Full opinion text
EDWARDS, Circuit Judge. This case requires this court to review and interpret the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251, et seq. (Supp. Ill, 1973) [hereinafter referred to as the Act]. This is a complicated and lengthy statute which, in mandatory terms, demands solution of one of America’s most important problems, the increasing and nationally threatening pollution of our magnificent natural water resources, rivers, lakes and bounding oceans. In its Declaration of Goals, and Policy, the Act imposes on American industry (and the American public through passed-on product costs) the economic burden of ending all discharges of pollutants by the year 1985. Section 101(a), 33 U.S.C. § 1251(a) (Supp. Ill, 1973). In some instances the statute clearly contemplates the closing of marginal plants which cannot function economically with the costs added by water pollution controls. One expert on ecology has recently stated in cosmic terms the problem which engaged the urgent attention of the Congress for this nation: WE, AS HUMAN BEINGS, are part of a complex array of living creatures that started to deploy on earth about three billion years ago and has never stopped diversifying. The only life system we know of and we are part of is based on carbon chemistry and cannot develop without water. . Some recent findings tend to establish that within the outer space of one galaxy, some organic chemical compounds are widely spread that could be considered as the building blocks of amino acids. This could be an indication of a sort of universal insemination, and that the stage is set in the cosmos for the potential development of life anywhere where circumstances are favorable; such favorable circumstances are based on the existence on a given planet of an abundance of water in the liquid state. Now, the liquid state itself of any element or of any compound is much rarer in the universe than solid state or gaseous state, and it is even much rarer in the case of water that remains liquid only in a very narrow range of temperature. The obvious consequence is that, even if life exists elsewhere, it is exceedingly sporadic, and very seldom finds on a celestial body the exceptional and lasting conditions that existed on Earth for three billion years and are likely to be enjoyed for another four or five billion years. The recent access of our minds to these cosmic considerations endows human consciousness with a new dimension and invites our reason to give objectively even a higher prize to our lives than we used to do subjectively. The logical conclusion is that, of all priorities, the supreme imperative is to conserve, to protect, to nurse the water system of our planet; because its life is our own life, because its fate is our fate. * * * * * * There are only two logical attitudes for the men of today: either to have a wonderful time ... to consume and burn everything, and “Apres moi le deluge,” or to take the four billion year challenge for mankind, that is, to try to keep our species alive as long as the Earth will offer acceptable conditions, and organize the world along non-kinesian principles, to pass it over in good shape to the next generation. “A Time to Choose,” address by Captain Jacques-Yves Cousteau to the Remote Sensing Symposium at University of Michigan, October 7, 1975. Petitioners, who are representatives of the potato processing industry, attack on a broad front the Environmental Protection Administrator’s actions under and his interpretation of the Federal Water Pollution Control Act Amendments of 1972 in applying the Act to the industry concerned. Certain other industry representatives have filed briefs amici curiae claiming that this court has no jurisdiction in this case. The principal questions presented by this case are: Does the United States Court of Appeals have jurisdiction to review the actions here complained of? Did the Administrator violate the Act by combining in one document issued on one day his response to the requirements of Sections 301, 304 and 306 of the Act, thereby necessitating that his orders be set aside? Did the Administrator violate the Act by promulgating national effluent limitations applicable to categories and subcategories of the industries concerned rather than by promulgating limitations for individual plants? Other issues include petitioners’ claims that the Administrator violated the Act by using Canadian plants as examples and that he abused his discretion by both procedural and substantive errors in the rule-making which resulted in the guidelines and the effluent limitations for the potato processing industry. After detailed consideration of these specific questions, referred to above, we hold that this court has jurisdiction of this case. We also hold that the Administrator’s interpretations of the Act are valid in the respects complained of. We find abuse of discretion in only one minor instance. In Parts I and II of this opinion we set forth a general outline of the main features of the Act and its legislative history. This discussion provides a necessary basis for our more detailed interpretation of the Act in Part III. In Part IV we shall deal with the remaining issues, principally the claim of abuse of administrative discretion. I. THE STRUCTURE OF THE ACT In Title I of the Act, we find the following sweeping Declaration of Goals and Policy: DECLARATION OF GOALS AND POLICY Sec. 101. (a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act— (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; (4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works; (5) it is the national policy that area-wide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; and (6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans. 33 U.S.C. § 1251(a) (Supp. Ill, 1973) (Emphasis added.) Concern about pollution of the nation’s lakes, rivers, harbors and contiguous oceans is by no means new: The Federal Water Pollution Control Act . . . was originally enacted by act June 30, 1948, c. 758, 62 Stat. 1155, and amended by Acts July 17, 1952, c. 927, 66 Stat. 755; July 9,1956, ch. 518, 70 Stat. 498; June 25,1959, Pub.L. 86-70, 73 Stat. 141; July 12, 1960, Pub.L. 86-624, 74 Stat. 411; July 20,1961, Pub.L. 87-88, 75 Stat. 204; Oct. 2, 1965, Pub.L. 89-234, 79 Stat. 903; Nov. 3,1966, Pub.L. 89-753, 80 Stat. 1246; Apr. 3, 1970, Pub.L. 91-224, 84 Stat. 91; Dec. 31, 1970, Pub.L. 91-611, 84 Stat. 1818; July 9, 1971, Pub.L. 92-50, 85 Stat. 124; Oct. 13, 1971, Pub.L. 92-137, 85 Stat. 379; Mar. 1,1972, Pub.L. 92-240, 86 Stat. 47. However, the Federal Water Pollution Control Act Amendments of 1972 are not mere