In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-3235 

REFINED METALS CORPORATION, 

Plaintiff-Appellant, 

v.

NL INDUSTRIES INC., 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division. 

No. 1:17-cv-02565 — Sarah Evans Barker, Judge. 

____________________ 

ARGUED MARCH 25, 2019 — DECIDED AUGUST 22, 2019 

____________________ 

Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit 

Judges. 

WOOD, Chief Judge. This is a case about who should bear 

the costs of cleaning up a contaminated lead smelter site in 

Beech Grove, Indiana, a suburb of Indianapolis. Plaintiff Refined Metal Corporation (“Refined”) has owned the site since 

1980, when it acquired it from defendant NL Industries Inc. 

(“NL”). After years of litigation involving both the federal En-
2 No. 18-3235 

vironmental Protection Agency (“EPA”) and the Indiana Department of Environmental Management (“IDEM”), Refined 

entered into a settlement with both agencies in 1998. The 1998 

Decree, as we will call it, required Refined to close the site, 

pay a $210,000 fine, and remedy the contamination. For their 

part, EPA and IDEM agreed not to bring suit against Refined 

on at least some of their potential claims (though the parties 

dispute the scope of those covenants). These covenants not to 

sue took effect immediately upon the entry of the 1998 Decree. 

In 2017, almost 19 years later, Refined sued NL to recoup 

some of the cleanup costs for which it is responsible. 

A delay of 19 years is a long time to keep an entitlement to 

reimbursement up in the air. The question before us is 

whether it is so long that Refined lost its statutory right to 

bring this action. The district court found that Refined’s claim 

qualified as a “contribution action” under section 113(f)(3)(B) 

of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9613(f)(3)(B). 

Contribution claims are subject to a three-year statute of limitations, and so the court dismissed the suit on that ground. It 

also relinquished supplemental jurisdiction over Refined’s 

state law claims. On appeal, Refined argues that its suit is instead a “cost-recovery” action under section 107(a) of 

CERCLA, 42 U.S.C. § 9607(a), and that it would be timely under that subsection’s more permissive limitations period. NL 

contends that it wins no matter which CERCLA provision applies, given that the statute of limitations applicable to section 

107(a) is only six years and, as NL sees things, that clock began running and expired long ago. 
No. 18-3235 3

It matters, in our opinion, whether this is a section 

113(f)(3)(B) contribution action or a section 107(a) cost-recovery case. If it were the latter, we would need to conduct a 

searching examination of what actions to clean up the site anyone has taken, and when. But we can skip that inquiry, because we agree with the district court that this is a section 

113(f)(3)(B) contribution action, and the limitations period 

had expired by the time Refined filed suit. We therefore affirm 

the decision of the district court. 

I 

CERCLA, commonly known as the Superfund Act, “shifts 

the cost of [an environmental] cleanup to the parties responsible for creating the hazard and away from taxpayers, who 

otherwise would be left to pick up the bill.” NCR Corp. v. 

George A. Whiting Paper Co., 768 F.3d 682, 689 (7th Cir. 2014). 

The statute identifies who may be held liable; they are called 

“potentially responsible parties” or PRPs in the jargon of environmental law. If a PRP believes that it has paid or may become liable for paying “cleanup costs in excess of its fair 

share,” id., the statute permits it to seek compensation from 

other PRPs. 

There are two such routes available to someone seeking to 

recover from a PRP: a section 107(a) “cost-recovery” action 

and a section 113(f) “contribution” action. Bernstein v. Bankert, 

733 F.3d 190, 206 (7th Cir. 2013). A plaintiff such as Refined 

will often prefer to proceed under the cost-recovery provision 

in section 107(a), because it not only contains a longer statute 

of limitations, but it also bars defendants from asserting equitable defenses. NCR Corp., 768 F.3d at 690. These plaintifffriendly provisions make sense: section 107 generally, if not 

always, operates as an avenue for recovering “costs incurred 
4 No. 18-3235 

during a self-initiated environmental cleanup” rather than 

one spurred by a lawsuit or settlement. Id. But if either statutory trigger for a section 113(f) contribution action is present—a qualifying lawsuit under section 113(f)(1) or a qualifying settlement under section 113(f)(3)(B)—the plaintiff may 

proceed only under that provision. See Bernstein, 733 F.3d at 

206 (“[A] plaintiff is limited to a contribution remedy when 

one is available.”). 

