Laserfiche WebLink
4820 N. PLAINS RESOURCE v. FIDELITY EXPLORATION <br />ing or processing plants, barrels filled with toxic slime, and <br />raw sewage floating in a river," industrial waste is not limited <br />to only the most heinous and toxic forms of industrial bypro- <br />ducts. See Sierra Club, Lone Star Chapter v. Cedar Point Oil <br />Co., 73 F.3d 546, 568 (5th Cir. 1996) (concluding "produced <br />water" is encompassed in "industrial waste "); see also Hud- <br />son River Fisherman's Assn v. City of New York, 751 F. <br />Supp. 1088, 1101 (S.D.N.Y. 1990) (holding that chlorine resi- <br />dues are pollutants), aff'd, 940 F.2d 649 (2d Cir. 1991); Uma- <br />tilla Waterquality Protective Assn, Inc. v. Smith Frozen <br />Foods, Inc., 962 F. Supp. 1312, 1322 (D. Or. 1997) (holding <br />that brine residues are industrial waste and therefore pollu- <br />tants). "Industrial" means "of, pertaining to, or derived from <br />industry." American Heritage Dictionary 672 (1979). "Indus- <br />try," in turn, is defined as "the commercial production and <br />sale of goods and services." Id. "Waste" is defined as "any <br />useless or worthless byproduct of a process or the like; refuse <br />or excess material." Id. at 1447. Combining these ordinary <br />meanings, "industrial waste" is any useless byproduct derived <br />from the commercial production and sale of goods and ser- <br />vices. Because Fidelity is engaged in production of methane <br />gas for commercial sale and because CBM water is an <br />unwanted byproduct of the extraction process, CBM water <br />falls squarely within the ordinary meaning of "industrial <br />waste." Even Fidelity referred to CBM water as "wastewater" <br />in its application to the EPA for an NPDES permit. <br />[4] Second, CBM water is also a "pollutant" by virtue of <br />being "produced water" derived from gas extraction. See <br />Cedar Point Oil Co., 73 F.3d at 568 (addressing whether dis- <br />charge of water "produced" during the extraction of oil and <br />gas without an NPDES permit violated the CWA and con- <br />cluding that produced water is an "industrial waste" regulated <br />by the CWA). The EPA defines "produced water" as "water <br />(brine) brought up from the hydrocarbon- bearing strata during <br />the extraction of oil and gas, and can include formation water, <br />injection water, and any chemical added downhole or during <br />the oil /water separation process." 40 C.F.R. §§ 435.41(bb), <br />