                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0268p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                  X
                             Plaintiff-Appellant, -
 RSR CORPORATION,
                                                   -
                                                   -
                                                   -
                                                        No. 06-3840
         v.
                                                   ,
                                                    >
 COMMERCIAL METALS CO.,                            -
                           Defendant-Appellee. -
                                                  N
                    Appeal from the United States District Court
                    for the Southern District of Ohio at Dayton.
                   No. 03-00013—Walter H. Rice, District Judge.
                                     Argued: April 23, 2007
                               Decided and Filed: July 18, 2007
               Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Matthew J. Nasuti, SEBALY SHILLITO + DYER, Dayton, Ohio, for Appellant. David
L. Petitjean, CHAPPANO WOOD, Columbus, Ohio, for Appellee. ON BRIEF: Matthew J. Nasuti,
Dianne F. Marx, SEBALY SHILLITO + DYER, Dayton, Ohio, for Appellant. David L. Petitjean,
CHAPPANO WOOD, Columbus, Ohio, for Appellee.
     SUTTON, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined.
CLAY, J. (pp. 8-11), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
       SUTTON, Circuit Judge. More than three years after signing a consent decree with the
United States to pay for the environmental remediation of a contaminated industrial site in Arcanum,
Ohio, RSR Corporation filed this lawsuit seeking contribution for the clean-up costs from
Commercial Metals Company. Because the district court properly determined that RSR filed this
contribution action after the three-year limitations period, see 42 U.S.C. § 9613(g)(3), we affirm.
                                                 I.
         From 1966 through 1982, Harold Shane reprocessed car, truck and industrial batteries at a
facility in Arcanum, Ohio. Shane received the batteries from several suppliers, including RSR and
Commercial Metals. Toxic byproducts of the facility’s activities included battery acid and a “lead

                                                 1
No. 06-3840             RSR Corp. v. Commercial Metals Co.                                            Page 2


oxide sludge[],” both of which seeped into the ground and eventually threatened local water
supplies. JA 256.
        In 1983, the EPA placed Shane’s facility on the National Priority List, and the federal agency
began cleaning up the site. See Amendment to National Oil and Hazardous Substance Contingency
Plan; National Priorities List, 48 Fed. Reg. 40,658, 40,670 (Sept. 8, 1983) (codified at 40 C.F.R. pt.
300, app’x B). In 1989, the United States filed a lawsuit against Shane under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) seeking “to recover response
costs incurred by the United States” in cleaning up the site. JA 253; see 42 U.S.C. § 9607(a) (“[T]he
owner and operator of . . . a facility . . . shall be liable for . . . all costs of removal or remedial action
incurred by the United States Government . . . .”).
       Over the next nine years, the scope of the litigation expanded to include other potentially
responsible parties. RSR entered the litigation as a fourth-party defendant in November 1993. See
42 U.S.C. § 9607(a) (“[A]ny person who . . . arranged . . . for disposal or treatment . . . of hazardous
substances . . . at any facility . . . shall be liable for . . . all costs of removal or remedial action
incurred by the United States Government . . . .”). As the burgeoning litigation proceeded, the
United States continued to clean up the site, eventually incurring more than $2,700,000 in response
costs.
       On February 11, 1998, the United States filed a proposed consent decree between itself and
Shane, which the district court accepted and entered seven months later. On March 23, the district
court approved a de minimis consent decree, resolving the liability of many minor polluters at the
Arcanum site. And on August 28, the United States filed with the district court a proposed consent
decree among itself, RSR, two major contributors and one de minimis contributor, and the court
entered the consent decree in April 1999.
        Consistent with the April 1999 consent decree, RSR and its co-defendants agreed to
reimburse the United States for $201,832 in past response costs, to “finance and perform” the
remedial work needed to finish cleaning up the Arcanum site, JA 514, to post a bond for $5,800,000
(the estimated cost of the remaining remedial work), to “undertake . . . further response actions to
the extent” necessary, JA 529, and to reimburse the United States for up to $150,000 in future
response costs. In return, the United States agreed “not to sue or take administrative action” that
would impose additional liability on RSR and its co-defendants, JA 578, and the defendants received
the right to seek contribution from other potentially responsible parties. Attached to the consent
decree was a “final volumetric ranking” of contributors to the contamination at the site, showing
RSR as the largest and Commercial Metals as the 62nd largest of the 444 known contributors. JA
665–67. The consent decree also provided that the district court would retain jurisdiction over the
parties until the complete remediation of the site.
