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PROFFITT v. DAVIS SECY. OF PENNSYLVANIA'S DEPT. OF

February 17, 1989

RAYMOND PROFFITT
v.
ARTHUR DAVIS, Secretary of Pennsylvania's Department of Environmental Resources



The opinion of the court was delivered by: BECHTLE

 LOUIS C. BECHTLE, UNITED STATES DISTRICT JUDGE.

 Presently before the court is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56(b). For the reasons stated herein, after full consideration of the supporting legal briefs and affidavits, defendant's motion for summary judgment will be granted.

 I. BACKGROUND

 Plaintiff John Proffitt has been responsible for bringing a number of private citizen suit enforcement actions under various federal environmental statutes. *fn1" In the present action, plaintiff has brought suit, pro se, against the defendant Arthur Davis in his official capacity as Secretary of Pennsylvania's Department of Environmental Resources ("DER"), claiming that he has failed to enforce numerous consent orders with dischargers of hazardous pollutants in Lower Bucks County, Pennsylvania ("Lower Bucks County"), in violation of both the Clean Water Act (33 U.S.C. § 1251, et seq.) ("CWA") and the Resources Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901, et seq.) ("RCRA"). In addition, plaintiff alleges that defendant has authorized new or additional sewer connections after dischargers have exceeded their permit limits. The above claims are based exclusively upon the citizen suit provisions of the above cited Acts (33 U.S.C. § 1365; 42 U.S.C. § 6972).

 Plaintiff's complaint can be summarized as follows. Defendant is sworn to enforce the environmental laws of Pennsylvania. He is also responsible for the regulation and enforcement of federal laws regarding water quality, in particular the CWA and the RCRA. Plaintiff contends that defendant is either "unable" or "unwilling" to provide equal or fair enforcement of these laws. Specifically, plaintiff claims that the DER knows that numerous municipalities in Lower Bucks County are violating their discharge permits, known as National Pollutant Discharge Elimination system permits. It is alleged that either the federal government or the DER issues these permits to public and private entities that operate sewage treatment plants ("Dischargers"). *fn2" These permits, according to plaintiff, allow such entities to discharge a limited amount of treated sewer effluent into the waterways. Since it is the DER's responsibility to monitor and enforce the permit limits, Dischargers must file Discharge Monitoring Reports ("DMR") with the DER. At his deposition, plaintiff testified that he personally examines DMRs at DER's Norristown, Pennsylvania office and, if, after reviewing these documents, he determines that Dischargers have exceeded their permit limits, a citizen suit is instituted against the Discharger seeking a ban on additional hookups. *fn3"

 Prior to instituting such an action, plaintiff is required by law to give the Dischargers and the DER sixty days notice of his intent to bring such a suit. The plaintiff presently claims that during this sixty day notice period the targeted Dischargers contact the DER, admit they have exceeded their permit limits, and enter into consent orders with the DER and agree not to violate it again. In addition, as part of the consent order, the DER usually imposes a fine on the Discharger and bans or prohibits additional "hookups" *fn4" until there is compliance with the limits imposed by the permits.

 While these consent orders are in effect, plaintiff contends that the Dischargers often apply to the DER for additional hookups which are usually authorized by the department to conform to the desires of additional users, builders or homeowners when they want to hook into a Discharger's sewage system. This action, plaintiff argues, violates the consent order and amounts to an increased violation of the original discharge permit.

 As a result of the DER's failure to properly regulate Dischargers in Lower Bucks County by enforcing consent orders, the plaintiff now claims he is involved in a number of lawsuits involving Dischargers within the Bucks County area. Plaintiff testified at his deposition that he is currently involved in consent orders, court actions or sixty-day notices with the following Dischargers: Bristol Township, Langhorne Borough, Penndel, Newtown, Yardley, Lower Makefield, Morrisville, Falls, Lower Bucks and Wood School. Plaintiff's dep. pp.53-54. Plaintiff claims that the above actions are all based on information present in DER's files. See plaintiff's dep. p.54.

 Plaintiff has cited Jack's Marina as an example of the DER's failure to properly enforce consent orders. Plaintiff's dep. pp.49-52. In 1982, plaintiff alleged that the marina was illegally dumping demolition rubbish in federally protected wetlands. Plaintiff's dep. pp.49-50. Sometime in 1982, plaintiff claims that the DER and Jack's Marina entered into a consent order wherein the DER directed the marina to restore the wetlands and pay a $ 460,000 fine. In the present action, plaintiff alleges that the destruction of the wetlands continues, and no part of the fine has ever been paid by the marina. Plaintiff's dep. pp.50, 52.

 In addition to the above environmental law claims, plaintiff also contends that the DER has violated the Freedom of Information Act (5 U.S.C. § 552) and/or the Federal Sunshine Act (5 U.S.C. § 552b) by refusing to make files and reports available to him. Specifically, plaintiff alleges that the DER has been unwilling to share pertinent information on the monitoring of wells, the disposal of toxic and hazardous waste in landfills, the status of certain permits, and the issuance of consent orders.

 Plaintiff has cited two instances to show the DER's unwillingness to supply information to him.

 First, plaintiff testified that for several years he complained to the DER about one Harry Fawkes, d/b/a Penn Sanitation, who he claimed was operating an illegal and unlicensed landfill in Bristol, Pennsylvania, for more than two years. When the DER sent an investigator to this site, plaintiff and another gentleman accompanied him. Plaintiff claims that he observed the investigator unearth five metal containers and take samples from each. The investigator filled out a report and sent samples to the laboratory for analysis. Plaintiff contends that for the past six months he has sought, without success, to obtain a copy of this report to see what action, if any, was or will be taken against the landfill. Plaintiff's dep. p.48.

 Second, plaintiff claims he has been unable to obtain any information about Jack's Marina from the DER.

 As a result of the aforementioned claims, plaintiff seeks the following relief: (1) where a Discharger receives a sixty-day notice, the DER should be prohibited from entering into a consent order with that Discharger; (2) where a Discharger's plant is "overloaded," the DER should be prohibited from authorizing additional hookups; and (3) where a Discharger exceeds its permit limits, the DER should fine the Discharger an amount appropriate to cover the cost of upgrading the sewage treatment so that it can comply with its permit requirements even with the additional hookups. Plaintiff's dep. pp.55-62a.

 In response to the above allegations, the defendant contends that neither the citizen suit provision of the CWA, nor that of the RCRA, provide a jurisdictional basis for plaintiff's present action. The defendant also argues that, assuming the court finds it has jurisdiction over the present matter, the Eleventh Amendment bars the present action. Also, defendant requests that the court abstain from deciding plaintiff's claim regarding Jack's Marina because the state is conducting an ongoing investigation of the matter. With regard to plaintiff's Freedom of Information Act claims, the defendant contends that such laws do not apply to it because it is not an "agency" for purposes of pertinent federal statutes. In addition, the defendant ...


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