Apportionment Actions Under CERCLA, and Criminal and Employment Matters
Lyondell Chem. Co. v. Occidental Chem. Co., No. 08-40060, concerned "apportionment" actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 107 and "contribution" actions under CERCLA section 113 regarding the allocation of costs for the cleanup of a hazardous waste dump. The Fifth Circuit affirmed in part the district court's order allocating liability among the parties, holding that 1) the use of Monte Carlo analysis to measure waste volume in this case did not differ meaningfully from any other Monte Carlo application; and 2) there was sufficient evidence that defendant dumped waste in the locations at issue. However, the court reversed in part, on the ground that the district court erred by admitting an expert report that relied on evidence submitted solely for the purposes of settlement.
In US v. Andino-Ortega, No. 09-40498, the Fifth Circuit vacated defendant's sentence for being unlawfully present in the United States following deportation, where, because defendant's prior conviction for the offense of injury to a child, even where committed by an intentional act, did not require the use or attempted use of physical force, the offense did not meet the definition of a "crime of violence" necessary for imposition of the 16-level enhancement under U.S.S.G. section 2L1.2(b)(1)(A)(ii).
Startran, Inc. v. Occupational Safety & Health Comm., No. 09-60263, concerned a petition for review of a determination by the Occupational Safety and Health Commission (the Commission) that petitioner was not exempt from the Occupational Safety and Health Act (OSHA) under the provision of 29 U.S.C. section 652(5) stating that for purposes of the Act "'employer' . . . does not include . . . any . . . political subdivision of a State." The court of appeals granted the petition, on the ground that, under 29 C.F.R. section 1975.5(b)(2), petitioner was administered by individuals who are controlled by public officials and responsible to such officials" and was thus exempt from OSHA.