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Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 1 of 51
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`DREW H. WRIGLEY
`North Dakota Attorney General
`
`MARGARET I. OLSON (pro hac vice
`pending)
`Assistant Attorney General
`Office of Attorney General
`500 North 9th Street
`Bismarck, North Dakota 58501-4509
`Phone: (701) 328-3640
`Email: maiolson@nd.gov
`
`Attorneys for Plaintiff State of North
`Dakota
`
`LEIF M. JOHNSON
`United States Attorney
`MARK S. SMITH
`Assistant United States Attorney
`2601 Second Avenue North, Box 3200
`Billings, Montana 59101
`Phone: (406) 247-4630
`Email: MSmith4@usa.doj.gov
`
`MARK C. ELMER
`U.S. Department of Justice
`Environmental Enforcement Section
`999 18th Street, South Terrace, Suite 370
`Denver, Colorado 80202
`Phone: (303) 844-1352
`Email: Mark.Elmer@usdoj.gov
`
`Attorneys for Plaintiff United States of
`America
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`Billings Division
`
`
`
`UNITED STATES OF AMERICA and
`STATE OF NORTH DAKOTA,
`
`
`
`
`
`BRIDGER PIPELINE LLC and
`BELLE FOURCHE PIPELINE
`COMPANY,
`
`
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`
`Defendants.
`
`Case No.
`
`COMPLAINT
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`
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 2 of 51
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`The United States of America (“United States”), by the authority of the
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`
`
`
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`Attorney General of the United States, and on behalf of the United States
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`Environmental Protection Agency (“EPA”) and the United States Department of
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`Transportation, Pipeline and Hazardous Materials Safety Administration
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`(“PHMSA”); and the State of North Dakota (the “State”), on behalf of the North
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`Dakota Department of Environmental Quality (“NDDEQ”), file this complaint and
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`allege as follows:
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`NATURE OF ACTION
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`1.
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`This is a civil action against Bridger Pipeline LLC (“Bridger”) and
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`Belle Fourche Pipeline Company (“Belle Fourche”) (together, “Defendants”).
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`2.
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`Defendants own and operate hundreds of miles of buried pipelines
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`that gather and transport crude oil in Montana, North Dakota, and Wyoming.
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`3.
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`On January 17, 2015, one of those pipelines ruptured where it crosses
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`the Yellowstone River, resulting in the discharge of approximately 1,257 barrels of
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`crude oil into the Yellowstone River near Glendive, Montana (the “Yellowstone
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`Spill”), in violation of the Clean Water Act (“CWA”).
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`4.
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`In late 2016, another one of those pipelines ruptured in Billings
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`County, North Dakota, approximately 20 miles northwest of the city of Belfield,
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`resulting in the discharge of approximately 14,400 barrels of crude oil, including
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`into an unnamed tributary to Ash Coulee Creek, Ash Coulee Creek itself, the Little
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 3 of 51
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`Missouri River, and their adjoining shorelines (the “Ash Coulee Spill”), in
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`violation of the CWA and North Dakota state law.
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`5.
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`The United States seeks injunctive relief and civil penalties for
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`Defendants’ violations of the Clean Water Act and the Federal Pipeline Safety
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`Regulations pursuant to, respectively, Sections 309 and 311 of the CWA, 33
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`U.S.C. §§ 1319 and 1321, and Section 60120 of the Pipeline Safety Act (“PSA”),
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`49 U.S.C. § 60120.
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`6.
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`The State seeks injunctive relief and civil penalties for violations of
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`North Dakota law in connection with the Ash Coulee Spill pursuant to N.D. Cent.
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`Code §§ 61-28-04(22), 61-28-08, 23-29-04(8), 23-29-11, and 23-29-12. The State
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`also seeks recovery of its costs relating to the Ash Coulee Spill pursuant to N.D.
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`Cent. Code §§ 23-31-01 (recodified as 23.1-10-01 in 2019 and then repealed in
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`2021, 2021 N.D. Sess. Laws, ch. 212, § 19) and 23.1-10-12 (effective 2021).
