March 21, 1977
Page 8274
WATER POLLUTION CONTROL
Mr. MUSKIE. Mr. President, on February 23, the Supreme Court issued a decision in the case of DuPont against Train which affirmed the water pollution control program as created by the Congress in the 1972 Clean Water Act and the way that the Environmental Protection Agency has implemented that act. The Court, in an 8 to 0 opinion, recognized that Congress meant to require a strong, expeditious, and nationally uniform program of effluent reduction; upheld EPA's strategy of issuing binding effluent limitation guidelines for subcategories of industry; and upheld the Agency's refusal to provide a variance mechanism in new source performance standards.
This decision should successfully conclude the 10 year effort made by the Congress to establish a uniform, binding pollution control program. And it should end the 4 year effort to distort the precise intent of Congress that effluent guidelines result in uniform application of effluent controls.
The latter effort had limited success in lower courts. The eighth circuit in CPC International, Inc. against Train found that EPA could only provide guidance to permit writers with regard to existing facilities and the Fourth Circuit in DuPont against Train found that a variance procedure must be included in new source regulations. But the Supreme Court overturned the lower courts and held that these decisions were contrary to congressional intent.
The Supreme Court's decision should also put to rest other issues which have stalled the water cleanup effort. For example, the third circuit, in American Iron and Steel Institute against EPA, ordered the Agency to issue its existing source regulations in ranges of numbers. The Supreme Court held that congressional statements concerning "ranges" referred only to the range created by single number limitations for various subcategories within any one industry category, not that each subcategory's requirements be expressed as a range of numbers.
The Supreme Court also held that EPA properly satisfied the requirements of section 304 of the act in its regulations. Thus, the confusion caused by the "range of numbers" controversy should now be clear. Similarly, there is now hope that the confusing notion that existing source regulations are only "presumptively applicable" will be replaced by a recognition that EPA has properly implemented the law and that its variance provision for the 1977 regulations is appropriately narrow in scope.
Of course, the Supreme Court did not dispose of all unresolved questions of interpretation of the 1972 law. But most questions were addressed and decided. The contention by some industries that EPA must do a cost-benefit analysis of its application of "Best Available Technology, 1983" requirements to individual sources, a view flatly contradicted by the language and legislative history of the Clean Water Act, has been rejected.
Mr. President, there is an important practical benefit of the Supreme Court's opinion. The Court has made clear that review of effluent limitation guideline regulations resides solely in Federal Courts of Appeals and not in Federal district courts. This adheres to the congressional intent, expressed in section 509 of the act, that persons affected by such regulations have the due process of law towhich all citizens are entitled, but that judicial review should proceed in the most expeditious manner possible.
To date that review has hardly been expeditious. The only result of review has been to delay and frustrate the Nation's clean water effort.
I hope with the Court's unanimous affirmation of congressional intent that those who have been resisting compliance with this law will cease this resistance and join in the national effort to clean up our vital and scarce water resources.
I ask unanimous consent that the full text of this decision be printed in the RECORD.
There being no objection, the text of the decision was ordered to be printed in the RECORD, as follows:
[Supreme Court of the United States]
SYLLABUS: E. I. DUPONT DE NEMOURS & CO. ET AL. V. TRAIN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, ET AL.
(NOTE.—Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 37.)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 75978.
