HAY, United States Chief Magistrate Judge.
Plaintiffs commenced this citizen suit against defendant RRI Energy Northeast Management Company ("RRI"),
It is undisputed that RRI discharges industrial wastewater into the Conemaugh River and, consequently, that it is subject to the National Pollutant Discharge Elimination System ("NPDES"), a federal program established in section 402 of the CWA, 33 U.S.C. § 1342, to regulate the discharge of such pollutants. It is also undisputed that the Pennsylvania Department of Environmental Protection ("PADEP"), administers the NPDES in Pennsylvania, and that on December 27, 2001, the PADEP approved RRI's renewal application for a NPDES permit authorizing RRI's CGS to release wastewater into the Conemaugh River subject to certain effluent standards and limitations and monitoring requirements. See Def. Exh. 9: Permit No. PA 005011 ("2001 Permit"). The 2001 Permit was to become effective on February 1, 2002, and was to expire on December 27, 2006. Id.
On January 31, 2002, RRI filed an appeal with the Pennsylvania Environmental Hearing Board ("PAEHB"), challenging some of the 2001 Permit requirements. On December 28, 2004, RRI and the PADEP entered into a Consent Order and Agreement ("COA"), settling the appeal. See Def. Exh. 10: Notice of Appeal; Def. Exh. 12: COA. Amongst other things, the COA modified the compliance schedule set forth in the 2001 Permit giving RRI until February 1, 2011 to comply with the final water quality based effluent limitations listed in the COA. In addition, under the terms of the COA, the PADEP was required to publish an amendment to the 2001 Permit in the Pennsylvania Bulletin and, after time for review and comment, issue an amended permit incorporating the terms and conditions set forth in the COA. The proposed amendment was, in fact, published in the Pennsylvania Bulletin on December 18, 2004, and on January 31, 2005, an amended permit was issued.
Nevertheless, on February 6, 2007, plaintiffs submitted a notice of intent to sue to RRI, the PADEP and the EPA in
On March 13, 2009, RRI filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) arguing that the Court is without jurisdiction as plaintiffs' citizen suit is barred under section 309(g)(6) of the CWA and that plaintiffs lack standing [ECF No. 34]. In a Memorandum Opinion issued on December 18, 2009 [ECF No. 51], the Court rejected RRI's argument that plaintiffs' suit was barred under the CWA but nevertheless granted RRI's motion finding that plaintiffs are without standing to pursue this action. Plaintiffs subsequently filed a motion for reconsideration of that finding arguing that the Court misapplied the standard applicable to 12(b)(1) motions and that, had the proper standard been utilized, the Court would have concluded that plaintiffs had standing and that the Court had jurisdiction over the matter. The Court was persuaded by plaintiffs' argument and vacated its December 22, 2010 Memorandum Opinion [ECF No. 51]. The instant opinion stands in its place and, thus, all of the issues raised by RRI in its motion to dismiss have been revisited.
"Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter, or if the plaintiff lacks standing to bring his claim." Samsung Electronics Co. v. ON Semiconductor Corp., 541 F.Supp.2d 645, 648 (D.Del.2008). A 12(b)(1) motion may present either a facial or a factual challenge to the court's jurisdiction. Petruska v. Gannon University, 462 F.3d 294, 302 n. 3 (3d Cir.2006). Because a facial challenge is one based purely on the allegations in the complaint, the court must accept those allegations as true and may consider only the complaint and any documents upon which it is based. Id. Where, however, subject matter jurisdiction is challenged in fact, i.e., where the challenge is based on the sufficiency of jurisdictional fact, the court is not required to attach any presumptive truthfulness to the allegations in the complaint and the plaintiff bears the burden of establishing that subject matter jurisdiction exists. Id. See Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.2007).
The Court of Appeals for the Third Circuit has further explained that under the latter circumstances,
Gould Electronics Inc. v. United States, 220 F.3d 169, 177 (3d Cir.2000) (emphasis added) (internal citations omitted). Thus, "the allegations in the complaint are not controlling . . . and only uncontroverted factual allegations are accepted as true for purposes of the motion. . . . All other facts underlying the controverted jurisdictional allegations are in dispute and are subject to fact finding by the district court." Roush v. Horner, 2008 WL 189556 at *5 (W.D.Pa. Jan. 18, 2008), citing Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir.1993). See First Quality Baby Products, LLC. v. Kimberly-Clark Worldwide, Inc., 2009 WL 1675088 at *2 (M.D.Pa. June 15, 2009).
