ELR Citation: ELR 21384
No(s). 87-1529 (8th Cir. Jun 20, 1988)

The court holds that the Environmental Protection Agency's (EPA's) pretreatment regulations defining "interference" and "pass through" are not inconsistent with the Federal Water Pollution Control Act (FWPCA). FWPCA, as interpreted in earlier case law, does not require that industrial discharges into publicly owned treatment works (POTWs) both cause and significantly contribute to the POTW's permit violation. Nor does the Act require that the discharge be the sole cause of the POTW's violation. Moreover, under EPA's regulations, an industrial user can avoid liability even if its discharge is a cause of the POTW's violation by establishing one of two affirmative defenses. The regulations do not deem an industrial user's discharge to be a cause of the violation where the sole reason for the violation is the POTW's inefficient and improper operation. In addition, EPA has indicated that the regulations require more than de minimis causation. The court also holds that the definitions are not unconstitutionally vague, since they provide adequate notice to industrial users of their pretreatment obligations and objective standards by reference to other regulations.

Counsel for Petitioner
Michael H. Mashburn
Mashburn & Taylor
1 E. Center St., First National Bank Bldg., Third Fl., P.O. Box 1921, Fayetteville AR 72702
(501) 443-5222

Counsel for Respondent
Dov Weitman
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Before LAY, Chief Judge, and McMILLIAN and ARNOLD, Circuit Judges.