MEMORANDUM OPINION
Plaintiffs commenced this citizen suit against defendant RRI Energy Northeast Management Company (“RRI”), 1 in an ef *468 fort to secure RRI’s compliance with the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251, et seq., and the Pennsylvania Clean Streams Law (“PCSL”), 35 P.S. §§ 691.1, et seq. Plaintiffs allege that RRI has been discharging illegal levels of at least five different metals into the Conemaugh River from its Conemaugh Generating Station (“CGS”) in West Wheatfield Township, Pennsylvania, in violation of its wastewater discharge limits.
1. Background
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 (“PA-DEP”), 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 effluеnt 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 PA-DEP 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. 2 See Def. Exh. 14: 34 Pa. Bull. 51 (Dec. 18, 2004). Since that time, according to RRI, it has been performing studies and collecting data in order to assess potential treatment technologies and support the development of proposed revised effluent limitations. See Def. Brief, pp. 9-16.
Nevertheless, on February 6, 2007, plaintiffs submitted a notice of intent to sue to RRI, the PADEP and the EPA in *469 accordance with section 505 of the CWA, 33 U.S.C. § 1365, and commenced the instant action on April 10, 2007. In the interim, on April 5, 2007, the PADEP filed a civil action against RRI under the PCSL in the Court of Common Pleas of Indiana County, Pennsylvania, alleging that between February of 2002 and October of 2006, RRI was discharging wastewater into the Conemaugh River contrary to the CWA and/or the terms and conditions of the 2001 Permit. Amongst other things, the PADEP asked the court for injunctive relief and to assess civil penalties against RRI. See Pis.’ Exh. 13a: State Court Complaint. On May 3, 2007, pursuant to a joint motion filed by the parties, an order staying all proceedings in this case was entered to allow the parties to explore settlement; it appears undisputed that a similar оrder was also entered in the state court action. See Pis.’ Exh. 14. Although settlement discussions ultimately proved unsuccessful, the PADEP nevertheless withdrew the state action on October 1, 2008. See Pis.’ Exh. 15: Praecipe for Discontinuance. The stay of proceedings entered by this Court was lifted on November 25, 2008. See Dkt. 27.
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.
II. Standard of Review
“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.,
The Court of Appeals for the Third Circuit has further explained that under the latter circumstances,
If the defendant raises no challenge to the facts alleged in the pleadings, the court may rule on the motion by accepting the allegations as true.... If the defendant contests any allegations in the pleadings, by presenting evidence, the court must permit the plaintiff to respond with evidence supporting juris *470 diction.... The court may then determine jurisdiction by weighing the evidence presented by the parties....
Gould Electronics Inc. v. United States,
Here, resolution of RRPs 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 RRFs 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.
III. Discussion
A. Preclusion under the CWA
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.” 3 33 U.S.C. § 1365(a). Section 1319(g), which falls under the “Enforcement” section of the statute and is entitled “Administrative penalties,” provides the EPA with the authority to assess administrative penalties against polluters without bringing suit against them. Subsection 1319(g)(6)(A) sets forth certain limitations on that authority and other potential actions providing that:
any violation—
(i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection,
(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or
(iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 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.
*471 RRI contends that plaintiffs’ suit is barred under subsection (ii). Specifically, RRI argues that the COA it entered into with the PADEP constitutes the “commencement” of an “action” and that the PADEP has been “diligently prosecuting” that action as evidenced by its ongoing activities under the COA. As well, RRI contends that the PADEP’s statutory and regulatory scheme is comparable to its federal counterpart thereby satisfying all the requirements of subsection 1319(g)(6)(A)(ii).
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, sеction 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,
Thé 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.,
Similarly, in
Washington Public Interest Research Group v. Pendleton Woolen Mills,
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. 4 Moreover, the *473 COA was not the result of an action commenced by the state to address violations of the 2001 Permit but, rather, was executed in an effort to resolve RRI’s administrative appeal filed with the Pennsylvania Environmental Hearing Board challenging some of the 2001 Permit requirements. As such, section 1319(g)(6)(A)(ii) does not preclude plaintiffs’ case from going forward.
