IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`CENTER FOR BIOLOGICAL
`DIVERSITY and SIERRA CLUB,
`
`
`Plaintiffs,
`
`v.
`
`
`UNIVERSITY OF NORTH
`CAROLINA AT CHAPEL HILL,
`
`
`Defendant.
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`
`
`
`
`
`
`
`1:19-CV-1179
`
`MEMORANDUM OPINION AND ORDER
`
`Catherine C. Eagles, District Judge.
`
`The defendant University of North Carolina operates multiple sources of air pollution
`
`that are regulated by the Clean Air Act. Pursuant to permits issued by the North Carolina
`
`Division of Air Quality, UNC is authorized to emit limited amounts of certain air pollutants.
`
`The plaintiffs, Center for Biological Diversity and Sierra Club, contend that UNC has violated
`
`various permit conditions related to the recordkeeping, reporting, monitoring, inspection, and
`
`operation of some of its major air pollution sources.
`
`UNC is entitled to summary judgment on all nine claims. The plaintiffs lack standing
`
`to bring Claims Two through Eight, and the uncontroverted extrinsic evidence as to Claim
`
`One shows that the ambiguous heat input capacity term of Section 2.1.A in the permit is not
`
`an enforceable limit. As for Claim Nine, the undisputed evidence shows that UNC’s violation
`
`of Section 2.2 was not repeated. UNC’s motion for summary judgment will be granted and
`
`the plaintiffs’ cross-motion will be denied.
`
`
`
`
`
`
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 1 of 24
`
`

`

`I.
`
`The Pollution Sources and UNC’s Permit
`
`UNC operates multiple major stationary sources of air pollution that are regulated by
`
`Title V of the Clean Air Act on its Chapel Hill campus. Doc. 58 at § I ¶ 1; Doc. 42-10 at 7–
`
`13. UNC must operate these stationary pollution sources in compliance with an air pollution
`
`permit issued by North Carolina’s Division of Air Quality. 42 U.S.C. §§ 7661a(a), 7661c(a);
`
`40 C.F.R. § 70.6(a)(1). UNC has operated its major stationary air pollution sources under four
`
`different permits over the relevant time period, identical in relevant part. See Docs. 42-7, 42-
`
`8, 42-9, 42-10. For ease of reference, the Court will cite Permit No. 03069T35 as the
`
`operative permit. Doc. 42-10.1
`
`The permit authorizes UNC to use coal, natural gas, No. 2 fuel oil, wood, and torrified
`
`wood to fire two circulating fluidized combustion boilers, identified in the permit as Boilers 6
`
`and 7.2 See Doc. 42-10 at 7, 14–24. The permit also authorizes UNC to operate an emergency
`
`diesel-fired generator, identified as ES-Gen-12. Doc. 42-10 at 10, 48. These air pollution
`
`sources emit a variety of air pollutants, including particulate matter (PM), sulfur dioxide
`
`(SO2), Carbon Monoxide (CO), Hydrochloric acid (HCl), Mercury (Hg), and nitrogen oxides
`
`(NOx). Doc. 42-10 at 14–15; Doc. 42-11 at 2; Doc. 43-5 at 1.
`
`
`
`
`
`
`1 During the course of this litigation, DAQ issued Permit No. 03069T36 to replace Permit No.
`0306T35, which became effective August 5, 2021, after briefing was completed. Doc. 59-1 at 12;
`Doc. 58 at § I ¶ 6;
`
` 2
`
` Boilers 6 and 7 are also identified more specifically in the permit as ES-001 and ES-002,
`respectively.
`
`
`
`2
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 2 of 24
`
`

