concurring:
I concur in the judgment of the court and would affirm the district court's dismissal of the Sierra Club’s claim against the Administrator alleging failure to take nondiscretionary actions under the CWA.
Section 1319(a)(3) provides that “[w]hen-ever on the basis of any information available to him the Administrator finds” a violation of certain sections of the CWA, including § 1311 or a permit condition or limitation contained in a permit issued under § 1342, the Administrator “shall issue an order requiring such person to comply” with the statute or “shall bring a civil action” for an appropriate remedy.
The Sierra Club alleges that, pursuant to the requirements of 33 U.S.C. § 1318, the Nogales Treatment Plant submitted monthly discharge monitoring reports to the Administrator disclosing discharges of pollutants into the Santa Cruz River from the Treatment Plant consistently in excess of levels allowed by the permit issued to Nogales and the IBWC. The Sierra Club argues that these reports, the submission of which is not genuinely disputed, require the Administrator to find a violation of § 1342 and to proceed to enforce compliance with the CWA.
There was no doubt that the court has before it substantial evidence that would support a finding of CWA violations. However, the Sierra Club makes no allegation that the Administrator has actually made a finding of a permit violation or of any other violation of the CWA listed in § 1319(a)(3). The plain language of the statute appears to give discretion to the Administrator to make a finding of a violation. By the terms of the statute, a finding is to be made on the basis of information available to the Administrator; the regulatory search for and examination of relevant information is discretionary by its nature. I conclude that this court is not in a position to say when all relevant and appropriate information has been considered by the Administrator.
Moreover, the legislative history of the CWA confirms this literal interpretation of the text of the statute. The legislative history, in part, appears to regard the finding of violation as discretionary, even if action after such a finding is not. Even viewed most favorably to the Sierra Club, I cannot read the legislative history as imposing a nondiscretionary duty to make a finding of violation. Pertinent is the Senate Report outlining the purpose of the bill, which the Sierra Club relies upon in urging that we are faced with nondiscre-tionary duties of the Administrator. This report provides:
The purpose of the bill is to establish clear and enforceable requirements upon those activities which affect water quality. Monitoring requirements and information acquisition should reveal violations of control requirements with a minimum of factual complexity. Once the Administrator has, under the procedures established under the bill, determined a violation, the government should immediately proceed to abatement. Once this decision is made there should be no further discretionary decision making by government officials.
S. Rep. No. 92-414, at 82 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3748 (emphasis added). The emphasized language suggests by clear inference that the finding of violation is discretionary and that thereafter there is “no further discretionary decision making by government officials,” meaning then the Administrator must act to enforce compliance.
*907Similarly, Senator Edmund Muskie, a lead sponsor of the CWA and one favoring vigorous enforcement, in my view stopped short of suggesting that a finding of violation is nondiscretionary. The Sierra Club notes that Senator Muskie, in discussing the Conference Committee Report, inserted the following statement in the Congressional Record:
It is expected, of course, that upon receipt of information giving the Administrator reason to believe that a violation has occurred, he has an affirmative duty to take the steps necessary to determine whether a violation has occurred, including such investigations as may be necessary, and to make his finding as expeditiously as practicable.
118 Cong. Rec. 33,697 (1972), reprinted in 1 A Legislative History Of The Water Pollution Control Act Amendments OF 1972, at 174 (1973) (emphasis added). While this suggests that the Administrator has an “affirmative duty” to proceed deliberately with investigation and findings, a principle with which I agree, it does not suggest that the Administrator’s action is nondiscretionary. To the contrary, it suggests discretion in the length and scope of investigations, and in the decision when to make a finding of violation.
For these reasons, I conclude that the Administrator’s duty to make a finding of a violation of the CWA is discretionary. The Eighth Circuit has reached the same conclusion on the Administrator’s discretionary responsibilities to investigate and make findings of violations. See Dubois v. Thomas, 820 F.2d 943, 947 (8th Cir.1987). No finding of violation was alleged in the complaint here, and so far as I can determine from the record none has yet been made.1 On this ground, the district court properly dismissed the Sierra Club’s claim.
In view of the broader issues reached by the majority, it is appropriate for me further to explicate my views. If the Administrator had made a finding of a violation, we then would be faced squarely with the question whether the facially mandatory “shall” directives of § 1319(a)(3) create nondiscretionary enforcement duties of the Administrator to issue an order requiring compliance or to bring a civil action. But under the plain language of the statute, one need not grapple with whether the “shall” language creates a nondiscretion-ary duty of the Administrator unless and until the Administrator finds a violation of the CWA. One need not grapple with whether Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and its predecessor cases asserting similar doctrine, render a duty of enforcement discretionary to the EPA as the responsible agency. One need not grapple with whether a normal presumption of agency enforcement discretion under Heckler is here rebutted by congressional intent to avoid and clean up pollution and to authorize citizen suits as a means to that end.
Because these issues are not of necessity presented by this case, I would affirm without addressing them, even though the inaction of the Administrator in the face of sustained reports disclosing continuing pollution is troubling. Nonetheless, in my view, there can be no doubt that Congress has given the Administrator discretion to find a violation or not to do so. No prior finding of violation was alleged here by the Sierra Club in its complaint, and the *908record does not disclose such a finding. Under these circumstances, a citizen suit cannot properly be asserted against the Administrator at this stage because a non-discretionary duty is not presented; the discretionary finding of violation is a necessary preliminary condition to an agency enforcement action.
. I do not have occasion in this case to consider whether actions of the Administrator short of an express finding might ever be tantamount to a finding for purposes of assessing the Administrator’s enforcement obligations. Nor do I have occasion to assess whether any form of legal action other than a citizen suit under the CWA might be used to seek a court order requiring enforcement action from the Administrator.