Petition for Writ of Certiorari — Georgia-Pacific Consumer Products LP, et al., Petitioners v. International Paper Company, Inc., et al.

Supreme Court briefSep 10, 2025

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APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Sixth Circuit

(May 12, 2025) .................................................. 1a

APPENDIX B: Opinion of the United States

District Court for the Western District of

Michigan (Apr. 9, 2024).................................. 13a

APPENDIX C: Opinion of the United States

Court of Appeals for the Sixth Circuit

(Apr. 25, 2022) ................................................ 29a

APPENDIX D: Order of the United States

Court of Appeals for the Sixth Circuit

Denying Rehearing and Adding Appendix

(July 14, 2022) ................................................ 55a

APPENDIX E: Opinion and Order of the

United States District Court for the

Western District of Michigan

(Mar. 29, 2018) ............................................... 68a

APPENDIX F: Opinion and Order of the

United States District Court for the

Western District of Michigan

(Aug. 12, 2015).............................................. 157a

APPENDIX G: Opinion and Order of the

United States District Court for the

Western District of Michigan

(Sept. 26, 2013) ............................................. 179a

APPENDIX H: Statutory Provisions ................... 218a

APPENDIX A

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0127p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEORGIA-PACIFIC CONSUMER

PRODUCTS LP; FORT JAMES

CORPORATION nka Fort James

LLC; GEORGIA-PACIFIC LLC,

Nos. 24-1403/1404

Plaintiffs-Appellees,

NCR CORPORATION,

Defendant,

WEYERHAEUSER COMPANY (241404); INTERNATIONAL PAPER

COMPANY, INC. (24-1403),

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Michigan at Grand Rapids.

No. 1:11-cv-00483—Robert J. Jonker, District Judge.

Argued: March 6, 2025

Decided and Filed: May 12, 2025

Before: MOORE, GIBBONS, and KETHLEDGE,

Circuit Judges.

COUNSEL

ARGUED: John D. Parker, BAKERHOSTETLER,

Cleveland, Ohio, for International Paper Company.

Michael R. Huston, PERKINS COIE, LLP, Phoenix,

Arizona, for Weyerhaeuser Company. Amanda K.

Rice, JONES DAY, Detroit, Michigan, for Appellees.

ON BRIEF:

John D. Parker, Scott Holbrook,

BAKERHOSTETLER, Cleveland, Ohio, Ryan D.

Fischback, BAKERHOSTETLER, Los Angeles,

California, for International Paper Company. Michael

R. Huston, PERKINS COIE, LLP, Phoenix, Arizona,

Kathleen M. O’Sullivan, PERKINS COIE LLP, Seattle,

Washington, Lauren Pardee Ruben, PERKINS COIE

LLP, Denver, Colorado, for Weyerhaeuser Company.

Amanda K. Rice, JONES DAY, Detroit, Michigan,

Matthew J. Rubenstein, JONES DAY, Minneapolis,

Minnesota, Noel J. Francisco, John Henry Thompson,

JONES DAY, Washington, D.C., Michael R.

Shebelskie, Douglas M. Garrou, George P. Sibley, III,

J. Pierce Lamberson, HUNTON ANDREWS KURTH

LLP, Richmond, Virginia, for Appellees.

OPINION

KETHLEDGE, Circuit Judge. Some 27 years ago,

in a suit that Georgia-Pacific itself brought, the

district court declared Georgia-Pacific liable for

cleanup costs at a site on the Kalamazoo River in

southwest Michigan. As a result of that declaration—

under our precedents and a decision of the Supreme

Court—Georgia-Pacific could, from that point forward,

seek to recover those costs only by means of a

contribution action under § 113(f) of the statute known

as CERCLA (42 U.S.C. § 9613(f)). In Georgia-Pacific’s

last appeal in this case, we held that its claims under

§ 113(f) were time-barred. Georgia-Pacific Consumer

Prods. LP v. NCR Corp., 32 F.4th 534 (6th Cir. 2022).

Yet on remand, for reasons that admittedly made good

practical sense, the district court re-entered a

declaratory judgment that it had awarded to GeorgiaPacific under a different provision of CERCLA, namely

§ 107.

International Paper Company and

Weyerhaeuser Company now argue that the court’s reentry of its declaratory judgment was contrary to law.

We agree and vacate the court’s judgment to that

extent.

We recited the statutory and factual background for

this case in the prior appeal. See Georgia-Pacific, 32

F.4th at 537-39 (Georgia-Pacific I). Here we repeat

only what is important for this appeal.

“Two

provisions

the

Comprehensive

Environmental

Response,

Compensation,

and

Liability Act of 1980 (CERCLA)—§§ 107(a) and

113(f)—allow private parties to recover expenses

associated with cleaning up contaminated sites.”

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

131 (2007). As we said in the prior appeal, “[t]hese two

statutory rights under §§ 107 and 113(f) are mutually

exclusive, providing causes of action ‘to persons in

different procedural circumstances.’” Georgia-Pacific

I, 32 F.4th at 541 (quoting Atlantic Research, 551 U.S.

at 139). On that point every circuit court to have

addressed the issue agrees. See Cranbury Brick Yard,

LLC v. United States, 943 F.3d 701, 705 (3d Cir. 2019)

(collecting cases). Specifically, cleanup costs that a

party incurs “voluntarily are recoverable only by way

of § 107(a)(4)(B)” of CERCLA. Atlantic Research, 551

U.S. at 139 n.6. By contrast, cleanup costs that a party

pays “pursuant to a legal judgment or settlement are

recoverable only under § 113(f).” Id. Thus, a party

that is already subject to a judgment for cleanup costs

“cannot proceed with a § 107(a)(4)(B) cost-recovery

action” for those costs.

Hobart Corp. v. Waste

Management of Ohio, Inc., 758 F.3d 757, 766 (6th Cir.

2014).

As a descriptive matter, at least, the relief available

under the two sections often differs. Although neither

the Supreme Court nor our court has decided the issue

definitively, plaintiffs in § 107(a) actions frequently

obtain a determination that another party is jointly

and severally liable for cleanup costs that the plaintiff

has been paying voluntarily. See, e.g., Atlantic

Research, 551 U.S. at 138 (assuming without deciding

that a determination joint and several liability is

available under § 107(a)); Hobart, 753 F.3d at 762 n.1.

By contrast, § 113(f) creates “a right to contribution”:

a party that has paid “more than [its] proportionate

share” of cleanup costs at a site may recover some of

those costs from other responsible parties, “so that

recovery costs can be distributed in an equitable

fashion.” Atlantic Research, 551 U.S. at 138; Hobart,

758 F.3d at 762.

The limitations periods for the two types of actions

differ as well. The limitations period for a § 107(a)

claim is usually longer: as relevant here, a party can

bring a claim for recovery of costs “for a removal action

within 3 years after completion of the removal

action[,]” which itself (as this case illustrates) can take

many years, 42 U.S.C. § 9613(g)(2)(A); and a party can

usually bring a § 107(a) action for “remedial costs” up

to six years “after initiation of physical on-site

construction of the remedial action[.]”

Id.

§ 9613(g)(2)(B). By contrast, a party must bring a

§ 113(f) action within three years of “the date of [the]

judgment” holding the party liable for cleanup costs.

Id. § 9613(g)(3)(A). That shorter limitations period—

and the incentive it creates to identify other

responsible parties sooner rather than later—helps “to

bring parties to the clean-up table as soon as possible.”

Georgia-Pacific I, 32 F.4th at 545.

In 1990, after decades of pollution from paper mills

along the Kalamazoo River, the federal EPA added a

35-mile stretch of the river to its National Priorities

List of Superfund sites. See generally 42 U.S.C. § 9605.

(That 35-mile stretch was sometimes referred to in

this litigation as the “NPL site.” Here, we likewise call

the site the “NPL site,” regardless of what the site’s

boundaries might have been at a particular point in

time.) That same year, Georgia-Pacific and two other

paper companies formed the Kalamazoo River Study

Group (KRSG), whose members soon began to incur

costs in cleanup work at the NPL site.

In 1995, KRSG brought an action under § 107 of

CERCLA, seeking a declaration that several other

firms shared liability for cleanup costs at the NPL site.

In December 1998, after a bench trial, the district

court entered a judgment declaring (as relevant here)

that KRSG members—including Georgia-Pacific—

were liable “for the PCB contamination of the NPL

Site.” R.741-17, Pg. ID 22293. In 2000, the court

entered another judgment in which it allocated

responsibility for response costs between KRSG

members and Eaton Corporation—while reiterating

that KRSG members were liable for “the entire cost of

response activities relating to the NPL site.”

Kalamazoo River Study Grp. v. Rockwell Int’l, 107 F.

Supp. 2d 817, 840 (W.D. Mich. 2000). We affirmed.

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

274 F.3d 1043 (6th Cir. 2001). And in 2003 the district

court entered a third judgment, in which (among other

things) it “confirmed the KRSG members’ liability for

remediation costs” at the site. See Georgia-Pacific I,

32 F.4th at 539. Meanwhile, at some point after 1998

(the record does not make clear when) the boundaries

of the site expanded to reach all the way to Lake

Michigan.

In 2010, Georgia-Pacific brought this lawsuit

against

three

defendants—NCR

Corporation,

International Paper Company, and Weyerhaeuser

Company—asserting claims under both § 107(a) and

§ 113(f) for cleanup costs at the NPL site. (At the time,

we had not yet decided Hobart, which held these

causes of action were mutually exclusive.) In 2013,

after the first phase of a bifurcated trial, the district

court found NCR and International Paper liable for

those costs. In 2018, the district court held a longer,

20-day trial in which it “apportioned forty percent of

liability to GP, forty percent to NCR, fifteen percent to

[International Paper], and five percent to

Weyerhaeuser” for costs at the site. Georgia-Pacific I,

32 F.4th at 540. The court entered a judgment to that

effect under § 113(f).

International Paper and Weyerhaeuser appealed,

arguing that the 1998 judgment had started the threeyear limitations period for Georgia-Pacific to bring

contribution claims under § 113(f). We agreed and

held that Georgia-Pacific’s § 113(f) claims were timebarred. See Georgia-Pacific I, 32 F.4th at 548. We also

reiterated that “[s]ection 107(a) provides the avenue

for parties who incur costs on their own, and § 113(f)

is the statutory tool to recover contribution for costs

imposed via settlement or judgment[,]” id.; and we

stated expressly that Georgia-Pacific “cannot pursue

its § 107(a) claims for any costs that fall within the

scope of the 1998 KRSG judgment.” Id.

On remand, the district court vacated its judgment

(under § 113(f)) apportioning liability among the four

parties to the case. Yet the court again entered a

judgment “under [CERCLA] Section 107” declaring

that Georgia-Pacific, International Paper, and

Weyerhaeuser are liable “for future response costs

incurred by any party at the Site[.]” Georgia-Pacific

Consumer Prods. LP v. NCR Corp., No. 1:11-CV-483,

2024 WL 1521228, at *5 (W.D. Mich. Apr. 9, 2024).

International Paper and Weyerhaeuser brought this

appeal.

II.

We review de novo the district court’s decision on

remand to enter its declaratory judgment under § 107.

Georgia-Pacific I, 32 F.4th at 542.

Our observations in the last appeal make our

decision in this one straightforward enough. Under

our precedents, it is now obvious that—when GeorgiaPacific brought this suit in 2010—it could not (as it

then purported to do) assert claims under both § 107(a)

and § 113(f) as to costs within the scope of the 1998

judgment. Those claims were instead “mutually

exclusive.” Id. at 541. By 2003 no fewer than three

judgments had confirmed Georgia-Pacific’s liability for

“the entire cost of response activities relating to the

NPL site on this stretch of the Kalamazoo River.” Id.

at 539 (cleaned up). And cleanup costs that a party

pays “pursuant to a legal judgment or settlement are

recoverable only under § 113(f).” Atlantic Research,

551 U.S. at 139 n.6 (emphasis added).

After entry of the district court’s 1998 judgment,

therefore, all of Georgia-Pacific’s costs within the

scope of that judgment were recoverable only under

§ 113(f). Georgia-Pacific I, 32 F.4th at 548. And by

2010 Georgia-Pacific’s § 113(f) claims for those costs

were time-barred, because Georgia-Pacific waited too

long to bring them. Id. at 547. Georgia-Pacific

therefore cannot bring any action under § 107(a) or

§ 113(f) for costs within the scope of the district court’s

1998 judgment. All these conclusions follow from our

precedents and from Atlantic Research almost as a

matter of mathematical proof.

Indeed, in this appeal, Georgia-Pacific disputes

none of these conclusions.

Instead it seeks to

circumvent them. Specifically, Georgia-Pacific points

to § 113(g)(2) of CERCLA (42 U.S.C. § 9613(2)), which

prescribes (in subparagraphs (A) and (B)) the

limitations periods for § 107 claims. Here is what

§ 113(g)(2) says in full:

An initial action for recovery of the costs referred to

in section 9607 of this title must be commenced—

(A) for a removal action, within 3 years after

completion of the removal action, except that such

cost recovery action must be brought within

6 years after a determination to grant a waiver

under section 9604(c)(1)(C) of this title for

continued response action; and

(B) for a remedial action, within 6 years after

initiation of physical on-site construction of the

remedial action, except that, if the remedial

action is initiated within 3 years after the

completion of the removal action, costs incurred

in the removal action may be recovered in the cost

recovery action brought under this subparagraph.

In any such action described in this subsection,

the court shall enter a declaratory judgment on

liability for response costs or damages that will be

binding on any subsequent action or actions to

recover further response costs or damages. A

subsequent action or actions under section 9607

of this title for further response costs at the vessel

or facility may be maintained at any time during

the response action, but must be commenced no

later than 3 years after the date of completion of

all response action. Except as otherwise provided

in this paragraph, an action may be commenced

under section 9607 of this title for recovery of

costs at any time after such costs have been

incurred.

42 U.S.C. § 9613(g)(2).

Georgia-Pacific focuses on this part of § 113(g)(2) in

particular:

In any such action described in this subsection, the

court shall enter a declaratory judgment on liability

for response costs or damages that will be binding

10a

on any subsequent action or actions to recover

further response costs or damages.

Thus, § 113(g)(2) says “the court shall enter a

declaratory judgment” in § 107 actions; and so,

Georgia-Pacific contends, that was what the district

court was allowed to do—indeed required to do—on

remand here. That by 2010 Georgia-Pacific had been

adjudged liable for all the response costs within the

scope of the 1998 judgment, and that the Supreme

Court has said costs paid pursuant to a legal judgment

“are are recoverable only under § 113(f)[,]” Atlantic

Research, 551 U.S. at 139 n. 6, does not matter.

“[S]hall,” as used in § 113(g)(2), means shall, GeorgiaPacific says; and so, it insists—notwithstanding what

the Supreme Court said in Atlantic Research and what

we said in Hobart and in Georgia-Pacific’s last

appeal—fidelity to the “text” of § 113(g)(2) requires

that we uphold the declaratory judgment that the

district court entered here.

That argument is meritless. As a textual matter,

Georgia-Pacific fixates on the word “shall” in

§ 113(g)(2) to the exclusion of nearly everything else in

that subsection. Here, we address only the modifier

“such”—as in “any such action described in this

subsection[.]” That phrase in turn refers (in part, at

least) to the opening phrase in § 113(g)(2)—namely

“[a]n initial action for recovery of the costs referred to

in section 9607 of this title[.]” (Emphasis added.) And

in 2010 Georgia-Pacific’s § 107(a) claim surely was not

“an initial action for recovery” of costs within the scope

of the 1998 judgment—given that Georgia-Pacific had

already litigated to judgment a § 107(a) claim as to

those costs.

Georgia-Pacific asserted that claim

(unlike the one here) after incurring cleanup costs

11a

voluntarily.

Indeed, it was the adjudication of

Georgia- Pacific’s own § 107(a) claim that resulted in

the 1998 judgment finding it liable for all the response

costs at the site—thereby limiting Georgia-Pacific to

recovery of those costs “under § 113(f), rather than

§ 107(a).” Hobart, 758 F.3d at 767.

Georgia-Pacific’s argument would also overthrow

much of what the courts have said regarding the

interrelation between § 107 and § 113(f) claims. No

longer would those claims provide “causes of actions to

persons in different procedural circumstances,”

Atlantic Research, 551 U.S. at 138; since, under

Georgia-Pacific’s reading, anyone eligible to assert a

§ 113(f) claim could also obtain a declaratory judgment

under § 107 merely by asking for one. Nor would the

shorter limitations period for § 113(f) provide much

incentive to bring other responsible parties to the

“clean-up table” sooner rather than later, GeorgiaPacific I, 32 F.4th at 545; since, under GeorgiaPacific’s reading, a party could obtain a declaratory

judgment even 27 years after being held liable for all

of a site’s cleanup costs—as this case itself illustrates.

Our analysis in this appeal ends where it began: a

party that is already subject to a judgment for cleanup

costs “cannot proceed with a § 107(a)(4)(B) costrecovery action.” Hobart Corp., 758 F.3d at 766. As to

costs within the scope of the 1998 judgment, GeorgiaPacific is undisputedly such a party. And that

Georgia-Pacific cannot proceed with a § 107(a) claim

means it cannot obtain declaratory relief under that

claim either. That claim is instead a legal nullity.

Respectfully, the district court should have simply

dismissed it—which is why we will vacate, rather than

12a

reverse, the district court’s declaratory judgment

under § 107(a).

As we said last time, however, “[o]ur decision today

does not affect GP’s § 107(a) claims that fall outside of

the 1998 KRSG judgment’s broad scope.” GeorgiaPacific I, 32 F.4th at 548. On remand from this

appeal—subject to ordinary forfeiture rules—the

parties can litigate what that scope is. And GeorgiaPacific “may bring § 107(a) claims for costs that fall

outside” the 1998 judgment’s scope. Id. But now—

some 27 years after the district court’s 1998 judgment,

and after a half dozen appeals to our court 1—we expect

that the parties will focus less on litigation about the

Kalamazoo River, and more on cleaning it up.

Paragraph 2 of the district court’s April 9, 2024

judgment is vacated, and the case is remanded for

further proceedings consistent with this opinion.

In addition to this appeal, see Kalamazoo River Study

Grp. v. Rockwell Int’l Corp., 171 F.3d 1065 (6th Cir. 1999);

Kalamazoo River Study Grp. v. Menasha Corp., 228 F.3d 648 (6th

Cir. 2000); Kalamazoo River Study Grp. v. Rockwell Int’l Corp.,

274 F.3d 1043 (6th Cir. 2001); Kalamazoo River Study Grp. v.

Rockwell Int’l Corp., 355 F.3d 574 (6th Cir. 2004); and GeorgiaPacific Consumer Prods. LP v. NCR Corp., 32 F.4th 534 (6th Cir.

2022).

13a

APPENDIX B

2024 WL 1521228

Only the Westlaw citation is currently available.

United States District Court, W.D. Michigan,

Southern Division.

GEORGIA-PACIFIC CONSUMER PRODUCTS LP,

Fort James Corporation, and Georgia-Pacific LLC,

Plaintiffs,

NCR CORPORATION, International Paper Co., and

Weyerhaeuser Co., Defendants.

Case No. 1:11-CV-483

Signed April 9, 2024

Attorneys and Law Firms

Peter A. Smit, Adam John Brody, Varnum Riddering

Schmidt & Howlett LLP, Grand Rapids, MI, George P.

