Amicus Curiae Brief — Georgia-Pacific Consumer Products LP, et al., Petitioners v. International Paper Company, et al.

Supreme Court briefAug 23, 2023

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No. 22-465

In the Supreme Court of the United States

GEORGIA-PACIFIC CONSUMER PRODUCTS LP, ET AL.,

PETITIONERS

INTERNATIONAL PAPER COMPANY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

MASHA G. HANSFORD

Assistant to the Solicitor

General

JOHN L. SMELTZER

MARY GABRIELLE SPRAGUE

DINA B. MISHRA

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42

U.S.C. 9601 et seq., authorizes persons who have been

ordered to pay more than their fair share for an environmental cleanup to obtain contribution from other

persons responsible for the contamination. See 42

U.S.C. 9613(f ). The Act contains a three-year statute of

limitations for an “action for contribution for any response costs or damages.” 42 U.S.C. 9613(g)(3). That

limitations period begins to run on “the date of judgment in any action under [the Act] for recovery of such

costs or damages.” 42 U.S.C. 9613(g)(3)(A). The question presented is as follows:

Whether a judgment that declares a particular entity

to be liable under CERCLA, but does not order payment of any response costs or damages, can trigger the

three-year limitations period for a contribution action.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Discussion:

A. The court of appeals’ decision is incorrect ...................... 8

B. The question presented does not warrant review

in this case ........................................................................ 18

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

American Cyanamid Co. v. Capuano,

381 F.3d 6 (1st Cir. 2004) .................... 7, 8, 11, 14, 18-20, 22

Arconic, Inc. v. APC Inv. Co.,

969 F.3d 945 (9th Cir. 2020), cert. denied,

141 S. Ct. 2838 (2021) ......................................................... 13

Atlantic Richfield Co. v. Christian,

140 S. Ct. 1335 (2020) ....................................................... 1, 2

Barnhart v. Thomas, 540 U.S. 20 (2003) ............................. 16

Boechler, P.C. v. Commissioner,

142 S. Ct. 1493 (2022) ......................................................... 16

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004)........................................................ 10, 11

Heimeshoff v. Hartford Life & Accident Ins. Co.,

571 U.S. 99 (2013)............................................................... 12

Kalamazoo River Study Grp. v. Eaton Corp.,

258 F. Supp. 2d 736 (W.D. Mich. 2003) ............................... 5

Kalamazoo River Study Grp. v. Rockwell Int’l,

107 F. Supp. 2d 817 (W.D. Mich. 2000) ......................... 7, 22

O’Neil v. Picillo, 682 F. Supp. 706 (D.R.I. 1988) .......... 18, 19

RSR Corp. v. Commercial Metals Co.,

496 F.3d 552 (6th Cir. 2007) ............................................... 13

(III)

Cases—Continued:

Page

Rumsfeld v. Padila, 542 U.S. 426 (2004) ............................... 9

Slack Techs., LLC v. Pirani, 143 S. Ct. 1433 (2023) ............ 9

Solutia Inc. v. McWane Inc.,

672 F.3d 1230 (11th Cir.), cert. denied,

568 U.S. 942 (2012)................................................................ 3

Territory of Guam v. United States,

141 S. Ct. 1608 (2021) ......................................................... 12

United States v. Atlantic Research Corp.,

551 U.S. 128 (2007)........................... 2, 3, 9, 10, 12-14, 16, 21

United States v. Denver,

100 F.3d 1509 (10th Cir. 1996) ........................................... 17

Statutes:

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980,

42 U.S.C. 9601 et seq. ............................................................ 1

§ 105, 42 U.S.C. 9605 ......................................................... 4

§ 106, 42 U.S.C. 9606 ......................................... 2, 3, 11, 12

§ 106(a), 42 U.S.C. 9606(a) ................................................ 2

§ 107(a), 42 U.S.C. 9607(a) ................... 2-5, 9-13, 16, 20-22

§ 107(a)(1)-(4), 42 U.S.C. 9607(a)(1)-(4) ........................... 2

§ 107(a)(4), 42 U.S.C. 9607(a)(4) ................................... 1, 2

§ 107(a)(4)(B), 42 U.S.C. 9607(a)(4)(B) ............................ 2

§ 113(f ), 42 U.S.C. 9613(f )..................... 2-4, 6, 8-12, 17, 22

§ 113(f )(1), 42 U.S.C. 9613(f )(1) ............2, 5, 11, 15, 18, 20

§ 113(f )(3)(B), 42 U.S.C. 9613(f )(3)(B) ...................... 2, 11

§ 113(g)(2), 42 U.S.C. 9613(g)(2) .................3, 7, 13, 14, 21

§ 113(g)(3), 42 U.S.C. 9613(g)(3) ............................. 3, 8-12

§ 113(g)(3)(A), 42 U.S.C. 9613(g)(3)(A) ...... 3, 6-19, 21, 22

§ 113(g)(3)(B), 42 U.S.C. 9613(g)(3)(B) ................ 3, 10-13

In the Supreme Court of the United States

No. 22-465

GEORGIA-PACIFIC CONSUMER PRODUCTS LP,

ET AL., PETITIONERS

INTERNATIONAL PAPER COMPANY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is filed in response to the Court’s order inviting the Solicitor General to express the views of the

United States. In the view of the United States, the petition for a writ of certiorari should be denied.

