                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0047n.06

                                                 No. 14-5730

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


LWD PRP GROUP,                                                   )                              FILED
                                                                 )                      Jan 14, 2015
       Plaintiff-Appellee,                                       )                  DEBORAH S. HUNT, Clerk
                                                                 )
v.                                                               )
                                                                 )    ON APPEAL FROM THE UNITED
ALCAN CORP. ET AL.,                                              )    STATES DISTRICT COURT FOR
                                                                 )    THE WESTERN DISTRICT OF
       Defendants-Appellants.                                    )    KENTUCKY
                                                                 )
                                                                 )
                                                                 )
                                                                 )



       Before: GIBBONS and COOK, Circuit Judges; GWIN, District Judge*

       GWIN, District Judge. Broadly speaking, this case deals with a party’s effort to obtain

reimbursement for the costs of cleaning up a Superfund site in Calvert City, Kentucky. This appeal

presents a particular legal question: whether the three year statute of limitations for contribution

actions after an administrative settlement to perform a removal action–a broad term defined by

CERCLA to include a variety of activities including “the cleanup or removal of released hazardous

substances from the environment”–begins running when the settlement becomes effective or begins

running when the removal action is completed.




             *
                The Honorable James S. Gwin, United States District Judge for the Northern District of
     Ohio, sitting by designation.
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

          In this case, if the limitations period runs from the settlement’s effective date, the statute of

limitations had already expired before this action was filed. On the other hand, if the limitations

period runs from the completion of the removal action, the statute of limitations defense fails.

          The district court agreed with Plaintiff-Appellee that the statute of limitations for such claims

runs from the completion of the removal action and denied Defendants-Appellants’ motion to

dismiss the contribution claims.1

          After the district court’s decision, we decided virtually the same issue in Hobart Corp. v.

Waste Management of Ohio, Inc.2 In Hobart, we held that a contribution action brought after an

administrative settlement with the United States or a State must be filed within three years of the

settlement’s effective date. With Hobart, we agreed with Defendants-Appellants’ argument

regarding how CERCLA’s statutes of limitations should apply.

          We find nothing distinguishes this case from Hobart and, despite Plaintiff-Appellee’s

invitation, we do not have power to reverse a precedential opinion of this Court. We therefore

REVERSE the district court’s denial of the motion to dismiss Plaintiff-Appellee’s contribution

claims.




                1
               Although not giving a final judgment, the district court certified the question for
     interlocutory appeal.
                2
                    758 F.3d 757 (6th Cir. 2014).

                                                        -2-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

                                                  I. Background

A. CERCLA Background

          Before turning to the facts of this particular case, some background on CERCLA is useful.

In general, CERCLA imposes liability on parties who played a role in polluting a site: by owning

and operating the site; by sending hazardous waste to the site; or by participating in transporting

hazardous waste to the site.3 CERCLA also gives a variety of methods for liable parties to obtain

reimbursement from other liable parties to apportion costs in an equitable fashion.

          For example, parties that voluntarily incur costs can bring cost recovery actions under

CERCLA § 107 against other liable parties.4 CERCLA § 113(f) separately allows contribution

actions for any “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.”5

          We have repeatedly considered the interplay between cost recovery actions and contribution

actions, including most recently in Hobart, where we resolved several issues relevant to this appeal.

          First, in Hobart, we held that a response cost directly incurred by a party that is recoverable

using a § 113(f) contribution action is not also recoverable under the cost recovery provisions of

§ 107.6


                3
               CERCLA § 107(a). For simplicity, throughout this opinion we cite to CERCLA without
     providing the parallel U.S. Code citation. In general, CERCLA § 1xx can be found at 42 U.S.C.
     § 96xx. For example, CERCLA § 107 is codified at 42 U.S.C. § 9607.
                4
                    CERCLA § 107(a)(4)(B); see United States v. Atl. Research Corp., 551 U.S. 128 (2007).
                5
                    CERCLA § 113(f)(3)(B).
                6
                    Hobart, 758 F.3d at 767-68.

                                                          -3-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

        Second, in Hobart, we held that for an administrative settlement to support a contribution

action, it must resolve the plaintiff’s “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.”7 This determination is case-specific,

and requires the court to “interpret the settlement agreement as a contract according to state-law

principles.”8

        Third, in Hobart, we addressed the relevant statute of limitations where the plaintiff seeks

contribution after an administrative settlement. In doing so, we considered two potentially relevant

limitations provisions.

