FreshWater Accountability Project v. Patriot Water Treatment, LLC et al

Filing 77

Memorandum Opinion and Order Because FreshWater's interests in this litigation are "arguably within the zone of interests" protected by CWA, it has "prudential standing" to sue Defendants. Because FreshWater presents admissible evidence showing that Thomas Smith is a FreshWater member and that Thomas Smith is constitutionally positioned to sue Defendants in his own right, FreshWater has "organizational standing" to sue Defendants for their alleged violations of CWA. For those reasons, the Court rules that Defendants' motions for summary judgment (ECF Nos. 44 , 46 ) are denied. Judge Benita Y. Pearson on 10/9/2018. (S,L)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FRESHWATER ACCOUNTABILITY
PROJECT,
Plaintiff,
v.
PATRIOT WATER TREATMENT, LLC, et
al.,
Defendants.

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CASE NO. 4:17CV1361

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 44, 46]

Pending are two motions for summary judgment by Defendants Patriot Water Treatment,
LLC (“Patriot”) and City of Warren, Ohio (“Warren”) (collectively, “Defendants”). ECF Nos.
44, 46. The motions seek summary judgment against Plaintiff FreshWater Accountability Project
(“FreshWater”) on the ground that FreshWater does not have standing to sue. FreshWater
opposed the motions, ECF No. 48, and Defendants replied, ECF No. 50. For the reasons stated
below, the Court denies Defendants’ motions.
I. Background
FreshWater, a non-profit environmental organization suing on behalf of its members,
brought this action against Defendants Patriot Water Treatment, LLC (“Patriot”) and Warren,
under the citizen enforcement suit provision of the Clean Water Act (“CWA”), 33 U.S.C. § 1365.
ECF No. 1. FreshWater seeks declaratory and injunctive relief, the assessment of civil penalties,
and an award of litigation costs and fees for alleged violations of CWA. Id. at PageID#: 1, ¶ 1.
FreshWater asserts that Defendants failed to comply with effluent limits and performance
standards for industrial wastewater discharge under the National Pollution Discharge Elimination

(4:17CV1361)
System (“NPDES”), Permit No. 3PE00008, regarding the discharge of wastewaster pollutants
into the waters of the State of Ohio. Id. at PageID#: 2, ¶¶ 2-3.
A. Clean Water Act
The objective of CWA, 33 U.S.C. § 1251 et seq., is to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To further this
goal, CWA mandates that toxic discharges into the Nation’s waterways be monitored and
regulated and thus requires that dischargers comply with certain enumerated sections of CWA.
33 U.S.C. § 1311(a); see Ailor v. City of Maynardville, Tenn., 368 F.3d 587, 590 (6th Cir. 2004).
Of these enumerated sections, section 402, 33 U.S.C. § 1342, which embodies the NPDES
permit program, authorizes the discharge of pollutants subject to applicable requirements of
CWA, through NPDES permits. See 33 U.S.C. § 1342(a)(1) and (b)(1). “Generally speaking,
the NPDES requires dischargers to obtain permits that place limits on the type and quantity of
pollutants that can be released into the Nation’s waters.” S. Fla. Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004). NPDES permits also require the holder to
establish and maintain records; install, use, and maintain monitoring equipment or methods; and
sample point source effluent. 33 U.S.C. § 1318(a)(4)(A).
While the U.S. Environmental Protection Agency (“U.S. EPA”) is charged with
administering the NPDES program, it is empowered to delegate this authority to individual
states. 33 U.S.C. § 1342(b). Once the U.S. EPA approves a state’s proposed NPDES program,
U.S. EPA suspends its issuance of the NPDES permits as to discharges subject to the state
program. 33 U.S.C. § 1342(c)(1). “Noncompliance with a permit constitutes a violation of the

