## Facts

- Berton L. and Rose Marie Dubois owned Missouri property through which a creek flowed.
- The municipality of Wheatland’s sewage treatment system allegedly caused raw sewage to overflow into the creek, contaminating the Duboises’ property.
- The Missouri Department of Natural Resources brought a state enforcement action against Wheatland, which ended in a settlement requiring corrective steps; the problem allegedly persisted.
- The Duboises gave notice of intent to sue and then filed a federal citizen suit naming the EPA Administrator, alleging failure to investigate and enforce against Wheatland.
- The suit relied on Federal Water Pollution Control Act (Clean Water Act) § 505(a)(2), which authorizes suits against the Administrator for failure to perform nondiscretionary duties, and invoked § 309(a)(3), which provides that after finding certain violations the Administrator “shall” issue a compliance order or bring a civil action.

## Issues

1. Whether the EPA Administrator’s actions under Clean Water Act § 309(a)(3)—investigating alleged violations and choosing to issue compliance orders or file enforcement actions—are “nondiscretionary” duties enforceable through a citizen suit under § 505(a)(2).
2. Whether the “shall issue an order or shall bring a civil action” language in § 309(a)(3) creates a judicially enforceable obligation to act in response to alleged violations.

## Decision

- The Eighth Circuit reversed the district court.
- The court held that § 309(a)(3) enforcement-related decisions are discretionary, not nondiscretionary.
- Because § 505(a)(2) authorizes citizen suits only for nondiscretionary duties, the Duboises could not maintain a citizen suit to compel the Administrator to investigate or enforce against Wheatland.

## Legal Principles

- Clean Water Act § 505(a)(2) permits citizen suits against the EPA Administrator only for failure to perform clear, ministerial duties that are not discretionary.
- Section 309(a)(3), read as a whole and in statutory context, does not impose a mandatory, judicially enforceable duty to investigate and prosecute every alleged violation; it leaves substantial discretion as to whether and how to proceed.
- The statutory scheme distinguishes between (a) citizen suits against alleged violators under § 505(a)(1) and (b) limited suits against the Administrator under § 505(a)(2), indicating Congress did not authorize broad judicial control over EPA enforcement choices via § 505(a)(2).
- Enforcement choices implicate agency priority-setting and resource allocation and are generally treated as discretionary unless Congress clearly removes discretion.

## Conclusion

The Eighth Circuit held that Clean Water Act § 309(a)(3) leaves the EPA Administrator discretion over investigating and enforcing against alleged violators, so citizens may not use § 505(a)(2) to compel EPA enforcement action.


Dubois v. Thomas, 820 F.2d 943 (8th Cir. 1987)