       On July 2, 2001, RSR and its co-defendants finished cleaning up the site at a total cost of
$2,631,606.
         On January 16, 2003, RSR filed this contribution action against Commercial Metals, and the
district court consolidated the action with the Shane litigation. Commercial Metals moved to
dismiss the complaint on statute-of-limitations grounds, and the district court granted the motion.
                                                     II.
        CERCLA “grants the President broad power to command government agencies and private
parties to clean up hazardous waste sites.” Key Tronic Corp. v. United States, 511 U.S. 809, 814
(1994). The statute permits the United States to issue enforcement orders “as may be necessary to
protect public health and welfare and the environment.” 42 U.S.C. § 9606(a). And it authorizes a
number of causes of action designed to obtain the prompt remediation of waste sites and the fair
No. 06-3840           RSR Corp. v. Commercial Metals Co.                                           Page 3


apportionment of remediation costs: reimbursement actions for “[a]ny person who receives and
complies with the terms” of an enforcement order, id. § 9606(b)(2)(B); abatement actions to prevent
the “actual or threatened release of a hazardous substance,” id. § 9606(a); governmental cost
recovery actions that allow the United States, a State or an Indian tribe to recover “all costs of
removal or remedial action incurred” from potentially responsible parties, id. § 9607(a)(4)(A);
private cost recovery actions that allow “any other person” to recoup “any other necessary costs of
response incurred . . . consistent with the national contingency plan,” id. § 9607(a)(4)(B); see United
States v. Atl. Research Corp., 127 S. Ct. 2331, 2335–36 (2007); contribution actions to “allocate
response costs among liable parties using . . . equitable factors,” 42 U.S.C. § 9613(f)(1); and an
assortment of other actions not relevant here.
         Appreciating the risk that never-ending litigation might impede a “swift and effective
response to hazardous waste sites,” Anspec Co., Inc. v. Johnson Controls, Inc., 922 F.2d 1240, 1247
(6th Cir. 1991), Congress authorized the United States and potentially responsible parties to launch
clean-up efforts first, then recover the costs from other responsible parties later—through
settlements, consent decrees and, if need be, judgments. See, e.g., 42 U.S.C. § 9622(b)(1)
(authorizing settlements to reimburse parties for certain remedial actions); id. § 9622(d) (authorizing
consent decrees to enforce cleanup agreements); id. § 9622(h) (authorizing settlements for recovery
of “costs incurred by the United States Government” from responsible parties); id. § 9622(g)
(authorizing settlements for cost recovery from de minimis responsible parties); see also, e.g., id.
§ 9606(b)(2)(A) (authorizing those who “compl[y]” with enforcement orders to seek reimbursement
from the United States); id. § 9607(a) (authorizing actions to recover costs “incurred” in a cleanup
effort).
         The statutory authority of government entities and private parties to bring cost-recovery and
contribution actions later, however, does not last forever. “An initial action for recovery of the
costs . . . for a remedial action,” for example, must be filed “within 6 years after initiation of
physical on-site construction of the remedial action,” and subsequent cost recovery actions “may be
maintained at any time during the response action, but must be commenced no later than 3 years
after” its completion. Id. § 9613(g)(2)(B). A potentially responsible party may bring a contribution
action “during or following any civil action” under the statute’s enforcement and cost-recovery
provisions, id. § 9613(f)(1); see Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 (2004),
or after resolving its liability to the United States “in an administrative or judicially approved
settlement,” 42 U.S.C. § 9613(f)(3)(B). Such an action for “response costs or damages” must be
filed within 3 years of:
        (A) the date of judgment in any action . . . for recovery of such costs or damages, or
        (B) the date of an administrative order under section 9622(g) of this title (relating to
        de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements)
        or entry of a judicially approved settlement with respect to such costs or damages.
Id. § 9613(g)(3).
        As RSR’s complaint indicates, it filed this action “pursuant to 42 U.S.C. § 9613(f)”—the
contribution provision. JA 3. RSR’s right to seek contribution from Commercial Metals and other
potentially responsible parties arose from the 1999 consent decree, which required it to pay the
United States $201,832 in past response costs, to pay up to $150,000 in future response costs
incurred by the United States, and, most critically, to “finance” the costs of the as-yet-unfinished
remedial work, JA 514. See 42 U.S.C. § 9613(f)(3)(B) (“A person who has resolved its liability to
the United States or a State for some or all of a response action or for some or all of the costs of such
action in an administrative or judicially approved settlement may seek contribution from any person
who is not party to [such] a settlement . . . .”). Not only did the statute give RSR a right to seek
contribution at this point, but the consent decree itself also contemplated such actions. See JA 586
No. 06-3840           RSR Corp. v. Commercial Metals Co.                                        Page 4


(providing that RSR and its co-defendants will notify the United States of “any suit or claim for
contribution brought by them for matters related to this Consent Decree”).