`

`II.
`
`Citizen Suits under the Clean Air Act
`
`In 1990, Congress amended the Clean Air Act to authorize citizen suits against any
`
`person “alleged to have violated (if there is evidence that the alleged violation has been
`
`repeated) or to be in violation of . . . an emission standard or limitation under this
`
`chapter . . . .” 42 U.S.C. § 7604(a)(1). An “emission standard or limitation under this
`
`chapter” includes “any. . . standard, limitation, or schedule established under any permit
`
`issued . . . under any applicable State implementation plan approved by the [EPA]
`
`Administrator, any permit term or condition, and any requirement to obtain a permit as a
`
`condition of operations.” Id. § 7604(f)(4); Nat’l Parks Conservation Ass’n. v. Tenn. Valley
`
`Auth., 480 F.3d 410, 418 (6th Cir. 2007).
`
`An action alleging wholly past violations can be maintained if the plaintiff asserts at
`
`least two violations of the same standard, even if the violations are not ongoing. See Env’t
`
`Tex. Citizen Lobby v. ExxonMobil Corp., 968 F.3d 357, 365 (5th Cir. 2020) .
`
`III. Standing
`
`UNC contends that the plaintiffs lack standing to bring their claims because they have
`
`not shown concrete injuries traceable to the alleged violations. See Doc. 40 at 17–27; Doc. 46
`
`at 7–14; Doc. 50 at 6–13. The Court also has an “independent duty to assure that standing
`
`exists.” Ctr. for Biological Diversity v. EPA, 90 F. Supp. 3d 1177, 1186 (W.D. Wa. 2015)
`
`(relying on Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009)). Plaintiffs must
`
`demonstrate standing for each claim, for each form of relief sought, see DaimlerChrysler
`
`Corp. v. Cuno, 547 U.S. 332, 352 (2006), and at each stage of the litigation. See Lujan v.
`
`Defs. Of Wildlife, 504 U.S. 555, 561 (1992).
`
`
`
`3
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 3 of 24
`
`

`

`Organizational plaintiffs, like the Center and the Sierra Club, can show standing to sue
`
`in two ways: (1) on their own behalf (organizational standing) or (2) on behalf of their
`
`members (representational or associational standing). Guilford Coll. v. McAleenan, 389 F.
`
`Supp. 3d 377, 388 (M.D.N.C. 2019) (citing White Tail Park, Inc. v. Stroube, 413 F.3d 451,
`
`458 (4th Cir. 2005)). Here, the plaintiffs rely on representational standing to sue on behalf of
`
`individual members Sonia Desai and Bridget Farrell.3
`
`An organization has representational standing if “at least one of its ‘identified’
`
`members ‘would otherwise have standing to sue in their own right, the interests at stake are
`
`germane to the organization’s purpose, and neither the claim asserted nor the relief requested
`
`requires the participation of individual members in the lawsuit.’” Outdoor Amusement Bus.
`
`Ass’n, Inc. v. Dep’t of Homeland Sec., 983 F.3d 671, 683 (4th Cir. 2020) (quoting Friends of
`
`the Earth, Inc. v. Laidlaw Env’t. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)); Guilford
`
`Coll., 389 F. Supp. 3d at 388.
`
`UNC does not challenge the existence of the latter two factors, and the Court finds that
`
`the interests at stake are germane to the purposes of these two organizations and that neither
`
`the claims asserted, nor the relief requested, require the participation of individual members
`
`beyond their role as witnesses. Both organizations are conservation groups committed to
`
`
`3 In the briefing, the Center and the Sierra Club relied only on representational standing. See Doc.
`42 at 10–14; Doc. 48 at 8–14; Doc. 51 at 6–12. At oral argument, the plaintiffs asserted for the first
`time that they had standing because of their own injuries. Minute Entry 6/30/2021. The Court does
`not ordinarily consider arguments raised for the first time at oral argument. See Deseret Trust Co. v.
`Unique Investment Corp., No. 2:17-cv-00569, 2018 WL 8110959, at *4 (D. Utah July 3, 2018)
`(collecting cases); see also LR 7.3(h) (prohibiting parties from raising new arguments in a reply brief).
`
`
`
`
`4
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 4 of 24
`
`

