead for conducting a RI.
204-8.

ECF No.

The University agreed to lead the RI because USACE refused

to do so.

ECF No. 204-9.

USACE made its position clear on its role in the RI process,
stating through its lawyer that “USACE is not conducting this RI,
or working jointly with the U of M in preparation of the RI.”
No. 204-10.

ECF

Further, USACE “will not participate in public

meetings on the RI work by the U of M and does not anticipate
meeting with the MPCA regarding the RI work by the U of M unless
requested to do so by the MPCA for the public benefit.”

Id.

USACE

explained that its “technical role in this RI is limited to
offering

suggestions

and

recommendations,

decisions or implementing actions.”

Id.

but

not

to

making

As a result, USACE

disclaimed any “decision authority” over the RI work.

Id.

The University submitted its RI work plan to MPCA in April
2016.

MPCA requested public comments and hosted a public meeting

in June 2016 to review the work plan, and then approved it.

ECF

No. 204-11.
The University conducted the RI in 2016 and issued the final
RI Report in May 2017 (2017 RI).

ECF No. 204-14.

The 2017 RI

documented releases of hazardous substances at the Site that

17

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 18 of 54

resulted from former GOW activities.

Id. at 61–64; see also ECF

No. 204-13.
USACE reviewed the 2017 RI Report and submitted comments to
MPCA in June 2017, expressing concerns about compliance with CERCLA
and the NCP.

ECF No. 204-15.

MPCA disagreed, stating that the

2017 RI “met the requisite MPCA Superfund guidelines,” which are
“consistent with Federal Superfund Guidelines.”

ECF No. 204-17.

MPCA also noted it was perplexing and inconsistent that USACE
decided to comment on the 2017 RI while “simultaneously limit[ing]
its involvement in completing necessary RI activities at the Site.”
Id.

The MPCA observed that USACE’s comments appeared to “focus on

determining levels of responsibility for releases instead of on
technical aspects of the ... [2017 RI] Report.”

Id.

On August 10, 2017, MPCA expressly authorized the performance
of removal and remedial actions by the University in response to
the release of hazardous substances at the Site, including the
“completion of the remedial investigation activities taken by the
University between 2002 and 2016, collectively comprising the
Remedial Investigation.”

ECF No. 204-16.

MPCA “determined that

the approved response actions taken by the University to date were
reasonable and necessary in response to the release or threatened
release of hazardous substances, pollutants or contaminants at the
Site ....”
31, 2017.

Id.

The MPCA approved the 2017 RI Report on October

ECF No. 204-18.

18

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MPCA

requested

that

USACE

and

the

University

perform

a

Feasibility Study (FS) to determine appropriate response actions
for the identified release of hazardous substances at the Site.
ECF

No.

204-18;

ECF

No.

204-19.

The

Government

refused,

purportedly due to this pending litigation and suggested that MPCA
look to the University to complete the FS.

ECF No. 204-20.

The

University contracted with Barr Engineering to complete the FS in
November 2021.

ECF No. 204-21.

The FS, which will initially

address four areas of concern in the north-central portion of the
Site, is ongoing with MPCA oversight.
VI.

Summary of the University’s Stated Response Costs
Since 1999, the MPCA repeatedly stated that a complete RI was

necessary at the Site.

ECF Nos. 203-1, 5, 6, 9, 11, 16, 20, 24,

and ECF No. 204-5. Between 2002 and 2017, the University completed
thirteen studies comprising the RI and performed related response
action activities for which it now seeks cost recovery.

See ECF

No. 204-14, at 8–20; ECF No. 205-1, at 4–13.
The University’s studies were performed consistent with MPCAapproved work plans and supporting documents.
203-13, 203-21, 204-11, and 204-12.

ECF Nos. 203-12,

The MPCA determined that the

2017 RI work plan met “MPCA Superfund Program guidance established
under ... [MERLA] and is consistent with the U.S. EPA Superfund
Program guidance for completing Remedial Investigations under ...
[CERCLA].”

ECF Nos. 204-11, 204-12.

19

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Although

not

required

for

initial

investigations,

the

University has put forth evidence that the studies were prepared
consistent with the NCP, CERCLA, and MERLA.
8,

66;

ECF

No.

205-1,

at

18-23.

ECF No. 204-13, at 3,

These

investigations

were

specifically called for in the NCP to investigate a site to
determine whether a release has occurred, sources of the release,
the contaminants of concern, the exposure pathways, what potential
risk

or

real

risk

exists,

information

necessary

remedial alternatives and selection thereof.

to

evaluate

ECF No. 205-2, at

53:13-19.
The

MPCA

has

issued

determination

response actions in question.

letters

approving

the

In particular, the MPCA noted on

August 10, 2017, that “[t]he approved response actions include
completion of the remedial investigative activities taken by the
University between 2002 and 2016, collectively comprising the
Remedial Investigation.”

ECF No. 204-16.

According to the MPCA,

these response actions “were reasonable and necessary in response
to the release or threatened release of hazardous substances,
pollutants or contaminants at the Site ....”

Id.

The Government and DuPont argue that the August 10, 2017,
letter does not specify which studies are approved.
at 11.

ECF No. 211,

But it is undisputed that the RI itself identified the

studies that it relied on — including all of the studies for which
the University is seeking to recover in this action — and that the

20

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 21 of 54

MPCA reviewed and approved the final RI.

The MPCA explicitly

rejected comments from USACE that questions whether the final RI
complied with the NCP.

ECF No. 204-17. Defendants have not

established that the MPCA did not approve of any of the specific
studies in question.
The University incurred $3,361,215.61 in completing the RI.
See ECF No. 206 ¶¶ 4, 8; ECF No. 204-22; ECF No. 231.
contracts,

invoices,

and

evidence

of

payment

to

contractors are attached to the Prytz Declaration.
206.

All the

University
See ECF No.

Two additional invoices not directly paid by the University

were also submitted to the court.

ECF Nos. 204-21, 204-22.

The

University has established that it incurred all of these expenses
based on records were kept by the University in the ordinary course
of business.

ECF No. 206 ¶¶ 3–5.

VII. Mining Lease
The Government and DuPont argue that some of the costs sought
by the University should not be allowed in this case because those
costs were already reimbursed through a mining lease involving the
western portion of the Site known as the UMA.

ECF No. 189, at 14.

The University executed a Mining Lease on June 8, 2011, with
Dakota Aggregates, which allowed Dakota Aggregates to mine sand
and gravel at the UMA.

ECF Nos. 220-21, 220-22.

Under that lease,

Dakota Aggregates agreed to pay a monthly production royalty to
the University based on the sand and gravel mined from the Site.

21

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In Sections 3.3 and 3.4 of the lease, Dakota Aggregates agreed
to advance to the University $1,382,931.96 in costs the University
had incurred for environmental development, engineering, and legal
expenses between May 1, 2009, and June 8, 2011, the Effective Date
of the Lease.
Section 3.4 of the lease is titled “Expense Reimbursement,”
which

provided

that

Dakota

Aggregates

would

“reimburse”

the

University for costs “paid or incurred by University in connection
with

completion

and

approval

of

statement” for sand and gravel mining.

the

environmental

impact

ECF No. 220-21, § 3.4 at

UMNR0033466. The lease also explained in Section 3.3(c) that these
payments “shall be credited as an advance payment of future
Production Royalty payments,” to be paid at 25% of the monthly
royalties owed.
It

is

Id. § 3.3(c) at UMNR0033465.

undisputed

that

the

$1,382,931.96

paid

by

Dakota

Aggregates included $732,695.85 in charges for investigation work
performed by Barr for which the University is seeking cost recovery
in this action.

ECF No. 220-24.

It is also undisputed that all

of the amounts owed to Dakota Aggregates under §§ 3.3(c) and 3.4
of the lease, including the $732,695.84 at issue, were repaid in
full as of April 2020.

ECF No. 220-26.

As such, the evidence

demonstrates that the University has borne the full cost of the
environmental response activities at issue in the case.

22

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Although

The

Government

and

DuPont

identify

various

references in the lease and related communications to the word
“reimbursement,”

the

record

establishes

that

the

University

understood the payment by Dakota Aggregates to be an advance of
royalties that would be paid back over time.

ECF No. 220-4, at

47:22–49:5; ECF No. 220-5, at 63, 66, 67, 68, 73, 77-78, 78-79,
80; ECF No. 220-25.
VIII. Summary of the Government’s Costs
The Government claims to have incurred response costs in the
as follows:

$779,927.27 in internal USACE costs from 2000–2021;

$812,276.45 in contractor costs; and $90,249.40 in attorney’s
fees.3
It has offered evidence including internal time records, an
expert report from accountant Wiley Wright, and an expert report
from accountant William Kime to support its claim.

See ECF Nos.

195-1, 195-2, and 195-4.
Although USACE time records indicate that employees recorded
time under a GOW-related code, the Government has not presented
evidence, by employee affidavit or through any contemporaneous
time records, that the work being performed was actually in
response to a release or threatened release at the Site.

The parties’ dispute regarding the amount of prejudgment
interest on the Government’s costs will be addressed by the corut
at a later time.
3

23

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USACE’s records do not identify and separate response costs
when time is recorded and do not identify detail about work
performed.

See ECF No. 199-8, at 144:4-15, 163:14-15.

Any effort

to segregate costs is conducted via an informal process.

ECF No.

199-6, at 24:17-25:13.
USACE has offered an affidavit of employee John Phelps, who
sometime after this case was filed in 2017 began attempting to
identify which of USACE’s internal costs were response costs.
No. 195-6.

ECF

USACE estimated the number of hours worked that may

not have been response costs—either because it was related to
investigation into indemnification issues for the 1948 parcel,
related to communications with Congressional delegations about the
property, or responding to the MPCA regarding requests for a full
investigation—and removed those estimates from the total labor
costs.

ECF No. 199-11.

Phelps admits that these post hoc

adjustments were estimates, and he could not “venture a guess on
how close or how far it is in estimation.”

ECF No. 199-8, at

162:24-163:22.
IX.

This Case
On August 11, 2017, the University commenced this suit seeking

damages and declaratory relief from the Government and DuPont under
the

Comprehensive

Environmental

Response,

Compensation,

Liability Act (CERCLA) and from DuPont under MERLA.
17,

2017,

the

Government

answered

24

the

complaint

and

On November
and

filed

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 25 of 54

counterclaims alleging that (1) the University breached the 1948
Deed and 1948 Contract by seeking reimbursement for environmental
response costs and failing to indemnify the Government against all
lawsuits and claims relating to the 1948 Parcel; (2) the University
should be apportioned at least some of any response costs found to
be due under CERCLA; and (3) the University should be held liable
for

all

response

costs

incurred

or

that

may

be

incurred

in

connection with the Site. Answer and Countercl. ¶¶ 106-22. DuPont
answered the complaint, but did not file counterclaims or crossclaims.
The Government moved for partial judgment on the pleadings as
to its defense to the University’s CERCLA claim relating to the
1948

Parcel

and

its

breach-of-contract

counterclaim.

The

Government specifically requested that the court hold that the
University is not entitled to recover its response costs relating
to

the

1948

Parcel

and

that

the

University

is

obligated

to

indemnify and hold harmless the Government for all past, current,
and future response costs relating to the 1948 Parcel.

The court

denied the motion, concluding that the parties’ agreement is
ambiguous insofar as the indemnification provision is concerned.
ECF No. 57, at 7 (citations omitted).
would

be

better

positioned

to

The court noted that it

assess

the

scope

of

the

indemnification provision when presented with relevant extrinsic
evidence.

See

id.

(concluding

25

that

“whether

environmental

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 26 of 54

liability is included cannot be determined on the present record
absent

additional

factual

development”).

After

engaging

in

discovery, the parties filed the cross motions for partial summary
judgment relating to the Government’s counterclaim for breach of
contract

based

on

the

indemnification

corresponding affirmative defense.

provision

and

its

The Government also sought a

determination that the University is precluded from recovering
environmental

response

reimbursed.

The

costs

court

for

which

concluded

that

is

has

the

already

been

indemnification

provision did not indemnify the Government from environmental
liability and also deferred determination on the double-recovery
issue.

ECF No. 124, at 18.

The only issue before the court in the present summary
judgment motions, therefore, is to determine whether and to what
extent the University and the Government have incurred response
costs that are recoverable under CERCLA and MERLA.

The court will

determine the allocation of the total response costs to each party
after trial.

DISCUSSION
I.

Liability and Cost Recovery Under CERCLA
The University has brought a cost recovery action under CERCLA

§ 107 against the Government and DuPont. ECF No. 1. The Government

26

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 27 of 54

has

asserted

counterclaims

for

cost

recovery

against

University under CERCLA §§ 107 and 113, respectively.

the

ECF No. 24.

CERCLA establishes strict liability, covering “any person who
at the time of disposal of any hazardous substance owned or
operated any facility at which such hazardous substances were
disposed

of.”

42

U.S.C.

§

9607(a)(2).

To

establish

CERCLA

liability, a plaintiff must prove that “a defendant is within one
of the four classes of covered persons enumerated in subsections
(1) through (4); that a release or threatened release from a
facility has occurred; that the plaintiff incurred response costs
as a result; and that the costs were necessary and consistent with
the national contingency plan.”

Control Data Corp. v. S.C.S.C.

Corp., 53 F.3d 930, 934 (8th Cir. 1995).
Where

the

response

costs

are

incurred

by

an

enumerated

sovereign entity, “CERCLA provides that responsible persons are
liable for ‘all costs of removal or remedial action incurred by
the United States Government or a State or an Indian tribe not
inconsistent with the National Contingency Plan [NCP].’”

State of

Minn. v. Kalman W. Abrams Metals, Inc., 155 F.3d 1019, 1023 (8th
Cir. 1998), quoting 42 U.S.C. § 9607(a)(1)-(4)(A).
The parties have already stipulated that the Site is a
“facility” under CERCLA, [ECF No. 181 ¶ 1], there has been a
“release” of “hazardous substances” from that facility, [ECF No.

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CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 28 of 54

181 ¶ 2], and all parties fall within one or more of the classes
of responsible persons, [ECF No. 181 ¶ 3.]
As with the CERCLA claim, the University and DuPont have
stipulated under MERLA that the Site is a facility, [ECF No. 181
¶ 4], there was a release or threatened release of a hazardous
substance at the Site [ECF NO. 181 ¶ 5], and that the University
and DuPont are liable under MERLA, [ECF No. 181 ¶¶ 6-7].
of this order, thus,

The focus

is whether and to what extent the University

and the Government have incurred recoverable response costs under
CERCLA and MERLA.
Section 107 of CERCLA provides for the recovery of costs that
a government or private party incurs in responding to the release
of hazardous substances. Responsible “persons” are liable for
(A) all costs of removal or remedial action incurred by
the United States Government or a State or an Indian
tribe not inconsistent with the national contingency
plan; [and]
(B) any other necessary cost of response incurred by any
other person consistent with the national contingency
plan ....
42 U.S.C. §§ 9607(a)(2), (a)(4)(A)–(B).
CERCLA cost recovery often hinges on compliance with the NCP,
which identifies methods for investigating the environmental and
health

problems

resulting

from

a

release

and

criteria

determining the appropriate extent of response activities.

for

Matter

of Bell Petroleum Servs., Inc., 3 F.3d 889, 894 (5th Cir. 1993).

28

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Initial preliminary investigations, however, typically do not
require consistency with the NCP where there has not yet been a
selection of remedies for the site.

See Foster v. United States,

926 F. Supp. 199, 203 (D.D.C. 1996) (“Because the detailed NCP
provisions governing other response action cannot reasonably be
applied to preliminary monitoring and evaluation of a release of
hazardous

substances,

investigatory

costs

are

generally

recoverable irrespective of their consistency with the NCP.”);
Gache v. Town of Harrison, N.Y., 813 F. Supp. 1037, 1046 (S.D.N.Y.
1993) (“Courts have held that initial preliminary investigatory
and

monitoring

costs

are

recoverable

irrespective

of

the

recoverability of other response costs or compliance with the
requirements of the [NCP].”); CNH Am., LLC v. Champion Env’t
Servs., Inc., 863 F. Supp. 2d 793, 809 (E.D. Wis. 2012) (“[M]any
courts have held that initial investigation, site-assessment, and
monitoring

costs

are

recoverable

under

§

107(a)

of

CERCLA

irrespective of compliance with NCP requirements.”); Spectrum
Intern. Holdings, Inc. v. Universal Cooperatives, Inc., No. 0499, 2006 WL 2033377 (D. Minn. July 17, 2006) (noting that a
plaintiff

“may

be

entitled

to

recovery

of

investigative

and

monitoring costs without regard to NCP compliance.”).
II.

Liability and Cost Recovery Under MERLA
The

University

DuPont under MERLA.

has

brought

cost

recovery

claims

against

The liability provision of MERLA provides:

29

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[A]ny person who is responsible for a release
or threatened release of a hazardous substance
from a facility is strictly liable, jointly
and severally, for the following response
costs and damages which result from the
release or threatened release or to which the
release or threatened release significantly
contributes:
(a) All reasonable and necessary response
costs incurred by the state, a political
subdivision of the state or the United States;
(b) All reasonable and necessary removal costs
incurred by any person . . . .
Minn. Stat. § 115B.04, subdiv. 1.

MERLA defines “response” costs

to include “remove, removal, remedy, and remedial action.”
Stat. § 115B.02, subdiv. 18.

Minn.

In turn, the definition of “removal”

includes in relevant part:
(2) necessary actions taken in the event of a
threatened release of a hazardous substance,
or a pollutant or contaminant, into the
environment;
(3) actions necessary to monitor, test,
analyze, and evaluate a release or threatened
release of hazardous substance, or a pollutant
or contaminant;
[and]
(5) other actions necessary to prevent,
minimize, or mitigate damage to the public
health or welfare or the environment, which
may otherwise result from a release or
threatened release.
Minn. Stat. § 115B.02, subdiv. 17(a).
To establish recoverable costs under MERLA, the University
must show it incurred reasonable and necessary costs, which are

30

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those needed to “minimize the damage to the public health and
welfare of the environment.”

