With respect to the SWDA, there appears to be a split in authority with respect to the statute of limitations. In Columbus McKinnon Corp. v. Gaffee, one Texas district court held that a claim under SWDA is subject to the residual four-year statute of limitations under Section 16.004 of the Texas Civil Practice and Remedies Code. However, in Celanese Corp. v. Coastal Water Authority, the defendant argued that the SWDA claims was not ripe because the TCEQ had not yet approved the plaintiff’s remedial action plan, which it claimed was a condition precedent to bringing suit.
Because the TCEQ approved the RAP while the case was pending, the court held that the issue was moot. However, this reasoning seems to contradict the Columbus McKinnon Corp. opinion that the statute of limitations can begin to run before TCEQ approval is obtained. Finally, Aviall Services, Inc. v. Cooper Industries, Inc, the court referenced both a two year and four year statute of limitations, but declined to rule on which one applied since more than four years elapsed between the time that Aviall’s claim arose and when it filed suit. Perhaps the better argument is that the residual four year statute of limitations does apply, but does not begin to accrue until after the plaintiff’s remedial action plan has been approved by the TCEQ.
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