`

`preservation and protection of the environment and its ecosystems and resources. Doc. 42 -5 at
`
`¶ 2 (Center for Biological Diversity); Doc. 42-4 at ¶¶ 2–3 (Center for Biological Diversity and
`
`the Sierra Club). UNC challenges the first requirement, contending that the individual
`
`members do not have standing to sue in their own right. An individual has standing “in their
`
`own right” if they can show an “injury-in-fact” that is “fairly traceable” to the defendant’s
`
`conduct and is “likely to be redressed by a favorable decision.” Lujan, 504 U.S. at 560–61
`
`(cleaned up).
`
`The plaintiffs’ claims can be usefully divided into “recordkeeping” and “operating”
`
`claims. The Court will consider standing for each group separately. See TransUnion LLC v.
`
`Ramirez, 141 S. Ct. 2190, 2208 (2021) (“[S]tanding is not dispensed in gross; rather plaintiffs
`
`must demonstrate standing for each claim that they press . . . .”).
`
`A. Claims Related to Recordkeeping, Reporting, Inspecting, and Monitoring
`
`Claims Two through Eight assert various failures to maintain records,4 inspect
`
`equipment,5 report permit deviations to government authorities,6 and monitor pollution
`
`controls,7 as required by UNC’s permit. To demonstrate that Ms. Desai and Ms. Farrell
`
`
`4 Claims Two, Five, and Six. Doc. 33 at ¶¶ 40–42, 47–50.
`
` Claims Three and Four. Id. at ¶¶ 43–46.
`
` Claim Seven. Id. at ¶¶ 51–54.
`
` Claim Eight. Id. at ¶¶ 55–57.
`
`5
`
` 5
`
` 6
`
` 7
`
`
`
`
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 5 of 24
`
`

`

`suffered an “injury-in-fact,” the plaintiffs must show a concrete injury; it may be tangible8 or
`
`intangible,9 but in every case, it “must be de facto; that is, it must actually exist.” Spokeo, Inc.
`
`v. Robins, 136 S. Ct. 1540, 1548 (2016) (cleaned up).
`
`“Article III standing requires a concrete injury even in the context of a statutory
`
`violation.” Id. at 1549. “Only those plaintiffs who have been concretely harmed by a
`
`defendant’s statutory violation may sue that private defendant over that violation in federal
`
`court.” TransUnion, 141 S. Ct. at 2205. While Congress’s views are “instructive” in deciding
`
`whether a harm is sufficiently concrete to qualify as an injury-in-fact, a plaintiff does not
`
`automatically satisfy the injury-in-fact requirement when a statute creates a private cause of
`
`action. See Spokeo, 136 S. Ct. at 1549.
`
`The plaintiffs asserted at oral argument that UNC’s various failures to record, inspect,
`
`report, and monitor its emission sources concretely injured Ms. Desai and Ms. Farrell by
`
`exposing them to illegal and harmful pollutants. Minute Entry 6/30/2021. The plaintiffs offer
`
`no evidence to support this contention. Rather, they ask the Court to infer harm from
`
`excessive emissions based on the fact that these tasks were never completed, just as the permit
`
`itself authorizes the North Carolina DAQ to presume that, had they been completed, the
`
`
`8 See, e.g., Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 772 (2000)
`(loss of money); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1012 & n.3 (1992) (loss of real
`property).
`
` 9
`
` See, e.g., Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989) (informational harm);
`Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (aesthetic harm).
`
`
`
`
`6
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 6 of 24
`
`

`

`results would have shown emissions in excess of those authorized by the permit.10 The
`
`plaintiffs do not offer any case law to support this stacked-inference approach, which amounts
`
`to nothing more than “a bare procedural violation, divorced from any concrete harm.” Baehr
`
`v. Creig Northrop Team, P.C., 953 F.3d 244, 258 (4th Cir. 2020) (citing Spokeo, 136 S. Ct. at
`
`1549).
`
`In the alternative, the plaintiffs contend that Ms. Desai and Ms. Farrell were injured
`
`because UNC’s failure to comply with the monitoring and reporting requirements prevents
`
`them from knowing whether UNC is complying with emissions requirements and that this
`
`causes harm. See Doc. 42-4 at ¶¶ 10–11 (testifying that failure to comply with permit
`
`requirements makes “it difficult if not impossible to know whether permit requirements are
`
`being met.”); Doc. 42-5 at ¶ 9 (describing a “professional interest in seeing the successful
`
`implementation of beneficial air quality initiatives.”). But they fail to address the standards
`
`set by the Supreme Court for informational injuries. See Fed. Election Comm’n v. Akins, 524
`
`U.S. 11, 21 (1998) (recognizing an informational injury for standing). They do not identify a
`
`statutory source that provides a right to this information, nor do they explain how denial of
`
`that information creates a real harm with an adverse effect that Congress sought to prevent by
`
`requiring disclosure. Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345–46 (4th Cir.
`
`
`10 See, e.g., Doc. 42-10 at p. 34, ¶ 2.d.iii (“The Permittee shall be deemed in noncompliance of
`15A NCAC 02D .0521 if these records are not maintained.”).
`
`
`
`
`7
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 7 of 24
`
`

