Proffitt v. Eichler

No. 83-5230 (E.D. Pa. February 28, 1984)

The court holds that a citizen suit under the Resource Conservation and Recovery Act (RCRA) to compel the Environmental Protection Agency Regional Administrator to exercise his imminent hazard enforcement authority with respect to two dump sites in Pennsylvania is barred because RCRA § 7003(a) enforcement is a discretionary action. After noting that RCRA citizen suits are limited to non-discretionary actions, the court holds that enforcement is explicitly made discretionary under RCRA § 7003(a).

Counsel for Plaintiff (pro se)
Raymond Proffitt
71 Fieldstone Rd., Levittown PA 19056
(215) 949-3936

Counsel for Defendant
James G. Sheeham, Ass't U.S. Attorney
3310 U.S. Cthse., 601 Market St., Philadelphia PA 19106
(215) 597-2556

[14 ELR 20857]

Green, J.:

Memorandum-Order

AND NOW, this 27th day of February, 1984 upon consideration of defendant's motion to dismiss, plaintiff's response thereto, and a liberal reading of plaintiff's pro se complaint, it appears that there is no set of facts which, if proven, would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In his complaint plaintiff seeks to compel the Regional Administrator of the Environmental Protection Agency to exercise his enforcement authority under the Resources Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. with respect to two dump sites in Bristol, Pennsylvania. Although the statute provides for citizens' suits against the Administrator such suits are limited to non-discretionary acts or duties of the Administrator. 42 U.S.C. § 6972(a)(2). It is well-settled that enforcement functions are generally considered to be within the discretion of executive officials. In this statute, Congress explicitly provided for discretionary enforcement. In 42 U.S.C. § 6973(a) the statute provides that "the Administrator may bring suit" or "may . . . issu[e] such orders as necessary." (emphasis added). The use of the permissive term "may" rather than the mandatory term "shall" clearly indicates Congress' intent to make the Administrator's enforcement powers discretionary.Accordingly, plaintiff has failed to state a claim upon which relief can be granted and therefore, IT IS ORDERED that defendant's motion is GRANTED and this action against the Administrator is Dismissed.