amendments to previous control attempts. Preceding pollution control measures were fundamentally designed to determine what lakes and streams had become polluted beyond toleration and then to locate the particular polluters and suppress the discharges that were causing the condition. Determination of which polluter caused what pollution proved over the years to be an impractical task. Congress was confronted by failure of efforts which its leaders estimated to have cost $20 billion of public funds. It also was confronted by continuing and increasing massive pollution which was turning many American rivers into open sewers, was threatening the extinction of marine life in several of the Great Lakes, as well as our ocean harbors, and was endangering the purity of our waters for drinking, for water recreation, for crop irrigation, and for industrial usage. By 1972 Congress determined upon a wholly new approach. The basic concept of the Act we construe in this case is an ultimate flat prohibition upon all discharges of pollutants: Sec. 301. (a) Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful. Sec. 301(a), 33 U.S.C. § 1311(a) (Supp. Ill, 1973). The fantastic disruption of economic life which would be occasioned by immediate implementation of this enactment is alleviated by a complex set of statutory exceptions provided for under federal and state permit programs — all designed to require decreasing levels of pollutant discharges and aimed at achieving by 1985 the ultimate national goal of eliminating the discharge of all pollutants in any American lakes, rivers, or contiguous seas. In the interim period the act provides for national standards called “effluent limitations” applicable to statutorily named categories and classes of industrial and commercial dischargers. The first purpose of the effluent limitations is to achieve by July 1, 1977 “the best practicable control technology currently available.” (§ 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A)). The effluent limitations are to be based on “effluent limitations guidelines” published after carefully devised study procedures (§ 304, 33 U.S.C. § 1314). The Act further requires by July 1, 1983, “effluent limitations for categories and classes of point sources . . . that shall require application of “the best available technology economically achievable for each category or class.” (§ 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A)). Where application of “the best available technology” does not result in the complete elimination of discharges of pollutants, the Act calls for continuing periodic review, presumably until all discharges are terminated. (§ 301(d), 33 U.S.C. § 1311(d)). This same standard, i. e. “best available technology,” is mandated forthwith for all new plant construction (new point sources) by § 306, 33 U.S.C. § 1316. This section also allows a 10-year period of amortization of costs before any higher standard may be imposed. The Act sets forth machinery for state enforcement of these nationally set standards through state permit programs where the Administrator determines that the state concerned “has the capability of administering a permit program which will carry out the objective of this Act. . . (§ 402(a)(5), 33 U.S.C. § 1342(a)(5)). As to nonparticipating states, direct enforcement through a federal permit program is retained in the hands of the federal Administrator. (§ 402(a)(1), (2), (3), 33 U.S.C. § 1342(a)(1), (2), (3)). In addition, as to participating states the Act clearly gives the federal Administrator ultimate enforcement power and responsibility if a state fails in its permit issuing or enforcement responsibilities under the Act. (§ 402(c), 33 U.S.C. § 1342(c)). Enforcement of the permit program described above is provided for by both civil and criminal proceedings in the United States District Court as set forth in § 309, 33 U.S.C. § 1319, of the Act. In addition, under § 505, 33 U.S.C. § 1365, private suits by adversely affected citizens to enforce the provisions of the Act can be brought in the United States District Courts. The Administrator is given statutory authority to “prescribe such regulations as are necessary to carry out his functions” under the Act. (§ 501(a), 33 U.S.C. § 1361). Judicial review of the actions of the federal Administrator is provided for by original action in the various United States Courts of Appeals. (§ 509, 33 U.S.C. § 1369). What has been set forth above represents only the skeletal structure of the Act as it applies to industrial and commercial pollutant discharges. II. LEGISLATIVE HISTORY The legislative history of this Act is readily available. It is fully compiled in two volumes entitled “A Legislative History of the Water Pollution Control Act Amendments of 1972.” From this work we select principally those statements which deal specifically with effluent limitations, as set forth in § 301 and § 306, their relationship to the information and guideline program of § 304, the permit program outlined in § 402, the enforcement program outlined in § 309, and judicial review as called for in § 509. The Joint Conference Report deals directly with one of the major issues in this appeal by squarely rejecting plant-by-plant determination of effluent limitations: The conferees intend that the Administrator or the State, as the case may be, will make the determination of the economic impact of an effluent limitation on the basis of classes and categories of point sources, as distinguished from a plant by plant determination. However, after July 1, 1977, the owner or operator of a plant may seek relief from the requirement to achieve effluent limitations based on best available technology economically achievable. The burden will be on him to show that modified requirements will represent the maximum use of technology within his economic capability and will result in reasonable further progress toward the elimination of the discharge of pollutants. If he makes this showing, the Administrator may modify the requirements applicable to him. Leg. Hist, at 304. The central importance of § 301 to the total Congressional plan is enunciated in the Committee Report which follows. In addition, this Senate Report on the Bill indicates clearly that the best practicable level of enforcement by 1977 is to be set at least as high as an average of the best performers in the category or class of industry concerned while the best available level of performance required by 1983 is to be set, “at a minimum,” in relation to the best performer in any such industrial category: It is the Committee’s intention that pursuant to subsection 