Argued December 8, 1976
Decided February 23, 1977
The Federal Water Pollution Control Act Amendments of 1972 (Amendments) authorized a series of steps to be taken to eliminate all discharges of pollutants into the Nation's waters by 1985. The first steps are described in § 304, which directs the Administrator of the Environmental Protection Agency (EPA) (the agency charged under § 101 with administering the Amendments) to develop and publish various kinds of technical data as guidelines for discharging responsibilities under the Amendments. Section 301(a) proscribes the discharge of any pollutant unless the discharge complies with certain sections, including § 301 itself, § 308, and § 402. Section 301(b) defines the effluent limitations that must be achieved for existing "point sources" (conveyances from which pollutants are discharged) in two stages: (1) No later than July 1, 1977, such limitations for point sources must require the application of the "best practicable control technology currently available," and (2) by July 1, 1983, the limitations for "categories and classes of point sources" must require application of the "best available technology economically achievable." Section 301(c) authorizes the EPA Administrator to grant variances for the 1983 limitations for any point source for which a permit application is filed after July 1, 1977. Section 301(b) directs the Administrator to publish regulations establishing national standards for new sources within each category of sources discharging pollutants, and § 306(e) makes it unlawful to operate a new source in violation of the applicable standard. Section 402 authorizes the Administrator to issue permits for individual point sources, and also to review and approve the plan of any State desiring to administer its own permit program. Section 509(b) (1) (E) provides that review of the Administrator's action in approving or promulgating any effluent limitation under § 301 or § 306 may be had in the courts of appeals. The EPA, which is empowered under § 501 (a) to make "such regulations as are necessary to carry out" its functions, promulgated industry-wide regulations imposing three sets of limitations on petitioner inorganic chemical manufacturers' discharges of pollutants into waters. The first two impose progressively higher levels of pollutant control on existing point sources (a) after July 1, 1977, and (b) after July 1, 1983, and the third set imposes limits on "new sources" that may be constructed in the future. Petitioner manufacturers filed both a suit in the District Court to set aside the regulations and a petition for review of the regulations in the Court of Appeals, contending that § 301 is not an independent source of authority for setting effluent limitations by regulation but is merely a description of such limitations which are set for each plant on an individual basis during the permit issuance process, and that § 402 provides the only authority for issuance of enforceable limitations on the discharge of pollutants by existing plants. The Court of Appeals affirmed the District Court's dismissal of the suit to set aside the regulations on the ground that the Court of Appeals had exclusive jurisdiction to consider the validity of the regulations, and held on the petition for review that the EPA was authorized to issue "presumptively applicable" effluent limitations and new source standards, and was required to provide a variance procedure for new sources.
Held:
1. The EPA has authority under § 301 to limit discharges by existing plants through industry wide regulations setting forth uniform effluent limitations for both 1977 and 1983, provided some allowance is made for variations in individual plants. Pp. 1222.
(a) Both the language of § 301 and the legislative history of the Amendments support the view that § 301 limitations are to be adopted by the Administrator, that they are to be based primarily on classes and categories, and that they are to take the form of regulations. Pp. 1217.
(b) The legislative history also makes it clear that § 304 guidelines are not merely aimed at guiding the discretion of permit issuers in setting limitations for individual plants, but § 304 requires that the guidelines survey the practicable or available pollution control technology for an industry and assess its effectiveness, and then describe the methodology the EPA intends to use in the 301 regulations to determine the effluent limitations for particular plants. Pp. 1718.
©) The above construction of the Amendments is also supported by §1 101(d) and 501(a). Pp. 1819.
2. Section 509(b) (1) (E) unambiguously authorizes court of appeals review of EPA action promulgating an effluent limitation for existing point sources under § 301, and the reference in § 509(b) (1) (E) to § 301 was not intended only to provide for review of the grant or denial of an individual variance under § 301 ©). Since effluent limitations are typically promulgated in the same proceeding as the new source standards under § 306, there is no doubt that Congress intended review of the two sets of regulations to be had in the same forum. Pp. 2223.
3. Variances for individual plants unable to comply with the new source standards issued under § 306 are not authorized. Congress clearly intended regulations under § 306 to be absolute prohibitions, as is indicated by the use of the word "standards" in § 306, as well as by the description of the preferred standard as one "permitting no discharge of pollutants." Pp. 2325.
No. 75-978, 528 F.2d 1136, affirmed; Nos. 75-1473 and 75-1705, — F.2d —, affirmed in part and reversed in part.
STEVENS, J., delivered the opinion of the Court, in which all Members joined, except POWELL, J., who took no part in the consideration or decision of the cases.
