Full opinion text
ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS AND THIRD-PARTY DEFENDANT PATRICK J. SCHILTZ, District Judge. Plaintiff Land O’ Lakes has sued two of its insurers — defendants Employers Insurance Company of Wausau (“Wausau”) and The Travelers Indemnity Company (“Travelers”) — seeking payment of defense costs and indemnity in connection with an environmental-cleanup action brought against Land O’ Lakes by the Environmental Protection Agency (“EPA”). Wausau and Travelers have brought third-party claims against White Mountains Reinsurance Company of America (“White Mountains”), which provided insurance coverage that might apply to the EPA action against Land O’ Lakes. Three summary-judgment motions and a related discovery motion are before the Court. Land O’ Lakes moves for summary judgment that Wausau and Travelers (“the insurers”) must pay Land O’ Lakes’ past and future defense costs and must indemnify Land O’ Lakes for a yet-to-be-determined amount of environmental-cleanup costs. The insurers move for summary judgment that they are liable for nothing. And White Mountains moves for summary judgment that, if the insurers are required to pay Land O’ Lakes’ defense or indemnity costs, the insurers cannot seek contribution from White Mountains. In addition, Land O’ Lakes moves for leave to supplement the summary-judgment record to include a recent letter from the EPA that Land O’ Lakes contends is relevant to the pending motions. This case is extraordinarily complex — it involves multiple insurance policies issued by multiple companies over multiple years — and the parties’ summary-judgment motions raise a host of difficult issues under both Minnesota and Oklahoma law. The Court attempts to address most of those issues below. Although the Court does not agree with all of the insurers’ arguments, the Court ultimately concludes that the insurers are not obligated to defend or indemnify Land O’ Lakes. Likewise, while the Court does not agree with all of White Mountains’ arguments, the Court ultimately concludes that White Mountains is entitled to summary judgment on the insurers’ contribution claims. The Court therefore grants the summary-judgment motions of the insurers (Wausau and Travelers), grants the summary-judgment motion of White Mountains, denies the summary-judgment motion of Land O’ Lakes, and denies the motion of Land O’ Lakes to supplement the summary-judgment record. I. BACKGROUND Land O’ Lakes is a large member-owned agricultural cooperative. In 1981, Land O’ Lakes agreed to acquire Midland Cooperatives, Inc. (“Midland”). Pursuant to that agreement, Land O’ Lakes and Midland merged on January 1, 1982. Insurers’ Joint Appendix (“JA”) Ex. 47. Midland began operating an oil refinery in Cushing, Oklahoma in 1943. Previously, the refinery had been operated by various owners since the early 1900s. After operating the refinery for roughly 34 years, Midland sold the refinery in 1977 to the Hudson Oil Refinery Company (“Hudson”). Thus, when Land O’ Lakes acquired Midland, Midland had not operated the Cushing refinery for about five years. Midland’s successor, Hudson, abandoned the Cushing refinery in 1982 and went bankrupt two years later. Soon thereafter, the EPA took enforcement action against Hudson, and Hudson agreed to clean up the refinery site. Hudson ran out of money for cleanup operations after about ten years, and a federal court released Hudson from any further cleanup obligations in 1994. In the meantime, sometime in the early 1990s, a contractor may have undertaken salvage operations at the refinery site that further damaged the environment. JA Ex. 22 at LOL0181302. Throughout the 1990s, the Oklahoma Department of Environmental Quality (“ODEQ”) monitored the Cushing refinery site. The refinery site takes up roughly 200 acres. A state highway runs through the site, dividing it into a 165-acre portion known as the “North Refinery” and a 35-acre portion known as the “South Refinery.” In 1998, a joint inspection of the Cushing refinery site by the EPA and the ODEQ revealed deteriorated, leaking structures and equipment — including asbestos-containing material — and in late 1998 EPA contractors began an emergency removal action to address immediate threats to human health and the environment. The EPA placed the Cushing refinery site on the “National Priorities List” or “NPL” in July 1999 — that is, the EPA designated the refinery as a “Superfund” site. The Superfund is a federal fund for cleaning up abandoned hazardous-waste sites. The Superfund was established by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601-75 (“CERCLA”). Two years later, in 2001, the EPA began removing additional material from the Cushing refinery site. This second removal action, which continued into 2003, was a so-called “non-time-critical” removal action (as distinct from the earlier “emergency” removal action). Most of the structures and equipment that Hudson had left behind were removed from the site as part of this removal action. In January 2001 — at around the time that the EPA began the non-time-critical removal action — the EPA sent Land O’ Lakes a “Special Notice Letter” about the Cushing refinery site. JA Ex. 17. The letter informed Land O’ Lakes that, based on Midland’s past ownership of the site and Land O’ Lakes’ later acquisition of Midland, the EPA considered Land O’ Lakes a “Potentially Responsible Party” (“PRP”) under CERCLA. CERCLA provides, in § 9607(a), that certain parties— PRPs — may be required, under certain circumstances, to pay the costs of cleaning up Superfund sites that they (or their predecessors) previously owned. In the 2001 “Special Notice Letter”— also known as a “PRP letter” — the EPA asked Land O’ Lakes to pay roughly $8.9 million for the costs of the EPA’s cleanup actions to that point. The EPA also informed Land O’ Lakes that to determine what additional cleanup work was needed at the site, the EPA planned to conduct a “Remedial Investigation” followed by a “Feasibility Study” — together called an “RI/FS” — of the site. Then, to actually clean up the site, the RI/FS would be followed by a “Remedial Design” and “Remedial Action” — called an “RD/RA” — that is, the cleanup itself. The EPA invited Land O’ Lakes to “negotiate a settlement ... to conduct the RI/FS for the Site and fund related EPA and State costs.” JA Ex. 17 at EPAFOIA0010240. Land O’ Lakes responded to the PRP letter in March 2001. JA Ex. 18. Land O’ Lakes refused to pay the $8.9 million in past costs that the EPA had incurred, and Land O’ Lakes also refused “to prepare or pay expenses associated with preparation of’ an RI/FS. JA Ex. 18 at LOL0181345. Land O’ Lakes argued that any hazardous waste at the site was the fault of Hudson, not Midland, and thus Land O’ Lakes was not responsible for any cleanup costs. Id. at LOL0181348 (“EPA has not presented credible evidence that hazardous substances were disposed of at the Site during the time that Midland owned the refinery.”). Although Land O’ Lakes’ response to the 2001 PRP letter denied any liability, Land O’ Lakes nevertheless notified Wausau and Travelers of the EPA’s claims. JA Ex. 23 (letter notifying Wausau of claims); JA Ex. 36 (letter from Travelers acknowledging receipt from Land O’ Lakes of notice of claims). Land O’ Lakes sought a defense and indemnity under various Comprehensive General Liability (“CGL”) policies issued by