Introduction

In this precedential decision, the Sixth Circuit vacated a district court’s post-remand declaratory judgment entered under CERCLA §107(a) in favor of Georgia-Pacific and against International Paper and Weyerhaeuser for future response costs at the Kalamazoo River Superfund site. The appellate court held that where a party has already been adjudged liable for cleanup costs, any attempt to obtain CERCLA §107 relief for costs within the scope of that prior judgment is a legal nullity. The court clarified two interlocking principles:

• §107(a) and §113(f) provide mutually exclusive causes of action tied to a party’s procedural posture; costs paid pursuant to a judgment or settlement are recoverable only via §113(f), subject to its three-year limitations period.
• §113(g)(2)’s mandatory declaratory-judgment provision for §107 actions applies only in an “initial” §107 cost-recovery action, and cannot be invoked to confer declaratory relief when a §107 claim is unavailable or barred by the mutual-exclusivity rule.

The ruling preserves the integrity of CERCLA’s remedial architecture: defendants and courts cannot use §113(g)(2) as an end-run around a time-barred §113(f) contribution claim, nor to revive §107 where a prior liability judgment has already channeled the plaintiff into §113(f).

Background and Procedural History

The case centers on PCB contamination in a 35-mile stretch of the Kalamazoo River in southwest Michigan, listed on the National Priorities List (NPL) in 1990. Georgia-Pacific and other paper companies formed the Kalamazoo River Study Group (KRSG) and began incurring response costs. Over three decades, multiple judgments and appeals ensued:

• 1995–1998: KRSG sues under §107(a), seeking cost recovery and a liability declaration from other parties. In December 1998, after trial, the district court declares KRSG members (including Georgia-Pacific) liable “for the PCB contamination of the NPL Site.”
• 2000: The district court allocates costs between KRSG and Eaton and reiterates that KRSG members are liable for “the entire cost of response activities relating to the NPL site.” Sixth Circuit affirms (2001).
• 2003: A third district court judgment “confirmed the KRSG members’ liability for remediation costs.”
• 2010: Georgia-Pacific sues NCR, International Paper, and Weyerhaeuser under both §107(a) and §113(f). (Hobart’s mutual-exclusivity holding had not yet issued.)
• 2013–2018: District court finds NCR and International Paper liable and after a 20-day trial apportions costs under §113(f): GP 40%; NCR 40%; IP 15%; Weyerhaeuser 5%.
• 2022: Sixth Circuit (Georgia-Pacific I, 32 F.4th 534) holds Georgia-Pacific’s §113(f) claims time-barred because the 1998 judgment triggered §113(f)’s three-year limitations period. The court reiterates that Georgia-Pacific cannot pursue §107(a) for costs “within the scope of the 1998 KRSG judgment.”
• Remand (2024): The district court vacates the §113(f) apportionment judgment but enters a new declaratory judgment “under §107” declaring GP, IP, and Weyerhaeuser liable for future response costs at the site, relying on §113(g)(2)’s “shall enter” language.
• 2025: Sixth Circuit vacates the §107 declaratory judgment and remands.

The record indicates the site boundaries later expanded to Lake Michigan at some point after 1998. The opinion uses the phrase “NPL site” consistently regardless of evolving boundaries; the scope of the 1998 judgment remains the key dividing line for which costs are reachable via §107 versus §113(f).

Issues Presented

• Whether a district court may enter a declaratory judgment under CERCLA §107(a), via §113(g)(2)’s “shall enter” mandate, when a plaintiff has previously been adjudged liable for site-wide response costs and therefore may recover only under §113(f).
• How §113(g)(2)’s reference to “any such action described in this subsection” and “an initial action for recovery” limits mandatory declaratory relief to viable §107 actions.
• Whether Georgia-Pacific may still bring §107(a) claims for costs outside the 1998 KRSG judgment’s scope.

Summary of the Opinion

Writing for the court, Judge Kethledge vacated the district court’s post-remand §107 declaratory judgment. The court reaffirmed that, after the 1998 judgment, Georgia-Pacific’s costs within the judgment’s scope were recoverable only via §113(f); by 2010, §113(f) claims were time-barred. Because Georgia-Pacific “cannot proceed with a §107(a)(4)(B) cost-recovery action” for those costs, it likewise cannot obtain declaratory relief under §107 for them. The Sixth Circuit held that §113(g)(2)’s “shall enter” directive applies to “an initial action” under §107, not to a §107 claim that is unavailable or barred by mutual exclusivity. The court vacated the declaratory judgment and remanded, emphasizing that Georgia-Pacific may still pursue §107(a) for costs that fall outside the 1998 judgment’s scope, subject to ordinary forfeiture rules.

Analysis

Precedents and Authorities Cited

• United States v. Atlantic Research Corp., 551 U.S. 128 (2007)
  • Key proposition: §107(a) and §113(f) provide different causes of action for differently situated parties; costs incurred voluntarily are recoverable under §107(a)(4)(B); costs paid pursuant to a settlement or judgment are recoverable only under §113(f) (id. at 139 n.6).
  • Assumes joint-and-several liability may be available under §107(a) (id. at 138), while §113(f) is expressly a contribution remedy.
• Hobart Corp. v. Waste Management of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014)
  • Seminal Sixth Circuit decision holding §107(a) and §113(f) claims are mutually exclusive for the same costs; a party subject to a judgment cannot pursue §107(a)(4)(B) for those costs (id. at 766–67).
• Cranbury Brick Yard, LLC v. United States, 943 F.3d 701 (3d Cir. 2019)
  • Collected cases across circuits recognizing the mutual exclusivity between §107(a) and §113(f), reinforcing nationwide consensus.
• Georgia-Pacific Consumer Prods. LP v. NCR Corp., 32 F.4th 534 (6th Cir. 2022) (Georgia-Pacific I)
  • Held Georgia-Pacific’s §113(f) claims time-barred due to the 1998 judgment starting the three-year clock; reiterated that §107(a) cannot be pursued for costs within the scope of that 1998 judgment (id. at 548).
• Kalamazoo River Study Group v. Rockwell International and related KRSG cases (various Sixth Circuit decisions from 1999 through 2004)
  • These earlier decisions affirmed district court judgments imposing liability on KRSG members, including Georgia-Pacific, for site-wide response costs at the NPL site.
• Statutes: CERCLA §§107(a), 113(f), 113(g)(2) (42 U.S.C. §§9607(a), 9613(f), 9613(g)(2))
  • §107(a)(4)(B): authorizes cost recovery by private parties for “necessary costs of response” incurred voluntarily.
  • §113(f): authorizes contribution for parties that paid more than their equitable share pursuant to a judgment or settlement; three-year limitations period runs from the date of the judgment or settlement (§113(g)(3)(A)).
  • §113(g)(2): specifies limitations for §107 actions and mandates declaratory relief in “any such action” — defined as “an initial action for recovery of the costs referred to in §9607.”

Legal Reasoning

The Sixth Circuit’s reasoning proceeds in three interrelated steps:

1. Mutual Exclusivity Controls: From Atlantic Research and Hobart, the court begins with the settled premise that §107(a) and §113(f) are “mutually exclusive” remedies tied to the plaintiff’s procedural posture. Once a party has been adjudged liable for response costs, any further recovery of costs within that judgment’s scope must proceed under §113(f)—not §107(a). Georgia-Pacific’s own litigation history produced multiple judgments (1998, 2000, 2003) confirming its liability for “the entire cost of response activities relating to the NPL site.” As a matter of law, costs within the scope of those judgments were accessible only via §113(f), and by 2010 those §113(f) claims were time-barred (Georgia-Pacific I, 32 F.4th at 547–48).
2. §113(g)(2) Cannot Revive an Unavailable §107 Claim: Georgia-Pacific argued that §113(g)(2)’s “the court shall enter a declaratory judgment” language compelled the district court to enter declaratory relief under §107. The court rejected this as textually unsound. The phrase “in any such action described in this subsection” points back to “an initial action for recovery of the costs referred to in §9607.” Because Georgia-Pacific had already litigated an initial §107 action culminating in the 1998 judgment, its 2010 claim (as to costs within the 1998 scope) was not an “initial” §107 action. Put differently, §113(g)(2) presupposes that the plaintiff is properly in a viable §107 posture; it does not create §107 jurisdiction or remedy where mutual exclusivity bars §107 outright.
3. Policy and Structure: Allowing §113(g)(2) declaratory relief decades after a liability judgment would eviscerate §113(f)’s shorter limitations period and its policy of “bring[ing] parties to the clean-up table as soon as possible” (Georgia-Pacific I, 32 F.4th at 545). Georgia-Pacific’s reading would permit any party eligible for §113(f) to also obtain a §107 declaratory judgment “merely by asking for one,” collapsing the carefully drawn boundary between the two remedies. The court therefore held that a §107 claim that cannot proceed due to prior adjudication and §113(f) exclusivity is “a legal nullity,” and any declaratory relief tethered to that claim must be vacated.

Remedy and Scope on Remand: The panel vacated the declaratory judgment “under §107(a)” and directed that the claim should simply have been dismissed. Importantly, the court preserved Georgia-Pacific’s ability to pursue §107(a) claims for costs “that fall outside of the 1998 KRSG judgment’s broad scope,” leaving the parties to litigate that scope on remand (subject to ordinary forfeiture rules).

Doctrinal Impact and Practical Consequences

This opinion cements several practical rules for CERCLA litigants in the Sixth Circuit:

• §113(g)(2) is not a backdoor to declaratory relief. The “shall enter declaratory judgment” clause applies only in a live, viable §107 “initial action.” It cannot be invoked to salvage claims when §107 is unavailable due to prior judgments channeling the plaintiff into §113(f).
• Strict adherence to §113(f) limitations. Parties subject to a judgment or settlement must bring contribution claims within three years of that judgment/settlement. Courts will not permit a §107 declaratory judgment to circumvent that time bar.
• Early alignment of remedy with posture. PRPs must carefully select the proper CERCLA vehicle at the outset. If a judgment or settlement exists (or is imminent), §113(f) is the channel—and delay is costly.
• Preservation of §107 for costs truly outside prior judgments. The Sixth Circuit reaffirms that §107 claims survive for costs falling outside the prior liability judgment’s scope. Expect more granular litigation over “scope” (e.g., later-added operable units, geographic expansions, distinct response phases) rather than wholesale re-litigation of liability already adjudicated.
• Guidance to district courts. Even where “good practical sense” might favor a declaratory judgment to assist ongoing cleanup, courts may not use §113(g)(2) to paper over a legally unavailable §107 claim. The correct course is dismissal, not re-entry or re-labeling of relief.