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`JURISDICTION AND VENUE
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`7.
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`This Court has jurisdiction over the subject matter of this action
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`pursuant to Sections 309(b), 311(b)(7)(E), and 311(n) of the CWA, 33 U.S.C. §§
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`1319(b), 1321(b)(7)(E), and 1321(n); Section 60120(a)(1) of the PSA, 49 U.S.C. §
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`60120(a)(1); and 28 U.S.C. §§ 1331, 1345, and 1355.
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`8.
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`This Court has supplemental jurisdiction over the claims asserted by
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`the State pursuant to 28 U.S.C. § 1367.
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`9.
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`Venue is proper in this District pursuant to Sections 309(b) and
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`311(b)(7)(E) of the CWA, 33 U.S.C. §§ 1319(b) and 1321(b)(7)(E); Section
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`60120(a)(1) of the PSA, 49 U.S.C. § 60120(a)(1); and 28 U.S.C. §§ 1391 and
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`1395, because some of the violations that are the subject of this action occurred in
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`this District, and Defendants are located and do business in this District.
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`10. Authority to bring the United States’ claims is vested in the United
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`States Department of Justice by Section 506 of the CWA, 33 U.S.C. § 1366;
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`Section 60120 of the PSA, 49 U.S.C. § 60120; and 28 U.S.C. §§ 516 and 519.
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`11. Authority to bring the State’s claims is vested in NDDEQ by N.D.
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`Cent. Code §§ 61-28-04, 61-28-08, 23-29-04(8), 23-29-11, and 23-29-12. NDDEQ
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`was established on April 29, 2019, and became the State agency responsible for the
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`administration and enforcement of the environmental protection programs, laws,
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`and rules previously administered and enforced by the North Dakota Department
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`of Health’s Environmental Health Section. Pursuant to 2017 N.D. Laws ch. 199, §
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`1, the North Dakota Department of Health’s interest in the causes of action alleged
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`in the Complaint were assigned to NDDEQ. For purpose of the Complaint, the
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`term “NDDEQ” includes the North Dakota Department of Health for activities
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`occurring prior to April 29, 2019, and for statutes and rules in effect prior to April
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`29, 2019. Due to the transition, the statutes in N.D. Cent. Code ch. 23-29 have
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`moved to N.D. Cent. Code ch. 23.1-08, and the rules in N.D. Admin. Code arts.
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`33-16 and 33-20 have moved to 33.1-16 and 33.1-20. Because the violations began
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`prior to April 29, 2019, NDDEQ references N.D. Cent. Code ch. 23-29 and N.D.
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`Admin. Code arts. 33-16 and 33-20 in this Complaint, but for activities ongoing
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`after the transition, NDDEQ also alleges violations of the nearly identical statutes
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`in N.D. Cent. Code ch. 23.1-08 and rules in N.D. Admin. Code arts. 33.1-16 and
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`33.1-20.
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`12. Notice of commencement of this action has been provided to the
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`States of Montana and North Dakota in accordance with Section 309(b) of the
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`CWA, 33 U.S.C. § 1319(b).
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`DEFENDANTS
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`13. Bridger is a Wyoming limited liability company.
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`14. Bridger owns and operates the Poplar Pipeline, which gathers and
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`transports crude oil from the Williston Basin in eastern Montana and North Dakota
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`to Baker, Montana.
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`15. Belle Fourche is a Wyoming corporation.
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`16. Belle Fourche owns and operates the Bicentennial Pipeline, which
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`includes a segment that gathers and transports crude oil between the Skunk Hill
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`pump station in Billings County, North Dakota and the Bicentennial pump station
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`in McKenzie County, North Dakota (the “Skunk Hill to Bicentennial Segment”).
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`17. Bridger and Belle Fourche are affiliates and under the common
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`control of the True Companies, a privately held conglomerate with operations
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`focused on the oil and gas industry.