Sibley, Douglas M. Garrou, Michael Randolph

Shebelskie, Hunton & Williams LLP, Richmond, VA,

Mathew R. Korte, Jan M. Conlin, Ciresi Conlin LLP,

Minneapolis, MN, Jeffrey N. Martin, Hunton &

Williams LLP (DC), Washington, DC, Dean P Laing

(CWNS), O’Neil Cannon Hollman DeJong & Laing SC,

Milwaukee, WI, for Plaintiffs.

Geoffrey A. Fields, Dickinson Wright PLLC, Grand

Rapids, MI, John Michael Heyde, Sidley Austin LLP,

Chicago, IL, Bradley M. Marten, Marten Law PLLC,

Seattle, WA, David R. Marriott, Yonatan Even, Darin

14a

P. McAtee, David Frank Lisner, Evan R. Chesler,

Omid H. Nasab, Sandra C. Goldstein, Vanessa A.

Lavely, Cravath Swaine & Moore LLP, New York, NY,

for Defendants.

OPINION

ROBERT J. JONKER, UNITED STATES DISTRICT

JUDGE

INTRODUCTION

*1 This matter is before the Court on remand from

the Court of Appeals. The parties disagree on what

proper implementation of the Mandate requires.

International Paper and Weyerhaeuser maintain that

the Mandate requires this Court to enter judgment in

their favor dismissing not only the award of

contribution against them but also the declaratory

judgment holding them liable for future costs at the

superfund site. Georgia Pacific argues that only the

contribution award is subject to vacatur and dismissal

and that the Court should leave other aspects of the

Judgment, including the declaration of liability, in

effect. 1 The parties have briefed their positions, and

the matter is ready for decision.

This Court’s Judgment also found NCR liable and

awarded contribution against it in favor of Georgia Pacific. NCR

appealed but then entered a Consent Decree with the United

States and the State of Michigan. This Court approved and

entered the Consent Decree over the objection of Georgia Pacific,

International Paper and Weyerhaeuser while the appeal in this

case was pending. United States v. NCR, 1:19-cv-1041. As

required by the Consent Decree, NCR dismissed its appeal in this

case and paid Georgia Pacific the contribution amount awarded

by this Court’s Judgment. The Court of Appeals’ decision does

not disturb any provision of the original Judgment regarding

NCR.

15a

BACKGROUND

A. The Site

This case involves PCB contamination of the

Kalamazoo River. The Superfund Site at issue

includes about eighty miles of the Kalamazoo River,

about three miles of Portage Creek, as well as various

waste disposal areas near the water, adjacent

riverbanks and contiguous flood plains. The EPA has

divided the overall Superfund Site into multiple

Operable Units. The River itself is Operable Unit 5,

which the EPA has further divided into seven separate

Work Areas. At the time of the Phase II trial

(addressing the amount of recoverable costs and

equitable allocation), the EPA had not yet finalized a

remedy for any portion of the River except Area 1 of

Operable Unit 5. Estimates for the total amount yet

to be spent on cleanup of the River vary from about

$600 million to $850 million. 2

This is a rough approximation of current estimates. In

Georgia Pacific’s Petition for a Writ of Certiorari, it noted that

“site-wide cleanup is projected to continue for at least another

decade and cost at least hundreds of millions of additional

dollars.” (Petition for a Writ of Certiorari 12 n.6, Case No. 22-465

(Nov. 14, 2022). In separate proceedings related to NCR’s

eventual Consent Decree settlement with the United States and

the State of Michigan, the EPA estimated future costs at OU5

(the Kalamazoo River and Portage Creek) were $609 Million

(Saric Decl. ¶ 3, Case No. 1:19-cv-1041, ECF No. 8, PageID.257).

Total costs at the Superfund Site are projected to be $851 million.

(Id.). Georgia Pacific maintains that the EPA’s estimate is

incomplete by at least $106 million. (GP’s Br. in Opposition at

11, Case No. 1:19-cv-1041, ECF No. 32, PageID.485). It notes the

EPA has not withdrawn a 2009 projection that pegged total costs

to clean up OU5 at 2.4 billion. (Id. at PageID.484). While Georgia

Pacific states it does “not believe that number is realistic” it

16a

B. The Litigation in this Court

*2 Georgia Pacific filed this action to establish the

liability of NCR, International Paper and

Weyerhaeuser under CERCLA, and to recover a

portion of the approximately $100 million it claimed to

have spent on investigation and remediating the Site.

Phase I of the proceedings focused on liability. Like

Georgia Pacific, Weyerhaeuser admitted liability

under CERCLA.

The Court found NCR and

International Paper liable after a bench trial. (ECF

No. 432). Phase II of the proceedings focused on

establishing the total recoverable past costs at issue,

and on equitably allocating responsibility for those

costs among the liable parties. The Court issued its

decision on those issues after the Phase II trial. (ECF

No. 921).

Before proceeding to the Phase II trial, the parties

addressed whether and how CERCLA’s statute of

limitations applied to Georgia Pacific’s contribution

claims. In an earlier case, this Court entered a

declaratory judgment declaring Georgia Pacific liable

for PCB contamination in the River. That case was

filed in 1985 by the Kalamazoo River Study Group, of

which Georgia Pacific was a member, and ended with

the declaratory judgment in 1988. Neither NCR,

International Paper or Weyerhaeuser were parties to

that case, and Georgia Pacific had not yet incurred the

costs for which it sought contribution in this case.

Even so, the defendants in this case argued that

CERCLA’s 3-year statute of limitations on

observes that the EPA has not stipulated that future costs will

not exceed 150% of its current estimate (or roughly $914 million)

either. (Id. at PageID.492).

17a

contribution claims should run from the 1988

declaratory judgment—or at a minimum from later reaffirmations of that liability determination in the

same case in 2000 and 2003—and bar Georgia Pacific’s

contribution claims here. This Court noted the

position of the defense “would effectively bar some

contribution claims even before they would normally

accrue,”

and

rejected

such

“expansive

interpretation.” (ECF No. 787, PageID.24189-24190).

The Court did find some of the contribution claims

Georgia Pacific was advancing barred by the statute of

limitations applicable to various administrative

agreements under which Georgia Pacific had incurred

actual costs. (Id. at PageID.24910-24196). The Court

incorporated these determinations into its assessment

of the total recoverable past costs and equitable

allocation shares after the Phase II trial. (ECF

No. 921, PageID.34653-34660).

On June 19, 2018, this Court entered Final

Judgment implementing its decisions. The Final

Judgment

included

the

Phase

liability

determinations and the declaratory judgment

language mandated by Section 113(g)(2) of CERCLA.

(ECF No. 925, PageID.34746). The Judgment also

included the recoverable past costs and equitable

allocation decisions this Court made, including those

on the limitations issues. All parties appealed. (ECF

Nos. 930 (NCR), 931(International Paper), 935

(Georgia Pacific) and 939 (Weyerhaeuser)).

C. The Appeals

Ultimately,

NCR,

Georgia

Pacific

and

Weyerhaeuser dismissed their appeals. (ECF Nos.

969 (NCR), 971 (Weyerhaeuser) and 972 (Georgia

18a

Pacific)). In NCR’s case, the decision to dismiss was

tied to NCR’s entry of a Consent Decree with the

United States and the State of Michigan, as previously

noted. International Paper continued with its appeal,

raising not only the 3-year statute of limitations issue

but also a claim that this Court erroneously found it

liable despite the “secured creditor” exception to

CERCLA owner liability. This Court had rejected

International Paper’s position on that issue after the

Phase I trial based on this Court’s fact findings and

conclusions of law. (ECF No. 432, PageID.1274912756). 3

*3 The Court of Appeals reversed this Court’s

decision on the 3-year statute of limitations and held

that the clock started for Georgia Pacific with the 1988

declaratory judgment of liability: “Because the 1998

KRSG judgment caused the statute of limitations to

begin to run, the three-year statute-of-limitations

period concluded before GP filed its 2010 action, and

we must dismiss GP’s action on limitations grounds.”

(ECF No. 973, PageID.35355). The Court of Appeals

further concluded that Weyerhaeuser was also

entitled to the benefit of this limitations defense even

though it had earlier dismissed its own appeal: “We

conclude that § 113(g)(3) also bars the contribution

claim against Weyerhaeuser.” Id. In concluding, the

Court of Appeals stated: “Because the district court

here did not enforce [the] statute of limitations, we

REVERSE its judgment and REMAND for further

This Court had denied cross motions for summary

judgment on the issue filed by Georgia Pacific and International

Paper and concluded there were genuine issues of material fact

for trial. (ECF No. 345).

19a

proceedings consistent with this opinion.”

PageID.35358).

(Id. at

The Court of Appeals observed that its decision

“does not affect GP’s § 107(a) claims that fall outside

of the 1988 KRSG judgment’s broad scope.” (Id. at

PageID.35356). However, the panel believed that

“identifying such costs will prove difficult in practice”

because of the breadth of the 1988 declaratory

judgment. (Id.). The Court of Appeals did not reach

the merits of the secured creditor exception: “Because

we conclude that the statute of limitations on GP’s

contribution claim has run, we need not address IP’s

arguments concerning whether CERCLA’s securedcreditor exception applies. (Id. at PageID.35358).

Georgia Pacific moved for rehearing en banc on the

question of whether Weyerhaeuser was able to benefit

from the limitations ruling in the absence of a cross

appeal. The Court of Appeals denied rehearing en

banc but the panel issued an Appendix to its original

decision that further addressed this question,

explaining that Weyerhaeuser should have filed a

cross appeal, but that Georgia Pacific forfeited the

issue. (ECF No. 974, PageID.35364-35369). Georgia

Pacific also moved for panel rehearing on whether the

Court of Appeals should have reached the merits of the

secured creditor exception. The panel adhered to its

decision because International Paper had presented

the secured creditor issue simply as an alternative

basis for reversal, and Georgia Pacific never disputed

that. (Id. at PageID.35369-35370). A Mandate issued

eight days later. (ECF No. 976).

Georgia Pacific, Weyerhaeuser and International

Paper jointly moved for a stay pending a possible

20a

petition for certiorari, and this Court granted the stay.

(ECF Nos. 977, 978). Georgia Pacific filed a petition

for certiorari on the statute of limitations issue. Case

No. 22-465 (Nov. 14, 2022). After receiving briefs from

Georgia

Pacific,

International

Paper

and

Weyerhaeuser on whether to grant certiorari, the

Supreme Court invited the views of the Solicitor

General, who filed a brief opining that “[c]ontrary to

the court of appeals’ holding, the 1988 declaratory

judgment ... in the KRSG litigation did not trigger the

limitations period set out in Section 113(g)(3)(A)” but

that even so certiorari should be denied because the

case presented only a “shallow conflict” between two

circuits, and because this case was, in any event, a

“poor vehicle for clarifying” the issue. Brief of the

United States as Amicus Curiae, No. 22-465 (August

2023). The Supreme Court denied certiorari on

October 2, 2023.

D. The Issue

The parties disagree on how this Court should

proceed on remand.

International Paper and

Weyerhaeuser argue that the decision and Mandate of

the Court of Appeals requires entry of Judgment in

their favor both on the contribution claims and on the

liability determinations embodied in the declaratory

portion of the Court’s Judgment. Their vision of the

appropriate Final Judgment is included at ECF

No. 994-1. Georgia Pacific contends that only the

specific contribution awards are the subject of reversal

and that the other aspects of the Judgment are

unaffected, including the determination of total costs

incurred consistent with the NCP, the specific

equitable allocation decisions the Court made about

them and the declaratory judgment of CERCLA

21a

liability for all parties to the case for future response

costs at the Site.

Georgia Pacific proposes an

Amended Final Judgment at ECF No. 993-2.

*4 The remaining parties 4 have briefed their

positions and the matter is ready for decision. In sum,

the Court rules as follows:

(1) Like all of the remaining parties the Court

agrees that the decision and Mandate of the Court

of Appeals requires reversal of the contribution

awards

against

International

Paper

and

Weyerhaeuser and in favor of Georgia Pacific.

(2) With respect to the declaratory judgment holding

all the parties liable under CERCLA for future

response costs at the site, the Court agrees with

Georgia Pacific that nothing in the Court of Appeals’

decision undermines the validity of that provision.

To the contrary, the statutory text of CERCLA

requires it and there is significant ongoing practical

value to having the liability issues resolved.

(3) With respect to the terms of the Judgment

finding a specific amount of Georgia Pacific’s past

costs necessary and consistent with the NCP, and

specifying

particular

equitable

allocation

percentages among the liable parties, the Court

does not believe it is appropriate to carry these

provisions forward in an Amended Judgment. The

As the Court noted earlier, NCR entered into a Consent

Decree with the United States and the State of Michigan,

dismissed its appeal in this case and paid Georgia Pacific the

contribution award embodied in the Court’s original Judgment.

The Court does not believe it is necessary or proper to include any

relief related to NCR in an Amended Judgment. NCR is no longer

part of this case.

22a

Court of Appeals does not expressly address these

issues. And it is certainly possible to imagine

practical value for both findings even in the absence

of any enforceable contribution award. 5 However,

both the determination of past costs consistent with

the NCP and the particular equitable allocations

were inextricably intertwined with the way this

Court resolved the limitations questions. And there

is no doubt the Court of Appeals reversed this

Court’s decisions on the limitations questions.

Accordingly, and for the reasons more fully

described in what follows, the Court intends to enter

an Amended Final Judgment after Remand.

DISCUSSION

The mandate rule requires this Court to “adhere to

the commands of a superior court.” Brunet v. City of

Columbus, 58 F.3d 251, 254 (6th Cir. 1995). The Court

must “‘implement both the letter and the spirit of the

mandate, taking into account the appellate court’s

opinion and the circumstances it embraces.’” United

For example, International Paper has already filed its

own cost recovery, contribution and declaratory judgment action

against NCR, Georgia Pacific and Weyerhaeuser regarding the

Kalamazoo River Site. Case No. 1:18-cv-1229. As referenced in

International Paper’s new Complaint, the filing was triggered in

part by a unilateral administrative order issued by the EPA

against International Paper under Section 106 of CERCLA

requiring International Paper to conduct certain clean up

activities, or face monetary penalties and enhanced damages if

the EPA is forced to do the work itself; and in part by

International Paper’s determination to ensure that it complied

with any applicable CERCLA statute of limitations. It is not hard

to imagine that in the course of determining any necessary

equitable allocation in the new case, Georgia Pacific may want to

rely on what it has already spent on the Site.

23a

States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)

(quoting United States v. Kikumura, 947 F.2d 72, 76

(3d Cir. 1991) (citations omitted)); see also Jones v.

Lewis, 957 F.2d 260, 262 (6th Cir.), cert. denied, 506

U.S. 841 (1992); Petition of United States Steel Corp.,

479 F.2d 489, 493 (6th Cir.), cert. denied, 414 U.S. 859

(1973); United States v. Township of Brighton, 282

F.3d 915, 919 (6th Cir. 2002). An order of remand is

presumed to be general, rather than limited, unless

the mandate “is so narrow in scope as to preclude the

district court from considering a particular issue.”

United States v. McFalls, 675 F.3d 599, 604 (6th Cir.

2012).

*5 In this case, the Court of Appeals issued a

Mandate that simply referenced its Opinion reversing

this Court’s decision on the statute of limitations and

remanding for “proceedings consistent with [the Court

of Appeals’] opinion.”

Mandate, ECF No. 976

(referencing the April 25, 2022, Opinion, ECF No. 973).

When the Mandate issued on July 22, 2022, the record

included both the original Opinion of the Court of

Appeals and its Appendix to the Opinion filed July 14,

2022. (ECF No. 974). In the Appendix, the panel

adhered to its original decision not to consider the

secured-creditor issue because neither International

Paper nor Georgia Pacific presented the issue as

anything other than one of two alternative reasons for

reversal. In the Court’s view, the Mandate here

permits further proceedings that are consistent with

enforcing the 3-year contribution statute of limitations

as interpreted and applied by the Court of Appeals.

24a

A. Money Judgment for Contribution

This Court’s Judgment included money judgments

for contribution in favor of Georgia Pacific and against

International Paper and Weyerhaeuser. The Court of

Appeals’ decision plainly reverses this aspect of the

original Judgment. All parties agree on that.

B. Declaratory Judgment

This Court’s Judgment also included a declaratory

judgment “finding all four parties liable under 42 USC

§ 9607 for future response costs incurred by any party

at the Site.” (ECF No. 925, PageID.34746). In the

Court’s view, this declaratory judgment is entirely

consistent with the decision and Mandate of the Court

of Appeals. Indeed, CERCLA appears to mandate

entry of such declaratory relief in cost recovery

litigation: “[T]he court shall enter a declaratory

judgment on liability for response costs or damages

that will be binding on any subsequent action or

actions to recover further response costs or damages.”

42 U.S.C. § 9613(g)(2).

Moreover, in this case,

Weyerhaeuser admitted liability in any event.

Retaining the declaratory judgment on liability is

also a practical way to avoid re-litigating liability

determinations that the Court of Appeals did not

address or disturb. The panel Opinion expressly

recognized that Georgia Pacific itself could still have

claims for recovery under Section 107(a). (ECF

No. 973, PageID.35356). The other parties to the case

also potentially have viable cost recovery or

contribution claims. International Paper has already

initiated an action against the other parties seeking

exactly that relief. Case No. 1:18-cv-1229 (W.D. Mich.).

NCR chose to dismiss its appeal and satisfy the

25a

contribution Judgment in this case as part of an

overall Consent Decree settlement with the United

States and the State of Michigan, Case No. 1:19-cv1041 (W.D. Mich.), which creates a possibility of future

cost recovery or contribution litigation. And the

United States retains the ability to issue unilateral

administrative orders under Section 106 of CERCLA

directing a liable party to undertake clean up at the

site or face the risk of enhanced damages and

penalties if the United States is forced to do the work

itself and sue to recover costs later. With somewhere

between $600 million and $850 million yet to spend on

cleaning up the River, more cost recovery and

contribution litigation is a practical certainty.

International Paper protests that it should not

remain subject to a declaratory judgment for liability

because the Court of Appeals did not address that

issue on appeal. But the reason the Court of Appeals

did not review the issue is because International

Paper presented it as simply one of two alternative

bases for reversing the district court decision. In

retrospect, International Paper may wish it had not

taken that position. But having done so, and having

the panel address the point in both its original Opinion

and its later Appendix, this Court concludes that it is

entirely consistent with the Mandate to retain the

Declaratory Judgment on liability for future costs. If

this Court has misconstrued the intent of the Court of

Appeals, then the Court of Appeals, and not this Court,

is in the best position to say so on a fresh appeal.

26a

C. Past Cost

Determinations

and

Equitable

Allocation

*6 The remaining aspects of this Court’s original

Judgment found that Georgia Pacific had incurred a

specific dollar amount of past costs “necessary and

consistent with the National Contingency Plan,” and

“equitably allocate[d] responsibility for [those past

costs]” between Georgia Pacific (40%), NCR (40%),

International Paper (15%) and Weyerhaeuser (5%).

(ECF No. 925). Are retaining these determinations in

a Judgment consistent with the Mandate of the Court

of Appeals? The Court does not believe it would be.