[Supreme Court Of The United States,
No. 75-978, 75-1473 and 75-1705]
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
E. I. duPont de Nemours and Company et al., Petitioners, 75-978 v. Russell E. Train, Administrator, Environmental Protection Agency, et al.
E. I. duPont de Nemours and Company, et al., Petitioners, 75-1473 v. Russell E. Train, Administrator, Environmental Protection Agency.
Russell E. Train, Administrator, Environmental Protection Agency, Petitioner, 75-1705 v. E. I. duPont de Nemours and Company, et al.
[February 23, 1977]
MR. JUSTICE STEVENS delivered the opinion of the Court.
Inorganic chemical manufacturing plants operated by the eight petitioners discharge various pollutants into the Nation's waters and therefore are "point sources" within the meaning of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U. S. C. § 1251 se seq. (Supp. IV) ("The Act"). The Environmental Protection Agency 2 has promulgated industry-wide regulations imposing three sets of precise limitations on petitioners' discharges. The first two impose progressively higher levels of pollution control on existing point sources after July 1, 1977, and after July 1, 1983, respectively. The third set imposes limits on "new sources" that may be constructed in the future .
These cases present three important questions of statutory construction: (1) whether EPA has the authority under § 301 of the Act to issue industry-wide regulations limiting discharges by existing plants; (2) whether the Court of Appeals, which admittedly is authorized to review the standards for new sources, also has jurisdiction under § 509 to review the regulations concerning existing plants; and (3) whether the new source standards issued under § 306 must allow variances for individual plants.
As a preface to our discussion of these three questions, we summarize relevant portions of the statute and then describe the procedure which EPA followed in promulgating the challenged regulations.
THE STATUTE
The statute, enacted on October 18, 1972, authorized a series of steps to be taken to achieve the goal of eliminating all discharges of pollutants into the Nation's waters by 1985, § 101(a) (I).
The first steps required by the Act are described in § 304, which directs the Administrator to develop and publish various kinds of technical data to provide guidance in discharging responsibilities imposed by other sections of the Act. Thus, within 60 days, 120 days, and 180 days after the date of enactment, the Administrator was to promulgate a series of guidelines to assist the States in developing and carrying out permit programs pursuant to § 402. §§ 304 (h), (f), (g). Within 270 days, he was to develop the information to be used in formulating standards for new plants pursuant to § 306. § 304©). And within one year he was to publish regulations providing guidance for effluent limitations on existing point sources. Section 304 (b) goes into great detail concerning the contents of these regulations. They must identify the degree of effluent reduction attainable through use of the best practicable or best available technology for a class of plants. The guidelines must also "specify factors to be taken into account" in determining the control measures applicable to point sources within these classes. A list of factors to be considered then follows. The Administrator was also directed to develop and publish, within one year, elaborate criteria for water quality accurately reflecting the most current scientific knowledge, and also technical information on factors necessary to restore and maintain water quality. § 304(a). The title of § 304 describes it as the "information and guidelines" portion of the statute.
Section 301 is captioned "effluent limitations." Section 301(a) makes the discharge of any pollutant unlawful unless the discharge is in compliance with certain enumerated sections of the Act. The enumerated sections which are relevant to this case are § 301 itself, § 306, and § 402. A brief word about each of these sections is necessary.
Section 402 authorizes the Administrator to issue permits for individual point sources, and also authorizes him to review and approve the plan of any State desiring to administer its own permit grogram. These permits serve "to transform generally applicable effluent limitations . . . into the obligations (including a timetable for compliance) of the individual discharger[s.]" EPA v. State Water Resources Control Board, 426 U.S. 200, 205. Petitioner chemical companies' position in this litigation is that § 402 provides the only statutory authority for the issuance of enforceable limitations on the discharge of pollutants by existing plants. It is noteworthy, however, that although this section authorizes the imposition of limitations in individual permits, the section itself does not mandate either the Administrator or the States to use permits as the method of prescribing effluent limitations.