        On one hand, under CERCLA § 113(g)(2)(A), a party seeking to recover the costs of a

removal action under § 107 faces a three year statute of limitations running from the completion of

the removal action.9

        On the other hand, under CERCLA § 113(g)(3) (the “Contribution Limitations Provision”),

a party seeking contribution after an administrative settlement with the EPA that resolves liability

must satisfy a three year statute of limitations running from the settlement’s effective date.10




                7
                    Id. at 768 (quoting CERCLA § 113(f)(3)(B)).
                8
                    Id. (citation omitted).
                9
                CERCLA § 113(g)(2)(A) (“An initial action for recovery of the costs referred to in section
      [107] 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 [104(c)(1)(C)] for continued response action . . . .”).
                10
                   CERCLA § 113(g)(3) (“No 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 [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.”).

                                                         -4-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

        We concluded in Hobart that CERCLA’s Contribution Limitations Provision gives a three

year statute of limitations on all actions for contribution after an administrative settlement.11 The

Contribution Limitations Provision mentions two types of administrative settlements, those reached

under CERCLA § 122(g) or CERCLA § 122(h), and expressly provides that the statute of limitations

begins to run on the effective date of these kinds of settlements.12

        In Hobart, we also recognized that administrative settlements other than those expressly

referenced in CERCLA’s Contribution Limitations Provision can give rise to contribution rights.

For example, although the settlement in Hobart was reached under § 122(a)–not a type of settlement

mentioned in the Contribution Limitations Provision–it nonetheless gave rise to contribution rights

because it resolved liability.13

        In Hobart, we further observed that the Contribution Limitations Provision was silent on the

triggering date for the statute of limitations for these types of administrative settlements. We

rejected the idea that the statute of limitations should have no starting date. Instead, we “borrowed”

an analogous triggering event.14 We concluded that the most similar triggering event was the

effective date of the agreement that gave rise to the right to pursue the contribution action.15




              11
                 Hobart, 758 F.3d at 772 (citing RSR Corp. v. Commercial Metals Co., 496 F.3d 552, 556,
      558 (6th Cir. 2007)).
              12
                   CERCLA § 113(g)(3).
              13
                   Hobart, 758 F.3d at 774-75.
              14
                   Id.
              15
                   Id. at 775.

                                                     -5-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

       In reaching these conclusions, we rejected a number of contrary arguments, including the

argument that because the Contribution Limitations Provision gave some triggering events, it should

not apply outside the presence of the identified triggering events.16

B. Factual Background

       The LWD Incinerator Site is part of the LWD, Inc. Superfund site in Calvert City,

Kentucky.17 From the 1970s to 2004, a hazardous waste incinerator operated at the site.18 After the

last-known owner and operator abandoned the site, the EPA conducted initial waste removal

activities at the request of the Kentucky Department of Environmental Protection.19

       The EPA identified potentially responsible parties (“PRPs”) and, on March 1, 2007, it

entered an “Administrative Settlement Agreement and Order on Consent for Removal Action”

(“Settlement Agreement”) with fifty-eight of the responsible parties.20 The Plaintiff-Appellee in this

case, the LWD PRP Group, is an association composed of some of these fifty-eight PRPs.21

       Under the Settlement Agreement’s terms, the fifty-eight PRPs agreed to carry out certain

removal activities at the site and to compensate the EPA for future response costs.22 On September




             16
                  Id. at 774-75.
             17
                  R. 758 at 4 (Second Amended Complaint at 4).
             18
                  R. 758 at 5-6 (Second Amended Complaint at 5-6).
             19
                  R. 758 at 6-7 (Second Amended Complaint at 6-7).
             20
                  R. 758 at 8 (Second Amended Complaint at 8); R. 776-3 (Settlement Agreement).
             21
                  R. 758 at 8 (Second Amended Complaint at 8).
             22
                  R. 776-3 at 9-10, 17-18 (Settlement Agreement at 9-10, 17-18).

                                                       -6-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

29, 2009, the EPA issued a notice of completion of the removal activities specified in the Settlement

Agreement.23

       The parties respectively argue that these two dates–the September 29, 2009, completion date

and the March 1, 2007, settlement date –started the statute of limitations on Appellee’s claims for

contribution of costs it incurred under the Settlement Agreement. Appellee says the statute of

limitations should run from the date it completed removal activities under the settlement. Appellants

argue that the statute of limitations runs from the effective date of the administrative settlement.