801(b)(1)(A), and Section 804(b) the Administrator will interpret the term “best practicable” when applied to various categories of industries as a basis for specifying clear and precise effluent limitations to be implemented by January 1, 1976. In defining best practicable for any given industrial category, the Committee expects the Administrator to take a number of factors into account. These factors should include the age of the plants, their size and the unit processes involved and the cost of applying such controls. In effect, for any industrial category, the Committee expects the Administrator to define a range of discharge levels, above a certain base level applicable to all plants within that category. In applying effluent limitations to any individual plant, the factors cited above should be applied to that specific plant. In no case, however, should any plant be allowed to discharge more pollutants per unit of production than is defined by that base level. The Administrator should establish the range of best practicable levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category. It is acknowledged that in those industrial categories where present practices are uniformly inadequate, the Administrator may determine best practicable to require higher levels of control than any currently in place if he determines the technology to achieve those higher levels can be practicably applied. Best practicable can be assumed to substitute for the present terminology “equivalent of secondary treatment for industry[”] but this interpretation should not be construed as limiting the authority of the Administrator. Under the Phase II the Committee intends that effluent limitations be based upon application of best available technology as defined by the Administrator. In making the determination of “best available” the Committee expects the Administrator to apply the same principles involved in making the determination of best practicable as outlined above except that rather than the range of levels established in reference to the average of the best performers in an industrial category the range should at a minimum be referenced to the best performer in any industrial category. The distinction between best practicable and best available is intended to reflect the Committee’s intent press toward increasingly higher levels of control, applied over five year periods. Through research and development of new processes, modifications, replacement of obsolete plants and processes, and other improvements in technology, the Committee anticipates that it should be possible, taking into account the cost of controls, to achieve, by 1981 levels of control approaching 95-99 percent reduction of pollutants discharged in most cases and complete recycling in the remainder. Leg.Hist. at 1468-69. (Emphasis added.) The critical importance of “nationally uniform effluent limitations” is emphasized by these comments from Senator Muskie: Senators will recall from the November debate on the Senate bill that there were three essential elements to it: Uniformity, finality, and enforceability. Without these elements a new law would not constitute any improvement on the old; we would not bring a conference agreement to the floor without them. As far as uniformity and finality are concerned, the conference agreement provides that each polluter within a category or class of industrial sources will be required to achieve nationally uniform effluent limitations based on “best practicable” technology no later than July 1, 1977. This does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977, that they must be uniform, and that they will be final upon the issuance of a permit under section 402 of the bill. ****** The third critical element that concerned the Senate in its consideration of this legislation was enforceability. Enforceability is assured through the provisions of the permit program and through section 309, the enforcement section of the act. The Administrator has the responsibility to determine the effluent limitations to be applied to each category or class of polluter, to set forth those limitations in a permit issued pursuant to section 402 of the act, and to enforce those limitations through the provisions of section 309. Leg.Hist. at 162-63. (Emphasis added.) The same Senator also introduced the following exhibit concerning the relationship between §§ 301 and 304 and how “the best practicable technology” to be required by 1977 will be determined: The Conference agreement establishes a two phase program for the application and enforcement of effluent limitations. The first phase requires point sources to achieve that level of effluent reduction identified as “best practicable control technology” no later than July 1, 1977. The Conferees attempted to clarify what was intended by the term “best practicable control technology”. It is the intention that pursuant to subsection 301(b)(1)(A) and Section 304(b), the Administrator will interpret the term “best practicable” when applied to various categories of industries as a basis for specifying clear and precise effluent limitations to be implemented by July 1, 1977. In defining “best practicable” for any given industrial category, the Committee expects the Administrator to take a number of factors into account. These factors should include the age of the plants, their size, the unit processes involved, and the cost of applying such controls. The Administrator should establish the range of “best practicable” levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category. In those industrial categories where present practices are uniformly inadequate, the Administrator should interpret “best practicable” to require higher levels of control than any currently in place if he determines that the technology to achieve those higher levels can be practicably applied. “Best practicable” can be interpreted as the equivalent of secondary treatment for industry, but this interpretation should not be construed to limit the authority of the Administrator. 