505 F.3d 1208 (11th Cir. 2007), 05-17019, United States v. Robison

Docket Nº05-17019.
Citation505 F.3d 1208
Party NameUNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Charles Barry ROBISON, Defendant, McWane, Inc., Defendant-Appellant, James Delk, Michael Devine, Defendants-Appellants-Cross-Appellees.
Case DateOctober 24, 2007
CourtUnited States Courts of Appeals, United States Court of Appeals (11th Circuit)

Page 1208

505 F.3d 1208 (11th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,

v.

Charles Barry ROBISON, Defendant,

McWane, Inc., Defendant-Appellant,

James Delk, Michael Devine, Defendants-Appellants-Cross-Appellees.

No. 05-17019.

United States Court of Appeals, Eleventh Circuit.

October 24, 2007

Page 1209

[Copyrighted Material Omitted]

Page 1210

David E. Roth, Jack W. Selden, Bradley, Arant, Rose & White, LLP, G. Douglas Jones, Watley, Drake & Kallas, LLP, Christopher James Williams, John Alan Truitt, Fournier J. Gale, III, Maynard, Cooper & Gale, P.C., Birmingham, AL, Miguel A. Estrada, Daviid Debold, Gibson, Dunn & Crutcher, LLP, Washington, DC, Lawrence S. Lustberg, Kevin McNulty, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, Henry J. DePippo, Nixon Peabody, LLP, Rochester, NY, for Defendants.

Joyce White Vance, Birmingham, AL, Todd S. Aagaard, U.S. Dept. of Justice, Washington, DC, for U.S.

Appeals from the United States District Court for the Northern District of Alabama.

Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and FORRESTER, [*]District Judge.

Page 1211

HULL, Circuit Judge.

Defendants McWane, Inc. ("McWane"), James Delk ("Delk"), and Michael Devine ("Devine") appeal their convictions for their roles in a Clean Water Act ("CWA") conspiracy (Count 1), as well as their convictions for substantive violations of the CWA (Counts 2, 3, 5, 7-19, 21, and 22).1 After the defendants' convictions, the United States Supreme Court addressed how to define "navigable waters" under the CWA in Rapanos v. United States, ---U.S. ----, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). The definition of "navigable waters" in the jury charge in this case was erroneous under Rapanos, and the government has not shown that the error was harmless. Accordingly, we must vacate defendants' CWA convictions and remand the case for a new trial.

McWane also appeals its conviction for making a false statement to the Environmental Protection Agency ("EPA") (Count 24).2 Because McWane was entitled to a judgment of acquittal on that charge, we vacate McWane's conviction on Count 24 as well.

I. BACKGROUND

A. Defendants

Defendant McWane is a large manufacturer of cast iron pipe, flanges, valves, and fire hydrants. McWane has numerous manufacturing plants. This case concerns McWane's plant in Birmingham, Alabama (hereinafter "the plant" or "McWane's plant").

Defendants Delk and Devine, along with Charles "Barry" Robison and Donald Harbin, worked in management positions at McWane's plant at all relevant times.

Robison was McWane's Vice President of Environmental Affairs. Defendant Delk was the General Manager of the plant. Defendant Devine was the Plant Manager, and he reported to defendant Delk. Harbin was the Maintenance Manager, and he reported to defendant Devine.3

B. Avondale Creek

The CWA violations at issue involve McWane's discharge of pollutants into Avondale Creek, which is adjacent to McWane's plant.

Avondale Creek flows into another creek called Village Creek. In turn, Village Creek flows approximately twenty-eight miles into and through Bayview Lake, which was created by damming Village Creek. On the other side of Bayview Lake, Village Creek becomes Locust Fork, and Locust Fork flows approximately twenty miles out of Bayview Lake before it flows into the Black Warrior River.

At trial, the government presented testimony, inter alia, from an EPA investigator (Fritz Wagoner) that Avondale Creek is a perennial stream with a "continuous uninterrupted flow" into Village Creek. Wagoner testified that there is "a continuous uninterrupted flow" not only from

Page 1212

Avondale Creek into Village Creek, but also from Village Creek through Bayview Lake and into Locust Fork, and ultimately into the Black Warrior River.

On cross-examination, Wagoner admitted that he did not conduct a "tracer test" to check the flow of Avondale Creek into the Black Warrior River. Wagoner explained that a "tracer test" is a procedure whereby a "concentrated dye" is put into a body of water and tracked to determine "where that water body flows." Wagoner conducted no tests to measure the volume of water discharged from Avondale Creek or between the bodies of water that connect Avondale Creek and the Black Warrior River. He conceded that the water level in Avondale Creek was so low that he was able to walk through Avondale Creek all the way down to its intersection with Village Creek. Furthermore, Wagoner testified that Village Creek is dammed (creating Bayview Lake) and that the dam runs "all the way across Village Creek." Wagoner's only site visit was in April 2005. This was more than four years after the violations at issue in this case.