       On August 31, 2012, Appellee filed the current lawsuit, naming many defendants, including

some of the Appellants.24 Appellee also executed tolling agreements with other potential defendants,

including the remaining Appellants.25 These Appellants were added in the First Amended

Complaint.26 Appellee later filed a Second Amended Complaint, correcting the names of certain

parties and adding the record title holder of the site as a new defendant.27

       The Second Amended Complaint sought a variety of forms of relief, including cost recovery

under CERCLA § 107 and contribution under CERCLA § 113(f).28




             23
                  R. 758 at 8 (Second Amended Complaint at 8).
             24
                  R. 1 (Complaint).
             25
                  R. 914-3 (Tolling Agreements).
             26
                  R. 581 (First Amended Complaint).
             27
                  R. 758 (Second Amended Complaint).
             28
                  R. 758 at 241-245 (Second Amended Complaint at 241-245).

                                                       -7-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

       Appellants sought dismissal of Appellee’s § 113(f) contribution claims on statute of

limitations grounds.29 The central question is whether the three year statute of limitations began to

run on the Settlement Agreement’s effective date of March 1, 2007, as Appellants contend, or on

the completion of the removal action on September 29, 2009, as Appellee says.

       Resolving this legal question will determine the success of Appellants’ statute of limitations

defense. That is, Appellants do not appear to dispute that the defense would fail if the clock began

running when the removal action was completed. Likewise, Appellee does not appear to dispute that

its § 113(f) contribution claims would be time-barred if the clock began running on the Settlement

Agreement’s effective date.

       The district court agreed with Appellee that the completion date should start the clock, and

therefore denied Appellants’ motion to dismiss the § 113(f) contribution claims on statute of

limitations grounds.30 It later denied a motion for reconsideration of this ruling, but also certified

that issue for interlocutory review.31 We granted the petition for interlocutory review.32

       We now consider the issue, guided by Hobart Corp. v. Waste Management of Ohio, Inc.,33

which was decided after the district court denied the motion to dismiss and after the certification of

the issue for interlocutory appeal.


             29
                  R. 776 (Motion to Dismiss).
             30
                  R. 961 (Dist. Ct. Op.).
             31
                  R. 1012 (Dist. Ct. Op.); R. 1014 (Dist. Ct. Order).
             32
                R. 1033 (Order Accepting Appeal). Appellee has filed a Third Amended Complaint that
     does not differ from the Second Amended Complaint in any respect relevant to this appeal. R. 985
     (Third Amended Complaint).
             33
                  758 F.3d 757 (6th Cir. 2014).

                                                         -8-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

                                                   II. Analysis

A. Standard of Review

       Appellants challenge the district court’s denial of their motion to dismiss Appellee’s § 113(f)

contribution claims. The issue is properly before us under the procedures for interlocutory review

set out in 28 U.S.C. § 1292(b). All issues we address in this case are purely legal, so our review is

de novo.34 In the interlocutory review setting, “‘even those issues not properly certified are subject

to our discretionary power of review if otherwise necessary to the disposition of the case.’”35

B. Hobart Is on Point and Controlling

       Given the similarities with Hobart, this case is relatively straightforward. In Hobart we held

that an EPA settlement (the “Hobart Agreement”) was an administrative settlement that resolved

liability to the United States. The contribution action seeking costs incurred under that settlement

was thus subject to a three year statute of limitations running from the agreement’s effective date.

We relied on four factors. Each is also present in the Settlement Agreement in this case.

       First, the Hobart parties included language in their agreement that stated their intent that the

agreement be an administrative settlement: “‘The Parties agree that this Settlement Agreement

constitutes   an      administrative       settlement      for   purposes       of   Section        113(f)(3)(B)   of

CERCLA . . . pursuant to which [Appellants] have, as of the Effective Date, resolved their liability




              34
                   See Mich. Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862, 865 (6th Cir. 2000).
              35
               In re Trailer Source, Inc., 555 F.3d 231, 245 (6th Cir. 2009) (quoting Easley v. Pettibone
     Mich. Corp., 990 F.2d 905, 912 (6th Cir. 1993)).