Wausau to Midland and by Travelers to Land O’ Lakes and to Midland. After numerous letters back and forth, Wausau declined in November 2001 to defend Land O’ Lakes, arguing that the PRP letter was not a covered “suit” under the relevant policies. JA Ex. 29 at WAU-000638. Land O’ Lakes protested this decision by letter in January 2002, characterizing Wausau’s actions as “a declination of coverage and a breach of [Wausau’s] duty to defend.” JA Ex. 30 at WAU-000637. Land O’ Lakes apparently met with Wausau about the claim sometime after this, see JA Ex. 31, but for the next six years, Land O’ Lakes did not take any further steps to challenge Wausau’s denial of defense and indemnification obligations. Travelers likewise declined to defend Land O’ Lakes. JA Ex. 38. In April 2001, Travelers made two arguments in response to Land O’ Lakes’ request for coverage. First, Travelers said that certain excess policies that Travelers had issued to Midland would not be in play until $19 million in primary coverage was exhausted, and Land O’ Lakes had not shown that the EPA’s claims threatened to exhaust that much primary coverage. These excess policies are not at issue in this ease. Second, Travelers said that the primary CGL policies that it had issued to Land O’ Lakes could not apply because Travelers had issued the policies before Land O’ Lakes acquired Midland. Thus — according to Travelers — the policies could not cover any damages incurred by Midland before Land O’ Lakes acquired Midland. Id. at TRV000907. For the next seven years, Land O’ Lakes did not take any further steps to challenge Travelers’ denial of defense and indemnification obligations. Meanwhile, the EPA continued its cleanup activities without any input from Land O’ Lakes. The EPA completed its second removal action (the “non-time-critical” one) in June 2003. Then from 2004 to 2007, on behalf of the EPA, the ODEQ studied the Cushing refinery site and completed an RI/FS that described the contamination at the site and proposed ways to finish cleaning up the site. The EPA selected an approach to cleaning up the Cushing refinery site in November 2007 when it issued a “Record of Decision” (“ROD”) for the site. The ROD outlined the history of the site, assessed the contamination found there, described alternative approaches to remedying the contamination, and proposed a “selected remedy” for “treating] and/or removing] the source materials constituting principal threats at the site.” JA Ex. 8 at LOL0137437. The ROD estimated that it would cost roughly $9.65 million to implement the selected remedy. Id. After completing the ROD, the EPA sent Land O’ Lakes a PRP letter in February 2008 — the second PRP letter received by Land O’ Lakes. JA Ex. 19. In the 2008 PRP letter, the EPA invited Land O’ Lakes to negotiate over the continued cleanup of the Cushing refinery site. The EPA also demanded that Land O’ Lakes reimburse it for roughly $20.9 million in past response costs. Id. at WAU-000624. And the EPA included with the letter a draft consent decree together with a draft “Statement of Work” for a “Remedial Design/Remedial Action” (“RD/RA”) for implementing the site remedy selected in the ROD. See id. at WAU-000626. Land O’ Lakes informed Wausau and Travelers of the EPA’s newest PRP letter and — as Land O’ Lakes had in 2001— asked for a defense and indemnity. See JA Ex. 32 (letter to Wausau); JA Ex. 40 (letter to Travelers). The insurers — as they had in 2001 — denied that they had any obligation to defend or indemnify Land O’ Lakes. See JA Ex. 33 (letter from Wausau); JA Ex. 42 (letter from Travelers). Land O’ Lakes responded to the EPA— as it had in 2001 — by denying that Midland had caused any of the contamination at the site. JA Ex. 20. In a letter to the EPA in May 2008, Land O’ Lakes refused to pay the EPA’s past response costs and refused to undertake or pay for any future remediation activities. Id. at LOL-INS 0002872. The EPA was unmoved by Land O’ Lakes’ arguments for why it was not responsible for cleaning up the Cushing refinery site, and in January 2009, the EPA issued a “Unilateral Administrative Order” (“UAO”) directing Land O’ Lakes to implement the remedy selected by the EPA in the ROD. JA Ex. 21. Specifically, the UAO ordered Land O’ Lakes to “perform a remedial design for the remedy described in the Record of Decision” — the RD portion of an RD/RA — and to “implement the design by performing a remedial action” — the RA portion of an RD/RA. Id. at LOL0169729. Acting promptly, Land O’ Lakes informed the EPA in February 2009 that it would comply with the UAO. JA Ex. 22. Land O’ Lakes took issue with many of the details of the UAO, see id., but nonetheless began undertaking the work called for by the EPA. Also in February 2009, Land O’ Lakes initiated this lawsuit. Land O’ Lakes seeks a money judgment for its defense costs to date and a declaratory judgment that Wausau and Travelers must indemnify Land O’ Lakes for its cleanup costs once the amount of those costs is finally established. After agreeing to comply with the UAO, Land O’ Lakes retained two contractors to implement the remedy called for by the EPA: Benham Companies, LLC performed the remedial design, and Envirocon, Inc. performed the remedial action. JA Ex. 9 at LOL0379534. Those companies performed work at the site throughout 2009 and 2010, and in November 2010, the EPA issued a “Preliminary Close Out Report” for the site indicating that the site had been cleaned up in accordance with the ROD, as modified during the course of the work. JA Ex. 9. The Preliminary Close Out report includes a schedule for “additional pre-final inspections” to take place in the summer and fall of 2011 and for a “five-year review” to take place in February 2015. Thus, the bulk of the remediation work at the site has already been completed. The following chronology sums up the key events described above: • Early 1900s to 1943 — A refinery is operated in Cushing, Oklahoma by various owners. • 1943 to 1977 — Midland operates the Cushing refinery. • 1977 to 1984 — Hudson operates the Cushing refinery, abandons it, and goes bankrupt. 1982 — Land O’ Lakes and Midland merge. • 1984 to mid-1990s — Hudson, in response to action by the EPA, does some cleanup at the refinery site. A contractor (perhaps) undertakes salvage actions in the early 1990s that damage the site. • 1998 — The EPA undertakes an emergency removal action to remedy immediate threats to human health and the environment. • 1999 — The EPA designates the Cushing refinery site as a Superfund site. • 2001 — The EPA sends Land O’ Lakes a PRP letter asking for $8.9 million in past cleanup costs and for participation in a “Remedial Investigation and Feasibility Study” (“RI/FS”) for future cleanup. Land O’ Lakes denies any responsibility, refuses to pay, and refuses to participate in the RI/FS. • 2001 to 2002 — Land O’ Lakes asks Wausau and Travelers to provide a defense and coverage. Both insurers refuse, and Land O’ Lakes lets the matter drop. • 2001 to 2003 — The EPA conducts a second, non-time-critical removal action to remedy threats to human health and the environment. • 2004 to 2007 — Oklahoma’s environmental agency (the ODEQ) conducts an RI/FS for the EPA. • November 2007 — The EPA issues its “Record of Decision” (“ROD”) selecting a site remedy. • 2008 — The EPA sends a second PRP letter to Land O’ Lakes asking for $20.9 million in past cleanup