Water Discharge is a Pollutant, Appeals Court Says: Land Letter

Home Browse Search

N. PLAINS RESOURCE v. FIDELITY EXPLORATION 4817 discharge does not increase the concentration of a particular parameter does not exempt it from permitting requirements." The MDEQ responded, resisting revocation of the section 75- 5- 401(1)(b) exemption and arguing that "the exemption is consistent with federal requirements governing NPDES pro- grams because discharges of unaltered, natural groundwater do not contain `pollutants' as that term is defined under the Clean Water Act." In a final letter sent to the MDEQ by the EPA, the EPA reiterated its objection to section 75-5 - 401(1)(b) if applied to discharges that would otherwise require a permit under the CWA. Even though MDEQ informed Fidelity in August 1998 that Montana state law exempted the discharge of unaltered groundwater, Fidelity filed MPDES permit applications in January 1999. At that time, Fidelity was discharging into both Squirrel Creek and the Tongue River without a permit. NPRC sent a 60 -day Notice of Intent to Sue letter to Fidel- ity, the MDEQ, and the EPA on April 18, 2000. NPRC alleged unpermitted discharges of pollutants into Squirrel Creek and the Tongue River. On June 23, 2000, NPRC filed a citizen suit under the CWA in federal district court alleging unpermitted discharges into Squirrel Creek. An amended complaint was filed on June 26, 2000, to add allegations of unlawful discharges into the Tongue River from outfalls not covered by an MPDES permit? 2 O June 16, 2000, the MDEQ issued Fidelity an MPDES permit autho- rizing Fidelity to discharge into the Tongue from seven specified outfalls. The MDEQ did not issue a permit to discharge into Squirrel Creek. Even though the MPDES permit allowed discharge into the Tongue River from seven outfalls, Fidelity discharged from twelve outfalls and continued to do so until the MDEQ amended the permit on July 3, 2000, to allow dis- charge from ten outfalls. Fidelity did not receive an amended permit allowing discharge from ten outfalls until after the amended complaint was filed.