Because future cost recovery or contribution

litigation regarding the Site is a near certainty, for

reasons already recited, the Court can easily posit

situations in which it would be useful to the parties

and to a future Court to have binding determinations

of past response costs and equitable allocations even

though actual awards of money judgments for

contribution are time barred. In the currently pending

International Paper cost recovery and contribution

case (1:18-cv-1229 (W.D. Mich.), for example, one

factor in allocating responsibility for new costs may

well be what the parties spent on investigation and

clean up along the way, and whether whatever they

spent was “necessary and consistent with the National

Contingency Plan,” a statutory requirement for

recovery. Similarly, an equitable allocation of past

costs might be at least a data point in informing

equitable allocation of future costs. And as Georgia

Pacific argues, getting to the determinations of

recoverable past costs and equitable allocations

demanded a lot of work from the parties and the Court

and would be onerous to repeat, if necessary.

27a

But despite the potential practical value, the Court

does not believe it can retain these determinations and

remain true to “the letter and the spirit” of the

Mandate of the Court of Appeals. This Court’s

determination of past response costs in the Judgment

was inextricably bound up with its rulings on the

statute of limitations issues. That was the main

reason the Court reduced the Georgia Pacific claim of

recoverable past costs from the roughly $100 million

claim to the approximately $50 million in the

Judgment. (ECF No. 921, PageID.34653-34660). 6

The Court of Appeals clearly disagreed with this and

determined that the actual recoverable number for

past costs should have been zero based on a proper

enforcement of the 3-year limitations period on

contribution actions.

Similarly, the equitable

allocations the Court included for these past response

costs incorporated an overall assessment of relative

culpability among the parties for the particular past

costs at issue on the contribution claims. Because the

actual amount of past costs recoverable in contribution

is zero after the Court of Appeals’ application of the 3year statute of limitations, the Court does not believe

the equitable allocations can stand.

D. NCR Dismissal

NCR dismissed its appeal of this Court’s original

Judgment and paid the contribution award to Georgia

Pacific. Georgia Pacific entered a Satisfaction of

Judgment. In the Court’s view, nothing in the Opinion,

Only a small amount of the reduction involved the Court’s

finding that some expenses were duplicative or otherwise not

consistent with the NCP. (ECF No. 921, PageID.34660-34663).

28a

Appendix, or Mandate of the Court of Appeals affects

the terms of the original Judgment as to NCR.

CONCLUSION

The Court will enter Final Judgment after Remand

incorporating these decisions.

29a

APPENDIX C

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0080p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEORGIA-PACIFIC CONSUMER

PRODUCTS LP; FORT JAMES

CORPORATION; GEORGIA-PACIFIC LLC,

Plaintiffs-Appellees,

NCR CORPORATION,

No. 18-1806

Defendant,

WEYERHAEUSER COMPANY,

Defendant-Appellee,

INTERNATIONAL PAPER COMPANY,

Defendant-Appellant.

United States District Court for the Western District

of Michigan at Grand Rapids;

No. 1:11-cv-00483—Robert J. Jonker, District Judge.

Argued: October 28, 2021

Decided and Filed: April 25, 2022

Before: MOORE, KETHLEDGE, and DONALD,

Circuit Judges.

30a

COUNSEL

ARGUED: John D. Parker, BAKER & HOSTETLER

LLP, Cleveland, Ohio, for Appellant. Mark W.

Schneider,

PERKINS

COIE

LLP,

Seattle,

Washington, for Appellee Weyerhaeuser Company.

Michael R. Shebelskie, HUNTON ANDREWS

KURTH LLP, Richmond, Virginia, for Georgia-Pacific

Appellees. ON BRIEF: John D. Parker, BAKER &

HOSTETLER LLP, Cleveland, Ohio, for Appellant.

Mark W. Schneider, Kathleen M. O’Sullivan,

Margaret Hupp, PERKINS COIE LLP, Seattle,

Washington,

Scott

Watson,

WARNER

NORCROSS & JUDD LLP, Grand Rapids, Michigan,

for Appellee Weyerhaeuser Company. Michael R.

Shebelskie, Douglas M. Garrou, George P. Sibley, III,

J. Pierce Lamberson, HUNTON ANDREWS KURTH

LLP, Richmond, Virginia, Peter A. Smit, VARNUM

LLP, Grand Rapids, Michigan, for Georgia-Pacific

Appellees.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Decades of pollution in western Michigan led the EPA

to designate the Kalamazoo River and Portage Creek

as a high priority for cleanup. Decades of litigation

followed, including many actions filed under the

Comprehensive

Environmental

Response,

Compensation, and Liability Act of 1980 (“CERCLA”).

In this dispute, two parties found liable on a CERCLA

contribution claim raise a statute of limitations

defense. Holding that defense to be meritorious, we

REVERSE the judgment of the district court.

31a

I. BACKGROUND

A. The Kalamazoo River

Since the late 1860s, paper mills have dotted the

banks of the Kalamazoo River, and its tributary,

Portage Creek, in southwestern Michigan. Elmer B.

Hess, The Kalamazoo Valley Paper Industry, 69 PROC.

OF THE IND. ACAD. OF SCI. 224, 226 (1959). Kalamazoo

presented the ideal location for paper manufacturing,

offering ample water and a prime location for

nationwide distribution. Id. at 229–34. Paper played

a major role in the region’s development: by 1954,

paper mills in Kalamazoo County registered sales of

almost $175 million annually and accounted for 17%

of the county’s total household incomes. HAROLD T.

SMITH, THE POSITION OF THE PAPER INDUSTRY IN THE

ECONOMY OF KALAMAZOO COUNTY, MICHIGAN, IN 1954

1 (1958).

This major industry was not to last. At the end of

the twentieth and into the twenty-first century, mills

were closing at a rapid pace. See, e.g., G-P Set to

Dismantle Kalamazoo Mill, RECYCLING TODAY (Feb.

20, 2001), https://www.recyclingtoday.com/article/-bg-p-set-to-dismantle-kalamazoo-mill--b-/ (“The area

has seen the closing or planned closing of five paper

mills since last fall.”).

The mills left, but their environmental legacy

remained. In the 1950s, researchers had already

started raising concerns over the paper industry’s

environmental impact on the Kalamazoo River.

SMITH, THE POSITION OF THE PAPER INDUSTRY IN THE

ECONOMY OF KALAMAZOO COUNTY 7–8. That same

decade, the river’s environmental problems worsened

substantially when paper mills undertaking

32a

carbonless copy-paper recycling began releasing

polychlorinated biphenyls (“PCBs”) into the river and

surrounding land. Damage Assessment, Remediation,

and Restoration Program: Kalamazoo River, NAT’L

OCEANIC & ATMOSPHERIC ADMIN. (last updated Oct. 21,

2021),

https://darrp.noaa.gov/hazardous-waste/

kalamazoo-river. PCBs produce a host of negative

health effects, including possibly increasing exposed

individuals’ risk of cancer. Polychlorinated Biphenyls

(PCBs), ILL. DEP’T OF PUB. HEALTH (Feb. 2009),

http://www.idph.state.il.us/envhealth/factsheets/

polychlorinatedbiphenyls.htm.

The environmental devastation caused by the

proliferation of PCBs led the EPA in 1990 to add the

Kalamazoo River to the National Priorities List

(“NPL”), which identifies the most important

Superfund sites. ENV’T PROT. AGENCY, HISTORIC

PRESERVATION

AND

MIXED-USE

SUPERFUND

REDEVELOPMENT: THE PLAINWELL PAPER MILL IN

PLAINWELL, MICHIGAN 2 (2014).

Litigation

surrounding the contamination of the Kalamazoo

River has since spanned decades, see, e.g., Kalamazoo

River Study Grp. v. Menasha Corp., 228 F.3d 648 (6th

Cir. 2000), and spawned hundreds of millions of

dollars in cleanup costs, see, e.g., DEP’T OF JUST., EPA

AND JUSTICE DEPARTMENT ANNOUNCE $245 MILLION

AGREEMENT FOR CLEANUP AT THE ALLIED PAPER

INC./PORTAGE CREEK/KALAMAZOO RIVER SUPERFUND

SITE (Dec. 11, 2019).

B. Environmental Litigation Regarding the

Kalamazoo River

Today’s litigation involves several firms and

successors to firms that played a role in the

33a

manufacture of paper along the Kalamazoo River and

Portage Creek in the mid-twentieth century. There

are four relevant firms in this matter: International

Paper (“IP”), Weyerhaeuser, Georgia-Pacific (“GP”),

and NCR Corporation (“NCR”). R. 432 (Phase I Op. at

1) (Page ID #12726).

In 1990, the same year that the EPA added this

portion of the Kalamazoo River to the NPL, GP and

two other paper companies—HM Holdings, Inc./Allied

Paper Inc. and Simpson Plainwell Paper Company—

formed the Kalamazoo River Study Group (“KRSG”), 1

which entered an Administrative Order on Consent

(“AOC”) with Michigan requiring KRSG to perform a

site-wide remedial investigation and feasibility study.

R. 737-1 (1990 AOC) (Page ID #21681–715);

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

355 F.3d 574, 578 (6th Cir. 2004).

In 1995, KRSG initiated a cost-recovery action

under CERCLA § 107, 2 amended by the Superfund

Amendments and Reauthorization Act of 1986

(“SARA”), seeking response costs from several firms

that it alleged had released PCBs into the Kalamazoo

River. R. 741-12 (KRSG Complaint) (Page ID #22142–

209). IP was not one of the named firms. 3 KRSG

sought a declaratory judgment that the defendants

Fort James Corporation, another paper company, later

joined the KRSG.

All section references in this opinion are to CERCLA as

amended, which appears at 42 U.S.C. § 9601 et seq.

The complaint named many entities as defendants: Eaton

Corp.; Rockwell International, Inc.; Benteler Industries, Inc.;

Upjohn Co.; Menasha Corp.; Wells Aluminum Corp.; Hercules,

Inc.; and Rock-Tenn Co. Kalamazoo River Study Grp. v. Rockwell

Int’l, 107 F. Supp. 2d 817, 818–19 & n.1 (W.D. Mich. 2000).

34a

were liable for “any response costs that may be

incurred by Plaintiff in the future in connection with

the Site.” Id. at 2 (Page ID #22143). Two defendants

counterclaimed, asserting that the KRSG members

were responsible for the PCB contamination at the

site. R. 741-17 (KRSG 1998 Order at 6) (Page ID

#22287). The district court held a trial concerning

both sides’ claims. Id. Its opinion, issued in 1998,

found the KRSG members—including GP—liable “for

the PCB contamination of the [relevant site].” Id. at

10, 12 (Page ID #22291, 22293). The same opinion also

found one defendant—Rockwell—”liab[le] for the

release of PCBs to the Site.” Id. at 42 (Page ID #22323);

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

107 F. Supp. 2d 817, 819 (W.D. Mich. 2000).

In its 1998 opinion, the district court found another

defendant—Eaton—not liable for any PCB discharges

from its Battle Creek facility. R. 741-17 (KRSG Order

at 31) (Page ID #22312). We reversed the district

court’s decision as to Eaton’s liability, holding that the

district court applied the incorrect legal standard.

Kalamazoo River Study Grp. v. Menasha Corp., 228

F.3d at 650. On remand, the district court found that

Eaton was liable for the PCB releases at some

facilities along the Kalamazoo River, but not others.

Kalamazoo River Study Grp. v. Eaton Corp., 142 F.

Supp. 2d 831, 859 (W.D. Mich. 2001) (finding Eaton

liable for PCB releases at Battle Creek and

Kalamazoo facilities but not liable at its Marshall

facility).

The 1998 KRSG judgment came at the end of the

liability phase of the trial between KRSG and the

defendants it sued. Kalamazoo River Study Grp. v.

Rockwell Int’l, 107 F. Supp. 2d at 819. After the 1998

35a

judgment and the Sixth Circuit’s partial reversal, the

district court proceeded to allocate response costs

among the three groups that had been held liable:

KRSG, Rockwell, and Eaton. In 2000, the district

court declined to allocate any response costs to

Rockwell,

reaffirming

the

KRSG

members’

responsibility for “the entire cost of response activities

relating to the NPL site” on this stretch of the

Kalamazoo River. Id. at 840 (emphasis added). We

affirmed this decision. Kalamazoo River Study Grp. v.

Rockwell Int’l Corp., 274 F.3d 1043 (6th Cir. 2001). In

a subsequent decision, the district court held Eaton

liable for a small portion of the costs of investigating

parts of the NPL site but wrote “that it would not be

equitable to require Eaton to share in the remediation

of the NPL Site.” Kalamazoo River Study Grp. v.

Eaton Corp., 258 F. Supp. 2d 736, 760 (W.D. Mich.

2003). We again affirmed. Kalamazoo River Study

Grp. v. Rockwell Int’l Corp., 355 F.3d at 578.

To sum up, the federal district court confirmed the

KRSG members’ liability for remediation costs three

times: in 1998, 2000, and 2003.

C. Today’s Dispute

Now, we turn to this case. In 2010, GP filed an

action under §§ 107(a) and 113(f) against NCR and IP

to recover its response costs involving the affected

area. R. 1 (Compl.) (Page ID #1–33). GP later

amended its complaint to add Weyerhaeuser as a

defendant. R. 80 (First Am. Compl.) (Page ID #1202–

40). GP argued that IP and Weyerhaeuser were liable

under § 107(a)(1) and (2) as successors to companies

that owned and operated mills that discharged PCBs,

and brought § 113(f) contribution claims against both

36a

firms. Id. at 28–38 (Page ID #1229–39); R. 1 (Compl.

at 26–31) (Page ID #26–31). (Weyerhaeuser itself also

owned a mill during the relevant time period.) (R. 80

(First Am. Compl. at 21) (Page ID #1222). GP alleged

that NCR faced liability under §§ 107 and 113 because

it arranged the disposal of PCB-containing substances

at the affected area. R. 1 (Compl. at 20–25) (Page ID

#20–25).

Weyerhaeuser, in its answer, did not contest that it

owned a PCB-discharging facility at the NPL Site,

while reserving the right to contest claims in the

litigation and asserting twenty affirmative defenses.

R. 105 (Weyer. Answer at 32, 55–57) (Page ID #1537,

1560–62). NCR denied liability. R. 29 (NCR Answer

at 2) (Page ID #231). IP argued that even if its

predecessor owned the Bryant Mill (“Mill”) while it

discharged PCBs, it was nonetheless not liable

because it owned the property only as a secured

creditor, which would shield it from CERCLA liability

if true. R. 432 (Phase I Op. at 2) (Page ID #12727);

§ 101(20)(A).

After the first phase of a bifurcated trial, the

district court found NCR liable as an “arranger” under

CERCLA, and found IP liable as an owner, rejecting

IP’s claim that it fell within the secured-creditor

exception. R. 432 (Phase I Op. at 3) (Page ID #12728).

After the phase I decision, the defendants

(including IP and Weyerhaeuser) moved for summary

judgment, arguing inter alia that GP’s claims were

time-barred under CERCLA. R. 787 (SJ Op.) (Page ID

#24179-97); R. 736 (Weyer. MSJ) (Page ID #21665–78);

R. 739 (IP & NCR MSJ) (Page ID #21831–61). The

district court observed that CERCLA imposes a three-

37a

year statute of limitations for § 113(f) contribution

claims, and that the limitations period begins to run

when a party receives a “judgment” in a CERCLA

action or enters an “administrative settlement”

concerning such an action. R. 787 (SJ Op. at 10) (Page

ID #24188). The defendants identified four events

that may have caused the statute of limitations to

begin running: the 2003 declaratory judgment from

the KRSG litigation, described above; the 1990 AOC

and a 2007 Order by Consent that modified some of

the 1990 AOC’s terms; three Administrative

Settlement Agreements and Orders on Consent

(“ASAOCs”) entered into between 2006 and 2007; and

a 2009 ASAOC and consent decree. Id. at 10–18 (Page

ID #24188–96).

The district court found that the claims concerning

the 2006–07 ASAOCs and one sub-claim from the

1990 AOC were time-barred, but that the remaining

claims were not. Id. at 18 (Page ID #24196). The

district court’s analysis concerning the ASAOCs and

the AOC involved determining whether the

agreements qualified as “administrative settlements”

for CERCLA’s purposes, an issue that the parties have

not appealed. Id. at 12–18 (Page ID #24190–96). By

contrast, the district court’s analysis of the KRSG

judgment, at issue in this appeal, concerned

“traditional res judicata principles.” Id. at 11 (Page ID

#24189).

After the lengthy phase II trial, the district court

apportioned forty percent of liability to GP, forty

percent to NCR, fifteen percent to IP, and five percent

to Weyerhaeuser. R. 921 (Phase II Op. at 64) (Page ID

#34699). All four parties appealed, but GP, NCR, and

Weyerhaeuser dismissed their appeals, leaving IP as

38a

the sole appellant. R. 969 (Dismissal of NCR App. at

3) (Page ID #35328) (App. No. 18–1805); R. 971

(Dismissal of Weyer. App. at 3) (Page ID #35333) (App.

No. 18–1858); R. 972 (Dismissal of GP App. at 4) (Page

ID #35337) (App. No. 18–1818). Weyerhaeuser,

however, remained as an appellee in IP’s appeal,

which is now before us.

Only two issues remain on appeal: whether the

1998, 2000, or 2003 judgments of liability in the KRSG

litigation started CERCLA’s statute of limitations to

run for contribution claims; and whether IP owned the

Mill from 1956–66 only as a “secured creditor.” The

district court answered both in the negative. We

reach the first question alone and reverse the district

court.

II. ANALYSIS

CERCLA “promote[s] ‘the timely cleanup of

hazardous waste sites’ and [] ensure[s] that the costs

of such cleanup efforts [a]re borne by those

responsible for the contamination.” CTS Corp. v.

Waldburger, 573 U.S. 1, 3 (2014) (quoting Burlington

N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599,

602 (2009)).

CERCLA imposes liability on four types of

Potentially Responsible Parties (“PRPs”):

(1) the owner and operator of a vessel or a

facility,

(2) any person who at the time of disposal of any

hazardous substance owned or operated any

facility at which such hazardous substances were

disposed of,

39a

(3) any person who by contract, agreement, or

otherwise arranged for disposal or treatment, or

arranged with a transporter for transport for

disposal or treatment, of hazardous substances . . .

at any facility . . ., and

(4) any person who accepts or accepted any

hazardous substances for transport to disposal or

treatment facilities, incineration vessels or sites

selected by such person, from which there is a

release, or a threatened release which causes the

incurrence of response costs, of a hazardous

substance . . . .

§ 107(a)(1)–(4).

CERCLA contains several provisions that

distribute cleanup costs among the relevant parties.

See Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758

F.3d 757, 762 (6th Cir. 2014). Section 107(a)(4)(B)

permits a private party to recover from another the

“necessary costs of response incurred by any other

person consistent with the national contingency plan.”

Section 113(f)(1) creates a contribution right for any

party sued under §§ 106 and 107. § 113(f)(1); Hobart,

758 F.3d at 762. That section provides:

Any person may seek contribution from any other

person who is liable or potentially liable under

section 9607(a) of this title [§ 107(a)], during or

following any civil action under section 9606 of

this title [§ 106] or under section 9607(a) of this

title.

