Ctr. for Biological Diversity v. Swift Beef Co.

CENTER FOR BIOLOGICAL DIVERSITYand FOOD & WATER WATCH, Plaintiffs, v. SWIFT BEEF COMPANY, Defendant.

Civil Action No. 19-cv-01464-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

June 2, 2020

MEMORANDUM OPINION AND ORDER

Magistrate Judge Nina Y. Wang

This matter is before the court on Defendant Swift Beef Company's ("Swift Beef" or "Defendant") Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) ("Motion to Dismiss") [#20, filed December 6, 2019] and Plaintiffs Center for Biological Diversity ("CBD") and Food & Water Watch's ("FWW" and collectively, "Plaintiffs") Motion for Leave to File Sur-reply [#37, filed February 17, 2020]. The court considers the pending motions pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated July 1, 2019 [#14]. After considering the Parties' briefing, including the Sur-reply submitted by Plaintiffs on February 17, 2020 [#37-1]; arguments at the February 21, 2020 hearing; and the applicable law, the court DENIES Defendant's Motion to Dismiss in its entirety and DENIES Plaintiffs' Motion for Leave to File Sur-reply.

BACKGROUND

Plaintiffs bring this action to enforce the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et. seq., commonly known as the Clean Water Act ("CWA"), against Swift Beef. The CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States, unless such discharge is authorized by and compliant with a CWA permit. 33 U.S.C. §§ 1311(a), 1342. Permits authorizing such discharges under the CWA are implemented in part through the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. § 1342. NPDES permits are issued by the United States Environmental Protection Agency ("EPA") and impose effluent limitations and standards designed to protect water quality standards consistent with the mandates of the CWA. The EPA has been granted delegatory authority over NPDES permitting and may delegate the program to states. 33 U.S.C. § 1342(b); 40 C.F.R. § 123.61. The EPA delegated NPDES permitting authority to the state of Colorado in 1975. See Colo. Rev. Stat. § 25-8-202(6), (7). Through the Water Quality Control Division ("WQCD") of the Colorado Department of Public Health and Environment ("CDPHE"), Colorado is authorized to issue CWA permits and enforce the state's NPDES permitting program (known as the Colorado Discharge Permit System or "CDPS").

Pursuant to its citizen-suit provision, the CWA authorizes citizens to bring enforcement actions against any person "alleged to be in violation" of "an effluent standard or limitation," including permit terms, conditions, limits, and requirements. 33 U.S.C. §§ 1365(a), 1365(f)(6). For purposes of CWA liability, discharges in violation of NPDES permits also constitute violations of the CWA. 40 C.F.R. § 122.41(a). Plaintiffs bring three claims against Swift Beef pursuant to § 1365(a).

The following facts giving rise to Plaintiffs' claims are drawn from the Complaint and the briefing associated with the Motion to Dismiss and taken as true for the purposes of this instant Motion.¹ Swift Beef is a wholly owned subsidiary of JBS USA and JBS S.A., the latter of which is a Brazilian company and the world's largest producer of beef, chicken, and pork. [#1 at ¶ 12].Relevant here, Swift Beef is headquartered in Greeley, Colorado. [Id. at ¶ 14]. There, at its Lone Tree Wastewater Treatment Facility ("Lone Tree Facility"), Swift Beef accepts and treats waste from two animal slaughterhouses. [Id. at ¶ 1]. Swift Beef owns and operates the Lone Tree Facility. [Id. at ¶ 12].

Lone Tree Creek, a tributary of the South Platte River, flows through the Lone Tree Facility. [Id. at ¶ 19]. The confluence of Lone Tree Creek and the South Platte River is located approximately one mile south of the Lone Tree Facility as the crow flies, [id.], and 3.07 miles downstream as the water flows, [#35 at 17]. The Lone Tree Facility treats wastewater it receives via pipeline from two slaughterhouses owned and operated by Swift Beef. [#1 at ¶ 23]. After treatment, the wastewater is typically stored for thirty days in one of two large holding ponds before being discharged into the Lone Tree Creek. [Id.].

Swift Beef is authorized to discharge effluent into the Lone Tree Creek pursuant to a Colorado Pollution Discharge Elimination System permit (the "Permit") issued by the WQCD on October 9, 2012. [Id. at ¶ 24; #27-1 at 27-53]. The Permit went into effect on December 1, 2012 and remains effective pursuant to an indefinite administrative extension authorized by the WQCD on December 1, 2017. [#1 at ¶ 24]. Pursuant to the Permit, Swift Beef is authorized to discharge effluent into the Lone Tree Creek from one pipe (the "Outfall"), though the Permit sets forth variable limits, reflected as Outfall 001, Outfall 002, and Outfall 003, which depend on the number of animals slaughtered per month at the Swift Beef slaughterhouses. [Id. at ¶ 25]. Swift Beef is required to report to the WQCD, two days prior to the start of each month, the number of animals to be slaughtered in that month to inform the WQCD which of the Permit's limits and conditions apply for the upcoming month. [Id.]. The Permit also requires Swift Beef to self-sample its effluent discharges and sets forth mandatory self-testing parameters for Swift Beef, who mustreport to both the WQCD and the EPA the results of its self-sampling in publicly available Discharge Monitoring Reports ("DMRs"). [Id. at ¶ 26].