The statutory trigger at issue in this case is the one spelled 

out in section 113(f)(3)(B), which creates a right to contribution for a party that 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.” (A “response” is a term of art in 

CERCLA that encompasses both short-term “removal” actions and more permanent “remedies” or “remedial actions.” 

42 U.S.C. § 9601(25)). The district court found that the 1998 

Decree resolved enough of Refined’s liability to qualify as “an 

administrative or judicially approved settlement” under section 113(f)(3)(B). Since the three-year clock for contribution 

suits starts when the settlement is entered, the district court 

ruled that the statute of limitations ran out in 2001 and this 

suit was time-barred. 

On appeal, Refined advances nine issues, which we have 

reorganized into three principal arguments, in support of its 

contention that the 1998 Decree did not trigger a section 

113(f)(3)(B) contribution claim. If it is correct, and if other conditions were satisfied, then it would be able to pursue a section 107 cost-recovery claim. First, Refined asserts that its refusal to admit liability in the 1998 Decree meant that the Decree did not actually “resolve[] its liability to the United States 
No. 18-3235 5

or a State for some or all of a response action,” as the statute 

requires. Second, Refined argues that only settlements that resolve liability for CERCLA-specific violations qualify as predicates for section 113(f)(3)(B) claims. As Refined reads it, the 

1998 Decree included only covenants from the agencies not to 

sue Refined under other statutes—in particular, the Resource 

Conservation and Recovery Act (RCRA) and the Clean Air 

Act—and left Refined’s CERCLA liability open. Refined asks 

us to find that this is an independent reason that the 1998 Decree could not have triggered a contribution action. Third, Refined argues that it could not have sought a “contribution” 

from NL because, in its view, NL and Refined are not “joint 

tortfeasors.” We address its arguments in that order. 

A 

In determining whether the 1998 Decree qualified under 

section 113(f)(3)(B), Refined urges us to focus on the presence 

or absence of an admission of liability. But that is not the central inquiry. We recognize that in Bernstein, we found that a 

settlement had not resolved enough of the PRP’s liability to 

trigger a section 113(f)(3)(B) claim, but the circumstances are 

important. We reached this result when (1) the settlement expressly stated that the defendant companies did not admit 

any liability or the validity of the EPA’s findings; and (2) the 

covenants not to sue were not immediately effective, but instead were conditional on complete performance of the terms 

of the settlement. 733 F.3d at 212. The district court in this case 

found it “clearer than a remediated stream” which of the two 

factors the Bernstein court found dispositive: the lack of an immediately effective covenant not to sue. The Bernstein court 

emphasized that “if the EPA had included an immediately effective promise not to sue as consideration for entering into 
6 No. 18-3235 

the agreement, the situation would be different.” Id. at 213 (emphasis added). We have in this case that “different” situation. 

Bernstein also noted that it was “very difficult to say, in light 

of [a section from the settlement in which the defendant companies refused to admit liability], that the agreement between 

the parties constituted a resolution of liability.” Id. at 212. 

And we do not need to guess what effect each of the two 

factors Bernstein identified would have in isolation, because 

we have revisited this topic. In NCR Corp.—a case Refined 

does not even cite in its opening brief—we found that a settlement’s inclusion of an immediately effective covenant not to 

sue meant that a PRP had “resolved its liability ... for some or 

all of a response action,” which in turn started the clock on a 

contribution claim. 768 F.3d at 682. In its reply brief, Refined 

points out that “the NCR Court makes no mention of a nonadmission clause, an issue raised in Bernstein.” But that is precisely why NCR dooms Refined’s argument. In NCR, the only

factor that the court explicitly discussed as a reason for distinguishing the settlement from the one in Bernstein was the immediate effectiveness (as opposed to conditional nature) of 

the covenant not to sue. Granted, the court noted that the settlement before it “diverge[d] in every meaningful way from 

the one in Bernstein that left section 107(a) liability available.” 

768 F.3d at 692. Yet its reasoning leaves no doubt that the immediately effective covenant not to sue was the dispositive 

point. Because that factor is present in this case, the mere fact 

that Refined refused to admit liability is not enough to exempt 

the 1998 Decree from the reach of section 113(f)(3)(B). 