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[Clean Water] Act.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 175 (2000) (citing 33 U.S.C. § 1342(h)).
B. Ohio’s NPDES Program
Ohio has established a federally approved NPDES program, administered by the Ohio
Environmental Protection Agency (“OEPA”). ECF No. 1 at PageID#: 7, ¶ 30. See Askins v.
Ohio Dept. of Agriculture, 809 F.3d 868, 871 (6th Cir. 2016). The OEPA issued a NPDES
permit to Warren, a municipality in Trumbull County, Ohio, which owns and operates a publiclyowned treatment works (“POTW”). Id. at PageID#: 4, ¶¶ 12-13, PageID#: 8, ¶¶ 32-33. The
NPDES permit authorizes the discharge of treated wastewater into Warren’s POTW from
industrial permit users, including Patriot. Id. at PageID#: 7-8, ¶¶ 26-35. The OEPA issued
Patriot a permit to install and operate a water treatment facility designed to treat oil and gas
waste. Id. at PageID#: 8, ¶ 37. The permit to install and operate a water treatment facility along
with the NPDES permit allow Patriot, the owner and operator of a Centralized Waste Treatment
Facility (“CWT Facility”), to process wastewater from oil and gas producers, and, later,
discharge its treated effluent into the sewer system for subsequent treatment by Warren’s POTW.
Id. at PageID#: 4, ¶11; PageID#: 8, ¶ 32. Warren’s POTW then disposes the effluent into the
Mahoning River. Id. at PageID#: 9, ¶ 42.
To enforce general pretreatment regulations as required under the NPDES permit, Warren
issued Administrative Orders (“AOs”) to Patriot, that require that certain conditions be met,
regarding the flow of industrial wastewater discharge into Warren’s sewer system. Id. at
PageID#: 10, ¶¶ 46-54; ECF No. 19 at PageID#: 290. The AOs limit Total Dissolved Solids
(“TDS”) levels to 50,000 mg/L for oil and gas flow, but do not provide an express limit for the
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TDS levels in the total industrial flow.1 ECF Nos. 1 at PageID#: 11, ¶¶ 51-52; 19 at PageID#:
294. Also, Patriot’s AO and Warren’s Local Ordinance 924.03 prohibit the discharge of “any
wastewater containing any radioactive wastes or isotopes of such a half-life or concentration,
which exceeds limits established by Warren in compliance with State or Federal regulations,” but
do not contain limits for radium-226, radium-228, or barium (an abundant inorganic chemical
found in drilling fluid). Id. at PageID#: 12, ¶¶ 56-57.
C. Defendants’ Motions for Summary Judgment
Defendants Patriot and Warren move the Court to enter summary judgment against
FreshWater on the ground that FreshWater does not have standing to sue—that is, that the
litigation did not present a true “case” or “controversy” within the meaning of Article III, Section
2, of the U.S. Constitution, and the Court therefore lacks subject-matter jurisdiction over the
dispute. Three types of “standing” are relevant to Defendants’ motions: (1) prudential standing,
see Assoc. Of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970); (2)
organizational standing, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 181 (2000); and (3) constitutional standing, see Lujan v. Defenders of Wildlife, 504
U.S. 555 (1992).
Defendants argue that FreshWater does not have standing to sue because (1) its lawsuit is
not authorized by CWA; (2) it does not demonstrate that it has any members who are affected by
Defendants’ water-treatment operation; (3) even if it does have affected members, those

1

TDS (total dissolved solids) is a measurement of inorganic salts, organic matter,
and other dissolved materials in water. ECF No. 1 at PageID#: 18, ¶ 90. TDS can
increase the salinity and change ionic composition of water and the toxicity of individual
ion, which can limit biodiversity, and pose challenges to reducing bromide levels. Id.
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members do not demonstrate any injury in fact; (4) even if it does have injured members, their
injuries were not caused by Defendants’ water-treatment operation; and (5) even if it does have
injured members whose injuries were so caused, their injuries are not redressable through judicial
action. ECF Nos. 44, 46.
II. Standard of Review
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure materials on file, and any affidavits show “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);
see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required
to file affidavits or other similar materials negating a claim on which its opponent bears the
burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).
Once the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely
on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be
resolved by a jury.”2 Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995). “[I]n

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FreshWater demands a jury trial. ECF No. 1 at PageID#: 1. Patriot denies that
Freshwater is entitled to a jury trial on all issues, ECF No. 17 at PageID#: 278, and
Warren takes no position on the issue in its answer, see ECF No. 16. Whether
(continued...)
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response to a summary judgment motion, a plaintiff cannot rely on ‘mere allegations’ with
respect to each standing element, ‘but must set forth by affidavit or other evidence specific facts,
which for purposes of the summary judgment motion will be taken to be true.’” McKay v.
Federspiel, 823 F.3d 862, 867 (6th Cir. 2016) (quoting Lujan, 504 U.S. at 561) (internal
quotation marks omitted).
A fact is “material” only if its resolution will affect the outcome of the lawsuit. Scott v.
Harris, 550 U.S. 372, 380 (2007). To determine whether a factual dispute is “genuine,” the
Court assesses whether the evidence is such that a reasonable jury could find that the non-moving
party is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(“[S]ummary judgment . . . will not lie . . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”) Id. If a factual dispute regarding the plaintiff’s
standing persists through trial, that dispute is resolved by a jury. Lujan, 504 U.S. at 561.
III. Law and Analysis
It is the plaintiff’s burden to satisfy the court of its jurisdiction over the matter. Lujan,
504 U.S. at 561. Because standing is “an indispensable part of the plaintiff’s case” that must be
proved with evidence, id., a standing-based challenge is necessarily more rigorous at the
summary-judgment stage than, say, at the 12(b)(6) motion-to-dismiss stage. Compare United
States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687-90
(1973) (standing satisfied at 12(b)(6) stage because plaintiff’s members claimed to use and enjoy

