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Natural Resources Defense Council v. Illinois Power Resources, LLC

United States District Court, C.D. Illinois, Peoria Division.

August 23, 2016

NATURAL RESOURCES DEFENSE COUNCIL, RESPIRATORY HEALTH ASSOCIATION, and SIERRA CLUB, INC. Plaintiffs,
v.
ILLINOIS POWER RESOURCES, LLC and ILLINOIS POWER RESOURCES GENERATING, LLC, Defendants.

          OPINION & ORDER

          JOE BILLY McDADE United States Senior District Judge

         This matter is currently before the court on Plaintiffs’ motion for partial summary judgment (Doc. 104) and Defendants’ motion for summary judgment (Doc. 108). Each motion is fully briefed and the Court held oral argument on July 13, 2016, so the motions are ready for decision. For the reasons explained below, each motion is GRANTED IN PART and DENIED IN PART.

         Background[1]

         In this case, three not-for-profit environmental organizations - Natural Resources Defense Council, Respiratory Health Association, and Sierra Club, Inc.[2] - have sued Illinois Power Resources Generating, LLC (“IPRG”), which is the owner and operator of the E.D. Edwards Power Plant (“Edwards”), and IPRG’s parent-company, Illinois Power Resources, LLC (“IPR”), on behalf of themselves and their members.[3] Plaintiffs have alleged that Edwards was out of compliance with certain Clean Air Act emissions standards on thousands of occasions between 2008 and 2014. They have brought the lawsuit pursuant to the Clean Air Act’s citizen suit provision, 42 U.S.C. § 7604, which allows “any person” to commence a civil suit against, among others, persons alleged to be in violation of an emission standard or limitation.

         Edwards is a three-unit coal-fired power plant located in Bartonville, Illinois. Two of its units - Units 1 and 2 - exhaust through a common smokestack. The third exhausts through a second smokestack, the center of which is less than 1, 000 feet from the center of the common stack. These units are subject to a variety of emission requirements that are designed to ensure compliance with ambient air quality standards established by the United States Environmental Protection Agency (“U.S. EPA”) pursuant to the Clean Air Act. See 42 U.S.C. §§ 7409-10. Edwards’ emission requirements at issue in this case derive from two sources: (1) the Illinois State Implementation Plan (“SIP”), which is a set of regulations intended to implement the ambient air quality standards;[4] and (2) an operating permit (“Permit”) issued by the Illinois EPA on June 10, 2004.[5]

         Both the Permit and the SIP limit the amount of particulate matter that Edwards can emit while it is operating.[6] See 35 Ill. Admin. Code §§ 212.202, 212.203 (limiting particulate matter emissions from certain power plants that existed prior to April 14, 1972); Permit Condition 2 (Doc. 104-8 at 1). They also, subject to certain exceptions that are discussed more fully below, limit the opacity of the plume emanating from Edwards’ two smokestacks.[7] See 35 Ill. Admin. Code § 212.123 (limiting opacity for certain power plants that existed prior to April 14, 1972 to thirty percent); Permit Condition 3 (Doc. 104-8 at 2). Because there is a correlation between opacity and particulate matter emission levels, regulators use the degree of opacity as a proxy for the amount of particulate matter that a plant emits.

         The Permit and the SIP require that Edwards continuously monitor its opacity to ensure compliance with the thirty-percent limit, and also make quarterly reports to the Illinois EPA that provide information about periods of excess opacity. See 35 Ill. Admin. Code §§ 201.401, 201.405; Permit Condition 4 (Doc. 104-8 at 2). These reports “shall be based on six minute averages of opacity” and must contain “[t]he percent opacity for each continuous opacity excess period;” and “[t]he start and stop time in six minute increments of any opacity measurements in excess of the limitation.” 35 Ill. Admin. Code § 201.405(c). The quarterly reports must also identify “[t]he cause of the excess emissions; if known.” See Permit Condition 4(a)(i)(D) (Doc. 104-8 at 2); 35 Ill. Admin. Code § 201.405(a)(4). To comply with Permit Condition 4(a)(i)(D), Edwards includes in its reports “reason codes” for opacity exceedances, including codes such as “01-Excess Emission - Startup/Shutdown, ” “02 - Excess Emission - Control Equipment Problems, ” “03 - Excess Emission - Process Problems, ” and “04 - Excess Emission - Other Known Causes.”