        RSR has never disputed that its complaint amounted to a contribution action, see 42 U.S.C.
§ 9613(f), as opposed to a cost recovery action, see id. § 9607(a)(4)(B). And § 113(g)(3) of
CERCLA requires that an “action for contribution for any response costs or damages” commence
within three years of the “entry of a judicially approved settlement with respect to such costs or
damages.” Id. § 9613(g)(3). RSR acknowledges that the 1999 consent decree constitutes a
“judicially approved settlement” “resolv[ing] [RSR’s] liability to the United States” for the purpose
of authorizing a contribution action. See id. § 9613(f)(3)(B). And we see no reason why it does not
also constitute a “judicially approved settlement” for the purpose of limiting when that action may
be brought—for determining in other words when the right to bring that action accrues for statute-of-
limitation purposes. To conclude otherwise would allow a “judicially approved settlement” to
authorize a contribution action to recover the “costs” imposed by that settlement without placing any
limit on when that action must be brought. Cf. Am. Cyanamid Co. v. Capuano, 381 F.3d 6, 13 (1st
Cir. 2004) (explaining that the reference to “such costs or damages” in § 113(g)(3)(A) “refers to the
costs or damages contained in the ‘judgment’” “mentioned earlier in the sentence and identifies a
particular claim or payment”). Because RSR waited more than three years to bring its contribution
action after the April 1999 consent decree, its complaint lies outside of the limitations period and
must be dismissed.
        RSR resists this interpretation on the ground that CERCLA contains a “general [six-year]
statute of limitations” in § 113(g)(2) with “four narrow exceptions” in § 113(g)(3), and that none
of the exceptions applies here because RSR entered into only a “cleanup agreement” with the United
States. Br. at 9. The statutory text, however, does not set forth a “general statute of limitations”
with exceptions but instead sets forth different limitations periods for different causes of action. See
42 U.S.C. § 9613(g)(1) (three-year limitations period on “[a]ctions for natural resource damages”);
id. § 9613(g)(2)(A) (three-year limitations period on the “initial action for recovery of the costs” of
a removal action); id. § 9613(g)(2)(B) (six-year limitations period on the “initial action for recovery
of the costs” of a remedial action); id. § 9613(g)(2) (three-year limitations period on “any
subsequent action . . . for further response costs”); id. § 9613(g)(3) (three-year limitations period on
any “action for contribution”); id. § 9613(g)(4) (three-year limitations period on any “action based
on rights subrogated . . . by reason of payment of a claim”); id. § 9613(g)(5) (three-year limitations
period on indemnification actions).
       Equally unavailing is RSR’s contention, seconded by the dissent, that the underlying
agreement between RSR and the United States is not a “judicially approved settlement” under
§ 113(g)(3)(B). Here is the key language of the statute in context:
       No action for contribution for any responses costs or damages may be commenced
       more than 3 years after–
       (A) the date of judgment in any action under this chapter for recovery of such costs
       or damages, or
       (B) the date of [1] an administrative order under section [122(g) of CERCLA]
       (relating to de minimis settlements) or [2] [an administrative order under section
       122(h)] (relating to cost recovery settlements) or [3] entry of a judicially approved
       settlement with respect to such costs or damages.
Id. § 9613(g)(3). As RSR and the dissent see it, the “with respect to such costs or damages”
language in subparagraph B refers only to costs or damages arising from § 122(g) or (h)
administrative orders.