§ 113(f)(1). The Supreme Court has held that

“contribution” here means the “tortfeasor’s right to

collect from others responsible for the same tort after

the tortfeasor has paid more than his or her

40a

proportionate share, the shares being determined as a

percentage of fault.” United States v. Atl. Rsch. Corp.,

551 U.S. 128, 138 (2007) (quoting BLACK’S LAW

DICTIONARY 353 (8th ed. 2004)). The Court also held

that § 113(f) authorizes contribution suits before or

after “the establishment of common liability.” Id. at

138–39.

Section 113(f) contribution claims are

available only to parties that have first been sued

under §§ 106 or 107(a). Cooper Indus., Inc. v. Aviall

Servs., Inc., 543 U.S. 157, 160–61 (2004).

These two statutory rights under §§ 107 and 113(f)

are mutually exclusive, providing causes of action “to

persons in different procedural circumstances.” Atl.

Rsch. Corp., 551 U.S. at 139 (quoting Consol. Edison

of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 99 (2d Cir.

2005)). The Supreme Court explained the difference:

“costs incurred voluntarily are recoverable only by

way of § 107(a)(4)(B), and costs of reimbursement to

another person pursuant to a legal judgment or

settlement are recoverable only under § 113(f).” Id. at

139–40 n.6.

In Hobart, we held that “PRPs must proceed under

§ 113(f) if they meet one of that section’s statutory

triggers.” 758 F.3d at 767. This is because of

CERCLA’s structure.

For one thing, because

§ 107(a)(4)(B) “likely provides a broader avenue for

recovery, and has a longer limitations period than

§ 113(f),” it provides a more attractive option for PRPs.

Id. (internal citations omitted). For another, the

Supreme Court has held that PRPs may bring actions

under § 113(f) only when they “demonstrate that

certain preconditions [a]re met.” Id. (citing Cooper

Indus., 543 U.S. at 165–66). Putting those two pieces

together, we concluded that if a party may bring a suit

41a

under § 113(f), it must do so. Id. Otherwise, “[t]here

would be no reason to limit § 113(f)’s availability” to

parties who have faced §§ 106 or 107 actions as the

Court did in Cooper Industries, because § 107(a)(4)(B)

would always offer a (more attractive) fallback option.

Id.

Not only do §§ 107 and 113(f) provide different

avenues of recovery, but also they provide different

statutes of limitations for their different types of

actions:

Cost-recovery actions under § 107(a)(4) must be

brought within three years “after completion of

the removal action” or “for a remedial action,

within [six] years after initiation of physical onsite construction.” § 113(g)(2).

Actions for

contribution under § 113(f), however, must be

filed within three years of “(A) the date of

judgment in any action under [CERCLA] for

recovery of such costs or damages, or (B) the date

of an administrative order under [§ 122(g)]

(relating to de minimis settlements) or [§ 122(h)]

(relating to cost recovery settlements) or entry of

a judicially approved settlement with respect to

such costs or damages.” § 113(g)(3).

Id. at 763; see also RSR Corp. v. Com. Metals Co., 496

F.3d 552, 556–58 (6th Cir. 2007).

SARA, which amended CERCLA, contains

“legislative history [that] indicates that . . . ‘[t]he

[§ 113(f)] statute of limitations begins to run at the

date of judgment for recovery of response costs . . . .’”

Am. Cyanamid Co. v. Capuano, 381 F.3d 6, 15 (1st Cir.

2004) (quoting H.R. Rep. No. 99-253, pt. 1, at 79

(1985)). “The statute of limitations, however, is not

42a

triggered for costs not contained within the judgment.”

Id.

A. Statute of Limitations

This appeal requires us to determine whether the

declaratory judgment on liability issued in the KRSG

litigation commenced the running of CERCLA’s

statute of limitations. “The principal purpose of

[CERCLA’s] limitations periods in this setting is to

ensure that the responsible parties get to the

bargaining—and clean-up—table sooner rather than

later.” RSR Corp., 496 F.3d at 559 (citing H.R. Rep.

No. 99-253, pt. 1, at 80). “[W]e review de novo a

district court’s grant of summary judgment.” Hobart,

758 F.3d at 765. Questions of law regarding whether

a complaint was filed outside of the statute of

limitations similarly receive de novo review. City of

Wyandotte v. Consol. Rail Corp., 262 F.3d 581, 589

(6th Cir. 2001).

1. CERCLA’s Statute of Limitations

IP argues that GP is time-barred from bringing its

contribution claim against IP because of a declaratory

judgment issued against GP in 1998. We agree.

a. The Parties’ Positions

As noted above, in 1995, KRSG sued several parties

under § 107 for recovery of costs related to PCB

contamination of the affected area. R. 741-12 (KRSG

Compl.) (Page ID #22142–72). As a member of KRSG,

GP sought a declaratory judgment for “any response

costs that may be incurred by Plaintiff in the future in

connection with the Site.” Id. at 2 (Page ID #22143).

Some defendants counterclaimed, resulting in three

separate judgments finding the KRSG members,

including GP, liable and responsible parties under

43a

§ 107 for the PCB contamination at the affected site.

R. 741-17 (KRSG 1998 Order & Partial J. at 12) (Page

ID #22293); Kalamazoo River Study Grp. v. Rockwell

Int’l, 107 F. Supp. 2d at 840 (2000); Kalamazoo River

Study Grp. v. Eaton Corp., 258 F. Supp. 2d at 760

(2003). IP argues that GP’s current action filed in

2010 is untimely because these judgments marked the

commencement of the three-year statute of

limitations period for all contribution actions for the

entire cost of cleaning up the site. IP Br. at 32–33; see

R. 787 (SJ Op. at 5) (Page ID #24183).

GP argues that these declaratory judgments do not

impose recoverable costs or damages, but instead fix

only liability; as a result, GP argues, declaratory

judgments do not cause the statute of limitations

period to begin to run for contribution claims. GP Br.

at 19; cf. Continental Cas. Co. v. Indian Head Indus.,

Inc., 941 F.3d 828, 835 (6th Cir. 2019) (stating, in the

context of claim preclusion, “declaratory judgments

are often prefaces to later actions for damages or an

injunction.”).

But IP argues that the KRSG

declaratory judgment in 1998 compelled GP to pay for

“the entire cost of response activities relating to the

NPL site” on this stretch of the Kalamazoo River. IP

Br. at 32–33 (quoting Kalamazoo River Study Grp. v.

Rockwell Int’l, 107 F. Supp. 2d at 840). According to

IP, although those costs were not yet fixed, GP’s

liability was fixed no later than June 2003, the date of

the third district court judgment in the KRSG

litigation. IP Reply Br. at 4.

b. The District Court’s Reasoning

The district court briefly discussed these arguments

in its 2015 opinion, referencing general res judicata

44a

principles and citing no CERCLA cases. R. 787 (SJ

Order at 11–12) (Page ID #24189–90). The district

court declined to apply § 113’s statute of limitations

because doing so would “effectively bar some

contribution claims even before they would normally

accrue,” which it was unwilling to do “in the absence

of precedent . . . that would lend support to such an

expansive interpretation.” Id. at 12 (Page ID #24190).

c. Our Analysis

The limitations issue has two complicating factors.

First, IP and Weyerhaeuser were not parties to the

KRSG litigation. GP therefore argues that even if the

KRSG litigation did start the statute of limitations to

run with regards to some PRP’s, it did not do so with

regards to IP and Weyerhaeuser. GP Br. at 17–19.

Second, the 1998 KRSG judgment awarded no specific

amount of damages or costs, instead resulting in

simply a determination of liability. Id. at 20. GP

argues that this means that the judgment is not an

action “for recovery of such costs or damages,” because

the judgment awarded no response costs or damages.

Id. at 19 (quoting § 113(g)(3)(A)).

It does not matter for § 113(g)’s purposes whether

the particular contribution action is pursued against

a party to the liability-assigning judgment, or against

a non-party to that judgment. As we explained in

RSR, “Rather than focus on who settled the costrecovery action, in short, the statute asks us to focus

on what was settled.” 496 F.3d at 557. Although we

have not directly addressed this issue beyond RSR, we

believe that § 113(g)’s statute of limitations should bar

an action against a nonparty beyond the statutory

period. In ASARCO LLC v. Shore Terminals LLC, the

45a

Northern District of California noted that CERCLA,

by referencing “any response costs or damages,”

“speak[s] of the response costs and damages that were

part of the settlement, not whether the settlement

involved a specific party.” No. C 11-01384, 2012 WL

2050253, at *5–6 (N.D. Cal. June 6, 2012). We agree

with this reasoning, which matches our earlier

recognition that “[t]he principal purpose of limitations

periods in th[e CERCLA] setting is to ensure that the

responsible parties get to the bargaining—and clean

up—table sooner rather than later.” RSR Corp., 496

F.3d at 559.

We next consider whether the 1998 declaratory

judgment’s bare-bones nature prevented it from

beginning the running of § 113(g)(3)(A)’s statute of

limitations.

First, the statute’s text suggests that a declaratory

judgment determining liability starts § 113(g)(3)(A)’s

statute of limitations running. Section 113(g)(2)

explains that, in any § 107 action (like the one

between KRSG and their multiple defendants that

produced the initial judgment of liability), “the court

shall enter a declaratory judgment on liability for

response costs or damages that will be binding on any

subsequent action or actions to recover further

response costs or damages.” § 113(g)(2). Immediately

after § 113(g)(2) discusses this “declaratory judgment

on liability for response costs,” § 113(g)(3) provides

that “[n]o action for contribution for any response costs

or damages may be commenced more than 3 years

after . . . the date of judgment in any action under this

chapter for recovery of such costs or damages.”

§ 113(g)(3)(A) (emphasis added).

These three

italicized references to a judgment for “response costs”

46a

strongly suggest that the “declaratory judgment on

liability for response costs” mentioned in § 113(g)(2)

can also serve as a “judgment in any action under this

chapter for recovery of such costs or damages” causing

the statute of limitations to begin to run, as described

in § 113(g)(3)(A). Because the district court in 1998

issued such a judgment, the statute of limitations

started to run on that date.

To bolster this reading, we next look to our

precedents. Our caselaw does not indicate whether a

bare declaratory judgment begins the running of

CERCLA’s statute of limitations for contribution

claims. We have, however, answered a similar

question arising in the context of a nearby CERCLA

provision: the statute of limitations that begins to run

by entry of a judicially approved settlement.

§ 113(g)(3)(B). In RSR Corp. v. Commercial Metals

Co., RSR had entered a settlement agreement with

the government that required RSR to “undertake . . .

further response actions to the extent necessary” to

clean up a contaminated site. 496 F.3d at 554

(quotation marks omitted). Over three years later,

RSR filed a CERCLA contribution action against

Commercial Metals, which the district court

dismissed on statute-of-limitations grounds.

Id.

Despite RSR arguing, like GP, that this consent

decree did not cover future costs, we affirmed this

dismissal, stating that “Because the consent decree

established RSR’s liability, its contribution action

regarding those ‘costs’ accrued on the date of the

consent decree . . . and expired three years later.” Id.

at 558. RSR thus established a clear rule for

CERCLA’s statute of limitations in the settlement

context: when a party assumes an obligation to pay

47a

response costs, including future costs, the statute of

limitations for contribution actions regarding those

response costs begins to run. And that is the case even

when the specific amount owed in response costs is not

yet known, or when all parties who could face

contributory liability are not yet identified.

Many of the same factors that RSR evaluated in the

settlement context also apply in the context of a

judgment. For instance, with both settlements and

judgments, “The principal purpose of limitations

periods in this setting [of CERCLA contribution

actions] is to ensure that the responsible parties get

to the bargaining—and clean-up—table sooner rather

than later.” RSR Corp., 496 F.3d at 559 (citing H.R.

Rep. No. 99-253, pt. 1, at 80). RSR also highlighted a

concern that applies here: if the statute of limitations

does not begin running at the entry of the

settlement/judgment, it is not clear when the

limitations period would begin running. See id. at 557.

Of course, there are important contextual

differences between judicially approved settlements

and declaratory judgments. The primary one is that

of consideration. When a party settles a CERCLA

claim with the government, it gains a bargained-for

reprieve from future government enforcement actions.

This was central to RSR’s resolution. RSR had argued

that it “could not have resolved its liability to the

United States before the completion of the remedial

action.” RSR Corp., 496 F.3d at 558. We rejected that

claim because RSR had promised to assume “all

liability (vis-a-vis the United States) for future

remedial actions” “in exchange for the United States’

covenant not to seek further damages.” Id. RSR opted

into a settlement to secure peace for itself; here, GP

48a

could not engage in the same economic calculation

prior to receiving the declaratory judgment. As a

result, we cannot reflexively apply RSR’s holding to

§ 113(g)(3)(A)’s statute of limitations.

We next turn to other circuits’ efforts to solve this

problem. No circuit has confronted a case concerning

the commencement date for the running of the statute

of limitations when a party faces a bare declaratory

judgment of liability.

GP points us to several

allegedly analogous cases, especially American

Cyanamid Co. v. Capuano. In American Cyanamid,

the First Circuit held that the phrase “such costs or

damages” in § 113(g)(3)(A) referred only to “the costs

or damages contained in the ‘judgment’ mentioned” in

that subparagraph, not to “any response costs or

damages that could arise in the future.” 381 F.3d at

13. American Cyanamid concerned a declaratory

judgment that had held a party “jointly and severally

liable for all future costs of removal or remedial action

incurred” by the government at a particular site. Id.

at 12. The First Circuit held that a “declaratory

judgment 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.”

Id. at 13.

This language, which seems favorable to GP,

weakens substantially when placed in context.

American Cyanamid involved judgments for two

separate types of environmental remediation: one

litigation concerning soil remediation, and a separate

investigation concerning groundwater remediation.

381 F.3d at 10–11. The court had to consider whether

a declaratory judgment entered as to soil remediation

caused the statute of limitations to begin running as

49a

to contribution regarding groundwater remediation.

Id. at 12–13; see also ASARCO, LLC v. Celanese Chem.

Co., 792 F.3d 1203, 1214 (9th Cir. 2015)

(distinguishing American Cyanamid on these grounds,

and rejecting the broad proposition that CERCLA’s

limitations period does not begin running after a

consent decree until costs under that decree “bec[o]me

fixed”). Although American Cyanamid occasionally

uses broader language, this distinction remains

crucial: American Cyanamid did not deal with a case

in which one declaratory judgment purported to

assign sitewide liability. 4

And in Arconic, Inc. v. APC Investment Co., the

Ninth Circuit held that a settlement that did not

impose “any response costs or remedial obligations”

did not cause the limitations period to begin running

“merely because it foresaw the remediation of the”

affected area. 969 F.3d 945, 952 (9th Cir. 2020). For

two reasons, this case does not cleanly apply: first, it

concerns a settlement, not a judgment. Id. at 951.

Second, like American Cyanamid, the earlier

settlement in Arconic did not cover the claims at issue

in the later case. Id. at 952.

We believe that the soundest course is to apply the

rule from RSR Corp. and hold that the 1998 bare

declaratory judgment caused the limitations period to

begin to run. CERCLA aims to bring parties to the

To be sure, American Cyanamid did endorse the position

that, when “there has been no expenditure or fixing of costs for

which a PRP may seek contribution,” CERCLA’s statute of

limitations does not begin to run. 381 F.3d at 12 (quotation

omitted). This position, rejected in ASARCO LLC, does not bind

us, and we think that RSR’s language outweighs any persuasive

value it may have.

50a

clean-up table as soon as possible. See RSR, 496 F.3d

at 559. CERCLA provides that the limitations period

begins to run on “the date of judgment in any action

under [CERCLA] for recovery of such [response] costs

or damages.” § 113(g)(3)(A). Here, the KRSG decision

issued in 1998 imposed such response costs or

damages, compelling GP 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. Kalamazoo River Study Grp. v.

Rockwell Int’l, 107 F. Supp. 2d at 840 (2000). True,

GP did not yet have a bill in hand for response costs

or damages. But as we held in RSR, GP had received

the responsibility to pay for “as-yet-unfinished”

remedial work. 496 F.3d at 557. The 1998 declaratory

judgment on liability therefore started the

contribution clock ticking.

As described above, the district court in the KRSG

litigation issued three separate declaratory

judgments discussing the KRSG members’ liability for

response costs at the affected site. R. 741-17 (KRSG

1998 Order & Partial J. at 12) (Page ID #22293);

Kalamazoo River Study Grp. v. Rockwell Int’l, 107 F.

Supp. 2d at 840 (2000); Kalamazoo River Study Grp.

v. Eaton Corp., 258 F. Supp. 2d at 760 (2003). The

district court here understood IP to argue that the

third judgment, issued in 2002 and amended in 2003,

caused the statute of limitations to begin to run. R.

787 (SJ Op. at 11) (Page ID #24189). At one point, the

district court seemingly endorsed this position itself.

Id. at 5 (Page ID #24183) (“In 2003, the district court

in that case entered judgment holding the [KRSG]

liable for all past and future remediation costs

associated with the [site].”).

51a

We read IP as arguing that the 1998 judgment

started the statute of limitations. In IP’s motion for

summary judgment, it argued that the 1998 judgment

“h[eld] GP liable for past and future response costs

pursuant to the defendants’ §§ 107 and 113

counterclaims.” R. 739 (IP MSJ at 18) (Page ID

#21853). IP also wrote that by 2010, “more than 12

years” had passed since the first § 107 judgment

against GP. Id. at 18–19 (Page ID #21853–54). IP

seems to maintain this position on appeal, arguing

that “the court in the KRSG Litigation found GP liable

on Eaton’s and Rockwell’s §§ 107 and 113

counterclaims for all past and future response costs”

in 1998. IP Br. at 32. But see IP Br. at 33 (calling its

statute-of-limitations argument “consistent with

what the district court found in this case—namely,

that in 2003, the court in the KRSG litigation” found

GP, as a member of KRSG, liable for all past and

future remediation costs at the site).

We agree with IP’s conclusion, and conclude that

the 1998 judgment caused the statute of limitations to

begin to run. First, and most importantly, the 1998

order provides that “judgment as to liability is

entered . . . against Plaintiff KRSG on Defendants’

counterclaims.” R. 741-17 (1998 Order at 1) (Page ID

#22281). The 2000 and 2003 judgments simply

allocated liability owed by various defendants and did

not affect the KRSG members’ already-fixed liability.

Additionally, we have previously suggested, albeit

obliquely, that the 1998 judgment assigned liability.

Kalamazoo River Study Grp. v. Rockwell Int’l, 274

F.3d at 1046 (“At the liability stage [in 1998] . . . [t]he

district court determined that the KRSG and

52a

Rockwell had both released a sufficient amount of

PCBs to face liability . . . .”).

We note, however, that in this case it does not

matter which judgment caused the statute of

limitations to begin to run, because each of the

judgments identified by IP and the district court

issued more than three years before GP brought this

action in 2010.

Because the 1998 KRSG judgment caused the

statute of limitations to begin to run, the three-year

statute-of-limitations period concluded before GP filed

its 2010 action, and we must dismiss GP’s action on

limitations grounds.

2. The Statute of Limitations’ Application to

Weyerhaeuser

We next address whether the dismissal of GP’s

contribution action against IP also requires dismissal

of the action against Weyerhaeuser, even though

Weyerhaeuser dismissed its own appeal from the

judgment in this matter. We conclude that § 113(g)(3)

also

bars

the

contribution

claim

against

Weyerhaeuser.