                                                         -9-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

to the United States for the Work, and Future Response Costs.’”36 The Settlement Agreement in the

present case says exactly the same thing.37

       Second, the Hobart Agreement provided that its settling parties were “‘entitled, as of the

Effective Date, to protection from contribution actions or claims as provided by Sections 113(f)(2)

and 122(h)(4) of CERCLA.’”38 As we explained, “[f]or this paragraph to have any meaning and

Appellants to receive any protection from contribution actions, the [Hobart Agreement] must be an

administrative agreement under § 113(f).”39 The Settlement Agreement in the present case includes

identical language.40

       Third, we noted in Hobart that “the parties titled the [Hobart Agreement] an

“‘Administrative Settlement Agreement and Order on Consent.’”41 “In doing so,” we observed, “the

parties precisely matched the statutory language in § 113(f)(3)(B).”42 Similarly, the Settlement

Agreement in this case is titled “Administrative Settlement Agreement and Order on Consent for

Removal Action.”43


             36
                 Hobart, 758 F.3d at 768-69 (quoting the Hobart Agreement) (emphasis added in Hobart)
     (alteration and omission in original).
             37
                  R. 776-3 at 25 (Settlement Agreement at 25).
             38
                  Hobart, 758 F.3d at 769 (quoting the Hobart Agreement).
             39
                  Id. (citation omitted).
             40
                  R. 776-3 at 25 (Settlement Agreement at 25).
             41
                   Hobart, 758 F.3d at 769 (quoting the Hobart Agreement) (emphasis added in Hobart). The
     full title of the Hobart Agreement was “Administrative Settlement Agreement and Order on Consent
     for Remedial Investigation/Feasibility Study.” Hobart Agreement at 1, Hobart Corp. v. Waste Mgmt.
     of Ohio, Inc., No. 3:10-00195 (S.D. Ohio May 24, 2010), ECF No. 1-1.
             42
                  Hobart, 758 F.3d at 769.
             43
                  R. 776-3 at 1 (Settlement Agreement at 1).

                                                       -10-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

       And fourth, the Hobart agreement contained a covenant from the EPA “‘not to sue or take

administrative action against [Appellants] pursuant to Sections 106 and 107(a) of CERCLA . . . for

the Work and Future Response Costs.’”44 The Settlement Agreement in the present case contains

the same provision with almost identical language.45

       In sum, all of the factors that led us to conclude that the Hobart Agreement qualified as an

administrative settlement that could support a contribution action are present in the Settlement

Agreement in this case.

       Further, we concluded that the Hobart Agreement was a CERCLA § 122(a) settlement, a

type of settlement not expressly mentioned in CERCLA’s Contribution Limitations Provision, rather

than a § 122(h) settlement, a type that is mentioned.46 We then concluded that because the claims

in Hobart, like the ones at issue here, were for contribution towards costs incurred under an

administrative settlement that resolved liability to the United States, the three year statute of

limitations for contribution actions nonetheless applied.47 In the absence of a triggering event, we



              44
                   Hobart, 758 F.3d at 769 (quoting the Hobart Agreement) (alteration and omission in
     original).
              45
                   R. 776-3 at 22 (Settlement Agreement at 22).
              46
                 Hobart, 758 F.3d at 774-75. Some of the aspects of the Hobart Agreement that led us to
     conclude it was a § 122(a) agreement apply here as well. For example, the Settlement Agreement was
     not published in the Federal Register, and in listing statutory authority, the Settlement Agreement
     references only § 122 generally, rather than specifically mentioning § 122(h). Appellee’s Brief at 19-
     20 (stating that the Settlement Agreement was not published in the Federal Register); R. 776-3 at 3
     (Settlement Agreement at 3) (citing § 122 generally, not § 122(h) specifically); see Hobart, 758 F.3d at
     774. On the other hand, some of the language in the Hobart Agreement that contributed to our
     conclusion that that agreement was a § 122(a) settlement by directly referencing § 122(a), Hobart, 758
     F.3d at 774 (quoting the Hobart Agreement), does not appear in the Settlement Agreement in the
     current case. We need not resolve whether the Settlement Agreement in the present case is a § 122(a)
     or § 122(h) settlement because Hobart dictates that in either case, the applicable statute of limitations
     is three years measured from the Settlement Agreement’s effective date.
              47
                   Hobart, 758 F.3d at 774-75.

                                                       -11-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

“borrowed” the most analogous triggering event. We then found the effective date of the Settlement

Agreement the most analogous starting point.48

C. Appellee’s Counter-Arguments Fail

       Appellee insists that the Settlement Agreement in the present case is a § 122(a) settlement

primarily intended to facilitate the completion of a removal action, and that the triggering event for

the statute of limitations should therefore be the completion of that removal action. But even if

Appellee is correct that the Settlement Agreement is a § 122(a) settlement–an issue we need not

resolve–Hobart requires the application of a three year statute of limitations running from the

Settlement Agreement’s effective date, not from the removal action’s completion.