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`18. Bridger and Belle Fourche are each a “person” within the meaning of
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`Sections 311(a)(7) and 502(5) of the CWA, 33 U.S.C. §§ 1321(a)(7) and 1362(5);
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`Section 60101(a)(17) of the PSA, 49 U.S.C. § 60101(a)(17); and N.D. Cent. Code
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`§§ 61-28-02(5) and 23-29-03(11).
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`FEDERAL STATUTORY AND REGULATORY REQUIREMENTS
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`Clean Water Act
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`19. Section 301(a) of the Clean Water Act prohibits the discharge of any
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`pollutant, including oil, by any person, except as authorized by and in compliance
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`with other sections of the Act. 33 U.S.C. § 1311(a).
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`20. The Clean Water Act authorizes the United States to “commence a
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`civil action for appropriate relief, including a permanent or temporary injunction,”
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`for violations of Section 301 of the Act. 33 U.S.C. § 1319(b).
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`21. Another section of the Clean Water Act, Section 311(b)(3), prohibits
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`the discharge of oil into or upon the navigable waters of the United States and
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`adjoining shorelines in such quantities as the President determines may be harmful
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`to the public health or welfare or environment of the United States. 33 U.S.C. §
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`1321(b)(3).
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`22. The President, through a delegation to EPA, has determined that
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`quantities of oil that may be harmful, for purposes of Section 311, include
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`discharges that (a) violate applicable water quality standards or (b) cause a film or
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`sheen upon or discoloration of the surface of the water or adjoining shorelines. 40
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`C.F.R. § 110.3.
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`23. Anyone violating Section 311(b)(3) of the CWA, 33 U.S.C. §
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`1321(b)(3), is subject to a civil penalty. The penalty for a spill in January 2015
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`(when the Yellowstone Spill occurred) is up to $5,300 per barrel of oil discharged
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`where the violation was the result of gross negligence or willful misconduct, and
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`up to $2,100 per barrel in other cases. The penalty for a spill in December 2016
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`(when the Ash Coulee Spill began) is up to $6,215 per barrel of oil discharged
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`where the violation was the result of gross negligence or willful misconduct, and
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`up to $2,072 per barrel in other cases. 33 U.S.C. § 1321(b)(7)(A) and (D); 40
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`C.F.R. § 19.4.
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`Federal Pipeline Safety Regulations
`24. Pursuant to Section 60102(a) of the PSA, PHMSA has promulgated
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`regulations prescribing, among other things, minimum safety standards for pipeline
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`operation and maintenance. 49 U.S.C. § 60102(a).
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`25. As relevant here, these regulations are codified at 49 C.F.R. Part 195
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`(the “Federal Pipeline Safety Regulations”).
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`26. The Federal Pipeline Safety Regulations contain requirements that
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`apply to operators of hazardous liquid pipelines that could affect a “high
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`consequence area.” 49 C.F.R. § 195.452.
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`27. The Federal Pipeline Safety Regulations define “high consequence
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`area” (“HCA”) to include an “unusually sensitive area.” 49 C.F.R. § 195.450. An
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`unusually sensitive area, in turn, is defined as “a drinking water or ecological
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`resource area that is unusually sensitive to environmental damage from a
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`hazardous liquid pipeline release.” 49 C.F.R. § 195.6.
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`28. The Federal Pipeline Safety Regulations define drinking water and
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`ecological resources, for purposes of identifying unusually sensitive areas. A
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`drinking water resource is defined to include the water intake for a “community
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`water system” and the “source water protection area” for a community water
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`system. 49 C.F.R. § 195.6(a). An ecological resource is defined to include an area
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`containing a critically-imperiled species or an imperiled, threatened, or endangered
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`species that is aquatic, aquatic dependent, or terrestrial with a limited range. 49
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`C.F.R. § 195.6(b)(1) and (4).
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`29. The Federal Pipeline Safety Regulations require operators of pipelines
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`that could affect a “high consequence area” to develop and implement a written
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`integrity management program (“IMP”). See 49 C.F.R. § 195.452(b).
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`30. This IMP must assess and address the risks to the integrity of each
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`segment of pipeline, following “recognized industry practices,” unless otherwise
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`specified in 49 C.F.R. § 195.452 or the “operator demonstrates that an alternative
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`practice is supported by a reliable engineering evaluation and provides an
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`equivalent level of public safety and environmental protection.” 49 C.F.R. §
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`195.452(b).
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`31.
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`In assessing the risks to the integrity of each pipeline segment, the
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`operator must consider, among other things, “[l]ocal environmental factors that
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`could affect the pipeline,” such as subsidence (i.e. the gradual caving in or sinking
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`of an area of land), “geo-technical hazards,” and “[p]otential natural forces
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`inherent in the area (flood zones, earthquakes, subsidence areas, etc.).” See 49
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`C.F.R. § 195.452(e) and Appendix C § I.B(12).
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`32. An operator “must continually change the [IMP] to reflect operating
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`experience, conclusions drawn from results of the integrity assessments, and other
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`maintenance and surveillance data.” 49 C.F.R. § 195.452(f). The IMP must
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`include, among other things, a “continual process of assessment and evaluation to
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`maintain a pipeline’s integrity,” “[i]dentification of preventative and mitigative
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`measures to protect the high consequence area,” and a “process for review of
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`integrity assessment results and information analysis by a person qualified to
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`evaluate the results and information.” 49 C.F.R. § 195.452(f)(5), (6), and (8).
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`33.
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` The operator must also “take measures to prevent and mitigate the
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`consequences of a pipeline failure that could affect a high consequence area,”
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`including “conducting a risk analysis of the pipeline segment to identify additional
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`actions to enhance public safety or environmental protection.” 49 C.F.R. §
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`195.452(i)(1).
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`34. The Federal Pipeline Safety Regulations require operators to have a
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`means to detect leaks on their pipeline systems. 49 C.F.R. § 195.452(i)(3). The
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`operator “must evaluate the capability of its leak detection means and modify, as
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`necessary, to protect the high consequence area.” Id.
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`35. The United States may bring an action to enforce the Federal Pipeline
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`Safety Regulations. 49 U.S.C. § 60120(a)(1). In such an action, the Court may
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`award appropriate relief, including a temporary or permanent injunction, punitive
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`damages, and civil penalties. Id.
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`STATE STATUTORY AND REGULATORY REQUIREMENTS
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`Permit Required for Discharges
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`36. North Dakota Century Code § 61-28-06(2)-(3) makes it unlawful for a
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`person to discharge any wastes, except in compliance with a valid permit issued by
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`NDDEQ.
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`37. North Dakota Administrative Code § 33-16-01-02 provides that a
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`person must file a NPDES permit application before discharging “any waste
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`through a point source into a surface water.” A NPDES permit issued by NDDEQ
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`is referred to as a North Dakota pollutant discharge elimination system
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`(“NDPDES”) permit.
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`Pollution and Degradation of Water Quality Prohibited
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`38. North Dakota Century Code § 61-28-06(1)(a) makes it unlawful for a
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`person “[t]o cause pollution of any waters of the state or to place or cause to be
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`placed any wastes in a location where they are likely to cause pollution of any
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`waters of the state.”
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`39. North Dakota Century Code § 61-28-06(1)(b) makes it unlawful for a
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`person “[t]o discharge any wastes into any waters of the state or to otherwise cause
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`pollution, which reduces the quality of such waters below the water quality
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`standards established therefor by the department.”
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`40. North Dakota Administrative Code § 33-16-02.1-11(2) makes it
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`unlawful to discharge into the waters of the state “untreated industrial wastes or
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`other wastes which contain substances . . . which may endanger public health or
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`degrade the water quality of water usage.”
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`41. North Dakota Administrative Code § 33-16-02.1-09 provides for the
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`classification of the state’s surface water and contains the standards with which the
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`various classifications of surface water must comply, including physical and
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`chemical criteria. “[S]treams are classified as the class of water quality which is to
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`be maintained in the specified stream.” Appendix I, N.D. Admin. Code ch. 33-16-
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`02.1. At all relevant times, the numeric maximum benzene standard for Class III
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`streams was 51 µg/l. N.D. Admin. Code § 33-16-02.1-09(3) (2014).