Musicland Group, Inc. v. Ceridian

Corp., 508 N.W.2d 524, 533 (Minn. Ct. App. 1993).
Although MERLA does not define the terms “reasonable” or
“necessary,” cases applying this standard specifically address
parties that were acting pursuant to instructions from the MPCA
and hold that the costs “incurred to implement the remedy set
forth” by the agency are reasonable and necessary.

Kennedy Bldg.

Assocs. v. CBS Corp., No. 99-1833, 2010 WL 3024714, at *2 (D. Minn.
Aug. 2, 2010); Minnesota ex rel. N. Pac. Ctr., Inc. v. BNSF Ry.
Co., No. 08-6385, 2011 WL 13201773, at *5 (D. Minn. Aug. 25, 2011),
aff’d, 686 F.3d 567 (8th Cir. 2012) (describing the “reasonable
and necessary” conclusion in Kennedy Bldg. Assocs. as “eminently
fair and consistent with the purposes of MERLA.”).
III. The University as the State
The University is an institution of higher education created
by charter and perpetuated by the Constitution of the State of
Minnesota, Art. XIII, § 3, and is an instrumentality of the State
of Minnesota.

See, e.g., Bd. Of Regents of Univ. of Minn. v. Reid,

522 N.W.2d 344, 346 (Minn. Ct. App. 1994) (stating that the
University “is a constitutional arm of Minnesota government.”).
As

an

instrumentality

of

the

State

of

Minnesota,

the

University therefore qualifies as the “State” for the purposes of
CERCLA § 107(a)(4)(A), and benefits from the presumption that

31

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response costs are consistent with the NCP. See, e.g., Wash. State
Dep’t of Transp. v. Washington Nat. Gas Co., Pacificorp, 59 F.3d
793, 800– 01 (9th Cir. 1995) (acknowledging that the WDOT was an
instrumentality of the state, and therefore was the “State” for
purposes of § 107 and benefited from the presumption of consistency
with the NCP).
The Government and DuPont argue that the University is not an
instrumentality

of

the

State,

but

is

instead

a

“political

subdivision,” which is excluded from the definition of “State”
under CERCLA, and therefore not subject to the presumption that
response costs are consistent with the NCP. This argument fails
because the Minnesota Supreme Court has ruled that the University
is not a political subdivision of the State.
Minn., 499 N.W.2d 799 (Minn. 1993).

Winberg v. Univ. of

Although Winberg

dealt

specifically with a different statutory scheme, its reasoning —
that the University does not have the power to tax and is a
constitutional

arm

of

the

state

—

applies

equally

here.

Defendants also argue that the MPCA’s August 10, 2017, [ECF
No.

204-16],

authorization

states

that

the

University

is

a

“political subdivision” under MERLA because it invokes Minn. Stat.
§

115B.17,

subdiv.

12,

which

provides

authorization

for

“permitting a political subdivision or private person to recover
response costs.”

But this argument misrepresents the evidence.

The MPCA’s letter states that it is authorizing performance of

32

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removal and remedial actions under that statute “to the extent
necessary.”

ECF No. 204-16.

Nothing in the letter suggests that

the MPCA was offering a determination that the University is a
political subdivision, and the University has not somehow conceded
that it was a political subdivision by seeking such authorization
on a preemptive basis and out of caution.
IV.

The University’s Response Costs
The MPCA has not yet selected what response actions will be

necessary

to

address

the

identified

releases

of

hazardous

substances at the Site, but from 2002 through 2017, the University
performed the initial investigation at the Site as directed and
approved by the MPCA. The $3,361,215.61 in response costs incurred
by the University in performing those initial investigations is
recoverable under both CERCLA and MERLA because the actions were
required by the MPCA and were reasonable and necessary to assess
whether past Site activities resulted in a release of hazardous
substances to the environment and the threat those releases pose
to human health and/or the environment.
Because the detailed NCP provisions governing other response
action cannot reasonably be applied to preliminary monitoring and
evaluation of a release of hazardous substances, the University’s
costs are recoverable irrespective of their consistency with the
NCP. Foster v. United States, 926 F. Supp. 199, 203 (D.D.C. 1996).

33

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To the extent that any of the University’s costs are required
to meet NCP guidelines, the University has submitted evidence that
its studies were consistent with the NCP.

ECF Nos. 204-11, 204-

12, 204-13, 204-17; ECF No. 205-1, at 18-23.

Defendants argue,

however, that the University’s costs still must meet the “accurate
accounting” requirement of the NCP and that the University’s cost
documentation falls short of that requirement.
Under the NCP, a party is required to provide an “accurate
accounting of ... [its] costs incurred for response actions.”
CFR

§

300.160.

However,

the

NCP

does

not

define

40

“accurate

accounting,” nor does it further elaborate on the requirement.
See, e.g., United States v. Saporito, No. 07-3169, 2011 WL 2473332,
at *11 (N.D. Ill. June 22, 2011).
Courts have repeatedly held that the accurate accounting
requirement

does

not

impose

any

additional

documentation

requirements on a party beyond what is required to prove the costs
by a preponderance of the evidence.

See United States v. E.I. Du

Pont Nemours & Co., 341 F. Supp. 2d 215, 244-45 (W.D.N.Y. 2004).
Courts have therefore held that employee affidavits and summary
reports of underlying cost documentation satisfy the accurate
accounting requirement.

Saporito, 2011 WL 2473332, at *11.

Some

courts have concluded that the NCP does not even require that costs
be supported by both an invoice and proof of payment.

See, e.g.,

Exxon Mobil Corp. v. United States, 335 F. Supp. 3d 889, 925 (S.D.

34

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Tex. 2018) (“Excluding any cost that is not supported by both an
invoice and proof of payment is an overly strict reading of the
... [NCP’s] cost-documentation provision.”).
The

University

submitted

an

affidavit

from

a

University

employee attaching contracts, detailed invoices for costs and
evidence of payment related to the RI studies.
1, 206-8.

ECF Nos. 206, 206-

The University has further summarized the same evidence

in detailed discovery responses.

ECF No. 206-9.

than adequate to comply with the NCP.

This is more

The University has further

submitted evidence that such evidence is consistent with what is
available in other NCP response actions.