Here, resolution of RRI's motion turns on the factual determination of whether the COA entered into between the parties constitutes the type of action that precludes a citizen suit under the CWA and whether plaintiffs have suffered an injury that is fairly traceable to RRI's conduct. RRI's motion, therefore, presents a factual challenge to the Court's jurisdiction. As such, only the factual allegations that are contested by defendant and supported by contrary evidence are at issue and the uncontroverted factual allegations in the complaint are accepted as true.
Under section 505(a)(1) of the CWA, citizen suits are authorized against defendants alleged to be in violation of the CWA, "except as provided in . . . section 1319(g)(6) of this title."
33 U.S.C. § 1319(g)(6)(A). Thus, a citizen suit under section 1365 is properly barred if, as here, civil penalties are sought and one of these three exceptions apply.
Plaintiffs, however, argue that section 1319(g)(6)(A) is wholly inapplicable and that the Court need not assess whether the state has commenced or is diligently prosecuting an action comparable to section 1319(g)(6). Plaintiffs contend that the only type of action that has preclusive effect under section 1319(g)(6) is an administrative penalty action and that, because the COA is merely an administrative compliance order which imposes no penalties, section 1319(g)(6) is not triggered. Looking at the CWA's enforcement scheme as a whole, the Court agrees.
First, by its plain language, section 1319(g)(6)(A)(ii), precludes citizen suits when the state "has commenced and is diligently prosecuting an action under a State law comparable to this subsection." "This subsection" is that which provides for the assessment of administrative penalties. It therefore follows that the action being pursued by the state must be one in which administrative penalties are sought in order for section 1319(g)(6)(A)(ii) to apply.
Indeed, as noted by the United States District Court for the District of Colorado, prior to the 1987 amendments to the CWA, the EPA had two enforcement options: it could issue a compliance order under section 1319(a), or bring a civil or criminal action in court under section 1319(b)-(d). Old Timer, Inc. v. Blackhawk-Central City Sanitation District, 51 F.Supp.2d 1109, 1114 (D.Colo.1999) ("Old Timer, Inc."). Citizen suits were precluded only when the EPA or a state had already commenced and was diligently prosecuting a civil or criminal action "in a court;" they were not precluded where the EPA sought to enforce the CWA by issuing a compliance order. Id. See 33 U.S.C. § 1365(b).
The amendments to the CWA, enacted in 1987, added subsection 1319(g) which, as previously discussed, gives the EPA the authority to assess administrative penalties without bringing a court action. As noted by the court in Old Timer, Inc., there is again no provision that precludes a citizen suit when the EPA issues a compliance order under section 1319(a). Old Timer, Inc., 51 F.Supp.2d at 1114. Moreover, the court found that "by specifying that state action, to be preclusive, must have been brought under a law comparable to subsection (g), without mentioning subsection (a) compliance actions, Congress expressed its intent to preclude citizen actions only when the state is actively seeking an administrative penalty." Id. Thus, the court concluded that citizen suits are only precluded under the amendments "when the EPA or a state has commenced an action under the administrative penalty subsection or a comparable state statute, or when administrative penalties have been assessed and paid." Id. See 33 U.S.C. § 1319(g)(6)(A). Because the state had not yet commenced an action for administrative penalties, the court found that the plaintiff's citizen suit was not precluded under section 1319(g)(6)(A)(ii).
Similarly, in Washington Public Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir.1993), the court declined to find that the citizen suit was precluded under section 1319(g)(6) noting that section 1319(g) only deals with administrative
Here, RRI does not contend, nor can it, that the COA that it entered into with the PADEP to resolve its appeal regarding the terms of the 2001 Permit constitutes an action commenced by the state to obtain administrative penalties for RRI's violations of the 2001 Permit. Indeed, RRI describes the COA merely as establishing "compliance schedules and milestones, in order allow for the scientifically valid and appropriate development of NPDES permit effluent limits" and allowing "time for the development of treatment technologies." Def. Brief, pp. 10-11. Indeed, no penalties were assessed. The penalties sought by plaintiffs, therefore, are not— indeed, cannot be—duplicative of any penalties imposed on RRI.
