for EPA action. Defendants contend that "by its omission of any deadlines or timetables, section 202(2)(6) implicitly leaves the Administrator with broad discretion to decide when and under what circumstances to take action." Defendants' Supplemental Brief at 18.
A careful review of the position of plaintiffs reveals a misguided premise. Plaintiffs insist that because the EPA Administrator's decision concerning onboard control ultimately affects the levels of benzene emissions, "any decision to impose onboard controls under 202(a)(6) is a decision to elect that alternative and effectively to satisfy the Administrator's obligations under section 112 by imposing this alternate method of control." Plaintiffs' Supplemental Brief at 11-12. In support of this contention, plaintiffs point to the fact that in its Regulatory Agenda published on October 26, 1987 in the Federal Register, EPA acknowledged that section 112, as well as section 202(a)(6), applies to its decision to impose onboard controls. 52 Fed. Reg. 40,844 (1987). What plaintiffs fail to point out, however, is that several other sections of the Act are also cited as legal authority. These sections are 42 U.S.C. § 7525 (motor vehicle and motor vehicle engine compliance testing and certification) and 42 U.S.C. § 7502 (nonattainment plan provisions).
Moreover, it appears to the Court that the dangers associated with benzene emissions were not the sole or primary impetus behind the Administrator's decision to require onboard controls, thus section 112's statutory deadline does not necessarily apply. In its August 19, 1987 notice announcing the requirement of onboard controls, EPA stated the specific reasons for the proposal. The reasons include: (1) "improve[ment of] ambient ozone levels in all areas of the country including those that are currently, or are projected to be, in violation of the National Ambient Air Quality Standard for this pollutant." 52 Fed. Reg. 31,162; (2) "provi[sion of] important ozone-related benefits in areas that are now in compliance with the ambient standard." id., and (3) "protect[ion of] the general public from the risks of cancer due to exposure to benzene, a component of gasoline vapor, and to evaporated gasoline as a whole." Id. (emphasis added). See also, 52 Fed. Reg. 31,165 (1987) (emphasis added). ("The principal environmental concerns associated with refueling emissions focus on their contribution to ozone formation in the atmosphere and on their direct health effects.")
The Court finds that when considering the entire regulatory scheme and the purpose of the Act, it cannot agree with plaintiffs' reading of the Act with regard to the alleged relationship between sections 112(b)(1)(B) and 202(a)(6). Congress clearly did not intend to place the Administrator under any specific time constraints as to its decision regarding onboard controls. Unlike several other provisions of the Act, section 202(a)(6) does not contain a specific deadline for compliance. Congress intended that the Administrator exercise his discretion with regard to the issue of onboard controls. The fact that action taken pursuant to section 202(a)(6) will have some effect on the overall level of benzene emissions does not warrant a different conclusion. "In the absence of a readily ascertainable deadline . . . it will be almost impossible to conclude that Congress accords a particular agency action such high priority as to impose upon the agency a 'categorical mandat[e]' that deprives it of all discretion over the timing of its work." Sierra Club v. Thomas, 828 F.2d at 791. Accordingly, since section 202(a)(6) does not involve a nondiscretionary duty on the part of the Administrator to propose, this Court does not have jurisdiction over this portion of plaintiffs' complaint; therefore, the Court grants defendants' November 15, 1984 motion to dismiss as to this issue, and denies plaintiffs' motion for partial summary judgment.
Having determined that defendants have no nondiscretionary duty under section 112(b)(1)(B) of the Act to act on the onboard emissions control proposals within the time frame included in that section, the Court in no way means to suggest that defendants have no duty to act within a reasonable period of time as to that proposal. Defendants have a general duty of timeliness to comply with the mandates of the Act in general, and section 202(a)(6) in particular.
An appropriate order incorporating the conclusions of the Court is attached.
Upon consideration of plaintiffs Natural Resources Defense Council, Inc. and Environmental Defense Fund, Inc.'s motion for [partial] summary judgment ("Plaintiffs' Motion for Partial Summary Judgment"); defendants United States Environmental Protection Agency ("EPA") and the EPA Administrator's motions to dismiss filed respectively on November 15, 1984, and December 21, 1984; the various papers filed either in support of, opposition or reply to the plaintiffs' and defendants' motions; the entire record herein, and for the reasons stated in the accompanying opinion, it is by the Court this 14th day of September 1988,
ORDERED that plaintiffs' motion for partial summary judgment is granted in part and denied in part; it is further
ORDERED that defendants' motion to dismiss filed on November 15, 1984, is granted; it is further
ORDERED that, on or before March 13, 1989, defendants shall publish in the Federal Register final determinations pursuant to section 112 of the Clean Air Act, 42 U.S.C. § 7412, on whether or not to regulate emissions of benzene from chemical manufacturing process units, including ethylene plants, chlorobenzene plants, nitrobenzene plants, linear alkyl benzene plants, cyclohexane plants, waste disposal from chemical manufacturing, refinery waste disposal, industrial solvent usage, and other forms of benzene usage; bulk terminals, bulk plants, and service stations (including the filling of service station tanks by gasoline tank trucks but not including the refueling of motor vehicles at service stations), and shall promulgate such benzene emission standards as are appropriate within 180 days of any emission standards proposed by defendants; and it is further
ORDERED that these cases are dismissed.