 Clean Water Action Council of Northeastern Wisconsin v. Utica Energy
NEWS! CWAC and MEA Reach Settlement Agreement in Clean Water Act Lawsuit Against Utica Energy
On November 24, 2009, MEA filed a proposed Consent Decree with the Court in CWAC v. Utica Energy, a federal Clean Water Act citizen suit filed in April against an Oshkosh, Wisconsin corn ethanol production facility. The Consent Decree embodies the settlement agreement reached between Clean Water Action Council of Northeastern Wisconsin (CWAC) and Utica Energy resolving CWAC’s claims that Utica has repeatedly violated the limitations in its wastewater discharge permit.
The Consent Decree requires Utica to pay a total of $110,000, including $50,000 to the City of Oshkosh and Winnebago County for stream restoration and pollution prevention projects along Sawyer Creek, in addition to civil penalties to the United States and CWAC’s costs of litigation. This Consent Decree comes in the wake of an October 2009 settlement reached between Utica and the State of Wisconsin in which Utica agreed to pay $280,000 in forfeitures and fees to the State for related state law violations, and committed to spend $200,000 to connect its wastewater discharge to the City of Oshkosh wastewater treatment plant.
On February 4, 2010, the District Court entered its order and judgment approving the Consent Decree. The case is now closed, but CWAC and MEA will continue to monitor Utica’s compliance with the terms of the settlement. In the year ahead, CWAC will coordinate with Winnebago County and the City of Oshkosh to promote the clean water benefits of the supplemental environmental projects paid for as a result of the settlement.
Background
Corn ethanol plants in Wisconsin too often blatantly violate federal and state environmental regulations, shirking their social and environmental responsibilities. Utica Energy, in Oshkosh, Winnebago County, is one such facility. Constructed in 2002, Utica recently received an individual Wisconsin Pollution Discharge Elimination System (WPDES) permit, authorizing it to discharge wastewater to a tributary of Sawyer Creek. Sawyer Creek is a tributary of the Fox River, in the Lake Butte des Morts Watershed in the Upper Fox River Basin. The water bodies of that basin and watershed are polluted with mercury, PCBs, phosphorus and sediment, resulting in eutrophication (excessive algae growth), low dissolved oxygen and a fish consumption advisory. Such algae growth and fishing limitations prevent citizens of northeast Wisconsin from enjoying the use of their public waterways.
Utica has repeatedly violated, and continues to violate, many of the terms and conditions, contained in its current WPDES Permit, including effluent limitations for temperature, total suspended solids, chlorine, zinc, oil and grease and phosphorus. Utica has also violated several of the monitoring and reporting requirements of their permit. At least 2,207 separate days of violation have occurred since the Permit was issued on July 1, 2008.
Legal Action
On February 4, 2008, Midwest Environmental Advocates sent a Notice of Intent to Sue to Utica Energy, on behalf of Clean Water Action Council of Northeastern Wisconsin. The Notice provides Utica Energy 60 days to address the alleged ongoing violations or face the imposition of civil penalties as authorized by the citizen suit provisions of the Clean Water Act. The citizen suit provision authorizes citizens to commence a civil action against any person who is alleged to be in violation of an effluent limitation or other term or condition contained in a permit.
On April 9, 2009, MEA filed a civil complaint against Utica Energy, on behalf of the Clean Water Action Council, in the U.S. District Court for the Eastern District of Wisconsin. The suit seeks to hold Utica accountable for its pollution through a court injunction ordering full and immediate compliance with the Clean Water Act and the imposition of civil penalties for all past and ongoing violations. On September 16, 2009, MEA filed a Motion for Summary Judgment with the Court seeking a decision on Utica’s liability for 1,307 distinct violations of the Clean Water Act that are clearly established by Utica’s discharge monitoring reports. |