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. It is assumed, in any event, that “best practicable technology” will be the minimal level of control imposed on all sources within a category or class during the period subsequent to enactment and prior to July 1, 1977. The Conference agreement requires that implementation plans and compliance schedules in existing water quality standards be adhered to, to the extent that those plans and schedules require compliance no later than July 1,1977, and to the extent that they call for a degree of pollution control no less stringent than that defined by “best practicable control technology”. Leg.Hist. at 169-70. (Emphasis added.) This same document states the Congressional purpose of employment of “the best available technology” by 1983 — “without regard to cost”: The Conference agreement applies a different test to the Administrator’s determination of “best available demonstrated technology”. In determining the degree of effluent reduction to be achieved for a category or class of sources by 1983, the Administrator may consider a broader range of technological alternatives and should, at a minimum, review capabilities which exist in operation or which can be applied as a result of public and private research efforts. In making the determination of “best available” for a category or class, the Administrator is expected to apply the same principles involved in making the determination of “best practicable” (outlined above), except as to cost-benefit analysis. Also, rather than establishing the range of levels in reference to the average of the best performers in an industrial category, the range should, at a minimum, be established with reference to the best performer in any industrial category. The distinction between “best practicable” and “best available” is intended to reflect the need to press toward increasingly higher levels of control in six-year stages. Through the research and development of new processes, modifications, replacement of obsolete plans and processes, and other improvements in technology, it is anticipated that it should be possible, taking into account the cost of controls, to achieve by 1983 levels of control which approach and achieve the elimination of the discharge of pollutants. As to the cost of “best available” technology, the Conferees agreed upon the language of the Senate bill in Section 304(b)(2). While cost should be a factor in the Administrator’s judgment, no balancing test will be required. The Administrator will be bound by a test of reasonableness. In this case, the reasonableness of what is “economically achievable” should reflect an evaluation of what needs to be done to move toward the elimination of the discharge of pollutants and what is achievable through the application of available technology — without regard to cost. Leg.Hist. at 170. (Emphasis added.) The harshness of the preceding paragraph is subject to relief under § 301(c) which gives the Administrator the power to modify the effluent limitation as to any particular point source which is 1) employing the best available technology within its economic capability, and 2) making reasonable further progress toward elimination of discharge of pollutants. This is made clear in the following paragraph from Senator Muskie’s exhibit: The Conferees have provided, however, a mechanism for individual point-source-by-source consideration in section 301(c). That section provides that the Administrator may modify any effluent limitation based on “best available technology” to be achieved by July 1, 1983, with respect to any point source, upon a showing by the owner or operator of such point source that an effluent limitation so modified will represent the maximum use of technology within the economic capability of the operator and will result in reasonable further progress toward the goal of the elimination of the discharge of pollutants. Leg.Hist. at 172. Senator Muskie also detailed the relationship contemplated between the guideline section, § 304, and the effluent limitation section, § 301: Section 304(b), as agreed to by the Conferees, requires that the Administrator publish regulations which shall provide guidelines for the establishment of the effluent limitations to be achieved by categories and classes of point sources (other than publicly owned treatment works) pursuant to section 301(b) of the Act. Section 304(b) identifies certain factors to be taken into account by the Administrator in determining the “best practicable” treatment and the “best available” treatment applicable to categories or classes of point sources. Among those factors are considerations of costs. In determining the “best practicable technology” for a particular class or category of point sources, the Administrator is directed to consider the relationship between the total cost of the application of such technology and the effluent reduction benefits to be achieved from such application within that category or class. In determining the “best available technology” for a particular category or class of point sources, the Administrator is directed to consider the cost of achieving effluent reduction. 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. Except as provided for in section 301(c) of the Act, the intent is that effluent limitations applicable to individual point sources within a given category or class be as uniform as possible. The Administrator is expected to be precise in his guidelines so as to assure that similar point sources with similar characteristics, regardless of their location or the nature of the water into which the discharge is made, will meet similar effluent limitations. o Leg.Hist. at 171-72. (Emphasis added.) The Senate Report makes clear that § 304(b) requires guidelines for setting effluent limitations under § 301 “which will be imposed as conditions of permits issued under § 402”: Subsection (b) of this section requires the Administrator, within one year after enactment, to publish guidelines for setting effluent limitations reflecting the mandate of section 301, which will be imposed as conditions of permits issued under section 402. These guidelines would identify what constituted the “best practicable control technology currently available” and the “best available control measures and practices,” and the degree of effluent reduction attainable through the application of each. Thus, these guidelines would define the effluent limitations required by the first and second phases of the program established under section 301. In addition, the Administrator would identify control measures and practicesavailable to eliminate the discharge of pollutants from any category of point sources, to allow the full implementation of the objectives of the Act. Leg.Hist. at 1469. In the House, phased compliance with nationally uniform standards and the critical dates of 1977 and 1983 were emphasized. Rep. Jones of Alabama said: Title III of the conference report contains many of the basic provisions for standards and enforcement. Included are section 301(b)(1)(A), which requires point sources to achieve by July 1, 1977, effluent limitations which require the application of “best practicable control