## Facts

- CITGO operated a petroleum refinery in Corpus Christi, Texas with a wastewater treatment system that included open-top equalization tanks and a dissolved-air-flotation (DAF) unit.
- The United States alleged the wastewater equipment was regulated as “oil-water separators” under Clean Air Act standards in 40 C.F.R. Subpart QQQ, requiring covers to control volatile organic compound emissions.
- The government alleged CITGO failed to install required covers, allowing emissions and leaving exposed oily surfaces.
- Migratory birds landed in the uncovered tanks, became oiled, and died.
- CITGO was charged with multiple Clean Air Act counts tied to Subpart QQQ cover requirements and misdemeanor counts under the Migratory Bird Treaty Act (MBTA) based on the bird deaths.
- A jury convicted CITGO on the Clean Air Act and MBTA counts; CITGO appealed.

## Issues

1. Whether CITGO’s equalization tanks and DAF unit were “oil-water separators” within 40 C.F.R. Subpart QQQ, making the alleged failure to cover them a Clean Air Act violation.
2. Whether the district court’s jury instructions erroneously treated the tanks and DAF unit as Subpart QQQ “oil-water separators,” requiring reversal of the Clean Air Act convictions.
3. Whether the MBTA’s prohibition on “taking” or “killing” migratory birds applies to unintentional, incidental bird deaths caused indirectly by industrial operations.

## Decision

- The Fifth Circuit reversed the Clean Air Act convictions.
- The court held the equalization tanks and DAF unit were not “oil-water separators” as defined for Subpart QQQ purposes, and the jury instructions improperly expanded the regulatory coverage.
- The Fifth Circuit reversed the MBTA convictions.
- The court held the MBTA misdemeanor provisions do not reach commercial activity that unintentionally and indirectly causes migratory bird deaths; the statute targets conduct intentionally directed at birds (e.g., hunting or trapping).
- The case was remanded with instructions consistent with the reversals.

## Legal Principles

- Criminal liability predicated on regulatory violations requires correct application of the governing regulatory definitions; courts may not extend a regulation’s scope beyond its text and structure.
- A conviction must be set aside when the jury is instructed on an incorrect legal theory that effectively removes a contested legal element from proper consideration.
- For MBTA misdemeanor liability in the Fifth Circuit, “take” and “kill” refer to affirmative conduct intentionally directed at birds; incidental or accidental deaths resulting indirectly from otherwise lawful industrial activity fall outside the statute’s reach.

## Conclusion

The Fifth Circuit vacated CITGO’s Clean Air Act and MBTA convictions, holding that the refinery’s equalization tanks and DAF unit were not regulated “oil-water separators” under Subpart QQQ as charged, and that the MBTA does not impose misdemeanor liability for incidental, unintentional migratory bird deaths caused indirectly by industrial operations.


United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015)