Weyerhaeuser makes two arguments. First, it

argues that time bars apply to all similarly situated

defendants when the plaintiff had notice of the issue.

Second, it argues that it raised the statute of

limitations defense early in the litigation. We find

both arguments compelling.

We apply time bars to all similarly situated

defendants so long as the plaintiff was “on notice that,

to survive summary judgment, it had to come forward

with evidence showing that the statute of limitations

did not bar its [] claims.” Grand Rapids Plastics, Inc.

53a

v. Lakian, 188 F.3d 401, 407 (6th Cir. 1999) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986))

(dismissing claim on statute-of-limitations ground

even with respect to defendant who did not raise

statute-of-limitations defense); see also Thomas v.

Mahoning Cnty. Jail, No. 16-3495, 2017 WL 3597428,

at *2 (6th Cir. Mar. 21, 2017) (order) (dismissing claim

on statute-of-limitations ground when other movants

advanced the defense). Here, IP and NCR moved for

summary judgment on statute-of-limitations grounds,

citing inter alia the 1998 KRSG judgment. R. 739

(Mem. of Law of NCR & IP re: MSJ) (Page ID #21831–

61). 5 This put GP on notice that it needed to refute the

statute-of-limitations argument to survive summary

judgment. See R. 761 (GP Resp. re: Statute-ofLimitations MSJ at 11–18) (Page ID #23857–64).

Because Weyerhaeuser is in the same factual position

as IP for purposes of the statute-of-limitations issue,

and because IP raised the issue and gave GP an

opportunity to respond before the district court, the

time bar applies to GP’s claims against Weyerhaeuser

as well.

Additionally, Weyerhaeuser may benefit from

today’s

statute-of-limitations

ruling

because

Weyerhaeuser raised a statute-of-limitations defense,

albeit briefly. Weyerhaeuser’s answer included 20

affirmative defenses, one of which read, “GP’s claims

are barred in whole or in part by the applicable

statutes of limitations or waiver.” R. 105 (Weyer.

Answer, Affirmative Defenses, Countercl., and CrossWeyerhaeuser’s Motion for Summary Judgment on

statute-of-limitations grounds concerned two ASAOCs that GP

and another KRSG member entered with the EPA in 2007. R.

736 (Weyer. MSJ) (Page ID #21665–78).

54a

Cls. in Resp. to GP’s First Am. Compl. at 56) (Page ID

#1561). And later in the 2010 litigation, in 2013, GP

and Weyerhaeuser entered a stipulation that did “not

limit the rights of each party to litigate any other

issues.” R. 369 (Order Granting Revised Stip. on

Phase I CERCLA Liab. at 3) (Page ID #9012).

Weyerhaeuser argues that its brief invocation of the

statute of limitations sufficed to put GP on notice of

the issue. Weyer. Br. at 40. We agree. See Herrera v.

Churchill McGee, LLC, 680 F.3d 539, 546–47 (6th Cir.

2012).

For those two reasons, CERCLA’s statute of

limitations applies to GP’s claim against

Weyerhaeuser.

3. GP’s § 107 Claim

GP separately argues that, even if IP is correct and

GP’s § 113 contribution claims are barred by the 1998

KRSG judgment, it can still prevail on some of its

other claims, which it has brought under § 107. Our

decision today does not affect GP’s § 107(a) claims that

fall outside of the 1998 KRSG judgment’s broad scope.

As discussed above, Hobart analyzed the interplay

between §§ 107 and 113, concluding that “if a party is

able to bring a contribution action, it must do so under

§ 113(f), rather than § 107(a).” 748 F.3d at 767.

Section 107(a) provides the avenue for parties who

incur costs on their own, and § 113(f) is the statutory

tool to recover contribution for costs imposed via

settlement or judgment. Id. at 762. And, as we

concluded above, the 1998 KRSG judgment started

§ 113(g)(3)(A)’s statute of limitations running and

established GP’s right to seek contribution “for the

55a

PCB contamination of the NPL site.” R. 741-17 (1998

Order at 12) (Page ID #22293).

GP notes, correctly, that a party with a contribution

claim under § 113(f) for costs from one judgment may

later bring a § 107(a) claim for costs not contained

within the judgment that led to the § 113(f) claim. GP

Br. at 24. But as IP notes, and as we have already

discussed, the 1998 KRSG judgment had a broad

scope, covering “the costs of response activities for the

NPL Site.” R. 741-17 (1998 Order at 12) (Page ID

#22293); IP Reply at 12–13. GP may bring § 107(a)

claims for costs that fall outside of that judgment, but

the judgment’s breadth suggests that identifying such

costs will prove difficult in practice.

GP therefore cannot pursue its § 107(a) claims for

any costs that fall within the scope of the 1998 KRSG

judgment.

B. Secured-Creditor Exception

Because we conclude that the statute of limitations

on GP’s contribution claim has run, we need not

address IP’s arguments concerning whether

CERCLA’s secured-creditor exception applies.

III. CONCLUSION

When the district court entered the 1998

declaratory judgment, CERCLA’s statute of

limitations for contribution claims began running.

Because the district court here did not enforce that

statute of limitations, we REVERSE its judgment

and REMAND for further proceedings consistent

with this opinion.

56a

APPENDIX D

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0154p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEORGIA-PACIFIC CONSUMER

PRODUCTS LP; FORT JAMES

CORPORATION; GEORGIA-PACIFIC LLC,

Plaintiffs-Appellees,

NCR CORPORATION,

No. 18-1806

Defendant,

WEYERHAEUSER COMPANY,

Defendant-Appellee,

INTERNATIONAL PAPER COMPANY,

Defendant-Appellant.

On Petition for Rehearing En Banc.

United States District Court for the Western District

of Michigan at Grand Rapids;

No. 1:11-cv-00483—Robert J. Jonker, District Judge.

Decided and Filed: July 14, 2022

Before: MOORE, KETHLEDGE, and DONALD,

Circuit Judges.

57a

COUNSEL

ON PETITION FOR REHEARING EN BANC:

Michael R. Shebelskie, Douglas M. Garrou, George P.

Sibley, III, J. Pierce Lamberson, HUNTON

ANDREWS KURTH LLP, Richmond, Virginia, Peter

A. Smit, VARNUM LLP, Grand Rapids, Michigan, for

Georgia-Pacific Appellees. ON RESPONSE: Mark W.

Schneider, Kathleen M. O’Sullivan, Margaret C.

Hupp, PERKINS COIE LLP, Seattle, Washington,

Scott M. Watson, WARNER NORCROSS & JUDD

LLP, Grand Rapids, Michigan, for Appellee

Weyerhaeuser Company. John D. Parker, BAKER &

HOSTETLER LLP, Cleveland, Ohio, Ryan D.

Fischbach, BAKER & HOSTETLER LLP, Los Angeles,

California, John F. Cermak, Jr., Sonja A. Inglin,

CERMAK & INGLIN LLP, Los Angeles, California,

David W. Centner, CLARK HILL PLC, Grand Rapids,

Michigan, for Appellant International Paper

Company.

ORDER

The court received a petition for rehearing en banc.

The original panel has reviewed the petition for

rehearing, has addressed the issues therein in an

Appendix to the original panel opinion, and has

concluded that rehearing is unnecessary. Upon

circulation of the petition and the Appendix to the full

court, no judge has requested a vote on the suggestion

for rehearing en banc.

Therefore, the petition is denied.

58a

APPENDIX ON PETITION FOR REHEARING

GP has petitioned for rehearing en banc on one

issue and panel rehearing on another. We DENY the

petition and add the following as an Appendix to the

original opinion.

I. Weyerhaeuser

Should

Have

CrossAppealed, But GP Forfeited the Argument

In its petition for rehearing en banc, GP argues that

Weyerhaeuser should have cross-appealed in order to

benefit from our ruling against GP on the statute-oflimitations issue. GP Pet. at 3–11. Weyerhaeuser

developed a substantial argument in its appellee brief

explaining that the statute of limitations barred GP’s

claim against Weyerhaeuser as well as against IP and

also adopted by reference the stretch of IP’s brief that

involved the statute of limitations. Weyerhaeuser Br.

at 37–43. But to secure affirmative relief,

Weyerhaeuser should have filed a cross-appeal.

Absent a cross-appeal, an appellee “may not ‘attack

the decree with a view either to enlarging his own

rights thereunder or of lessening the rights of his

adversary.’” El Paso Nat. Gas Co. v. Neztsosie, 526 U.S.

473, 479 (1999) (quoting United States v. Am. Ry.

Express Co., 265 U.S. 425, 435 (1924)); see also

Jennings v. Stephens, 574 U.S. 271, 276 (2015); United

States v. Burch, 781 F.3d 342, 344 (6th Cir. 2015)

(Order). Because Weyerhaeuser asked this court to

“apply [a favorable] statute-of-limitations ruling to”

provide

relief

beyond

the

district

court’s

determination,

Weyerhaeuser

Br.

41,

Weyerhaeuser sought to enlarge its own rights, and a

cross-appeal should have been taken.

59a

Weyerhaeuser’s failure to cross-appeal does not end

our analysis, however. Generally, an argument not

raised in an appellate brief or at oral argument is

forfeited, and may not be raised for the first time in a

petition for rehearing. United States v. Huntington

Nat’l Bank, 574 F.3d 329, 331 (6th Cir. 2009); Costo v.

United States, 922 F.2d 302, 302–03 (6th Cir. 1990)

(Order). That is what happened here: GP did not

object to Weyerhaeuser’s argument in an appellate

brief 1 or at oral argument. The specter of forfeiture

thus haunts GP’s petition for rehearing en banc.

GP’s failure to raise earlier in the proceedings this

issue of the asserted need for a cross-appeal will not

matter, however, if we conclude that Federal Rule of

Appellate Procedure 4(a)(3), which governs crossappeals, imposes a jurisdictional requirement.

“Branding a rule as going to a court’s subject-matter

jurisdiction alters the normal operation of our

adversarial system.” Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428, 434 (2011). One such

alteration: objections to a court’s subject-matter

jurisdiction “may be raised at any time.” Id. For

decades, this circuit has held that the cross-appeal

requirement is jurisdictional. United States v.

GP notes that it could not have addressed Weyerhaeuser’s

argument in GP’s appellee brief because GP and Weyerhaeuser

submitted their appellee briefs on the same day. GP Pet. at 10.

Fair enough. But GP could have moved for permission to file a

supplemental brief or raised the issue at oral argument.

Weyerhaeuser’s brief presented only two arguments, one of

which aligned with GP’s position on appeal. GP therefore could

not have failed to notice Weyerhaeuser’s statute-of-limitations

argument—it was not hidden away in a footnote, or nestled in

among eight other claims, but rather constituted the second

argument, spanning pages 37–43 of Weyerhaeuser’s brief.

60a

Archibald, 685 F.3d 553, 556 (6th Cir. 2012); Bennett

v. Krakowski, 671 F.3d 553, 558 (6th Cir. 2011);

Francis v. Clark Equip. Co., 993 F.2d 545, 552–53 (6th

Cir. 1993); Ford Motor Credit Co. v. Aetna Cas. & Sur.

Co., 717 F.2d 959, 962–63 (6th Cir. 1983).

But times have changed. “Over the last twenty

years, one Supreme Court decision after another

instructs the lower courts to be more judicious about

labeling deadlines jurisdictional.” Gunter v. Bemis Co.,

906 F.3d 484, 492–93 (6th Cir. 2018). This is because

the Supreme Court has recognized that “Only

Congress may determine a lower federal court’s

subject-matter jurisdiction.” Hamer v. Neighborhood

Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017) (quoting

Kontrick v. Ryan, 540 U.S. 443, 452 (2004)). As a

result, “a provision governing the time to appeal in a

civil action qualifies as jurisdictional only if Congress

sets the time.” Id. “[R]ules that seek to promote the

orderly progress of litigation by requiring that the

parties take certain procedural steps at certain

specified times” qualify as mandatory claimprocessing rules, and although they “promote the

orderly progress of litigation,” they may be forfeited if

no party raises them. Henderson, 562 U.S. at 435; see

id. at 434. Thus, “When Congress passes a statute

that unambiguously restricts the adjudicatory

authority of the federal courts, the restriction will be

treated as jurisdictional. . . . Otherwise, the restriction

will be treated as mandatory but not jurisdictional.”

Maxwell v. Dodd, 662 F.3d 418, 421 (6th Cir. 2011).

Our court recently applied this new regime to the

cross-appeal rule. In Gunter v. Bemis Co., we

evaluated whether Federal Rule of Appellate

Procedure 4(a)(3)’s timing requirements on cross-

61a

appeals were jurisdictional, or merely claimprocessing rules. 906 F.3d at 492–93. An earlier panel

denied jurisdictional status to requirements imposed

by “federal rules . . . promulgated in accordance with

the Rules Enabling Act, which does not by itself give

the rules jurisdictional effect.” Maxwell, 662 F.3d at

421. We then concluded in Gunter that “[b]ecause

Congress has not clearly required a timely notice of

cross-appeal for a court to exercise jurisdiction over it,

Federal Appellate Rule 4(a)(3) establishes only a

mandatory claim-processing rule, not a limit on our

jurisdiction.” 906 F.3d at 492–93; see also Mathias v.

Superintendent Frackville SCI, 876 F.3d 462, 470 (3d

Cir. 2017) (concluding that Rule 4(a)(3) is not

jurisdictional because it “is not a creature of statute,

but a court-promulgated rule”); 16A Charles Alan

Wright & Arthur R. Miller, Federal Practice &

Procedure § 3950.7 (5th ed. 2022).

Gunter and the Supreme Court’s recent case law

convince us that the narrowing of the term

“jurisdictional” has abrogated our court’s earlier cases

holding that the cross-appeal requirement goes to our

jurisdiction. See Rutherford v. Columbia Gas, 575

F.3d 616, 619 (6th Cir. 2009). These earlier decisions

improperly “held jurisdictional a [requirement]

specified in a rule, not in a statute.” Hamer, 138 S. Ct.

at 17. As a result, we hold that compliance with Rule

4(a)(3)’s

cross-appeal

requirement,

although

mandatory, is not jurisdictional. See 16A Charles

Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 3904 (5th ed. 2022) (embracing this

approach); Mathias, 876 F.3d at 471–72.

There is one distinction between our case and

Gunter worth noting. In Gunter, a party cross-

62a

appealed outside of 28 U.S.C. § 2107’s window for

filing a notice of appeal; here, Weyerhaeuser filed no

notice or motion for cross-appeal at all. 2 But this

distinction carries with it no difference. As discussed

above, we decide whether a requirement qualifies as

jurisdictional by considering whether Congress has

imposed the relevant limit on the court’s jurisdiction.

Hamer, 138 S. Ct. at 17. And no statute speaks of a

cross-appeal requirement. Mathias, 876 F.3d at 470.

As evidence of this, many courts of appeals have long

considered the cross-appeal rule to be a nonjurisdictional “rule of practice,” not a statutory

command. See, e.g., id. at 472; In re IPR Licensing,

Inc., 942 F.3d 1363, 1370–71 (Fed. Cir. 2019);

Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d

1283, 1298 & nn.27, 28 (9th Cir. 1999) (collecting

cases). Additionally, Gunter does not limit its holding

to Rule 4(a)(3)’s 14-day deadline, instead referring to

the rule in toto as nonjurisdictional. 906 F.3d at 493. 3

That is not to say that Weyerhaeuser never expressed an

intent to pursue its claims on appeal. Weyerhaeuser, just like

IP, appealed the district-court decision evaluated in this opinion.

See Georgia-Pacific Consumer Prods. v. NCR Corp., No. 18-1858.

In 2021, after countless rounds of mediation, Weyerhaeuser

dismissed its appeal, noting that its dismissal “does not affect

Weyerhaeuser’s rights or interests in” the instant matter. A.R.

60, Georgia-Pacific Consumer Prods. v. NCR Corp., No. 18-1858.

Although this is not a complete substitute for filing a crossappeal, it was yet another data point that should have given GP

notice of Weyerhaeuser’s efforts to pursue its “rights or interests”

as an Appellee in this case.

Indeed, another court of appeals cited Gunter for the same

conclusion we reach today: that the requirement of filing a crossappeal is a claim-processing rule that can be forfeited. In re IPR

Licensing, Inc., 942 F.3d at 1370–71.

63a

True, the Supreme Court has repeatedly discussed

the importance of the cross-appeal requirement, often

in the loftiest of terms. Greenlaw v. United States, 554

U.S. 237, 244–45 (2008) (“This Court, from its earliest

years, has recognized that it takes a cross-appeal to

justify a remedy in favor of an appellee.”); El Paso Nat.

Gas, 526 U.S. at 480 (“[I]n more than two centuries of

repeatedly endorsing the cross-appeal requirement,

not a single one of [the Supreme Court’s holdings] has

ever recognized an exception to the [cross-appeal]

rule.”). But although the Court has defined the

requirement in such terms, it has also taken pains,

time and time again, to make clear that it has not

viewed the requirement as jurisdictional. Greenlaw,

554 U.S. at 245; El Paso Nat. Gas, 526 U.S. at 480. To

the contrary, the Court in Greenlaw acknowledged

that some of its precedent support interpreting the

requirement as non-jurisdictional. 554 U.S. at 245

(citing Langnes v. Green, 282 U.S. 531, 538 (1931)).

The Supreme Court’s decision in Torres v. Oakland

Scavenger Co., 487 U.S. 312 (1988), also does not

change our analysis. There, the Court explained that

Rules 3 and 4 comprised “a single jurisdictional

threshold,” and instructed lower courts that they

“may not waive the jurisdictional requirements of

Rules 3 and 4.” Id. at 315, 317. But like our holdings

in Ford Motor Credit Co., 717 F.2d at 962–63, and

Francis v. Clark Equipment, 993 F.2d at 552–53, this

statement predates the Supreme Court’s modern

project of reining in the use of the word “jurisdictional.”

Torres, which concerned the filing of an initial notice

of appeal and not a notice of cross-appeal, based its

jurisdictional conclusion on “the mandatory nature of

the time limits contained in Rule 4” and the Advisory

64a

Committee Note accompanying Rule 3. 487 U.S. at

315. We adhere today to subsequent Supreme Court

decisions clarifying that “mandatory . . . time limit[s]”

in the Federal Rules create jurisdictional

requirements only where those limits derive from acts

of Congress. Hamer, 138 S. Ct. at 16–17.

GP cites Burch, 781 F.3d at 344–45, for the

proposition that “cross-appeals are indistinguishable

from appeals . . . for purposes of the jurisdictional

analysis.” GP Pet. at 5 n.7. GP argues that because

the Supreme Court has held that a notice of appeal is

jurisdictionally required under Rule 4 and 28 U.S.C. §

2107, Bowles v. Russell, 551 U.S. 205, 209–10 (2007),

notices of cross-appeal must be similarly required to

provide a court’s jurisdiction. But Bowles concerned a

requirement imposed by statute—the 30-day

requirement for a party to file a notice of appeal, see

28 U.S.C. § 2107(a), which the district court can

extend for up to 14 days under 28 U.S.C. § 2107(c).

Bowles, 551 U.S. at 213. Bowles did not address crossappeals, and as discussed supra, § 2107 does not

reference cross-appeals.