ECF No. 205-1, at 22-

24.
Because the University is the State, defendants bear the
burden of showing that its costs are inconsistent with the NCP.
State of Minnesota v. Kalman W. Abrams Metals, Inc., 155 F. 3d
1019, 1023-24 (8th Cir. 1998).

Defendants have not identified any

evidence that creates a material dispute of fact regarding the
accuracy of the invoices and proof of payment submitted by the
University.

Defendants have not met their burden showing that

this evidence fails to meet the “accurate accounting” requirement
of the NCP or demonstrated why summary judgment would not be
appropriate on this issue.

35

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V.

Recoverability of the University’s Costs
Defendants argue that some portion of the University’s costs

are not recoverable based on three separate arguments: (1) that a
portion of these costs were incurred in support of an Environmental
Impact Statement concerning mining at the Site, and therefore not
recoverable response costs; (2) that the University has already
been reimbursed a portion of these costs, and therefore the
University cannot recover them again in this action; and (3) that
some unspecified amount of the University’s costs are actually
litigation expenses, and therefore not recoverable response costs.
A.

EIS Costs

Defendants challenge costs related to four investigations
completed by Barr because, according to the Government, these
investigations were “associated” with the University’s gravel
mining EIS and therefore could not be “necessary” to complete a
full RI of the Site. As addressed in the above Findings of Fact,
Defendants have failed to meet their burden of submitting probative
evidence to establish a material question of fact on this issue.
Although defendants argue that the purpose of the EIS itself
was not to respond to a release or threatened release at the Site,
the EIS is not at issue in the lawsuit.

The question before the

court is instead whether the four challenged studies were necessary
to assess whether past Site activities resulted in a release or

36

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 37 of 54

threatened release of hazardous substances and whether such a
release was a threat to human health and/or the environment.
Defendants have offered no facts or authority that would
support their claim that a study cannot be necessary to a CERCLA
investigation if it is also associated with another unrelated
study.
The

Eighth

Circuit

has

held

that

a

party’s

motive

is

irrelevant to the issue of recoverability of costs under CERCLA.
Johnson v. James Langley Operating Co., 226 F.3d 957, 963 (8th
Cir. 2000) (“[T]he motives of the private party attempting to
recoup response costs ... are irrelevant.”).
In Johnson, the Eighth Circuit rejected an argument that
clean-up costs could not have been incurred in response to a
release where the plaintiff was not acting at the behest of a
regulatory agency and had not incurred costs until after commencing
litigation.

226 F.3d at 963.

The court held that a plaintiff’s

intent to use the fruits of an investigation in litigation does
not remove that activity from the statutory definition of “removal”
under CERCLA.
that

the

Id.

University

Similarly, here, the Government’s argument
intended

to

also

use

the

fruits

of

the

challenged activities in connection with the EIS does not remove
such activities from the definition of removal.

“By its terms,

the statute gives no weight to the timing, purpose, or ultimate
use of covered activities.” Pakootas v. Teck Cominco Metals, Ltd.,

37

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 38 of 54

905 F.3d 565, 582 (9th Cir. 2018) (citing 42 U.S.C. § 9601(23),
(25)). Further, unlike Johnson, it is undisputed that each of the
four

challenged

studies

at

issue

here

were:

1)

directed

at

investigating known or suspected releases of hazardous substances
to the environment, and 2) were done at the “behest of a regulatory
agency,” MPCA, which repeatedly demanded that a full and complete
RI of the entire Site—including the UMA.
Other courts agree with the objective approach in Johnson and
conclude that costs incurred in a response action may still be
recovered even if the action was motivated by something other than
just the cleanup.

See, e.g., Bd. of Trustees of Leland Stanford

Junior Univ. v. Agilent Techs., Inc., No. 18-1199, 2021 WL 5710109,
at *3 (N.D. Cal. Dec. 2, 2021) (“That a party might also have ‘a
business reason for the cleanup’ does not negate necessity.”).
“The focus is ‘not on whether a party had a business or other
motive in cleaning up the property,’ but is instead on whether
there is an objective health threat. Id. (quoting Carson Harbor
Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) (en
banc)).
Here, there is no dispute that there was an objective health
threat addressed by Barr’s RI, that the challenged studies were
completed at the request of and with oversight by MPCA, or that
the findings were incorporated in and adopted by the RI that was
ultimately

approved

by

MPCA.

Defendants’

38

argument

that

the

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 39 of 54

activities were motivated by the needs of the gravel mining EIS
rather than the RI is simply not a valid argument under CERCLA.
It

is

undisputed

incorporates

these

that

the

challenged

UMP024925–UMP024936.

The

RI

expressly

studies.

MPCA

ECF

approved

identifies
No.

these

204-14,
studies

and
at
and

acknowledged that they were reasonable and necessary in response
to the release or threatened release of hazardous substances.
No. 204-16.

ECF

Furthermore, the University’s expert has concluded

that these actions were “necessary to assess whether the past Site
activities resulted in a release of hazardous substances to the
environment and the threat those pose to human health and/or the
environment.”

ECF No. 205-1, at 18.

The Government offers no

evidence to the contrary.
B.

Double Recovery

The Government also moves to preclude the University from
recovering $732,695.84 in costs, which it claims the University
has already been reimbursed for by its mining lessee, Dakota
Aggregates. The court previously denied an earlier motion in which
Government argued the University was seeking double recovery but
noted that the Government would be allowed to provide further
argument if it could identify evidence demonstrating that the
University

has

recovered

environmental cleanup.

more

than

what

it

See ECF No. 124, at 19.

39

expended

in

The Government

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 40 of 54

has not done so, and instead offers the same legal argument that
focuses on semantics rather than the evidentiary record.
The

facts

compensated

demonstrate

for

its

that

the

environmental

University

response

has

costs

not
by

been

Dakota

Aggregates; rather, Dakota Aggregates advanced certain gravel
production royalties to the University subject to a complete — and
now fully satisfied — repayment obligation.

