Barkett Comments on Third Circuit Ruling on CERCLA Cost Allocation

Shook Partner John Barkett has authored a comment for the Chemical Waste Litigation Reporter on the Third Circuit’s decision in Trinity Industries Inc. v. Greenlease Holding Co., which overturned a lower court’s ruling allocating liability for cleaning a Superfund site between two former owners of the property. “For Superfund practitioners, circuit court opinions on allocation do not come down that often, and they are more rare when there is a finding of an abuse of discretion by the district court in making an allocation determination,” he explains. “So the Third Circuit’s opinion is mandatory reading for Superfund lawyers.”

Barkett details the district court’s allocation determination and the factors it considered; after calculating the parties’ square footage in the Impact Area, the court adjusted the allocation for an indemnity, the amount of response costs incurred and other related considerations. Barkett concludes with several lessons for Superfund practitioners to take from the appeals court's decision, including that courts will likely reject expert allocation opinions reaching opposite conclusions.