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Corn Refiners Ass'n v. Costle

ELR Citation: 9 ELR 20233
Nos. No. 78-1069, 594 F.2d 1223/12 ERC 2054/(8th Cir., 04/02/1979)

The court denies a petition for review of the Environmental Protection Agency's (EPA's) effluent limitation regulations for existing plants in the corn wet milling industry after upholding the omission from the regulations of any provision excusing "excursions," i.e., discharges which unintentionally exceed the limitations for reasons beyond the operator's control and in spite of proper treatment equipment operation. Acknowledging a clear conflict among the circuits on this matter, the court adopts the EPA and D.C. Circuit Court of Appeals position that no express provision regarding excursions is required in either the regulations or in individual permits. EPA instead may make a case-by-case discretionary determination on whether to prosecute for excessive discharges. The court acknowledges the apparent hardship in requiring petitioners to prevent excursions from properly operated facilities meeting technological treatment requirements but concludes that mandating the inclusion of excursion provisions would seriously impede the Agency's ability to force development of treatment technology and to undertake swift and direct enforcement, both of which are important policy objectives underlying the Federal Water Pollution Control Act.

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

Counsel for Respondent
James W. Moorman, Ass't Attorney General; Jacques B. Gelin, Michael A. McCord
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Henley, J. (joined by Lay, J. and Wangelin,* D.J.)