No. 06-3840           RSR Corp. v. Commercial Metals Co.                                        Page 5


        That is not, however, the natural way to read the provision. The point of this section of the
statute, as the introductory clause indicates, is to establish a time bar for contribution actions for
“any response costs or damages.” Subparagraph (A) says that the three-year time bar applies to
“such costs or damages” arising from “judgment[s],” while subparagraph (B) says that it applies to
“such costs or damages” arising from (1) “de minimis settlements” reflected in an administrative
order under § 122(g), (2) “cost recovery settlements” reflected in an administrative order under
§ 122(h) and (3) “judicially approved settlement[s].” In other words, just as the phrase “such costs
or damages” in subparagraph (A) limits the time bar on judgment-authorized contribution actions
to those “costs or damages contained in the ‘judgment’ mentioned,” Am. Cyanamid, 381 F.3d at 13,
so the same phrase in subparagraph (B) limits the time bar on settlement-authorized contribution
actions to those “costs incurred in the settlement,” id. at 15.
        A contrary reading would work considerable damage to the statute, as it would mean that
there is no time bar on contribution actions arising from “judicially approved settlements” of
recovery actions initiated by private parties, individual States or Indian Tribes. Here is why. While
§§ 122(g) and (h) authorize the United States to settle cost-recovery actions administratively, the
United States is not the only entity entitled to bring a cost-recovery action. Individual States, Indian
tribes and private parties who incur cleanup costs may also seek “cost recovery (as distinct from
contribution)” under § 107(a). See 42 U.S.C. § 9607(a); Atl. Research Corp., 127 S. Ct. at 2338.
If, as RSR reads the statute, the provision relating to “judicially approved settlement[s]” refers only
to settlements under § 122(g) or (h), then the contribution-action clock would never start as to
settlements arising from actions initiated by these other parties. Rather than focus on who settled
the cost-recovery action, in short, the statute asks us to focus on what was settled. Cf. United States
v. Navistar Int’l Transp. Corp., 152 F.3d 702, 712 n.17 (7th Cir. 1998) (rejecting reading of another
CERCLA limitations provision that “would lead to the awkward result that actions brought by
private parties to recover response costs would be subject to a different statute of limitations trigger
when no government agency is involved in the clean-up”).
        To suggest that the 1999 consent decree covered only compensation for past response costs,
as RSR suggests, also would be inaccurate. RSR was the largest polluter at the Arcanum site, and
its expected liability was $2,335,407.96 based on RSR’s contribution of almost 10,000 tons of
hazardous materials (at the rate per pound established for de minimis contributors). The quid pro
quo for seeking less reimbursement from RSR was RSR’s agreement along with its co-defendants
to assume liability for—to “finance and perform”—the as-yet-unfinished remedial work at the
Arcanum site, JA 514, to post a $5,800,000 bond to guarantee their performance and to reimburse
the United States for up to $150,000 in future response costs. While a party submitting to an
administrative order requiring cleanup under § 106(a) may seek reimbursement for its costs from
the Superfund, see 42 U.S.C. § 9606(b)(2), RSR and its co-defendants waived any such right, having
agreed not to assert “any direct or indirect claim for reimbursement from the Hazardous Substance
Superfund.” JA 583. In view of the apportionment of liability for past and future response costs
among the United States, RSR and its co-defendants, the consent decree was a cost-recovery
settlement under § 122(h) as well as a cleanup agreement under § 122(d)(1). Because the consent
decree established RSR’s liability, its contribution action regarding those “costs” accrued on the date
of the consent decree (April 12, 1999) and expired three years later.
        RSR insists that it could not have resolved its liability to the United States in the consent
decree before the completion of the remedial action. Reply Br. at 1. But RSR’s promise of future
performance was the very consideration it gave in exchange for the United States’ covenant not to
seek further damages. RSR and its co-defendants in other words resolved their liability to the United
States by agreeing to assume all liability (vis-a-vis the United States) for future remedial actions.
And even if the covenant regarding future response costs did not take effect until the remedial action
was complete, the statute of limitations for contribution actions runs from the “entry” of the
No. 06-3840           RSR Corp. v. Commercial Metals Co.                                         Page 6


settlement, 42 U.S.C. § 9613(g)(3)(B), not from the date that each provision of that settlement takes
effect.
       RSR also suggests that Commercial Metals waived this time-bar defense. But Commercial
Metals raised the issue through its motion to dismiss on statute-of-limitations grounds, and the
consolidation of this case with the Shane litigation (contrary to RSR’s suggestion) did not moot the
motion. If there is any waiver on this score, it is one of RSR’s doing: It never raised the issue
below. See J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir.
1991).
         The dissent also contends that our interpretation fails to respect congressional intent (as
evidenced by the legislative history of the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. No. 99-499, 100 Stat. 1613) because Congress did “not evince any intent . . . to codify a
uniform three-year statue of limitations for all contribution actions.” Dissent at 11. But the
legislative history suggests that is just what the National Legislature had in mind, see H.R. Rep. No.