costs and for participation in a “Remedial Design” and “Remedial Action” (“RD/RA”) for cleaning up the site. Land O’ Lakes denies any responsibility, refuses to pay, and refuses to participate in the RD/RA. • 2008 — Land O’ Lakes again asks that Wausau and Travelers provide a defense and coverage. Both insurers again refuse. • January 2009 — The EPA issues a Unilateral Administrative Order (“UAO”) directing Land O’ Lakes to perform an RD/RA for cleaning up the site in accordance with the ROD. • February 2009 — Land O’ Lakes informs the EPA that it will comply with the UAO. Land O’ Lakes sues Wausau and Travelers for a defense and indemnity. • 2009 and 2010 — Land O’ Lakes’ contractors, Benham and Envirocon, clean up the Cushing refinery site by performing the RD/RA. • November 2010 — The EPA issues a Preliminary Close Out Report and Explanation of Significant Differences (“ESD”) showing that the Cushing refinery site has been cleaned up in accordance with the ROD, as modified during the course of the work. • Summer and fall of 2011 — Additional “pre-final inspections” take place at the refinery site. • February 2015 — Five-year review is scheduled to take place. II. DISCUSSION In Section A below, the Court sets forth the applicable standard of review and provides an overview of the choice-of-law issues. Next, in Section B, the Court discusses Land O’ Lakes’ motion to supplement the summary-judgment record. The Court then turns, in Sections C through E, to the parties’ substantive claims. Specifically, Section C addresses Land O’ Lakes’ claims against Wausau and Travelers for breach of the duty to defend. Section D addresses Land O’ Lakes’ claims against Wausau and Travelers, for breach of the duty to indemnify. And Section E addresses White Mountains’ claims against Wausau and Travelers for contribution. A. Standard of Review and Applicable Law Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute over a fact is “material” only if its resolution might affect the outcome of the lawsuit under the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Id. at 255, 106 S.Ct. 2505. Because this Court sits in Minnesota, it must apply the choice-of-law rules applied by Minnesota courts. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In determining which state’s law to apply, Minnesota courts consider five factors: (1) predictability of results; (2) maintenance of interstate order; (3) simplification of the judicial task; (4) advancement of the fo rum’s governmental interests; and (5) application of the better rule of law. Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408, 412 (1973); see also Jepson v. Gen. Cas. Co. of Wis., 513 N.W.2d 467, 470 (Minn.1994). The laws of two states potentially apply in this case: Minnesota, where Land O’ Lakes is and Midland was headquartered, and Oklahoma, the location of the Cushing refinery. The parties seem to agree that Minnesota law applies to most issues related to the Travelers policies, which were issued to Land O’ Lakes in Minnesota before Land O’ Lakes acquired the Cushing refinery. The parties also seem to agree that Oklahoma law — if it differs from Minnesota law — applies to most issues related to the Wausau policies, which were issued specifically to cover operations at the Cushing refinery. The Court has no reason to question the parties’ areas of agreement. See Nat’l Union Fire Ins. Co. of Pittsburgh v. Terra Indus., Inc., 346 F.3d 1160, 1164 (8th Cir.2003) (“State law governs the interpretation of insurance policies.”). Minnesota and Oklahoma law differ, either actually or potentially, with respect to four issues: (1) what constitutes a “suit” under a CGL policy; (2) what qualifies as “property” owned by an insured; (3) what qualifies as an “accident” under a CGL policy; and (4) whether an insurer’s breach of the duty to defend precludes the insurer from seeking contribution from another insurer. The Court addresses choice-of-law questions related to these issues in context below as the discussion requires. B. Untimely Record Evidence Before turning to the merits of the parties’ arguments, the Court addresses Land O’ Lakes’ motion to supplement the summary-judgment record. Under the governing scheduling order, expert discovery closed on August 15, 2011. Sixth Am. Pretrial Sched. Order at 3 [Docket No. 97]. Fact discovery closed on April 1, 2011, with one exception: The parties were permitted to conduct “EPA follow-up discovery” until, at the latest, August 15, 2011. Further, the governing scheduling order includes the following provision: The parties agree that no additional request for a modification of the scheduling order will be made in the future based upon, arising out of, connected to, or in any way involving the additional groundwater monitoring or anything else contained in the ESD [i.e., the EPA’s Explanation of Significant Differences]. Id. at 5. Even though the governing scheduling order explicitly forbids any party to request an extension related to “anything ... in the ESD” — a provision that Land O’ Lakes apparently requested — Land O’ Lakes nevertheless moves to supplement the summary-judgment record to include a letter from the EPA dated October 29, 2011. The letter directs Land O’ Lakes to modify a draft “Supplemental Remedial Action Work Plan” to “include coordination with the Oklahoma Department of Transportation (ODOT) to address former refinery coke tar waste material and coke tar contaminated soils that may extend north beyond the north fence-line of the South Refinery.” Suppl. Zabel Aff. Ex. A at LOL0386000-01 [Docket No. 233]. The EPA apparently discovered coke-tar waste on property currently owned by ODOT during excavations conducted on October 25 and 26, 2011. Id. at LOL0386002. Land O’ Lakes’ motion is, in effect, a motion under Fed.R.Civ.P. 16(b)(4) and D. Minn. LR 16.3(a) to modify the scheduling order by extending the fact-discovery deadline. Such a motion must be supported by “good cause.” The only “cause” offered by Land O’ Lakes to support its motion is, in effect, that the EPA’s letter is helpful to its case and contains new information. This does not qualify as “good cause” for modifying the scheduling order. In every case — and particularly in every case involving an ongoing environmental cleanup — evidence that one side or the other finds helpful might come to light after the close of discovery. But for courts to adjudicate cases with some semblance of efficiency, the record cannot be an ever-moving target. At some point, the record must hold still, and a court must be able to decide the case based on the record before it. In this case, after receiving hundreds of pages of briefs and thousands of pages of exhibits, the Court devoted an entire day to hearing argument on the parties’ summary-judgment motions. The parties’ arguments were based on the record as it then existed, and the Court devoted several days to preparing for the hearing. The parties are entitled to receive — and the Court is entitled to make — a decision that is based on the record as it existed at the time of the summary-judgment hearing. Further, Land O’ Lakes’ motion to supplement the record contravenes the scheduling order’s prohibition on requests to extend the discovery schedule, as Wausau and Travelers argue in opposing the motion. See Insurers’ Resp. Pl. Mot. Supplement at 3-5 [Docket No. 236]. In its reply memorandum, Land O’ Lakes does not even try to respond to this argument, thereby tacitly acknowledging that no reasonable counterargument is possible. See Pl. Reply Mem. Supp. Mot. Supplement [Docket No. 239]. Finally, even if the Court considered the EPA’s letter as evidence of the possible existence of coke-tar residue in property owned by ODOT, nothing in this order would change. For one thing, it appears that the contaminated property was owned by Midland at the time that it was contaminated, and the property would therefore likely be excluded from coverage under the insurers’ policies despite having later been sold. All of the policies at issue include some variation of an “owned-property” exclusion, which excludes coverage both for injury to property “owned” by the insured and for injury to “premises alienated by” the insured. See JA Ex. 4 (table of owned-property exclusions excerpted from the policies). For another, even if ODOT’s contaminated property were not within the owned-property exclusion, this would not create coverage for Land O’ Lakes’ cleanup costs because, at least so far, all of those costs have been spent cleaning up Land O’ Lakes’ property. Thus, as explained more fully below in connection with the owned-property exclusion, because there is no causal connection between the contamination (if any exists) of ODOT’s property and the damages for which Land O’ Lakes now seeks indemnification, the contamination of ODOT’s property is irrelevant to the availability of coverage under the insurers’ policies. C. Duty to Defend — Wausau and Travelers All of the CGL policies at issue in this litigation obligate the insurers to defend a “suit” for “damages on account [of]” injury to property (among other things). Under Minnesota law, an insurer’s duty to defend “extends to every claim that ‘arguably’ falls within the scope of coverage .... ” Wooddale Builders, Inc. v. Md. Cas. Co., 722 N.W.2d 283, 302 (Minn.2006). Further, “the duty to defend one claim creates a duty to defend all claims,” and the duty exists “regardless of the merits of the underlying claims.” Id. The duty to defend is thus broader than the duty to indemnify, which extends only to actually covered claims, not to claims that are merely arguably covered. See id. There is no question that the insurers have refused to defend Land O’ Lakes, so if any duty to defend existed, the insurers have breached it. The question, therefore, is whether — and if so, when — the insurers’ duty to defend was triggered by the EPA’s enforcement action against Land O’ Lakes. If the duty was triggered in 2001 — when the EPA first contacted Land O’ Lakes— then the six-year statute of limitations on Land O’ Lakes’ duty-to-defend claims has run. See Minn.Stat. § 541.05, subd. 1(1) (establishing a six-year limitations period for contract actions); St. Paul Fire & Marine Ins. Co. v. A.P.I., Inc., 738 N.W.2d 401, 408-09 (Minn.Ct.App.2007) (applying § 541.05 in an insurance-coverage action). The question of whether the insurers’ duty to defend has been triggered can be broken down further into two distinct questions: First, has Land O’ Lakes at any time faced a “suit” in connection with the EPA’s enforcement action? Second, if Land O’ Lakes has faced a “suit” in connection with the EPA’s enforcement action, did that suit seek damages that are arguably covered under the policies at issue? According to Land O’ Lakes, both of the PRP letters from the EPA — the 2001 letter and the 2008 letter — amounted to “suits.” But, says Land O’ Lakes, the 2001 PRP letter was not a suit for arguably covered damages, and thus that letter did not trigger the insurers’ duty to defend. Instead, according to Land O’ Lakes, the insurers’ duty to defend was not triggered until the EPA sent the 2008 PRP letter because that letter sought different damages — damages that were arguably covered — than the 2001 PRP letter. Thus, as Land O’ Lakes would have it, the insurers’ duty to defend first arose in 2008, the insurers breached that duty, and the statute of limitations has not run on Land O’ Lakes’ duty-to-defend claims. Wausau and Travelers both argue (on somewhat different grounds) that a duty to defend has never arisen. In the alternative, they argue that if a duty to defend arose, it arose in 2001, the insurers breached the duty at that time, and therefore Land O’ Lakes’ duty-to-defend claims are barred by the statute of limitations. In arguing that a duty to defend has never arisen, Wausau and Travelers take different positions on whether a PRP letter qualifies as a “suit.” Wausau argues that a PRP letter is not a “suit” under Oklahoma law, and thus denies that a PRP letter can trigger its duty to defend. In the alternative, Wausau contends that if a PRP letter is a “suit,” neither the 2001 PRP letter nor the 2008 PRP letter triggered its duty to defend because neither letter sought arguably covered damages. For its part, Travelers accepts that, under Minnesota law, a PRP letter is a “suit,” but Travelers argues (along with Wausau) that it has no duty to defend the PRP letters because the letters do not seek arguably covered damages.. Alternatively, Wausau and Travelers contend that if the Court finds — contrary to their arguments — that the 2008 PRP letter was a suit for arguably covered damages, then the 2001 PRP letter was also a suit for arguably covered damages, and the statute of limitations therefore bars Land O’ Lakes’ duty-to-defend claims. In other words, although Wausau and Travelers deny having ever breached the duty to defend, they say that if they did breach the duty, they breached it in 2001, more than six years before Land O’ Lakes brought this lawsuit. Land O’ Lakes tries to shoot the gap between the insurers’ alternative arguments. As noted, Land O’ Lakes argues that the 2001 and 2008 PRP letters were both “suits,” but only the 2008 letter was a suit for arguably covered damages. Under this theory, the insurers first breached their duty to defend in 2008. Alternatively, Land O’ Lakes says that if the PRP letters were not “suits,” then the EPA’s 2009 order — the UAO — was a “suit,” and Wausau and Travelers breached their duty to defend by refusing to defend the UAO. Either way, says Land O’ Lakes, Wausau and Travelers did not breach the duty to defend in 2001. The Court finds, based on the undisputed facts, that the insurers breached their duty to defend in 2001, and that Land O’ Lakes’ claim for breach of the duty to defend is therefore barred by the statute of limitations. Below, the Court first explains why the 2001 PRP letter was a “suit.” The Court then explains why the 2001 PRP letter sought “arguably covered damages.” And finally the Court briefly addresses additional arguments related to Land O’ Lakes’ duty-to-defend claim. 