No § 107 Declaratory Judgment After a Prior Liability Judgment: Sixth Circuit Limits CERCLA § 113(g)(2) to Initial Cost-Recovery Actions

Introduction

In Georgia-Pacific Consumer Products LP v. NCR Corp., Nos. 24-1403/1404 (6th Cir. May 12, 2025), the Sixth Circuit vacated a district court’s declaratory judgment entered under CERCLA § 107(a) that had purported to allocate future cleanup liability among paper company defendants for the Kalamazoo River Superfund site. The court held that once Georgia-Pacific and its cohort were adjudicated liable for response costs in a 1998 judgment, all costs within the scope of that judgment became exclusively recoverable, if at all, via contribution under CERCLA § 113(f)—subject to § 113(f)’s three-year statute of limitations. Because Georgia-Pacific’s § 113(f) claims were already time-barred in a prior appeal, the district court could not resurrect liability allocations by re-entering a § 107(a) declaratory judgment.

The opinion, authored by Judge Kethledge and joined by Judges Moore and Gibbons, clarifies the interlocking structure of CERCLA’s private-party remedies and resolves an attempted end run around the mutual exclusivity of § 107(a) cost-recovery actions and § 113(f) contribution claims. It also construes the mandatory declaratory-judgment clause in § 113(g)(2) as applying only in an “initial” § 107 action, not as a license to award declaratory relief where a plaintiff is already limited to § 113(f).

Parties and posture: Plaintiffs-Appellees Georgia-Pacific Consumer Products LP, Fort James Corporation (nka Fort James LLC), and Georgia-Pacific LLC sued NCR Corporation, International Paper Company, and Weyerhaeuser Company for response costs. After this court (in 2022) held Georgia-Pacific’s § 113(f) claims time-barred, the district court on remand nonetheless entered a § 107(a) declaratory judgment allocating future costs. International Paper and Weyerhaeuser appealed that ruling. The Sixth Circuit vacated the declaratory judgment and remanded.

Summary of the Opinion

The Sixth Circuit held that because multiple judgments (beginning in 1998) had already declared Georgia-Pacific and other members of the Kalamazoo River Study Group (KRSG) liable for response costs at the Superfund site, any costs within the scope of that judgment could be pursued only through § 113(f) contribution, not § 107(a) cost-recovery. The court reaffirmed that costs paid pursuant to a legal judgment or settlement are recoverable only under § 113(f), and it reiterated its earlier determination that Georgia-Pacific’s § 113(f) claims were time-barred.

The panel rejected Georgia-Pacific’s reliance on § 113(g)(2)’s language that courts “shall” enter a declaratory judgment in § 107 actions. Reading § 113(g)(2) in context, the court emphasized the subsection’s reference to an “initial action for recovery of the costs referred to in section 9607,” and concluded that the mandatory declaratory relief applies only in such an initial § 107 action—not where the plaintiff has already been adjudged liable and therefore may proceed only under § 113(f).

The court therefore vacated the district court’s re-entered § 107 declaratory judgment as a “legal nullity” for costs within the scope of the 1998 KRSG judgment. Importantly, the court left open that, on remand, Georgia-Pacific may bring § 107(a) claims for any costs that fall outside the scope of the 1998 judgment, with the parties to litigate that scope subject to ordinary forfeiture principles.

Analysis

Precedents Cited and Their Role

The opinion rests solidly on a line of Supreme Court and Sixth Circuit cases distinguishing between CERCLA’s two principal private-party remedies and defining their timing rules:

United States v. Atlantic Research Corp., 551 U.S. 128 (2007): The Supreme Court clarified that both §§ 107(a) and 113(f) allow private recovery of cleanup costs, with § 107(a)(4)(B) available to parties who voluntarily incur costs and § 113(f) available for contribution by parties with liability imposed by judgment or settlement. Crucially, the Court stated that costs paid “pursuant to a legal judgment or settlement are recoverable only under § 113(f).” The Sixth Circuit applies that rule here.
Hobart Corp. v. Waste Management of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014): The Sixth Circuit held the § 107(a) and § 113(f) causes of action are “mutually exclusive,” and that a party subject to a judgment for cleanup costs cannot proceed with a § 107(a)(4)(B) action for those costs. Hobart’s mutual exclusivity principle is a cornerstone of this decision.
Georgia-Pacific Consumer Prods. LP v. NCR Corp., 32 F.4th 534 (6th Cir. 2022) (“Georgia-Pacific I”): In this very litigation, the court held Georgia-Pacific’s § 113(f) claims time-barred because the 1998 KRSG judgment triggered the three-year limitations period in § 113(g)(3)(A). The court also emphasized the mutual exclusivity framework and expressly barred § 107(a) claims for costs within the scope of the 1998 judgment. This opinion builds directly on that holding.
Cranbury Brick Yard, LLC v. United States, 943 F.3d 701 (3d Cir. 2019): Cited for the proposition that circuits uniformly treat § 107(a) and § 113(f) as providing causes of action to “persons in different procedural circumstances.”
Kalamazoo River Study Group litigation history (W.D. Mich. 1998, 2000, 2003; aff’d 274 F.3d 1043 (6th Cir. 2001)): These earlier judgments declared KRSG members, including Georgia-Pacific, liable for PCB contamination at the site and “the entire cost of response activities” relating to the NPL site. Those judgments supply the predicate that pushes Georgia-Pacific’s recovery path solely into § 113(f)—and ultimately time-bars it for costs within the 1998 judgment’s scope.