`

`2017). The evidence in the case on which they rely11 was much more specific than the
`
`generalized concerns here.
`
`The plaintiffs have not made a sufficient showing that Ms. Desai or Ms. Farrell have
`
`suffered a concrete injury as a result of any recordkeeping, reporting, monitoring, or
`
`inspecting violations. In the absence of this showing, UNC is entitled to summary judgment
`
`as to the plaintiffs’ claims raising these violations, designated in the second amended
`
`complaint as Claims Two through Eight.
`
`B. Claims Related to Unauthorized Operation of Pollution Sources
`
`Claims One and Nine assert that UNC operated certain stationary pollution sources,
`
`such as its boilers and generators, in ways that were not authorized by the permit, which
`
`resulted in the unauthorized emission of harmful air pollutants in areas frequently visited by
`
`the plaintiffs’ members. As to Claim One, the plaintiffs contend that UNC’s Boilers 6 and 7
`
`burned fuel sources in excess of their permitted hourly heat input capacity during 269
`
`individual hours between May 1, 2019, and May 16, 2021. Doc. 42 at 21. As to Claim Nine,
`
`the plaintiffs contend that UNC violated a specific permit condition when it operated one of its
`
`diesel-fired emergency generators concurrently with two other major pollution sources on
`
`September 20, 2018. Id. at 25. The plaintiffs contend that Ms. Desai and Ms. Farrell have
`
`suffered injuries-in-fact from “reasonable concerns” that their health, recreational, and
`
`
`11 Sierra Club v. Simkins Indus., 847 F.2d 1109, 1112–13 (4th Cir. 1988), abrogation recognized
`on other grounds by Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 149 F.3d 303, 306
`(4th Cir. 1998), itself rev’d sub nom., Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
`528 U.S. 167 (2000).
`
`
`
`8
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 8 of 24
`
`

`

`aesthetic interests have been compromised by UNC’s unauthorized operation of these
`
`emission sources. Id. at 11–12.
`
`1. Injury-in-Fact
`
`
`
`As is relevant here, the purpose of the Clean Air Act is “to protect and enhance the
`
`quality of the Nation’s air resources so as to promote the public health and welfare and the
`
`productive capacity of its population.” 42 U.S.C. § 7401(b)(1). Consistent with that purpose,
`
`the Act makes the Environmental Protection Agency responsible for developing acceptable
`
`levels of airborne emissions, known as National Ambient Air Quality Standards (NAAQS),
`
`“the attainment and maintenance of which . . . are requisite to protect the public health.” Id. §
`
`7409(b)(1).
`
`“To date, EPA has issued NAAQS for six pollutants: sulfur dioxide, particulate matter,
`
`nitrogen dioxide, carbon monoxide, ozone, and lead.” Util. Air Reg. Grp. v. EPA, 573 U.S.
`
`302, 308 (2014); see generally 40 C.F.R. § 50 (2021) et seq.; NAAQS Table, ENV. PROT.
`
`AGENCY, https://www.epa.gov/criteria-air-pollutants/naaqs-table (last visited Aug. 26, 2021).
`
`NAAQS are subdivided into Primary NAAQS, 42 U.S.C. § 7409(b)(1), and Secondary
`
`NAAQS, id. § 7409(b)(2). Primary NAAQS define a level of air quality intended, “with an
`
`adequate margin of safety, to protect the public health,” while Secondary NAAQS reflect the
`
`level “necessary to protect the public welfare from any known or anticipated adverse eff ects of
`
`a pollutant.” See 40 C.F.R. § 50.2(b).
`
`
`
`Depending in part on the fuel source used, the boilers and generators at issue in Claims
`
`One and Nine emit sulfur dioxide, particulate matter, nitrogen dioxide, or carbon monoxide,
`
`the amounts of which are regulated by the permit. Doc. 58 at § 1 ¶ 4; see also Doc. 42-10 at
`
`
`
`9
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 9 of 24
`
`