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`42. North Dakota Administrative Code § 33-16-02.1-08(1) contains the
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`state’s narrative water quality standards, which, as relevant here:
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`a.
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`Require that all waters of the state be free from floating oil or
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`scum attributable to industrial or other discharges in amounts that are “unsightly or
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`deleterious”; substances attributable to industrial or other discharges that are in
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`concentrations or combinations “toxic or harmful to humans, animals, plants, or
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`resident aquatic biota”; and “oil or grease residue attributable to wastewater, which
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`causes a visible film or sheen upon the waters or any discoloration of the surface of
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`adjoining shoreline or causes a sludge or emulsion to be deposited beneath the
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`surface of the water or upon the adjoining shorelines or prevents classified uses of
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`such waters.” N.D. Admin. Code § 33-16-02.1-08(1)(a).
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`b.
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`Prohibit the discharge of pollutants, which “[c]ause a public
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`health hazard or injury to environmental resources; [i]mpair existing or reasonable
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`beneficial uses of the receiving waters; or [d]irectly or indirectly cause
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`concentrations of pollutants to exceed applicable standards of the receiving
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`waters.” N.D. Admin. Code § 33-16-02.1-08(1)(e).
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`Spill Reporting Required
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`43. North Dakota Administrative Code § 33-16-02.1-11(4) provides that
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`“[a]ny spill or discharge of waste which causes or is likely to cause pollution of
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`waters of the state must be reported immediately.” The owner, operator, or person
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`responsible must “provide all relevant information about the spill.” Id. NDDEQ
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`then has the authority to require the owner or operator to take actions necessary to
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`comply with N.D. Admin. Code ch. 33-16-02.1, including taking immediate
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`remedial measures and determining the extent of the pollution. Id.
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`Unpermitted Disposal and Abandonment of Solid Waste Prohibited
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`44. North Dakota Century Code § 23-29-07 and North Dakota
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`Administrative Code § 33-20-02.1-01 makes it unlawful to own, operate, or use an
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`unpermitted facility for solid waste disposal.
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`45. North Dakota Administrative Code § 33-20-01.1-04(1) provides
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`“[a]ny person who owns or operates any premises, business establishment, or
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`industry is responsible for the solid waste management activities, such as storage,
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`transportation, resource recovery, or disposal of solid waste generated or managed
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`at that person’s premises, business establishment, or industry.”
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`46. North Dakota Administrative Code § 33-20-01.1-04(2) provides “[n]o
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`solid waste may be delivered to a facility which is not in compliance with this
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`article or abandoned upon any . . . private premises.”
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`Penalty
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`47. North Dakota Century Code § 61-28-08(4) provides that a person who
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`violates N.D. Cent. Code ch. 61-28 or a “rule, order, limitation, or other applicable
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`requirement implementing this chapter, is subject to a civil penalty not to exceed
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`twelve thousand five hundred dollars per day per violation.”
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`48. North Dakota Century Code § 23-29-12(1) provides that “[a]ny
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`person who violates this chapter or any permit condition, rule, order, limitation, or
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`other applicable requirement implementing this chapter is subject to a civil penalty
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`not to exceed twelve thousand five hundred dollars per day per violation . . . .”
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`Injunctive Relief
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`49. North Dakota Century Code § 61-28-08(5) authorizes NDDEQ to
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`“maintain an action in the name of the state against any person to enjoin any
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`threatened or continuing violation of any provision of this chapter or any permit
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`condition, rule, order, limitation, or other applicable requirement implementing this
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`chapter.”
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`50. North Dakota Century Code § 23-29-11 authorizes NDDEQ to
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`maintain an action in the name of the state against any person to enjoin actions or
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`practices that “constitute or will constitute a violation of this chapter, or any rule,
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`regulation, or order” or for an order directing compliance.
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`Cost Recovery
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`51. North Dakota Century Code § 23-31-01, which was recodified as
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`23.1-10-01 in 2019, authorizes NDDEQ to “recover from the parties responsible
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`for an environmental emergency the reasonable and necessary state costs incurred
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`in assessment, removal, corrective action, or monitoring as a result of an
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`environmental emergency in violation of chapter [23-29 or 61-28].”
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`52. An “environmental emergency” is “a release into the environment of a
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`substance requiring an immediate response to protect public health or welfare or
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`the environment from an imminent and substantial endangerment and which is in
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`violation of chapter [23-29 or 61-28].” N.D. Cent. Code § 23-31-01.
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`53.
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`“Reasonable and necessary costs” are “those costs incurred by
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`[NDDEQ] as a result of the failure of the parties responsible for the environmental
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`emergency to implement appropriate assessment and corrective action after receipt
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`of written notice from [NDDEQ].” N.D. Cent. Code § 23-31-01.
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`54. Additionally, North Dakota Century Code Chapter 23.1-10, which
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`went into effect on July 1, 2021, but is retroactive in application (2021 N.D. Sess.
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`Laws, ch. 212, § 20), prohibits releases of regulated substances and authorizes
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`NDDEQ to respond to such releases by conducting and overseeing “environmental
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`assessment, removal, corrective action, or monitoring.” N.D. Cent. Code §§ 23.1-
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`10-02 and 23.1-10-06.
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`55. North Dakota Century Code § 23.1-10-12 authorizes NDDEQ to
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`“recover its reasonable and necessary expenses incurred under this chapter,
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`including all corrective action costs and administrative and legal expenses, in a
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`civil action brought against a responsible party.” NDDEQ’s “certification of
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`expenses is prima facie evidence the expenses are reasonable and necessary.” N.D.
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`Cent. Code § 23.1-10-12. NDDEQ must “provide written notice to a responsible
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`party before incurring costs, except when prior notice is not possible because the
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`identity of the responsible party is unknown or situations require emergency
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`remedial efforts.” Id.
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`GENERAL ALLEGATIONS
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`Poplar Pipeline
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`56. The Poplar Pipeline is 10 to 12-inches in diameter and approximately
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`193 miles long. It transports crude oil from the Williston Basin south to Baker,
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`Montana, where it connects with the Butte Pipeline system.
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`57. The Poplar Pipeline crosses under the Yellowstone River about six
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`river miles upstream from the city of Glendive, Montana (the “Yellowstone
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`Crossing”).
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`58. The Yellowstone River is the sole source of drinking water for the city
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`of Glendive.
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 17 of 51
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`59. The reach of the Yellowstone River that includes the Yellowstone
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`Crossing contains pallid sturgeon, an endangered species of fish that is protected
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`under the Endangered Species Act of 1973.
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`60. The Poplar Pipeline has the capacity to transport 42,000 barrels of
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`crude oil per day. At the Yellowstone Crossing, the line is 12-inches in diameter.
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`According to Bridger, in the 30 days prior to the Yellowstone Spill, an average of
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`36,000 barrels of crude oil per day passed through the Poplar Pipeline at the
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`Yellowstone Crossing.
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`61. The Yellowstone Crossing was completed in 1967 using the “open-cut
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`method,” which involves digging a trench across the bottom of the river channel,
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`laying the pipeline in the trench, and then backfilling the trench with material from
`
`the excavation.
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`62. The river bottom at the Yellowstone Crossing is comprised of
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`medium-fine to medium-grained sand alluvium. The alluvium is underlain with
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`Pierre Shale and easily moved in high flow conditions. The Pierre Shale is
`
`susceptible to river scour (i.e. the erosion of a river bed).
`
`63. At all relevant times, the Poplar Pipeline, at the Yellowstone
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`Crossing, could affect a High Consequence Area (“HCA”), as that term is defined
`
`in 49 C.F.R. § 195.450.