Section 306 directs the Administrator to publish within 90 days a list of categories of sources discharging pollutants and within one year thereafter, to publish regulations establishing national standards of performance for new sources within each category. Section 306 contains no provision for exceptions from the standards for individual plants; on the contrary, subsection (e) expressly makes it unlawful to operate a new source in violation of the applicable standard of performance after its effective date. The statute provides that the new source standards shall reflect the greatest degree of effluent reduction achievable through application of the best available demonstrated control technology.
Section 301 (b) defines the effluent limitations that shall be achieved by existing point sources in two stages. By July 1, 1977, the effluent limitations shall require the application of the best practicable control technology currently available; by July 1, 1983, the limitations shall require application of the best available technology economically achievable. The statute expressly provides that the limitations which are to become effective in 1983 are applicable to "categories and classes of point sources"; this phase is omitted from the description of the 1977 limitations. While § 301 states that these limitations "shall be achieved," it falls to state who will establish the limitations.
Section 301 (c) authorizes the Administrator to grant variances from the 1983 limitations. Section 301 (e) states that effluent limitations established pursuant to § 301 shall be applied to all point sources.
To summarize, § 301 (b) requires the achievement of effluent limitations requiring use of the "best practicable" or "best available" technology. It refers to § 304 for a definition of these terms. Section 304 requires the publication of "regulations, providing guidelines for effluent limitations." Finally, permits issued under § 402 must require compliance with § 301 effluent limitations. Nowhere are we told who sets the § 301 limitations, or precisely how they relateto § 304 guidelines and § 402 permits.
THE REGULATION
The various deadlines imposed on the Administrator were too ambiguous for him to meet. For that reason, the procedure which he followed in adopting the regulations applicable to the inorganic chemical industry and to other classes of point sources, is somewhat different from that apparently contemplated by the statute. Specifically, as will appear, he did not adopt guidelines pursuant to § 304 before defining the effluent limitations for existing sources described in § 301 (b) or the national standards for new sources described in § 306. The case illustrates the approach the Administrator followed in implementing the Act.
EPA began by engaging a private contractor to prepare a Development Document. This document provided a detailed technical study of pollution control in the industry. The study first divided the industry into categories. For each category, present levels of pollution were measured and plants with exemplary pollution control were investigated. Based on this information, other technical data and economic studies, a determination was made of the degree of pollution control which could be achieved by the various levels of technology mandated by the statute. The study was made available to the public and circulated to interested persons. It formed the basis of "effluent limitation guideline" regulations issued by EPA after receiving public comment on proposed regulations. These regulations divide the industry into 22 subcategories. Within each category, precise numerical limits are set for various pollutants. The regulations for each subcategory contain a variance clause, applicable only to the 1977 limitations.
Eight chemical companies filed petitions in the United States Court of Appeals for the Fourth Circuit for review of these regulations. The Court of Appeals rejected their challenge to EPA's authority to issue precise, single number limitations for discharges of pollutants from existing sources. It held, however, that these limitations and the new plant standards were only "presumptively applicable" to individual plants. We granted the chemical companies' petitions for certiorari in order to consider the scope of EPA's authority to issue existing source regulations. We also granted the Government's cross petition for review of the ruling that new source standards are only presumptively applicable. 426 U.S. 947. For convenience, we will refer to the chemical companies as the "petitioners."
THE ISSUES
The broad outlines of the parties' respective theories may be stated briefly. EPA contends that § 302(b) authorizes it to issue regulations establishing effluent limitations for classes of plants. The permits granted under § 402, in EPA's view, simply incorporate these across-the-board limitations, except for the limited variances allowed by the regulations themselves and by § 301©) . The § 304(b) guidelines, according to EPA, were intended to guide it in later establishing § 301 effluent limitation regulations. Because the process proved more time consuming than Congress assumed when it established this two-stage process, EPA condensed the two stages into a single regulation.