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.:
The language of § 1319(g) was first proposed in the Water Quality Act of 1986, which was vetoed by President Reagan. The language was then included verbatim in the Water Quality Act of 1987. The 1986 House Conference Report, approved unanimously by both House and Senate, described the citizen preclusion language (incorporated into the final product) as follows:
No one may bring an action to recover civil penalties under sections 309(b) and (d), 311(b), or 505 [citizen suits] of this Act for any violation with respect to which the Administrator has commenced and is diligently prosecuting an administrative civil penalty action, or for which the Administrator has issued a final order not subject to further judicial review (and for which the violator has paid the penalty). This limitation applies only to an action for civil penalties for the same violations which are the subject of the administrative civil penalty proceeding. It would not .... apply to: 1) an action seeking relief other than civil penalties (e.g., an injunction or declaratory judgment); 2) an action under section 505(a)(1) of this Act filed prior to commencement of an administrative civil penalty proceeding for the same violation; or 3) a violation which has been the subject of a notice of violation under section 505(b)(1) of this Act prior to initiation of the administrative penalty process, provided that, in the latter case, an action under section 505(a)(1) of this Act is filed within 120 days of the notice of violation.... The Agency can prevent duplicate proceedings by intervening in the ongoing citizen enforcement suit or by bringing its own judicial action before a citizen suit is filed.
H.R. Conf. Rep. No. 99-1004, at 133 (1986) (emphasis added).
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:
When introducing the final bill to the Senate in 1987, Senator Chaffee, who was the primary drafter and chairperson of the Senate conferees, described the citizen preclusion provision as follows:
New paragraph 309(g)(6) sets out limitations that preclude citizen suits where the Federal Government or a *474 State has commenced and is diligently prosecuting an administrative civil penalty action or has already issued a final administrative civil penalty order not subject to further review and the violator has paid the penalty .... under a State law that is comparable to section 309(g). For example, in order to be comparable, a State law must provide for a right to a hearing and for public notice and participation procedures similar to those set forth in section 309(g); it must include analogous penalty assessment factors and judicial review standards; and it must include provisions that are analogous to the other elements of section 309(g).... Finally, section 309(g)(6)(A) provides that violations with respect to which a Federal or State administrative penalty action is being diligently prosecuted or previously cоncluded “shall not be the subject of’ civil penalty actions under sections 309(d), 311(b), or 505 [citizen suits]. This language is not intended to lead to the disruption of any Federal judicial penalty .action then underway, but 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.
133 Cong.Rec. 1264 (1987) (emphasis added).
Id.
at 1114-15.
See United States v. BP Oil, Inc.,
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.,
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 noncompliance notices to the defendant for over two years.
Id.
at 877-78. 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.
5
Henсe, the PADEP was not exercising its enforcement powers under a comparable state law or pursuing administrative penalties thereby rendering section 1319(g)(6)(A) inapplicable.
See Tobyhanna Conservation Association v. Country Place Waste Treatment Co.,
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.,
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 bеen imposed under federal or state law. Subsection (i) covers actions being pursued by the EPA *476 under the CWA; subsection (ii) covers actions being pursued by the state under state law; and (iii) covers instances where proceedings under (i) or (ii) have already concluded and administrative penalties have already been imposed. Congress was clearly unable to reiterate “under this subsection” in subparagraph (ii) because it was covering instances where proceedings had been commenced under state law, not the CWA. In order to encompass state actions in which penalties were being sought, Congress simply conformed the language in subsection (ii) to include actions “under a State law comparable to this subsection.” It did not alter the fact that preclusion under section 1319(g)(6)(A) is predicated on the assessment of administrative penalties.
