The opinion of the court was delivered by: STEWART
Natural Resources Defense Council, Inc. ("NRDC") and other named plaintiffs bring this action against the Environmental Protection Agency ("EPA") and its administrator Russell Train for failure to list lead as a pollutant under § 108 of the Clean Air Act of 1970. Defendants have moved to dismiss the complaint for lack of jurisdiction and failure to state a claim or for an order granting summary judgment. Plaintiffs have also moved for summary judgment.
Plaintiffs have alleged four separate grounds upon which the court might find jurisdiction: 1) § 304 of the Clean Air Act, as amended, 42 U.S.C. §§ 1857h-2(a); 2) the Administrative Procedures Act, 5 U.S.C. §§ 701-706; 3) the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2; and 4) the mandamus provisions of 28 U.S.C. § 1361.
Section 304 of the Clean Air Act provides in pertinent part:
Any person may commence a civil action on his own behalf (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
Defendants argue that the listing of pollutants under § 108 is a discretionary function and therefore no jurisdiction is vested in this court by virtue of § 304. While § 304 does not provide jurisdiction over distinctly discretionary functions of the Administrator, see e.g., United States Steel Corp. v. Fri, 364 F. Supp. 1013 (N.D.Ind.1973), it does permit jurisdiction to decide whether a function is mandatory or discretionary. Cf. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1945).
We therefore do not need to consider plaintiffs' other asserted jurisdictional grounds.
We turn now to the merits of plaintiffs' claim. Section 108 provides that the Administrator shall publish, and from time to time revise, a list including each air pollutant
(A) which in his judgment has an adverse effect on public health or welfare;
(B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and
(C) for which . . . he plans to issue air quality criteria under this section.
Plaintiffs contend that the statutory language, legislative history and purpose, as well as current administrative interpretation of the 1970 Clean Air Act, all militate in favor of finding that the Administrator's function to list pollutants under § 108 is mandatory, once it is determined by the Administrator that a pollutant "has an adverse effect on public health or welfare" and comes from the requisite numerous or diverse sources. Defendants concede in this action that lead comes from the requisite sources and that the Administrator has found lead to have the required "adverse effect." Defendants argue, however, that the language of § 108(a)(1)(C) "for which . . . [the Administrator] plans to issue air quality criteria" is a separate and third criterion to be met before § 108 requires placing a pollutant on the list. This construction of § 108(a) leaves the initial decision to list a pollutant within the sole discretion of the Administrator. Defendants contend such discretion is required because the Administrator must choose between alternative remedies provided in various sections of the Act and that any decision to utilize the remedies provided by §§ 108-110 "involves complex considerations." (Defendants' brief at 22).
Through analysis of the parties' arguments and of the various remedies and provisions of the Act, we have determined that the statutory scheme contemplates a mandatory duty on the part of the Administrator which is enforceable in the instant action.
Congress, in passing the Clean Air Act of 1970, was concerned with the delays and inefficiencies incurred in implementing the 1963 and 1967 air pollution acts. The House Report stated that "progress [had] been regrettably slow," citing "cumbersome and time-consuming procedures called for under the 1967 Act," "organizational problems on the federal level where air pollution control has not been accorded a sufficiently high priority" and "failure on the part of the National Air Pollution Control Administration to demonstrate sufficient aggressiveness in implementing present law." H.R.Rep. 91-1146, 91st Cong., 2d Sess. 5 (1970), U.S.Code Cong. & Admin.News, p. 5360. Thus, in the language of the 1970 Act, Congress attempts to achieve cleaner air by specifying procedures and timetables to be followed, all of which are reflective of Congress' determination "to speed up, ...