`

`14–15, 52 (showing emissions standards applicable to ES-001, ES-002, and ES-Gen-12).
`
`Pollutants such as particulate matter, nitrogen oxides, and sulfur dioxide can cause respiratory
`
`illnesses in humans, including asthma. Doc. 58 at § I ¶ 5; Doc. 51 at 10 n.3. It is thus
`
`undisputed that when in operation, UNC’s boilers and generators emit pollutants that, in
`
`concentration, are potentially harmful to public health and welfare.
`
`Ms. Desai and Ms. Farrell have health, aesthetic, and recreational interests in air quality
`
`in Chapel Hill and the areas around UNC’s campus. Both individuals frequently visit and
`
`participate in recreational activities on West Franklin Street in Chapel Hill, and they plan to
`
`continue to do so. Doc. 42-4 at ¶¶ 1, 6, 9; Doc. 42-5 at ¶¶ 1, 3–6. Ms. Desai suffers from
`
`asthma, for which she “carr[ies] medication . . . at all times in order to manage asthma attacks
`
`that are triggered by environmental exposures” and for which she has been hospitalized and
`
`occasionally needs the emergency room. Doc. 42-5 at ¶ 7. Cleaner air in the Chapel Hill and
`
`the neighboring Carrboro areas would “trigger fewer –and less severe – asthma attacks” for
`
`Ms. Desai, id. at ¶¶ 8–12, and would enable both Ms. Desai and Ms. Farrell to reap greater
`
`enjoyment from exercising and recreating in the area. Id. at ¶¶ 7, 9; Doc. 42-4 at ¶¶ 10–14.
`
`UNC’s Boilers 6 and 7, at issue in Claim One, are housed in its Cogeneration Facility,
`
`which is less than one block from Franklin Street. See Doc. 42-5 at ¶ 10 (describing the sight
`
`of “smoke billowing” out of UNC’s smokestack); Doc. 47 at 5 (showing satellite image of
`
`distance); Doc. 58 at § 2 ¶ 3 (stipulating that the boilers are near areas that Ms. Desai and Ms.
`
`Farrell regularly use). The emergency generator at issue in Claim Nine is housed in the
`
`Craige Parking Deck, which is also located on UNC’s Chapel Hill campus. Doc. 42-10 at 10.
`
`Claim Nine also deals with the concurrent operation of emission sources located at the
`
`
`
`10
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 10 of 24
`
`

`

`Cogeneration Facility. See id. at 42 (showing location of non-emergency generators ES-006
`
`and ES-007).
`
`The plaintiffs have not introduced any evidence that emissions from the Cogeneration
`
`Facility or the Craige Parking Deck reach Franklin Street, but it is a reasonable and
`
`uncontroverted inference that one block is within the discharge range of a stationary emission
`
`source regulated by the Clean Air Act. UNC has not identified any case to the contrary. The
`
`Facility, the Parking Deck, and Franklin Street are so close together12 as to give rise to
`
`“reasonable concerns” by Ms. Desai and Ms. Farrell that their health, recreational, and
`
`aesthetic interests have been compromised by unauthorized emissions. Laidlaw, 528 U.S. at
`
`183–84 (“[T]he affidavits and testimony presented by [the plaintiffs] in this case assert that
`
`[the defendant’s] discharges, and the affiant members’ reasonable concerns about the effects
`
`of those discharges, directly affected those affiants’ recreational, aesthetic, and economic
`
`interests.”). The Court is satisfied that the plaintiffs have demonstrated a concrete injury-in-
`
`fact as to Claims One and Nine.
`
`UNC asserts that the plaintiffs cannot show injury in fact because there is no evidence
`
`that it has “violated any emissions limit,” Doc. 50 at 11, and that the air quality in the Chapel
`
`Hill area remains acceptable under EPA standards. Doc. 46 at 14. But UNC conflates injury-
`
`in-fact for one type of claim—unauthorized operation of an emission source—with claims of
`
`another type—exceeding an emissions limit. For standing purposes, the plaintiffs do not need
`
`to show that UNC exceeded its allowable emissions in order to show that they were harmed by
`
`
`12 See Doc. 47 at 7 (showing wide image of Chapel Hill with Franklin Street and UNC’s campus
`labeled); Doc. 42-5 at ¶ 10 (describing the sight of “smoke billowing” out of UNC’s smokestack).
`
`
`
`11
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 11 of 24
`
`