253, pt. I, at 79 (1985) (“This section establishes a three-year statute of limitations for the filing of
an action for contribution for response costs or damages.”), and indeed that history does not
distinguish among types of judicially approved settlements when discussing that limitations period,
see id. (“The statute of limitations [for contribution actions] begins to run at the date of judgment
for recovery of response costs or damages or the date of entry of a judicially approved settlement
with respect to such costs or damages.”). The face of the amendments, more importantly, reveals
a design to codify one limitations period for contribution actions and another period for cost-
recovery actions—one subsection authorizes contribution actions, (entitled “(f) Contribution”);
another places a limitations period on contribution actions, see 42 U.S.C. § 9613(g)(3) (entitled
“(g) Period in which action may be brought” and “(3) Contribution”); whereas a third imposes a
limitations period on cost-recovery actions, see id. § 9613(g)(2) (entitled “Actions for recovery of
costs”).
        To the extent the dissent means to be saying that limitations on contributions actions will
undermine CERCLA’s goal of cleaning up industrial waste sites, that is not the case. The principal
purpose of limitations periods in this setting is to ensure that the responsible parties get to the
bargaining—and clean-up—table sooner rather than later. See H.R. Rep. No. 253, pt. I, at 80 (Early
contribution actions “ha[ve] the effect of bringing all . . . responsible parties to the bargaining table
at an early date.”).
         Nor does this interpretation conflict with decisions of the First and Tenth Circuits. See
Dissent at 9–10. In American Cyanamid Co. v. Capuano, 381 F.3d 6 (1st Cir. 2004), the plaintiff
filed a contribution action for groundwater-cleanup costs during negotiations with the United States
over the recovery of those costs. Pointing to § 113(g)(3)(A), the defendant claimed that a 1988
judgment against the plaintiff for soil-cleanup costs triggered the limitations period for any
contribution action that the plaintiff might bring regarding the site. In rejecting this argument, the
First Circuit held that “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. Our holding follows that approach,
because we likewise construe “such costs or damages” in § 113(g)(3)(B) to refer only to those “costs
or damages” imposed by the judicially approved settlement. See Am. Cyanamid, 381 F.3d at 15
(CERCLA “allows a settling PRP to seek contribution within three years of that settlement for costs
incurred in the settlement.”). Those “costs” here included the costs incurred under RSR’s obligation
to “finance and perform” the as-yet-unfinished remedial work at the Arcanum site. JA 514.
       The plaintiff in Sun Co., Inc. v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir. 1997),
sought recovery under § 107(a) and § 113(f) for costs it incurred remediating a brownfield site. The
Tenth Circuit held that—because the government had never filed a “civil action” against the plaintiff
No. 06-3840           RSR Corp. v. Commercial Metals Co.                                      Page 7


but only issued a unilateral administrative order—the plaintiff’s action was an “initial action for
recovery of . . . costs” and thus was covered by the six-year statute of limitations for cost-recovery
actions: § 113(g)(2). See Sun Co., 124 F.3d at 1192 (internal quotation marks omitted). Indeed,
Sun Co. agreed with our resolution of the only question before us: “If the PRP incurred its cleanup
costs pursuant to a civil action under §§ 106 or 107, it will have three years from the date of
judgment or settlement in which to bring its contribution claim.” Id. at 1193.
        The dissent also rejects our reading of the text on the ground that it is “simply not
practical . . . because future cleanup costs cannot be accurately estimated or determined” in time to
bring a contribution action. Dissent at 10. But there is little question that Congress intended to
impose a limitations period on actions under CERCLA, see 42 U.S.C. § 9613(g) (“Period in which
action may be brought”), and intended a limitations period to apply even before a site was fully
cleaned up, see id. § 9613(g)(2)(B) (initial action to recover remedial costs must commence “within
6 years after initiation of physical on-site construction”).
       To the extent the dissent means to raise a fairness concern, this is not the case to raise it.
RSR knew that the cleanup of the Arcanum site was expected to cost up to $5,800,000 when it
signed the 1999 consent decree, and the effort turned out to be far cheaper than expected, costing
only $2,631,606. If anything, RSR’s expected need for contribution was greater before the cleanup
began, not afterwards.
                                                 III.
       For these reasons, we affirm.