STATEMENT

1. Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (CERCLA), 42 U.S.C. 9601 et seq., “to promote the

timely cleanup of hazardous waste sites and to ensure

that the costs of such cleanup efforts are borne by those

responsible for the contamination.” Atlantic Richfield

Co. v. Christian, 140 S. Ct. 1335, 1345 (2020) (brackets

and citation omitted).

Under Section 107(a)(4) of CERCLA, potentially responsible parties (PRPs) are strictly liable for expenses

that include the costs of the cleanup (response costs)

(1)

and damages for the loss of natural resources. 42

U.S.C. 9607(a)(4). PRPs include owners and operators

of facilities that disposed of hazardous substances, as

well as persons who arranged for disposal of hazardous

substances at those facilities. 42 U.S.C. 9607(a)(1)-(4).

Under Section 107(a), the federal government or another party can clean up the site itself and then sue

PRPs to recover its costs. Atlantic Richfield, 140 S. Ct.

at 1346. Alternatively, under Section 106(a), the federal

government can pursue judicial actions or issue administrative orders to require a PRP to clean up the site.

42 U.S.C. 9606(a).

The burdens of a CERCLA cleanup can fall disproportionately on a particular PRP. To address that problem, CERCLA “provide[s] two clearly distinct remedies,” set out in Sections 107(a) and 113(f ). United

States v. Atlantic Research Corp., 551 U.S. 128, 138

(2007) (citation and internal quotation marks omitted).

A PRP that has “incurred” cleanup costs without being

sued under Section 106 or Section 107(a) can file a costrecovery action under Section 107(a) against other

PRPs. 42 U.S.C. 9607(a)(4)(B); see Atlantic Research,

551 U.S. at 139. A PRP “may recover under § 107(a)

without any establishment of liability to a third party.”

Atlantic Research, 551 U.S. at 139.

By contrast, a PRP that reimburses another person’s

response costs after being sued under Section 106 (by

the federal government) or Section 107(a) (by the federal government or another plaintiff) “has not incurred

its own costs of response and therefore cannot recover

under § 107(a).” Atlantic Research, 551 U.S. at 139. Instead, the PRP may seek contribution under Section

113(f ). 42 U.S.C. 9613(f )(1) and (3)(B). Contribution

under CERCLA carries its traditional, common-law

meaning: the “tortfeasor’s right to collect from others

responsible for the same tort after the tortfeasor has

paid more than his or her proportionate share, the

shares being determined as a percentage of fault.” Atlantic Research, 551 U.S. at 138 (citation omitted). In

Atlantic Research, this Court reserved the question

whether costs incurred pursuant to a consent decree entered in a Section 106 or 107(a) action “are recoverable

under § 113(f ), § 107(a), or both.” Id. at 140 n.6. Since

that time, however, the government has argued that

such costs are recoverable in a Section 113(f ) contribution action, and courts of appeals have consistently

agreed. See, e.g., Solutia Inc. v. McWane Inc., 672 F.3d

1230, 1235-1236 (11th Cir.) (citing cases), cert. denied,

568 U.S. 942 (2012).

Cost-recovery actions under Section 107(a) and contribution actions under Section 113(f ) have different

limitations periods. See 42 U.S.C. 9613(g)(2) and (3).

The provision at issue here, Section 113(g)(3), sets a

three-year limitations period for an “action for contribution for any response costs or damages.” 42 U.S.C.

9613(g)(3). For a contribution claim based on a judgment, that period runs from “the date of judgment in

any action under this chapter for recovery of such costs

or damages.” 42 U.S.C. 9613(g)(3)(A). For a contribution claim based on a settlement, that period runs from

“the date of an administrative order * * * or entry of a

judicially approved settlement with respect to such

costs or damages.” 42 U.S.C. 9613(g)(3)(B).

2. a. For a prolonged period, several paper mills, including a mill now owned by petitioners, disposed of

waste produced during the manufacture of carbonless

copy paper into the Kalamazoo River in southwestern

Michigan. Pet. App. 29a. That waste included polychlorinated biphenyls (PCBs). Ibid. In 1990, the U.S. Environmental Protection Agency (EPA) designated 80

miles of the Kalamazoo River and surrounding areas for

inclusion on the National Priorities List (NPL) as a site

requiring priority cleanup under CERCLA, see 42

U.S.C. 9605, commonly known as a Superfund site. Pet.

App. 39a, 133a, 139a.

The work at the Site has proceeded in phases, involving investigation and cleanup of different media (soil

and water) and of several “operable units” covering different geographic areas. Pet. App. 40a-45a, 109a. Petitioners have entered into a series of agreements to perform investigation and cleanup work during the different phases. Id. at 109a-113a. Those agreements include

1990 and 2007 administrative consent orders with various Michigan agencies; three administrative agreements with EPA entered in 2006 and 2007; a 2009 administrative agreement with EPA; and a 2009 federal

consent decree. Ibid. Petitioners claim to have incurred approximately $100 million in response costs for

work performed voluntarily and/or under those agreements. See id. at 109a-113a; First Am. Compl. ¶¶ 29-30.