Complex Concepts Simplified

• CERCLA “response costs”: Expenses incurred to investigate, remove, or remediate hazardous substances, including “removal” (short-term, emergency measures) and “remedial” (long-term, permanent cleanup).
• §107(a) cost recovery vs. §113(f) contribution:
  • §107(a)(4)(B): Used by private parties that voluntarily incur necessary response costs. Often allows joint-and-several liability determinations against other PRPs.
  • §113(f): Used when a party has paid or is liable to pay costs under a settlement or judgment. It is an equitable apportionment mechanism to recover only the defendant’s fair share, with a three-year limitations period.
• Mutual exclusivity: A party cannot recover the same bucket of costs under both §107(a) and §113(f). Which section applies turns on the plaintiff’s procedural posture (voluntary payer versus payer under compulsion of judgment/settlement).
• §113(g)(2) declaratory judgment: In a proper, initial §107 action, the court “shall enter” a declaratory judgment on liability for future costs at the facility. That declaration binds subsequent §107 actions for additional costs. But this mandate presupposes that the §107 action is viable in the first place.
• “Initial action” in §113(g)(2): The statute’s opening clause limits the declaratory-judgment mandate to the first §107 cost-recovery action for the costs at issue. A later case is not “initial” if the plaintiff already litigated §107 liability for those costs.
• “Within the scope of the 1998 judgment”: This phrase captures the costs and activities the prior judgment addressed—here, site-wide response costs for the NPL site as adjudicated in 1998 (and reaffirmed thereafter). Costs outside that scope (e.g., work at areas or time periods not encompassed by the earlier judgment) may be eligible for §107 treatment.
• Vacatur vs. reversal: The Sixth Circuit vacated the improper declaratory judgment and indicated the district court should have dismissed the §107 claim. Vacatur clears the judgment without substituting a contrary merits outcome.
• Ordinary forfeiture rules: On remand, parties must raise arguments timely; issues not preserved may be deemed forfeited.

Practice Implications and Guidance

• Calendar §113(f) deadlines meticulously. If a client becomes subject to a cleanup judgment or executes a consent decree, the three-year clock under §113(g)(3) starts. Missing that window forecloses contribution and cannot be cured by seeking §107 declaratory relief.
• Map the scope of prior judgments early. Build a factual record that distinguishes between costs within versus outside a prior judgment’s scope (e.g., later-expanded site boundaries, distinct operable units, new contaminants, or discrete time periods).
• Plead in the correct lane. If a prior judgment or settlement exists for the same response costs, plead §113(f) exclusively for those costs; reserve §107 for costs demonstrably outside the earlier adjudication. Avoid duplicative remedies that invite dismissal as a “legal nullity.”
• Use §113(g)(2) thoughtfully. Seek declaratory relief under §107 only where the action truly is the “initial” §107 cost-recovery action for the costs at issue. A prior §107 judgment generally forecloses re-invoking §113(g)(2) for the same cost bucket.
• Anticipate “scope” litigation. Where a site has evolved, parties should expect discovery and expert analysis on whether particular costs fall within or outside earlier judgments, and whether discrete work packages are separable for §107 purposes.

Conclusion

The Sixth Circuit’s decision firmly guards the boundary between CERCLA §107(a) cost-recovery and §113(f) contribution. It holds that §113(g)(2)’s mandatory declaratory-judgment provision does not authorize courts to enter §107 declaratory relief where §107 is procedurally unavailable due to a prior liability judgment. In reaffirming mutual exclusivity and the primacy of §113(f)’s limitations period for adjudged PRPs, the court preserves the statutory incentives for early contribution actions and ensures that declaratory judgments under §107 remain tethered to truly “initial” §107 suits. While Georgia-Pacific may still pursue §107 claims for costs falling outside the 1998 judgment’s scope, the ruling instructs litigants and courts alike: §113(g)(2) is not a vehicle to resuscitate time-barred contribution claims or to rewrite procedural posture. The focus, as the court concludes, should now turn from litigation to cleanup.

Key Takeaways

• Parties already subject to cleanup-cost judgments cannot obtain §107 declaratory relief for costs within that judgment’s scope; any §107 claim for those costs is a “legal nullity.”
• §113(g)(2)’s “shall enter” declaratory-judgment language applies only in an “initial” §107 action and cannot be used to bypass §113(f)’s exclusivity or its three-year statute of limitations.
• Georgia-Pacific may still bring §107 claims for costs outside the 1998 KRSG judgment’s scope; on remand, the parties may litigate what that scope encompasses, subject to ordinary forfeiture rules.
• District courts should dismiss, not re-enter, §107 declaratory judgments where §107 is unavailable; practical considerations cannot override statutory structure.