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Montana Water Rules Sent Back to EPA

A federal judge in Wyoming has overturned water quality rules that gas producers and the state had alleged were too restrictive and not based on complete consideration of related science by the Environmental Protection Agency (EPA). The rules were intended to protect cropland in Montana from the downstream discharge of water from Powder River Basin coalbed methane (CBM) production.

The rules, which covered the Tongue and Powder rivers, were sent back to EPA for reconsideration.

The case was a challenge to Montana's numeric water-quality standards for salinity. In 2006 the state of Wyoming, Marathon Oil Co., Pennaco Energy Inc. and Devon Energy Corp. sued the EPA. The complaint sought to overturn EPA's approval of Montana's 2003 standards. Wyoming intervened on the side of the companies, while Montana entered the case to defend its standards. Yates Petroleum Corp., Williams Production RMT Co., Anadarko Petroleum Co. and Nance Petroleum Corp. also joined the suit on the side of the petitioners.

"The record is replete with varying opinions and conclusions as to the effect of coalbed methane water and the appropriateness of Montana's 2003 numeric standards," wrote U.S. District Judge Clarence Brimmer in Cheyenne, WY. "It is exactly in this situation that the EPA had an obligation to objectively review all the comments and opinions. The EPA suggests that failing to consider the omitted documents is harmless. The court finds the argument unpersuasive because the unique circumstances of this case involve scientific data which is not only complex, but incomplete and evolving. Although the EPA repeatedly asserts that it recognizes the positions of the stakeholders, mere recognition of positions does not fulfill the EPA's statutory and administrative duties. The EPA must fulfill its obligations to fully consider the entire administrative record."

Montana Gov. Brian Schweitzer said the EPA would again side with his state. "This is some legal maneuvering, but the EPA has been an advocate for Montana's position from the get-go," he said, as reported by the Associated Press.

Last month the Wyoming Department of Environmental Quality withdrew a proposed rule that would have more stringently regulated the quality of production water discharges from CBM operations (see NGI, Sept. 28).

Wyoming and Montana officials have been monitoring water discharges from CBM for years (see NGI, June 25, 2001). Last year an ongoing study by Montana officials confirmed earlier findings that there were no harmful effects from CBM production water discharge on crops, soils and Tongue River water (see NGI, March 3, 2008).

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