ON PETITION FOR REVIEW OF REGULATIONS PROMULGATED BY THE ENVIRONMENTAL PROTECTION AGENCY.
Adams, Rosenn and Garth, Circuit Judges.
This petition seeks our review of certain regulations issued by the Environmental Protection Agency (EPA). The challenged regulations under certain circumstances allow adjustments to be made in permitted discharges if significant amounts of pollutants are found in a plant's intake water. Concluding that the statute which governs our jurisdiction does not provide for review of these regulations at this time, we dismiss the petition and accordingly do not reach the merits of petitioners' arguments.
The American Iron and Steel Institute (AISI), a trade association of iron and steel manufacturers and producers, and National Steel Corporation, a member of AISI, have petitioned this Court to review certain regulations, 40 C.F.R. §§ 125.24(c)*fn1 and 125.28*fn2 (the "Net-Gross Regulations") promulgated by EPA pursuant to the Federal Water Pollution Control Act Amendments of 1972 (the Act), 33 U.S.C. §§ 1251-1376 (Supp. 1976). These regulations provide, among other things, that effluent limitations*fn3 must be expressed in gross terms, but may be adjusted for some individual point sources which are unable to meet the required standards because of the presence of pollutants in intake water. Petitioners argue that these regulations are unconstitutional*fn4 and that their issuance was not authorized by the Act. They also contend that various provisions of the regulations are arbitrary, capricious, and not based on adequate evidence in the record.*fn5
The same "net-gross" controversy presented here was previously addressed (together with other issues) in American Iron and Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975) [ AISI I ]. There the Court reviewed the Effluent Guidelines and Standards for the Iron and Steel Manufacturing Point Source Category, 40 C.F.R. § 420 (1975). For reasons unrelated to the issues raised by the present petition, the regulations considered in AISI I were remanded to the agency for reconsideration and for promulgation of effluent limitation guidelines.*fn6
The petitioners in AISI I argued, as do the petitioners here, that the issuance of effluent limitations expressed in gross terms violated the fifth amendment's due process clause and that their promulgation was beyond the authority granted to EPA by the Act. They maintained that all effluent limitations must be expressed in net terms, i.e., that all pollutants present in the intake water must be subtracted from the gross amounts of pollutants discharged after processing and that only the net (the difference between these figures) could be regulated. In AISI I, that argument was answered by the Court's statement that while it was neither practical nor necessary to convert all effluent limitations to net terms, "any individual point source should be entitled to an adjustment in an effluent limitation applicable to it if it can show that its inability to meet the limitation is attributable to significant amounts of pollutants in the intake water." 526 F.2d at 1056.*fn7
Because these regulations were not before us in AISI I (see n.6 supra) it would appear appropriate for us to meet the merits of petitioners' arguments at this time were it not for the jurisdictional considerations raised by EPA. If we are without jurisdiction to review the challenged regulations, then we can only "announce that fact and do no more." Local 1498, American Federation of Government Employees v. American Federation of Government Employees, 522 F.2d 486, 492 (3d Cir. 1975). Hence, such a determination would preclude our reaching and deciding the substance of petitioners' claims.
EPA has maintained throughout these proceedings that we have no jurisdiction to review the Net-Gross Regulations in the absence of action by the Administrator issuing or denying a permit. 33 U.S.C. § 1369(b)(1)(F) (Supp. 1976). Since no permit has either been issued or denied, EPA initially sought to dismiss the petition by motion. When that motion was referred to this panel, EPA then vigorously argued before us that the petition should be dismissed because the statute provides no grant of jurisdiction whereby we may consider the petitioners' contentions. We therefore turn to this threshold jurisdictional argument.
Petitioners claim that we have jurisdiction to review the Net-Gross Regulations under 33 U.S.C. § 1369(b)(1)(E) (Supp. 1976).*fn8 The relevant portion of subsection (b)(1)(E) which they claim provides jurisdiction in this Court, reads: "Review of the Administrator's action . . . in approving or promulgating any effluent limitation . . . may be had . . . in the . . . Court of Appeals of the United States . . . ."*fn9 Focusing on the review afforded to an effluent limitation, the petitioners argue that the Net-Gross Regulations constitute effluent limitations or at least effluent limitation guidelines.
EPA, on the other hand, has consistently argued that the Net-Gross Regulations do not constitute effluent limitations or guidelines but rather relate solely to the terms and conditions specified in permits issued to individual point sources. EPA substantiates this argument by pointing to the fact that when it promulgated the Net-Gross Regulations it cited as its authority only sections ...