Burch is also crucially

distinguishable from this case because in Burch, the

failure to cross-appeal was presented to the court, and

so the argument was not forfeited. Resp. to Mot. to

Dismiss at 2, United States v. Burch, 781 F.3d 342

(6th Cir. 2015) (No. 14-6232). As a result, when Burch

described

the

cross-appeal

requirement

“mandatory and consistently followed,” it meant that

65a

courts enforce the requirement whenever raised. 781

F.3d at 345. 4

Finally, we recognize that two recent unpublished

panel opinions in our circuit have cited our older

caselaw calling the cross-appeal requirement

jurisdictional. Portnoy v. Nat’l Credit Sys., Inc., 837

F. App’x 364, 372–73 (6th Cir. 2020); Wiggins v.

Ocwen Loan Servicing, LLC, 722 F. App’x 415, 419

(6th Cir. 2018). These unpublished opinions do not

bind us, and, as explained supra, we believe that

intervening Supreme Court precedent has overruled

the determinations on which they rely.

The cross-appeal requirement is not jurisdictional,

making it a claim-processing rule forfeitable when no

party raises it. GP did not raise Weyerhaeuser’s

failure to file a cross-appeal at the proper time, and

we will not consider the argument now. See United

States v. Montgomery, 969 F.3d 582, 583 (6th Cir.

2020) (Order on panel rehearing). “Because

Weyerhaeuser is in the same factual position as IP for

purposes of the statute-of-limitations issue,” GeorgiaPacific Consumer Prods. LP v. NCR Corp., 32 F.4th

534, 547 (6th Cir. 2022), and because GP was on notice

that Weyerhaeuser sought to benefit from a ruling

benefitting IP, we granted Weyerhaeuser relief to

“coherent[ly] dispos[e] of [the] entire case.” 16A

Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 3904 (5th ed. 2022).

As a final note, we do not denigrate or dispute the

cross-appeal requirement’s utility, importance, or

Hamer similarly uses the phrase “mandatory claimprocessing rules” when discussing rules the application of which

can be forfeited. 138 S. Ct. at 17.

66a

mandatory nature (when properly invoked). This case

presents unusual circumstances: “Th[e] distinction

between jurisdictional and mandatory rules will not

matter in many cases. After all, a court generally

must enforce a mandatory rule (just as much as a

jurisdictional one) when a party properly invokes it.”

Saleh v. Barr, 795 F. App’x 410, 424 (6th Cir. 2019)

(Murphy, J., concurring); see also Cuevas-Nuno v.

Barr, 969 F.3d 331, 334 n.2 (6th Cir. 2020). All GP

had to do was object that Weyerhaeuser had not

preserved a cross-appeal prior to the panel issuing its

decision, either in a supplemental brief or at oral

argument, 5 and we would have likely enforced the

claim-processing rule.

II. We Adhere to Our Decision Not to Rule on

the Secured Creditor Defense

GP also faults the panel’s original opinion for failing

to address IP’s argument that IP fell within

CERCLA’s secured-creditor exception, and seeks

panel rehearing on the issue. GP Pet. at 11–15. We

deny the motion for panel rehearing. IP’s brief

presented the secured-creditor issue as an

“Alternative[]” avenue through which to reverse the

district court’s decision. IP Br. at 64. GP never, in its

We recognize that precedents of our court indicate that

arguments “raised for the first time at oral argument” can be

forfeited. Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir.

2022) (en banc) (addressing argument raised by amicus for the

first time at en banc oral argument). But “exceptions abound” to

that rule. Huntington Nat’l Bank, 574 F.3d at 331. Had GP

objected at oral argument to Weyerhaeuser’s failure to file a

cross-appeal, the fact that GP and Weyerhaeuser submitted their

briefs on the same day would have counseled in favor of excusing

GP’s failure to present the issue in a brief.

67a

briefing or at oral argument, disputed IP’s

presentation of the issue as an alternative one. As a

result, we adhere to our conclusion in the panel

opinion that, having resolved one of the alternative

bases for reversal, we need not consider the other.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

68a

APPENDIX E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEORGIA-PACIFIC

CONSUMER PRODUCTS LP,

FORT JAMES CORPORATION,

and GEORGIA-PACIFIC LLC,

CASE NO.

1:11-CV-483

Plaintiffs,

HON. ROBERT

J. JONKER

NCR CORPORATION,

INTERNATIONAL

PAPER CO., and

WEYERHAEUSER CO.

Defendants.

PHASE II BENCH TRIAL OPINION & ORDER

I. INTRODUCTION

This case addresses responsibility under the

Comprehensive

Environmental

Response,

Compensation, and Liability Act of 1980 (“CERCLA”)

for clean up of the Kalamazoo River and Portage

Creek in Southwest Michigan among four parties:

Georgia

Pacific,

International

Paper,

and

Weyerhaeuser, all paper companies with mills on the

river–and NCR, the developer and a manufacturer of

carbonless copy paper (“CCP”).

The

river

area

contaminated

with

polychlorinated biphenyls (“PCBs”), a hazardous

69a

substance under CERCLA.

It is contaminated

because the paper mills in the Kalamazoo River

Valley discharged PCBs as part of their waste streams

in the mid to late 20th century. The PCBs were in the

mills’ waste streams because they recycled

wastepaper as a source of pulp, and some of that

wastepaper was NCR’s CCP which contained PCBs.

More specifically, from 1954 to 1971 (“the production

period”), NCR’s CCP was made using Aroclor 1242, a

source of PCBs. To address the potential harm of

PCBs in the environment, the U.S. Environmental

Protection Agency (“EPA”) has declared 80 miles of

the river and portions of the surrounding area a

Superfund Site under CERCLA.

The case involves complex legal and factual

questions, and the Court bifurcated the trial. In

Phase I, the Court determined that all of the parties

are potentially responsible parties under CERCLA.

(ECF No. 432). Georgia Pacific, Weyerhaeuser, and

International Paper are liable as owners or operators

of mills. 42 U.S.C. § 9607(a)(1)–(2). NCR is liable as

an arranger. 42 U.S.C. § 9607(a)(3). In Phase II, the

parties ask the Court to determine the scope of costs

at issue, whether the costs are divisible, and how to

allocate costs among the parties. It was not a short

task; 20 days of trial and thousands of exhibits were

used to present the parties’ positions on the issues.

Based on the parties’ presentations, the post-trial

briefs, and all other matters of record, the Court

renders its decision as to the parties’ share of

responsibility below. The Court concludes each party

has an equitable share of responsibility for past costs

and allocates those costs in the following overall

percentages:

Georgia Pacific 40%; NCR 40%;

70a

International Paper 15%; and Weyerhaeuser 5%. The

Court determines there is too much uncertainty about

the allocation of appropriate future costs at this time,

though a declaratory judgment regarding liability for

these costs will enter as required by statute.

II. FACTUAL BACKGROUND

A. Overview of Operational History

The events at the heart of this case date back

several decades. Much of the information from the

production period is no longer readily available. Many

potential witnesses, such as employees and officers of

the mills, are no longer around to share memories of

long-ago events. Many operational records have been

lost or discarded in the intervening years of mergers,

bankruptcies, and general business practices. The

parties presented a plethora of documents, experts,

and mathematical models in an effort to fill in the

blanks. The trial testimony and exhibits provide

exhaustive background on many topics, but a

streamlined narrative is more fitting to describe the

basis of the Court’s decision. Ultimately, the finderof-fact must draw inferences from the available

evidentiary data points to present a coherent basis for

decision.

1. The Mills

a. The De-Inking Process in General

The paper mills in this case were all engaged, at one

time or another, in the business of recycling NCR’s

CCP. During the production period these mills

operated de-inking mills, which meant that instead of

using virgin wood as its feedstock, the mills used

recycled paper as their primary source of fiber.

Though the exact recycling process differed slightly

71a

from mill to mill, Dr. Woodard explained that

generally the wastepaper was put through a de-inking

process that used a combination of heat, chemicals,

and agitation to remove inks from the paper fibers.

(ECF No. 839, PageID.28479–28482). The resulting

de-inked paper fibers provided the basis for new paper,

much of it fine paper like what this opinion is likely

printed on. (Id.).

Dr. Wolfe testified that not all of the inputs to the

papermaking process at the de-inking mills ended up

as sellable paper products. Instead, the de-inking

process resulted in two “streams.” (ECF No. 838,

PageID.28228–28229). One stream contained the

paper fibers that ultimately went on to become new

paper. The other stream contained the sizeable

amount of waste discharge from the recycling process.

This effluent contained a mix of unusable paper fibers,

ink, clay, caustic soda, and trace metals. Testimony

at trial established that the paper mills sometimes

discharged the waste directly to the Kalamazoo River

or to Portage Creek, but that the mills also used

primary, and then secondary, treatments for its

effluent. Throughout the production period the

effluent sometimes contained PCBs from NCR’s CCP.

Dr. Wolfe also testified that during the de-inking

process gelatin capsules containing the PCBs could

rupture and release PCBs. He explained that PCBs

are hydrophobic, and would primarily attach to the

surface area of solids within the effluent. The PCBs

could be released at several different points. The

capsules could rupture during the de-inking process,

or the capsules could remain intact but release PCBs

through diffusion. Some of the capsules could also

remain intact, but degrade after being discharged in

72a

the effluent. When the capsules degraded in the

environment, they would release PCBs into the river

water and sediment. (ECF No. 838, PageID.28228–

28229).

b. The Kalamazoo River Valley Mills Connected

to this Case

There were a little over a dozen paper mills in the

Kalamazoo River Valley that operated at least for

some time during the production period. Below, the

Court highlights those mills that are at the center of

the case.

i. The Kalamazoo Paper Company Mill

The Kalamazoo Paper Company (“KPC”) operated a

large mill along the Kalamazoo River during the

production period. Georgia Pacific later acquired KPC,

so Georgia Pacific is a responsible party in this case

as the owner and operator of the KPC mill. The KPC

mill was one of the largest de-inking mills on the

Kalamazoo River. Until 1954, the waste from the mill

was discharged directly into the river. (See Tx.

11464). 1 At that time, KPC started operating a

clarifier, which is a form of primary treatment that

allowed residual solids in the mill’s effluent to settle.

The settled residual solids were then removed to

settling ponds and, ultimately, to nearby landfills

adjacent to the Kalamazoo River. (Tx. 4691 at -046).

In 1967, the mill connected to the Kalamazoo Water

Reclamation Plant for secondary treatment of its

wastewater. Secondary treatment typically involves

“Tx” refers to the trial exhibits in this case. Where possible

the Court refers to the specific page of the exhibit using the last

three digits of the Bates number appearing on the exhibit or, if

no Bates number is provided, the sequential pdf page.

73a

using oxygenation to encourage biological breakdown

of the compounds that remain in wastewater after

primary treatment.

ii. The King Mill

A second major de-inking paper mill, the King mill,

was located across the Kalamazoo River from the KPC

mill. The King mill produced similar products in

similar quantities to the KPC mill. It therefore had a

similar output of wastes, both to the Kalamazoo River

and to nearby landfills. Prior to 1955, wastewater

from the King mill was discharged directly to the

Kalamazoo River. (Tx. 4877 at -691). Thereafter the

mill operated a clarifier. (Id. at -696). The mill ceased

its de-inking operations in 1965 and shut down

completely in 1971. (Id. at -732). The King mill was

owned and operated by Allied Paper Company, which

has since gone bankrupt.

iii. The Bryant Mill

The Bryant mill was the third large de-inking mill

in the area. The Bryant mill was owned by the St.

Regis Company, which was later acquired by

International Paper. St. Regis owned and operated

the Bryant mill until 1956, when it leased the mill to

the Allied Paper Company. Allied then purchased the

mill from St. Regis in 1966. International Paper is a

responsible party in this litigation as owner of the mill

while substantial PCB discharges were being made.

Unlike the KPC and King mills that sit on the

banks of the Kalamazoo River, Bryant mill sits next

to Portage Creek, a tributary to the Kalamazoo River.

During the production period Portage Creek was

dammed at Alcott Street which created a pond

approximately 29 acres in size. (Tx. 6574 at 315). The

74a

pond was colloquially known as the Bryant mill pond.

A large portion of the discharges from the Bryant mill,

including many of the discharges from the de-inking

facility, were made into the mill pond. The pond had

relatively tranquil water which meant that some of

the suspended solids in the mill’s effluent settled in

the pond. Those solids that did not settle flowed down

Portage Creek and into the Kalamazoo River,

approximately three miles away. In a sense, the

Bryant mill pond worked as a clarifier. The dam was

sometimes lowered for various reasons, which meant

that settled solids were sometimes stirred up and

released downstream. After St. Regis had transferred

ownership of the mill to Allied, the dam was lowered

for a time in 1972 and then permanently in 1976,

which meant that settled sediment, and PCBs, were

scoured from the pond. The remaining contents of the

pond were removed in a remedial action in 1998. (Tx.

6765).

Bryant mill added an actual primary treatment

system in 1954, and connected to the Kalamazoo

public sewage treatment system for secondary

treatment in 1969. Settled residual solids from

Bryant mill clarifiers were disposed of in nearby

landfills.

iv. Plainwell Mill

The fourth mill in this case is the Plainwell mill,

which is located downstream of the KPC and King

mills on the Kalamazoo River, and downstream of the

confluence of Kalamazoo River and Portage Creek.

The Plainwell mill, also called the Simpson-Plainwell

or the Hamilton mill, was a de-inking mill until 1963,

when it switched to using virgin pulp as its primary

75a

feed source. (ECF No. 840, PageID.28546). In 1954,

the Plainwell mill began operating a primary

treatment system for its effluent and thereafter

experimented with secondary treatment over

different time periods. Although the Plainwell mill

had similar operations to the three mills discussed

above, the mill operated at a smaller scale and

produced substantially less paper as compared to the

KPC, King, or Bryant mills.

The Plainwell mill was owned and operated

between 1954 and 1970 either by Weyerhaeuser or by

companies for which Weyerhaeuser has assumed

liabilities.

Accordingly, Weyerhaeuser is also a

responsible party.

2. NCR and Carbonless Copy Paper

NCR is a multifaceted corporation that was based

in Dayton, Ohio during the production period. In the

early 1950s, NCR developed specialty paper that

allowed people to write or type in duplicate without

messy carbon sheets. NCR started selling this

carbonless copy paper in 1954, and it became a

profitable product line. NCR created CCP by creating

an emulsion with tiny capsules of colorless ink. That

emulsion was coated on the back of a sheet of paper.

A second sheet of paper was coated on its front with a

clay compound, then the two sheets of paper were put

together. When a person wrote or typed on the paper,

the pressure broke the tiny capsules and released the

dye, which reacted with the clay to become dark and

reproduce what was being written. Chris Wittenbrink

testified at trial that the transfer solvent in the

emulsion was made of PCBs, namely Aroclor 1242,

that were purchased from the Monsanto company.

76a

(ECF No. 852, PageID.29783). NCR would pay

independent coating companies to put the emulsion on

paper, and then buy the resulting paper that was then

used to create finished products such as forms,

receipts, and tickets.

(Id.).

In the CCP production process, a sizeable portion of

the paper did not become finished product because it

was trimmed away, had manufacturing defects, or

was otherwise unusable. Spent forms were also

included in waste streams after end users were

finished with them. The unused or discarded material,

called broke and trim, was sold to brokers of recycled

paper, who would sell it to the de-inking mills to use

as feedstock to produce new paper. Broke and trim

CCP was used by mills as one component in mixes of

different feedstock.

At first, CCP was not a good candidate for use as a

feedstock because the de-inking process would

rupture many of the tiny capsules and the ink inside

would react with clays in the mixture. This tended to

give the recycled paper produced from it a bluish tint.

In response, NCR developed a process that allowed deinking mills to wash away most of the capsules before

they ruptured. The capsules containing PCBs were

therefore mostly washed out with the wastewater. At

the end of the production period, in 1971, NCR

switched to a different emulsion to coat its CCP that

did not contain PCBs.

3. The Kalamazoo River’s Contaminants

PCBs were not the only substances the mills

discharged in their waste effluents. Over the years,

measurements of Total Suspended Solids (TSS) and

77a

Biochemical Oxygen Demand (BODs) demonstrated

significant loading to, and burden on, the Kalamazoo

River and Portage Creek. Witnesses at the Phase II

trial testified that during the production period both

the Kalamazoo River and Portage Creek were heavily

polluted. For example John Hesse described the

surveys of Portage Creek he conducted as part of his

work for the State of Michigan. He testified the creek

appeared turbid, and had a consistency and color of a

blueberry milkshake. (ECF No. 829, PageID.27581).

For purposes of this litigation the Court concludes

that PCBs are the contaminant of concern for this

CERCLA site. (ECF No. 806, PageID.24937). NCR

contends the TSS and BOD loading is at least relevant,

both as it relates to determining the mills’ relative

contribution of PCBs to the Superfund Site and to the

mills’ culpability. The Court acknowledges these, and

many other things, may well bear on overall equitable

allocation. However, the Court accepts the testimony

of the regulatory officials that PCBs are driving the

cleanup costs.

Not all PCBs are the same. The Monsanto company

produced and sold a range of PCBs in the United

States. NCR purchased PCBs in the form of Aroclor

1242 (meaning the product contained an average

amount of 42 percent chlorine) from Monsanto and

used Aroclor 1242 to manufacture the emulsion for

use in its CCP. In his deposition Dr. Vodden, a former

Monsanto employee, testified that PCBs with lower

chlorine content tend to be more volatile and break

down relatively quickly in the environment. Higher

chlorinated PCBs, such as Monsanto’s Aroclor 1254

and Aroclor 1260, which are used extensively in

electrical applications, are more stable. (ECF No. 875-

78a

8). Aroclor 1242 was between these two poles. Dr.

Vodden testified that once released into the

environment, the lower chlorinated components could

break down, leaving only the higher chlorinated

components. Therefore, PCBs in the environment

with a lower chlorine content can be consistent with

an original profile of Aroclor 1254.

(Id. at

PageID.31271). Dr. Vodden’s testimony is supported

by an internal Monsanto study that found Aroclor

1242 residues resembled Aroclor 1254 / 1260. (ECF

No. 856, PageID.30164 (citing Tx. 2240 at -379)).

NCR argues that up to a quarter of the PCBs in

environmental samples have a profile consistent with

higher chlorinated PCBs for which its CCP would not

be responsible.

The Court acknowledges the

possibility of some contributions apart from CCP, but

the Court concludes as a matter of fact that the vast

majority of the PCBs are linked to CCP. Moreover,

the Court is satisfied as a matter of fact and law that

there is no proper basis for parsing out the PCBs that

may be unrelated to the CCP. The costs of addressing

the PCBs linked to CCP would not be materially lower

even if there were some way to quantify and then

divide any non-CCP sources of PCBs.

B. The Kalamazoo River Superfund Site

The CERCLA site has been studied by the state of

Michigan and the federal government for decades. Mr.

Hesse testified that in 1965, he worked with Dr.

Knight to research the organic loadings in the river

and the impact of those loadings on the river’s health.

(ECF No. 829, PageID.27537). Mr. Hesse returned to

the area in the early 1970s to perform biological

surveys and narrow down the source of PCBs that

79a

were being discharged into Lake Michigan from the

Kalamazoo River. (ECF No. 829, PageID.27543).

Studies of the river continued, and on May 5, 1989,

the EPA proposed that the Kalamazoo River

Superfund Site (the “Superfund Site”) be placed on the

National Priorities List (“NPL”). The EPA then listed

the Site on August 30, 1991.

