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CPC Int'l, Inc. v. Train

Citation: 6 ELR 20728
No. No. 76-1448, 540 F.2d 1329/9 ERC 1301/(8th Cir., 08/18/1976) Aff'd in part, remanded in part

On its second review of EPA's proposed effluent limitations for new sources in the corn wet milling industry, the Eighth Circuit upholds most of the original limitations but remands the standard for total suspended solids. In CPC International v. Train, 515 F.2d 1032, 5 ELR 20392 (8th Cir. 1975) (CPC I), the court held that it had jurisdiction under § 509(b) of the Federal Water Pollution Control Act Amendments of 1972 to review new source standards and remanded EPA's limitations for documentary support. After reconsideration. EPA resubmitted the standards previously promulgated.

EPA adequately documented its resubmission by use of experts and experience of operating corn wet milling plants. In effect, petitioners seek to relitigate CPC I. The court reaffirms its conclusion therein that new plants can meet the 1977 standards. But see Grain Processing Corp. v. Train, 407 F. Supp. 96, 6 ELR 20200 (S.D. Iowa 1976) (existing plants cannot meet 1977 standards).

EPA's conclusion that new plants can achieve an effluent level not to exceed 20 pounds of five-day biochemical oxygen demand (BOD5) is neither arbitrary nor capricious. The experience of the Clinton Corn plant, which incorporates much of EPA's proposed technology, including deep bed filtration, supports EPA's BOD5 standards. EPA's figures derived from a "model" plant adequately support the standards, since petitioners' contrary data is preliminary and internally conflicting, and EPA took into consideration the increased wasteloads generated by the production of modified starches. In addition, EPA adequately considered the problem of variable waste flows, especially in light of the dampening of variations caused by complete in-plant controls and the lack of substantial "excursions" above the BOD5 standards by any single plant.

On the other hand, EPA's proposed standard for total suspended solids (TSS) finds no support from the data obtained from existing plants. EPA's analogy to the use of deep bed filtration systems used in other industries cannot stand, since they system will not remove TSS with the consistency or efficiency necessary to meet EPA's standards. Similarly, EPA's expert testimony is qualified and offers the agency insufficient support for its conclusion. In view of the time lost on the first remand, the court suggests the EPA set a maximum average level for TSS of 25 pounds per thousand standard bushels processed and maximum daily level of 75 pounds, and directs that the new standard be promulgated within sixty days.

In CPC I, the court ordered EPA to reconsider its cost projections under § 306, 33 U.S.C. § 1316(b)(1)(B). No cost-benefit analysis is necessary to determine thereasonableness of the cost of achieving new source standards. Accord American Iron & Steel Institute v. EPA, 526 F.2d 1027, 1059, 6 ELR 20029 (3d Cir. 1975). Petitioners erroneously assert that in-plant facilities in addition to and more expensive than those proposed by EPA are necessary to meet the new source standards. Similarly, EPA's operating and maintenance costs estimates are neither arbitrary nor capricious. Finally, EPA has not arbitrarily calculated the economic return from corn wet milling plants, despite a consultant's error that, if corrected, would reduce revenues by 20 percent and after-tax income by 50 percent. Petitioners have not shown that the industry will economically suffer from the corrected rate of return.

The full text of this opinion is available from ELR (42 pp. $5.25, ELR Order No. C-1084).

Counsel for Petitioner
Robert C. Barnard
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave., NW
Washington DC 20036
(202) 223-2151

Counsel for Respondent
Michael A. McCord
Land and Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-2774

Heaney, J., joined by Matthes & Webster, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]