In contrast, petitioners contend that § 301 is not an independent source of authority for setting effluent limitations by regulation. Instead, § 301 is seen as merely a description of the effluent limitations which are set for each plant on an individual basis during the permit issuance process. Under the industry view, the § 304 guidelines serve the function of guiding the permit issuer in setting the effluent limitations.
The jurisdictional issue is subsidiary to the critical question whether EPA has the power to issue effluent limitations by regulation. Section 590(b) (1) provides that "[r]eview of the Administrator's action ... (E) in approving or promulgating any effluent limitation under section 301" may be had in the courts of appeals. On the other hand, the Act does not provide for judicial review of § 304 guidelines. If EPA is correct that its regulations are "effluent limitations under section 301," the regulations are directly reviewable in the Court of Appeals. If industry is correct that the regulations can only be considered § 304 guidelines, suit to review the regulations could probably be brought only in the District Court, if anywhere. Thus, the issue of jurisdiction to review the regulations is intertwined with the issue of EPA's power to issue the regulations."
I
We think § 301 itself is the key to the problem. The statutory language concerning the 1983 limitations, in particular, leaves no doubt that these limitations are to be set by regulation. Subsection (b) (2) (A) of § 301 states that by 1983 "effluent limitations for categories and classes of point sources" are to be achieved which will require "application of the best available technology economically achievable for such category or class."(Emphasis added.) These effluent limitations are to require elimination of all discharges if "such elimination is technologically and economically achievable for a category or class of point sources." (Emphasis added.) This is "language difficult to reconcile with the view that individual effluent limitations are to be set when each permit is issued." American Meat Institute v. EPA, 526 F. 2d 442, 450 (CA7 1975). The statute thus focuses expressly on the characteristics of the "category or class" rather than the characteristics of individual point sources. Normally, such classwide determinations would be made by regulation, not in the course of issuing a permit to one member of the class.
Thus, we find that § 301 unambiguously provides for the use of regulations to establish the 1983 effluent limitations. Different language is used in § 301 with respect to the 1977 limitations. Here, the statute speaks of "effluent limitations for point sources," rather than "effluent limitations for categories and classes of point sources." Nothing elsewhere in the Act, however, suggests any radical difference in the mechanism used to impose limitations for the 1977 and 1983 deadlines. See American Iron & Steel Institute v. EPA, 526 F. 2d 1027, 1042 n. 32 (CA31975). For instance, there is no indication in either § 301 or § 304 that the § 304 guidelines play a different role in setting 1977 limitations. Moreover, it would be highly anomalous if the 1983 regulations and the new source standards were directly reviewable in the Court of Appeals, while the 1977 regulations based on the same administrative record were reviewable only in the District Court. The magnitude and highly technical character of the administrative record involved with these regulations makes it almost inconceivable that Congress would have required duplicate review in the first instance by different courts. We conclude that the statute authorizes the 1977 limitations as well as the 1983 limitations to be set by regulation, so long as some allowance is made for variations in individual plants, as EPA has done by including a variance clause in its 1977 limitations.
The question of the form of § 301 limitations is tied to the question whether the Act requires the Administrator or the permit issuer to establish the limitations. Section 301 does not itself answer this question, for it speaks only in the passive voice of the achievement and establishment of the limitations. But other parts of the statute leave little doubt on this score. Section 304 (b) states that "[f]or the purpose of adopting or revising effluent limitations . . the Administrator shall" issue guideline regulations; while the judicial review section (§ 509(b) (1)) speaks of "the Administrator's action . . . in approving or promulgating any effluent limitation or other limitation under section 301 ..." See infra, at 2223. And § 101(d) requires us to resolve any ambiguity on this score in favor of the Administrator. It provides that "[e]xcept as otherwise expressly provided in this Act, the Administrator of the Environmental ProtectionAgency . . . shall administer this Act." (Emphasis added.) In sum, the language of the statute supports the view that § 301 limitations are to be adopted by the Administrator, that they are to be based primarily on classes and categories, and that they are to take the form of regulations.