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 18 of 51
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`64. At the time of the Yellowstone Spill, the Poplar Pipeline, at the
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`Yellowstone Crossing, was included in the written Integrity Management Plan
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`developed by Bridger to comply with 49 C.F.R. § 195.452.
`
`65. Bridger has owned and operated the Poplar Pipeline since 2003.
`
`2011 Silvertip Pipeline Spill
`
`66.
`
`In the summer of 2011, the Yellowstone River flooded, scouring the
`
`river bottom and exposing ExxonMobil’s Silvertip Pipeline where it crosses the
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`Yellowstone River near Laurel, Montana. The exposed pipeline failed in the
`
`currents, resulting in the discharge of more than 1,500 barrels of oil (the “Silvertip
`
`Pipeline spill”).
`
`67. ExxonMobil’s Silvertip Pipeline, like the Poplar Pipeline prior to the
`
`Yellowstone Spill, was installed under the Yellowstone River using the open-cut
`
`method.
`
`68. Following the Silvertip Pipeline spill, PHMSA advised all pipeline
`
`operators, including Bridger, to take steps to prevent and mitigate the risks
`
`associated with flooding and scouring. PHMSA expressly urged operators to
`
`perform surveys to determine the depth of cover at water crossings and to
`
`determine, when floodwaters recede, if flooding has exposed or undermined the
`
`pipeline “as a result of new river channels cut by the flooding or by erosion or
`
`scouring.” 76 Fed. Reg. 44985, 44986 (July 27, 2011).
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 19 of 51
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`69. Bridger was thus on notice no later than July 27, 2011 that flooding
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`and scouring posed a risk to the integrity of the Poplar Pipeline at the Yellowstone
`
`Crossing.
`
`70.
`
`In September 2011 and April 2012, Bridger conducted depth of cover
`
`surveys at the Yellowstone Crossing. According to these surveys, there were places
`
`where the Poplar Pipeline was less than eight feet below the bottom of the river
`
`channel (i.e. less than eight feet of cover).
`
`71.
`
`In September 2012, the Yellowstone River Conservation District
`
`Council published a report to inform pipeline operators and others about certain
`
`risks to pipelines that cross the Yellowstone River, including “short term scour
`
`during flooding events,” which the report described as “difficult to identify as it is
`
`typically not visible during low flows.” Yellowstone River Pipeline Risk
`
`Assessment and Floodplain Reclamation Planning Project, Final Report,
`
`September 21, 2012 (“Yellowstone Report”) at 1, 7.
`
`72. While the authors of the Yellowstone Report were unable to do a
`
`complete risk assessment, due to a lack of certain information, including channel
`
`geometry, depth of cover, and pipeline configurations, they determined that the
`
`Yellowstone Crossing was at moderate risk of failure due to erodible banklines. Id.
`
`at 26.
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 20 of 51
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`
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`73. The authors of the Yellowstone Report noted that flood and erosion
`
`controls, including riprap, “can exacerbate the potential for exposure of shallowly
`
`buried pipelines by concentrating erosive forces.” Id. at 52.
`
`74. At the time of the Yellowstone Spill, there was riprap along the left
`
`(west) bank of the Yellowstone River at or near the Yellowstone Crossing.
`
`75. The authors of the Yellowstone Report further noted that the limited
`
`data they had concerning pipeline cover depths “indicates that many of the
`
`pipelines are buried less than eight feet below the channel bottom. These pipelines
`
`are at risk of exposure during flooding events.” Id. at 53.
`
`76. Bridger knew or should have known before the Yellowstone Spill that
`
`the Poplar Pipeline at the Yellowstone Crossing was, in places, buried less than
`
`eight feet below the river bottom.
`
`77. During some winters, the Yellowstone River freezes creating blocks
`
`of ice that form “ice jams.” Ice jams are common on the Yellowstone River,
`
`especially in the vicinity of Glendive, Montana.
`
`78. A March 2014 ice jam event raised the level of the Yellowstone River
`
`by eight feet at Glendive, Montana, resulting in the loss of power to 30 homes and
`
`the evacuation of a trailer park.
