would require us to believe that the provision empowering courts to enforce citizen suits with civil penalties was superfluous.
The principal case cited in support of the restrictive view of FWPCA citizen suits is Middlesex. See Hamker, 756 F.2d at 396. The issue of whether citizen suits may seek civil penalties for past violations was not before the Middlesex court. The case involved a claim by the plaintiff organization that, in addition to the general citizen suit provision, it had an implied private right of action for damages. Middlesex, 453 U.S. at 6, 9. In setting forth the history of the case, the Court explained that the FWPCA citizen suit provision does not explicitly authorize damage remedies: "This provision allows suits under the Act by private citizens, but authorizes only prospective relief, and the citizen plaintiffs first must give notice to the EPA, the State, any alleged violator." Id. at 6. The Court went on to hold that no damage remedy was available, id. at 18 (citing with approval Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir. 1979), cert. denied, 444 U.S. 1025, 100 S. Ct. 689, 62 L. Ed. 2d 659 (1980)), because Congress did not intend to provide an implied private right of action, id. at 13-18. The Court did not question that citizen suits could seek civil penalties payable to the federal government. See id. at 14 n.25. We do not believe the Court intended to preclude civil penalties based on past violations.
We have seen that Congress intended to provide uniformity in the enforcement mechanisms of the FWPCA. The Supreme Court's rejection of an implied private right of action under the FWPCA furthered the goal of uniformity in EPA, state and citizen suit enforcement, but to hold that citizen suits alone are barred from seeking civil penalties for past violations would thwart the goal of uniformity in enforcement. There is no suggestion anywhere in the Middlesex decision that the Court intended this result. On the contrary, the Court remarked that many citizens seeking to enforce the FWPCA would do so without economic injury and "as private attorneys general," suggesting that Congress intended citizens to step into the shoes of government agencies that failed to act.
Id. at 17.
The Middlesex Court cited Senator Hart's view that damages were not available under the Clean Air Act because the FWPCA citizen suit provision was modeled on that of the Clean Air Act. Id. at 17-18, n.27; see supra n.1. But there is no suggestion that citizens could not seek civil penalties payable to the federal government. Hart's point was that, absent the financial incentive offered by the availability of damages, there was no danger of a flood of citizen suits clogging the courts. Hart's remarks have no relevance to whether civil penalties are available based on past violations under the FWPCA because civil penalties offer no financial incentive to citizens.
We conclude that Congress did not intend to confine citizen suits to civil penalties for present violations, and that plaintiffs may bring this action against past violations of expired permits. We agree with the courts that have construed the "in violation" phrase of § 1365(a)(1) to include continuing and interrupted violations and the "in effect" phrase of § 1365(f)(6) to mean "in effect at the time of the violation." See Illinois v. Outboard Marine Corp., Inc., 680 F.2d 473, 480-81 (7th Cir. 1982) (holding that defendant's acquisition of a new NPDES permit after the violations named in the complaint brought under FWPCA "does not materially change the situation before us").
2. Plaintiff's Standing
Defendant maintains that plaintiffs lack standing both because they fail to identify members who are adversely affected or injured by AT&T's violations and because a favorable decision by this court could not redress any injury alleged by plaintiffs. The first of these grounds evaporated when plaintiffs submitted eight affidavits by individual members of their organizations who live near bodies of water affected by AT&T's discharges. These members claim injuries in the form of preclusion from using those bodies of water for fishing and recreation, of having to look at ugly waterways, and of having to drink bottled water because of pollution in water supplies. Under Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972), "injury" for standing purposes need not be economic; it can be injury to aesthetic, recreational or environmental values. Id. at 735. See also Middlesex 453 U.S. at 16-17 (1981); Tenneco Polymers, 602 F. Supp. at 1396-1397.
A second requirement for standing is "that the injury 'fairly can be redressed by a favorable decision. '" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976)). The AT&T facility no longer discharges pollutants into waterways and no longer holds a permit, so plaintiffs do not expect to deter future misconduct by AT&T. Since plaintiffs seek civil penalties, only the United States Treasury can receive financial redress for past violations. S. Rep. No. 414, reprinted in 1972 U.S. Code Cong. & Ad. News at 3745. Plaintiffs cannot show that these funds will be used to improve conditions in bodies of water affected by AT&T's discharges. How then will plaintiffs' injuries be redressed by the relief they seek?
We believe plaintiffs' members will benefit personally from the relief they seek. We note, however, that an exacting and personalized showing of redressability is neither appropriate nor necessary in a case of this type. Plaintiffs are the beneficiaries of a legislative grant of standing in § 505 of the FWPCA, 33 U.S.C. § 1365 (1982). They have met the minimal Article III showing of "a distinct and palpable injury" to themselves, Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), therefore:
. . . So long as this [Article III] requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of legal rights and interests of others, and may invoke the general public interest in support of their claim.