         Between April 18, 2008 and June 30, 2014, Edwards reported to the Illinois EPA 2, 949 instances in which it had an average opacity of greater than thirty percent for six minutes or longer.[8] Plaintiffs seek partial summary judgment on their first three claims based on these reports. In Count One, Plaintiffs have alleged that Edwards violated the opacity standards on those reported occasions in which it was not in a state of startup, malfunction, or breakdown. In Count Two, Plaintiffs have alleged that Edwards violated the opacity standards on those reported occasions in which it may have been in a state of startup, malfunction, or breakdown. And, in Count Three, Plaintiffs have alleged that Edwards violated its particulate matter standards. They rely upon the opacity exceedances established in the first two claims in order to establish a derivative violation of the particulate matter standards. See 35 Ill. Admin. Code § 212.124(d)(2)(A) (explaining that for certain power plants, opacity exceedances may also be deemed particulate matter exceedances).

         On the merits, Defendants primarily rely upon two regulatory defenses. First, they argue that Edwards was in compliance with its particulate matter limits at all times, including when it was out of compliance with its opacity limits. If correct, this would provide a complete defense to Plaintiffs’ first, second, and third claims. Second, they argue that a great number of the opacity exceedances should be excused because they occurred during periods of malfunction, or breakdown.

         Plaintiffs concede that Defendants may be able to prove a defense in some instances, so they have excluded certain exceedances from their motion. These include: (1) each exceedance identified in the quarterly reports as being associated with a startup; (2) eight exceedances in which Edwards submitted to the Illinois EPA a malfunction report indicating that opacity exceedances occurred during a malfunction or breakdown; and (3) with respect to only the third claim for relief, each exceedance that occurred within sixty days prior to a particulate matter stack test conducted by Defendants. For the remaining exceedances, however, Plaintiffs argue that the defenses fail as a matter of law.

         Legal Standard

         Summary judgment shall be granted where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). All inferences drawn from the facts must be construed in favor of the non-movant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).

         To survive summary judgment, the “nonmovant must show through specific evidence that a triable issue of fact remains on issues on which [it] bears the burden of proof at trial.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on record could not lead a reasonable jury to find for the non-movant, then no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). At the summary judgment stage, the court may not resolve issues of fact; disputed material facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

         Cross-motions for summary judgment are considered separately, and each party requesting summary judgment must satisfy the above standard before judgment will be granted in its favor. See Tegtmeier v. Midwest Operating Eng’rs Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir. 2004); Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997). Thus, the facts are construed in favor of the non-moving party, which differs depending on which motion is under consideration. Tegtmeier, 390 F.3d at 1045.

         Discussion

         Plaintiffs and Defendants each move for summary judgment on the question of whether Plaintiffs have Article III standing to bring this lawsuit, and also move for summary judgment on the merits of Plaintiffs’ first three claims. The Court will address the threshold matter of standing before considering the merits.

         I. Standing to Sue

         The first question that must be answered is whether Plaintiffs have standing to bring this lawsuit. In this case, each Plaintiff is an organization. “An organization has standing to sue if (1) at least one of its members would otherwise have standing; (2) the interests at stake in the litigation are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires an individual member’s participation in the lawsuit.” Sierra Club v. Franklin Cnty. Power of Ill., LLC, 546 F.3d 918, 924 (7th Cir. 2008). Plaintiffs’ members establish standing if they can show that they “have suffered an ‘injury in fact’ that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;” that “the injury [is] fairly traceable to the challenged action;” and that it is “likely, not just speculative, that a favorable decision will redress the injury.” Id. at 925 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