The legislative history supports this reading of § 301. The Senate Report states that,"pursuant to subsection 301 (b) (1) (A), and Section 304(b) " the Administrator is to set a base level for all plants in a given category, and "[i]n no case .. . should any plant be allowed to discharge more pollutants per unit of production than is defined by that base level." Leg. Hist., at 1468. The Conference' Report on § 301 states that "the determination of the economic impact of an effluent limitation [will be made] on the basis of classes and categories of point sources, as distinguished from a plant by plant determination." Leg. Hist., at 304. In presenting the Conference Report to the Senate, Senator Muskie, perhaps the Act's primary author, emphasized the importance of uniformity in setting § 301 limitations. He explained that this goal of uniformity required that EPA focus on classes or categories of sources in formulating effluent limitations. Regarding the requirement contained in § 301 that plants use the "best practicable control technology" by 1977, he stated:
"The modification of subsection 304(b) (1) is intended to clarify what is meant by the term 'practicable.' The balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources.
"The Conferees agreed upon this limited cost-benefit analysis in order to maintain uniformity within a class and category of point sources subject to effluent limitations, and to avoid imposing on the Administrator any requirement to consider the location of sources within a category or to ascertain water quality impact of effluent controls, or to determine the economic impact of controls on any individual plant in a single community." Leg. Hist., at 170 (emphasis added).
He added that:
"The Conferees intend that the factors described in section 304(b) be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such a category or class." Leg. Hist., at 172.
This legislative history supports our reading of § 301 and makes it clear than the § 304 guidelines are not merely aimed at guiding the discretion of permit issuers in setting limitations for individual plants.
What, then, is the function of the § 304(b) guidelines? As we noted earlier, § 304(b) requires EPA to identify the amount of effluent reduction attainable through use of the best practicable or available technology and to "specify factors to be taken into account" in determining the pollution control methods "tobe applicable to point sources . . . within such categories or classes." These guidelines are to be issued "[f]or the purpose of adopting or revising effluent limitations under this Act." As we read it, § 304 requires that the guidelines survey the practicable or available pollution control technology for an industry and assess its effectiveness. The guidelines are then to describe the methodology EPA intends to use in the § 301 regulations to determine the effluent limitations for particular plants. If the technical complexity of the task had not prevented EPA from issuing the guidelines within the statutory deadline, they could have provided valuable guidance to permit issuers, industry, and the public, prior to the issuance of the § 301 regulations.
Our construction of the Act is supported by § 501(a), which gives EPA the power to make "such regulations as are necessary to carry out" its functions, and by § 101(d), which charges the agency with the duty of administering the Act. In construing this grant of authority, as Justice Harlan wrote in connection with a somewhat similar problem:
"[C]onsiderations of feasibility and practicality are certainly germane to the issues before us. Bowles v. Willingham [321 U.S.], at 517. We cannot, in these circumstances, conclude that Congress has given authority inadequate to achieve with reasonable effectiveness the purposes for which it has acted." The Permian Basin Area Rate Cases, 390 U.S. 747, 777.
The petitioners' view of the Act would place an impossible burden on EPA. It would require EPA to give individual consideration to the circumstances of each of the more than 42,000 dischargers who have applied for permits (Respondent's Br., at 30 n. 22). and to issue or approve all these permits well in advance of the 1977 deadline in order to give industry time to install the necessary pollution control equipment. We do not believe that Congress would have failed so conspicuously to provide EPA with the authority needed to achieve the statutory goals.
Both EPA and petitioners refer to numerous other provisions of the Act and fragments of legislative history in support of their positions. We do not find these conclusive, and little point would be served by discussing them in detail. We are satisfied that our reading of § 301 is consistent with the rest of the legislative scheme.