After the Site was designated, petitioners and other

paper companies formed an unincorporated association,

the Kalamazoo River Study Group (KRSG). Pet. App.

5a. In 1995, KRSG sued several other companies—not

including respondents—seeking to recover costs its

members had incurred under the 1990 administrative

consent order. Ibid. Two of the defendants in the

KRSG litigation (Rockwell International Corporation

and Eaton Corporation) filed counterclaims, invoking

both Sections 107(a) and 113(f ). D. Ct. Doc. 741-14, at

7-14 (Mar. 15, 2015); D. Ct. Doc. 741-15, at 12-16 (Mar.

15, 2015). In those counterclaims, Rockwell and Eaton

(a) denied that they were liable parties under CERCLA

and (b) alleged that they would be entitled to reimbursement from KRSG and its members if Rockwell

and Eaton incurred their own response costs or were

held liable in connection with the Site. D. Ct. Doc. 74114, at 9-10; D. Ct. Doc. 741-15, at 14-15. In 1998, the

KRSG district court issued an “Order and Partial Judgment” in which it, inter alia, entered “judgment as to

liability * * * in favor of Defendants Eaton and Rockwell and against Plaintiff KRSG on Defendants’ counterclaims.” D. Ct. Doc. 741-17, at 2 (Mar. 15, 2015)

(some capitalization omitted). That judgment did not

order any KRSG member to pay any amount to Rockwell or Eaton or to any other entity or to incur any particular costs.

In 2000 and 2003 the KRSG district court entered

two additional judgments. The first judgment did not

allocate any response-cost obligation to Rockwell; the

second judgment ordered Eaton to pay KRSG

$62,261.58, reflecting a small portion of KRSG’s investigative costs. D. Ct. Doc. 741-18, at 22 (Mar. 15, 2015);

KRSG v. Eaton Corp., 258 F. Supp. 2d 736, 761 (W.D.

Mich. 2003); see Pet. App. 7a.

b. In 2010, petitioners filed this CERCLA action,

seeking to recover a portion of their cleanup costs from

respondents International Paper Company and Weyerhaeuser (as well as NCR Corporation, which is not a

party in this Court, see Pet. ii n.2). See Pet. App. 7a.

Petitioners’ complaint invoked both Sections 107(a)

and 113(f )(1) of CERCLA. First Am. Compl. ¶¶ 160214; see Pet. App. 7a-8a. The district court determined

that petitioners had a Section 107(a) cause of action as

to costs incurred pursuant to the 1990 administrative

consent order, and a Section 113(f ) cause of action as to

other costs triggered by subsequent settlement agreements. See Pet. App. 126a, 128a. Respondents argued

that petitioners’ entire action was subject to the Section

113(g)(3)(A) limitations period for contribution claims,

based on the counterclaims and the 2003 district-court

judgment in the KRSG litigation. Id. at 120a. The district court “disagree[d],” explaining that “the ostensible

section 107 counterclaims asserted by the defendants in

the KRSG litigation” did not “obligate[] [petitioners] to

assert section 113 contribution claims.” Ibid. Applying

the Section 113(g)(3)(A) limitations period, the court observed, would “effectively bar some contribution claims

even before they would normally accrue.” Id. at 121a.

The district court then determined that the statute

of limitations had not run for costs incurred under the

1990 administrative consent order or under agreements

entered in 2009, but that it had run for costs incurred

under agreements entered in 2006 and 2007. See Pet.

App. 126a-129a. After trial, the court allocated the nontime-barred costs that petitioners had incurred at the

Site through 2014. The court allocated 40% of those

costs to petitioners, 40% to NCR, 15% to International

Paper, and 5% to Weyerhaeuser. Id. at 92a.

c. The court of appeals reversed. Pet. App. 1a-27a.

The court of appeals held that Section 113(g)(3)(A)

barred petitioners’ CERCLA claim in its entirety because that claim had been filed more than three years

after the 1998 judgment in the KRSG litigation. The

court described the 1998 judgment as a “bare-bones”

declaratory judgment that had “awarded no specific

amount of damages or costs, instead resulting in simply

a determination of liability.” Pet. App. 16a-17a. In find-

ing that such a judgment can trigger the statute of limitations for a CERCLA contribution claim, the court observed that CERCLA specifically provides for the entry

in a cost-recovery action of a declaratory judgment addressing liability for future response costs. Id. at 17a

(citing 42 U.S.C. 9613(g)(2)). The court inferred that, as

a type of judgment specifically contemplated by the

statute, a bare declaratory judgment on liability can

“serve as” the judgment referenced in Section

113(g)(3)(A). Id. at 18a.

The court of appeals concluded that the 1998 judgment had “started § 113(g)(3)(A)’s statute of limitations

running and established [Georgia-Pacific’s] right to

seek contribution for the PCB contamination of the

NPL site.” Pet. App. 27a (citation and internal quotation marks omitted). In reaching that conclusion, the

court emphasized the language in the 1998 order granting judgment as to liability against KRSG on the defendants’ counterclaims. See id. at 23a. The court also

noted the KRSG district court’s subsequent statement

that Georgia-Pacific was required to pay “the entire

cost of response activities relating to the NPL site.” Id.

at 22a (quoting KRSG v. Rockwell Int’l, 107 F. Supp. 2d

817, 840 (W.D. Mich. 2000)). The court of appeals further observed that petitioners’ current suit would be

time-barred even if the 2000 or 2003 KRSG judgment

was viewed as the relevant triggering event, since petitioners’ suit had been filed more than three years after

those judgments as well. See id. at 24a.