Further, as plaintiffs have argued, the legislative history, which RRI has not addressed at all, only bolsters the Court's conclusion. As set forth by the court in Old Timer, Inc.:
Id. at 1114-15. Based on these comments it appears clear that the import of section 1319(g)(6)(A) is to prevent the duplicate civil penalties from being imposed. See Pls.' Exh. 17: S.Rep. No. 99-50, p. 28 ("This amendment therefore strikes the balance between two competing concerns: The need to avoid placing obstacles in the path of such citizen suits and the desire to avoid subjecting violators of the law to dual enforcement actions or penalties for the same violation").
Indeed, the Court in Old Timer, Inc., went on to note that:
Id. at 1114-15. See United States v. BP Oil, Inc., 1989 WL 83623, at *3 (E.D.Pa. July 27, 1989), quoting 133 Cong.Rec. 5737 (daily ed. Jan. 14, 1987) (statement of Sen. Chaffee) ("`[Subsection 1319(g)] . . . merely indicates that a Federal judicial civil penalty action or a citizen suit is not to be commenced if an administrative penalty proceeding is already underway") (emphasis added). See also Pls.' Exh. 19: H.R. Rep. No. 99-189, p. 32 ("The citizen suits provision in section 505(b)(1) . . . is amended to provide that no action can be commenced be a citizen if the Administrator or state has commenced and is diligently pursuing the assessment of a civil penalty"); Pls.' Exh. 20: EPA, Guidance on State Action Preempting Civil Penalty Actions Under the Federal Clean Water Act, pp. 2, 6 (Aug. 28, 1987) (Quoting Senator Chaffee's remarks that the 1987 amendment indicates only that a citizen suit is not to be commenced if an administrative penalty proceeding is already underway and summarizing that a federal judicial penalty action will only be preempted where the state has collected or is diligently pursuing an appropriate and adequate administrative penalty).
The Court in Old Timer, Inc. therefore concluded, understandably so, that Congress did not intend for section 1319(g)(6)(A)(ii) to preclude citizen suits when an administrative penalty proceeding has not yet been commenced as of the suit's filing. Id. at 1115. Because the state Water Quality Control Division in that case had only issued an administrative compliance order to the defendant and had not sought civil penalties, the court found that section 1319(g)(6)(A)(ii) did not apply. Id.
RRI's arguments to the contrary are not persuasive. Although RRI argues that "Courts have uniformly held that filing of an administrative consent order qualifies as the sort of administrative action that bars a citizen suit," see Def. Brief, p. 25 (emphasis added), it cites only one case to support that position. Moreover, in that case, Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376 (8th Cir.1994) ("Arkansas Wildlife Federation"), the Consent Administrative Order at issue imposed administrative penalties. Id. at 378. Because administrative penalties had already been assessed, the citizen suit would
In addition, the agreement in Arkansas Wildlife Federation was entered into only after the state informed the defendant that it was subject to enforcement action under state law having unsuccessfully issued non-compliance notices to the defendant for over two years. Id. at 377-78. The state, therefore, had taken steps toward assessing civil penalties. Here, in contrast, the COA was not entered into because the PADEP was exercising, or even threatening to exercise, its enforcement powers under state law. Rather, the COA was entered into in order to resolve the administrative appeal filed by RRI. See Def. Exh. 12: The COA.
RRI also makes much of the fact that the language in subsection (ii), differs from that in (i) and (iii) in that it requires only that the state be pursuing an action under state law that is "comparable to this subsection," and does not say that the state must be prosecuting an action for penalties under State law or "an action under State law comparable to an action under this subsection," as subsections (i) and (iii) do. RRI contends that because the other two subsections explicitly tie the assessment or payment of administrative penalties to section 1319(g)(6)'s preclusive bar, the absence of such explicit language in (ii) suggests that Congress did not intend (ii)'s bar to be so restrictive.
RRI's argument, however, overlooks the context in which the entire limitation provision appears as well as the legislative history. As previously discussed, subsection (g) is the statutory provision that provides for the assessment and imposition of "Administrative penalties." As such, any reference to an action under a state law that is "comparable to this subsection" necessarily means an action in which administrative penalties are being sought. See Oregon State Public Interest Research Group, Inc. v. Pacific Coast Seafoods Co., 341 F.Supp.2d at 1175 ("Section 1319(g)(6) provides that there must be prior commencement of administrative penalty actions under comparable state law before CWA penalty actions are precluded") (emphasis added).