       Appellee says that the Contribution Limitations Provision should not be read to apply to

contribution actions for costs incurred under types of administrative agreements it does not expressly

mention. Appellee argues that doing so would impermissibly render that provision’s enumeration

of certain triggering events meaningless.49 But as Appellee appears to recognize, we considered and

rejected this argument in Hobart.50




              48
                   Id. at 775.
              49
                   (Appellee’s Brief at 22-27).
              50
                Id. at 23-24 (“In effect, this Court rewrote § 113(g)(3) in Hobart . . . .”); see Hobart, 758
     F.3d at 774-75 (rejecting a similar expressio unius argument).

                                                        -12-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

       Appellee also argues that our decision in ITT Industries, Inc. v. BorgWarner, Inc.51 prevents

application of CERCLA’s Contribution Limitations Provision to settlements of the type at issue

here.52 But this argument was also rejected in Hobart.53

       Further, Appellee says that our interpretation in Hobart insufficiently accounts for what it

calls the “Atlantic Research gap.”54 By this, Appellee means that it believes that a footnote in the

Supreme Court’s Atlantic Research decision established that reimbursement is sometimes available

under both § 107’s cost recovery provisions and § 113(f)’s contribution provisions.55 Accordingly,

Appellee says, in such cases, CERCLA § 113(g)(2)’s statute of limitations for actions to recover the




              51
                   506 F.3d 452 (6th Cir. 2007).
              52
                   (Appellee’s Brief at 26).
              53
                  758 F.3d at 772 n.12 (“To the extent that ITT Industries holds that § 113(g)(3) governs only
     contribution actions stemming from § 122(g) or (h) settlements, [our prior decision in] RSR
     Corporation forecloses such a result.” (internal citation omitted)).
                Moreover, ITT Industries was concerned with whether a § 113(f) contribution action could be
     brought for costs incurred under a particular § 122(a) settlement at all, not with what the statute of
     limitations would be. And although there is language in that case suggesting that no contribution
     action was permitted for costs incurred under § 122(a) settlements, ITT Indus. Corp, 506 F.3d at 461
     (“[W]e must interpret § 113(g)’s omission of settlements reached pursuant to § 122(a) to mean that
     settlements under that subsection are insufficient to constitute an administratively approved settlement
     under § 113(f)(3)(B).”), that language came only after we had already concluded that the settlement in
     question did not resolve any liability. Id. at 459-60.
                We have subsequently held that “the defining feature of an ‘administrative settlement’ is that
     the agreement ‘resolve[s] [the PRP’s] liability to the United States or a State for some or all of a
     response action for some or all of the costs of such action . . . .’” Hobart, 758 F.3d at 768 (quoting
     CERCLA § 113(f)(3)(B)) (alterations and omission in original). On this understanding, the language
     in question from ITT Industries merely provided additional support for a holding that was already
     determined by the conclusion that the agreement at issue in that case did not resolve any liability.
     Thus, Hobart concluded that a § 122(a) settlement that differed from the ITT Industries agreement in
     that it resolved liability could support a § 113(f) contribution claim.
                Both parties at least implicitly accept that interpretation here, (Appellee’s Brief at 16);
     (Appellants’ Brief at 13), and we accept it as well.
              54
                   (Appellee’s Brief at 14-17).
              55
                   See Atl. Research Corp., 551 U.S. at 139 n.6.

                                                        -13-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

cost of removal actions, which does not begin to run until the removal action is completed, is more

appropriate.56

        But Appellee overreads Atlantic Research. The footnote it cites merely reserves the question

of whether the remedies overlap or not.57 Moreover, in Hobart, we clarified that even if a settlement

requires PRPs to perform a removal action, a lawsuit to recover the costs of that removal action is

a contribution action under § 113(f), not a cost recovery action under § 107, and is thus subject to

the ordinary statute of limitations for contribution actions.58

        Next, Appellee says that legislative history supports its reading of CERCLA’s statute of

limitations provisions.59 Appellee did not make this argument to the district court, and it is therefore

forfeited.60 Moreover, it is foreclosed by Hobart, where it was raised and thus implicitly rejected.61

        Because a panel of this Court may not overturn a prior panel’s reported decision, we need

not, and will not, revisit any of the above arguments, which we have already rejected in Hobart.