         To win on a cross-motion for summary judgment, “a plaintiff cannot rely on mere allegations but must support each element by specific facts via affidavits or other evidence.” Id. “As long as there is ‘at least one individual plaintiff who has demonstrated standing . . .’ a court ‘need not consider whether the other . . . plaintiffs have standing to maintain the suit.” Bond v. Utreras, 585 F.3d 1061, 1070 (7th Cir. 2009) (quoting Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 264 & n. 9 (1977)); see also Korte v. Sebelius, 735 F.3d 654, 667 n.8 (7th Cir. 2013); Bostic v. Schaefer, 760 F.3d 352, 371 (4th Cir. 2014), cert denied sub nom. Rainey v. Bostic, 135 S.Ct. 286 (2014), and cert denied, 135 S.Ct. 308 (2014), and cert. denied sub nom. McQuigg v. Bostic, 135 S.Ct. (2014) (declining to consider whether two plaintiffs have standing after concluding that other plaintiffs do have standing).

         The parties do not dispute the second and third elements of organizational standing, but they argue over the first: whether Plaintiffs have shown that at least one of their members would otherwise have standing to bring the lawsuit on her own behalf.

         A. Plaintiffs’ Evidence of their Members’ Standing

         Plaintiffs rely upon the following evidence to establish standing: NRDC has provided declarations and deposition testimony from members Linda Andrews, Robert Jorgensen, and Mary Ann Schafer; Sierra Club has provided a declaration and deposition testimony from member David Pittman; and RHA has provided declarations and deposition testimony from Alicia High and Tracy Meints Fox. Defendants have provided the deposition testimony of most standing witnesses in an effort to undermine their credibility. The evidence is summarized below.

         1. NRDC Witnesses

         Linda Andrews lives “less than 10 miles” from Edwards, and describes herself as “very outdoor-oriented.” (Doc. 104-28 at 1). She explains that she regularly runs marathons and half marathons, and runs outside as much as possible throughout the year. (Id.). She avers that “air pollution from [Edwards] can impair [her] ability to do the activities [she enjoys].” She does much of her training “20 miles to the north of her home” because she believes her “strenuous activities are safer” and knows “they are certainly more enjoyable, in the country where the air is cleaner.” (Id. at 2). She avers that she wishes she could run closer to home, but that she avoids doing so “in view of [her] health concerns and the unpleasantness of running in dirty air.” (Id.). She also avers that she is concerned about the impact of poor air quality on her husband’s health, as he has emphysema. (Id.). During her deposition, Andrews described the smoke that she saw coming out of Edwards as ugly, and explained that she has “an issue with particulate matter being released above and beyond the regulations repeatedly.” (Doc. 109-13 at 4). Her knowledge of Edwards’ emissions’ effects on air quality is limited to the allegations that were pleaded in the complaint.

         Mary Ann Schafer lives in near Edwards, in Peoria, and avers that she is “very concerned” with Edwards’ “impact on air quality” around her because she suffers from asthma and loves fresh air. (Doc. 104-28 at 5). She explained that she used to “open [her] house up” when the weather was good, but does not do so anymore because of her concerns about air quality. (Id. at 6). She is also concerned about the impact that pollution from Edwards will have on her grandchildren. (Id.). During her deposition, she expressed concern over particulate matter in the air - which she defined as “tiny things that are in the solid state” and “cause problems for people with asthma, like myself” - and said she has grown more concerned about particulate matter as her asthma has gotten worse. She did explain, though, that particulate matter is caused by many sources and said that it is the worst during “leaf burning” season. (Doc. 109-14 at 3, 7).

         Robert Jorgenson lives in East Peoria, Illinois, and has concerns about the impact of poor air quality on his health. Edwards is “a short distance from where he lives, ” and he also goes to Bartonville “five or six times a year” because his daughter works there. (Doc. 104-28 at 3-4). He is especially concerned about breathing particulate matter because he has a “history of significant cardiac problems.” (Id. at 4). He is aware of the impact that particulate matter has on cardiovascular health, and he also is aware that Edwards exceeds its particulate matter limits. (Id. at 4). Jorgenson regularly goes outside, either to ride his bike, walk, or do house work. (Id.). During his deposition testimony, Jorgenson said he would be concerned about Edwards even if it operated within its particulate matter limit, and identified other particulate matter concerns, such as the fact that he lives close to a highway.