Moreover, looking at subsection (g)(6)(A) as a whole it is clear that it is intended to limit actions where administrative penalties are already being sought, whether under federal or state law, or where they have already been imposed under federal or state law. Subsection (i) covers actions being pursued by the EPA
Indeed, subsection (iii), which RRI acknowledges is explicitly tied to the payment of administrative penalties, incorporates the language from both (i) and (ii), stating that citizen suits are precluded where "the violator has paid a penalty assessed under this subsection or such comparable State law" depending on which government entity has already imposed civil penalties. 33 U.S.C.
§ 1319(g)(6)(A)(iii). Having tied "this subsection," under which administrative penalties are sought and imposed, to a "comparable state law" it is clear that Congress intended that the comparable state law must be one in which administrative penalties are being sought.
Nor does North & South Rivers Watershed Association v. Town of Scituate, 949 F.2d 552 (1st Cir.1991) ("Scituate"), upon which RRI relies, or the cases which have followed its reasoning, compel a different result. Scituate's conclusion that civil penalties need not have been assessed in order for section 1319(g)(6)(A)(ii) to preclude a citizen suit was made without any discussion at all of section 309(g) generally or the context in which it appears in the statute. Moreover, the court expressly declined to consider the legislative history which, as previously discussed, quite obviously indicates that it was Congress' intent to prevent the duplication of civil penalties and to preclude a citizen suit seeking penalties if the state is already doing so. Id. at 555 n. 6. It is also clear that the holding in Scituate has since been called into question by other courts and repudiated by the EPA. See Citizens for a Better Environment-California v. Union Oil Co., 83 F.3d at 1118 (Rejecting the holding in Scituate finding that the "comparable state law" language found in both subsections (ii) and (iii), means that penalty must have been assessed under a state law that is comparable to section 1319(g)); Coalition for a Liveable West Side, Inc. v. New York City Department of Environmental Protection, 830 F.Supp. at 197 ("I find no basis for the First Circuit's redrafting of the statute. . . . As written, § 1319(g)(6) ensures that an entity that has violated the CWA will not be subjected to duplicative civil penalties for the same violations"). Indeed, in March of 1993, the EPA issued a supplement to the guidance document it issued in 1987 shortly after the 1987 Amendments were added, to address Scituate,—an opinion it clearly found to be a wrongly decided. Pls.' Exh. 21: EPA Supplemental Guidance on Section 309(g)(6)(A) of the Clean Water Act (Mar. 5, 1993). The EPA's remarks began by unequivocally stating that "[u]nder section 309(g)(6)(A)(ii), EPA may not initiate a civil penalty action under sections 309(d) or 311 of the Clean Water Act if a state has commenced and is diligently prosecuting an administrative penalty action of its own for the same violations. . . ." Id. (emphasis added). Under these circumstances, the import of Scituate is suspect at best and does not, in this Court's view, overcome the plain language of the statute,
RRI also argues that plaintiffs lack standing to bring this lawsuit. The law is not in dispute. Article III of the Constitution limits the jurisdiction of federal courts to "cases and controversies." Interfaith Community Organization v. Honeywell International, Inc., 399 F.3d 248, 254 (3d Cir.2005). "One element of the case-or-controversy requirement is that plaintiffs must have standing to sue." Id., citing McConnell v. Federal Election Commission, 540 U.S. 93, 225, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). Where an organization has brought suit on behalf of its members, standing will be found where: (1) its members would otherwise have standing to sue in their own right; (2) the interests at stake are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
In order to satisfy the first prong—that the individual members of the organization would have standing—three elements must be met:
Lujan v. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal citations omitted). See Friends of the Earth Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. at 180-81, 120 S.Ct. 693; Interfaith Community Organization v. Honeywell International, Inc., 399 F.3d at 254-55. Moreover, it is the plaintiff's burden to establish these elements. Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130.
The initial question therefore is whether the individual members have suffered an "injury in fact." Although generalized grievances shared by the public at large are insufficient to confer standing on individual plaintiffs, Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 120 (3d Cir.1997), citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), where an environmental plaintiff has demonstrated that his or her use of the affected area has been curtailed or that the aesthetic and recreational value of the area has been or will be lessened, an injury in fact will be found. Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. at 181-85, 120 S.Ct. 693.
