United States District Court, C.D. Illinois, Peoria Division.
NATURAL RESOURCES DEFENSE COUNCIL, RESPIRATORY HEALTH ASSOCIATION, and SIERRA CLUB, INC. Plaintiffs,
ILLINOIS POWER RESOURCES, LLC and ILLINOIS POWER RESOURCES GENERATING, LLC, Defendants.
OPINION & ORDER
BILLY McDADE United States Senior District Judge
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.
case, three not-for-profit environmental organizations -
Natural Resources Defense Council, Respiratory Health
Association, and Sierra Club, Inc. - 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. 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.
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; and (2) an operating permit
(“Permit”) issued by the Illinois EPA on June 10,
the Permit and the SIP limit the amount of particulate matter
that Edwards can emit while it is operating. 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. 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.
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
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. 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
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.
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.
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).
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).
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.
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
Standing to Sue
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)).
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).
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.
Plaintiffs’ Evidence of their Members’
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
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.
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).
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.
Sierra Club Witness
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.
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.
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).
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.
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
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.
NRDC and Sierra Club’s Undisputed Evidence is
Sufficient to Confer Standing
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
Injury in Fact
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
“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.
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
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.
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).
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).
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.
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.
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