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. The EPO has filed a lawsuit to cover sanitation costs against several companies, including QSA Global and NL Industries, responsible for contaminating hazardous landfills in Texas. The dispute concerned whether the limitation period had expired in accordance with CERCLA, which would exclude the EPO`s right to response costs. With respect to the breach of the toll agreement, the Tribunal then found that federal law regulated the absence of a federal law. The Tribunal rejected the idea that it is not possible to waive the protection of CERCLA contributions and concluded that, according to CERCLA, the waiver “is governed by dependent federal provisions”*15.
Referring to cases concerning private indemnification agreements and cost allocation, the Tribunal stated that there was “no reason to treat the waiver of Section 9613(f)(2) differently from the award referred to in Section 9607(e), since both parties include the private allocation of costs by contract.”*17 Under Nebraska law, which defines waiver as “wilful waiver or waiver of a known right or privilege”*18, the Tribunal found that the toll agreement did not waive Union Pacific`s contribution protection. Even if the protection was known at the time of signing, since contribution protection is prescribed by law, Nebraska law requires that the waiver be “clear and unequivocal.” *21. The Tribunal found that there was no offence “because nothing in the toll agreement prevented UP from obtaining protection under the law.”*22 Prior to the signing of the agreement, the United States requested mediation in the FOIA dispute. The toll agreement did not cover management by Union Pacific. Asarco nevertheless concluded the agreement. The mediation was successful and resulted in a complaint from CERCLA and an approval decree that resulted in the settlement and rejection of the FOIA dispute. Asarco did not comment on the Federal Registry`s communication on the transaction and ultimately did not attempt to intervene in the CERCLA case. On the contrary, after the approval of the Union Pacific approval decree, Asarco sued for violating the toll agreement. The case was dismissed at Union Pacific`s request to F.R.C.P. 12 (b) (6).
For the first time on appeal, Asarco raised an argument by Estoppel that sought to prevent union pacific from asserting contribution protection. The lesson is unclear: perhaps a clearer toll agreement, which explicitly refers to its alleged effects on ongoing EPA disputes, would have altered the outcome of this action, but perhaps not. In Asarco v. Union Pac. R.R. Co., 2014 U.S. App. LEXIS 15285 (8th Cir. . . .