         2. Sierra Club Witness

         Sierra Club is basing its standing on only one member: David Pittman. Pittman lives in West Peoria, Illinois, and his house is “less than eight miles downwind” of Edwards. (Doc. 104-31 at 1-2). He is concerned about the health impacts that particulate matter from Edwards will have on his wife, who suffers from a variety of cardiovascular health issues. (Id. at 2). He also spends “a large amount of time outdoors, ” and Edwards’ particulate matter diminishes his enjoyment during that time. (Id.). During his deposition, Pittman said that he is most concerned with sulfur-dioxide emissions at Edwards, and he also identified other sources of particulate matter that concern him (such as trash burning and wood smoke). (Doc. 109-16 at 3). But he affirmed that he is also concerned with particulate matter emissions from Edwards. (Id. at 3-4).

         3. RHA Witnesses

         RHA is basing its standing on the declarations of two individuals, each of whom claims to be an RHA member. Tracy Meints Fox lives in Chillicothe, Illinois (approximately 25 miles north of the plant). (Doc. 104-33 at 1). Alicia High lived in Bloomington, Illinois (approximately 40 miles from Edwards) when the lawsuit was filed, but she lives in Texas now.

         The parties dispute whether High and Fox should be considered members of RHA. Article VI of RHA’s 2012 Bylaws defined how individuals become members of the RHA at the time this lawsuit was filed. It provides that, “Any person who concurs with the purposes of the Association and who makes an active contribution to the work of the Association may become a general member upon election by the Board or Executive Committee and the payment of an annual membership fee to be determined by the Board.” (Doc. 104-34 at 3).

         There is no evidence in the record that High or Fox were elected by the Board or Executive Committee, nor is there evidence that they paid an annual membership fee. Because RHA cannot show membership that complies with the bylaws, Defendants argue that it lacks standing.

         There is, however, evidence that Fox made donations to RHA in 2013 and 2014, that High participated in RHA events beginning in 2012 for which she personally paid $540, and that both High and Fox approve of the organization’s purpose. RHA argues that this evidence of membership is enough, especially in light of an undated resolution passed by the RHA Board that provides, “IT IS HEREBY FURTHER RESOLVED, that Alicia High and Tracy Fox could properly consider themselves ‘members’ of the Association, ” because they have “made contributions of money to the Association, and have demonstrated through their actions in a Peoria area power plant litigation matter that they concur with the purpose of the Association and have made an active contribution to the work of the Association.” (Doc. 104-34). The Resolution explains that the 2012 Bylaw “was not intended to require the Board or Executive Committee to expressly ‘elect’ each person to membership, or to require a contribution of a particular size to the Association.” (Id.). Instead, the Resolution explains that “it was appropriate to treat any person who concurred with the purposes of the Association, and who made a financial contribution, as a ‘Member’ as that term is used in the Bylaws.” (Id.).

         This dispute raises a number of thorny legal questions. First, should the Court second-guess RHA’s interpretation of its Bylaws when a reasonable juror could conclude that RHA adopted a convenient litigation position to allow it to establish standing after the lawsuit was filed? See Dannhausen v. Bus. Publ’ns Audit of Circulation, Inc., 797 F.2d 548, 551 (7th Cir. 1986) (“Illinois law does not permit courts to adjudicate the merits of private associations’ decisions.”). But see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180 (2000) (explaining that standing should be measured at the outset of litigation); Pollack v. U.S. Dep’t of Justice, 577 F.3d 736, 743 n. 2 (7th Cir. 2009) (“[A] plaintiff must establish standing at the time suit is filed and cannot manufacture standing afterwards.”). Second, if a person has failed to comply with Bylaws that govern membership but demonstrates certain other indicia of membership, should a court consider that person to be a member of the organization for standing purposes? Compare Citizens Coal Council v. Canestrale Contracting Inc., 40 F.Supp.3d 632, 636-43 (W.D. Pa. 2014) with California Sportfishing Prot. Alliance v. Diablo Grande, Inc., 209 F.Supp.2d 1059, 1066 (E.D. Cal. 2002). Ultimately, it is unnecessary to resolve this dispute, because as discussed below, both NRDC and Sierra Club have standing and that is all that is required for Plaintiffs to proceed with this lawsuit. See Bond, 585 F.3d at 1070.