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(...continued)
FreshWater is entitled to a jury trial is not before the Court in these motions, see ECF
Nos. 44, 46, and the Court makes no ruling on the issue in this Order. Any reference to a
“jury” in this Order refers to the ultimate factfinder, whether that is a jury or the Court.
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the national parks in Washington, D.C., area), with Sierra Club v. Morton, 405 U.S. 727, 734-35
(1972) (standing not satisfied at summary-judgment stage because plaintiff could not prove that
any of its members actually used and enjoyed Mineral King Valley and Sequoia National Park).
In this case, both summary judgment motions were filed well before discovery was
complete.3 As a result, FreshWater was necessarily limited in the type and quantity of evidence it
could put forward to resist summary judgment. The parties did not file a joint stipulation of
facts.
A. Admissibility of Expert Affidavits
Typically, when standing is at issue, it should be decided first. In this case, resolving the
questions on standing requires the Court to first determine whether the affidavits of purported
experts are admissible. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998).
To support its opposition to summary judgment, FreshWater cites four affidavits, specifically,
those of standing witness Thomas Smith (ECF No. 43-3), FreshWater Managing Director Leatra
Harper (ECF No. 48-1), natural-resources expert Even Hansen (ECF No. 48-2), and
environmental-science expert Marc Glass (ECF No. 48-3). In their joint reply to FreshWater’s
opposition, Defendants ask the Court to strike the Hansen and Glass affidavits because, they
argue, those affidavits do not conform with the requirements of Fed. R. Civ. Pro. 56. ECF No.
50 at PageID#: 630-32.

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According to the Court’s Order issued on January 25, 2018, the fact discovery
cutoff was to occur on July 5, 2018; the cutoff date for Plaintiff’s expert reports was May
3, 2018; the cutoff date for Defendants’ expert reports was May 31, 2018; and responsive
reports were due on June 4, 2018, and July 2, 2018, respectively. That schedule has since
been enlarged. ECF No. 55. Defendants’ motions were filed on April 4, 2018, and April
11, 2018, respectively. ECF Nos. 44, 46.
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Defendants advance two arguments in support of that request, both arising under Rule
56(c)(4). Pursuant to Rule 56(c)(4), a court may only consider evidence at the summaryjudgment stage that will ultimately be admissible at trial. Defendants argue that the Hansen and
Glass affidavits are not admissible evidence because, first, Hansen and Glass have not been
qualified as experts under Fed. R. Evid. 702, and, second, the Hansen and Glass affidavits are not
based on “personal knowledge,” as that term is used in Fed. R. Civ. Pro. 56(c)(4). The Court
addresses each argument in turn. Neither is well taken.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999), Rule 702 imposes on the Court an
obligation to ensure that all expert testimony is both relevant and reliable. For that reason, the
Court must ensure an expert witness is qualified before allowing the jury to hear his testimony.
Expert testimony is admissible only if the expert’s purported qualifications survive the rigors of
the Court’s Rule 702 inquiry.
That kind of analysis should be imitated when assessing admissibility for purposes of
Rule 56(c)(4), but ordinarily it cannot be perfectly replicated. Rule 56(c)(4) is not a perfect
substitute for adversarial motion practice. If Defendants genuinely took issue with Hansen and
Glass’s expert qualifications, they could have pointed to specific concerns about their expertise
or methodology. They remain entitled to challenge Hansen and Glass’s qualifications through
motions in limine as proceedings continue.
For the moment, however, the Court finds nothing objectionable about Hansen and Glass
being presented as experts. According to the facts stated in their affidavits, both are welleducated and experienced in their respective fields, and both their fields are relevant to the
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litigation. See ECF No. 48-2 at PageID#: 616, ¶¶ 1-3; ECF No. 48-3 at PageID#: 621, ¶¶ 1-3.
Both Hansen and Glass familiarized themselves with appropriate literature. ECF No. 48-2 at
PageID#: 616-17, ¶¶ 4-6, ECF No. 48-3 at PageID#: 621-22, ¶¶ 4, 7, 8. Defendants do not
challenge their education, expertise, or methodology—they simply charge that “the legitimacy of
their expertise has not been explored.” ECF No. 50 at PageID#: 631. For purposes of
admissibility under Rule 56(c)(4), the Court tentatively rules that Hansen and Glass are experts in
their respective fields.
Defendants also argue that, even if Hansen and Glass are experts, their affidavits should
nevertheless be stricken because they are not based on “personal knowledge.” See Fed. R. Civ.
Pro. 56(c)(4). They assert that the Hansen and Glass affidavits “are really ‘expert’ opinions
masquerading as factual testimony.” ECF No. 50 at PageID#: 631. They cite three cases from
the Sixth Circuit, all suggesting that affidavits must be stricken if based on “statement[s] of
belief.”4 ECF No. 50 at PageID#: 631.
To equate expert testimony with a “statement of belief” misapprehends the nature of
expert testimony.
In applying the standard requirements for affidavits or declarations, ‘personal
knowledge’ for experts does not mean that the expert must have the type of
proximity, familiarity, or involvement with the facts that would ordinarily be
expected of a percipient witness. Rather, the expert must have actually engaged in
an examination of the case and its issues but may, unlike a fact witness, rely on