In distinguishing the First Circuit’s decision in

American Cyanamid Co. v. Capuano, 381 F.3d 6 (2004),

which had held that a particular declaratory judgment

did not trigger Section 113(g)(3)(A)’s limitations period

for a subsequent contribution claim, the court of appeals

described that case as involving “judgments for two

separate types of environmental remediation.” Pet.

App. 20a. The court rejected, as neither “bind[ing]” nor

“persuasive,” the First Circuit’s statement that the Section 113(g)(3) limitations period does not begin to run

until there has been an “ ‘expenditure or fixing of costs

for which a PRP may seek contribution.’ ” Id. at 21a n.4

(quoting American Cyanamid, 381 F.3d at 12).

DISCUSSION

Petitioners seek this Court’s review of the question

whether a “bare declaratory judgment of liability” (Pet.

15) that did not order them to pay any costs or damages

triggered Section 113(g)(3)(A)’s three-year limitations

period for a Section 113(f ) contribution action. See Pet.

15-29. The court of appeals below erred in holding that

the 1998 declaratory judgment in the KRSG litigation

triggered Section 113(g)(3)(A)’s limitations period. But

this case is a poor vehicle for clarifying Section

113(g)(3)(A)’s application to declaratory judgments because it is unclear whether and to what extent petitioners’ current suit actually asserts claims for contribution

and because of the atypical nature of the KRSG judgment. Further review is not warranted.

A. The Court Of Appeals’ Decision Is Incorrect

Contrary to the court of appeals’ holding, the 1998

declaratory judgment entered against petitioners on

the defendants’ counterclaims in the KRSG litigation

did not trigger the limitations period set out in Section

113(g)(3)(A).

1. The limitations period for an “action for contribution for any response costs or damages” begins running

on “the date of judgment in any action under this chapter for recovery of such costs or damages.” 42 U.S.C.

9613(g)(3)(A) (emphasis added). As a matter of grammar, the phrase “for recovery of such costs or damages”

could plausibly be thought to modify either the noun

“action” or the noun “judgment.” Taken together, however, several contextual considerations weigh heavily in

favor of the second interpretation.

a. Section 113(g)(3)(A)’s reference to “such costs or

damages,” 42 U.S.C. 9613(g)(3)(A) (emphasis added),

“trains [a court’s] view on particular things.” Slack

Techs., LLC v. Pirani, 143 S. Ct. 1433, 1440 (2023).

“The word ‘such’ usually refers to something that has

already been ‘described’ or that is ‘implied or intelligible from the context or circumstances.’ ” Id. at 14391440 (citation omitted). Here, the obvious referent for

“such costs or damages” is the “response costs or damages” that the “action for contribution” seeks to recoup,

see 42 U.S.C. 9613(g)(3). The “judgment * * * for recovery of such costs or damages” is the judgment that

addresses those costs. Section 113(g)(3)(A)’s reference

to “the date of judgment,” 42 U.S.C. 9613(g)(3)(A) (emphasis added), rather than “a date” or “any date,” reinforces the inference that a single judgment is involved.

See Pet. 22. By “us[ing] the definite article,” the statute

references a “particular” judgment. Slack Techs., 143

S. Ct. at 1440; see, e.g., Rumsfeld v. Padilla, 542 U.S.

426, 434 (2004).

b. A party that incurs clean-up costs “voluntarily”

can recover its costs through a Section 107(a) costrecovery action, not a contribution action under Section

113(f ). United States v. Atlantic Research Corp., 551

U.S. 128, 140 n.6 (2007); see id. at 139 (“A private party

may recover under § 107(a) without any establishment

of liability to a third party.”). By contrast, a party that

pays “reimbursement to another person pursuant to a

legal judgment or settlement” may seek contribution,

but it may not pursue a cost-recovery action because it

“has not incurred its own costs of response.” Id. at 139,

140 n.6. Thus, if A “voluntarily” (i.e., without suit or

settlement) incurs $10 million in cleanup costs and sues

B in a Section 107(a) cost-recovery action, and the court

enters judgment ordering B to pay $5 million, B can

seek contribution for that sum from other PRPs under

Section 113(f ). It is the legal compulsion to pay or incur

specific costs, here to reimburse another party for that

party’s own cleanup costs, that gives rise to a Section

113(f ) claim. Id. at 138-140 & n.6; see pp. 2-3, supra.

c. Interpreting “for recovery” to modify “judgment”

in Section 113(g)(3)(A) is consistent both with that provision’s focus on a specific judgment and with the CERCLA prerequisites to a contribution right. 42 U.S.C.