         B. NRDC and Sierra Club’s Undisputed Evidence is Sufficient to Confer Standing

         Defendants have challenged the sufficiency of NRDC and Sierra Club’s standing witnesses’ affidavits to establish standing for the organizations. They argue that each of the declarants has not suffered a redressable injury that is fairly traceable to Defendants’ challenged conduct. The court considers, in turn, each element of individual standing.

         1. Injury in Fact

         An injury in fact exists only if the injury is concrete, particularized, actual or imminent, and affects the declarant in a “personal and individual way.” Lujan, 504 U.S. at 560, 560 n. 1. Members of environmental groups can establish injury in fact by showing that “they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Laidlaw, 528 U.S. at 183 (internal quotation marks omitted). See also Am. Bottom Conservancy v. U.S. Army Corps. of Eng’rs, 650 F.3d 652, 658 (7th Cir. 2011); Pollack, 577 F.3d at 740; Franklin Cnty., 546 F.3d at 925; Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir. 2003); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154-56 (4th Cir. 2000). “The relevant showing for purposes of Article III standing . . . is not injury to the environment but injury to the plaintiff.” Laidlaw, 528 U.S. at 181. Members are injured when their interests in a geographic area are impacted by “reasonable concerns about the effects” of pollution. Id. at 183-84.

         An “identifiable trifle” will be sufficient to establish injury-in-fact. Franklin Cnty., 546 F.3d at 925. “The magnitude, as distinct from the directness, of the injury is not critical to the concerns that underlie the requirement of standing. . . .” Am. Bottom Conservancy, 650 F.3d at 656. Standing witnesses need not show that they have totally abandoned a site because of pollution; they just need to show that their “pleasure is diminished.” Id. at 658. In the case of air pollution, simple exposure to pollutants can establish the necessary injury in fact. See Franklin Cnty., 546 F.3d at 925; Murphy v. Murphy Oil USA, 686 F.Supp.2d 663, 671 (E.D. La. 2010) (quoting Texans United for a Safe Economy Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 792 (5th Cir. 2000)).

         Here, witnesses from both NRDC and Sierra Club testified that their enjoyment of certain outdoor activities was diminished because of particulate matter emissions from Edwards. NRDC’s witness, Linda Andrews, travels 20 miles away from her home for many of her runs in order to avoid pollution that she attributes to Edwards. Mary Ann Schaeffer, another NRDC witness, keeps her windows closed to keep the outside air out and reduce her exposure to particulate matter. Robert Jorgenson, the third NRDC witness, regularly goes outside to hike, bike, and do yard work, and is concerned about his cardiovascular health when he does so. David Pittman, of the Sierra Club, spends a large amount of time outdoors, and is concerned about the impact on his health that exposure to particulate matter has during that time. He is also concerned about his wife’s cardiovascular health.

         These standing witnesses - other than Linda Andrews and Mary Ann Schaeffer - do not claim that they changed their behavior because of their concerns. It could therefore be argued that they did not suffer the sort of recreational harms that Laidlaw held give rise to standing. See 528 U.S. at 184. However, the standing witnesses need not show that they abandoned recreational activities because of pollution; they just need to show that their pleasure was diminished because of the pollution. See Am. Bottom Conservancy, 650 F.3d at 658. All standing witnesses have claimed that their residential and recreational happiness has been disturbed by the presence of air pollution. This sort of particularized identifiable trifle is a cognizable injury, so long as it is reasonable. See id.; Franklin Cnty., 546 F.3d at 925; Texans United, 207 F.3d at 792.

