USA v. Citgo Petroleum highlights the excruciating degree of detail in federal regulations and the gymnastics the EPA will employ to justify a prosecution. The Fifth Circuit has reversed Citgo Petroleum’s conviction for violations of two federal laws.
Breathing Easier Under the Clean Air Act
The EPA regulates oil refinery waste water treatment systems under the Clean Air Act. They emit dangerous levels of volatile organic compounds, which produces ozone. so far, so good; now for the minutia:
Can an equalization tank be an “oil water separator”? The district court used a purely functional explanation – defining an oil water separator by how it is used. This was not correct. Subpart QQQ (See the regs at 40 C.F.R § 60 et seq) defines an oil water separator by how it is used and also by its constituent parts. It is equipment “… used to separate oil from water consisting of a separation tank, which also includes the forebay and other separator basins, skimmers, weirs, grit chambers, and sludge hoppers.” When used in this way, “consists” is as an exhaustive list; the components are a part of the definition.
That is different than if the regulation had said “includes”. Used in that way, that phrase does not mean that the listed equipment is necessary for the regulation to be invoked. The Court explained that “including” is “inclusive but not mandatory” and distinct from “consisting of”. The court also cited “Subpart Kb”, which regulates storage vessels excluded from Subpart QQQ.
The government warned that this reading of Subpart QQQ would create a “massive loophole” in the regulatory structure. The court replied that equalization tanks were not under-regulated because “Subpart Kb” still applies. Further, the government is authorized under the Clean Air Act to fix the loopholes with new regulations.
How did Texas Approach It?
Is there a difference between state and federal regulators? Some years before the inspection at issue the Texas Department of Environmental Quality cited Citgo for operating the tanks as oil water separators, agreed that the tanks were not separators under Subpart QQQ, and dropped the charges.
The Migratory Bird Treaty Act of 1918 – Is it “Taking” or Bird Murder?
The MBTA declares it “ … unlawful, by any means or in any manner, to pursue, hunt, take, capture, kill, … any migratory bird.” According to the court, “taking” is limited to deliberate acts done directly and intentionally. To “take” is to reduce those animals by killing or capturing to human control. It involves only conduct intentionally directed at the birds, such as hunting or trapping, not commercial activity that unintentionally and indirectly causes bird deaths.
By contrast, the Endangered Species Act defines “take” to mean “harass, harm, … ” “Harass” includes a negligent act or omission and “harm” means any act which actually kills or injures wildlife, not only acts that directly result in the death of endangered species.
Other Interesting Facts in the Opinion
- Take a tour of the refinery wastewater treatment process
- Have a grammar lesson reminiscent of your high school English class
- Find out why the court refused to define “kill”
- Impress your friends by knowing how many birds are killed each year by flying into windows
- Face the ugly truth that house cats in Wisconsin are “serial violators of the MBTA”
- Ponder the difference between means rea and actus reus
- Learn to spot a “temporizing modifier” when you see one.
Speaking of Byrds, here they are for today’s musical interlude. From an under-appreciated album.