430 U.S. 112 (1977), 75-978, E. I. du Pont de Nemours & Co. v. Train

Docket Nº:No. 75-978
Citation:430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204
Party Name:E. I. du Pont de Nemours & Co. v. Train
Case Date:February 23, 1977
Court:United States Supreme Court

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430 U.S. 112 (1977)

97 S.Ct. 965, 51 L.Ed.2d 204

E. I. du Pont de Nemours & Co.



No. 75-978

United States Supreme Court

Feb. 23, 1977

Argued December 8, 1976




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 of the Act (as added by the Amendments), 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 carrying out responsibilities under the Amendments. Section 301(a) proscribes the discharge of any pollutant unless the discharge complies with certain sections, including § 301 itself, § 306, 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 306(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

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§ 306 may be had in the court of appeals. The EPA, which is empowered under § 501(a) to make "such regulations as are necessary to carry out" its functions, promulgated industrywide 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.


1. The EPA has authority under § 301 to limit discharges by existing plants through industrywide regulations setting forth uniform effluent limitations for both 1977 and 1983, provided some allowance is made for variations in individual plants. Pp. 126-136.

(a) Both the language of § 301 and the legislative history of the Amendments support [97 S.Ct. 968] 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. 126-130.

(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. 130-132.

(c) The above construction of the Amendments is also supported by §§ 101(d) and 501(a). Pp. 132-133.

2. Section 509(b)(1)(E) unambiguously authorizes court of appeals review of EPA action promulgating an effluent limitation for existing

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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(c). 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. 136-137.

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. 137-139.

No. 75-978, 528 F.2d 1136, affirmed; Nos. 75-1473 and 75-1705, 541 F.2d 1018, 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.

STEVENS, J., lead opinion

MR. JUSTICE STEVENS delivered the opinion of the Court.

Inorganic chemical manufacturing plants operated by the eight petitioners in Nos. 75-978 and 75-1473 discharge various

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pollutants into the Nation's waters, and therefore are "point sources" within the meaning of the Federal Water Pollution Control Act (Act), as added and amended by § 2 of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U.S.C. § 1251 et seq. (1970 ed., Supp. V).1 The Environmental Protection Agency2 has promulgated industrywide 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.3

These cases present three important questions of statutory construction: (1) whether [97 S.Ct. 969] EPA has the authority under § 301 of the Act to issue industrywide 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.

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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)(1).

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 carrying out 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(c). And within one year, he was to publish regulations providing guidance for effluent limitations on existing point sources. Section 304(b)4 goes into great detail concerning

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the contents of these regulations. They must identify the degree of effluent reduction attainable through use of the best practicable or best [97 S.Ct. 970] 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

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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."5 Section

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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 § 402.6 A brief word about each of these sections is necessary.

Section 4027 authorizes the Administrator to issue...

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