9613(g)(3)(A). That reading appropriately ensures that

the only judgments that will trigger the three-year limitations period are “judgment[s] * * * for recovery of

* * * costs or damages,” i.e., judgments that order the

payment of costs or damages and thus create a contribution right. And Congress’s inclusion of the word

“such” ensures that the judgment that triggers the

three-year period for seeking contribution is the same

judgment that creates a right to recover in contribution

for the particular costs involved.

That approach is consistent with this Court’s analysis in Cooper Industries, Inc. v. Aviall Services, Inc.,

543 U.S. 157 (2004), in which the Court relied on Section

113(g)(3)’s limitations provisions in determining the

prerequisites for a contribution action under Section

113(f ). The Court observed that Section 113(g)(3)’s limitations period can be triggered either by a judgment

(Section 113(g)(3)(A)) or by a settlement (Section

113(g)(3)(B)), but that “[n]otably absent from § 113(g)(3)

is any provision for starting the limitations period if a

judgment or settlement never occurs, as is the case with

a purely voluntary cleanup.” Id. at 167. The Court inferred that “[t]he lack of such a provision supports the

conclusion that” Section 113(f )(1)’s and Section

113(f )(3)(B)’s terms provide prerequisites “to assert[ing] a contribution claim under § 113(f ).” Ibid. A

contrary approach, under which CERCLA contribution

claims could proceed notwithstanding those requirements, would have effectively created contribution

rights that were subject to no limitations period, because there would be no Section 106 or Section 107(a)

judgment or settlement to trigger Section 113(g)(3)(A)

or (B). For similar reasons, the specific judgment or

settlement that triggers the limitations period in a particular case ought to be the same one that creates the

Section 113(f ) plaintiff’s right to recover contribution.

By contrast, if the phrase “for recovery of such costs

or damages” were understood to modify only “action,”

Section 113(g)(3)(A) would literally encompass every

judgment entered in a suit seeking recovery of the costs

or damages for which the Section 113(f ) plaintiff ultimately seeks contribution. That would include judgments that do not order the payment of any response

costs or damages, and thus do not create any contribution right. It would also include judgments that award

costs or damages different from those for which a plaintiff subsequently seeks contribution. Cf. American Cyanamid Co. v. Capuano, 381 F.3d 6, 13-16 (1st Cir. 2004)

(holding that a money judgment covering soil-remediation

costs did not trigger the Section 113(g)(3)(A) limitations

period for a contribution action concerning costs of

groundwater cleanup). Under that approach, the three-

year limitations period for a particular contribution action could begin to run, and indeed that period could expire, even before the Section 113(f ) plaintiff ’s right to

contribution existed.*

d. Interpreting “for recovery” to modify “judgment”

in Section 113(g)(3)(A) is also consistent with “[t]he interlocking language and structure” of Section 113(g)(3)

as a whole, Territory of Guam v. United States, 141

S. Ct. 1608, 1613 (2021). The second trigger for the limitations period for a contribution action, contained in

the adjoining Section 113(g)(3)(B), is “the date of an administrative order * * * or entry of a judicially approved settlement with respect to such costs or damages.” 42 U.S.C. 9613(g)(3)(B). Sections 113(g)(3)(A)

and 113(g)(3)(B) “are adjacent and have remarkably

similar structures.” Atlantic Research, 551 U.S. at 135136. Section 113(g)(3)(B) starts the limitations period

upon the entry of an order or settlement “with respect

to such costs or damages,” namely an order or settlement imposing the specific costs or damages that the

* Section 113(f ) “permits suit before or after the establishment of

common liability” in a Section 106 or Section 107(a) action, thereby

allowing a Section 106 or Section 107(a) defendant to file a Section

113(f ) claim to bring other PRPs into the proceeding before the Section 106 or Section 107(a) action concludes. Atlantic Research, 551

U.S. at 138-139; see 42 U.S.C. 9613(f ). But the ultimate “right to

contribution” requires “an inequitable distribution of common liability,” which exists only after a judgment or settlement in the Section 107(a) action awards the relevant costs. Atlantic Research, 551

U.S. at 139; see id. at 138-139. Section 113(g)(3)(A)’s directive that

the limitations period begins to run on “the date of judgment,” 42

U.S.C. 9613(g)(3)(A), is consistent with usual limitations principles.

See Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99,

105 (2013) (“a statute of limitations begins to run when the cause of

action ‘accrues’—that is, when ‘the plaintiff can file suit and obtain

relief ’ ”) (emphasis added; citation omitted).

contribution plaintiff seeks to recoup. See Arconic, Inc.

v. APC Inv. Co., 969 F.3d 945, 952 (9th Cir. 2020) (holding that a settlement that did not impose “any response

costs or remedial obligations” did not trigger Section

113(g)(3)(B)’s statute of limitations), cert. denied, 141

S. Ct. 2838 (2021); but see Pet. App. 18a-20a (citing RSR

Corp. v. Commercial Metals Co., 496 F.3d 552, 556-558

(6th Cir. 2007)).

Interpreting subparagraphs (A) and (B) in concert

creates a coherent statutory scheme, reflecting the

“symmetry” of Section 113(g)(3)’s limitations regime,

Atlantic Research, 551 U.S. at 135-136. Under that approach, a “judgment * * * for such costs or damages”

triggers the statute of limitations as to costs that are

ordered to be paid by judgment, and an “administrative

order * * * or entry of a judicially approved settlement

with respect to such costs or damages” triggers the

statute of limitations as to the costs required to be paid

under an order or settlement. 42 U.S.C. 9613(g)(3)(A)

and (B).