(ECF No. 806,

PageID.24937). In his deposition, James Saric, an

EPA remedial project manager at the Superfund Site,

testified that PCBs were the toxic substances used to

evaluate whether the area should be placed on the

NPL. When the area ultimately was listed, PCBs

were in fact the substances that justified the listing.

(ECF No. 875-10, PageID.31310–31311). The EPA

further determined that the major historical source of

PCBs in the Kalamazoo River were wastewater

discharges from the paper industries. (ECF No. 87510, PageID.31322; see also Tx. 2461 at -953).

The Superfund Site in total includes approximately

eighty miles of the Kalamazoo River (from Morrow

Dam to Lake Michigan) and roughly three miles of

Portage Creek running up from its confluence with

the Kalamazoo River past the Bryant and Monarch

mills. It further includes disposal areas, adjacent

river banks and contiguous flood plains, all of which

are contaminated with PCBs. The EPA has divided

the Superfund Site into several current or former

operable units (“OUs”) to manage, study, and cleanup

the Superfund Site. The river itself is OU5, and is

divided into seven separate work areas tied mostly to

current or former dams. The EPA has provided a

detailed description of each operable unit (Tx. 2175)

and this Section provides a short summary of those

80a

units. An overview map of the superfund site is

attached as Exhibit A.

1. Unit Associated Mostly with International

Paper: Operable Unit 1

OU1 covers 89 acres along Portage Creek. The unit

includes the Bryant mill pond and former operational

areas for the Bryant mill and the Monarch mill. 2 The

former operational areas include dewatering lagoons,

a landfill, and 19-acre disposal area that received

dewatered paper mill residuals from the dewatering

lagoons. (Tx. 5683 at 17–20). OU1 received paper mill

waste from the Bryant and Monarch mills until the

late 1980s. The EPA performed a Time-Critical

Removal Action (“TCRA”) in 1998 to remove PCB

contaminated sediments from the Bryant mill pond

portion of OU1. (Tx. 6419 at -768). Other actions

include the collection of groundwater, which is sent to

the Kalamazoo Wastewater Treatment Plant. (Tx.

2175 at 20). The EPA released a feasibility study for

OU1 in January 2015, and in September 2015 the

EPA issued a proposed remedial action plan. (Tx.

9853). A final remedy has not yet been selected.

2. Units Associated Mostly with Georgia Pacific

a. Operable Unit 2

OU2 involves approximately 32 acres consisting of

two inactive disposal areas, and is contaminated with

PCBs from the recycling of NCR’s CCP. OU2 is

located on the south side of the Kalamazoo River and

is upstream from the confluence of the Kalamazoo

The Monarch mill was a de-inking mill operated by Allied

and located along Portage Creek. (Tx. 6334 at -691 & -692). Like

the Bryant mill, effluent from its clarifier was discharged above

the Bryant mill pond. The mill ceased de-inking in 1957.

81a

River and Portage Creek. The operable unit includes

the Willow Boulevard and A-Site Landfills that were

used to dispose of dewatered papermaking residuals

from the King and KPC mills. (Tx. 4691 at -046).

Those landfills received paper waste from the mills

during the 1960s, ‘70s and ‘80s. Over the years PCBs

from the landfills have eroded into the soil and

sediment either adjacent to or in the Kalamazoo River.

Remedial action at OU2 began in May 2011 and

was completed in June 2014. (Tx. 9431 at 27). Garry

Griffith, a Georgia Pacific environmental engineer,

testified that the history of remedial work at OU2

included excavation of materials containing PCBs,

construction of a cover system, stabilization of banks

and berms, installation of a groundwater monitoring

network, establishment of erosion controls, and

establishment of procedures for long-term monitoring

programs. (ECF No. 831, PageID. 28011–28013).

Future activities in the unit include operation,

maintenance, and continued monitoring.

b. Operable Unit 3

OU3 covers roughly 23 total acres of the Superfund

Site and includes the King Highway Landfill,

approximately 7 acres of former dewatering lagoons

on the former KPC mill site, and the King Street

storm sewer. The King Highway lagoons received

paper mill waste from the KPC Mill from the late

1950s until 1977. KPC continued to deposit paper mill

waste at the landfill from 1977 through 1997. Like

the disposal areas in OU2, PCBs have migrated via

erosion or surface water runoff from the landfills into

adjacent areas and the Kalamazoo River. (Tx. 2175 at

28–29). Erosion of the landfills, in general, was

82a

discussed at trial by Mr. Hesse. Mr. Hesse testified

that he observed the landfills during his study with

Dr. Knight and saw that they extended down to the

water. (ECF No. 829, PageID.27610).

A record of decision, or ROD, for OU3 was issued in

1998. (Tx. 6410). Georgia Pacific conducted remedial

response activities at OU3 from 1996 to 2003. The

response activities included the installation of

sheetpiling, removal of PCB-contaminated soils,

sediment, and paper residuals, and the construction

of a final cover system at the Landfill. (Tx. 2175, at

41–43). Georgia-Pacific completed the final remedy

for OU3 in 2003.

c. Operable Unit 6

There is currently no OU6 in the Superfund Site.

The former OU6 was located north of OU2, across the

Kalamazoo River. It included the former KPC and

Hawthorne Mill properties. 3 Mr. Griffith testified

that between 2000 and 2009 a removal action was

conducted that removed residual solids from the mill

lagoons. After the completion of the work, Georgia

Pacific petitioned the EPA to have the mill property

delisted from the Superfund Site. (ECF No. 831,

PageID.28024–28025). The petition was granted on

June 30, 2009, after the EPA determined the mill

property was no longer a source of PCBs to the river.

The Hawthorne mill was located along the Kalamazoo

River between the Morrow Dam and the river’s confluence with

Portage Creek. The mill was a fine paper mill, but its owners

state it did not recycle NCR’s CCP. (Tx. 11786). The EPA has

stated it is unclear whether de-inking occurred at the mill. (Tx.

4118 at -668). PCBs were detected in a waste sludge discharge

pipe at the mill. (Id.). Georgia Pacific purchased the former mill

property in 1978.

83a

(Tx. 2175 at 7). Accordingly the EPA does not

currently have an OU6 at the Superfund Site. (Id.) If,

however, investigations at any of the remaining paper

mill properties result in a determination that those

properties are a source of PCB contamination, the

EPA will designate that property as OU6. (Id.)

3. Units Associated Mostly with Weyerhaeuser

a. Operable Unit 4

OU4 is located on the west side of the Kalamazoo

River immediately downstream from the Plainwell

Dam. OU4 includes the 12th Street Landfill, which is

approximately 6.8 acres in size, and other associated

areas, all of which were contaminated by PCBs from

NCR’s CCP.

The landfill is bordered by the

Kalamazoo River and wetlands to the North. OU4

received paper mill waste, some of which contained

PCBs, from the Plainwell mill from approximately

1955 until 1981. 4 The landfill was closed in 1984. (Tx.

7821 at -991). Mr. Gross testified Weyerhaeuser

Company completed the remedial actions in OU4 in

2012, subject to ongoing operations and maintenance.

(ECF No. 846, PageID.29096; see also Tx. 7821 at 972).

b. Operable Unit 7

OU7 encompasses 35 total acres and includes the

former Plainwell mill property which is located on the

west side of the Kalamazoo River and upstream from

the Plainwell dam. The unit is further divided into

three historical operational areas including the mill

buildings and dewatering lagoons that contained

After the production period, residual solids from the

lagoons were removed and placed in the landfill.

84a

residual solids contaminated by PCBs. (Tx. 7815 at 001).

Weyerhaeuser has completed a Remedial

Investigation / Feasibility Study for OU7 (Id.) and the

EPA has issued a Record of Decision (Tx. 8015). Mr.

Gross

testified

Weyerhaeuser

has

already

implemented some of these remedial actions and will

continue that work. (ECF No. 846, PageID.29097).

4. The Unit Associated With all Parties: Operable

Unit 5

OU5 is the river portion of the site. It includes the

80 miles of the Kalamazoo river and a 3 mile stretch

of Portage Creek. OU5 is contaminated with NCR’s

PCBs from the paper mills’ effluents.

For purposes of its removal and remediation

activity, the EPA subdivided OU5 into seven work

areas. (Tx. 2175 at 76). Area 1 covers the lower

portion of Portage Creek as well as a portion of the

Kalamazoo River from Morrow dam downstream to

the Plainwell dam. Work Area 1 is further subdivided

into Area 1A for the stretch of Portage Creek from

below the Bryant Mill dam to Portage Creek’s

confluence with the Kalamazoo River; Area 1B for the

stretch of Kalamazoo River between the Morrow dam

and the confluence of Portage Creek with the

Kalamazoo River; and Area 1C for the stretch of the

Kalamazoo River between the confluence of Portage

Creek with the Kalamazoo River down to the

Plainwell dam. The EPA has approved the remedial

investigation report and feasibility study for Area 1.

The other areas are: Area 2 for the Kalamazoo

River from Plainwell dam downstream to the Otsego

City dam; Area 3 for the Kalamazoo River from Otsego

City dam downstream to Otsego dam; Area 4 for the

85a

Kalamazoo River from Otsego dam downstream to

Trowbridge dam; Area 5 for the Kalamazoo River from

Trowbridge dam downstream to Allegan City dam;

Area 6 for Lake Allegan; and Area 7 for the Kalamazoo

River from Allegan dam downstream to Lake

Michigan.

There have been several TCRAs conducted in order

to remove PCB-impacted sediments and flood plain

soils from the river unit.

(ECF No. 806,

PageID.24939). Two TCRAs involved the former

Plainwell impoundment and Plainwell dam No. 2

impoundment. The Plainwell impoundment TCRA

was funded by Georgia Pacific and Millennium

Holdings LLC.

Work began in 2007 and was

completed in 2009. The Plainwell dam No. 2 area

TCRA began work in 2009 and was completed in 2010.

(Id.) Work on the third TCRA was completed in 2013

and covered PCBimpacted sediment in Portage Creek

between the Bryant mill dam and the creek’s

confluence with the Kalamazoo River. A forth TCRA

removed contaminated solids from the Bryant mill

pond. (ECF No. 875-10, PageID.31324).

Except for Area 1, the EPA has not finalized a

remedy for any portion of OU5. Chase Fortenberry, a

project manager for the Superfund Site, testified that

the EPA issued a ROD for Area 1 on September 28,

2015. (ECF No. 831, PageID.28057). The approved

remedy includes removing contaminated sediment

and flood plain soils in the work area, engineering and

institutional controls, and monitored natural recovery.

(Tx. 9881).

86a

III. PROCEDURAL HISTORY

In 2010, Georgia Pacific brought this CERCLA

action seeking recovery from International Paper,

NCR, and Weyerhaeuser for its past and future costs

related to its investigation and cleanup activities. The

parties engaged in extensive factual and expert

discovery over the next three years. Given the size

and complexity of the case, the Court bifurcated the

trial into two phases. The Court devoted Phase I to

the determination of the parties’ liability under

CERCLA. Phase II, which is at issue here, focused on

the allocation of damages among the responsible

parties.

After a bench trial, the Court resolved Phase I by

issuing an Opinion and Order on September 26, 2013.

In that decision, the Court found all the parties were

liable under CERCLA. (ECF No. 432). Both Georgia

Pacific and Weyerhaeuser had acknowledged their

responsibility as owners and operators of de-inking

mills during the production period, so the focus there

was on the remaining two parties. In the Phase I

decision, the Court determined that both NCR and

International Paper were also liable: NCR as an

arranger and International Paper as an owner or

operator (or both). Id.

The Court held that NCR is liable as an arranger in

this case because it supplied CCP broke and trim to

the de-inking mills, and the broke and trim contained

PCBs. As a result, the mills used the broke and trim

as part of their repulping operations and released

PCBs to the river. At least some of the broke

generated by NCR and its coaters reached the

Superfund Site. (ECF No. 432, PageID.12746–12747).

87a

Of course all, or virtually all, of the PCB-containing

wastepaper is ultimately traceable back to NCR

because NCR developed and controlled the

proprietary process for the PCB-containing CCP.

The Court held that the PCB-containing waste was,

at least originally, a product the paper mills were

willing to pay for as feed for their recycling businesses.

But by no later than 1969, NCR knew that the CCP

scrap was not useful for a fully informed buyer.

Rather, it was a worthless waste product at best, and

a serious environmental hazard and liability at worst.

(Id. at PageID.1274312744). NCR did not disclose this

knowledge to the paper industry. Instead it continued

to sell CCP broke and trim to brokers and recyclers

even though it knew that the wastepaper was an

environmental and economic liability. More than that,

NCR actively attempted to conceal the hazards

associated with CCP wastepaper from recyclers, the

public, and the government by delaying public

announcement and minimizing the significance of

what it was learning. (See id. at PageID.12745). Even

after an NCR-affiliate in the UK stopped circulating

the waste in the UK, NCR continued feeding the

market in the U.S.

The Phase I decision also determined that

International Paper is liable as an owner or operator

because it is the successor-in-interest to St. Regis, who

was the owner of the Bryant Mill at a time when the

Mill was recycling CCP and thereby disposing of PCBs

at the Superfund Site. (Id. at PageID.12756). None

of the ownership and disposal facts were seriously

contested. Rather, International Paper argued that

St. Regis’s ownership fell within a statutory exception

to ownership held primarily to secure a loan. The

88a

Court found the exception inapplicable. (Id. at

PageID.12755–12756). As such, International Paper,

as the successor-in-interest to St. Regis, qualified as

the owner of the Bryant mill for purposes of CERCLA

liability. (Id. at PageID.12756).

Having determined liability, the matter proceeded

to Phase II. There Georgia Pacific asked the Court to

determine the parties’ share of responsibility for its

past costs as well as to allocate the parties’

responsibility for future costs.

IV. Claimed Costs & Statute of Limitations

Before proceeding with the Phase II analysis, the

Court will first discuss the total amount in past costs

Georgia Pacific avers it has spent before the Phase II

trial. Then the Court will determine the total

approximate costs it concludes are not time-barred,

are proper claimed costs under CERCLA, and are

consistent with the National Contingency Plan.

A. Georgia Pacific’s Initial Claimed Costs

At trial, Roger Hilarides testified that Georgia

Pacific was seeking to recover approximately 105.5

million dollars in response costs spent at the

Superfund Site. (ECF No. 831, PageID.278986). The

chart below provides an overview by operable unit of

the amounts Georgia Pacific claims to have spent

through September of 2014 and is seeking to recover

in Phase II. (Tx. 2617). 5

During Phase II, Mr. Hilarides testified that Georgia

Pacific has spent an additional two to three million dollars since

September 2014 (ECF No. 831, PageID.27897). In filings after

trial, Georgia Pacific avers it has spent several million dollars

more.

Cost

Category

Location

OU5-Central

OU5-East

OU5-General

Costs

$293,1 13.28

$406,8 60.72

$12,316,472.68

1990 AOC

OU5-Portage

Creek

OU5-West

$8,814.81

$3,542.70

($395,165.4

($6,200.54)

($1,025,000.

00)

$2,889,076.03

$17,825,746.76

OU5-Central

$2,895,276.57

$18,8

50,746.76

$7,3 77,52 6.38

OU5-East

$8,524.61

OU5-General

$8,487,789.11

($89,357.02)

$8,398,432.09

OU5-Portage

Creek

OU5-West

$38,570.03

$5,704,008.43

1990 AOC

2007 Plainwell

TCRA

2007 SRI/FS

AOC

2007 SRI/FS

AOC

2007 SRI/FS

AOC

2007 SRI/FS

AOC

2007 SRI/FS

AOC

Credits

Net Total

$293,113.28

$403,318.02

$11,921,307.22

$8,814.81

$7,377,526.38

89a

GeorgiaPacific’s OU5

Costs

Order

1990 AOC

Cost

Category

GeorgiaPacific’s OU2

Costs

Order

1990 AOC

N/A (20072009 Costs)

2007

Termination

AOC

Location

OU5-General

Costs

$167,817.10

Credits

($94,001.36)

Net Total

$73,815.74

OU5-General

$1,845,000.00

OU5-Central

$8,828,123.79

$6,828,627.04

OU5-General

($1,999,496.

75)

($1,581,250.

00)

SUBTOTA

Location

OU2

Costs

$4,434,433.48

$598,857.68

$953.93

($1,581,250.00)

$62,034,630.44

Credits

Net Total

$4,434,433.48

$598,857.68

$953.93

90a

Cost

Category

Order

2007

Termination

AOC

2008 Response

Cost AOC

2009 Plainwell

No. 2 TCRA

N/A (Mead.

Rock-Tenn)

Cost

Category

Order

2009 Consent

Decree

Location

OU2

Costs

$15,628,975.64

Credits

SUBTOTAL

Cost

Category

Cost

Category

GeorgiaPacific’s Mill

Property

(OU6) Costs

$20,663,220.7

Order

1990 AOC

2000 AOC

Location

OU3

Costs

$5,960,703.58

$5,985,341.70

Credits

SUBTOTAL

Net Total

$5,960,703.58

$5,985,341.70

$11,946,045.2

Order

1990 AOC

Location

GP Mill

Property

GP Mill

Property

Costs

$1,778,538.82

Credits

($2,259.55)

Net Total

$1,776,279.27

$3,611,485.47

2006 GP Mill

Property

TCRA

91a

GeorgiaPacific’s OU3

Costs

Net Total

$15,628,975.64

Cost

Category

Order

2007

Termination

AOC

N/A (Gould

Paper Corp.

Settlement)

Location

GP Mill

Property

Costs

$3,017.18

GP Mill

Property

Credits

Net Total

$3,017.18

($100,000.00)

SUBTOTAL

$5,290,781.92

92a

Cost

Category

Order

1990 AOC

N/A (RockTenn

Settlement)

OU5-General

OU5-Portage

Creek

OU5-West

OU 5-General

TOTAL COSTS CLAIMED:

TOTAL CREDITS CLAIMED:

NET TOTAL CLAIMED:

Costs

$13,369.32

Credits

Net Total

$13,369.32

$94,349.59

$103,254

.21

$4,309,939.58

$670.86

($1,518.30)

$94,349.59

$101,735.91

($9,636.49)

$4,300,303.09

$670.86

$1,099,968.95

($2,657.37)

($81,250.00)

$1,097,311.58

($81,250.00)

SUBTOTAL

$5,526,490.35

$110,852,504.26

($5,391,335.54)

$105,461,168.72

93a

Ft. James’s

Costs

Location

Ft. James Mill

Property

OU5-Central

OU5-East

94a

B. Statute of Limitations

In 2014, on the eve of the Phase II trial, the Sixth

Circuit clarified the relevant statute of limitations for

filing an action for contribution under Section 113(f).

In Hobart Corp. v. Waste Management of Ohio, Inc.,

the Sixth Circuit held that:

Actions for contribution under § 113(f) must be

filed within three years of “(A) the date of

judgment in any action under [CERCLA] for

recovery of such costs or damages, or (B) the date

of an administrative order under [§ 122(g)]

(relating to de minimis settlements) or [§ 122(h)]

(relating to cost recovery settlements) or entry of

a judicially approved settlement with respect to

such costs or damages.”

758 F.3d 757, 763 (6th Cir. 2014) cert. denied, 135 S.

Ct. 1161 (2015). Moreover, the Sixth Circuit held that

responsible parties must seek reimbursement in the

form of a contribution action under Section 113(f),

rather than a direct cost recovery under Section 107 if

they met one of Section 113’s statutory triggers. Id.

at 767.