 
No. 18-3235 7

B 

We now turn to the scope of the covenants not to sue that 

were included in the 1998 Decree. All agree that they were not 

comprehensive. Both EPA and IDEM included clauses reserving their rights to file suit under particular statutes. The question relates to both the content and the effect of those reservation clauses—in particular, their effect on Refined’s eligibility 

for a contribution remedy as of the date of the Decree. Refined 

asserts that the Decree left its CERCLA liability unaffected, 

and that at least some of its liability specifically for a violation of 

CERCLA would have to be resolved in order for the 1998 Decree to support a section 113(f)(3)(B) contribution action. NL 

disputes both of these points. It argues that the Decree actually did resolve some of Refined’s CERCLA-specific liability, 

since IDEM’s reservation clause says nothing about CERCLA, 

suggesting that the state agency had given up the ability to 

proceed under that statute. NL also contends that none of this 

matters. As it reads section 113(f)(3)(B), a settlement need only 

resolve some portion of a PRP’s liability for a cleanup—under 

any statute—in order to trigger a contribution action. We 

agree with the latter point: a settlement need not resolve 

CERCLA-specific liability in order to start the clock on a contribution action. 

Multiple reasons support an interpretation of section 

113(f)(3)(B) that does not limit covered settlements to those 

that specifically mention CERCLA. First, the other trigger for 

a contribution action—section 113(f)(1), which allows parties 

to seek contribution “during or following any civil action under section 9606 of this title or under section 9607(a) of this 

title”—explicitly limits its applicability to civil actions 
8 No. 18-3235 

brought under CERCLA. “[W]here Congress includes particular language in one section of a statute but omits it in another 

section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 

(1983) (internal citation and quotation marks omitted). While 

this maxim should not be applied mechanically, the disparity 

between these two closely related subsections in section 113(f) 

is a strong indication that Congress meant for the universe of 

qualifying settlements under section 113(f)(3)(B) to be 

broader than those specifically mentioned in section 113(f)(1). 

There is further support for this reading in the text and 

structure of the Act. The trigger for section 113(f)(3)(B) encompasses settlements that leave at least some liability open, 

given that this subpart of the statute describes a qualifying 

settlement as one that “has resolved [a defendant’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.” (Emphasis 

added). We have observed that CERCLA does not favor “slicing and dicing of costs incurred under the same administrative order ... .” NCR Corp., 768 F.3d at 692. The same logic applies here. The text demonstrates Congress’s intention to encourage parties that have reached even a partial settlement 

with respect to a contaminated site to act expeditiously in 

identifying costs, seeking compensation where necessary and 

completing the required cleanup. 

Refined’s reading of section 113(f)(3)(B), in contrast, 

would allow settling parties to drag out the process of seeking 

those funds until they “initiat[ed] ... physical on-site construction of the remedial action”—in other words, until the 

six-year statute of limitations for a cost-recovery action under 
No. 18-3235 9

section 107(a) begins to run. As Refined sees things, despite 

years of cleanup work on the site, that clock did not start here 

until the EPA approved “final corrective measures” in 2014. 

We do not need to decide whether the 1998 Decree actually 

did permit Refined to wait almost two decades before undertaking the requisite on-site construction. (Recall NL’s backup 

argument that Refined long ago undertook enough work on 

the site to start and eventually run out the 107(a) clock.) That 

is a question of interest only to Refined and the EPA. Our concern is with Refined’s right to insist that someone else—here, 

NL—share that bill. In that connection, it is worth noting that 

Refined’s reading of the statute would have allowed it to wait 

almost 19 years before filing suit to recover any costs from NL 

for any actions covered by CERCLA that were incurred in the 

course of complying with the 1998 Decree. 

We would need a much stronger statutory basis than we 

have before we would adopt that position. As the district 

court noted, it would undermine the purpose of a statute of 

limitations if “a plaintiff [could] choose when a limitation period to which it is subject begins to run.” That is effectively 

the rule that Refined asks us to bless here. Short statutes of 

limitations encourage swift action, and that is the regime Congress chose for the settlement trigger in section 113(f)(3)(B). 

The statutory text also specifically contemplates settlements that resolve liability under state, rather than federal, 

law. This makes it even more unlikely that Congress was concerned only with liability under the federal CERCLA statute. 

Section 113(f)(3)(B) speaks of settlements that resolve liability 

“to the United States or a State for some or all of a response 

action.” States have an independent right of action under 

CERCLA. See Niagara Mohawk Power Corp. v. Chevron U.S.A., 
10 No. 18-3235 

Inc., 596 F.3d 112, 126–27 (2d Cir. 2010) (“Under CERCLA, 

states have causes of action independent from the federal government.”). But states also have myriad environmental laws 

of their own that might be implicated by an enforcement action. See, e.g., CERCLA § 121(e)(2), 42 U.S.C. § 9621(e)(2), stating that “[a] State may enforce any Federal or State standard, 

requirement, criteria, or limitation to which the remedial action is required to conform under this chapter ... .” Perhaps 

there are state environmental statutes or enforcement actions 

that are so far afield from CERCLA and its concerns that a defendant subject only to state enforcement action would not be 

on notice that a federal clock was ticking. But that is not the 

case before us. Indiana settled with Refined in 1998 at the 

same time as the federal government, and the EPA’s reservation clause shows that the cleanup implicated CERCLA. 