`

`the emissions coming from the allegedly unauthorized operation of an emission source. Nor
`
`do the plaintiffs need to wait until the air quality is unbreathable in Chapel Hill before they
`
`“can invoke the protections” of the Clean Air Act. Friends of the Earth, Inc. v. Gaston
`
`Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000).
`
`2. Traceability
`
`The plaintiffs must next show that the injuries-in-fact suffered by their members are
`
`traceable to UNC’s alleged conduct. While traceability is analyzed separately from injury-in-
`
`fact, proof for each element “often overlaps.” Id. at 154.
`
`The Fourth Circuit has not adopted a specific standard for evaluating traceability of
`
`injury-causing air pollution. For citizen suits under the Clean Water Act, the Fourth Circuit
`
`has said that traceability means something less stringent than tort causation and that scientific
`
`certainty is unnecessary. Id. at 161. “Rather than pinpointing the origins of particular
`
`molecules, a plaintiff must merely show that a defendant discharges a pollutant that causes or
`
`contributes to the kinds of injuries alleged in the specific geographic area of concern.” Id.
`
`(discussing traceability in the CWA context) (cleaned up). Several other circuits and district
`
`courts have applied similar standards in environmental suits involving the Clean Air Act and
`
`the Clean Water Act. See Utah Phys. For a Healthy Env’t v. Diesel Power Gear LLC, 374 F.
`
`Supp. 3d 1124, 1133 n.36 (D. Utah 2019) (collecting cases).
`
`It is undisputed that the boilers at issue in Claim One are housed at UNC’s
`
`Cogeneration Facility, which is only a block away from Franklin Street where Ms. Desai and
`
`Ms. Farrell frequently work, visit, and socialize. See Doc. 47 at 5. As stated in connection
`
`with the injury-in-fact inquiry, no court has ever held that one block is too far away to infer
`
`
`
`12
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 12 of 24
`
`

`

`that the area is within the discharge range of a stationary emission source. The emergency
`
`generator that is the subject of Claim Nine is also on campus, see Doc. 42-10 at 10 (ES-Gen-
`
`12), and Claim Nine centers on concurrent operation of that generator with two other emission
`
`sources located at the Cogeneration Facility. See id. at 42 (listing location of non-emergency
`
`generators ES-006 and ES-007). The plaintiffs have shown that UNC discharges air pollutants
`
`that “directly and immediately contribute to air pollution” in an area where their members
`
`maintain health, aesthetic, and recreational interests and that the air pollution harms those
`
`interests. Utah Phys. For a Healthy Env’t, 374 F. Supp. 3d at 1135. This is sufficient to
`
`demonstrate traceability. Gaston Copper, 204 F.3d at 161.
`
`UNC advocates for a more stringent traceability test, relying on cases from the Fifth
`
`Circuit. See Env’t Texas, 968 F.3d at 370; Friends of the Earth, Inc. v. Crown Cent.
`
`Petroleum Corp., 95 F.3d 358, 362 (5th Cir. 1996). But those cases do not say that scientific
`
`evidence is required when the area regularly visited by the plaintiffs’ members is within
`
`walking distance of the emission sources. There may be some point at which scientific
`
`evidence is required, but just as it is appropriate to take judicial notice in Clean Water Act
`
`cases that water flows downstream, the Court can take judicial notice that the wind can, and
`
`does, blow polluted air within and around at least several blocks.
`
`UNC also briefly contends that the plaintiffs cannot demonstrate traceability because of
`
`“other sources” of emissions in the area. Doc. 46 at 13. Specifically, UNC points to two large
`
`highways and an industrial cement plant that border Chapel Hill. See Doc. 47 at 9 (showing
`
`satellite image of Chapel Hill). In Gaston Copper, the Fourth Circuit indicated that a
`
`defendant may fairly contest traceability of pollutants in a waterway by pointing to
`
`
`
`13
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 13 of 24
`
`

