Sierra Club v. Young Life Campaign, Inc.

• Decision Date: 29 October 2001
• Docket Number: No. CIV.A. 00-K-1820.,CIV.A. 00-K-1820.
• Citation: 176 F.Supp.2d 1070
• Parties: SIERRA CLUB, Plaintiff, v. YOUNG LIFE CAMPAIGN, INC., Defendant.
• Court: U.S. District Court — District of Colorado

176 F.Supp.2d 1070

SIERRA CLUB, Plaintiff, v. YOUNG LIFE CAMPAIGN, INC., Defendant.

No. CIV.A. 00-K-1820.

United States District Court, D. Colorado.

October 29, 2001.

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John M. Barth, Hygiene, CO, for plaintiff.

Daniel J. Dunn, Brent Allen Tracy, Holme Roberts & Owen LLP, Denver, CO, for defendant.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

In this citizen environmental suit Plaintiff Sierra Club alleges Defendant Young Life Campaign, Inc. ("Young Life") has violated and continues to violate its National Pollution Discharge Elimination ("NPDES") permit and the Federal Water Pollution Control Act, otherwise known as the Clean Water Act, 33 U.S.C. §§ 1251-1387, by failing to measure and record the stream flow in Crooked Creek on a continuous basis. Young Life moves to dismiss on various grounds, or, in the alternative, to require the Sierra Club to make a more definite statement and/or to strike certain statements in the complaint. For the reasons stated below, I deny Young Life's motion.

I. Background

Young Life owns and operates the Crooked Creek Ranch, a 960-acre lodge and recreational facility, near Fraser, Colorado. Before beginning operations in 1999, Young Life applied to the Water Quality Division of the Colorado Department of Public Health and the Environment ("CDPHE" or "State") for a site permit to build and operate a wastewater treatment facility on the Ranch. As part of that application, Young Life sought an NPDES permit to discharge wastewater from this proposed treatment facility into Crooked Creek, a small stream that runs through the Ranch before entering the Fraser River. An NPDES permit is required under the CWA and the Colorado Water Quality Act, C.R.S. §§ 25-8-101 to 25-8-703, for discharges of pollutants from a point source into waters of the United States. 33 U.S.C. §§ 1311(a), 1342(a); C.R.S. § 25-8-501(1). A violation of an NPDES permit also violates the CWA. 40 C.F.R. § 122.41(a); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). CDPHE administers the NPDES permit program in Colorado by delegation from the U.S. Environmental Protection Agency ("EPA"). See 40 Fed.Reg. 16713 (1975).

In response to CDPHE's consideration of Young Life's site and permit application, members of the public raised concerns that CDPHE lacked sufficient information about the volume of water in Crooked Creek, generally referred to as stream flow, to issue an NPDES permit authorizing the discharge of pollutants into the Creek. See Pl.'s Br., Exh. A (hereinafter "Summary of Permit Rationale") at 3; Exh. B. Such stream flow information is critical to the NPDES permitting process because the permitting agency calculates the numerical limits for the amount of pollutants to be discharged under each permit based in part on the dilution that will occur in the receiving stream. Stream flow information is also necessary to determine whether the proposed discharges comply with federal and state antidegradation rules, which prohibit the degradation of water quality in protected watersheds. See 40 C.F.R. § 131.12; 5 C.F.R. § 1002-31.8 By rule, if the volume of the proposed discharge will be diluted by 100 to 1 or more by water in the stream at low flow, then CDPHE presumes that no degradation will occur. 5 C.F.R. § 1002-31.8(3)(c). CDPHE has found that Crooked Creek is subject to the antidegradation rules. See Summary of Permit Rationale at 8.

On April 29, 1999, CDPHE issued Young Life an NPDES permit ("Permit") authorizing it to discharge certain pollutants, including ammonia, fecal coliform bacteria, oil and grease, into Crooked Creek as part of the effluent from the wastewater treatment plant. The Permit requires Young Life to comply with specified numerical discharge limits, monitoring requirements, and other conditions set forth in the Permit. The Permit is effective for a five-year term beginning May 31, 1999.

In the Summary of Rationale for the Permit, also issued on April 29, 1999, CDPHE stated the permitted discharges complied with the antidegradation rule because the ratio of stream flow in Crooked Creek to permitted effluent discharges was 100:1 or greater. Id. CDPHE also reported it had calculated the stream flow used in this and other Permit-related determinations by extrapolating from stream flow data from the near-by St. Louis Creek drainage. Id. at 3. It acknowledged, however, that concerns had been expressed about the accuracy of this extrapolated data and that it was therefore requiring Young Life "to install a continuous stream flow recorder and submit this data with the permit renewal application." Id.; see id. at 10.