Here, David M. Neatrour, who has lived along Tubmill Creek (a major tributary of the Conemaugh River) since 1972, testified at his deposition that he has been a member of the Sierra Club since 1990 and PennEnvironment since January of 2009. Def. Exh. 34: Pls.' Int. Resp., No. 8; Def. Exh. 4: Neatrour Dep., p. 15. He also testified that he has occasionally been canoeing or kayaking in the Conemaugh River; that he walks his dog along the river in the morning and is generally "uneasy" about the water; that at various times he has observed that the water is discolored, turbid or greenish, and "unhealthy looking;" that there are activities he hesitates doing and things he won't do in the river because he's concerned about the toxicity and potential threat to his health; that it would be out of the question for him to wade in the water; that he would be inclined to wade in the river or go canoeing or kayaking if he wasn't fearful of jeopardizing his health; that he avoids using the river; that his bird watching is curtailed because he doesn't like to spend too much time along the river; and that he collects herbs but stays away from collecting any along the Conemaugh River. Id. at pp. 22-25, 35, 38, 40, 42, 44, 45, 46, 52, 53-4. Mr. Neatrour also allowed that, although he was not directly affected economically by the condition of the Conemaugh River since he was not an outfitter or someone who benefitted financially from the river, his home and land values are effected by the vibrancy of the communities along the river. Id. at 74.
Plaintiffs have also pointed to the deposition testimony of Michael Burk, who lives in Ebensburg, Pennsylvania and has been a member of the Sierra Club since January of this year and a member of PennEnvironment since November of 2006. Def. Exh. 5: Burke Dep., p. 4; Def. Exh. 8: Masur Dep., pp. 17, 40. Mr. Burk testified that he sees the effects of pollution by the stains on the rocks in the river, by the turbidity and brackishness of the water and by the metallic smell and taste downstream from the CGS; that he notices a difference in the distribution of river otters between the upstream and downstream reaches of the Conemaugh; that he is concerned about possible health related issues; and that the river's capacity as a recreational source and his enjoyment of the river has been diminished. Def. Exh. 5: Burke Dep., pp. 20, 24, 25, 32, 35-36, 37-39. Although Mr. Burke responded "No," when asked whether his overall frequency of paddling on the river had changed, he also testified that he doesn't paddle as much as he used to knowing about the quality of the water. Id. at 22-23, 35-36.
Finally, Kurt Limbach, who owns a home and land overlooking the Conemaugh River downstream from the CGS and has been a member of the Sierra Club since 1986 and PennEnvironment since 2002, testified that he uses the Conemaugh River principally for kayaking but has done some hiking along its banks; that he would like to fish but is afraid to take the fish from the river; that there are stretches of the river downstream from the Conemaugh Station where there is no sign of any life at all; that the rocks are covered with a nasty orange film that permanently stains any clothes that come into contact with it; and that he does not see any water birds foresting in the Conemaugh except in a few isolated areas where there is clean water coming into the river. Def. Exh. 6: Limbach Dep., pp. 4, 26, 27-28, 29-30, 34, 35, 51-2; Pls.' Int. Resp., No. 8; Masur Dep., pp. 18, 40. Mr. Limbach also indicated that his property
In the Court's view, this testimony adequately supports a finding that, for these members of the plaintiff associations, the aesthetic value and recreational use of the Conemaugh River has been lessened by the pollutants discharged into the river and demonstrates their concerns about the effects of that discharge. Indeed, the testimony from Messrs. Neatrour, Burk and Limbach all but mirror that set forth in Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. at 180-85, 120 S.Ct. 693, which the Supreme Court found was sufficient to demonstrate an injury in fact for purposes of standing.
Having established that the plaintiffs' members have suffered an injury in fact, plaintiffs must also demonstrate that their injuries are "fairly traceable" to RRI's actions. Lujan v. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130. Plaintiffs do not need to prove "to a scientific certainty that defendants' effluent, and defendants' effluent alone, caused the precise harm suffered by plaintiffs." Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir.1990) ("Powell Duffryn"), quoting Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 78, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). Rather, to meet the "fairly traceable" requirement plaintiffs need only show that "there is a `substantial likelihood' that defendant's conduct caused the plaintiffs' harm." Id., quoting Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 75 n. 20, 98 S.Ct. 2620. See Interfaith Community Organ. v. Honeywell International, 399 F.3d at 257. See American Littoral Society v. U.S. Environmental Protection Agency Region, 199 F.Supp.2d 217, 232 n. 9 (D.N.J.2002) (finding that the traceability requirement is designed to make sure "that a genuine nexus exists between a plaintiff's injury and a defendant's alleged illegal conduct").