There is no question

that the University has borne the full cost of the response costs
at issue, which negates the Government’s double-recovery argument.
The Government has not identified how the University has been
“compensated”

for

its

removal

costs

when

the

University

was

obligated to repay 100% of the money advanced by Dakota Aggregates.
Although it is true that CERCLA’s prohibition on double recovery
can bar recovery of costs that were addressed in private party
settlements, the Mining Lease is not a private party settlement
allocating

legal

responsibility

for

response

costs—Dakota

Aggregates was not a PRP that shared any fault for a release or
threatened release at the Site. See Cooper Indus., LLC v. Spectrum
Brands, Inc., 412 F. Supp. 3d 1082, 1109 (E.D. Mo. 2019) (analyzing
the impact of private party settlements on allocation in the
context of comparative fault).

Instead, Dakota Aggregates agreed

to advance mining royalties to the University in order to help
facilitate the commencement of mining activities, which it knew

40

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 41 of 54

could

not

begin

until

the

environmental

investigations

were

complete.
Courts faced with similar issues have concluded that charges
that help defray the impact of response costs do not need to be
offset against CERCLA recovery.

For example, in Carson Harbor

Vill., Ltd. v. Unocal Corp., 287 F. Supp. 2d 1118 (C.D. Cal. 2003)
aff’d sub nom., Carson Harbor Village Ltd. v. City of Los Angeles,
433 F. 3d 1260 (9th Cir. 2006), the court rejected an argument
that a rent increase—which was granted in part to help defray the
plaintiff’s remediation expenses—was “compensation for removal
costs”

that

should

be

credited

against

the

plaintiff’s

cost

recovery claim. 287 F. Supp. 2d at 1181-82. Indeed, unlike Carson
Harbor, where the plaintiff unquestionably obtained a profit from
the rent increase that was in addition to the response costs
recovered in litigation, the University has not received any
windfall payments that would leave it with more money than it paid
in response costs.
The absence of any windfall also refutes the Government’s
argument that a “broader equitable double recovery theory” should
apply to this case.

ECF No. 189, at 10.

Equitable theories of

double recovery are focused on the notion that a plaintiff should
not be able to recover “more than the response costs he paid out
of pocket.”

Lockheed Martin Corp. v. United States, 35 F. Supp.

3d 92, 154 (D.D.C. 2014), aff’d, 833 F.3d 225 (D.C. Cir. 2016).

41

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 42 of 54

The University is not seeking to recover more than it has paid out
of pocket—the University seeks $732,695.84 that it undisputedly
paid to Barr. The advance of those costs by Dakota Aggregates as
credits against production royalties has been paid back in full,
so the University still bears the responsibility for the full
payment it made to Barr. In short, the University has not received,
and will not receive, a windfall through recovering these response
costs in this litigation.
C.

Additional Costs

Finally, defendants argue that some unspecified amount of the
University’s costs may be unrecoverable because it was related to
litigation rather than environmental investigation.
The United States Supreme Court held in Key Tronic Corp. v.
United States, 511 U.S. 809 (1994), that a private party bringing
an action to recover a share of clean-up costs against other
responsible parties generally cannot recover the costs of that
litigation as “response costs” in a CERCLA action because it is
not a “necessary cost of response.”

511 U.S. at 819.

Key Tronic

did not broadly prohibit recovery of “litigation support,” as
Defendants suggest, but instead looked specifically at whether
attorneys’ fees could be recovered as “response costs.”

The Court

made clear that the relevant question was not whether a cost was
tied to litigation or not, but rather, whether a cost was “closely
tied to the actual cleanup” and “served a statutory purpose apart

42

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 43 of 54

from the reallocation of costs.” 511 U.S. at 820. Even attorney’s
fees were recoverable, the Court concluded, if they were incurred
to “significantly benefit[] the entire cleanup effort.”

Id.

Defendants have failed to identify any specific cost that it
claims was related to litigation support and not “closely tied to
the actual cleanup” or investigation of the Site.
Defendants have not identified any invoice submitted by the
University that is purportedly litigation cost, let alone a cost
that is not related to the cleanup, nor have they identified any
basis by which the Court could conclude that any of the invoices
include prohibited litigation expenses.

This is insufficient to

establish a material dispute of fact at summary judgment because
a

party

“must

do

more

than

simply

show

that

there

is

some

metaphysical doubt as to the material facts,” and must instead
come forward with “specific facts showing that there is a genuine
issue for trial.”

Torgerson v. City of Rochester, 643 F.3d 1031,

1042 (8th Cir. 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986)).
The University submitted with this motion all invoices for
which it seeks partial summary judgment.

ECF Nos. 206, 206-1-5.

All of these invoices involve studies that were conducted between
2002 and 2016, comprising the RI.

Litigation did not begin until

August 2017, and none of the claimed costs were incurred after
that date.

43

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 44 of 54

Defendants claim that there is evidence some of the costs may
be litigation expenses because the University has withheld from
production, on the basis of work product privilege, a number of
draft

reports

and

communications

contractors and its attorneys.
determined

that

communications
litigation.

the

because

between

environmental

In a previous order, this court

University
they

its

were

properly
prepared

in

withheld

these

anticipation

of

ECF No. 176.

Defendants’ argument improperly conflates the issue of work
product

privilege

for

documents

prepared

in

anticipation

of

litigation and the question of whether work can both support
litigation and also be “closely tied to the actual cleanup” and
“served a statutory purpose apart from the reallocation of costs.”
Key Tronic, 511 U.S. at 820.
This court’s previous decision already noted that there were
many decisions confirming that an environmental contractor’s work
could be aimed at complying with environmental regulators while
also

protected

litigation.

as

work

product

created

ECF No. 176, at 37-38.

in

anticipation

of

Defendants have offered no

authority to suggest that costs were unrecoverable under CERCLA
simply because it was done in anticipation of litigation. Indeed,
the Eighth Circuit has counselled the opposite in Johnson, cited
above, noting that it “rejected the argument that cleanup costs

44

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 45 of 54

prompted by the threat of litigation were not caused by a release,
but were unrecoverable litigation expenses.”

226 F.3d at 963.

The fact the University anticipated litigation since 2001
does not make its costs to perform the RI unrecoverable under
CERCLA. Defendants have cited no authority to the contrary.
VI.

The Government’s Claimed Response Costs
The Government claims it has incurred response costs in three

separate categories: $779,927.27 in internal USACE costs from
2000–2021; $812,276.45 in contractor costs; and

$90,249.40 in

attorney’s fees. The Government has failed to establish that these
amounts are recoverable response costs.
A.

USACE’s Internal Costs

The Government’s costs were not incurred “in response” to the
release of hazardous substances at the Site, as required for cost
recovery under CERCLA.

From the late 1990s, when USACE determined

that GOW is a “PRP project” site, its activities focused solely on
minimizing the Government’s involvement.

USACE’s actions and the

associated expenses were not taken in response to a release
pursuant to CERCLA, but rather, to justify not taking actions under
FUDS Policy in response to the release.
Indeed, it is difficult to see how USACE’s efforts can be
considered a “response” to the release or threatened release at
the Site when it informed the MPCA of that it would refuse to help
in the preparation of the RI, refused to participate in public

45

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 46 of 54

meetings concerning the RI, and offered a qualified refusal to
meet with MPCA regarding to the RI. Rather, unilaterally limiting
its involvement to a “technical role ... offering suggestions and
recommendations,
actions.”

but

not

to

making

decisions

or

implementing

ECF No. 204-10.

When USACE did provide comments to the RI, they were not
directed at technical support, but were instead “focus[ed] on
determining levels of responsibility for releases instead of on
technical aspects of the ... [2017 RI] Report.”

ECF No. 204-17.

In addition, USACE’s methods for tracking its internal labor
costs lack specificity, and rely almost entirely on an ad hoc
review, conducted many years after the fact, and are therefore
facially inconsistent with the NCP.

An attempt to recreate the

amount of time spent on certain tasks a decade after the fact is
“utterly

ludicrous”

and

not

consistent

accounting requirement under the NCP.

with

the

accurate

City of Wichita, Kansas v.

Trustees of APCO Oil Corp. Liquidating Tr., 306 F. Supp. 2d 1040,
1096 (D. Kan. 2003).

Estimating the number of hours worked by

USACE employees on these tasks “months, years, and almost a decade
after

the

accurate.”
B.

fact

is

simply

too

speculative

to

be

considered

Id.
Contractor Costs

Although the Government did engage environmental contractors
to perform some limited investigations of portions of the Site,

46

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 47 of 54

these studies were not responses to a release or threatened release
at the site but were instead intended to help close out USACE’s
PRP determination and cut off further costs from being incurred at
the Site.
USACE admits that the 2006 PA, which investigated only the
1947 parcel, was conducted as a result of Congressional pressure,
not an effort to assist the MPCA in its investigation of the Site.
ECF No. 199-8, at 168:4-17.
simply

to

evaluate

The stated purpose of the 1947 PA was

USACE’s

potential

liability,

i.e.,

“to

determine whether the United States government has any potential
responsibility and need to investigate the activities that may
have occurred in the past and that may have resulted in HTRW at
the site ....”

ECF No. 199-13, at 57:19-24.

This is at odds with

the purpose of a remedial PA as set out in the NCP, which states
that such an assessment “shall consist of a review of existing
information about a release such as information on the pathways of
exposure, exposure targets, and source and nature of release ....”
40 C.F.R. § 300.420(b)(2).
There

is

no

way

USACE’s

1947

PA

could

accomplish

this

statutory purpose, given USACE’s refusal to evaluate the 1948
parcel, which was “the industrial area” where GOW’s production
activities occurred.

ECF No. 199-13, at 62:3-14.

attempted

and

to

pick

choose

the

Instead, USACE

investigation

areas—and

activities—so it could close out its FUDS Program involvement at

47

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 48 of 54

GOW.

USACE continued to reject MPCA’s request to conduct a full

investigation of GOW.

ECF No. 203-7.

USACE performed the Limited Steam Plant PA and the FSI, both
in March 2009, and the ESI in December 2009, to “support the
Department of the Army (DA) with PRP determination and closeout of
eligible areas in a timely manner.”
efforts

do

not

align

with

the

ECF No. 203-10.
requirements

preliminary assessments nor site assessments.

of

Again, these
the

NCP

for

Site investigations

are performed to collect additional site information that may build
on

the

information

contained

in

the

remedial

preliminary

assessment, 40 C.F.R. § 300.420(c)(2). Both the FSI and ESI, which
addressed areas from the 1947 parcel and the 26.7-acre Steam Plant
parcel

carried

forward

from

the

respective

preliminary

assessments, fail to provide the wholistic data MPCA sought, as
evidenced by MPCA’s continuing requests for investigation of the
entire GOW site.

ECF Nos. 203-9, 203-11.

On USACE’s draft FSI,

MPCA also took exception to USACE’s conclusion that no further
investigation was necessary at the subject areas addressed in the
FSI.

Id.; 40 C.F.R. § 300.420(c)(5)(v).
C.

Attorney’s Fees

The

Government

claims

it

has

incurred

$90,249.40

in

“enforcement” costs, which consist exclusively of costs associated
with

the

DOJ’s

prosecution

of

this

counterclaim in the present litigation.

48

specific

cost

recovery

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 49 of 54

In United States v. Dico, the Eighth Circuit determined that
the Government, on behalf of the EPA, can recover its enforcement
costs

pursuant

to

CERCLA

§

107,

due

to

the

inclusion

of

“enforcement activities related” to “response” actions.

266 F.3d

864, 878 (8th Cir. 2001), citing 42 U.S.C. § 9601(25).

The EPA

incurred

of

the

costs

at

remediation efforts.

issue

in

Dico

in

the

course

Dico, 266 F.3d at 868, 876.

its

In Dico, the

legal fees at issue were incurred during EPA’s activities as “the
primary enforcer of CERCLA.”

United States v. Gurley, 43 F.3d

1188, 1200 (8th Cir. 1994).
USACE is not in an enforcement role at this Site. Not only is
the

MPCA

the

lead

agency,

overseeing

USACE

FUDS

Program

investigation and remediation activities in Minnesota, but USACE
has expressly declined to assert any jurisdiction over the Site,
or over the University or DuPont, to “plan and direct response
actions,” or, importantly, to “enforce the provisions of” CERCLA.
See

42

U.S.C.

§

9604(b)(1).