technology currently available” and section 301(b)(2)(A) which requires point sources to achieve by July 1, 1983, effluent limitations which require the application of “best available technology economically achievable.” It is the intention of the managers that the July 1, 1977, requirements be met by phased compliance and that all point sources will be in full compliance no later than July 1, 1977. Discharge permits issued by the Administrator or by the States should include any applicable implementation plans established under existing water quality standards. If the owner or operator of a given point source determines that he would rather go out of business than meet the 1977 requirements, the managers clearly expect that any discharge issued in the interim would reflect the fact that all discharges not in compliance with such “best practicable control technology currently available” would cease by June 30, 1977. In any event, the discharge would have to be consistent with any applicable water quality standards including implementation plans. By the term “best practicable” the managers mean that all factors set forth in section 304(b)(1)(B) are to be taken into consideration. With the exception of modifications of section 301 requirements for the discharges of heat which may be made pursuant to section 316(a), the determination of the “best practicable control technology currently available” is not to be based upon the existing quality of the receiving waters. The managers expect that the total cost of application of technology in relation to the effluent limitation benefits to be achieved will always be a factor used by the Administrator in his determination of “best practicable control technology currently available” for a given category or class of point source. The term “total cost of application of technology” as used in section 304(b)(1)(B) is meant to include those internal, or plant, costs sustained by the owner or operator and those external costs such as potential unemployment, dislocation, and rural area economic development sustained by the community, area, or region. By the term “control technology” the managers mean the treatment facilities at the end of a manufacturing, agricultural, or other process, rather than control technology within the manufacturing process itself. By the term “currently available” the managers mean the control technology, which, by demonstration projects, pilot plans, or general use, has demonstrated a reasonable level of engineering and economic confidence in the viability of the process at the time of commencement of actual construction of the control facilities. The House managers were determined and successful in their efforts to make sure that the factors in sections 304(b)(1)(B) and 304(b)(2)(B) relating to the assessment of “best practicable control technology currently available” and “best available technology economically achievable,” respectively, included consideration of nonwater quality environmental impact, including energy requirements. The managers believe that it would be foolhardy to credit one environmental account and debit another by the same action. Their intent is that the assessment of “best practicable control technology currently available” shall be such that the net effect on water and other environmental needs will be positive and beneficial, and that other impacts of water quality environmental efforts would not negate the overall benefit of the achievement of higher water quality- Leg.Hist. at 231-32. (Emphasis added.) Representative Dingell specifically noted that effluent limitations should not be set on a plant-by-plant basis: Eighth, the bill, in section SOI, establishes a two-phase program for application and enforcement of effluent limitations. The first phase requires achievement by July 1, 1977, of that level of effluent reduction identified as “best practicable control technology.” It should be emphasized that the term “best practicable" does not mean a reliance on secondary treatment. The second phase provides a higher degree of effluent reduction to be achieved by 1983. The distinction between “best practicable” and “best available” is intended to reflect the need to press toward increasingly higher levels of control. The conference report emphasizes on page 121 a very important point. The report states: The conferees intend that the Administrator or the State, as the case may be, will make the determination of the economic impact of an effluent limitation on the basis of classes and categories of point sources, as distinguished from a plant-by-plant determination. Thus, a plant-by-plant determination of the economic impact of an effluent limitation is neither expected, nor desired, and, in fact, it should be avoided. The report also states on page 171: * * * after July 1,1977, the owner or operator of a plant may seek relief from the requirement to achieve effluent limitations based on best available technology economically achievable. The burden will be on him to show that modified requirements will represent the maximum use of technology within his economic capability and will result in reasonable further progress toward the elimination of the discharge of pollutants. If he makes this showing, the Administrator may modify the requirements applicable to him. This provision could be troublesome, if EPA does not administer it properly. This is, of course, an area where the public participation requirement of section 101(e) of the bill will be most important. In order to avoid any possibility of a weakening of the after-1977 requirement, EPA must establish procedures for the public to participate in modified effluent limitations such as may result from such “relief” requests. The applicant’s showing must be available to the public for comment, as well as EPA’s proposed determination. In making this determination, EPA should assure itself that, even if such “relief” is granted, it will still result in “further progress toward elimination of the discharge of pollutants” from point sources than has- resulted from the pre1977- requirements. Leg.Hist. at 254-55. (Emphasis added.) Representative Wright stated that the effluent limitations called for in § 301 were to be promulgated as “regulations”: Subsection 104(t) provides that the Administrator shall conduct continuing comprehensive studies of the effects and methods of control of thermal discharges. The results of these studies shall be reported by the Administrator no later than 270 days after enactment, and shall be considered by the Administrator in proposing regulations with respect to thermal discharges under section 316 