This appeal and consolidated petitions for review concern regulations issued by the Administrator of the Environmental Protection Agency
Section 316(b) of the Act, 33 U.S.C. § 1326(b), requirеs that “[a]ny standard es
Fifty-eight electric utility companies (the utilities) filed a timely petitiоn in this court for review of the above regulations, in accordance with § 509(b) of the Act.
A number of courts have already undertaken in some detail to chart a course through the rather complex, and often confusing,
No contention is raised that the § 316(b) rеgulations are themselves effluent limitations. It is obvious that they are not, for the statute defines “effluent limitation” as “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other сonstituents which are discharged from point sources into navigable waters . . ..” § 502(H).
The legislative history reveals that the phrase “other limitation” was adopted from file original House version of the Act. H. R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972). It did not appear in the Senate bill. S-2770, Leg. Hist. Vol. 2, p. 1712. While no guidancе is given as to the content of the phrase, we cannot assume that its inclusion was meaningless or inadvertent; other provisions from the same section relating to judicial review in the House bill do not appear in the statute as finally enacted.
First, it is contended that the regulations are not actually limitations until, in the words of § 316(b), they are “standards established pursuant to section 301 or section 306 of this Act and aрplicable to a point source.” The utilities claim that, while the regulations are presumptively applicable to individual point sources, the presumption may be rebutted, on a case-by-case basis, in § 402
The above reasoning in part proceeds from a premise that we think has been foreclosed by the Supreme Court’s reсent du Pont decision. The Court made clear that standards of performance for new point sources under § 306 are not merely presumptively applicable; rather, they are binding on the permit issuing authority.
Secondly, the utilities contend that the regulations do not constitute limitations in any sense, but are merely intended to provide guidance to the permit issuer. They point to the absence in 40 C.F.R. §§ 402.10-402.12 of specific numerical limitations or standards for individual point sources or classes of sources.
Notwithstanding that 40 C.F.R. § 402.12 does not impose specific structural or locational requirements upon cooling water intake structures, we find the utilities’ argument unconvincing both as a matter of statutory construction and from the standpoint of policies influencing judicial review. In the first place, the regulation is mandatory in terms that it requires certain information to be considered in dеtermining the best available technology for intake structures. This in itself is a limitation on point sources and permit issuers, for we construe that term as a restriction on the untrammeled discretion of the industry which was the condition prior to the passage of the statute. Thе same term, “restriction,” we find in the statutory definition of effluent limitation, § 502(11). In American Iron and Steel Institute v. EPA,
Moreover, § 316(b) itself seems to indicate its limitations are to be adopted under §§ 301 and 306. It. states that, “any standard established pursuant to section 301 or 306 . . . shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” If a limitаtion other than an effluent limitation can exist under § 301 or § 306, which we must assume it can, we think a regulation implementing the requirements of § 316(b) must qualify as an “other limitation” within the meaning of § 509(b)(1)(E).
Finally, the regulations issued under § 316(b) are so closely related to the effluent limitations and new source standards of performance of §§ 301 and 306 that we think it would be anomalous to have their review bifurcated between different courts. Cf. du Pont, supra, at 136. It bears emphasis that § 316(b), which the regulations under consideration here implement, requires § 301 and § 306 standards to deal with coоling water intake structures. Just as this court
For these reasons, we conclude that jurisdiction to review these regulations properly lies in the court of appeals rather than the district court. The judgment of the district court is
AFFIRMED.
Notes
. Hereafter referred to as EPA.
. 33 U.S.C. § 1326(b).
. 33 U.S.C. § 1251, et seq., which herеafter may be referred to as the Act or the statute.
. 33 U.S.C. § 1369(b)(1).
. Section 301, 33 U.S.C. § 1311, is entitled “Effluent Limitations.” Subsection (a) provides that, except as in compliance with certain other enumerated sections of the Act, the discharge of any pollutant by any person shall be unlawful. Subsection (b) goes on to require the achievement of effluent limitations for existing point sources in two stages: a 1977 stage requiring application of the best practicable technology currently available, and a 1983 stage requiring application of a generally more strin- ■ gent standard of the best available technology economically achievable.
. Section 306, 33 U.S.C. § 1316, basically deals with new point sources, those whose construction is commenced after regulations are published establishing standards of performance to which they must conform. The section directs the Administrator to publish within 90 days of enactment a list of categories of point sources that discharge pollutants, and within one year thereafter, to publish regulations establishing federаl standards of performance for new sources within each category.
“Standard of performance” is defined by § 306(a)(1) as “a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Administrаtor determines to be achievable through application of the best available technology . . ..”
. “Point Source” is defined by § 502(14), 33 U.S.C. § 1362(14), as “any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrеte fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or m^y be discharged.”
. 40 C.F.R. § 402.12 provides in full: “The information contained in the Development Document shall be considеred in determining whether the location, design, construction and capacity of a cooling water intake structure of a point source subject to standards established under section 301 or 306 reflect the best technology available for minimizing adverse envirоnmental impact.” The remainder of the regulations, 40 C.F.R. §§ 402.10 and 402.11 contain a statement of scope and certain definitions.
The Development Document is a 263 page work issued by EPA entitled “Development Document for Best Technology Available for the Loсation, Design, Construction and Capacity of Cooling Water Intake Structures for Minimizing Adverse Environmental Impact.” It largely consists of information of a technical nature, as the title suggests.
. Section 509(b)(1), 33 U.S.C. § 1369(b)(1), requires petitions for review of § 301 and § 306 limitations to be filed within 90 days of approval or promulgation unless they are based upon grounds which arose after that time. This 90-day period has been construed as a statute of limitations, considering § 509(b)(1)(F), barring review after its expiration in Sun Enterprises, Ltd., v. Train,
. Indeed, the Act has been referred to as “poorly drafted and astonishingly imprecise.” E. I. duPont de Nemours & Co. v. Train,
. Prior to the Supreme Court’s du Pont holding, much litigation, and a split in the circuits, had arisen over whether § 301 was an independent source of authority for the issuance of regulations establishing limitations on point sources. This was because the section states that certain effluent limitations “shall be achieved,” but does not clearly state who is to issue them and at what stage in the proceedings. du Pont resolved the conflict in favor of EPA authority to issue generally applicable limitations by regulation under § 301. For a discussion of the pre-du Pont caselaw on the subject, see Hooker Chemicals & Plastics Corp. v. Train,
. 33 U.S.C. § 1362(11).
. For example, the original House version of § 509(b) provided for review in the district courts rather than the courts of appeals. See H. R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972).
. 33 U.S.C. § 1342.
. See du Pont II, supra, note 10, at 1028.
. E. I. du Pont de Nemours & Co. v. Train,
. In this respect, this case is to be distinguished from Bethlehem Steel Corp. v. EPA,