Indeed,

USACE

has

taken

every

opportunity to disavow itself of any active role at the Site, going
so far as to invite the University to sue the government to get
any further participation from USACE.

See, e.g., ECF No. 203-25.

Although regulatory enforcement costs may be recoverable under
CERCLA,

“no

party—governmental

litigation costs.”

or

private—is

entitled

to

Nu-W. Min. Inc. v. United States, No. 09-431,

2011 WL 2604740, at *4 (D. Idaho June 30, 2011).

49

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 50 of 54

The Government argues that it is entitled to enforcement costs
regardless of its role, citing to United States v. Chrysler Corp.,
168 F. Supp. 2d 754, 763 (N.D. Ohio, Sept. 25, 2001) (Chrysler
Corp. II) for the proposition that Section 107 does not distinguish
between when the government is a PRP and when it is not.

But

Chrysler Corp. II is a case where EPA was involved as an enforcer
and

the

court

expressly

declined

to

distinguish

between

two

separate federal agencies (EPA and the National Park Services) in
the same action. That same court made clear in an earlier decision
that, “[w]hether all federal PRPs should be entitled to pursue
response costs recovery actions under § 107 is not a question this
Court need address.” United States v. Chrysler Corp., 157 F. Supp.
2d 849, 860 (N.D. Ohio 2001) (Chrysler Corp. I).
Moreover, the issue in this case is not that the Government
is a PRP, but simply that it has never held an enforcement role
and has specifically declined any further participation in the
cleanup at the Site.

The recovery of “enforcement costs” is based

on a public policy that puts pressure on responsible parties to
promptly cleanup hazardous waste sites by imposing on them the
financial responsibility for EPA’s efforts to enforce the cleanup
when the responsible parties failed to act.

United States v.

Chapman, 146 F.3d 1166, 1175 (9th Cir. 1998). Here, the Government
has refused to comply with MPCA’s directives and has disclaimed
any role in the cleanup.

This is not the type of enforcement

50

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 51 of 54

activity addressed in Chapman.

Indeed, the attorney’s fees sought

in the Government’s counterclaim did not encourage the University
to conduct the required cleanup (it is already doing so); rather,
they were incurred only after the University was forced to sue the
Government and are clearly a response to the University’s lawsuit,
even if ostensibly segregated from the Government’s “defense”
costs relating to the University’s own CERCLA § 107 claim.
Because USACE has not acted in a CERCLA enforcement capacity
at GOW, DOJ’s involvement in this matter, likewise, does not seek
to enforce any requirement of CERCLA.

DOJ cannot itself enforce

the very requirements its client seeks to evade. DOJ’s efforts in
this action are not to require a recalcitrant party to perform a
RI.

For these reasons, the Government is not entitled recover

attorney’s fees.

CONCLUSION
Based on the above, IT IS HEREBY ORDERED that:
1.

The Government’s motions for partial summary judgment

[ECF Nos. 188, 193] are denied;
2.

DuPont’s

joinder

motion

[ECF

No.

208]

is

likewise

denied;
3.

The University’s motion for partial summary judgment

[ECF No. 201] is granted as set forth below;

51

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 52 of 54

4.

The

University,

the

Government,

and

DuPont

are

all

liable parties under CERCLA, 42 U.S.C. § 9607(a). The University
and DuPont are also liable parties under MERLA, Minn. Stat.
§ 115B.04;
5.

The University has incurred $3,361,215.61 in reasonable

and necessary response costs at the Site under CERCLA and MERLA,
which will be included in the amounts to be allocated at trial;
6.

Defendants have failed to raise a genuine issue of

material fact that any subset of the University’s response costs
are not recoverable under CERCLA or MERLA;
7.
MERLA,

The University is “the State” for purposes of CERCLA and
and

Defendants

have

failed

to

demonstrate

that

the

University’s response costs are inconsistent with the NCP;
8.
material

Defendants have failed to raise a genuine issue of
fact

regarding

whether

the

University’s

cost

documentation meets the “accurate accounting” requirement of the
NCP;
9.

Defendants have failed to raise a genuine issue of

material fact as to the recoverability of that portion of the
University’s response costs that supported both the RI and the
gravel mining EIS;
10.

Defendants have failed to raise a genuine issue of

material fact as to whether any portion of the University’s claimed
response costs are unrecoverable litigation support costs;

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CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 53 of 54

11.

Defendants have failed to raise a genuine issue of

material fact as to whether the University would receive double
recovery of $732,695.84 if partial judgment is entered in its favor
on its response cost claim;
12.

The Government has failed to show that it is entitled to

recover any response costs related to the Site;
13.

The Government has failed to show that its contractor

costs, in the amount of $779,927.27, are recoverable response
costs;
14.

The Government has failed to show that its internal labor

costs, in the amount of $812,276.45, are recoverable response costs
or were accurately accounted for;
15.

The Government has failed to show that the fees incurred

in DOJ’s prosecution of Government’s CERCLA cost recovery claim in
the amount of $90,249.40, are recoverable enforcement costs;
16.

The Government has failed to show that it has incurred

more than its fair share of costs with respect to the Site, and
therefore has not demonstrated for purposes of summary judgment
that is entitled to contribution under 42 U.S.C. § 9613(f)(1);
17.
any

The Government has failed to show that it is entitled to

prejudgment

interest,

and

recoverability

interest will be determined at trial;

53

of

prejudgment

CASE 0:17-cv-03690-DSD-ECW Doc. 237 Filed 11/03/22 Page 54 of 54

18.

Allocation

between

the

parties

of

recoverable

past

response costs, as well as responsibility for future response
costs, will be determined at trial;
19.

The motion to exclude the expert testimony of Wiley R.

Wright and Robert M. Zoch [ECF No. 197] is denied as moot;
20.

The motions to exclude the expert testimony of David

Heidlauf [ECF Nos. 184, 192] are denied without prejudice and may
be raised again, as appropriate, during the bench trial in this
matter; and
21.

The motion to correct the record [ECF No. 231] is denied

without prejudice and may be raised again, as appropriate, during
the bench trial in this matter.

Dated: November 3, 2022
s/David S. Doty
David S. Doty, Judge
United States District Court

54