No. 06-3840           RSR Corp. v. Commercial Metals Co.                                         Page 8


                                         _________________
                                             DISSENT
                                         _________________
        CLAY, Circuit Judge, dissenting. The majority finds that a three-year statute of limitations
set forth in 42 U.S.C. § 9613(g)(3)(B) applies to this contribution action. The majority reaches this
conclusion by misconstruing the statute of limitations, which does not apply to this action. I would
reverse the district court’s decision and remand this case to the district court for further proceedings.
        Under CERCLA,
                [a]n 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 . . . and
                (B) for a remedial action, within 6 years after initiation of physical on-
                site construction of the remedial action.
42 U.S.C. § 9613(g)(2). Section 9613(g)(2) sets forth a six-year statute of limitations which applies
only to initial actions seeking recovery of costs for remediation. Contribution actions are governed
by a separate provision. Under 42 U.S.C. § 9613(g)(3),
                [n]o action for contribution for any response costs or damages may
                be commenced more than 3 years after--
                (A) the date of judgment in any action under this chapter for recovery
                of such costs or damages, or
                (B) the date of an administrative order under section 9622(g) of this
                title (relating to de minimis settlements) or 9622(h) of this title
                (relating to cost recovery settlements) or entry of a judicially
                approved settlement with respect to such costs or damages.
42 U.S.C. § 9613(g)(3) (emphasis added). The plain statutory language indicates that Congress
identified specific circumstances which would trigger the statute of limitations contained in
§ 9613(g)(3). “Section 9613(g)(3) lists four events that trigger the running of the statute of
limitations: (1) the entry of a judgment; (2) a § 9622(g) de minimis settlement; (3) a § 9622(h) cost
recovery settlement; and (4) a judicially approved settlement.” Am. Cyanamid Co. v. Capuano, 381
F.3d 6, 11 (1st Cir. 2004); see also Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d
344, 354 (6th Cir. 1998) (same).
        The parties agree that United States v. Shane, No. C-3-89-383 (S.D. Ohio 2005), is the initial
CERCLA action, and that there is no district court judgment that would trigger the statute of
limitations under § 9613(g)(3)(A). The parties also agree that the consent decree in Shane was not
a § 9622(g) de minimis settlement or § 9622(h) cost recovery settlement. There is only one category
remaining which would trigger the statute of limitations: the “entry of a judicially approved
settlement with respect to such costs or damages.” § 9613(g)(3)(B) (emphasis added). This Court
must determine whether this statutory language refers exclusively to § 9622(g) de minimis
settlements and § 9622(h) cost recovery settlements, or if it applies more broadly to other
contribution actions.
No. 06-3840            RSR Corp. v. Commercial Metals Co.                                          Page 9


        In this case, Plaintiff argues that
                [t]he substance of the district court’s error is that it held that the
                phrase in 42 U.S.C. § 9613(G)(3), “with respect to such costs,”
                modifies any response costs and means the same thing as any
                response costs, while Plaintiff . . . assert[s] that “with respect to such
                costs” modifies 42 U.S.C. §§ 9622(g) and (h) settlements and means
                that the limitations period logically applies to such costs that there
                contained within these settlements and not future unknown costs.
(Plaintiff’s Br. at 15). The district court erred in finding that the statute of limitations applied to all
judicially approved CERCLA settlements, and the majority incorrectly reaches the same conclusion.
I strongly believe that the majority’s interpretation of the statute goes beyond the plain language of
the statute and contravenes Congress’ express intent. Since the “entry of a judicially approved
settlement with respect to such costs or damages,” § 9613(g)(3)(B), should be interpreted to mean
a judicially approved settlement for costs or damages under § 9622(g) or § 9622(h), the three-year
statute of limitations simply does not apply in this case. This interpretation of § 9613(g)(3)(B) is
consistent with the plain language of the statute and Congress’ express intent.
        At least two circuit courts of appeals have interpreted the language at issue in this case. See
Sun Co., Inc. v. Browning-Ferris, Inc., 124 F.3d 1187, 1191-92 (10th Cir. 1997); see also Am.
Cyanamid Co., 381 F.3d at 13. These cases support a finding that the three-year statute of
limitations does not apply in this case.