1. Why a PRP Letter Is a “Suit” A PRP letter is not a polite invitation from the EPA to engage in conversation. It is an official agency action that has legal consequences, and a recipient ignores a PRP letter at its peril. If a recipient fails to respond to a PRP letter, the EPA will take one of several steps: (1) seek an injunction ... forcing the PRP to act; (2) issue an administrative order pursuant to ... CERCLA, either demanding information or forcing PRP cleanup; or (3) send additional notice letters, known colloquially as “drop dead” letters, informing the PRPs that they must follow the EPA’s suggested cleanup “voluntarily,” otherwise, the government will expurgate the pollution itself, and thereafter demand reimbursement through a CERCLA § 107 [42 U.S.C. § 9607] cost recovery action.... Whether the EPA attempts to compel cleanup or seeks reimbursement, once the agency notifies a party of its potential liability, the PRP is faced with three alternatives: (1) engage in a voluntary settlement; (2) force the government to order cleanup; or (3) have the government unilaterally implement cleanup and litigate for reimbursement later. Mark S. Dennison, Annotation, What Constitutes “Suit” Triggering Insurer’s Duty to Defend Environmental Claims — State Cases, 48 A.L.R.5th 355 § 2[a] (2011) (footnotes omitted). Accordingly, a recipient has “no practical choice other than to respond actively to [a PRP] letter.” Hazen Paper Co. v. U.S. Fid. & Guar. Co., 407 Mass. 689, 555 N.E.2d 576, 582 (1990). Numerous courts have been asked to decide whether a PRP letter is a “suit” as that term is used in CGL policies, and the vast majority of those courts have held that it is. Because of the serious consequences of a PRP letter and its critical role in the process of enforcing environmental laws, “a huge majority of U.S. courts hold that a policyholder’s receipt of a PRP notice from the U.S. EPA, or a state or local environmental agency, is the ‘functional equivalent’ of a ‘suit.’ ” 2 Tod Zuckerman & Mark Raskoff, Environmental Insurance Litigation: Law and Practice § 12:33 (2011). In other words, “[a]l-though courts are divided on this issue, the very strong majority view is that a policyholder’s receipt of a PRP letter imposes a duty to defend on the insurer.” Id. § 12:34. Minnesota adopted the majority view in SCSC Corp. v. Allied Mutual Insurance Co., holding that “the term ‘suit,’ as used in a CGL policy,” includes a state environmental agency’s action that was analogous to a PRP letter from the EPA. 536 N.W.2d 305, 315 (Minn.1995), overruled on other grounds by Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919 (Minn.2009). In light of SCSC, Travelers does not deny that the 2001 and 2008 PRP letters satisfied the “suit” requirement of the Travelers policies. Wausau, however, argues that under Oklahoma law, a PRP letter is not a “suit” for purposes of its CGL policies. Land O’ Lakes seems to concede that if Minnesota law and Oklahoma law are in conflict over whether a PRP letter is a “suit,” Oklahoma law would govern this question. Because the Oklahoma Supreme Court has not yet decided whether a PRP letter is a “suit,” the Court must predict how that court would decide the question. See Integrity Floorcovering, Inc. v. Broan-Nutone, LLC, 521 F.3d 914, 917 (8th Cir.2008). In support of its contention that, under Oklahoma law, a “suit” does not include a PRP letter, Wausau makes three arguments. First, Wausau appeals to the definition of “suit” found in Black’s Law Dictionary. Wausau Suppl. Mem. Supp. Mot. SJ at 9 [Docket No. 166]. Second, Wausau points out that some policy language requires Wausau to defend “ ‘any suit against the insured’ ” but other language allows Wausau to “ ‘make such investigation and settlement of any claim or suit as it deems expedient.’ ” Id. (quoting policy language; emphasis in Wausau’s memorandum). According to Wausau, a PRP letter from the EPA amounts to a “claim,” not a “suit,” as those two terms are used in the policies at issue. Third, Wausau says that because Oklahoma case law refers to ‘“pleadings’” in describing the scope of the duty to defend, the duty could only arise in response to a lawsuit, and not in response to something like a PRP letter. Id. at 10 (quoting First Bank of Turley v. Fid. & Deposit Ins. Co. of Md., 928 P.2d 298, 303-04 (Okla.1996)). Insurers have regularly made these and similar arguments with respect to PRP letters, and the overwhelming majority of courts have just as regularly rejected these arguments. Notably, as support for its arguments, Wausau relies on opinions from California and Illinois — two of the three states that have adopted the minority position that a PRP letter is not a suit. The Court finds that the Oklahoma Supreme Court would likely adopt the majority-view and hold that a PRP letter is a “suit” for purposes of a CGL policy. To begin with, Wausau’s appeal to Black’s Law Dictionary fails because other dictionaries define “suit” more broadly. See, e.g., R.T. Vanderbilt Co. v. Cont’l Cas. Co., 273 Conn. 448, 870 A.2d 1048, 1059 (2005) (“Several dictionaries also contain a broader definition [of suit] that includes an ‘attempt to recover a right or claim through legal action.’ ” (quoting Webster’s New Twentieth Century Dictionary of the English Language (2d ed. 1964))). The term “suit” is therefore broad enough to create a reasonable expectation on the policyholder’s part that a PRP letter is a suit for purposes of a CGL policy. See id. at 1059-60. The Oklahoma Supreme Court’s use of the word “pleadings” in connection with the duty to defend does not appreciably narrow the meaning of the word “suit.” The passage from First Bank of Turley v. Fidelity & Deposit Insurance Co. of Maryland on which Wausau relies says that the duty to defend “is determined on the basis of information gleaned from the petition (and other pleadings), from the insured and from other sources available to the insurer at the time the defense is demanded.... ” 928 P.2d 298, 303-04 (Okla.1996) (emphasis added; footnotes omitted). In context, First Bank of Turley’s, reference to “pleadings” — which appears alongside a reference to “other sources” of information — does not dictate that the word “suit” in a CGL policy excludes a PRP letter. Wausau’s best argument is that a “suit” must be a formal lawsuit because the policy language distinguishes a “suit” from a “claim.” At most, however, this renders the word “suit” ambiguous. And under Oklahoma law, if an insurance policy is ambiguous, the policy must be interpreted to be consistent with the reasonable expectations of the insured — even if those expectations conflict with the policy language. See Max True Plastering Co. v. U.S. Fid. & Guar. Co., 912 P.2d 861, 863 (Okla.1996). In other words, if an insurance policy “creates in the insured a reasonable expectation of coverage which is not supported by policy language, the expectation will prevail over the language of the policy.” First Bank of Turley, 928 P.2d at 303 n. 12. Given the nature of a PRP letter, the Court predicts that the Oklahoma Supreme Court will hold — as most other courts have held — that because an insured can reasonably expect its insurer to treat a PRP letter as a “suit,” an insurer must treat a PRP letter as a “suit” for purposes of a CGL policy. 