        Appellee’s policy arguments against the result reached in Hobart fare no better. Appellee

says that Hobart has created and will continue to create premature litigation and has undermined and

will continue to undermine the EPA’s ability to agree to early settlements.62 As with Appellee’s


              56
                   (Appellee’s Brief at 14-17).
              57
                 Atl. Research Corp., 551 U.S. at 139 n.6 (“We do not decide whether [costs analogous to
      those in question here] are recoverable under § 113(f), § 107(a), or both.”).
              58
                   Hobart, 758 F.3d at 772.
              59
                   (Appellee’s Brief at 29-34).
              60
                   R. 914 (Response to Motion to Dismiss).
              61
                   See Appellants’ Brief at 34-38, Hobart, 758 F.3d 757 (No. 13-3273), ECF No. 54.
              62
                   (Appellee’s Brief at 34-38).

                                                       -14-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

other arguments for why Hobart should have been decided differently, only the full court, sitting

en banc, would have power to reverse Hobart’s holding.

        Finally, Appellee argues that the parties intended the statute of limitations to run from the

completion of the removal action, rather than from the effective date of the Settlement Agreement.

In support, Appellee points to the fact that many of the Appellants signed tolling agreements more

than three years after the Settlement Agreement’s effective date.63 Appellee argues that “[t]he

intentions of the parties to the [Settlement Agreement] (EPA and [Appellee] LWD PRP Group),

coupled with the intentions of the parties to the tolling agreements (EPA, [Appellee] LWD PRP

Group, and [some of the Appellants]), must be taken into account by this Court in interpreting these

two relevant contracts central to the statute of limitations issue.”64

        This argument fails for several reasons. First, Appellee forfeited it by failing to advance it

before the district court.65

        Second, even if we overlooked this forfeiture, the tolling agreements did no more than

exclude a defined “tolling period” from counting towards the statute of limitations or other time

based defenses in order to “facilitate settlement negotiations.”66 This does not, as Appellee suggests,

necessarily mean that Appellants believed the statute of limitations had not yet run. It could mean,


              63
                   (Appellee’s Brief at 20-21).
              64
                  (Appellee’s Brief at 21). Appellee asserts that the EPA was a party to the tolling
      agreements, but the tolling agreements included in the record nowhere mention the EPA. See R. 914-3
      (Tolling Agreements). The signature pages for the tolling agreements were not filed due to volume, R.
      914 at 28 n.8 (Response to Motion to Dismiss at 21 n.8), which makes it difficult to conclusively
      determine whether the EPA was a party to the tolling agreements. Even if the EPA were a party to the
      tolling agreements our analysis would remain unchanged.
              65
                   R. 914 (Response to Motion to Dismiss).
              66
                   R. 914-3 at 1 (Tolling Agreements at 1).

                                                        -15-
No. 14-5730, LWD PRP Group v. Alcan Corp. et al.

for example, that Appellants valued a settlement because litigating the statute of limitations issue

would be expensive and potentially uncertain.

       Moreover, the limitations period is statutory, not contractual. The EPA and Appellee did not

have the power to agree to lengthen the time within which the Appellee could bring claims against

third parties, even if the Settlement Agreement had clearly expressed their intent to do so. And even

if Appellee were correct that Appellants shared a mistaken understanding of the limitations period

when they entered into the tolling agreements, that would not prevent Appellants from later asserting

the defense as long they did so timely under the Federal Rules of Civil Procedure.

       The only way that Appellee could potentially leverage the tolling agreements in this case is

to assert that the parties to them intended not only to exclude the time listed, but also to waive any

already accrued statute of limitations defense. The language of the agreements, however, provides

no support for such a reading. Rather, it simply excludes a certain period of time.67 Furthermore,

some of the Appellants did not sign tolling agreements, as they had already been named in the initial

complaint.68

                                              III. Conclusion

       For the foregoing reasons, we REVERSE the district court’s order denying Defendants-

Appellants’ motion to dismiss Plaintiff-Appellee LWD PRP Group’s § 113(f) contribution claim.




               67
                Cf. John Hancock Fin. Servs., Inc. v. Old Kent Bank, 346 F.3d 727, 733-34 (6th Cir. 2003)
     (upholding a grant of summary judgment on claims for which the statute of limitations had run prior to
     the execution of a tolling agreement).
               68
              R. 1 (Complaint) (including some of the Appellants as defendants); R. 914-3 at 5-8 (Tolling
     Agreements at 5-8) (not including these Appellants on the list of parties to the tolling agreements).

                                                     -16-