Based on the Sixth Circuit’s holding in Hobart, the

Defendants moved for summary judgment. The

Defendants argued that prior litigation in 2010, to

which Georgia Pacific was a party, triggered the

company’s obligation to assert Section 113(f)

contribution claims against Defendants within three

years of that date. Therefore, Defendants argued all

of Georgia Pacific’s claims were now time-barred. In

the alternative, Defendants claimed that several

administrative agreements entered into by Georgia

Pacific (1990 AOC, 2006 ASAOC, 2007 ASAOC for

95a

RI/FS, and the 2007 ASAOC for Plainwell) triggered

the statute of limitations period, resulting in at least

some of the contribution claims being time-barred.

On August 12, 2015, this Court issued its Order on

Defendants’ motions for summary judgment. (ECF

No. 787). The Court held that the 2010 litigation did

not trigger Georgia Pacific’s duty to assert its claims

under Section 113(f), and that its claims were

therefore not time-barred in their entirety. As to the

costs associated with the administrative agreements,

the Court held that the 1990 AOC by itself, and even

when read in conjunction with the 2007 Order by

Consent, did not constitute “administrative

settlements” for purposes of triggering the Section 113

three-year statute of limitations. As such, the Court

denied Defendants’ motion for summary judgment

relating to Georgia Pacific’s costs under the 1990 AOC

for removal actions in OU5, OU2, and OU6. These

costs were not time-barred in a Section 107 costrecovery action. Similarly, the expenses related to

OU3 were not time-barred under Section 113 because

the contribution statute did not trigger them.

However, under the timing rules for Section 107, the

OU3 costs were time-barred, as even Georgia Pacific

conceded, so the Court entered summary judgment on

those costs.

As to the costs associated with the 2006 ASAOC,

2007 ASAOC for RI/FS, and the 2007 ASAOC for

Plainwell, the Court held that those agreements

constituted “administrative orders” for purposes of

Section 113’s statute of limitations under the Sixth

Circuit’s holding in Hobart. Therefore, the statute of

limitations on Georgia Pacific’s claims under these

agreements had run, and the Court granted summary

96a

judgment for costs falling under those agreements to

the Defendants.

C. Claimed Costs After

Limitations Ruling

the

Statute

After the Phase II trial, Georgia Pacific amended its

cost calculations. Per Georgia Pacific’s post-trial

briefing, the Court’s Order on Defendants’ motions for

summary judgment resulted in the following costs

(net of credits) being time-barred (ECF No. 882,

PageID.31888):

Category

2007 Plainwell TCRA

2007 SRI/FS

2006 GP Mill Property

TCRA

OU3 Costs

Total:

Cost

$17,825,746.76

$21,523,518

$3,511,486

$11,946,045

$54,806,796.35

The chart below updates the earlier chart of the

amounts Georgia Pacific claims it has spent by

operable unit by adding in those costs that are now

time-barred:

Cost

Category

Order

1990 AOC

2007

Plainwell

TCRA

2007

SRI/FS

AOC

2007

SRI/FS

AOC

($3,542.70

)

($395,165.

46)

$2,895,27

6.57

$18,850,7

46.76

($6,200.54

)

($1,02

5,000.00)

$2,889,076

.03

$17,825,74

6.76

($17,825,7

46.76)

OU5Central

$7,377,52

6.38

$7,37

7,526.38

($7,377,52

6.38)

$0.00

OU5-East

$8,524.61

($8,524.61

)

$0.00

OU 5General

OU5Portage

Creek

OU 5-We

OU5-West

Credits

$2,889,07

6.03

$0.00

97a

GeorgiaPacific’s

OU5

Costs

$293,113.

$406,860.

$12,316,4

72.68

$8,814.81

Location

OU5Central

OU5-East

Time

Barred

Net

Recoverabl

$293,113.

$403,318.

$11,921,3

07.22

$8,814.81

Net

Claim

$293,113.2

$403,318.0

$11,921,30

7.22

$8,814.81

Cost

Category

Location

OU 5General

Costs

$8,487,78

9.11

Credits

($89,357.0

OU5Portage

Creek

OU 5-We

$38,570.0

$38,570.03

($38,570.0

$0.00

$5,704,00

8.43

$5,704,008

.43

($5,704,00

8.43)

$0.00

OU 5 General

$167,817.

($94,001.3

$73,815.74

$73,815.7

OU 5General

$1,845,00

0.00

$1,845,000

.00

$1,845,00

0.00

OU5Central

$8,828,12

3.79

($1,999,49

6.75)

$6,828,627

.04

$6,828,62

7.04

98a

Order

2007

SRI/FS

AOC

2007

SRI/FS

AOC

2007

SRI/FS

AOC

2007

Terminati

on AOC

2008

Response

Cost AOC

2009

Plainwell

No. 2

TCRA

Net

Time

Recoverabl

Barred

($8,398,43

$0.00

2.09)

Net

Claim

$8,398,432

.09

Cost

Category

Order

N/A

(Mead/Roc

k-Tenn)

Location

OU 5 General

Costs

Credits

($1,581,25

0.00)

SUBTOTAL

Georgia

Pacific’s

OU2

Costs

Order

1990 AOC

Location

OU2

NA (2007

– 2009

Costs)

2007

Terminati

on AOC

2009

Consent

Decree

OU2

Costs

$4,434,43

3.48

$598,857.

Credits

Time

Barred

$62,034,6

30.44

($39,352,8

08.30)

Net

Claim

$4,434,43

3.48

$598,

857.68

Time

Barred

$22,681,8

22.14

Net

Recovera

ble

$4,434,43

3.48

$598,857.

OU2

$953.93

OU2

$15,628,9

75.64

$15,628,9

75.64

$15,628,9

75.64

99a

Cost

Category

Net

Recoverabl

$1,581,25

0.00

Net

Claim

($1,581,25

0.00)

Cost

Category

Cost

Category

Cost

Category

Georgia

Pacific’s

Mill

Property

Location

Order

1990 AOC

Location

OU3

2000 AOC

OU3

Costs

$5,960,70

3.58

$5,985,34

1.70

Time

Barred

($0)

Net

Claim

$5,960,70

3.58

$5,985,34

1.70

$11,946,0

45.28

Time

Barred

($5,960,70

3.58)

($5,985,34

1.70)

($11,946,0

45.28)

Net

Claim

$1,776,27

9.27

$3,611,48

5.47

Time

Barred

Credits

SUBTOT

Order

1990 AOC

2006 GP

Mill

Location

GP Mill

Property

GP Mill

Property

Costs

$ 1,778,53

8.82

$3,611,48

5.47

Credits

($2,259.55

)

($3,611,48

5.47)

Net

Recovera

ble

$20,663,2

20.73

Net

Recovera

ble

Net

Recovera

ble

$1,776,27

9.27

100a

Georgia

Pacific’s

OU3

Costs

Order

Net

Credits

Claim

SUBTOTAL $20,663,2

20.73

Cost

Category

(OU6)

Costs

Credits

Net

Recovera

ble

Time

Barred

Location

Costs

GP Mill

Property

$3,017.18

GP Mill

Property

($100,000.

00)

($100,000.

00)

($100,000.

00)

SUBTOTAL

5,290.781.

($3,611,48

5.47)

$1,679,29

6.45

101a

Order

Property

TCRA

2007

Terminati

on AOC

N/A/

(Gould

Paper

Corp.

Settlemen

Net

Claim

Cost

Category

Order

1990 AOC

N/A

(RockTenn

Settlemen

OU5General

OU5Portage

Creek

OU5-West

OU5General

Time

Barred

($1,518.30

)

($9,636.49

)

$94,349.5

$101,735.

$4,300,30

3.09

$670.86

($2,657.37

)

($81,250.0

$1,097,31

1.58

($81,250.0

Costs

$13,369.3

Credits

$94,349.5

$103,254.

$4,309,93

9.58

$670.86

$1,099,96

8.95

Net

Recovera

ble

$13,369.3

$94,349.5

$101,735.

$4,300,30

3.09

$670.86

$1,097,31

1.58

($81,250.0

102a

1990 AOC

Fort

James’s

Costs

Location

Ft. James

Mill

Property

OU5Central

OU5-East

Net

Claim

$13,369.3

SUBTOTAL

$5,526,49

0.35

TOTAL COSTS CLAIMED

$5,526,49

0.35

$110,852,504.26

TOTAL CREDITS CLAIMED

($5,391,335.54)

NET CLAIMED

$105,461,168.72

TIME BARRED

($54,910,339.05)

NET RECOVERABLE

$50,550,829.67

The Court’s calculation of the time-barred costs relating to the 2007 SRI/FS AOC differs slightly from the

costs that Georgia Pacific provided in its Post Phase II Trial Brief (ECF No. 882, PageID.31888) and in its

proposed findings of fact (ECF No. 883, PageID.32089). The Court uses the numbers as provided by Georgia

Pacific in its Proposed Findings of Fact (ECF No. 801) and applies the statute of limitations consistent with its

ruling. There are a lot of moving parts, and some amounts may be misclassified. As stated below, the Court

will require the parties to submit a Proposed Judgment consistent with its allocation ruling, which may clarify

and correct–or at least frame disputes–over any necessary adjustments.

103a

Based on its amended cost calculations, The Court finds Georgia Pacific currently seeks a net

recovery of approximately $50,650,829.67 in non-time-barred past costs. 1

104a

D. Consistency with NCP

Having determined the amount of non time-barred

past costs that Georgia Pacific seeks to recover, the

Court moves on to determine whether all those past

costs may be recovered under CERCLA. Specifically,

in order to recover under CERCLA, a private plaintiff

bears the burden of showing by a preponderance of the

evidence that the costs it seeks are necessary and

consistent with the EPA’s National Contingency Plan.

See 42 U.S.C. § 9607(a)(4)(B). “A cleanup will be

consistent . . . if, taken as a whole, it is in ‘substantial

compliance’ with 40 C.F.R. § 300.700(c)(5)–(6), and

results in a “CERCLA-quality cleanup.” Franklin Cty.

Convention Facilities Auth. v. Am. Premier

Underwriters, Inc., 240 F.3d 534, 543 (6th Cir. 2001).

A “CERCLA-quality cleanup” is a response action

that (1) protects human health and the

environment, (2) utilizes permanent solutions

and alternative treatment technologies or

resource recovery technologies to the maximum

extent practicable, (3) is cost-effective, (4)

satisfies Applicable and Relevant or Appropriate

Requirements (“ARARS”) for the site, and (5)

provides opportunity for meaningful public

participation.

Id.

Several witness for Georgia Pacific, such as Roger

Hilarides, described the costs incurred and how those

were handled and documented.

Mr. Hilarides

testified that Georgia Pacific began tracking its costs

in 1990 with the formation of the Kalamazoo River

Study Group and that Georgia Pacific regularly made

entries in its databases to record and preserve the

105a

response costs it incurred at the Superfund Site.

(ECF No. 831, PageID.27890).

Mr. Hilarides

testimony is supported by the testimony of Garry

Griffith, who stated he would review invoices from

Georgia Pacific’s contractors to make sure they were

consistent with the agreement that applied to the

work, and then submit the invoice to his supervisor.

Once the invoice was approved by the supervisor, it

was submitted for payment, which would be recorded

in Georgia Pacific’s databases.

(ECF No. 831,

PageID.28001–28002). Mr. Saric also testified the

EPA approved several cleanup actions and that the

EPA believed each of them was reasonable and

necessary. (ECF No. 875, PageID.31320–21).

The Court finds that Georgia Pacific has

established by a preponderance of the evidence that it

incurred reasonable costs that were consistent with

the NCP. In fact, nearly all of the non time-barred

past costs incurred by Georgia Pacific at the

Superfund Site are necessary and consistent with

NCP. The costs are well documented and are in

substantial compliance with the regulations. There

are two exceptions. At trial, Dr. David Johns, a

witness for Weyerhaeuser, identified $643,889 in

costs Georgia Pacific incurred to study natural

resource damages. (ECF No. 849, PageID.29530–

29532; see also Tx. 8054).

This amount was

“essentially the same” as that found by NCR’s witness,

Jeffrey Zelikson. (ECF No. 861, PageID.30614). The

Court has held that natural resource damages are

outside the scope of this case. (ECF No. 547,

PageID.15191). The Court credits Dr. Johns and Mr.

Zelikson’s testimony on this point and so

approximately $643,889 in general costs for

106a

Operating Unit 5 are removed from what Georgia

Pacific can recover from other parties in this action.

Mr. Zelikson also identified $340,059 in costs that are

more properly described as advocacy than response

costs. (ECF No. 861, PageID.30615). The Court

credits this testimony as well and therefore a further

amount of $340,059 in general costs are also removed

from what Georgia Pacific may recover.

Both Dr. Johns and Mr. Zelikson, as well as other

witnesses for the Defendants such as Raymond Dovell

and Robert Rock, identified additional response costs

that the Defendants contend were not adequately

documented and /or are not necessary and consistent

with NCP. The Court is not persuaded by this

testimony. NCP is not a high bar, and the burden on

Georgia Pacific to show consistency with NCP is

simply a preponderance of the evidence.

The

argument Georgia Pacific advanced on cross with

these witnesses was that there was enough

information documenting its incurred costs from the

context of the materials and invoices submitted and

maintained, and the Court agrees. Furthermore, once

consistency with NCP is established, CERCLA

defendants are usually subject to joint and several

liability. Thus to the extent the parties seek further

detail of allocation by area, it is up to the defendants

to carve up the costs and establish divisibility, if they

can.

Finally, Georgia Pacific has received insurance

payments to help cover liability costs at 23 sites,

including the Kalamazoo River. The other parties

would have that amount taken away from what

Georgia Pacific can seek in reimbursement to avoid a

possible double recovery by Georgia Pacific. NCR

107a

offered the testimony of Professor Ken Abraham who

stated that Georgia Pacific received a total of

$69,852,000 in insurance proceeds associated with its

settlements.

Professor

Abraham

provided

information on how insurance payments worked, and

the role that offsets play to prevent double recovery.

(ECF No. 861, PageID.30633–30634). The Court does

not see the concern of double recovery present in this

case. There is no risk of double payment because: 1)

Georgia Pacific has incurred costs that, by operation

of the Court’s statute of limitations ruling, it is not

able to recover from the parties in sums that would

amount to double payment; and 2) the insurance

settlement involved over 20 sites that are not part of

this case.

Furthermore, Georgia Pacific paid

insurance premiums to help cover events like this,

and it encourages prudent insurance coverage to allow

the company to receive at least some benefit from the

coverage it paid for.

Accordingly the Court finds a total of approximately

$983,948 in claimed costs are not necessary and

consistent with NCP. Accounting for the previous

calculations, the Court finds a total past cost amount

of approximately $49,666,881.67 that is non-timebarred and consistent with NCP. With the total

amount of recoverable past costs established, the

Court moves on to the parties’ arguments on whether

that amount is divisible, and how it should be

allocated.

V. SUMMARY OF THE PARTIES’

CONTENTIONS

Georgia Pacific acknowledges that the paper mills

appropriately bear some responsibility for cleanup,

108a

but insists the most culpable wrongdoer is NCR. NCR

developed the PCB-containing paper and fed it into

the repulping stream. It continued to do this even

after it learned of the risks, and the mills did not. In

fact, Georgia Pacific believes NCR concealed what it

knew and this makes NCR uniquely culpable (and

principally responsible) for its costs. Georgia Pacific

further contends the mills’ responsibility should be

apportioned principally on volume estimates because

precise calculations, such as year by year discharge

calculations, are not possible. Finally, Georgia Pacific

suggests that any allocation to Georgia Pacific should

reflect credit for its proactive and constructive

engagement with the authorities, and its overall

efforts to address PCB contamination at the

Superfund Site.

NCR disputes the basis for arranger liability. But

even assuming it is an arranger, NCR says its share

of responsibility must be limited to the factual

premises of its liability and apportioned accordingly.

In NCR’s view, only a small fraction of CCP can even

arguably be traced from NCR to the Kalamazoo Valley,

and the majority of NCR’s broke and trim was

recycled at the Fox River.

Applying layers of

mathematical analysis, NCR isolates its maximum

exposure to 2% of the total PCB load in the Superfund

Site. And even as to this load, NCR contends that the

paper mills are more culpable than NCR because the

mills were the parties that actually put the waste into

the river. Finally NCR contends that any allocation

must take into account the operational decisions of the

paper mills, and the fact that the mills benefitted from

recycling CCP.

109a

International Paper also contests the basis for its

liability as successor to St. Regis. But even assuming

it’s liable, International Paper says it is not an

actively culpable party. Rather, it is simply a

technical legal successor to a mill operation that

discharged to a tributary creek and to the Bryant mill

pond where most of the solids settled. According to

International Paper, the operation of the mill pond

meant that most of the PCBs International Paper is

responsible for never reached the Kalamazoo River.

Moreover, International Paper says its predecessor’s

loading was nowhere near as high as other parties

suggest. And International Paper further argues

Georgia Pacific’s laches uniquely harmed it. Based on

all these considerations, and more, International

Paper argues it should receive only a minimal

allocation.

Weyerhaeuser admits liability, but says it has

already contributed more than it could possibly be

responsible for based on any rational allocation of past

costs because it is accountable only for the Plainwell

mill’s discharges, and all parties agree the mill

discharged significantly less effluent than the other

mills. Weyerhaeuser states it has already paid over

$10 million to clean up the area by the Plainwell

operation. This is more than enough, it says, to cover

whatever allocation could fairly be made against it.

VI. PHASE II ANALYSIS

A. Legal Standards

1. CERCLA Cost Recovery and Contribution

CERCLA has two cost-shifting provisions that have

been invoked in this case. Section 107 provides a

mechanism for recovery of costs incurred by either the

110a

government or a private party. 42 U.S.C. § 9607(a).

In cost recovery actions, defendants are usually

subject to joint and several liability if the plaintiff has

shown that reasonable costs incurred were consistent

with the National Contingency Plan of the U.S.

Environmental Protection Agency (“EPA”). However,

if a defendant shows that a harm is divisible or

capable of apportionment, the defendant is only

severally liable for its share of the harm. To show

divisibility, a defendant must show that: 1) a harm is

theoretically capable of apportionment; and 2) the

record supports a reasonable basis for apportionment

in that particular case. Burlington Northern and

Santa Fe Ry. Co. v. United States, 556 U.S. 599, 615

(2009).

Section 113 provides for equitable contribution of

costs from one party to another “using such equitable

factors as the court determines are appropriate.” 42

U.S.C. § 9613(f)(1). Contribution can be sought by a

person liable under Section 107 or a person who has

entered an administrative or judicially approved

settlement. 42 U.S.C. § 9613(f). CERCLA was

intended to “facilitate the prompt cleanup of

hazardous waste sites by placing the ultimate

financial responsibility for cleanup on those

responsible for hazardous wastes.” Kalamazoo River

Study Grp. v. Menasha Corp., 228 F.3d 648, 652 (6th

Cir. 2000). Courts use equitable factors to encourage

those goals by allocating costs appropriately among

liable parties. Id. at 656.

Courts in the Sixth Circuit have sometimes turned

to non-exhaustive lists of equitable factors to help in

this exercise. For example, the Gore factors d

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