Whatever the scope of the EPA’s covenant not to sue, Refined 

certainly resolved its liability to “a State for some or all of [the] 

response action.” 

Refined expresses a practical concern about this straightforward reading of the statute. The 1998 Decree began a yearslong period of cleanups that required federal oversight and 

approval, culminating in the EPA’s 2014 approval of “final 

corrective measures.” Refined objects that a three-year statute 

of limitations would require it to initiate a contribution action 

long before the full scope of its liability became certain. But 

that is nothing new: in tort law, the statute of limitations begins running on the day of the accident, even though damages 

such as the full cost of medical care and lost income often 

must be estimated, since they stretch far into the future. In addition, as the district court noted, “NCR rejected as contrary 

to Bernstein and common sense the notion that no settlement 

‘resolves’ liability until the work under it is complete.” We 
No. 18-3235 11

also agree with the district court that a declaratory judgment 

could help mitigate such ex ante uncertainty. CERCLA section 

113(g)(2), which governs the statute of limitations for section 

107(a) actions, anticipates this problem by requiring courts to 

“enter a declaratory judgment on liability for response costs 

or damages that will be binding on any subsequent action or 

actions to recover further response costs or damages.” 42 

U.S.C. § 9613(g)(2). We see no reason why the lack of such a 

mandatory provision in section 113(f) should be read to strip 

courts of their discretionary power to issue declaratory judgments in such cases, where appropriate. 

Finally, our holding is consistent with those of the majority of circuits that have considered the question. See Asarco 

LLC v. Atlantic Richfield Company, 866 F.3d 1108, 1120–21 (9th 

Cir. 2017); Trinity Industries, Inc. v. Chicago Bridge & Iron Co., 

735 F.3d 131, 136–37 (3d Cir. 2013). The Second Circuit appears to be an exception: it has held that a settlement must 

explicitly resolve CERCLA liability to trigger a contribution 

action. Consolidated Edison Co. of New York v. UGI Utilities, 423 

F.3d 90 (2d Cir. 2005). On the other hand, as the district court 

noted, the Second Circuit later cast serious doubt on that part 

of UGI Utilities (without quite overruling it, since the issue 

was not squarely presented). See Niagara Mohawk Power Corp.,

596 F.3d at 126 n.15 (noting that there was a “great deal of 

force to th[e] argument” of the EPA as amicus that UGI Utilities was wrongly decided). Whatever the state of the law in 

the Second Circuit, we are persuaded by the view adopted by 

the Third and Ninth Circuits. 

 
12 No. 18-3235 

C 

Refined spends much of its brief advancing a different argument altogether for its contention that a contribution action 

could not have accrued. This one is based solely on commonlaw principles. Refined asserts that it could not seek anything 

in the nature of “contribution” from NL because it did not 

share liability with NL for the underlying “tort.” In support 

of this reasoning, Refined cites the Supreme Court’s decision 

in United States v. Atlantic Research Corp., 551 U.S. 128 (2007), 

which notes that a contribution action under section 

113(f)(1)—not the statutory trigger at issue here—requires 

“common liability stemming from an action instituted under 

section 106 or section 107(a).” Id. at 139. To show that it lacked 

common liability with NL, it points to the Supreme Court’s 

decision in Meghrig v. KFC Western, 516 U.S. 479 (1996), which 

held that RCRA—one of the statutes under which the federal 

government proceeded—does not provide a private cause of 

action to recover costs for “the cleaning up [of] toxic waste 

that does not, at the time of suit, continue to pose an endangerment to health or the environment.” Id. at 481. 

We find this argument puzzling. First, how is it that NL 

can somehow be, at the same time, not jointly liable for the 

actions required under the 1998 Decree and yet still liable to 

Refined once Refined “could show that its actions incurred 

more than its fair share of costs for which both parties are liable”? 