2. Why Both PRP Letters Sought “Arguably Covered Damages” In the 2001 PRP letter, the EPA informed Land O’ Lakes “of the potential liability of Land O’ Lakes under CERCLA Section 107(a) [42 U.S.C. § 9607(a) ]” with respect to the Cushing refinery. JA Ex. 17 at EPAFOIA0010239. The EPA invited Land O’ Lakes to negotiate about conducting a “Remedial Investigation and Feasibility Study” or “RI/FS” of the site. Id. The purpose of the RI/FS was “to determine the full nature and extent of contamination at the [Cushing refinery], the risk it poses to human health and the environment, and the development of alternatives for long-term cleanup of the [Cushing refinery].” Id. In addition, the EPA asked Land O’ Lakes to reimburse it for roughly $8.9 million that the EPA had previously spent in cleaning up the site. Id. at EPAFOIA0010242. The $8.9 million in cleanup costs related to the “emergency” and “non-time-critical” removal actions undertaken by the EPA. The EPA undertook the emergency removal action in 1998; the non-time-critical removal action was ongoing as of the 2001 PRP letter. Id. at EPAFOIA0010250. Land O’ Lakes takes the position in this suit — a position unchallenged by the insurers — that the removal-action costs relate only to the abandonment of the refinery by Hudson (Midland’s successor) and subsequent salvage activities, not to the period when Midland owned the refinery. Pl. Mem. Opp. Joint Mot. SJ at 20 [Docket No. 214]; Insurers’ Joint Reply Mem. Supp. Mot. SJ at 3 [Docket No. 223]. Thus, says Land O’ Lakes, claims related to the January 2001 PRP letter were not even arguably covered under the policies at issue in this suit because that letter did not “tie[ ] the damages sought by the EPA ... to actual injury to third-party property ... during the period of Midland’s ownership.” Pl. Mem. Opp. Joint Mot. SJ at 20-21. In other words, Land O’ Lakes argues that it was not even arguably liable for the damages sought by the EPA in the 2001 PRP letter for two reasons: (1) the injury to property that gave rise to the damages was caused by Hudson, not Midland, and (2) the injury was to the Cushing refinery site alone, not to third-party property, and therefore was excluded from coverage in light of the owned-property exclusion in every policy at issue. See JA Ex. 4 (table of owned-property exclusions excerpted from the policies). The Court will assume, for the sake of argument, that Land O’ Lakes and the insurers are correct in asserting that the $8.9 million in removal costs sought by the EPA in the 2001 PRP letter was not for arguably covered damages. But in that letter, the EPA went far beyond seeking reimbursement for those removal costs. The EPA also asked Land O’ Lakes to participate in conducting an RI/FS. In addition, the EPA informed Land O’ Lakes of the EPA’s plans (after completing the RI/FS) to conduct “Remedial Design and Remedial Action (RD/RA) to design and implement the remedial action selected and approved by the EPA for the [Cushing refinery],” followed by “[f]ollow-up activities to monitor, operate, and maintain the completed remedial action as required at the [Cushing refinery] after the remedial action is complete.” JA Ex. 17 at EPAF-OIA0010242-43. In short, the 2001 PRP letter makes abundantly clear that, as of that time, the “full nature and extent” of contamination at the Cushing refinery — and thus Land O’ Lakes’ potential liability for that contamination — was unknown. Id. at EPAF-OIA0010239. Thus, even without further information, a reasonable person would have expected in 2001 that an RI/FS of the Cushing refinery might reveal injury to third-party property that would arguably be covered by the insurance policies at issue in this suit. As it happens, however, the 2001 PRP letter did include further information showing that the EPA was seeking arguably covered damages from Land O’ Lakes when it asked the company to participate in preparing the RI/FS — a process likely to cost many thousands or even millions of dollars. Specifically, the draft “Administrative Order on Consent” (“AOC”) that accompanied the PRP letter included the following “findings of fact” related to injury to third-party property: 10. The Site is an inactive refinery in a suburban area that includes residential and commercial properties. In particular, eleven residences are within 200 feet of the Site, and a Head Start day care facility is within one quarter of a mile of the Site.... Runoff from the Site enters Skull Creek, a perennial stream that is a tributary of the Cimarron River.... 15.... EPA reviewed the [Oklahoma Department of Environmental Quality’s] file associated with the Site. This file review ... raised several concerns to be addressed by EPA: (1) surface and subsurface soil contamination; (2) ground water contamination; (3) surface water and surface runoff into navigable waters; (4) [asbestos-containing material]; and[ ](5) transformers and [above-ground storage tanks].... 18. EPA has observed separators and aboveground storage tanks (ASTs) on site overflowing, as well as visibly stained soils in various locations. There is a remaining threat of release of hazardous substances from tanks, tank bottoms, drums and separators.... Oily sheens have been seen entering runoff to wetlands on site as well as drainage ditches, which eventually enter Skull Creek.... 23. A 1963 aerial photograph of the Site ... shows releases or threatened releases including the following: (a) a breach in a berm ... with apparent leakage toward Skull Creek; ... (e) ... two breaches in the revetment around Tank Farm 3, with a dark material leaking into a northward-flowing drainage ditch ...; (f) ... two breaches in the lagoon to the north of Tank Farm 1, with leakage toward Skull Creek. 24. A 1969 aerial photograph of the Site ... shows releases or threatened releases including ... a spill emanating from three vertical tanks east of Tank Farm 4, flowing toward Skull Creek.... 26. In July 1970, rain caused Skull Creek to overflow into the Cimarron River, and separating tanks and oil traps belonging to Midland ... overrran ... resulting in a fish kill in the Cimarron River.... 32. The disposal of hazardous substances at the Site occurred during the operation of the Site under Midland’s ownership. Midland’s operations ... have caused the release of hazardous substances into air, soil, surface water, and ground water at the Site.... 35. The presence of hazardous substances at the Site, and the past, present or potential movement of hazardous substances at or emanating from the Site, constitute actual and threatened “releases” as defined in ... 42 U.S.C. § 9601(22). JA Ex. 17 at EPAFOIA0010249-56. As these excerpts show, the EPA alleged in 2001 that Skull Creek had, in the past, been contaminated by waste from the Cushing refinery. The EPA also alleged past contamination of the “air, soil, surface water, and ground water” at the refinery site. Id. at EPAFOIA0010256. And the EPA cited the “potential movement of hazardous substances at or emanating from the Site....” Id. In other words, the EPA alleged that the Cushing refinery had already caused harm to third-party property and threatened to cause additional harm to third-party property. These facts alleged by the EPA in 2001 about harm to third-party property are essentially indistinguishable from the facts that, according to Land O’ Lakes, support summary judgment in favor of Land O’ Lakes in this action. Specifically, Land O’ Lakes argues that because the EPA alleges injury to groundwater, to Skull Creek and the Cimarron River, and to the general environment, coverage is available despite the owned-property exclusion in the CGL policies at issue. Pl. Mem. Supp. Mot. SJ at 2-5 [Docket No. 105]; Pl. Mem. Opp. Joint Mot. SJ at 10-16. The Court disagrees with Land O’ Lakes’ interpretation of the owned-property exclusion, as the Court will explain below. For present purposes, though, what matters is that every one of these items of damage — items of damage that, according to Land O’ Lakes, are so clearly covered by its policies that it is now entitled to summary judgment — were identified by the EPA in 2001 in the