        In Sun Co., Inc., the Tenth Circuit construed 42 U.S.C. § 9613, noting that a “close reading
of [the statute] makes it clear . . . that not all contribution claims have the same statute of
limitations.” 124 F.3d at 1191-92. The Court found that
                [i]f [a] suit proceeds to conclusion, the limitations period begins
                running on the date of judgment. 42 U.S.C. § 9613(g)(3)(A). If the
                parties settle, the limitations period begins running on the date of the
                administrative order embodying the settlement (for § 9622(g) de
                minimis settlements or § 9622(h) cost recovery settlements), or on the
                date of entry of a judicially approved settlement. 42 U.S.C.
                § 9613(g)(3)(B).
 Id. at 1192. The Tenth Circuit held that cases that do not fit within the enumerated categories “will
not trigger the running of the limitations period in [§9613(g)(3)].” Id. Rather, the Court found that
§ 9613(g)(2) contains a six-year statute of limitations that may apply in lieu of §9613(g)(3). Id. The
Tenth Circuit concluded that “because no previous action . . . has been filed with respect to
[defendant], Plaintiffs contribution action . . . is the ‘initial action’ for recovery of such costs.” Id.
(emphasis in original). The Tenth Circuit imposed § 9613(g)(2)’s statute of limitations on cases
“where none of th[e] triggering events [of § 9613(g)(3)] will ever occur.” Id. at 1193. The Court
explained this interpretation of the statute as follows:
                By its own terms, [§ 9613(g)(2)] covers the “initial action” for the
                recovery of [costs in a traditional cost recovery action]. There is no
                question that this language covers a traditional [ ] cost recovery
                action brought by the government or any other person who is not a
                waste-contributing [potentially responsible party]. Nothing in that
                language, however, excludes a contribution action, which also seeks
                to recover an equitable portion of [recovery costs], provided that
No. 06-3840                RSR Corp. v. Commercial Metals Co.                                                       Page 10


                   particular contribution action is the “initial action” to recover such
                   costs.
Id. at 1192. The Tenth Circuit’s approach should not control because CERCLA clearly sets forth
different statutes for contribution claims and initial actions, and because nothing in § 9613(g)(2)
indicates that the statute of limitations may be imposed on a contribution action. Nevertheless, it
is important to note that the Tenth Circuit expressly declined1 to apply the three-year statute of
limitations and applied a longer six-year statute of limitations.
         Notably, the First Circuit has found that “a [potentially responsible party] would not lose the
ability to seek contribution if a phase of a cleanup occurs after three years.” Am. Cyanamid Co., 381
F.3d at 14. In Am. Cyanamid Co., the First Circuit expressly rejected the majority’s position and
declined to find that the statutory language reached all judicially approved CERCLA settlements.
The First Court found that the language at issue in this case – namely, “entry of a judicially approved
settlement with respect to such costs or damages” – refers only to response costs and damages
contained in § 9613(g)(3)(B), specifically those provided under §§ 9622(g) and (h). Id. at 13
(finding “that ‘such costs’ in § 9613(g)(3) refers to the judgment mentioned earlier in the sentence
and identifies a particular claim or payment.”) (footnote omitted).
         Am. Cyanamid Co. recognized that “[a]n environmental cleanup takes many years to
complete. To make the cleanup manageable, it is done in phases.” Id. at 16. The Court properly
interpreted the statute to “allow[ ] for the cleanup and the payment for that cleanup to occur in
phases.” Id. at 14. I find that the First Circuit correctly concluded that a potentially responsible
party should be able to seek contribution from other potentially responsible parties if the
rehabilitation of a hazardous site occurs after three years. Requiring parties to file a contribution
action within three years is sometimes simply not practical, especially in complex environmental
contamination cases, because future cleanup costs cannot be accurately estimated or determined.
Parties may not know the total rehabilitation costs or what the liability of each party may be. This
interpretation of § 9613(g)(3)(B) makes sense; it may not be possible for a cleanup to begin
immediately   and a party may take years to incur sufficient costs for a contribution action to be
warranted.2 This approach is also consistent with the legislative intent underlying CERCLA.
