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United States v. CITGO Petroleum Corp.

United States Court of Appeals for the Fifth Circuit

September 4, 2015, Filed

No. 14-40128


 [*478] EDITH H. JONES, Circuit Judge:

CITGO Petroleum Corporation and CITGO Refining and Chemicals Company, L.P. (collectively "CITGO") were convicted of multiple violations of the Clean Air Act, 42 U.S.C. § 7413 and 40 C.F.R. § 60.690 et seq. ("Subpart QQQ"), and the Migratory Bird Treaty Act of 1918 ("MBTA"), 16 U.S.C. § 703. CITGO urges this court to [*479]  reverse the Clean Air Act convictions because the district court erroneously instructed the jury about the scope of a regulation [**2]  concerning "oil-water separators." CITGO also contends that the MBTA convictions are infirm because the district court misinterpreted the century-old statute as covering unintentional bird kills. We essentially agree with both contentions and REVERSE.


In the 1980s, the Environmental Protection Agency ("EPA") exercised its authority under Section 111 of the Clean Air Act, 42 U.S.C. § 7411, to regulate oil refinery wastewater treatment systems.1 These systems, the EPA explained, emit dangerous levels of volatile organic compounds ("VOCs"), such as xylene, toluene, and benzene. Standards of Performance for New Stationary Sources; VOC Emissions From Petroleum Wastewater Systems [hereinafter "Proposed Standards"], 52 Fed. Reg. 16,334-01, 16,337 (May 4, 1987) (to be codified at 40 C.F.R. pt. 60). When VOCs enter the atmosphere they cause photochemical reactions that produce ozone. Id. Ozone, a principal ingredient of urban smog, can trigger a variety of respiratory problems. To mitigate the alleged health risks, the EPA sought to reduce the VOCs entering the wastewater system, reduce the surface area of wastewater exposed to the atmosphere, and control the venting of VOCs to the extent practicable. Id. at 16,337.

Understanding the ensuing regulations, however, requires a brief overview of the wastewater treatment process. Wastewater—containing a mixture of solids, sludges, and oil—is an inevitable byproduct of the refining process. U.S. Envtl. Prot. Agency, Voc Emissions From Petroleum Refinery Wastewater Systems—background Information for Proposed Standards [hereinafter "Background for Proposed Standards"], EPA-450/3-85-001a, at 3-3 (1985). A series of drains located in different parts of the refinery collects the wastewater as it is generated. Id. From there, the water travels through lateral sewers into the first piece of oil separation equipment, aptly called an oil-water separator. Id. When wastewater enters the separator, oils and solids with specific gravities less than that of water float to the top, while heavy sludges and solids sink to the bottom. Id. Skimmers then remove the top layer of floating oil for recycling. Id. Although these separators are the primary oil removal equipment, they are not designed to remove all the oil from wastewater; according to the EPA, oil-water separators can [**4]  remove between fifty and ninety-nine percent of separable oil. Id. at 3-56. When the EPA promulgated the regulation at issue in 1987, there were three types of oil-water separators: the American Petroleum Institute ("API"), Corrugated Plate Interceptor ("CPI"), and Parallel Plate Interceptor ("PPI"). Id. at 3-28. The EPA considered CPIs, the type of separators used at CITGO's facility, "enhanced oil-water separators" because they are more efficient than the then-prevalent API separators. Id.

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801 F.3d 477 *; 2015 U.S. App. LEXIS 15865 **; 45 ELR 20166; 81 ERC (BNA) 1018


Subsequent History: As Revised, September 9, 2015.

Prior History:  [**1] Appeal from the United States District Court for the Southern District of Texas.

In re Allen, 568 Fed. Appx. 314, 2014 U.S. App. LEXIS 9385 (5th Cir. Tex., 2014)



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Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Jury Trials, Jury Instructions, General Overview, De Novo Review, Administrative Law, Agency Rulemaking, Rule Application & Interpretation, Governments, Legislation, Interpretation, Environmental Law, Emission Standards, Stationary Emission Sources, Constitutional Law, Case or Controversy, Constitutional Questions, Necessity of Determination, Natural Resources & Public Lands, Fish & Wildlife Protection, Courts, Common Law, Criminal Law & Procedure, Criminal Offenses, Acts & Mental States, Actus Reus