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 argues that the court cannot provide the requested relief if it has jurisdiction over the action. Each of these contentions will be discussed below as they relate to plaintiff's claims.
A. Summary Judgment Standard
Fed.R.Civ.P. 56(c) instructs a court to enter summary judgment when the record reveals that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The function of a motion for summary judgment is to avoid a useless trial in cases where it is unnecessary and would only cause delay and expense. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Summary judgment is inappropriate, however, where the evidence before the court reveals a genuine factual disagreement requiring submission to a jury. An issue is "genuine" only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. However, if the evidence is merely "colorable" or is "not significantly probative," summary judgment may be granted. Id. at 249-250.
In a summary judgment action, the moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the non-movant (i.e., plaintiff herein) will bear the burden of persuasion at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Id. at 324; Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987).
Following such a showing in a case where the non-moving party is the plaintiff and therefore bears the burden of proof, it must by affidavits or by the depositions and admissions on file "make a showing sufficient to establish the existence of [every] element essential to that party's case." Id. 477 U.S. at 322; Anderson, supra, 477 U.S. 242; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988); Equimark, supra, 812 F.2d at 144; Fed.R.Civ.P. 56(e). In making its ruling on a summary judgment motion, the court must view all inferences in a light most favorable to the non-moving party, Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), must resolve all doubts against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985), and must take as true all allegations of the non-moving party that conflict with those of the movant, Anderson, supra, 477 U.S. at 255.
In considering a motion for summary judgment, the court must determine whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987) (en banc), cert. denied, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1988); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986). "As to materiality, the substantive law will identify which facts are material." Anderson, supra, 477 U.S. at 248 (1986). An issue is "genuine only if the evidence is such that a reasonable jury could find for the non-moving party." Id.; Cook v. Providence Hosp., 820 F.2d 176, 179 (6th Cir. 1987).
A party resisting a Fed.R.Civ.P. 56 motion cannot expect to rely upon base assertions, conclusory allegations or suspicions. Gans, supra, 762 F.2d at 341. Once the moving party has presented evidence which would require a directed verdict at trial, the burden shifts to the opposing party to respond with specific facts showing that a genuine issue for trial exists. If the non-moving party does not so respond, summary judgment, if appropriate, shall be entered against them. Fed.R.Civ.P. 56(e); Gans supra, 762 F.2d at 341.
With the above factors in mind, the court will now proceed to address the merits of the present motion.
B. The Citizen Suit Provisions Of The CWA And The RCRA Do Not Provide A Jurisdictional Basis For The Present Action
The defendant's primary contention in support of the present motion is that neither the citizen suit provision of the CWA, nor that of the RCRA, provides a jurisdictional basis for the present action. In general, these provisions authorize the private enforcement of the requirements of the respective statutes by affected persons against alleged polluters. Specifically, the citizen suit provision of the CWA (33 U.S.C. § 1365(a)) provides the following:
Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf --