Present: GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges
The petitioner and the respondent in this action seeking review of an order of the Environmental Protection Agency (EPA) have jointly petitioned for rehearing by the original panel. The petition for review was consolidated with No. 79-1057. Both in No. 79-1057 and in No. 79-1466 the petitioners sought to challenge the decision of the Administrator of EPA to defer promulgation of new source performance standards, under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. I), for water polluting discharges attributable to closed or abandoned mines. In the opinion filed February 12, 1980, we held that this court lacked jurisdiction to consider that contention in a petition for review filed pursuant to section 509 of the Federal Water Pollution Control Act, 33 U.S.C. § 1369(b). Suits seeking to cure EPA inaction, we held, should be brought in the district courts under section 505 of the Act, 33 U.S.C. § 1365. Therefore we denied the petitions for review. The petitioner and the respondent have called to our attention the fact that in No. 79-1466 petitioners also challenged the definition of "new source" coal mines contained in the regulations as promulgated. This challenge, they contend, properly lies here pursuant to section 509, because unlike the dispute over postponement of the decision on standards for discharges attributable to closed or abandoned mines, the second issue raised in No. 79-1466 involved an actually promulgated regulation having the effect of exempting some operating mines while affecting others. Our previous opinion treated this issue as the equivalent of a challenge to EPA inaction. Although the question is a close one we are now convinced, however, that the challenge to the definition of "new source" coal mines falls within our section 509 jurisdiction as exercised in American Iron & Steel Institute v. EPA (AISI I) , 526 F.2d 1027 (3d Cir. 1975), cert. denied , 435 U.S. 914 (1978), and American Iron & Steel Institute v. EPA (AISI II) , 568 F.2d 284 (3d Cir. 1977), and as defined in our earlier opinion in this case.
The contested regulation was promulgated on the authority of section 306 of the Act, 33 U.S.C. § 1316, which defines a new source as:
any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this section.
Id . § 1316(a)(2). In the promulgated standard, however, the EPA noted that promulgation of the regulations was delayed for more than one hundred twenty days after publication of proposed regulations because the agency needed additional time to address the substantial number of comments received on its proposal. It therefore made the effective date of the new source regulations the date of promulgation rather than the date of proposal. 44 Fed. Reg. 2587, 2589-90 codified at 40 C.F.R. § 434.11(i) (1979).
The Act provides that when the Administrator designates a category of sources, here coal mines, as subject to section 306, then "[as] soon as practicable, but in no case more than one year" thereafter he "shall propose and publish regulations establishing Federal standards of performance for new sources within such category." 33 U.S.C. § 1316(b)(1)(B). "After considering... comments, he shall promulgate, within one hundred and twenty days after publication of such proposed regulations, such standards with such adjustments as he deems appropriate." Id . The quoted time limits are couched in mandatory language. The same subsection states that "[standards] of performance, or revisions thereof, shall become effective upon promulgation." Id .
Petitioners urge that the effective date provision in section 306(b)(1)(B) must be read together with the new source definition in section 306(a)(2) quoted above; that is, the regulations apply upon promulgation to all new sources constructed after the standards are proposed. Otherwise, they argue, the mandatory time limits in section 306(b)(1)(B) will be easily circumvented. Thus, they urge, the EPA cannot rely on its own foot dragging as a reason for avoiding application of the promulgated standards to new sources constructed between the date of proposal and the date of promulgation. EPA, on the other hand, contends that taking into account its budgetary restraints and the technical subject matter with which it deals, we should read the deadlines and effective date provision in section 306 as directory only. Otherwise, EPA suggests, it will merely avoid the deadlines and the effective date provision by reproposing and repromulgating standards. As the government brief puts it:
In the present case, the only way in which the 120 day period between proposal and promulgation prescribed by section 306(b)(1)(B) could have been met would have been to repropose and then repromulgate the regulations less than 120 days thereafter.
Brief for Appellee at 19.
