dissenting.
This case involves the rights of common citizens to hold a government agency liable for its apparent indifference to their plight. It was in 1981 that the Environmental Protection Agency first learned that dangerously high levels of PCBs were found at Carter Industrials, not far from the residential homes of the Willie Mae Lockett and her neighbors. But, the EPA failed to respond to this initial report of an environmental peril in the midst of Detroit.
Afterward, the pollution at Carter Indus-trials continued, unabated, for five years. From the Carter scrapyard, trucks and cars tracked the PCB stained ground, carrying it down the streets; winds carried the toxins through the air, sewers under the surface of the ground. On the streets where children played, the sidewalks where residents walked, the yards where gardens were planted — all were drenched with toxins. By 1986, the PCB levels in the backyards of family homes near the scrapyard reached 1,800 parts per million, and one public alleyway topped 96,000 parts per million.
Consequently, the men, women, and children who lived near Carter Industrials were exposed to the toxic poisons, day in and day out, for years. Today, they face the specter of crippling illness and death. They have brought this suit against the EPA, seeking justice. This, they shall not *640receive; their case never to be heard by a jury of their peers; their day in court never to begin. The case ends here for summary judgment has been rendered for the EPA.
In my view, the adjudication of the summary judgment motion should have been only a stopping point in the progress of the case towards trial and judgment, not the point where the case was stopped. Hence, I dissent. My opposition to the decision to dismiss the case is not based merely on a felt sense of injustice, ethereal and without a legal basis. On the contrary, my position naturally follows from the law governing this case.
The legal question before this Court is whether this suit could be brought under the FTCA, 28 U.S.C. § 1346(b), which generally authorizes suits against the United States “for injury or loss of property or death caused by the negligent or wrongful act or omission of any employee of the Government ...” The EPA contends its conduct falls within an exception to the TSCA, and hence is barred.1 Specifically, the EPA asserts that protecting a populated neighborhood from the pollution at Carter Industrials was a “matter of choice” for the agency.2 The EPA argues that it made this choice on the basis of social, economic and policy judgments and is shielded from liability by the discretionary function exception of the Federal Tort Claims Act.3 The district court granted this motion, and then this court has upheld the decision. I disagree.
First, the EPA has not provided evidence that its conduct is completely shielded by the discretionary exception. The EPA has not brought forth any of the documents that are ordinarily produced in the course of public policy decisions to explain the agency’s failure to prosecute Carter Indus-trials in 1981.4 It has produced no notes of policy meetings, no reports, no memorandums, no affidavits, no depositions: not an iota of information on who made the decision or why. As a consequence, this court cannot determine whether the EPA’s inaction in 1981 stemmed from negligence or the kind of policy judgment shielded by the discretionary function exception to the Fed*641eral Torts Claim Act.5 Any conclusion that this court has made is mere conjecture,
Second, even assuming arguendo, that there was a decision by the EPA, it does not necessarily follow that protecting a populated neighborhood from the pollution at Carter Industrials was a “matter of choice.”6 Indeed, the relevant regulations do not permit such a conclusion for the EPA was required to act once it knew that significant dispersions of PCBs had been detected at Carter Industrials in 1981:
[The] EPA will seek stringent penalties in any situation in which significant dispersion of PCBs occurs due to a violation.
44 Fed.Reg. 31,538 (1979).
Therefore, this court should not assume that enforcing the law was a “matter of choice” when the relevant regulations lead to the opposite conclusion.7
Thus, the facts and the law lead to one inexorable conclusion: this court cannot grant summary judgment for the EPA on the basis of the discretionary function exception. First, the EPA has not shown that its initial inaction was based on a decision grounded in the kind of policy considerations that are shielded by the discretionary function exception. Second, the EPA has not proven that it was a “matter of choice” to enforce environmental laws mandated by Congress and commanded by the agency’s own regulations. Therefore, this court should have denied summary judgment, and allowed Willie Mae Lockett and her neighbors to have their day in court.
. The discretionary exception provides that no liability shall lie for
[a]ny claim ... based upon the exercise or performance of the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680
. The Supreme Court set forth these principles to guide the determination of whether the government’s actions were a "matter of choice.” Berkovitz v. United States, 486 U.S. 531 at 536, 108 S.Ct. 1954 at 1958 (1988).
In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice. See Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 967, 97 L.Ed. 1427 (1953) (stating that the exception protects “the discretion of the executive or the administrator to act according to one’s judgment of the best court”). Thus, the discretionary function exception will not apply when a federal, statute, regulation, or policy specifically prescribes a course of action for an employee to follow.
. The Supreme Court sets forth these guides for determining whether the judgment was the kind that the discretionary exception was intended to shield:
"[Ajssuming the challenged conduct involves an element of judgment, a court must determine whether the judgment is of the kind that the discretionary exception was designed to shield. The basis for the discretionary function exception was Congress’ desire to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic and political policy through the medium of tort ..."
Berkovitz v. United States, 486 U.S. 531, 536-537, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988).
. In fact, the curious absence of documentation of EPA’s conduct in 1981 stands starkly apart from EPA’s documentation of its other decisions regarding Carter Industrials in 1984 and 1986. In these instances, the EPA has produced evidence of where and how the decisions were made through reports, depositions, and affidavits. Nor do these later reports note the existence of a policy decision underlying the EPA’s failure to prosecute environmental violations at Carter Industrials in 1981. See EPA Potential Hazardous Waste Site Preliminary Assessment, July 7, 1984; Deposition of Ralph Dollhopf, EPA on-scene Coordinator; Affidavit of Daniel E. Patulski, EPA officer.
. This court’s determination of this issue is not supported by the record. For example, this court states that an EPA officer, Daniel Patulski "determined that an enforcement action was not warranted in 1981 or 1984,” a direct quotation from the lower court's decision in Lockett v. United States, 714 F.Supp. 848, 852 (E.D.Mich.1989). Nonetheless, Patulski did not become an EPA officer until 1985, and has no recollection of a 1981 EPA determination on Carter Industrials. Nor does any other EPA officer recall such a decision. See Affidavit of Daniel E. Patulski; Deposition of Ralph Dollhopf, EPA on-scene Coordinator.
. See generally Graves v. U.S., 872 F.2d 133 (6th Cir.1989) ("Discretionary decisions are not simply any decision that a government agency or employee makes.")
. At the time that the events in this case took place, Congress made it very clear that it never intended to grant to the EPA unbridled discretion in deciding whether or not to enforce its laws. In fact, in 1981, Congress was in the midst of conducting investigations into the EPA’s failure to prosecute violations of the environmental laws. Ultimately, these inquiries led to the resignations of EPA’s top-ranking officials. See generally Mintz, Symposium on Waste Management Law and Policy: Failure of the Current Waste Management Policy: Agencies, Congress and Regulatory Enforcement, A Review of EPA's Hazardous Waste Enforcement Effort of 1970-1987, 18 ENVTL.L.REV. 684 (1988).