2. The court of appeals determined that the 1998

judgment resolving a counterclaim in the KRSG litigation triggered the Section 113(g)(3)(A) limitations period. Pet. App. 16a-24a. In reaching that conclusion,

the court relied on CERCLA’s authorization for the

court in a Section 107(a) cost-recovery action to issue a

declaratory judgment as to liability. See id. at 17a-18a;

42 U.S.C. 9613(g)(2). The court appeared to accept the

proposition that a judgment can trigger Section

113(g)(3)(A)’s limitations period only if it creates a right

to seek contribution. See Pet. App. 26a-27a. The court

stated, however, that “the 1998 KRSG judgment started

§ 113(g)(3)(A)’s statute of limitations running and established [Georgia Pacific’s] right to seek contribution

for the PCB contamination of the NPL site.” Id. at 27a

(citation and internal quotation marks omitted). The

court’s analysis is wrong in two respects.

a. The fact that CERCLA authorizes entry of declaratory relief, separate and apart from any order

awarding specific costs or damages, does not mean that

such a declaratory judgment either creates a contribution right or triggers the Section 113(g)(3)(A) limitations period. A “right to contribution under § 113(f )(1)

is contingent upon an inequitable distribution of common liability among liable parties.” Atlantic Research,

551 U.S. at 139; see id. at 139-140 & n.6. But a declaratory judgment of liability standing alone does not require the defendant to “pa[y] more than his or her proportionate share.” Id. at 138 (citation omitted); see Pet.

24. And under the statute, only a “judgment * * * for

recovery of [the relevant] costs or damages” starts the

limitations period. See pp. 8-13, supra. A declaratory

judgment that establishes liability, but does not order

the defendant to pay any costs or damages, is not such

a judgment. See American Cyanamid, 381 F.3d at 13

(explaining that “[t]he declaratory judgment [mandated

by Section 9613(g)(2)] is binding on any subsequent actions to recover response costs or damages, but it is not

itself a judgment for the recovery of such costs or damages”).

b. The court of appeals also misperceived the significance of the 1998 KRSG judgment and its relationship

to petitioners’ current contribution claims. The 1998

“Partial Judgment” stated simply that “judgment as to

liability is entered in favor of Defendants Eaton and

Rockwell and against Plaintiff KRSG on Defendants’

counterclaims.” D. Ct. Doc. 741-17, at 2 (some capitalization omitted). Eaton and Rockwell were defendants

in the KRSG litigation, and the central question in the

case was whether they should be ordered to pay a portion of the KRSG members’ response costs. The KRSG

district court largely resolved that question in the defendants’ favor, though it ultimately directed Eaton to

pay KRSG $62,261.58 in investigative costs. See p. 5,

supra.

To be sure, the defendants’ counterclaims asserted a

contingent right to recover from KRSG members if

Rockwell and Eaton subsequently incurred response

costs, or were found liable under CERCLA, for cleanup

activities at the site. See pp. 4-5, supra. But it does not

appear that Rockwell or Eaton ever incurred such costs

or liability, or that Georgia-Pacific ever paid money to

either counterclaimant. The KRSG court’s 1998 entry

of partial judgment on the defendants’ counterclaims

therefore appears to have had no ultimate practical effect on costs borne by KRSG, Rockwell, and Eaton.

Rather, that distribution of costs resulted from the

court’s determination that, except for the $62,261.58

investigative-costs award, KRSG was not entitled to

any recovery from the defendants. And the district

court’s denial of KRSG’s reimbursement request is not

the sort of judgment that could trigger either a right to

contribution under Section 113(f )(1) or the three-year

limitations period under Section 113(g)(3)(A).

Thus, whatever effect the KRSG district court may

have intended to achieve in 1998, when it granted judgment for Rockwell and Eaton on their counterclaims,

that aspect of the court’s ruling did not ultimately cause

petitioners to expend any sums they would not otherwise have expended. The response costs that petitioners now seek to recover therefore were not incurred

“pursuant to” the 1998 judgment on the KRSG defendants’ counterclaims. Atlantic Research, 551 U.S. at 140

n.6. Rather, they were incurred voluntarily and/or pursuant to preexisting or subsequent administrative orders and settlements. See p. 4, supra; First Am. Compl.

¶¶ 29-30; see also pp. 20-21, infra (explaining that this

aspect of the case, which suggests that this action might

properly be viewed as a Section 107(a) cost-recovery action, renders the case a poor vehicle for clarifying the

proper interpretation of Section 113(g)(3)(A)). It therefore would be especially anomalous to treat the 1998 declaratory judgment as triggering the statute of limitations for petitioners’ current claims.

3. Respondents’ contrary arguments are unavailing.

In arguing that Section 113(g)(3)(A)’s limitations period

can be triggered by a judgment that does not award

costs or damages, respondents treat as all-butdispositive the fact that, within Section 113(g)(3)(A), the

noun “action” is a nearer antecedent than “judgment”

to the phrase “for recovery of such costs and damages.”