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The cases cited by Defendants have nothing to do with expert testimony. Alpert
v. United States, 481 F.3d 404, 409 (6th Cir. 2007); Ondo v. City of Cleveland, 795 F.3d
597, 604 (6th Cir. 2015); and Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir.
2009) discuss lay witness attestations in which the affiant testified based on “belief” or
“personal knowledge and belief.”
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posited facts or on inadmissible material (such as scholarly work or empirical data
that is technically hearsay) . . . .
Moore’s Federal Practice - Civil § 56.94 (2018). The Sixth Circuit agrees. In Monks v. Gen.
Elec. Co., a products liability claim about a military helicopter, an expert affidavit was
admissible at the summary-judgment stage because the expert “based his conclusions on
depositions, government documents, official Army reports, and historical data of the helicopter.”
919 F.2d 1189, 1192 (6th Cir. 1990). The court in Monks emphasized that an expert, in contrast
to a lay witness, gains “personal knowledge” for purposes of Rule 56(c)(4) by familiarizing
himself with the record and other relevant materials. Id. A contrary conclusion would seemingly
eliminate expert testimony from summary-judgment briefing altogether.
In this case, both Hansen and Glass familiarized themselves with the record and other
relevant material, thereby gaining the personal knowledge necessary to testify, and they applied
their education and professional experience to arrive at a conclusion. ECF No. 48-2 at PageID#:
616-17, ¶¶ 4-6, ECF No. 48-3 at PageID#: 621-22, ¶¶ 4, 7, 8. The Court will therefore consider
the expert affidavits.
B. Standing
Defendants raise several arguments to support its position that FreshWater lacks standing
to sue. Its arguments fall into three categories: (1) challenging “prudential standing,” (2)
challenging “organizational standing,” and (3) challenging “constitutional standing.”
1. Prudential Standing
An individual plaintiff may sue under a federal statute only if Congress creates a private
right of action. See Alexander v. Sandoval, 532 U.S. 275, 279-80 (2001). Even when Congress
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unequivocally creates a private right of action, a plaintiff may maintain a lawsuit only if her
interest is “is arguably within the zone of interests to be protected or regulated by the statute . . .
in question.” Data Processing, 397 U.S. at 153.
In its reply brief, Patriot argues that, although CWA authorizes citizens to maintain a
private right of action for a violation of an “effluent standard or limitation,” 33 U.S.C. §
1365(a)(1)(A), FreshWater nevertheless lacks standing because it does not identify any “effluent
standard or limitation” that Patriot has violated. ECF No. 50 at PageID#: 633. Patriot did not
raise this argument in its motion. See ECF No. 44. “The Sixth Circuit repeatedly has recognized
that arguments raised for the first time in a party’s reply brief are waived.” United States v. 2007
BMW 335i Convertible, VIN:WBAWL73547PX47374, 648 F. Supp. 2d 944, 952 (N.D. Ohio
2009) (quoting Irwin Seating Co. v. Int’l Bus. Machs. Corp., 2007 WL 518866, at *2 n.2 (W.D.
Mich. Feb. 15, 2007).
In any event, Patriot’s argument is unpersuasive. CWA authorizes individuals to act as
private attorneys general, Sierra Club v. Pena, 915 F. Supp. 2d 1381, 1392 (N.D. Ohio 1996),
“to abate pollution when the government cannot or will not command compliance.” Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 62 (1987). Patriot is a
regulated entity that discharges effluent into the Mahoning River. See ECF No. 1-4. By the
terms of the AO governing Patriot’s discharges, “Patriot Energy Partners, LLC shall comply with