Indeed, subsection (iii), which RRI acknowledges is explicitly tied to the payment оf 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,
B. Standing
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.,
In order to satisfy the first prong — that the individual members of the organization would have standing — three elements must be met:
First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.]’ ” ... Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by а favorable decision.”
Lujan v. Defenders of Wildlife,
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.,
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 likе 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 bеtween 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; Pis.’ Int. Resp., No. 8; Masur Dep., pp. 18, 40. Mr. Limbach also indicated that his property *479 values are adversely impacted by the degradation of the Conemaugh. Id. at p. 31.
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,
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,
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,
This will require more than showing a mere exceedance of a permit limit. Thus if a plaintiff has alleged some harm, that the waterway is unable to support aquatic life for example, but failеd to show that defendant’s effluent contains pollutants that harm aquatic life, then plaintiffs would lack standing.
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 *480 plaintiffs are unable to establish that the metals it discharges into the river cause or contribute to the kind of injuries complained of.
Plaintiffs, however, have alleged in the complaint, that:
29. Selenium is a highly toxic metal. Even at concentrations as low as 3 to 8 parts per billion in water (or 0.003 to 0.008 milligrams per liter), selenium can cause reduced survival of juvenile fish. In addition, selenium can bioaccumulate in plants and invertebrates consumed by waterfowl and adversely affect the reproductive success of waterfowl.
* * *
35. Boron is an element present in coal. It is water soluble and can bioaccumulate in aquatic plants. Waterfowl that ingest boron and boron comрounds have been found to suffer adverse effects on growth and reproduction.
* * *
41. Manganese is a metal used in the production of iron and steel. Although it is essential for human health in trace amounts, it becomes toxic at higher concentrations. Manganese can be acutely toxic to some aquatic organisms even at low concentrations.
47. The presence of aluminum is an important determinant of the toxicity of acidic waters to freshwater fish. Aluminum targets the gills, skeleton and kidneys of fish, among other organs. Certain aluminum compounds can bioaccumulate in fish and potentially be toxic when consumed by humans. Dissolved aluminum can also be toxic to other aquatic organisms.
* * *
53. Excessive concentrations of iron cause discoloration of river water and sediments, an effect that has been observed in the Conemaugh River. In addition, excessive concentrations of iron can reduce the amount of dissolved oxygen available to macroinvertebrates and impede the recovery of an impaired river like the Conemaugh.
* * *
59. Mercury is a highly toxic metal. Once deposited into streams and rivers, mercury can be readily transformed into methylmercury through microbial activity. Methylmercury accumulates in fish at levels that may be harmful to the fish and to animals and humans that consume them. The effects of methyl mercury exposure on wildlife can include mortality, reduced fertility, and slower growth and development. For fetuses, infants, and children, the primary health effect of methylmercury is impaired neurological development.
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,
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,
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:
Where a plaintiff complains of harm to water quality because a defendant exceeded its permit limits, an injunction will redress that injury at least in part. If [defendant] complies with its permit, the pollution in the [river] will decrease. Plaintiffs need not show that the waterway will be returned to pristine condition in order to satisfy the minimal requirements of Article III.
Powell Duffryn,
Where Congress has expressly granted a right of action and plaintiffs have shown “a distinct and palpable injury,” plaintiffs “may invoke the general public interest in support of their claim.” Warth v. Seldin,422 U.S. 490 , 501,95 S.Ct. 2197 , 2206 [45 L.Ed.2d 343 (1975) ]. The general public interest in clean waterways will be served in this case by the deterrent effect of an awаrd of civil penalties. Penalties will deter both [defendant] specifically and other NPDES permit holders generally. Thus [plaintiffs] members’ injuries may be redressed by a favorable decision in this case. See Student Public Interest Group of New Jersey, Inc. v. AT & T Bell Laboratories,617 F.Supp. 1190 , 1200-01 (D.N.J.1985).