See Weyerhaeuser Br. in Opp. 3, 24-25; IP Br. in Opp.

19-21. But the rule of the last antecedent is “hardly a

slam dunk.” Boechler, P.C. v. Commissioner, 142 S. Ct.

1493, 1498 (2022). Instead, it “can assuredly be overcome by other indicia of meaning.” Barnhart v.

Thomas, 540 U.S. 20, 26 (2003). That is particularly so

where, as here, the last antecedent before “for recovery” (“chapter”) is obviously not the appropriate referent. 42 U.S.C. 9613(g)(3)(A). The strong indicia of

meaning discussed above easily overcome any inference

that the “for recovery” phrase modifies the secondnearest antecedent rather than the third-nearest. See

pp. 8-13, supra.

The early trigger for a contribution statute of limitations created by respondents’ reading is particularly

untenable given the practical realities of CERCLA remediation. Many cleanup sites, like the Site at issue

here, have multiple operable units, distinguished by geographic area or media of contamination, where investigation occurs on different timetables. See, e.g., Pet.

App. 40a-45a, 109a; United States v. Denver, 100 F.3d

1509, 1511 (10th Cir. 1996) (describing site with 11 operable units in over 40 locations). Different operable

units may also have different PRPs. At the time of an

initial judgment awarding costs or damages for one operable unit, or addressing liability alone, a responsible

party will often lack the necessary information to identify contribution defendants and to meaningfully pursue

recovery for potential costs at other operable units.

Respondents’ answer to those concerns is to assert a

practical concern of their own: that the statute of limitations for a contribution claim could “continue[] in perpetuity.” Weyerhaeuser Br. in Opp. 23-24; see Pet. App.

19a; IP Br. in Opp. 18. That possibility arises, however,

only because of the court of appeals’ and the parties’ apparent belief that the 1998 KRSG judgment gave petitioners a right to seek contribution under Section

113(f ). In fact, the 1998 judgment did not create such a

right, see pp. 14-16, supra, so its failure to trigger the

contribution statute of limitations is scarcely anomalous. When both the scope of the right to contribution

and the reach of Section 113(g)(3)(A) are understood

correctly, the problem identified by respondents would

not arise because the judgment (or settlement) that creates the right to contribution will also trigger the limitations period. See, e.g., Pet. App. 123a-129a (district

court’s decision tying the running of the limitations period for each set of costs to the date of the settlement

that created the corresponding contribution right).

B. The Question Presented Does Not Warrant Review In

This Case

Although the court of appeals erred in holding that

the 1998 declaratory judgment in the KRSG litigation

triggered Section 113(g)(3)(A)’s limitations period, the

petition for a writ of certiorari should be denied. Petitioners urge this Court to grant review to resolve a conflict between the decision below and the First Circuit’s

ruling in American Cyanamid. Although petitioners

are correct that a circuit split exists, it is questionable

whether a shallow conflict between two decisions issued

eighteen years apart would warrant this Court’s review

even in an appropriate case. In any event, this case is a

poor vehicle for clarifying Section 113(g)(3)(A)’s proper

application, both because it is unclear whether and to

what extent petitioners’ current claims are properly

viewed as claims for contribution, and because of the

atypical nature of the KRSG judgment.

1. In American Cyanamid, the First Circuit considered whether a contribution action filed by Rohm and

Haas (R&H) was barred by Section 113(g)(3)(A). See

381 F.3d at 11-16. In 1988, in O’Neil v. Picillo, 682

F. Supp. 706 (D.R.I. 1988), the district court had found

R&H liable for $991,937 in past soil-remediation costs

“and for ‘all future costs of removal or remedial action

incurred by the state’ ” at a particular site. American

Cyanamid, 381 F.3d at 10 (quoting O’Neil, 682 F. Supp.

at 731). “In April 1995, R & H instituted a [Section

113(f )(1)] contribution action * * * to recover past and

future response costs related to groundwater cleanup.”

Id. at 11.

The defendants argued that R&H’s contribution action was time-barred, but the court of appeals disagreed. See American Cyanamid, 381 F.3d at 11-16. In

determining whether the O’Neil judgment had triggered the three-year limitations period for R&H’s suit,

the court separately analyzed the two components of

that judgment described above, i.e., the $991,937 award

for past soil-remediation costs and the declaratory

judgment for the State’s future response costs. See id.

at 12-16. Relying heavily on Section 113(g)(3)(A)’s reference to “such costs,” the court held that the monetary

award did not trigger the limitations period for R&H’s

contribution suit because that award was for soilremediation costs, and R&H sought contribution for

costs pertaining to groundwater contamination. See id.

at 13-16; see pp. 9, 11-12, supra.

With respect to the declaratory-judgment component of the O’Neil judgment, however, the First Circuit

articulated a different rationale for rejecting the defendants’ statute-of-limitations defense. Consistent

with the unqualified terms of the O’Neil decision, the

court appeared to construe that declaratory judgment

as encompassing future response costs for both soil and

groundwater remediation. See American Cyanamid,

381 F.3d at 12-13; O’Neil, 682 F. Supp. at 730 (noting

that the State’s request for a declaratory judgment was

based on the fact “that toxic chemicals ha[d] been released into the groundwater”). The court concluded,

however, that the declaratory judgment did not trigger

Section 113(g)(3)(A)’s statute of limitations because

“[t]he declaratory judgment * * * is not itself a judgment for the recovery of [response] costs or damages.”