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the effluent limitations, monitoring requirements, and reporting requirements for Oil and Gas as
follows: [table specifying limits on pollutant limits].” Id. at PageID#: 79-80.5
Whether Patriot in fact exceeded its allowable effluent limits is a merits question, but
Patriot is wrong to suggest that CWA does not provide a statutory basis for FreshWater’s lawsuit.
CWA authorizes private plaintiffs to sue regulated entities when they allege a “violation of . . . an
effluent standard or limitation.” 33 U.S.C. § 1365(a)(1)(A). Perhaps more to the point, CWA
authorizes lawsuits by private plaintiffs when they allege a “violation of . . . an order issued by
the Administrator or a State with respect to such a standard or limitation.” Id. § 1365(a)(1)(B).
Given CWA’s expansive citizen-suit provision and the express effluent limitations placed
on Patriot by the Warren AO, the Court rules that FreshWater’s interest in enforcing Warren and
Patriot’s effluent discharge is well within the “zone of interests” protected by CWA.
2. Organizational Standing
Defendants argue that FreshWater lacks standing to sue on behalf of its members. ECF
No. 44 at PageID#: 554-55. “An association has standing to bring suit on behalf of its members
when [1] its members would otherwise have standing to sue in their own right, [2] the interests at
stake are germane to the organization’s purpose, and [3] neither the claim asserted nor the relief

5

It also reads, “Patriot Energy Partners, LLC shall comply with the effluent
limitations, monitoring requirements, and reporting requirements for Industrial as
follows: [table]. . . . Patriot Energy Partners LLC is limited on the daily discharge of
100,000 Gallons of Oil and Gas flow with Total Dissolved Solids (TDS) at a
maximum strength of 50,000 mg/L. These limitations are based on the permit
conditions in PTI 748163.” Id. at PageID#: 79-80.
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requested requires the participation of individual members in the lawsuit.” Laidlaw, 528 U.S. at
181.
FreshWater presents one standing witness, Thomas Smith. See ECF No. 43-3.
Defendants posit that FreshWater fails Laidlaw’s organizational-standing test for the following
reasons: (1) Thomas Smith is not a FreshWater member, (2) Smith could not otherwise sue in his
own right,6 and (3) the interests at stake in this litigation are not germane to FreshWater’s
purpose. ECF Nos. 44, 46.
First, is Smith a FreshWater member, and was he a member at the time this lawsuit was
initiated? See Laidlaw, 528 U.S. at 189. Defendants argue that Smith is not a member of
FreshWater because, in his deposition, he produced no documents to prove his membership, and
he does not pay membership dues. ECF No. 44 at PageID#: 556. They also suggest Smith is not
a member because, according to his deposition testimony, he has never been to a FreshWater
meeting, he does not know how many members FreshWater has, he does not know the names of
any of the organization’s officers, and he has not recreated with any other FreshWater members.
Id.
FreshWater counters with two affidavits. In Smith’s affidavit, he attests, “I am a member
of FreshWater Accountability Project, which I joined in 2017.” ECF No. 43-3 at PageID#: 547.
FreshWater also submits an affidavit of Leatra Harper, the founder and managing director of
FreshWater. ECF No. 48-1. She attests, “As Managing Director of FreshWater Accountability

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This argument is addressed below, under the heading “Constitutional Standing.”
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Project, it is known to me that Thomas Smith of Girard, Ohio is a member of FreshWater
Accountability Project.” Id. at PageID#: 608.
“[F]or purposes of the summary judgment motion,” the content of a plaintiff’s affidavit of
standing “will be taken to be true.” McKay, 823 F.3d at 867 (quoting Lujan, 504 U.S. at 561).
At most, Defendants’ contentions give rise to a factual dispute, which at this stage must be
resolved in FreshWater’s favor.
Defendants further contend that, even if Smith is a FreshWater member now, he was not
a FreshWater member at the commencement of the litigation. See Laidlaw, 528 U.S. at 189. The
lawsuit commenced on June 27, 2018. ECF No. 1. Attached to the Complaint was Smith’s
affidavit of standing. ECF No. 1-3. In his deposition, Smith testified that he believes he became
FreshWater member in Spring 2017, and that he was contacted about pursuing litigation against
Defendants a month or two after becoming a member. ECF No. 42-1 at PageID#: 450.
Defendants are entitled to try to persuade a jury that Smith was not in fact a FreshWater member
on June 27, 2018, see Lujan, 504 U.S. at 561 (allegations of standing must be “supported
adequately by the evidence adduced at trial”), but at the very least, its contentions create a
genuine dispute of material fact, which must be resolved in FreshWater’s favor at this stage.
Next, Defendants contend that FreshWater lacks organizational standing because its lone
standing witness, Thomas Smith, would not have standing to sue in his own right. ECF No. 44 at
PageID#: 557-564; ECF No. 46; see Laidlaw, 528 U.S. at 181. This argument is addressed
below, under the heading “Constitutional Standing.”