Legal Reasoning

The court’s reasoning proceeds in three integrated steps that prioritize statutory structure, stare decisis, and CERCLA’s policy design to promote timely identification of responsible parties:

Mutual exclusivity confirmed: Drawing on Atlantic Research and Hobart, the panel reiterates that CERCLA provides two different remedies for distinct procedural postures. A party that incurs costs voluntarily may use § 107(a); a party paying costs pursuant to a judgment or settlement must use § 113(f). Once Georgia-Pacific was adjudged liable for the site’s response costs (beginning in 1998 and reconfirmed in 2000 and 2003), all costs within that judgment’s scope became recoverable only by contribution.
Time bar governs and cannot be sidestepped: Georgia-Pacific I held that the 1998 judgment started the three-year limitations clock for § 113(f) under § 113(g)(3)(A), and by 2010 those contribution claims were time-barred. Allowing declaratory relief under § 107(a) for the very same costs would effectively nullify that limitations ruling and undermine CERCLA’s incentive to bring contribution actions promptly “to bring parties to the clean-up table as soon as possible.”
Proper reading of § 113(g)(2)’s “shall enter” declaratory-judgment clause: Georgia-Pacific argued that § 113(g)(2) mandates a declaratory judgment in § 107 actions and thus authorized the district court’s order. The Sixth Circuit rejected this as atextual because it ignores the subsection’s opening words—“An initial action for recovery of the costs referred to in section 9607”—and the phrase “In any such action.” The mandatory declaratory relief is tethered to an initial § 107 cost-recovery action. Georgia-Pacific’s 2010 suit, as to costs within the 1998 judgment, was not initial: those costs had already been the subject of § 107 litigation that resulted in KRSG’s liability. Therefore, the § 107 claim for those costs is a “legal nullity,” and declaratory relief cannot issue.

In short, the district court’s well-intended attempt to maintain a declaratory allocation for future costs ran headlong into CERCLA’s remedial architecture: once a prior judgment fixes a party’s liability for a site, § 113(f)’s contribution regime (and its shorter limitations period) is the only permissible vehicle for costs within that judgment’s scope. Courts may not re-label those claims as § 107(a) actions to revive them with longer limitations or to obtain declaratory relief retroactively.

The remedy aligns with the error: rather than reversing on the merits of allocation, the panel vacated the declaratory judgment under § 107(a) and directed dismissal of that claim as to costs within the 1998 judgment’s scope, while preserving potential § 107(a) claims for costs outside that scope.

Impact and Practical Implications

The decision has significant consequences for CERCLA litigation strategy, especially in legacy Superfund matters with long procedural histories:

Limits § 107 declaratory relief to “initial” actions: District courts within the Sixth Circuit should not enter § 107(a) declaratory judgments where the plaintiff’s costs are within the scope of a prior judgment or settlement that confines the plaintiff to § 113(f). The “shall enter” directive in § 113(g)(2) is not a backdoor to avoid Hobart’s mutual exclusivity or § 113(f)’s limitations period.
Reinforces the three-year contribution clock: Responsible parties must vigilantly track the entry of judgments or settlements that trigger § 113(g)(3)(A)’s three-year statute. Delay will likely foreclose contribution and cannot be cured by pleading or obtaining § 107(a) relief for the same compelled costs.
Sharpens focus on the “scope” of prior judgments: What remains actionable under § 107(a) are costs that fall outside the earlier judgment’s scope. Parties should develop a careful factual record regarding site boundaries (particularly where they evolved over time), operable units, media, time periods, and types of response actions to delineate what is and is not encompassed by earlier liability determinations.
Encourages earlier party identification and settlement: The ruling advances CERCLA’s policy of promoting early joinder and equitable allocation through timely contribution actions, discouraging serial litigation that would perpetually reset liabilities via § 107 declaratory judgments.
Keeps open future § 107(a) for truly voluntary costs: For costs outside the prior judgment’s scope—including potentially at newly defined areas or for newly initiated response actions—plaintiffs may still utilize § 107(a), with its own limitations periods tied to removal/remedial milestones under § 113(g)(2)(A)-(B).

