On October 9, 2009, the U.S. District Court for the Southern District of Texas found that the allegedly inadequate responses to section 104 (e) cancellation requests did not adequately affect cerCLA`s cost recovery time for a remote action, but that the limitation period could be settled by agreement. The Tribunal also found that a Texas action to recover the costs of the mini-CERCLA state was not excluded by Laches. U.S. v. Halliburton Energy Services, 2009 U.S. Dist. LEXIS 94508 (S.D. Tex. 9 Oct 2009). While radioactive contamination disposal operations were completed at three sites in Texas, the EPA sent “complex” requests for information after 104 (e) to identify potential PRPs. Four years later, and more than three years after the completion of the relocation operations, the EPA identified the defendant QSA Global as PRP.
The EPA and Texas then filed a complaint against QSA Global by CERCLA, after which QSA Global issued a summary judgment on the grounds of limitation. Although the EPA and Texas admitted that their complaints were filed more than three years after the termination of the deportation operations, they argued that they were entitled to a fair toll because other PRPs had not provided sufficient information in response to requests from 104 (e) that QSA Global had identified as PRP. The court found that, in order to commit the statute of limitations fairly, the applicants must prove that they were scrupulous in their rights, but that “certain exceptional circumstances were in their way,” Halliburton at 21. In this regard, the applicants were not entitled to a fair toll, 1) other PRPs, not QSA Global, allegedly withheld information; At the time of the investigation and 2) the applicants failed to demonstrate that, given the complexity of S. 104`s applications, it was found that any non-identification of QSA Global was an exceptional circumstance or that the EPA and Texas had closely followed the responses received. As a result, U.S. EPA and Texas U.S. EPA and Texas cost recovery claims against QSA Global were prescribed. With respect to these applicants` claims against another PRP-NL– – which were also filed more than three years after the removal was closed, the EPA relied on agreements signed by NL that would have mortgaged the implementation of the statute of limitations until after the complaint was filed. Nl submitted that: 1) la CERCLA`s three-year limitation provision, No. 113 (g) (2) (A), contains a judicial requirement that cannot be renewed by convention; 2) the agreements were inoperative anyway because they refer to a toll period that began after the expiry of the limitation period.
The Court challenged NL`s two arguments and found, first, that the CERCLA limitation period was not competent, but that it was a positive defence and, therefore, a statement of forgery and waiver, as if by agreement. With respect to NL`s second argument, the Tribunal found a real material question as to when the removal order would be completed, but concluded that the toll agreements were in any event effective, even if they had been signed after the limitation period had expired. Id. at 50. The State of Texas has also raised costs recovery actions against QSA Global and NL under the Texas Solid Waste Disposal Act (“TSWDA”), a CERCLA-type law. The court found that Texas` claims were not prescribed by laches or a prescribed Texas statute of limitations.