We start our analysis with the plain language of the statute. Section 306 requires that once a category of sources has been identified by the Administrator as subject to the section, regulations governing new sources within that category must be proposed within one year. In equally mandatory terms, the section requires promulgation of the regulations within one hundren and twenty days after proposal and defines a "new source" as one the construction of which was commenced after proposal of regulations, "if such [regulations are] thereafter promulgated in accordance with this section." 33 U.S.C. § 1316(a)(2). Seizing upon this quoted provision, EPA argues that its failure to promulgate within one hundred and twenty days is a failure to promulgate in accordance with the section which renders the statutory new source definition inapplicable. The legislative history of the Act reveals that the original Senate bill defined new sources solely with reference to the date of proposal of the regulations, see Legislative History of the Federal Water Pollution Control Act Amendments of 1972 at 1623-24 (1973) [hereinafter Legislative History ] (reprinting S.2770). The House bill added the above-quoted language, see id . at 990 (reprinting H.R. 11896), which was ultimately adopted in Conference. See id . at 42 (reprinting Pub. L. No. 92-500 § 306(a)(2)). Nothing in the legislative history discloses the reason for the addition of the quoted language. What is clear, however, is that Congress intended to subject as many firms as possible to the new source regulations, as evidenced by the various reports that accompanied section 306(a). See H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 110-12, reprinted in Legislative History at 797-99 (reflecting intent to "preclude construction of new sources... which use less than the best available control technology" and defining new sources as those "for which the construction... is commenced after the publication of proposed regulations prescribing a standard of performance under section 306"); S. Rep. No. 92-414, 92d Cong., 1st Sess. 57-60, reprinted in Legislative History at 1475-78 ("The overriding purpose of this section would be to prevent new water pollution problems, and toward that end, maximum feasible control of new sources, at the time of their construction, is considered by the Committee to be the most effective and, in the long run, the least expensive approach to pollution control"); cf . S. Conf. Rep. No. 92-1236, 92d Cong., 2d Sess. 127-29, reprinted in Legislative History at 310-12 (expressly embodying intent of both houses with regard to meaning of § 306).
Although the legislative history is inconclusive, the time limit appears to serve a dual purpose. It advances the public interest in a prompt abatement of polluting discharges. It also serves to limit the period during which businesses contemplating construction, put on notice by a proposal for a standard, are left in a state of uncertainty with respect to final agency action. Congress said, in effect, that it is not unreasonable, once a business has been put on notice of a proposed standard affecting it, for that business to pattern its conduct for four months to the likely application of the standard. We reject the government's suggestion that it can postpone indefinitely the period of uncertainty by the expedient of periodic reproposal.
Assuming such a congressional purpose for the one hundred and twenty day provision in section 306, the next question is the consequence of EPA failure to meet that deadline. There are several alternative possibilities. That espoused by EPA here is the recognition of its power to disregard entirely the provision in section 306 defining new sources as those constructed after proposal of standards, and to apply the standards only to post-promulgation construction. The effect of such recognition, however, is to place possibly competing businesses, equally on notice of a proposed standard, in different positions because one took a chance on starting construction in the meantime while the other did not. Such a policy would conflict with our analysis of the Act in AISI II , 568 F.2d at 307-08, and with the Supreme Court's indication that escape from the standards of section 306 should be minimized. See E.I. du Pont de Nemours & Co. v. Train , 430 U.S. 112, 137-39 (1977) (holding that Congress intended that no new source may be granted a variance from § 306 standards). A second possibility is to hold that the one hundred and twenty day provision in section 306(b)(1)(B) shall be read into the new source definition in section 306(a)(2). This would mean that if promulgation were delayed for more than one hundred and twenty days the standard would apply only to new construction commenced in the last one hundred twenty days before promulgation. While that construction would give some effect to the congressional intention to make standards applicable to those businesses which go forward in the face of notice of the proposed regulation, it would, like the EPA construction of section 306, draw an arbitrary line between businesses, equally on notice, on the basis of when they took the chance of starting construction. Neither of these constructions seems consistent with the public interest in maximizing elimination of sources of pollution. Neither, moreover, is consistent with the policy we recognized in AISI I and AISI II of preventing the exemption from coverage of the Act of a group of businesses, that should have been included, to the disadvantage of their competitors. The third construction, that espoused by petitioners, is that section 306 means what it says; that the proposal of new source standards puts the world on notice, and that the regulations, whenever promulgated, apply to all who have been put on notice.
We conclude that this last construction is the only one consistent with the basic policies of the Act. It is not at all unfair, because businesses contemplating new construction which may be covered by the proposed standards are put on notice.*fn1 EPA acknowledges, it is true, that its record of compliance with the one hundred and twenty day limitation is less than perfect. Thus some businesses may, because of agency inaction, be left in a state of uncertainty for a time longer than Congress contemplated. But those businesses are not without remedy. They can resort to the district court under the citizens' suit provisions of section 505 of the Act to compel agency compliance with the spirit of not with the letter of the section 306 time limits. Natural Resources Defense Council, Inc. v. Train , 510 F.2d 692, 713 (D.C. Cir. 1975). Given the availability of that remedy we see no reason for construing section 306 in a manner which distorts its plain meaning. That plain meaning is that ...