`

`“alternative culprit[s].” 204 F.3d at 162. Other courts applying the Fourth Circuit’s
`
`traceability standard, however, have rejected this view, highlighting “the contributory nature
`
`of pollution in a specific location” and noting that if a plaintiff were required to show with
`
`“scientific certainty that the defendant’s emissions, and only the defendant’s emissions, are the
`
`source of the harm,” then a defendant could defeat standing “merely by pointing to other
`
`sources of pollution.” Utah Phys. for a Healthy Env’t, 374 F. Supp. 3d at 1133–34 (cleaned
`
`up).
`
`There is no dispute that UNC’s boilers and generators emit the kinds of pollutants that,
`
`in concentration, can harm public health and welfare. See, Doc. 58 at § 1 ¶ 4; see also Doc.
`
`42-10 at 14–15, 52 (showing emissions standards applicable to ES-001, ES-002, and ES-Gen-
`
`12). The plaintiffs do not need to show with scientific certainty that UNC’s pollutants are the
`
`sole or even primary source of harm to their members to establish traceability, and the
`
`presence of “alternative culprits” here does not take away from the fact that UNC contributes
`
`to air pollution in Chapel Hill.
`
`3. Redressability
`
`For the final standing requirement, redressability, the plaintiffs must show that “it is
`
`likely, as opposed to merely speculative” that the injuries suffered by their members “will be
`
`redressed by a favorable decision.” Laidlaw, 528 U.S. at 181. The plaintiffs do not need to
`
`show that a favorable decision will completely relieve an injury or relieve every i njury,
`
`Larson v. Valente, 456 U.S. 228, 243 n.15 (1982), but the relief sought must specifically
`
`redress the injuries to the plaintiffs’ members, “as opposed to merely advancing generalized
`
`environmental interests.” WildEarth Guardians v. Public Service Co. of Colorado, 690 F.3d
`
`
`
`14
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 14 of 24
`
`

`

`1174, 1190 (10th Cir. 2012). Because the plaintiffs must have standing to pursue each form of
`
`relief they seek, they must show that their members’ injuries can be redressed by civil
`
`penalties, injunctive relief, declarative relief, and remediation of damaged environment. See
`
`Doc. 33 at ¶¶ 63–70.
`
`
`
`Civil penalties, if awarded, would redress injuries to the plaintiffs’ members by
`
`deterring future violations. See Laidlaw, 528 U.S. at 185–86. Declaratory and injunctive
`
`relief could also provide redress by curbing ongoing violations and halting UNC’s continued
`
`contribution to pollution-related injuries suffered by the plaintiffs’ members. Similarly, any
`
`remediation ordered by the Court as to damage caused by UNC’s alleged violations would
`
`improve the quality of air breathed by the plaintiffs’ members and may also further deter UNC
`
`from future violations. This is enough to satisfy the redressability requirement. See Utah
`
`Phys. for a Healthy Env’t, 374 F. Supp. 3d at 1136.
`
`
`
`UNC contests redressability only as to Claim One. Specifically, UNC points out that
`
`the permit containing the condition relevant to Claim One expired in March 2021 and that the
`
`corresponding condition in UNC’s replacement permit, which was recently issued on August
`
`5, 2021, removes the reference to the heat input capacity of Boilers 6 and 7. See n. 1 supra;
`
`Doc. 59-1 at 20 (showing corresponding condition in replacement permit without reference to
`
`heat input capacity). For this reason, UNC contends that the Court cannot enforce compliance
`
`with a permit that no longer applies, nor can it impose penalties on UNC as a measure of
`
`deterrence. Doc. 46 at 18–19. But UNC cites no case to support its argument that penalties
`
`would be inappropriate, and the Court sees no reason why issuance of a new permit precludes
`
`imposition of civil penalties for past violation of a previous permit. See, e.g., Sierra Club v.
`
`
`
`15
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 15 of 24
`
`

`

`BP Prods. N. Am., Inc., No. 2:19-CV-337-PPS-JEM, 2021 WL 1399805, at *10–11 (N.D. Ind.
`
`Apr. 14, 2021).
`
`The plaintiffs have shown that their members suffer redressable injuries-in-fact that are
`
`fairly traceable to UNC’s violations of Claims One and Nine. The Center and the Sierra Club
`
`have standing to pursue these claims.
`
`IV. Merits
`
`Both parties moved for summary judgment asserting that the material facts are
`
`undisputed. The permit itself is in evidence and undisputed. Doc. 42-10. The parties have
`
`filed a joint submission of stipulated facts relevant to Claims One and Nine, with citations to
`
`the supporting evidence. See Doc. 58.
`
`A. Claim One
`
`1. Undisputed Facts
`
`The permit provides specific terms, conditions, and limitations for various emission
`
`sources. Two such covered emission sources, Boilers 6 and 7, are identified in Section 1 of
`
`the permit, each as “one coal/natural gas/No. 2 fuel oil/wood (non-CISWI)/torrified wood
`
`(non-CISWI)-fired, circulating fluidized combustion boiler, 323.17 million Btu per hour heat
`
`input capacity.” Doc. 42-10 at 7. Section 2 details the “specific terms, conditions, and
`
`limitations” applicable to UNC’s emission sources, and Section 2.1.A deals specifically with
`
`Boilers 6 and 7. See id. at 14. Section 2.1.A repeats the 323.17 million heat input capacity
`
`number in the heading before setting forth a chart with the specific limits and standards for
`
`
`
`16
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 16 of 24
`
`

`

`particulate matter, sulfur dioxide, nitrogen dioxide, hazardous air pollutants, and nitrogen
`
`oxide. Id. at 14–15.
`
`On December 17 and 18, 2014, UNC performed various compliance tests on Boilers 6
`
`and 7, which, for at least one test, lasted a minimum of one hour. See Doc. 58 at § III ¶¶ 4–6;
`
`Doc. 42-11 at 2 (showing compliance test data for both boilers pursuant to EPA Method 30B
`
`for Mercury); Doc. 51-4 at 2 (showing EPA Method 30B provides that a “minimum sample
`
`run time . . . for emissions testing to characterize an emission source is 1 hour.”). On
`
`December 17, 2014, Boiler 6’s recorded heat input was, at one point, approximately 332
`
`mmBtu/hr. Doc. 58 at § III ¶ 7. On December 18, 2014, Boiler 7’s recorded heat input was,
`
`at one point, approximately 342 mmBtu/hr. Id. at § III ¶ 8. Thus, on two different occasions
`
`in December 2014, each boiler operated at a capacity higher than the 323.17 mmBtu/hr heat
`
`input capacity stated in the permit. Regulators at the North Carolina Division of Air Quality
`
`were aware of these heat input numbers from the boiler tests and found them to be
`
`“acceptable.” Id. at § III ¶ 9; Doc. 42-11 at 1.
`
`As required by the Clean Air Act, the plaintiffs gave DAQ notice of their intent to
`
`bring this claim. See Doc. 40-6 at 7. DAQ analyzed the claim and expressly determined that
`
`there was no reason for an enforcement action because the heat input capacity listed in the
`
`heading of Section 2.1.A is a “descriptor,” not an “enforceable limit.” Doc. 58 at § III ¶ 15;
`
`Doc. 40-6 at 8. As stated in the DAQ comments:
`
`The 323.17 million Btu per hour (mmBtu/hr) heat input boiler descriptor in
`UNC’s permit is not considered to be an enforceable limit by DAQ. It is a nominal
`heat input capacity that the boiler manufacturer uses to describe a design
`parameter for the boiler.
`
`
`
`
`17
`
`Case 1:19-cv-01179-CCE-JLW Document 63 Filed 08/30/21 Page 17 of 24
`
`

`

`Doc. 40-6 at 8.
`
`
`
`Boilers 6 and 7 continue to run with a heat input higher than 323.17 mmBtu/hr, on
`
`occasion, somewhere under 5% of the time. Doc. 42-12 at 11–12. Between May 1, 2019, and
`
`March 16, 2021, UNC operated Boilers 6 and 7 for at least 269 individual measured hours
`
`above 323.17 mmBtu/hr. Doc. 58 at § III ¶ 11; Doc. 43 at 4–7; Doc. 43-1 at 1–9; Doc. 43-2 at
`
`4–7; Doc. 43