“CERCLA’s ‘essential purpose’ [is] making ‘those responsible for problems caused by the disposal
of chemical poisons bear the costs and responsibility for remedying the harmful conditions they
created.’” Id. at 15 (citation omitted) (alteration in original); see also H.R. Rep. No. 253(I), 99th
Cong., 1st Sess., at 79 (1985) (Congress expressly “clarifie[d] and confirm[ed] the right of a person
. . . under CERCLA to seek contribution from other potentially responsible parties, when the person



         1
           In Centerior Serv., a cost recovery action, this Court found that private parties are entitled to bring contribution
claims under CERCLA. 153 F.3d at 356 (finding “that parties who themselves are [potentially responsible parties],
potentially liable under CERCLA and compelled to initiate a hazardous waste site cleanup, may not bring an action for
joint and several cost recovery, but are limited to actions for contribution.”). Although Centerior mentions Sun Co., Inc.,
the Court specifically noted that “we have no statute of limitations issue before us today,” and expressly stated that “we
need not adopt the Tenth Circuit’s reasoning because a statute of limitations issue is not before our court today.” Id. at
355. Since Centerior did not involve a statute of limitations issue, it does not impact the outcome of this case.
         2
          The majority incorrectly suggests that Plaintiff is less entitled to bring a contribution action because it agreed
to assume all liability for future remedial actions when it entered into the consent decree with the government. Plaintiff
agreed to pay for future remedial costs, but did not waive the right to seek contribution. See H.R. Rep. No. 253(I), 99th
Cong., 1st Sess., at 80 (1985) (“Parties who settle for all or part of a cleanup or its costs . . . can attempt to recover some
portion of their expenses and obligations in contribution litigation from parties who were not sued in the enforcement
action or who were not parties to the settlement.”). Congress recognized that “[p]rivate parties may be more willing to
assume the financial responsibility for some or all of the cleanup if they are assured that they can seek contribution from
others.” Id. Therefore, the consent decree does not impact Plaintiff’s right to bring this contribution action.
No. 06-3840                RSR Corp. v. Commercial Metals Co.                                                    Page 11


believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share
under the circumstances.”).
        In the instant case, the consent decree was an interim remedial agreement. Since interim and
future response costs were simply unknown, it was impossible to identify specific costs or to
anticipate the total expenses. This type of consent decree cannot immediately trigger the three-year
statute of limitations period because exact rehabilitation costs and liability could not be determined
until later. In contrast, under § 9622(g) de minimis settlements and § 9622(h) cost recovery
settlements, parties reach a final settlement with the federal government with specific settlement
amounts and recovery costs and damages. In that context, as Congress expressly mandated,           it is
reasonable and appropriate to immediately trigger the three-year statute of limitations.3 The plain
terms of the statute of limitations indicates that Congress intended the statute to apply to judicially
approved settlements and administrative orders under §§ 9622(g) and (h). The statute, which
features specifically enumerated provisions, does not indicate any intent on the part of Congress to
codify a uniform three-year statute of limitations for all contribution actions. Congress addressed
the problem by
                   establish[ing] a three-year statute of limitations . . . . [that] begins to
                   run at the date of judgment for recovery of response costs or damages
                   or the date of entry of a judicially approved settlement with respect
                   to such costs or damages.
H.R. Rep. No. 253(I), 99th Cong., 1st Sess., at 79 (1985).
        The legislative history clearly shows that Congress intended the statute of limitations to be
triggered by a judgment, § 9613(g)(3)(A), or an administrative order or judicially approved
settlement under §§ 9622(g) or (h), § 9613(g)(3)(B). As Am. Cyanamid Co. recognized, “[i]n
discussing the statute of limitations, Congress referred to § 9613(g)(3)(A) and § 9613(g)(3)(B)
together.” 381 F.3d at 15. Congress narrowly constructed and designated the categories of cases
where the three-year statute of limitations would apply. The statutory language at issue in this case
– the “entry of a judicially approved settlement with respect to such costs or damages” – refers to
the categories Congress specifically enumerated, namely, §§ 9622(g) and (h). This interpretation
is consistent with the fundamental rules of statutory construction, with the plain meaning of the
statute, and with Congress’ intent. The dismissal of this action is improper because there is no
judgment and the consent decree does not fall under § 9622(g) or § 9622(h). Therefore, I would
reverse the district court’s decision and remand this case to the district court for further proceedings.




         3
            In Detrex Corp. v. Ashland Chem. Co., this Court recognized that a CERCLA action for recovery of response
cost activity was time-barred under § 9613(g)(3)(B). 85 F. App’x 462 (6th Cir. 2003) (unpublished case). Detrex
involved a cost recovery settlement which plainly falls under § 9613(g)(3)(B). The underlying consent decree in Detrex
fit within one of the two categories enumerated in the statute of limitations, namely, §§ 9622(g) and (h). Since this action
does not fall under an enumerated provision, Detrex does not contain legal analysis relevant to this case.