draft AOC that accompanied the PRP letter. Land O’ Lakes attempts to sidestep the contents of the 2001 draft AOC by focusing on later documents (such as the 2007 ROD) in identifying the damages for which Land O’ Lakes now seeks coverage. For instance, Land O’ Lakes says that the “ground water allegations in the ROD triggered the Defendant Insurers’ duty to defend.” Pl. Reply Mem. Supp. Mot. SJ at 3 [Docket No. 222], But the groundwater allegations contained in the ROD (issued in 2007) differ only in their level of specificity from the groundwater allegations contained in the draft AOC (issued in 2001). The ROD identified two specific “contaminants of concern” or “COCs” in the refinery’s groundwater — benzene and thallium — and said that “[t]he COCs in ground water represent a probable source of migration to off site ground water.” JA Ex. 8 at LOL0137453. Yet the draft AOC said that “Midland’s operations ... caused the release of hazardous substances into ... ground water,” and further said that the “potential movement of hazardous substances” from the refinery site were “threatened ‘releases’ ” under CERCLA. JA Ex. 17 at EPAFOIA0010256. If (as Land O’ Lakes contends) the ROD’s allegations about groundwater contamination make the EPA’s 2008 PRP letter a suit for arguably covered damages, then the EPA’s 2001 PRP letter must also have been a suit for arguably covered damages. Notably, in corresponding with Wausau, Land O’ Lakes originally took the position that the EPA’s 2001 PRP letter was exactly what this Court finds it to be: a suit for arguably covered damages that triggered the duty to defend. Specifically, in responding to Wausau’s argument that the pollution exclusion in post-1971 policies foreclosed coverage under those policies, Land O’ Lakes said in November 2001 that “the duty to defend has been triggered .... ” JA Ex. 28 at WAU-000640 (emphasis added). And when Wausau refused to provide a defense on the basis that the 2001 PRP letter was not a “suit,” Land O’ Lakes responded in January 2002 by saying that the PRP letter was in fact a suit and by characterizing Wausau’s refusal to provide a defense “as a declination of coverage and a breach of [Wausau’s] duty to defend.” JA Ex. 30 at WAU000637 (emphasis added). Land O’ Lakes now says that these assertions were pure bluster — that, when it accused Wausau of breaching its duty to defend in 2001, it was just bluffing. In fact, Land O’ Lakes says now, neither Wausau nor Travelers had any duty to defend in response to the EPA’s 2001 PRP letter. According to Land O’ Lakes, neither Wausau nor Travelers had a duty to defend until the EPA sent the 2008 PRP letter, which, Land O’ Lakes says, sought different damages than the 2001 PRP letter. See PL Mem. Opp. Joint Mot. SJ at 23 (“[T]he 2008 soil and water remediation claims made by the EPA were distinct [from] the ‘removal of equipment’ claims made in 2001. The 2008 Claims triggered the Defendant Insurers’ duty to defend for the first time.”). Land O’ Lakes is incorrect. As Land O’ Lakes itself recognized in corresponding with the insurers after receiving the 2008 PRP letter, the claims made by the EPA in the 2008 PRP letter were simply a continuation of the claims made by the EPA in the 2001 PRP letter. For instance, in an April 2008 letter to Wausau, Land O’ Lakes said that it was “following] up on our letters of 2001 and 2002.... ” JA Ex. 32 at WAU-000596. Land O’ Lakes described the 2008 PRP letter as reflecting the EPA’s decision “to press its superfund claims against Land O’ Lakes” and asked Wausau to state whether it was “amenable to changing its coverage position.” Id. In a subsequent letter to Wausau, Land O’ Lakes said that the 2008 PRP letter had “reawakened a claim that we had believed to be quie[sce]nt.” JA Ex. 34 at WAU-001998. Land O’ Lakes was correct in 2001 when it characterized the PRP letter as a suit for arguably covered damages. The 2001 PRP letter was one step — and the 2008 PRP letter was another step — in a single, continuous process of EPA enforcement with respect to the Cushing refinery; there is no reason to treat the 2008 PRP letter as somehow commencing a separate suit. In the 2001 PRP letter, the EPA asked Land O’ Lakes to participate in a study (the RI/FS) that would lead to cleanup activity (the RD/RA), and the EPA’s allegations of damage to third-party property in the 2001 AOC were sufficient to make the EPA’s claims — even apart from the demand for $8.9 million for removal costs in the 2001 PRP letter — claims for arguably covered damages. Accordingly, because Wausau and Travelers refused in 2001 to defend Land O’ Lakes against the claims in the 2001 PRP letter, both insurers breached their duty to defend at that time, and the six-year statute of limitations on Land O’ Lakes’ duty-to-defend claims has run. 3. Additional Arguments Land O’ Lakes makes two additional arguments aimed at maximizing any possible recovery on its duty-to-defend claims. The Court has already held that those claims are barred, but, for the sake of completeness, the Court will briefly address Land O’ Lakes’ two arguments. First, Land O’ Lakes argues that the duty to defend the 2008 PRP letter includes a duty to defend claims related to removal costs, even though the EPA first sought those removal costs in the 2001 PRP letter that (according to Land O’ Lakes) the insurers had no duty to defend. Pl. Mem. Supp. Mot. SJ at 22. Land O’ Lakes relies on the general principle that “the duty to defend one claim creates a duty to defend all claims.... ” Wooddale Builders, Inc., 722 N.W.2d at 302. The insurers do not appear to dispute the principle; they simply argue that the 2008 PRP letter did not trigger a duty to defend. Given the parties’ general agreement on the governing legal principle, the Court sees no reason to discuss this issue any further. Second, Land O’ Lakes argues that at least some of its past and future expenditures associated with complying with the UAO should be characterized as the costs of defending the EPA’s action because (according to Land O’ Lakes) that money was (or will be) spent to minimize Land O’ Lakes’ Lability to the EPA. Pl. Mem. Supp. Mot. SJ at 25-26. In other words, Land O’ Lakes asks that this portion of its expenditures be treated as defense costs, and not as indemnity costs, for purposes of the insurance policies that are at issue in this action. Wausau and Travelers counter by arguing that any expenditure by Land O’ Lakes that was made after the EPA had already done the site investigation (the RI/FS) and selected a remedy (the RD/ RA) would necessarily be an indemnity cost, not a defense cost. Insurers’ Joint Mem. Opp. Pl. Mot. SJ at 16 [Docket No. 218] (“Once EPA selected the site remedy and fixed [Land O’ Lakes’] liability by issuing the UAO, the costs incurred by [Land O’ Lakes] in complying with that Order became indemnity costs, if covered at all.”). Alternatively, the insurers argue that, assuming that some of Land O’ Lakes’ expenditures could be classified as defense costs, distinguishing those defense costs from indemnity costs would be a question of fact for the jury. Id. at 17-25. Finally, the insurers argue that if Land O’ Lakes were to sue the EPA and seek reimbursement of some or all of its expenditures, the attorney’s fees and costs incurred in prosecuting that reimbursement action against the EPA would not be defense costs that are the responsibility