Powell Duffryn,
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, *482 there will be less pollution in the Conemaugh River. Moreover, the imposition of civil penalties is not only likely to deter RRI from exceeding its permit levels in the futurе but will serve to deter others as well.
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’ membеrs 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.
IV. Conclusion
Based on the foregoing, Defendant’s Motion to Dismiss [Dkt. 34] is DENIED. An appropriate order will follow.
Notes
. Although the named defendants in this case, as it was originally filed, were Reliant Energy, Inc. and Reliant Energy Northeast Management Company, Reliant Energy Northeast Management Company subsequently filed a motion to amend the caption to reflect the fact that it had recently changed its name to RRI Energy Northeast Management Company and that Reliant Energy, Inc. had been dismissed from the case [Dkt. 45]. See [Dkt. 38], *468 That motion was granted on May 28, 2009, and the Clerk of Court was simultaneously ordered to amend the caption accordingly [Dkt. 48]. As such, to limit any confusion, the Court has referred to the defendant as "RRI” throughout the opinion notwithstanding that it has only recently changed its name.
. Although RRI has represented on page 11 of its brief that the proposed amendment published in the Pennsylvania Bulletin includes "an invitation for reviеw and comment by interested parties,” the Court is unable to locate any such statement in the copy of the Bulletin submitted and relied upon by RRI. See Def. Exh. 14. Moreover, plaintiffs have submitted a declaration from their counsel, Joshua R. Kratka, in which he states that after conducting a search of the PADEP’s files, that of the EPA and the documents produced by RRI during discovery, they were unable to find any evidence that any public notice or opportunity to comment on the contents of the COA was provided by the PADEP. See Kratka Dec. ¶ 3.
. A citizen suit is also precluded under section 1365(b) when proper notice of the alleged violation has not been given to the defendant or when "the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance.”
Id. See Proffitt v. Rohm & Haas,
. Although the COA contemplates stipulated penalties should RRI fail to comply with the COA, such penalties for future violations of a negotiated order, are clearly not the type of penalties contemplated under section 1319(g)(6). Not only does section 1319(g) generally speak to violations that have already occurred but any penalties that may be sought in the future are necessarily not now being "diligently prosecuted.”
See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,
. Further, to the extent that RRI has suggested that section 1319(g) authorizes the issuance of compliance orders and, thus, that any sort of administrative action precludes a citizen suit, it is clear that compliance orders are permitted under subseсtion (a), not subsection (g).
See
Def. Brief, p. 21. Moreover, as pointed out by plaintiffs, section 505, which grants citizens the right to commence an action to enforce compliance orders issued by the EPA or a state, would be rendered meaningless if the issuance of a compliance order precluded citizen suits. 33 U.S.C. § 1365(a)(1)(B).
See Washington Public Interest Research Group v. Pendleton Woolen Mills,
. In this manner,
Citizens for Clean Power v. Indian River Power, LLC,
. Indеed, RRI itself has conceded that "certain of Plaintiffs' allegations have been held to constitute aesthetic 'injuries in fact’ in other cases ...." Def. Brief, p. 33.
. Although RRI has submitted the Declaration of Thomas R. Teitt [ECF No. 35-3], Director of Water and Wastewater for Reliant Energy Corporate Services, in support of its argument that plaintiffs are unable to satisfy the traceability requirement because it discharges less of these metal into the Conemaugh River than it takes out resulting in a net reduction of pollutants, the Court is unpersuaded. Mr. Teitt’s Declaration, which plaintiffs justifiably object to as being fraught with uncertainties and other evidentiary problems, see Pis.' Brief, pp. 6-8 [ECF No. 41], does not negate the fact that RRI is discharging pollutants into the river in excess of its permit limits or that these metals can cause the harm experienced by plaintiffs. Because under Powell Duffryn, all that is required to meet the traceability element is a showing that the pollutants at issue can cause or contribute to the kinds of injuries alleged, plaintiffs have satisfied their burden for purposes of standing.