The government presented no evidence, through Wagoner or otherwise, of the chemical, physical, or biological effect that Avondale Creek's waters had or might have had on the Black Warrior River. Indeed, the district court observed that there was no evidence of any actual harm or injury to the Black Warrior River.

C. Defendants' conduct

McWane's plant manufactures eighteen-foot and twenty-foot lengths of pipe. McWane utilizes a great deal of water in its pipe manufacturing processes. The water that runs out of the pipe manufacturing machines is generally referred to as "process wastewater." The evidence at trial established that process wastewater accumulated in large amounts in basements under McWane's "eighteen-foot machine" and "twenty-foot machine." The process wastewater contained various contaminants, including hydraulic oil, excess iron, and trash.

The CWA authorizes the EPA, and states with programs approved by the EPA, to issue permits for the discharge of pollutants, in compliance with the National Pollutant Discharge Elimination Systems ("NPDES"). These permits are known as NPDES permits. The Alabama Department of Environmental Management ("ADEM") administers the NPDES program in Alabama.

McWane obtained an NPDES permit from ADEM that authorized McWane to discharge some process wastewater. Specifically, McWane's NPDES permit allowed it to discharge some treated process wastewater into Avondale Creek, but only from one discharge point at the plant ("DSN001"), and only if other discharge limits and bookkeeping requirements were met. McWane's NPDES permit also allowed it to discharge "storm water runoff from industrial activity" from other discharge points at the plant ("DSN002" through "DSN020"). McWane, however, was not permitted to discharge process wastewater from any point at the plant other than DSN001.

At trial, the government established that McWane discharged process wastewater into Avondale Creek from discharge points other than DSN001, in violation of the express provisions of its NPDES permit. Numerous former McWane employees testified that the plant was in disarray by the late 1990s and that process wastewater was all over the plant. Process wastewater overflowed on a regular basis when it was pumped from the eighteen-foot machine and twenty- foot machine basements. The process wastewater would then spill into the storm water runoff discharge

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points (DSN002-DSN020) and flow into Avondale Creek.

One McWane employee described the extent of the process wastewater discharges as "[e]nough to drown a small village." Indeed, multiple witnesses testified that process wastewater from McWane's plant was regularly discharged into Avondale Creek. Harbin, for instance, testified that between May 1999 and January 2001, process wastewater was discharged into storm drains fifteen out of every twenty operating days per month. Other witnesses testified that the plant's basements were pumped (which led to the corresponding noncompliant wastewater discharge) every Friday night.

McWane's NPDES permit listed defendant Delk as one of two people with the authority and responsibility to prevent and abate violations of ADEM's regulations. Trial testimony established that defendant Delk was "everybody's boss" at the plant, and that on multiple occasions, defendant Delk ordered McWane employees to pump process wastewater from the basements, despite knowing that the wastewater had nowhere to go but Avondale Creek. Further testimony established that defendant Delk watched as wastewater spilled or was pumped into the center courtyard of the plant, and that Delk once instructed Harbin to falsify a water sample for inspectors.

Likewise, defendant Devine also ordered McWane employees to violate the NPDES permit. One former employee, Troy Venable, testified that he overheard a conversation between defendant Devine and a McWane maintenance foreman in which Devine said that it would be "easier" for McWane to pay off its fines than to pay $70,000 to fix one of the sources of the problem. There was also testimony about two separate incidents in which defendant Devine ordered that excess process wastewater be pumped from the basements despite there being no appropriate place to put the water, and told employees that he did not care how the water got out of the plant as long as it was gone.

Additionally, McWane's former safety and personnel director, John Walsh, testified that on one occasion, an ADEM inspector came to inquire about pollutant discharges from the storm water discharge runoff points. According to Walsh, defendant Devine directed him to lie to the ADEM inspector and tell the inspector that the cause of the discharges was McWane's test-flushing of fire hydrants. Walsh testified that he complied with defendant Devine's instructions because he "was told to" and feared that if he did not, he would lose his job.

The EPA inspected the plant in April 2000, and subsequently required McWane to submit plant inspection reports and other documents concerning the plant. McWane responded with two separate document productions, on August 17, 2000, and September 15, 2000. The document productions were...