of the insurers. Id. at 25-31. The costs that Land O’ Lakes seeks to characterize as defense costs can be sorted into three categories: (1) costs related to the period before the EPA issued the UAO in January 2009; (2) costs incurred in complying with the UAO after it was issued; and (3) costs that will be incurred in a future reimbursement action by Land O’ Lakes against the EPA. With respect to the first two categories, the Court agrees with the insurers that whether the claimed costs are defense costs is a question of fact. Given that the insurers dispute the purpose of the claimed costs, the Court cannot, on summary judgment, simply accept Land O’ Lakes’ representations about which costs went toward remediation activity (and thus are not defense costs) and which costs went toward reducing the expenses of remediation (and thus are arguably defense costs). In particular, the Court finds that whether costs incurred after the EPA issued the UAO qualify as defense costs is a question of fact. In the context of a CERCLA enforcement action, the UAO is like an injunction in an ordinary lawsuit, and costs spent to comply with a UAO are analogous to costs spent to comply with an injunction. Such costs are generally indemnity costs, not defense costs. Cf. Wis. Power & Light Co. v. Century Indem. Co., 130 F.3d 787, 792 (7th Cir.1997) (“[T]he agreement came two years after the Department of Natural Resources had ordered the [insured] to clean up the site. Costs that the [insured] incurred after the order, either directly or in hiring [a contractor] to clean up the site, were response costs, which the [insured] was required to incur by virtue of governmental command.”). But “generally” does not mean “always.” As the Minnesota Supreme Court recognized in Domtar, Inc. v. Niagara Fire Insurance Co., costs spent by a defendant in responding to an environmental-enforcement action might serve two purposes: (1) complying with an order to clean up a polluted site, and (2) “minimizing both the scope and magnitude of [the defendant’s] ultimate liability for clean-up costs.” 563 N.W.2d 724, 738 (Minn.1997). Domtar held that costs that serve the second purpose may qualify as defense costs, even if they “serve the dual purpose of complying with [an environmental-enforcement action] ....” Id. Under Domtar, then — which the parties seem to agree applies — whether money spent by Land O’ Lakes in response to the UAO qualify as defense costs is an intensely factual question that cannot be resolved on summary judgment given the state of the record in this case. But Domtar does provide guidelines for distinguishing pure compliance costs (i.e., costs that cannot qualify as defense costs) from dual-purpose compliance and defense costs (i.e., costs that, because of their hybrid nature, can qualify as defense costs). In any enforcement action, a defendant will be able to choose different ways to comply with an order issued by an agency. Suppose, for instance, that the EPA ordered Land O’ Lakes to remove 10 tons of polluted dirt as part of a remediation plan. Land O’ Lakes might then pay a consultant $1,000 to identify the cheapest way of hauling that dirt away. This $1,000 consultant fee would be a compliance cost, not a defense cost, because it would not change the nature of Land O’ Lakes’ responsibilities under the enforcement order — to remove the 10 tons of polluted dirt. In Domtar’s words, paying the $1,000 fee to the consultant would not change “both the scope and magnitude of [the defendant’s] ultimate liability for cleanup costs.” 563 N.W.2d at 738. Suppose, however, that Land O’ Lakes paid a consultant $1,000 to show that the dirt did not need to be hauled away, but instead could be decontaminated at the site — and that cleaning the dirt at the site would be cheaper than hauling it away. Suppose further that Land O’ Lakes then used the consultant’s report to persuade the EPA to change its requirement — that is, to allow Land O’ Lakes to treat the dirt in place rather than haul it away. Under these circumstances, the money paid to the consultant would not be to find the cheapest way to comply with the EPA’s order, but instead to persuade the EPA to change its order. The $1,000 consultant fee would thus likely qualify as a defense cost under Domtar. Finally, with respect to the third category — costs associated with bringing a future reimbursement action against the EPA— the Court agrees with Land O’ Lakes that such costs would be defense costs. The insurers analogize such claims to counterclaims and cite myriad cases holding that the cost of bringing a counterclaim is not a cost of defense. See Insurers’ Joint Mem. Opp. Pl. Mot. SJ at 27-30 (citing cases). But the analogy between a CERCLA reimbursement action and a counterclaim is weak. A counterclaim is an independent claim that a defendant has against a plaintiff — a standalone claim that the plaintiff violated the defendant’s rights and owes it compensation. The defendant could bring that claim against the plaintiff whether or not the plaintiff sued it. But given how CERCLA enforcement actions are structured, a reimbursement action — despite taking the form of a freestanding lawsuit— is not, in fact, a claim against the EPA that is separate from the enforcement action. Rather, a reimbursement action is, in effect, a way of defending the enforcement action. Indeed, it is the only prac tical way of defending an enforcement action. In an ordinary lawsuit, a defendant is not ordered to pay damages (or comply with an injunction) until after mounting a defense. In contrast, in an EPA-enforcement action, any sensible defendant will comply with an EPA order first — before mounting a defense — because the penalties for failing to comply with an EPA order are so steep. After conducting the EPA ordered cleanup, if a defendant believes that it should not have borne the costs of the cleanup, CERCLA permits the defendant to “petition the [EPA] for reimbursement from the [Superfjund----”42 U.S.C. § 9606(b)(2)(A). If the petition is denied, CERCLA permits the defendant to “file an action against the [EPA] in the appropriate United States district court seeking reimbursement from the [Superf]und.” 42 U.S.C. § 9606(b)(2)(B). Thus, although Land O’ Lakes will be the nominal plaintiff in a future reimbursement action against the EPA under § 9606(b)(2), Land O’ Lakes will — in substance — be defending itself against the EPA’s enforcement action. In short, although Land O’ Lakes must (for all practical purposes) pay first and defend itself later, Land O’ Lakes’ costs for bringing the reimbursement action remain defense costs for purposes of the CGL policies at issue in this case. D. Duty to Indemnify — Wausau and Travelers The duty to indemnify is narrower than the duty to defend. Wooddale Builders, Inc., 722 N.W.2d at 302. Although claims that are even arguably covered give rise to the duty to defend, only claims that are actually covered give rise to the duty to indemnify. See Reins. Ass’n v. Timmer, 641 N.W.2d 302, 308 (Minn.Ct.App.2002) (“[T]o establish a duty to indemnify, the insured must prove that all claims alleged in the complaint fall within the policy coverage.” (emphasis in original)). Land O’ Lakes seeks a declaration that the insurers will be required to indemnify it for the costs of remediating the Cushing refinery site, whatever those costs may turn out to be. Pl. Mem.