and by the States in proposing thermal water quality standards. These studies will provide needed data and should be very helpful to the Administrator in proposing regulations. The Administrator should consider the:results of these studies in promulgating regulations not only under section 316 but also under other sections of the act where thermal discharges may be regulated, including section 301 on effluent limitations, section 303 on water quality standards, and section 306 on new source performance standards. Leg.Hist. at 264. (Emphasis added.) The discussion of the section on judicial review of the actions of the Administrator by the United States Courts of Appeals (§ 509) emphasizes 1) that review is to be expedited and 2) that it should not impede enforcement. See Leg.Hist. at 330-31, 822-23, 1502-03. In pursuance of these goals the statute itself provides for expedited review by the Courts of Appeals and prohibits any later review of actions of the Administrator, subject to § 509 review, in enforcement proceedings. See § 509(b)(2), 33 U.S.C. § 1369(b)(2) (Supp. Ill, 1973). Finally, the Committee Report from the House makes clear that “guidelines” under § 304 are not in themselves enforcible until “promulgated” under other sections of the Bill — particularly §§ 301 and 306. It also makes clear that if a point source has a valid permit under § 402, compliance with that permit and its terms is compliance with §§ 301 and 306 for purposes of the enforcement program provided for in §§ 309 and 505: The Committee points out, as it did in the discussion of section 401, that the term “applicable” used in section 402 has two meanings. It means that the requirement which the term “applicable” refers to must be pertinent and apply to the activity and the requirement must be in existence by having been promulgated or implemented. The Committee further recognizes that the requirements under sections 301, 302, 306, 307, 308, 316 and 403 will not all be promulgated immediately upon enactment of this bill. Nevertheless, it would be unreasonable to delay issuing of permits until all the implementing steps are necessary. Therefore, subsection (a)(2) provides that prior to the taking of the necessary implementing actions relating to all such requirements, the Administrator may issue permits during this interim period with such conditions as he determines are necessary to carry out the provisions of this Act. Thus, the new permit program may be initiated without undue delay upon enactment of this Act. Subsection (a)(2) requires the Administrator to prescribe conditions for these permits to assure compliance with the requirements of subsection (a)(1), including conditions on data and information collection, reporting and such other requirements as he deems appropriate. Subsection (a)(3) provides that the Administrator’s permit program and the permits he issues will be subject to the same terms, conditions,-requirements as apply to a state permit program and permit issued under subsection (b). Leg.Hist. at 812-13. (Emphasis added.) Subsection (1) provides that compliance with a permit issued pursuant to section 402 shall be considered to be compliance for purposes of sections 309 and 505, with section 301, 302, 306, 307, 316 and 403, except any standard imposed upon section 307 for a toxic pollutant injurious to public health. The purpose of this provision is to assure that the mere promulgation of any effluent limitation or other limitation, a standard, or a thermal discharge regulation, by itself will not subject a person holding a valid permit to prosecution. However, once such a requirement is actually made a condition of the permit, then the permittee will be held to comply with the terms thereof. Leg.Hist. at 815. (Emphasis added.) This review of the language and structure of the Act and its legislative history leads us to four final conclusions and two tentative conclusions. Final Conclusions The Act, although entitled “Amendments,” is an entirely new approach to water pollution control. The principal purpose of the Act is to achieve the complete elimination of all discharges of pollutants into the nation’s waters by 1985 or as soon thereafter as may be. The authors of the Act clearly foresaw that its impact would be very costly to both the public and private sectors and determined to proceed in spite of the cost. The authors of the Act were much concerned about timely implementation, and specified implementation dates of 1977, 1983 and 1985 for different phases of achievement of the principal purpose of elimination of all pollutants. Tentative Conclusions Section 301 of the Act is the fundamental control section and contemplates national standards of effluent limitations (rather than individual plant standards). Review of all standards (including § 301 effluent limitations) promulgated by the Administrator is provided for in the various United States Courts of Appeals by § 509 of the Act. Further analysis of the tentative conclusions will follow in answers to the issues presented in this case. III. THE STATUTORY ISSUES 1. Jurisdiction (and EPA’s § 301 authority). The Act gives the Courts of Appeals of the United States wide and exclusive jurisdiction to review the actions of the Administrator: (b)(1) Review of the Administrator’s action (A) in promulgating any standard of performance under section 306, (B) in making any determination pursuant to section 306(b)(1)(C), (C) in promulgating any effluent standard, prohibition, or treatment standard under section 307, (D) in making any determination as to a State permit program submitted under section 402(b), (E) in approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306, and (F) in issuing or denying any permit under section 402, 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 upon application by such person. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day. (2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) of this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement. § 509(b), 33 U.S.C. § 1369(b) (Supp. Ill, 1973). (Emphasis added.) On the other hand the role of the United States District Courts under the applicable portions of this Act is directed to enforcement proceedings against alleged polluters: FEDERAL ENFORCEMENT Sec. 309. (a)(1) Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any condition or limitation which implements section 301, 302, 306, 307 or 308 of this Act in a permit issued by a State under an approved permit program under section 402 of this Act, he shall proceed under his authority in paragraph (3) of this subsection or he shall notify the person in alleged violation and such State of such finding. If beyond the thirtieth day after the Administrator’s notification the State has not commenced appropriate enforcement action, the Administrator shall issue an order requiring such person to comply with such condition or limitation or shall bring a civil action in accordance with subsection (b) of this section. (2) Whenever, on the basis of information available to him, the Administrator finds that violations of permit conditions or limitations as set forth in paragraph (1) of this subsection are so widespread that such violations appear to result from a failure of the State to enforce such permit conditions or limitations effectively, he shall so notify the State. If the Administrator finds such failure extends beyond the thirtieth day after such notice, he shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such conditions and limitations (hereafter referred to in this section as the period of ‘federally assumed enforcement’), the Administrator shall enforce any permit condition or limitation with respect to any person— (A) by issuing an order to comply with such condition or limitation, or (B) by bringing a civil action under subsection (b) of this section. (3) Whenever on the basis of any information available to him the Administrator finds that any person is in violation of section 301, 302, 306, 307, or 308 of this Act, or is in violation of any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act by him or by a State, he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section. (4) A copy of any order issued under this subsection shall be sent immediately by the Administrator to the State in which the violation occurs and other affected States. Any order issued under this subsection shall be by personal service and shall state with reasonable specificity the nature of the violation, specify a time for compliance, not to exceed thirty days, which the Administrator determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. In any case in which an order under this subsection (or notice to a violator under paragraph (1) of this subsection) is issued to a corporation, a copy of such order (or notice) shall be served on any appropriate corporate officers. An order issued under this subsection relating to a violation of section 308 of this Act shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator concerning the alleged violation. (b) The Administrator is authorized to commence a civil action for appropriate relief, including a permanent or temporary injunction, for any violation for which he is authorized to issue a compliance order under subsection (a) of this section. Any action under this subsection may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance. Notice of the commencement of such action shall be given immediately to the appropriate State. (c) (1) Any person who willfully or negligently violates section 301, 302, 306, 307, or 308 of this Act or any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act by the Administrator or by a State shall be punished by a fine of not less than $2,500 nor more than $25,-000 per day of violation, or by imprisonment for not more than one year, or by both. If the conviction is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $50,-000 per day of violation, or by imprisonment for not more than two years, or by both. (2) Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this Act or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this Act, shall upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months or by both. (3) For the purposes of this subsection, the term ‘person’ shall mean, in addition to the definition contained in section 502(5) of this Act, any responsible corporate officer. (d) Any person who violates section 301, 302, 306, 307, or 308 of this Act, or any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act by the Administrator, or by a State, and any person who violates any order issued by the Administrator under subsection (a) of this section, shall be subject to a civil penalty not to exceed $10,000 per day of such violation. (e) Whenever a municipality is a party to a civil action brought by the United States under this section, the State in which such municipality is located shall be joined as a party. Such State shall be liable for payment of any judgment, or any expenses incurred as a result of complying with any judgment, entered against the municipality in such action to the extent that the laws of that State prevent the municipality from raising revenues needed to comply with such judgment. § 309, 33 U.S.C. § 1319 (Supp. Ill, 1973). It is important to note that this section makes § 301 limitations enforceable by both criminal and civil penalties. Congress, however, did not make the “guidelines” of § 304 enforceable against polluters under this (or any other) section except as they are promulgated as limitations or standards under §§ 301, 302, 306 or 307, or as they may be incorporated as conditions or limitations under permits issued under § 402. Private suits in the United States District Courts based upon alleged violations of § 301 effluent limitations are also provided for as an additional means of enforcement: Sec. 505. (a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 309(d) of this Act. § 505(a), 33 U.S.C. § 1365(a) (Supp. Ill, 1973). The specific language of § 509(b) grants this court authority to review the “effluent limitations” issued by the Administrator under § 301, § 302 and § 306. The petitioners and the respondent in this case agree that this court has such jurisdiction. Amici from the chemical and oil industries, however, present a different point of view. They contend that the statute gives the Administrator no authority to issue nationwide effluent limitations under § 301. They argue that the guidelines called for in § 304 are the controlling regulations. Therefore, since § 509 contains no specific authority for the Courts of Appeals to review the “guidelines” issued by the Administrator under § 304, this court is without authority to review the issues in this case. They also contend that § 304 “guidelines” applicable to the industries concerned can only be reviewed in the United States District Courts. In this regard they cite and rely upon CPC International Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975). We disagree with amici in this ease. Respectfully, we also disagree with the Eighth Circuit in CPC International, supra. From the express language of the Act and its legislative history, we have no doubt that the Act provides for issuance of “guidelines” under § 304(b) for