Practitioner checklist:

Docket the § 113(f) deadline: For any judgment or settlement imposing liability, calendar the three-year limit under § 113(g)(3)(A) immediately.
Map the “scope” of earlier judgments: Compare the geographic footprint, contaminants, operable units, and time frames addressed by earlier judgments with the costs now sought. Consider how later expansions (e.g., to Lake Michigan) interact with the earlier scope.
Segregate costs by posture: Distinguish voluntary expenditures (potentially § 107(a)) from compelled payments (necessarily § 113(f)), and separate within-scope from out-of-scope costs.
Frame declaratory relief appropriately: Seek § 107(g)(2) declaratory judgments only in an initial § 107 action for truly voluntary, out-of-scope costs. Do not rely on § 107 declaratory relief to preserve or replace time-barred § 113(f) remedies.
Preserve record on site evolution: Where EPA or the parties have modified site boundaries or operable units over time, ensure the record clearly reflects those changes to support or oppose an “outside the 1998 judgment” position.

Unresolved questions the opinion leaves for remand:

The precise scope of the 1998 KRSG judgment as applied to later-incurred costs, in light of subsequent expansion of the site and evolving response actions.
The extent to which costs associated with areas or actions beyond the NPL site as defined in 1998 qualify as “outside” the judgment for § 107(a) purposes.
The mechanics of any subsequent § 107(a) proceedings for such out-of-scope costs, including the availability of joint and several liability (which the Supreme Court and the Sixth Circuit note has not been definitively decided, though often assumed in § 107 cases).

Complex Concepts Simplified

CERCLA § 107(a) versus § 113(f): Two distinct avenues for private recovery of cleanup costs. Section 107(a)(4)(B) is generally for parties who voluntarily incur cleanup costs and seek to recover them from other responsible parties. Section 113(f) is a contribution remedy for parties who have paid more than their fair share because a judgment or settlement required them to pay.
Mutual exclusivity: A party cannot choose between § 107(a) and § 113(f) at will. If your costs are compelled by a judgment or settlement, you must proceed under § 113(f). Only voluntary costs are eligible for § 107(a).
Statutes of limitations:
- Section 113(f): Three years from the date of the judgment or settlement that triggers contribution rights (§ 113(g)(3)(A)).
- Section 107(a): For removal actions, generally three years after completion; for remedial actions, six years after initiation of on-site construction (§ 113(g)(2)(A)-(B)). These are longer, but only apply to eligible § 107(a) claims.
Section 113(g)(2) declaratory judgments: In an initial § 107 action, the court “shall” enter a declaratory judgment establishing liability for response costs, which binds future actions for further costs. This provision does not authorize declaratory relief when a plaintiff’s claim for those costs is not properly a § 107 action (e.g., because the costs are within the scope of a prior liability judgment and thus fall under § 113(f)).
“Scope” of a prior judgment: The set of costs, areas, contaminants, time frames, and response actions that an earlier judgment addressed. Costs within that scope are governed by the remedial path dictated by that judgment (here, § 113(f) contribution). Costs outside that scope may be eligible for § 107(a).
Legal nullity: A claim that cannot exist under governing law. Here, because Georgia-Pacific could not lawfully proceed under § 107(a) for costs within the 1998 judgment’s scope, the § 107 claim was a legal nullity and could not support declaratory relief.
NPL site and response costs: EPA’s National Priorities List (NPL) identifies Superfund sites. Response costs include removal (short-term measures) and remedial (long-term containment/cleanup) actions. The type of action affects § 107’s limitations periods.

Conclusion

The Sixth Circuit’s decision cements a clear rule: a party already subject to a judgment imposing liability for cleanup costs cannot obtain a § 107(a) declaratory judgment for those same costs, because such costs are recoverable only through § 113(f), subject to its three-year statute of limitations. Section 113(g)(2)’s “shall enter” declaratory-judgment language does not override this structure; it applies only to an initial § 107 action for voluntary costs.

The ruling preserves—and strengthens—the mutual exclusivity of CERCLA’s private-party remedies, vindicates the policy of prompt contribution litigation, and confines declaratory relief to its proper statutory home. At the same time, it leaves open a pathway for § 107(a) claims as to any costs falling outside the scope of earlier liability judgments. On remand, the litigants must therefore focus on delineating the scope of the 1998 KRSG judgment to determine what, if anything, remains actionable under § 107(a).

After decades of litigation over the Kalamazoo River, the court closes by urging the parties to devote their energy to remediation rather than further procedural battles—a signal that CERCLA’s remedial goals are best served by timely, appropriately channeled claims and cooperative cleanup efforts.