Judge Denies Monitoring, Future Medical Expenses In Criminal Pollution Case

CORPUS CHRISTI, Texas — (Mealey’s) Compensation for future medical expenses, court-ordered medical monitoring and relocation from allegedly polluted properties is not justified by the evidence, the Texas federal judge sentencing CITGO Petroleum Corp. for criminal pollution violations said in an April 30 sentencing memorandum (United States v. CITGO Petroleum Corp., et al., No. CR-06-563, S.D. Texas, Corpus Christi Div.; 2014 U.S. Dist. LEXIS 60172). 

The federal government and residents of Corpus Christi’s Hillcrest neighborhood had sought a total of $55 million, including an $11 million trust fund for future medical expenses, a medical monitoring program and an $18.4 million property buy-out and relocation program, as well as attorney fees, under the federal Crime Victims' Rights Act (CVRA). 

“The gaping hole in the Community Members’ argument is that they provide absolutely no evidence supporting their speculation that 1 in every 7.5 victims in this case will develop leukemia or any other deadly disease in the future as a result of exposure to Tanks 116 and 117,” Senior U.S. Judge John D. Rainey of the Southern District of Texas said in denying the $11 million in future medical expenses as part of CITGO’s sentence. 

Actual Loss 

“Before the Court could make such a determination, the Government would have to prove, by a preponderance of the evidence, that:  (1) the claimant was exposed to emissions from Tanks 116 and 117 between January 1994 and May 2003; (2) he or she suffered an actual loss as a direct and proximate result of exposure to Tanks 116 and 117; and (3) potential alternative causes, such as emissions from other refineries or potential emissions from CITGO not related to Tanks 116 and 117, can be excluded,” Judge Rainey said.  “The Government must also prove (4) an accurate computation of any loss.”  

Judge Rainey said the residents failed to show any evidence of long-term injury that would necessitate monitoring. 

Causal Connection 

“At the end of the presentencing hearings in October 2013, the Court asked the Government and the Community Members to at least identify the type of evidence that would be relied upon to establish a causal connection between the tanks and the victims’ requests for restitution, including those related to medical issues,” Judge Rainey said.  “However, neither the Community Members nor the Government have identified any additional evidence supporting their claim that the victims in this case were exposed to emissions from Tanks 116 and 117 at levels sufficient to cause an increased risk of future latent disease, thereby necessitating medical monitoring.” 

“To the extent the Community Members seek restitution for damage to their property and to the Hillcrest neighborhood that Tanks 116 and 117 may have previously caused,” Judge Rainey said, “the Court finds that neither the Community Members nor the Government have carried their burden of demonstrating causation or of quantifying an ascertainable amount of loss to their property values, and likewise provide no reference to any evidence establishing that Tanks 116 and 117 played a role in any devaluation that may have occurred.” 

Statutory Maximum 

Judge Rainey had earlier imposed the statutory maximum fine of $500,000 on each of two felony Clean Air Act convictions against CITGO Petroleum Corp.  Judge Rainey imposed identical fines on the same counts against CITGO Refining and Chemicals Co. LLP.  In addition, the judge imposed $15,000 fines for each of three misdemeanor violations of the Migratory Bird Treaty Act against the latter company. 

A jury in 2007 convicted the CITGO entities on the Clean Air Act counts for the period it operated tanks 116 and 117 without roofs and pollution-control devices in violation of federal air pollution regulations 42 U.S. Code Sections 7413(c)(1) and 7411(e) and 40 U.S. Code of Federal Regulations Section 60.692-4.  At a bench trial the same year, Judge Rainey convicted CITGO of violating the Migratory Bird Treaty Act, a class B misdemeanor. 

Counsel 

CITGO is represented by Dick DeGuerin of DeGuerin and Dickson in Houston; Catherine Louise Baen and Matt Hennessy of Houston; James B. Blackburn Jr. of Blackburn Carter in Houston; Chad J. Doellinger and Nathan P. Eimer of Eimer, Stahl, Klevorn & Solberg in Chicago; Ralph F. Meyer of Royston Rayzor in Corpus Christi; and Robert Brager of Beveridge and Diamond in Baltimore. 

The government is represented by Howard P. Stewart of the U.S. Department of Justice, Environmental Crimes Section, in Washington, D.C.; James L. Turner of the U.S. Attorney's Office, Financial Litigation Division, in Houston; Kenneth A. Cusick of the U.S. Attorney's Office in Corpus Christi; Lary Cook Larson of the U.S. Department of Justice in Washington; and William Robert Miller of the Environmental Protection Agency in Houston. 

Hillcrest residents are represented by Paula Pierce of Texas Legal Services Center in Austin, Texas, and Paul G. Cassell of the Appellate Clinic, Quinney College of Law in Salt Lake City.

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