categories of pollution point sources and that these “guidelines” were intended by Congress as a source of guidance to the Administrator in issuance of “effluent limitations” under § 301 for categories and classes of pollution point sources. Further, the “guidelines” and “effluent limitations” were intended to serve as controlling standards for state permit programs under § 402. It is important to remember — in direct contrast to the arguments of amici in this case and the interpretation of the Act set forth in the Eighth Circuit’s opinion in CPC International — that § 301 is the basic enforcement mechanism relied upon by Congress: Sec. 301. (a) Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful. (b) In order to carry out the objective of this Act there shall be achieved— (1)(A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act, or (ii) in the case of a discharge into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, which shall require compliance with any applicable pretreatment requirements and any requirements under section 307 of this Act; and (B) for publicly owned treatment works in existence on July 1, 1977, or approved pursuant to section 203 of this Act prior to June 30, 1974 (for which construction must be completed within four years of approval), effluent limitations based upon secondary treatment as defined by the Administrator pursuant to section 304(d)(1) of this Act; or, (C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 510) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this Act. (2)(A) not later than July 1, 1983, effluent limitations for categories and classes of point sources, other than publicly owned treatment works, which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act, which such effluent limitations shall require the elimination of discharges of all pollutants if the Administrator finds, on the basis of information available to him (including information developed pursuant to section 315), that such elimination is technologically and economically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act, or (ii) in the case of the introduction of a pollutant into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, shall require compliance with any applicable pretreatment requirements and any other requirement under section 307 of this Act; and (B) not later than July 1, 1983, compliance by all publicly owned treatment works with the requirements set forth in section 201(g)(2)(A) of this Act. (c) The Administrator may modify the requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants. (d) Any effluent limitation required by paragraph (2) of subsection (b) of this section shall be reviewed at least every five years and, if appropriate, revised pursuant to the procedure established under such paragraph. (e) Effluent limitations established pursuant to this section or section 302 of this Act shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this Act. (f) Notwithstanding any other provisions of this Act it shall be unlawful to discharge any radiological, chemical, or biological warfare agent or high-level radioactive waste into the navigable waters. 33 U.S.C. § 1311 (Supp. Ill, 1973). The very first sentence in § 301(a) provides the fundamental prohibition: “Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.” Significantly, this fundamental sentence makes no reference at all to § 304(b). Further, as noted above, there is no provision in the Act for enforcement of the § 304(b) guidelines against polluters. But § 301(e) specifically provides: (e) Effluent limitations established pursuant to this section or section 302 of this Act shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this Act. 33 U.S.C. § 1311(e) (Supp. Ill, 1973). We note, of course, the argument of amici curiae and the Eighth Circuit that § 301 does not expressly direct the Administrator to promulgate the “effluent limitations” which § 301 says “should be achieved.” This argument, based on the employment of the passive tense in relation to effluent limitations, ignores the fact that § 301 begins with the fundamental statutory prohibition that (with named exceptions) “the discharge of any pollutant by any person shall be unlawful.” This prohibition which is central to the entire Act is statutory and requires no promulgation. The Administrator’s function is to set the interim levels of pollutant discharge allowable until absolute cessation is required. Effluent limitations are both required by § 301 and made enforceable against violators by criminal and civil penalties under § 309. Section 309(a) specifically provides for enforcement of any “limitation which implements section 301. . . . ” 33 U.S.C. § 1319(a) (Supp. Ill, 1973). The drafters’ intent that the Administrator promulgate such standards is made clear by § 509 (quoted in full above) which specifically provides for review of the Administrator’s action “in approving or promulgating any effluent limitation or other limitation under section 301 . . . .” § 509(b)(1)(E), 33 U.S.C. § 1369 (b)(1)(E) (Supp. Ill, 1973). Further, if anything more be needed, the Administrator is given wide authority to issue regulations. Section 501(a) specifically provides: “The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this Act.” Under this statute, as we read it, the Administrator has no more important function than carrying out the fundamental purposes of the Act spelled out in § 301. This is demonstrated by the fact that both the federal and state permit programs called for by § 402 are required to be in compliance with “the requirements . of § 301.” There is no such command applicable to § 304. Thus, without the national standards required by § 301, the fifty states would be free to set widely varying pollution limitations. These might arguably be different for every permit issued. In sum, giving effect to the argument advanced by amici and the Eighth Circuit’s CPC International opinion would effectively emasculate the act. The plainly expressed purpose of Congress to require nationally uniform interim limitations upon like sources of pollution would be defeated. States would be motivated to compete for industry by establishing minimal standards in their individual permit programs. Enforcement would proceed on an individual point source basis with the courts inundated with litigation. The elimination of all discharge of pollutants by 1985 would become the impossible dream. In all of these respects, the interpretation sought by amici curiae is violative of what we deem to be clearly expressed Congressional intent. For these reasons, and those set forth in parts I and II of th