By Derf Johnson
The CHS Refinery in Laurel, Montana. Photo via Helena Independent Record.
The Montana Department of Environmental Quality (DEQ) recently renewed the water pollution permit (specifically, the Montana Pollutant Discharge Elimination System Permit or MPDES Permit) for the CHS Refinery located in Laurel, Montana. Needless to say, we have some concerns about how the plant’s discharge of arsenic and other harmful pollutants harm water quality and aquatic species in the Yellowstone River.
CHS currently has two discharge points for the facility’s contaminated water, which ultimately ends up in the Yellowstone River. The Yellowstone River is an incredibly valuable resource for southeastern Montana (environmentally, economically, and spiritually) and is undoubtedly impacted by CHS’ pollution. Further, the discharge point for CHS is directly upstream of Billings and other major communities, increasing concerns about the cleanliness and safety of drinking water for downstream communities.
First, some background. While DEQ is responsible for issuing water pollution permits, it must assure that those permits comply with the federal Clean Water Act. EPA allows the use of toxicity tests to monitor and evaluate discharged waste (such as effluent water from CHS) for toxicity to biological life and its impact on receiving waters (such as the Yellowstone River). One way for polluters to show compliance with their permits is to conduct a Whole Effluent Toxicity (WET) test, which CHS has conducted routinely for the past several years.
The WET test requires that certain species of minnows are exposed to the water generated by CHS. Every 24 hours, the fish are rotated to a new tank containing a freshly prepared solution of the appropriate effluent concentration. According to the EPA, “The fathead minnow subchronic test is a freshwater seven day static renewal exposure for determining sublethal toxicity in order to estimate toxicity.” All this is to say, the test is whether the water put into the river by the polluter impacts the development and life-cycle of the fish, which in turn demonstrates whether the water meets certain standards and is safe. It’s the modern-day canary in a coal mine.
CHS utilizes the WET test to demonstrate compliance with its permit. However, according to DEQ, “beginning in 2021, CHS had multiple WET failures and is currently undertaking a Toxicity Identification Evaluation/Toxicity Reduction Evaluation…” The numerous failures over the past several years is extremely concerning, especially because, according to DEQ, “CHS has not yet identified specific reasons for these failures.” But what’s most concerning is that DEQ moved forward with renewing CHS’s discharge permit, without establishing what exactly was causing these failures to meet water quality standards.
Montana’s Constitution sets the baseline for how our fundamental environmental rights are protected and how DEQ’s obligations must be enforced. Notably, in the seminal case interpreting and clearly establishing this right (MEIC v. DEQ), the Montana Supreme Court stated, “Our constitution does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.” The right is anticipatory and preventative, regulating action in the present to prevent environmental damage before it occurs. Perhaps DEQ doesn’t believe that this principle applies to the discharge of pollution into our waters, killing minnows and who knows what else?
Sarcasm aside, there are other serious concerns with the discharge permit for the CHS refinery, namely that CHS continues to discharge dangerous levels of arsenic – a carcinogen to humans and a major threat to wildlife. Beyond causing cancer, arsenic exposure has been linked to cardiovascular diseases, diabetes, impacts on cognitive development, and death. Arsenic is not safe at any measurable level, and certainly not a pollutant that should be discharged into our water.
While CHS continues to routinely violate the water quality standards for arsenic by orders of magnitude, DEQ appears to have kicked the proverbial can down the road. The renewed permit includes a three-year compliance schedule for arsenic, during which CHS may continue to violate water quality standards for arsenic until November 2025.
This article was published in the Dec. 2022 issue of Down To Earth.