Appellant’s Br. at 21 (emphasis added). Either NL has some 

liability for these cleanup costs or it does not. It is beside the 

point that “the 1998 RCRA Consent Decree neither finds nor 

addresses any liability of NL ...” Id. at 2. NL was a non-settling party. The contribution provision in section 113(f)(3)(B) 
No. 18-3235 13

exists to allow settling parties to seek contribution from a nonsettling party. It was for Refined to establish, in the course of 

making a timely contribution claim, that NL was liable under 

the statute, and for what amount. Refined failed to do so. It is 

also unclear why Meghrig has anything to say about this situation. The Meghrig Court held that RCRA does not authorize 

parties to seek compensation for already completed cleanup 

efforts, but it explicitly recognized that CERCLA does (within 

the applicable statute of limitations). 516 U.S. at 486–88. After 

all, that is why Refined is here. The fact that the federal government brought suit and settled under RCRA tells us nothing about whether, as of the date of settlement, CERCLA provided Refined with an independent mechanism for seeking 

compensation. 

Apart from its peculiar nature, Refined’s “common liability” argument has another problem: Refined waived it in the 

district court. Refined’s response to NL’s motion to dismiss 

did not so much as mention this argument, let alone develop 

it. Refined tries to dig itself out of that hole with the assertion 

that its arguments on this point “flow naturally from the legal 

analysis and decisions of [the cases it cited below].” Reply Br. 

at 24. But citing a few cases that might (or might not) implicate 

a separate line of argument is not good enough. A thorough 

treatment of Refined’s argument could potentially require deciding one or both of (1) how much liability NL might have 

had, if any, under RCRA and the Clean Air Act; and (2) 

whether the Supreme Court’s interpretation of section 

113(f)(1) in Atlantic Research applies with equal force to section 

113(f)(3)(B), a different subsection covering a different situation. The district court did not deal with these issues, because 

Refined never briefed them. It is therefore too late for Refined 

to raise them now. 
14 No. 18-3235 

II 

There remains the question of Refined’s claims under Indiana’s Environmental Legal Actions (“ELA”) statute. Once it 

dismissed the federal claims, the district court relinquished 

supplemental jurisdiction over the state-law claims. See 28 

U.S.C. § 1367(c). We review this decision for abuse of discretion. Montano v. City of Chicago, 375 F.3d 593, 601 (7th Cir. 

2004). The district court found nothing to rebut what we have 

called the “sensible presumption that if the federal claims 

drop out before trial, the district court should relinquish jurisdiction over the state-law claims.” Williams Elecs. Games, Inc. 

v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007). Refined offers no 

reason for finding an abuse of discretion here. It merely asserts that its claims under the ELA “should be allowed to proceed on remand to the District Court.” It has therefore waived 

any challenge to the district court’s decision to relinquish its 

supplemental jurisdiction. 

Similarly, Refined has not explained why we should upset 

the district court’s admittedly very technical ruling that Refined did not properly support the existence of diversity jurisdiction under 28 U.S.C. § 1332. In the district court, Refined 

alleged that “[t]he amount in controversy in this action exceeds $75,000 and is between citizens of different states ... .” 

But the district court found that this was “ineffective” because 

Refined failed to specify that the amount in controversy exceeded $75,000 “exclusive of interest and costs,” as required 

by 28 U.S.C. § 1332(a). The court cited Powers v. Fultz, 404 F.2d 

50, 52 (7th Cir. 1968), for the proposition that it was proper to 

dismiss a complaint for failing to address interest and costs. 

This result may or may not be required by Powers, where the 

complaint (unlike the one before us) also alleged that the 
No. 18-3235 15

amount in dispute was exactly $10,000 (then the amount specified in the statute) rather than a claim in excess of the required amount. Here, the plaintiffs did plead an amount in 

controversy in excess of the statutory minimum; they just neglected to specify that the excess existed exclusive of interest 

and costs. 

In the end, however, we have no need to decide whether 

the state claims fell within the court’s diversity jurisdiction, 

because Refined has again dropped the ball. It never sought 

leave to amend in the district court to cure the apparent deficiency. In its opening brief to this court, Refined asserts that 

“[j]urisdiction also exists based on the diverse citizenship of 

the parties pursuant to 28 U.S.C. 1332” and that “[t]he amount 

in controversy exceeds seventy-five thousand dollars 

($75,000.00).” Nowhere does Refined tie up the loose end that 

the district court identified (i.e. the failure to specify that the 

required amount is satisfied without considering interest and 

costs), nor does it even acknowledge the existence of an adverse ruling on this question. This is waiver, and it leaves no 

further basis for federal jurisdiction over the state-law claims, 

which can still be pursued in state court should Refined so 

desire. 

III 

We AFFIRM the judgment of the district court.