Many disagree with the court`s judgment. Nevertheless, the Halliburton case requires PRPs and their lawyers to take a different and more cautious approach with the EPO with regard to the terms of toll agreements, in order to avoid waiving CERCLA`s statute of limitations. The EPO has shown its willingness to amend its «form» toll agreement in order to obtain existing limitation periods. The Taft Environmental Practice Group helped customers negotiate this amendment to the EPO`s toll agreement to allay the concerns of the Halliburton Court. In Asarco v. Union Pac. R.R. Co., 2014 U.S. App. LEXIS 15285 (8th Cir. 2014), the Eighth Circuit confirmed the first instance to Asarco LLC against Union Pac. R.R. Co., 2013 U.S.
Dist. LEXIS 108852 (D. Neb. Aug. 2, 2013) and dismissed the contribution, infringement and actions brought by Asarco against Union Pacific in relation to the Omaha Lead Superfund (OLS) site. Asarco attempted to circumvent Union Pacific`s contribution protection under Union Pacific Section 113(f)(2) by alleging a breach of the toll agreement entered into by the parties. A recent U.S. District Court, U.S.
v. Halliburton, shook this concept and stressed that this mutual understanding, questioned in this case by the US Department of Justice, is not correct. The Halliburton Court proposes that, if the toll agreement does not expressly preserve the existing limitation periods of a PRP, the defence is dropped. NL also stated that: (1) the limitation period according to CERCLA is a judicial condition for filing appeals; (2) the toll deadlines provided for in the Toll Agreement have expired; and (3) that the toll agreements were not applicable, as the agreements were signed after the expiry of the limitation period. If your customer is a potentially responsible party («PRP») at a CERCLA site and is considering a toll or other agreement regarding that site with another PRP, any waiver of the agreement should be explicit, all other rights and defenses should be respected, and an explicit right of agreement with the government and Section 113(f)(2) of Contribution Protection should be respected. .