ELR Citation: ELR 20240
No(s). H-07-3795 (S.D. Tex. Oct 9, 2009)

A district court granted in part and denied in part motions to dismiss the United States' and Texas' claims against two companies for response costs incurred at three sites contaminated with radioactive materials. The United States' CERCLA claim against one of the companies was untimely. The government argued that the statute of limitations should be equitably tolled to allow it to pursue its CERCLA claims because the acts and omissions by the company's predecessors prevented it from timely filing its claims. But the United States did not make any accusation that the company itself, or its predecessors, misled the government. Although the predecessors may have engaged in misconduct or erred in their responses to the government's notice requests, the government evidenced some lack of diligence. The government's failure to identify the company's existence in a timely manner amounts to excusable neglect. Accordingly, the United States has not shown itself entitled to equitable tolling, and its CERCLA claims against the company are time barred. However, the United States' CERCLA claims against a second company were not dismissed. Any tolling agreements entered into by the company and the government are not invalid even though they were signed after the expiration of the relevant limitations period. In addition, Texas may go forward with its Texas Solid Waste Disposal Act claims against the companies, but its CERCLA claim against one of the companies was time barred.