The Permit's continuous stream flow recording requirement is set forth along with certain other site-specific monitoring requirements in the Permit as follows:

For the four year period between September 1, 1999 and August 31, 2003, the permittee will be required to perform collection of continuous stream flow, weekly pH, temperature, and ammonia monitoring of the effluent and of Crooked Creek at a location above the discharge before any mixing has occurred.

All data shall be submitted to the Division by November 30, 2003 with the renewal application. The Division will determine if ammonia limitations and necessary ammonia removal facilities are required at this [sic] time.

The permittee shall submit a preliminary report prior to [sic] beginning the monitoring study. The report shall be submitted by August 1, 1999. This report shall specify the exact instream locations where the permittee intends to perform the monitoring and what [sic] equipment will be utilized in the study.

Complaint, Exh. B, NPDES Permit at 1c, Part I.A.8(a) (emphasis added); see also Summary of Permit Rationale at 3, 10.

In a letter to CDPHE dated July 27, 1999, Young Life reported the location and device it had selected for the required Crooked Creek stream flow study and stated it would measure the flow five times per week from May through October and once per week the rest of the year. By letter dated August 5, 1999, CDPHE official Karen Young responded that Young Life's "proposed monitoring methods and equipment are acceptable."

On August 26, 1999, Young wrote Young Life again "to clarify the requirement for a continuous flow measuring device to record stream flows in Crooked Creek." In that letter, Young stated "the Division is proposing that [Young Life] take a daily single staff gauge and flow reading at the same time every day instead of the proposal you submitted." Def.'s Br., Exh. 2. She also "suggested" Young Life submit the flow data annually on June 1 for CDPHE review. Id. Young Life reports it has collected daily stream flow data for Crooked Creek since September 1, 1999.

By letter dated April 15, 2000, the Sierra Club provided Young Life, CDPHE, and the EPA with notice of its intent to bring this action upon expiration of the requisite 60-day notice period. See 33 U.S.C. § 1365(b)(1)(A) (requiring 60 days notice before bringing CWA citizen suit). On September 18, 2000, the Sierra Club filed this action pursuant to Section 505(a) of the Act, which authorizes any citizen, defined as "a person or persons having an interest which is or may be adversely affected," to bring suit to enforce any limitation or requirement in an NPDES permit. See 33 U.S.C. § 1365; Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. at 174, 120 S.Ct. 693.

In its complaint, the Sierra Club alleges Young Life has violated and continues to violate the Permit by failing to install and maintain a continuous stream flow recorder on Crooked Creek. The Sierra Club seeks declaratory and injunctive relief for this and related Permit violations, civil penalties payable to the EPA, and attorneys fees and costs as authorized by the CWA. Young Life concedes it has not installed a continuous stream flow recorder, but claims it has not violated the Permit because CDPHE, through the August 26, 1999 Young letter, sanctioned the daily stream flow measurements Young Life asserts it is currently performing.

II. Young Life's Motions

Young Life makes four arguments in the motion before me: (1) Sierra Club's complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(7) for failure to join an indispensable party; (2) Sierra Club's second and third claims for relief should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted; (3) Sierra Club's claims should be dismissed pursuant to Rules 12(b)(1) and 12(b)(6) for lack of standing and/or the Sierra Club should be required to make a more definite statement of its standing allegations; and (4) certain words should be stricken from Sierra Club's complaint pursuant to Rule 12(f). Each of these arguments are addressed below as if they were separate motions.

Both parties have submitted affidavits and other evidence in support of their arguments for and against Young Life's motions. With the exception of Young Life's motions to dismiss pursuant to Rule 12(b)(6), I may consider such extraneous materials outside the pleadings in ruling on these motions.¹ See Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir.2000) (materials outside the pleadings considered in deciding 12(b)(1) motion to dismiss); Citizen Band Potawatomi Indian Tribe v. Collier, 17 F.3d 1292, 1293 (10th Cir.1994) (same with respect to 12(b)(7) motion to dismiss). With respect to Young Life's Rule 12(b)(6) motions, I have discretion whether to consider extraneous materials, but if I choose to do so, I must convert these to motions for summary judgment and ensure the parties have notice of this action and an opportunity to present relevant evidence. See Fed.R.Civ.P. 12(b)(6); David. v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996).

In this case, I opt not to consider these extraneous materials in...