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Finally, Defendants argue that FreshWater lacks organizational standing because it has
not proved that the interests at stake in the litigation are germane to FreshWater’s purpose. ECF
No. 44 at PageID#: 564-65; see Laidlaw, 528 U.S. at 181. In her affidavit, FreshWater’s founder
and managing director attests that “FreshWater Accountability Project exists for the purpose of
protecting Ohio’s natural resources for future generations. ECF No. 48-1 at PageID#: 608. In his
deposition, Smith testified that FreshWater’s purpose is “to protect waters from being polluted
and that kind of thing.”7 ECF No. 42-1 at PageID#: 447. In this litigation, FreshWater asks the
Court to declare that Defendants have unlawfully polluted the Mahoning River and to enjoin
them from continuing to do so. ECF No. 1 at PageID#: 36-37. The Court rules that
FreshWater’s stated purpose is germane to that goal.
3. Constitutional Standing
Defendants’ final argument is that FreshWater lacks standing to sue because its sole
standing witness, Thomas Smith, does not meet the “irreducible minimum” requirements of
Article III, and therefore, the Court is constitutionally unable to entertain the lawsuit.
Constitutional standing has three requirements: (1) the plaintiff must have suffered a “concrete
and particularized,” “actual or imminent” injury in fact, (2) that injury must be “fairly traceable”
to the defendants’ conduct, and (3) it must be “likely . . . that the injury will be redressed by a
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Defendants argue that “‘[p]rotecting waters from being polluted’ is merely a
generalized grievance that does not give rise to standing.” ECF No. 44 at PageID#: 565.
That argument confuses the issues. Whether “protecting waters from being polluted” is a
“generalized grievance” pertains to whether FreshWater has suffered an injury in fact,
discussed at length in the “constitutional standing” analysis. Such an argument does not
pertain to the question whether an organization’s purpose is germane to any given
litigation.
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favorable [judicial] decision.” Lujan, 504 U.S. at 561. Defendants challenge FreshWater on all
three grounds. ECF No. 44.
a. Injury in Fact and Causation
FreshWater posits that Smith has suffered four cognizable injuries, including two
recreational injuries, one aesthetic injury, and one reputational injury. ECF No. 48 at PageID#:
594-602. Specifically, it argues that Defendants’ discharges injure Smith in that he feels he can
no longer kayak in parts of the Mahoning River, he feels he can no longer swim in the River, he
risks losing the ability to observe wildlife in the River because of the River’s high TDS levels,
and the River’s reputation risks being damaged. Id.
In his affidavit and deposition, Smith states that his recreational interest has been harmed
because he is disinclined to go kayaking in the part of the River near the discharge site.8 ECF
No. 42-1 at PageID#: 511, 516; see ECF No. 43-3 at PageID#: 549, ¶ 25. Article III recognizes
such recreational injuries. See Laidlaw, 528 U.S. at 181-83. In Laidlaw, the Supreme Court
recognized injury in fact for one standing witness because “he would like to fish, camp, swim,
and picnic in and near the river between 3 and 15 miles downstream from the facility, as he did
when he was a teenager, but would not do so because he was concerned that the water was
polluted by Laidlaw’s discharges.” Id. at 181-82. It recognized injury for another standing
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Defendants suggest that this injury allegation pertains only to Warren, not
Patriot, because Smith associates his kayaking concern with the discharge from the
Warren POTW discharges. ECF No. 50 at PageID#: 640. That distinction obscures the
relationship between Patriot and Warren. Warren’s POTW treats the effluent that Patriot
discharges, and after it treats the effluent, Warren discharges it into the Mahoning River.
ECF No. 1 at PageID#: 9, ¶ 42; ECF No. 19 at PageID#: 290. Warren’s discharge is
Patriot’s discharge. Smith’s injury allegation applies to both Defendants.
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witness because “he would like to fish in the river at a specific spot he used as a boy, but that he
would not do so now because of his concerns about Laidlaw’s discharges.” Id. at 182.
Defendants argue that Smith’s injury is more attenuated than the standing witnesses’
injuries in Laidlaw because he has never kayaked in that portion of the Mahoning River anyway.
ECF No. 50 at PageID#: 640-41. They argue, in essence, that Smith has no cognizable interest in
kayaking the portion of the River near the discharge site because he has never done so in the
past.9 The standing witnesses in Laidlaw, they say, were injured by the defendant’s river
discharge because they were forced to give up something they already had. Id. at PageID#: 641.
Defendants are mistaken, however. In Laidlaw, the Supreme Court recognized one standing
witness’s injury because “he had canoed approximately 40 miles downstream of the Laidlaw
facility and would like to canoe in the North Tyger River closer to Laidlaw’s discharge point, but
did not do so because he was concerned that the water contained harmful pollutants.” Laidlaw,
528 U.S. at 183. Taking Smith’s attestations as true, the facts in this case are indistinguishable
from the facts in Laidlaw. Accordingly, the Court finds that FreshWater’s standing witness
Thomas Smith has suffered an injury in fact, fairly traceable to Defendants’ discharges.
The Court also finds that Smith is injured by the risk to his ability to observe wildlife and
aquatic life.10 Smith testified that the high TDS rates in the Mahoning River caused by