`
`79.
`
`Ice jams can both increase the velocity of underwater currents and
`
`shift peak velocity closer to the river bottom, resulting in increased scour potential.
`
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 21 of 51
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`80. Within several years after the Silvertip Pipeline spill, every other
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`pipeline operator with a crossing on the Yellowstone River that had been installed
`
`using the open-cut method, except Bridger, implemented measures to address the
`
`risks associated with scouring – either by armoring the crossing with rock or grout
`
`bags or re-installing the pipeline deeper under the river using the horizontal
`
`directional drilling (“HDD”) method. The HDD method, which involves installing
`
`the pipeline through a drilled hole, allows a pipeline to be installed deeper than the
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`open-cut method, and thereby below the area at risk of scouring.
`
`81. The use of HDD at water crossings is a recognized industry practice
`
`for addressing the risk to the integrity of a pipeline associated with river scour.
`
`82. Unlike all the other operators with crossings on the Yellowstone
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`River, Bridger failed to take any measures to prevent and mitigate the risks
`
`associated with flooding and river scour at the Yellowstone Crossing, beyond
`
`doing the two depth of cover surveys in 2011 and 2012.
`
`83. Upon information and belief, material information in the 2011 and
`
`2012 depth of cover surveys was false, misleading, or otherwise unreliable and
`
`Bridger either knew or should have known this.
`
`Yellowstone Spill
`
`84. Sometime on or before the morning of January 17, 2015, the Poplar
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`Pipeline ruptured and began leaking oil at the Yellowstone Crossing.
`
`
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 22 of 51
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`Impact of Yellowstone Spill
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`85. As a result of the Yellowstone Spill, oil was discharged into the
`
`Yellowstone River and onto the adjoining shorelines, causing sheens on the river
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`for miles downstream from the Yellowstone Crossing that lasted for weeks.
`
`86. On January 18, 2015, an oil sheen was observed at the Glendive
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`municipal water intake, which draws water directly from the Yellowstone River. A
`
`sample taken from Glendive’s municipal water treatment plant contained benzene,
`
`a known human carcinogen, at a level of 14 parts per billion (“ppb”), nearly three
`
`times the maximum contaminant level of 5 ppb. 40 C.F.R. § 141.61(a).
`
`87. On January 18, 2015, Dawson County officials issued a “Do Not
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`Drink” advisory, and began distributing bottled water to Glendive residents. The
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`advisory remained in effect until January 23, 2015.
`
`88. On March 14, 2015, after the melting and break-up of winter ice,
`
`operators of Glendive’s water treatment plant detected volatile organic compounds
`
`(“VOCs”) as high as 200 ppb in the Yellowstone River associated with the freeing
`
`up of oil entrained in ice on the river, and again shut down the city’s drinking
`
`water intake.
`
`89. Oil sheens on the Yellowstone River in the vicinity of and as a result
`
`of the Yellowstone Spill were documented until at least April 8, 2015.
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`
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`Case 1:22-cv-00043-SPW Document 1 Filed 05/02/22 Page 23 of 51
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`
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`Cause of Yellowstone Spill
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`90. Following the spill, divers located and retrieved the ruptured pipe
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`from the bottom of the river and observed that the riverbed covering the pipe had
`
`scoured away, leaving the pipeline unsupported and exposed to river currents.
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`Once exposed, vortex-induced vibration (“VIV”) and other dynamic loading
`
`caused the pipeline to crack and fail.
`
`91. The use of the open-cut method put the Poplar Pipeline at risk of
`
`failure due to river scour – particularly given the installation of riprap along the left
`
`bank of the river (which can increase river velocity), the frequency of ice jams in
`
`the area of the Yellowstone Crossing, and the geologic formation (Pierre Shale,
`
`which is susceptible to scour).
`
`92. Despite a risk that was known, or should have been known, Bridger
`
`failed to adequately assess the risk of scour at the Yellowstone Crossing, prior t

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