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24 practice notes
  • Definition of “Waters of the United States” Under the Clean Water Act
    • United States
    • Federal Register April 21, 2014
    • April 21, 2014
    ...558 U.S. 818 (2009). The Eleventh Circuit has held that only the Kennedy standard determines jurisdiction. United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), cert. denied sub nom United States v. McWane and McWane v. United States, 555 U.S. 1045 (2008). No Circuit Court has held that......
  • THE CLEAN WATER RULE: NOT DEAD YET.
    • United States
    • Environmental Law Vol. 48 Nbr. 2, March 2018
    • March 22, 2018
    ...Gregg v. Georgia, 428 U.S. 153,169 n.15 (1976)). (183) Blumm & Thiel, supra note 143, at 363. (184) United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006). (185) N. Cal. River Watch v. Wilcox, 633 F.3d 7......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 48 Nbr. 2, March 2011
    • March 22, 2011
    ...(9th Cir. 2007) (finding a "significant nexus" and therefore finding the pond regulable under the CWA); United States v. Robison, 505 F.3d 1208, 1222 (11th Cir. 2007) (adopting Justice Kennedy's significant nexus test as the governing definition of navigable waters under Rapanos); United St......
  • Treading water while Congress ignores the nation's environment.
    • United States
    • Notre Dame Law Review Vol. 88 Nbr. 5, June 2013
    • June 1, 2013
    ...in original) (quoting United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 n.8 (1985)). (146) See United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); No. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3......
  • Request a trial to view additional results
5 firm's commentaries
  • Trump Administration Begins “Round 4” in the Battle Over Clean Water Act Jurisdiction
    • United States
    • JD Supra United States
    • January 15, 2019
    ...Donovan, 661 F.3d 174 (3d Cir. 2011); Northern California River Watch v. Wilcox, 633 F.3d 766 (9th Cir. 2011); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United States v. Johnson, 467 F.3d 56 (1st Cir. 200......
  • President Trump Signs WOTUS Rule's Death Warrant
    • United States
    • Mondaq United States
    • March 7, 2017
    ...F.3d 791 (8th Cir. 2009). The 11th Circuit has held that only the "significant nexus" definition can be used. United States v. Robison, 505 F.3d 1208, 1221-22 (11th Cir. 2007). The 4th, 6th, 7th and 9th Circuits have used the "significant nexus" definition to resolve cases but left open the......
  • President Trump Signs WOTUS Rule's Death Warrant
    • United States
    • JD Supra United States
    • March 7, 2017
    ...F.3d 791 (8th Cir. 2009). The 11th Circuit has held that only the “significant nexus” definition can be used. United States v. Robison, 505 F.3d 1208, 1221–22 (11th Cir. The 4th, 6th, 7th and 9th Circuits have used the “significant nexus” definition to resolve cases but left open the possib......
  • Finally Finality? The Trump Administration’s Answer to One of Environmental Law’s Most Contested Questions: What Are “Waters of the United States”?
    • United States
    • JD Supra United States
    • February 21, 2020
    ...Donovan, 661 F.3d 174 (3d Cir. 2011); Northern California River Watch v. Wilcox, 633 F.3d 766 (9th Cir. 2011); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United States v. Johnson, 467 F.3d 56 (1st Cir. [17......
  • Request a trial to view additional results
17 books & journal articles
  • THE CLEAN WATER RULE: NOT DEAD YET.
    • United States
    • Environmental Law Vol. 48 Nbr. 2, March 2018
    • March 22, 2018
    ...Gregg v. Georgia, 428 U.S. 153,169 n.15 (1976)). (183) Blumm & Thiel, supra note 143, at 363. (184) United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006). (185) N. Cal. River Watch v. Wilcox, 633 F.3d 7......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 48 Nbr. 2, March 2011
    • March 22, 2011
    ...(9th Cir. 2007) (finding a "significant nexus" and therefore finding the pond regulable under the CWA); United States v. Robison, 505 F.3d 1208, 1222 (11th Cir. 2007) (adopting Justice Kennedy's significant nexus test as the governing definition of navigable waters under Rapanos); United St......
  • Treading water while Congress ignores the nation's environment.
    • United States
    • Notre Dame Law Review Vol. 88 Nbr. 5, June 2013
    • June 1, 2013
    ...in original) (quoting United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 n.8 (1985)). (146) See United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); No. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3......
  • Justice Kennedy and ecosystem services: a functional approach to Clean Water Act jurisdiction after Rapanos.
    • United States
    • Environmental Law Vol. 38 Nbr. 3, June 2008
    • June 22, 2008
    ...Inc., 464 F.3d 723, 725 (7th Cir. 2006) (per curiam) (applying Marks v. United States, 430 U.S. 188 (1977)); United States v. Robison, 505 F.3d 1208, 1221-22 (11th Cir. 2007) (following Gerke Excavate, 464 F.3d at 725); N. Cal. River Watch v. City. of Healdsburg, 457 F.3d 1023, 1029 (9th Ci......
  • Request a trial to view additional results
2 provisions
  • Definition of “Waters of the United States” Under the Clean Water Act
    • United States
    • Federal Register April 21, 2014
    • April 21, 2014
    ...558 U.S. 818 (2009). The Eleventh Circuit has held that only the Kennedy standard determines jurisdiction. United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), cert. denied sub nom United States v. McWane and McWane v. United States, 555 U.S. 1045 (2008). No Circuit Court has held that......
  • Revised Definition of “Waters of the United States”
    • United States
    • Army, Corps Of Engineers Department,Defense Department
    • Invalid date
    ...496 F.3d 993 (9th Cir. 2007) (superseding the original opinion published at 457 F.3d 1023 (9th Cir. 2006)); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 5. Pos......

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