American Cyanamid, 381 F.3d at 13. The court ex-

plained that, “[a]fter obtaining such a declaratory judgment, a PRP is able to seek contribution from other

PRPs in phases as it incurs costs beyond its pro rata

share,” and does “not lose the ability to seek contribution if a phase of a cleanup occurs after three years of

an initial judgment.” Id. at 14. We agree with petitioners that the Sixth Circuit’s decision in this case conflicts

with that aspect of the First Circuit’s decision in American Cyanamid.

2. It is questionable whether this shallow circuit

split would warrant the Court’s review even in an appropriate case. In any event, this case is a poor vehicle

for deciding the question presented. That is so for two

reasons.

a. Petitioners do not question the court of appeals’

determination that their suit is properly viewed as a

Section 113(f )(1) contribution action rather than a Section 107(a) cost-recovery action. Indeed, they ask the

Court to use this case to clarify the proper application

of a limitations provision that applies only to CERCLA

contribution actions. But petitioners do not specify

what judgment, settlement, or administrative order has

given them a right to seek contribution in the first place.

In particular, the petition for a writ of certiorari neither endorses nor disavows the court of appeals’ holding

that the 1998 declaratory judgment on the KRSG defendants’ counterclaims “established [Georgia Pacific’s]

right to seek contribution for the PCB contamination of

the NPL site.” Pet. App. 27a (citation and internal quotation marks omitted). To the extent petitioners view

that declaratory judgment as the source of their contribution right, petitioners’ limitations argument implies

that a particular judgment can trigger a right to contri-

bution without triggering Section 113(g)(3)(A)’s limitations period. Any such argument is wrong for the reasons stated above. See pp. 10-12, supra; Weyerhaeuser

Br. in Opp. 27 (“Georgia-Pacific does not explain why

the same judgment that caused its contribution claim to

accrue * * * would not be ‘the judgment’ that triggered

the statute of limitations on the contribution claim.”) (citation omitted).

The district court identified other orders and agreements pursuant to which petitioners have incurred

costs, see Pet. App. 109a-113a; but neither the petition

nor the court of appeals’ opinion contains any meaningful discussion of those potential sources of contribution

rights. Cf. Pet. 10 (stating, without elaboration, that

Georgia-Pacific had “continued to investigate and clean

up the site under various agreements with the state and

federal governments” after the KRSG litigation concluded). To the extent that any of the costs for which

petitioners seek reimbursement were incurred “voluntarily,” petitioners’ claims for those costs arise under

Section 107(a) and are governed by a separate limitations provision. Atlantic Research, 551 U.S. at 140 n.6;

see p. 2, supra; 42 U.S.C. 9613(g)(2). And this Court in

Atlantic Research left open the question whether expenses sustained by a PRP in conducting cleanup activities under certain consent decrees “are recoverable under § 113(f ), § 107(a), or both.” 551 U.S. at 140 n.6. The

uncertainty as to the source and nature of petitioners’

current claims makes this case a poor vehicle for clarifying the proper application of Section 113(g)(3)(A).

b. Section 113(g)(2) declaratory judgments in CERCLA cost-recovery actions are often entered in conjunction with initial awards of response costs. The O’Neil

judgment that was at issue in American Cyanamid, for

example, held R&H liable for $991,937 in soilremediation costs that the State had previously incurred, in addition to awarding declaratory relief covering all of the State’s future response costs at the site.

See American Cyanamid, 381 F.3d at 10, 12. The 1998

KRSG declaratory judgment on the defendants’ counterclaims, by contrast, was unaccompanied by any concrete monetary award. And while those counterclaims

rested in part on the possibility that Rockwell or Eaton

might later incur response costs at the Site, see p. 5, supra, that possibility does not appear to have materialized.

The court of appeals in this case stated that “the

KRSG decision issued in 1998 imposed * * * response

costs or damages, compelling [Georgia-Pacific] as a

member of KRSG to pay for ‘the entire cost of response

activities relating to the NPL site,’ i.e., PCB cleanups

on this stretch of the Kalamazoo River.” Pet. App. 22a

(quoting KRSG v. Rockwell Int’l, 107 F. Supp. 2d 817,

840 (W.D. Mich. 2000)). The court thus appeared to

view the 1998 KRSG judgment as imposing on KRSG’s

members a new, freestanding obligation to perform and

pay for response actions at the Site. But the plaintiff

KRSG members did “not contest[] their liability as

PRPs,” D. Ct. Doc. 741-17, at 12; the disputed question

was whether the entities KRSG had sued should be held

liable as well. The district court’s statement that

KRSG’s members should bear “the entire cost of response activities” appears simply to have reflected the

court’s denial of relief on KRSG’s affirmative Section

107(a) and 113(f ) claims. See p. 15, supra. To the extent

that resolution of the Section 113(g)(3)(A) question in

this case turns on the precise meaning and legal import

of the various KRSG judgments, disputes about those

judgments would complicate this Court’s analysis and

provide a further reason to deny review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.