         Defendants argue that the standing witnesses’ fears are unreasonable. They have provided expert testimony from Lucy Fraiser, who opines that the emissions at issue cannot cause the health consequences that concern the standing witnesses. Specifically, Fraiser opines that Edwards “did not cause short-term or long-term atmospheric PM concentrations sufficient to cause or contribute to injury of human life or health and, thus, the magnitude of the potential exposures do not support the fears alleged.” (Doc. 109-11 at 22). She further opines that Edwards “did not cause short-term or long-term atmospheric PM concentrations sufficient to cause visibility impairment or other welfare impacts” and the emissions “were not of a characteristic, frequency, or duration that presents a reasonable likelihood of future harm.” (Id.). She therefore concludes that the standing witnesses’ fears are not supported by reliable medical or scientific evidence. (Id. at 44).

         Defendants have set the bar for reasonableness too high. A fear need not be based on medical or scientific evidence of probable consequences in order to be reasonable. Rather, a fear cannot be “so irrational that it can simply be discredited.” Franklin Cnty., 546 F.3d at 927. The relevant question is not whether pollutants are present in such a high concentration that they will assuredly cause health problems. Rather, it is whether pollutants that can be attributed to Defendant could cause harm and are present in the geographic area in which the standing witness has an interest. See Pollack, 577 F.3d 736; Am. Canoe Ass’n, 326 F.3d 505; and Gaston Copper, 204 F.3d 149 (4th Cir. 2000).

         In Pollack, a resident of Highland Park, Illinois alleged that he was harmed by the discharge of lead bullets from a firing range into Lake Michigan. Among other things, the plaintiff based his claim for standing on the fact that “he drinks water drawn from Lake Michigan for Highland Park.” 577 F.3d at 741. The Court concluded that his “intention to drink water and his fear that his water has been contaminated by lead from bullets does not give rise to standing.” Id. It explained that his fear was unreasonable because it was unclear from the record whether “any pollution from bullets discharged into Lake Michigan [would] travel the thirteen miles” from where they were discharged to where the plaintiff’s drinking water was drawn. Id. The court suggested, however, that the outcome would have been different had Pollack “actually used the areas affected by pollution.” Id. Indeed, in a concurring opinion, Judge Cudahy noted that the plaintiff had only pointed to a “small amount of lead” in his drinking water but concluded that it would have been sufficient to establish injury-in-fact if the plaintiff had provided “competent evidence” that the lead was from the firing range. Id. at 746 (Cudahy, J. concurring).

         In American Canoe, a standing witness asserted that he was harmed by the illegal discharge of hog waste because he used a stream four-miles downstream from the discharge site for “swimming, drinking, and fishing.” 326 F.3d at 518. He asserted that “[h]is fear of pollution has kept him from swimming in, bathing in, or drinking the water” from the creek. Id. at 519. He based his fear of pollution on expert testimony that the pollutants in the swine waste “may have severe adverse environmental and human health effects, ” and that the pollutants traveled downstream. Id. Without discussing whether the concentration of pollutants in the creek was sufficient to cause those health effects, the Court concluded that the standing witness’s fear was reasonable because he “used an area subject to contamination from the discharge.” Id. at 520. Indeed, the Court suggested that the contamination itself was relatively insignificant, as it noted the “minimal number of discharges” at issue. Id.

         Finally, in Gaston Copper, a homeowner who lived downstream from a smelting factory “plainly demonstrated injury in fact” by testifying that “he and his family swim less in and eat less fish from [his] lake because his fears of pollution from [the factory’s] permit exceedances.” 204 F.3d at 156. He was “anything but a roving environmental ombudsman seeking to right environmental wrongs, ” because he “[was] a real person who owns a real home and lake in close proximity” to the defendant. Id. at 157. The Court explained that there was “ample evidence that [his] fears are reasonable and not based on mere conjecture” because “[t]he record is replete with evidence that Gaston Copper is fouling its receiving waters.” Id. Indeed, there were “over 500 violations of the company’s discharge limits, including unlawful releases of cadmium, copper, iron, lead, and zinc, as well as pH violations, ” and also “EPA studies and expert testimony of the adverse health and ...


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