Language we recently employed in another case involving the validity of EPA regulations applies equally to this case:
"We therefore conclude that the Agency's interpretation was 'correct,' to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the 'correct' one. Given this conclusion, as well as the facts that the Agency is charged with administration of the Act, and that there has undoubtedly been reliance upon its interpretation by the States and other parties affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the Agency." Train v. Natural Resources Defense Council, 421 U.S. 60, 87.
When as in this case, the Agency's interpretation is also supported by thorough, scholarly opinions written by some of our finest judges, and has received the overwhelming support of the courts of appeals, we would be reluctant indeed to upset the Agency's judgment. In this case, on the contrary, our independent examination confirms the correctness of the Agency's construction of the statute.
Consequently, we hold that EPA has the authority to issue regulations setting forth uniform effluent limitations for categories of plants.
Our holding that § 301 does authorize the Administrator to promulgate effluent limitations for classes and categories of existing point sources necessarily resolves the jurisdictional issue as well. For, as we have already pointed out, § 509(b) (1) provides that "[r]eview of the Administrator's action ... in approving or promulgating any effluent limitation or other limitation under sections 301, 302, or 306, . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business ..."
Petitioners have argued that the reference to § 301 was intended only to provide for review of the grant or denial of an individual variance pursuant to § 301(c). We find this argument unpersuasive for two reasons in addition to those discussed in Part I of this opinion. First, in other portions of § 509, Congress referred to specific subsections of the Act and presumably would have specifically mentioned § 301(c) if only action pursuant to that subsection were intended to be reviewable in the Court of Appeals. More importantly, petitioners' construction would produce the truly perverse situation in which the Court of Appeals would review numerous individual actions issuing or denying permits pursuant to § 402 but would have no power of direct review of the basic regulations governing those individual actions. See American Meat Institute v. EPA, 526 F. 2d 442 (CA7 1975).
We regard § 509(b) (1) (E) as unambiguously authorizing Court of Appeals review of EPA action promulgating an effluent limitation for existing point sources under § 301. Since those limitations are typically promulgated in the same proceeding as the new source standards under § 306, we have no doubt that Congress intended review of the two sets of regulations to be had in the same forum.
III
The remaining issue in this case concerns new plants. Under § 306, EPA is to promulgate "regulations establishing Federal standards of performance for new sources ... § 306 (b) (1) (B) . A "standard of performance"is a "standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology .. . including, where practicable, a standard permitting no discharge of pollutants." § 306(a) (1). In setting the standard, "[t]he Administrator may distinguish among classes, types, and sizes within categories of new sources . . . and shall consider the type of process employed (including whether batch or continuous)." § 306(b) (2). As the House Report states, the standard must reflect the best technology for "that category of sources, and for class, types and sizes within categories." Leg. Hist., at 798.
The Court of Appeals held that:
"Neither the Act nor the regulations contain any variance provision for new sources. The rule of presumptive applicability applies to new sources as well as existing sources. On remand EPA should come forward with some limited escape mechanism for new sources." 541 F. 2d, at 1028.
The Court's rationale was that "[p]rovisions for variances, modifications, and exceptions are appropriate for the regulatory process." Ibid.
The question, however, is not what a court thinks is generally appropriate to the regulatory process; it is what Congress intended for these regulations. It is clear that Congress intended these regulations to be absolute prohibitions. The use of the word "standards" implies as much. So does the description of the preferred standard as one "permitting no discharge of pollutants." (Emphasis added.) It is "unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source." § 306(e) (emphasis added). In striking contrast to § 301©), there is no statutory provision for variances, and a variance provision would be inappropriate in a standard that was intended to insure national uniformity and "maximum feasible control of new sources." Leg. Hist., at 1476.
That portion of the judgment of the Court of Appeals requiring EPA to provide a variance procedure for new sources is reversed. In all other aspects, the judgment of the Court of Appeals is affirmed.
It is so ordered.
Mr. JUSTICE POWELL took no part in the consideration or decision of these cases.
[Footnotes omitted]