The Court of Appeals for the Third Circuit has found that in cases brought under the CWA, "substantial likelihood" may be established "by showing that a defendant has 1) discharged some pollutant in concentrations greater than allowed by his permit 2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that 3) this pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs." Powell Duffryn, 913 F.2d at 72. The Court elaborated stating that:
Id. at 72-73.
Here, RRI does not dispute that it is discharging harmful pollutants into the Conemaugh River in excess of its NPDES permit limits or that plaintiffs have an interest that may be adversely affected by the pollutants but, rather, contends that
Plaintiffs, however, have alleged in the complaint, that:
These allegations, if accepted as true, clearly support a finding that the selenium, boron, manganese, aluminum, iron and mercury being discharged into the Conemaugh River by RRI can cause the injuries of which plaintiffs complain. See Powell Duffryn, 913 F.2d at 72. See also Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir.2000) (a plaintiff need not "pinpoint[] the origins of particular molecules," but must "merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographical area of concern"). RRI has not disputed any of these assertions or presented any evidence that would call them into question. Moreover, RRI does not dispute that these assertions provide the "dots" linking plaintiffs' injuries to the metals RRI discharges into the Conemaugh River that the Court previously found lacking. As such, the Court finds that plaintiffs have demonstrated that
Having established the first two elements of standing the remaining issue is whether it is likely that plaintiffs' injuries will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130. Here, the Court finds that both the injunctive relief and the civil penalties sought by plaintiffs are more than likely to redress their injuries.
Indeed, noting that the purpose of the CWA is to restore chemical, physical and biological integrity to the nation's waterways, the Court of Appeals for the Third Circuit has held that:
Powell Duffryn, 913 F.2d at 73. See 33 U.S.C. § 1251(a)(1). The Court also found a connection between the plaintiff's injuries and the civil penalties requested observing that:
Powell Duffryn, 913 F.2d at 73. The Court therefore concluded that plaintiff had met the constitutional requirements of standing. Id. See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), 528 U.S. 167, 185-86, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (finding that civil penalties afforded redress to citizen plaintiffs recognizing that "all civil penalties have some deterrent effect," and that it was Congress' intent that civil penalties in Clean Water Act cases deter future violations as well as promote immediate compliance).
In this case, like in Powell Duffryn, an injunction will certainly redress, at least in part, the harm to the water quality of which plaintiffs complain since, if RRI complies with the permit requirements,
RRI's arguments to the contrary are not persuasive particularly as it has cited no authority in support thereof. Whether or not RRI is already taking steps to come into compliance is of little significance as it has not been in compliance with the 2001 Permit since it became effective in February of 2002. In addition, RRI's conclusion that imposing civil penalties will not provide them with any further incentive because it is already obligated to achieve compliance is not only self-serving but overlooks the deterrent effect of civil penalties. Whether or not RRI is already obligated to achieve compliance does not alter the fact that awarding civil penalties will not only arguably serve to deter RRI from committing future violations but will deter other NPDES permit holders from committing similar violations. As such, the Court finds that plaintiffs' injuries will be redressed by a favorable decision and that plaintiffs' members have satisfied all three constitutional standing requirements.
As previously discussed, in order for an organization itself to have standing to sue on its own behalf it must demonstrate that: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Having found that the plaintiffs' members have standing to sue, it follows that the organizational plaintiffs have met the first prong of their standing requirements. With respect to the second and third prongs, RRI does not dispute that the interests plaintiffs seek to protect are germane to their purposes or that it will be unnecessary for the individual members to participate in the lawsuit. Indeed, as argued by plaintiffs, the relief sought does not require individualized proof and plaintiffs do not seek individualized damages. Under these circumstances, plaintiffs have met the requirements of associational standing as well.
Based on the foregoing, Defendant's Motion to Dismiss [Dkt. 34] is DENIED. An appropriate order will follow.