Local government agencies, Indian tribes and a nonprofit environmental group have filed suit against the Montana Department of Environmental Quality.
A representative of one of them calls it “absurd” that DEQ has transferred a wastewater discharge permit allowing high levels of pollution from the former Smurfit-Stone Container Corp. pulp and paper operation outside Missoula to a nonexistent facility at the site of the former mill on the Clark Fork River.
“It’s hard to imagine how this permit, which maximizes pollution allowed in the river, fits in with the good work now underway to restore the Clark Fork,” says Karen Knudsen, executive director of the Clark Fork Coalition, one of the plaintiffs.
“It’s absurd for the state to allow this level of pollution without taking a good hard look at the changed conditions on the landscape,” Knudsen goes on. “It’s contrary to the agency’s charge, and contrary to the law.”
DEQ spokesman Chris Seager said the agency has not yet received a copy of the lawsuit, and once it does, “We’ll let our attorneys review it and decide how to respond.”
The director of DEQ, Tracy Stone-Manning, is a former executive director of the Clark Fork Coalition.
Joining the coalition in the lawsuit are the Missoula City-County Health Board, the Missoula Valley Water Quality District and the Confederated Salish and Kootenai Tribes.
They’re asking a judge to void the Montana Pollution Discharge Elimination System permit that DEQ granted to M2Green, the new owner of the 3,200-acre riverside property near Frenchtown. The lawsuit was filed in Helena this week, in Lewis and Clark County District Court.
In it, the local plaintiffs say the state has authorized M2Green to discharge nitrogen and phosphorus from the site and into the Clark Fork at a rate “30 to 40 times higher than M2Green requested, for a facility that does not exist and for a site that has not produced wastewater since 2010.”
It says the Smurfit-Stone paper mill was “one of the largest sources of industrial pollution on the Clark Fork River,” and the mill’s closure gave DEQ an opportunity to protect the long-term health of the river by terminating the permit and requiring an application for a new one.
“Instead, in disregard of its role as protector of the public’s waters and in contravention of Montana law, DEQ issued an unnecessary, unwarranted permit to M2Green,” it alleges.
In a September 2011 renewal application, the lawsuit says M2Green developed a hypothetical scenario for discharge of domestic wastewater from a wind-turbine factory. It asked for a discharge of nitrogen of 2 pounds per day average, and 10.8 pounds maximum, and 1.3 pounds per day average of phosphorus with a 6.4-pound maximum.
Rather than reducing the waste load allocations, DEQ granted the entire Smurfit-Stone waste load allocation of 66 pounds a day of nitrogen and 51 pounds a day of phosphorus, the suit says.
It also alleges that DEQ never notified the Confederated Salish and Kootenai Tribes of the permit application. Tribal members are guaranteed hunting and fishing rights in the Clark Fork Basin, among other places, through the Hellgate Treaty.
CSKT has also “continually sought to restore the river where it is damaged and to protect the river where it is healthy,” the lawsuit says.
CSKT learned the permit had been renewed approximately a month after the fact through news reports and contact with Missoula County. Tribal Chairman Ron Trahan raised several issues of concern in an April 21 letter to DEQ, including the lack of notice to the tribes.
“To date the Tribes have not received any formal response from DEQ,” the lawsuit says.
In issuing the permit, the plaintiffs charge that DEQ has violated the Montana Water Quality Act, the federal Clean Water Act and the Montana Constitution, which guarantees the state’s citizens the fundamental right to a clean and healthful environment.
The lawsuit says state and federal laws require DEQ to “carefully balance the site-specific needs of an actual facility with the conditions of the river when determining allowable levels of pollution for a discharge permit. ... DEQ failed to consider the health of the river before the needs of the polluter.”
The Smurfit-Stone mill operated from 1957 to 2010. The property was sold to M2Green in 2011 and the deal included a 10-year non-compete restriction that prohibited paper manufacturing on the site.
M2Green began scrapping the paper-making equipment that same year and never asked to be permitted to discharge pollutants at the same level the paper mill had, the plaintiffs say.
“The 2010 closure and subsequent dismantling of the Smurfit-Stone facility should have prompted DEQ – as protector of the public’s waters – to use its permitting authority to improve the long-term health of the river,” Knudsen says. “Unfortunately, DEQ chose a different path.”