Due in part to "significant ammonia-related violations" at the Lone Tree Facility, [Id. at ¶ 27], the Permit also requires "chronic" Whole Effluent Toxicity ("WET") testing and limits "to evaluate the sublethal effect of the Lone Tree Facility's effluent." [Id. at ¶ 28]. WET testing of a discharged effluent measures a test organism's response to the "synergistic toxic effect of multiple pollutants," and the Permit requires Swift Beef to conduct WET testing of the Lone Tree Facility's effluent's impact on a water flea (ceriodaphnia dubia) and a fathead minnow (pimephales promelas). [#1 at ¶ 30]. Specifically, Swift Beef must conduct two types of WET testing on a quarterly basis. [Id. at ¶ 31]. First, Swift Beef must conduct a test known as the "25-percent seven-day inhibition concentration" ("IC25") standard, which requires use of 100 percent effluent (i.e., no dilution of the effluent is permitted) and is designed to identify the effluent concentration at which no more than 25 percent of test organisms experience reproduction or growth inhibition after seven days of exposure. [Id.]. Second, Swift Beef must conduct a "no observed effects concentration" ("NOEC") test, which also requires use of 100 percent effluent and is designed to determine the highest concentration of effluent discharge to yield no detectable effects on the test organisms. [Id.].

The Permit required Swift Beef to begin WET testing and self-reporting in the fourth quarter of 2012. [Id. at ¶ 32]. Swift Beef observed violations of its WET testing limits immediately and, ultimately, reported to the WQCD that the WET violations were caused by Swift Beef's use of sodium chloride for hide processing at its Beef Plant. [Id. at ¶ 33]. Swift Beef violated its WET limits during every quarterly testing period between the fourth quarter of 2013 through the end of 2015. [Id. at ¶ 34]. After negotiations with the WQCD, and in an effort to mitigate the sodiumchloride in its effluent to reach compliance with its Permit, Swift Beef purchased and installed a salt evaporator at its Beef Plant in 2015. [Id. at ¶¶ 34-35]. The salt evaporator was not operational by the end of 2015. [Id. at ¶ 35]. In 2016, 2017, and 2018, Swift Beef continued to pipe wastewater from its Beef Plant (and other slaughterhouse) to the Lone Tree Facility, and in every quarter from Q1 of 2016 through Q4 of 2018, Swift Beef reported violations of the WET limits contemplated by its Permit. [Id.].

The salt evaporator installed at Swift Beef's Beef Plant involves a combustion process that emits air pollution; accordingly, Swift Beef is required to comply with air pollution laws in order to operate the salt evaporator. [Id. at ¶ 36]. In February 2015, Swift Beef filed an Air Pollutant Emission Notice for its salt evaporator and was ultimately issued an air permit by Colorado's Air Pollution Control Division. [Id.]. Subsequently, seeking to reduce air emissions from the salt evaporator to avoid the need to apply for a "major source" air permit, Swift Beef installed a "scrubber" on the salt evaporator in December 2017. [Id. at ¶ 37].

In 2018, Swift Beef violated its WET testing limits in each quarter. [Id. at ¶ 38]. In July of that year, after observing "additional and unexpected emissions of particulate matter from operating the salt evaporator," Swift Beef filed a modified Air Pollutant Emission Notice and permit application to the State of Colorado. [Id. at ¶ 39]. To date, a modified air permit encompassing additional emissions from the salt evaporator has not been issued. [Id.].

Based on the foregoing, according to Plaintiffs, "Swift Beef is likely to continue to violate WET testing limits at the Lone Tree Facility." [Id. at ¶ 35]. Thus, Plaintiffs' first claim for relief ("Claim 1") is brought pursuant to the CWA for Swift Beef's alleged violations of the WET testing limits of its Permit and Plaintiffs' second ("Claim 2") and third ("Claim 3") claims for relief, alsobrought pursuant to § 1365 of the CWA, allege past and ongoing violations of Parts I(B)(3)(c) and I(B)(3)(a) of Swift Beef's Permit, respectively. [Id. at ¶¶ 62, 67-77, 79-91].

In its Motion to Dismiss, Swift Beef raises a Federal Rule of Civil Procedure 12(b)(1) challenge to Plaintiffs' assertion of this court's subject matter jurisdiction. Specifically, Defendant argues that Plaintiffs lack Article III standing. Swift Beef also argues for dismissal of Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure...