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A state department has started enforcement action against a coalbed methane producer for repeatedly failing toxicity tests on water it discharges into the Tongue River.

Fidelity Exploration and Production Co. violated the toxicity provision in its discharge permit 132 times in a 21/2-year period, from April 2006 through August 2008. The company also failed to submit an adequate compliance plan, said John Arrigo, administrator of Montana Department of Environmental Quality's Enforcement Division.

Fidelity produces methane from coal beds in the Decker area of the Powder River Basin. Groundwater pumped to the surface through the drilling for natural gas is discharged untreated into the Tongue at 15 sites covered by the permit. Fidelity is a subsidiary of MDU Resources Group Inc. and is based in Denver.

Although tests are finding toxicity in the discharge water, that doesn't mean the Tongue River is being harmed, Arrigo said.

"We're don't have any dead fish," Arrigo said. "If we saw dead fish or saw effects on the receiving water, we would act more aggressively. But we don't see that."

Rather, DEQ is seeing dead fleas - ceriodaphnia dubia fleas to be exact. The fleas are used in laboratory tests as an indicator of toxicity.

Fidelity is required to test for toxics by taking samples of its discharge water and putting in organisms to see if they survive. In addition to the fleas, similar tests also are conducted on fathead minnows.

Fidelity's tests using minnows have all passed. The tests using the fleas are failing, Arrigo said.

While the toxicity failures have been consistent, pinpointing the cause has been difficult and expensive.

Both DEQ and Fidelity officials said they are working to find a solution.

"It's complicated," Arrigo said. One test costs about $500 and Fidelity has done hundreds of them, he said.

The problem has been that Fidelity hasn't been able to identify what is causing the toxicity. Despite a variety of tests on different discharges at different times, the results are inconsistent, Arrigo said.

Joe Icenogle, a spokesperson for Fidelity, said the violations represent "a permit concern" and do not threaten or degrade the Tongue's water quality. "One of the things Fidelity, DEQ and everybody shares down there is the health of the Tongue River," he said.

Fidelity has performed similar toxicity tests with fleas on Tongue River water samples taken 6 inches from its discharge points. "They've survived every time," Icenogle said.

The tests require using nonnative fleas, Icenogle said. In some tests, the fleas are not surviving in undiluted discharge water, he said. Fleas start surviving when the coalbed discharge water is diluted 25 percent, he said.

"Our discharge into the Tongue River never makes up 75 percent of the total flow," he said. "It's less than 1 to 2 percent of the total flow of the river."

Prior to April 2006, Fidelity passed its toxicity tests using another nonnative flea species, Icenogle said. DEQ then changed to a different flea species.

Fidelity used to test once a year under a previous permit, Icenogle said. The company went to quarterly with the current permit. Because of the violations, the company has to test monthly.

The company has hired water specialists, fisheries biologists and other consultants. There is a possibility that total dissolved solids may be the problem, Icenogle said, while researchers have pretty much eliminated methane in the water as the cause.

There is a permit limit for total dissolved solids, and Fidelity is not exceeding it, Arrigo said.

In the meantime, Fidelity is experimenting with running its discharge water through a holding tank before it enters the Tongue. The results have been variable, Icenogle said.

Fidelity also submitted a compliance plan, but DEQ said it did not adequately describe how toxicity would be controlled. Failure to submit an adequate plan is a permit violation.

Arrigo said in his enforcement letter that Fidelity may have to develop a plan that addresses the overall quality of the wastewater, such as treating selected discharges. Also, some control options may require a permit modification.

Icenogle said it was premature to say whether Fidelity would treat the discharge water. "We're working with them to reach a solution," he said of DEQ.

DEQ has met with company officials and plans to meet again. DEQ is proposing the agency and Fidelity enter into a negotiated administrative order to resolve the violations. Penalties would be assessed but waived if Fidelity submits an adequate compliance plan and implements it in a timely manner, Arrigo said.

The penalties would be used as leverage to require Fidelity to submit a more definite control plan in a tighter schedule, Arrigo said. "We want them to submit a better compliance plan. We're not interested in fining them a lot of money. We want them to do more faster. If they blow us off and say no, we have a variety of enforcement options."

Contact Clair Johnson at cjohnson@billingsgazette.com or 657-1282.

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