9

In his deposition, Smith said, “That’s one section of the river that I hadn’t
[kayaked] yet; and, I wanted to do it, but when I found out about [the pollution], I
obviously didn’t want to do it.” ECF No. 42-1 at PageID#: 516.
10

Defendants distinguish between “wildlife” and “aquatic life” but do not explain
why such a distinction would be relevant to the standing inquiry. ECF No. 50 at
(continued...)
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Defendants’ discharges would harm the River’s aquatic life, and FreshWater argues that Smith
would be harmed in turn by his diminished ability to observe fish and other animals. See ECF
No. 42-1 at PageID#: 470; ECF No. 48 at PageID#: 596-97. FreshWater supports its theory
with expert attestations. See ECF Nos. 48-2; 48-3. In his affidavit, Evan Hansen explains that
increased TDS level can have “adverse impacts to aquatic life, including reduced rates of
fertilization for minnows” and “hinder reproduction by suffocating eggs and larvae or otherwise
disrupting essential habitat.” ECF No. 48-2 at PageID#: 618, ¶¶ 23, 28. He also explains that
“[i]ncreases in ammonia,” also discharged by Defendants into the Mahoning River, “can lead to
toxic buildup in the blood and tissues of aquatic organisms, decreasing their health, and
potentially causing death.” Id. at PageID#: 619, ¶¶ 32-33.
The Supreme Court has recognized precisely this kind of aesthetic injury. See Lujan, 504
U.S. at 562-63 (“Of course, the desire to use or observe an animal species, even for purely
esthetic purposes, is undeniably a cognizable interest for purpose of standing.”). Defendants do
not contend that Smith does not “use or observe” aquatic species in the Mahoning River.
Instead, they argue that Smith’s stated injury is “speculative,” not “actual or imminent.” ECF
No. 50 at PageID#: 642-43.

10

(...continued)
PageID#: 643. The Court declines to draw the distinction. In any case, even if the ability
to observe aquatic life were somehow less valuable than the ability to observe other
animal life, the distinction would not matter because, according to FreshWater’s expert
affidavit, certain harmful elements can “bioaccumulate up the food chain.” ECF No. 48-3
at PageID#: 622, ¶ 13.
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The Court disagrees. It is true that FreshWater presents no evidence that the River’s
aquatic life has actually diminished. But the Hansen affidavit persuasively suggests that harm to
the River’s aquatic life (and thus, aesthetic injury to Smith) is imminent. Whereas harm to
minnows “can occur at TDS levels as low as 275 mg/L,” downstream TDS levels in the River
“regularly exceed 300 mg/L” and “have been measured as high as 780 mg/L.” ECF No. 48-2 at
PageID#: 618, ¶¶ 22-23. Hansen also attests that, based on the material he has reviewed, “Patriot
is . . . the largest contributor of total dissolved solids (TDS) from significant industrial users
discharging to the Warren POTW. TDS coming from Patriot is in extremely high
concentrations.” ECF No. 48-2 at PageID#: 617, ¶ 2. Taken as true, FreshWater’s affidavits set
out specific allegations that create a genuine dispute of material fact about whether Smith’s
posited aesthetic injury, fairly traceable to Defendants’ alleged unlawful discharges into the
Mahoning River, is imminent. See Lujan, 504 U.S. at 561; cf. Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1549 (2016) (injury-in-fact requirement can sometimes be satisfied by showing risk of
future harm or harm that is difficult to prove or measure).
The Court finds that, at this stage of proceedings, Smith satisfies the injury-in-fact
obligation. It is therefore unnecessary to decide whether his other stated injuries give rise to
constitutional standing.
b. Redressability
Defendants argue that, even if Smith has suffered an injury in fact, fairly traceable to
Defendants’ conduct, that injury is not redressable in this litigation. ECF No. 50 at PageID#:

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644-46. Neither an injunction nor imposition of civil penalties, they argue, would cure Smith’s
injuries.
First, Defendants argue that, because Patriot is not currently operating and has not
operated since before the commencement of this litigation, an injunction would accomplish
nothing.11 Id. at PageID#: 645 (“[T]here is no injunctive relief that this Court can issue that
would redress the now-terminated discharge.”). In this argument, the doctrines of standing and
mootness converge.
Voluntary cessation of allegedly unlawful activity does not always moot an injunctive
lawsuit. In Laidlaw, the wastewater-facility defendant shut down during the pendency of the
lawsuit. 528 U.S. at 193. The Supreme Court noted that “[t]he facility closure . . . might moot
the case,” but only if its cessation “made it absolutely clear that Laidlaw’s permit violations
could not reasonably be expected to recur.” Id. (litigation persisted despite the defendant’s
mootness argument). The voluntary-cessation exception is a commonsense carve-out of the
mootness doctrine. If a defendant could terminate the litigation against it simply by closing its
doors for a week or a year with no guarantees of permanent cessation of unlawful activity, it
would be impossible for any plaintiff to obtain lasting relief. Defendants state that Patriot “is not
operating” and “has not operated since before [FreshWater] filed its lawsuit.” ECF No. 50 at
PageID#: 645. Defendants give no assurances that Patriot’s cessation is anything but temporary.
Their argument therefore fails.
11

This argument was also raised for the first time in Defendants’ reply brief.
Going forward, the Court advises Defendants that failure to raise arguments in a motion
or opposition will be treated as waiver of those arguments.
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Second, Defendants contend that it would do FreshWater’s members no good to enjoin
Defendants from “exceeding their permit limits” because Warren “does not have any permit limit
for salt/TDS.”12 Id. at PageID#: 645. This argument mischaracterizes FreshWater’s prayers for
relief. FreshWater asks the Court to “[e]njoin Defendants from further violations of the Clean
Water Act,” to “issue [an] injunction that prevents Patriot from discharging to the Warren POTW
until such operation is lawful . . .” and to “require . . . [that] Warren issue an Administrative
Order requiring radiological testing to be conducted on Patriot’s discharge into the Warren Sewer
. . . .” ECF No. 1 at PageID#: 36-37. FreshWater’s Complaint does not narrowly ask the Court
to enjoin Defendants from “exceeding their permit limits,” as Defendants suggest. Both
Defendants are regulated entities, and FreshWater seeks to enforce Defendants’ statutory and
regulatory obligations. FreshWater’s claim is not rendered irredressable by Defendants’ narrow
characterization.
Finally, Defendants argue that Smith (and, therefore, FreshWater) has no standing to
pursue civil penalties because such penalties would not redress his injuries. Penalties are paid to
the government, not to litigants. ECF No. 50 at PageID#: 645-46. Again, however, Defendants’
argument runs contrary to the Supreme Court’s ruling in Laidlaw. In Laidlaw, citizen plaintiffs
had standing to pursue civil penalties against a polluter under CWA. 528 U.S. at 185-86. Civil
penalties do not compensate private plaintiffs, the Court reasoned, but they do deter defendants
from persisting in unlawful, injurious conduct. Id. at 185. “It can scarcely be doubted that, for a
12

To the extent this contention is really an argument that FreshWater fails to state
a claim on which relief can be granted, the Court has already denied such a motion as to
Warren, see ECF No. 59, and Patriot has not filed any such motion.
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plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the
time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a
form of redress.” Id. at 185-86.
Defendants fail to show that Thomas Smith has not suffered one or more injuries in fact,
fairly traceable to Defendants’ allegedly unlawful conduct, which would be redressable by a
favorable judicial decision. For that reason, the Court rules that Thomas Smith meets the
constitutional requirements of Article III, and he is well positioned to sue Defendants for his
injuries in his own right.
IV. Conclusion
Because FreshWater’s interests in this litigation are “arguably within the zone of
interests” protected by CWA, it has “prudential standing” to sue Defendants. Because
FreshWater presents admissible evidence showing that Thomas Smith is a FreshWater member
and that Thomas Smith is constitutionally positioned to sue Defendants in his own right,
FreshWater has “organizational standing” to sue Defendants for their alleged violations of CWA.
For those reasons, the Court rules that Defendants’ motions for summary judgment (ECF Nos.
44, 46) are denied.

IT IS SO ORDERED.

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

October 9, 2018
Date

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