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A closer look at the state's Clean Water Act violations

A recent nationwide report on the Clean Water Act paints a grim picture of the efficacy of one of the country's bedrock environmental laws. But a closer look at the study finds that, at least in Montana, the violations prove less about polluted water than they do about convoluted paperwork.

click to enlarge Daily’s Premium Meats, which produces about 25 million pounds of bacon annually at its Mullan Road facility, received 47 Clean Water Act violations from 2004 to 2007. Most resulted from incomplete paperwork. - PHOTO BY ANNE MEDLEY
  • Photo by Anne Medley
  • Daily‚Äôs Premium Meats, which produces about 25 million pounds of bacon annually at its Mullan Road facility, received 47 Clean Water Act violations from 2004 to 2007. Most resulted from incomplete paperwork.

According to the New York Times, which published the report Sept. 12, polluters egregiously neglect the Clean Water Act, earning more than 500,000 violations in the last five years alone. In Montana, the Times' data shows about 300 of the state's 1,729 facilities with permits to discharge pollutants have violated the law at least once. The Fidelity Exploration & Production Company, which has a permit to discharge wastewater into the Tongue River near Decker, received the most citations with 170. The Times also reported that neither Fidelity nor any of the other polluters in the state have been fined a dime, and that enforcement actions have been inconsistent.

But the Montana Department of Environmental Quality (DEQ), the state agency responsible for enforcing the federal law, says the Times' data is misleading at best, and inaccurate at worst.

"You have to see what these violations are to decide whether or not they're significant, and whether or not the DEQ's doing its job," says John Arrigo, administrator of DEQ's Enforcement Division. "Now, we're not perfect, and there are probably violations that need some enforcement, but I don't believe there are any fish kills or any threats to public health that are occurring as a result of these violations. Many of them are paperwork, and few of them are actual effluent limit exceedences."

A look at Missoula's top Clean Water Act violators shows why Montana's on-the-ground reality might not be as bad as the Times' data suggests.

Daily's Premium Meats accounts for 47 of Missoula's 103 Clean Water Act violations between 2004 and 2007. The company, a division of Seaboard Foods, which is part of the multinational Seaboard Corporation conglomerate, produces about 25 million pounds of bacon annually at its Mullan Road facility. That's a lot of briny, meaty water infused with nitrates that requires proper disposal. But of the facility's violations, only about 10 were actual effluent violations, the result of a recurring problem with its ammonia levels, according to DEQ. The rest were paperwork violations. In addition, almost all of those violations occurred in 2004 and 2005, before Seaboard acquired the facility. Since then, the company has sent its wastewater directly to the city's Wastewater Treatment Plant for processing and stopped using its on-site lagoons, according to David Eaheart, Seaboard's marketing director. The company also closed the third-party rendering plant next door. Since 2006, Seaboard hasn't had any water to discharge on-site at all. Still, it managed seven more violations over the next two years, again due to paperwork errors.

Missoula's Wastewater Treatment Plant, to which the Times attributes 31 Clean Water Act violations between 2004 and 2007, actually had many fewer that dealt with effluent exceedences, according to DEQ. The pertinent violations included high levels of suspended solids, E-coli, and oil and grease. The one major violation came in 2003, when its ammonia levels became too high. That problem was addressed by a $19 million plant upgrade, and the plant was fined $2,500. The remaining violations, says supervisor Starr Sullivan, are paper violations—"typos, omitted information or some other flub" on paperwork submitted to DEQ, Sullivan says—and not toxic discharges.

"Turns out you have to submit a discharge permit even if you're not discharging anything," Sullivan says of one example of incomplete paperwork. "That's perfectly logical, right?"

The abundance of paperwork violations has to do with the fact that discharge permit holders are required to submit monthly self-monitoring reports to DEQ, which the agency relies on to track compliance.

The failure to complete accurate and timely monitoring reports should be considered a violation, Sullivan says, but the way the data's presented suggests widespread contamination, when that's usually not the case.

"The article leads one to believe the violations are pollution run amok," he says. "I don't believe that's true."

The Times article also highlights the relatively few enforcement actions for Clean Water Act violations. In Montana, the data shows that between 2004 and 2007 there was only one enforcement action for every 100 violations.

"Some people may say, 'Well, a limit is a limit. If you exceed it you're in violation. Take enforcement,'" says Arrigo. "Well, yeah, that's one approach, but we try to focus on the worst of the worst."

The best way to identify the worst, Arrigo suggests, is to look at the actual fines levied by DEQ, not the number of violations. In 2001, it assessed a $200,000 fine against the Yellowstone Club for "stream obliteration by heavy equipment." In 2000, it fined Glacier National Park $74,100 for discharging sewage into Lake McDonald. In 2002, it fined ConocoPhillips $67,600 for improper waste disposal in Helena. And last year, it fined Fidelity $40,425—not $0 as the Times' data stated—for toxic discharges into the Tongue River. Since 2000, nine other entities have been fined at least $30,000.

"I think one of the things that came out of that article is that EPA, Congress and the public are realizing that, nationally, we have regulated point-source discharges, but run-off from...ag lands are significantly affecting waters like the Chesapeake Bay and Puget Sound, and it's just hard to issue a permit to those," Arrigo says. "So the whole approach of the Clean Water Act needs to change. You just don't get that by looking at the permit enforcement."

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