CAMBRIA - Allegations that Didion Ethanol is dumping contaminated wastewater into Tarrant Lake could make their way to federal court.

An environmental group called Midwest Environmental Advocates on Wednesday filed notices of intent to sue two Wisconsin ethanol factories - Didion in Cambria and Utica Energy in Oshkosh - alleging that the companies have a combined total of nearly 5,000 documented violations of the federal Clean Water Act. About 2,000 of those violations are alleged to have been committed by Didion Ethanol, said Karen Schapiro, executive director of Midwest Environmental Advocates.

By filing the intent to sue, Schapiro said, Midwest Environmental Advocates has placed both companies on notice that they have 60 days to address their alleged violations. If that doesn't happen between now and early April, she said, the suit will be filed in federal court.

Dale Drachenberg, vice president of operations for Didion Ethanol - which has been operating in Cambria since April 2008 - said Wednesday that Didion officials consider the allegations to be without merit.

"Environmental compliance is a key objective for us," he said. " We have been and will continue to keep the Department of Natural Resources fully informed of our efforts to assure that the watershed is protected. It is unfortunate - particularly in these economic times - that resources will have to be used to defend against these meritless allegations."

Schapiro said the Didion action is being filed on behalf of about six citizens in Cambria. The Cambria Village Board - which has discussed the wastewater situation at its last three monthly meetings - is not a party to the suit.

Neither is Cambrians for Thoughtful Development, an organization that has long challenged Didion's environmental practices in Cambria.

John Mueller of Cambrians for Thoughtful Development said his organization is concentrating on air quality concerns related to Didion's ethanol operation just outside of Cambria and its corn-milling operation within the village.

"However, we are in full support of it," Mueller said of the potential lawsuit.

A ‘wake-up call'?

At the December meeting of the Cambria Village Board, John Domino - a former village trustee who resigned about a year ago after expressing frustration in dealing with Didion - brought a quart jar of pale yellow translucent water to the board, and said the water had been collected from the place where Didion's treated wastewater is discharged. He invited trustees to take a drink. None did, though many of them sniffed the water.

At Monday's meeting, trustees discussed letters from Drachenberg, and from Portage-based General Engineering, both of which acknowledged challenges in treating the wastewater so that it consistently complies with the criteria set forth in a Wisconsin Department of Natural Resources permit.

Domino, who said he is one of the Cambria citizens who is a party to the potential lawsuit, said it is intended to be Didion's "wake-up call."

The notice of intent to sue alleges that Didion's wastewater discharge contains excessive levels of chlorine, zinc, phosphorus and other pollutants, which are emptied into streams that eventually empty into Tarrant Lake.

"It has become too easy for these types of facilities to flout both state and federal environmental laws, unfairly benefiting those that shirk their social and environmental responsibilities," Schapiro said.

The notice of the possible federal lawsuit came on the same day that oral arguments were heard in Sauk County Circuit Court in a civil action, called an administrative agency review, which Domino and four others filed against the DNR and Didion, alleging that Didion's permit for wastewater discharge from the DNR is not stringent enough. The case was originally filed in May in Columbia County Circuit Court. It has not been resolved, Domino said, and is separate from the possible federal action.

The goal of the notice of intent to sue, Domino said, would entail an end to the discharge of noncomplying wastewater from Didion, with or without any actual filing of a lawsuit.

"A win," he said, "would be complete compliance, and a guarantee that the Duck Creek watershed and Tarrant Lake would not be degraded."

Schapiro said the federal suit, if it is filed, would be based on incidents of noncompliance that Didion has acknowledged, as well as allegations that Didion did not keep records or perform tests that are required by the DNR permit.

Any independent tests of the discharged wastewater, including tests that Domino may have conducted, would not necessarily be factors in any lawsuit that might be filed, she said.

Previously in court

If the federal suit is filed, it would be the second against Didion in as many years.

In spring 2007, Cambrians for Thoughtful Development sued Didion Milling Inc. in federal court, seeking fines or injunctions related to a DNR investigation into whether the company violated its temporary operating permits while building the ethanol plant just across Cabbage Road from the Cambria village limits, in the town of Courtland.

Under the federal Clean Air Act, Cambrians for Thoughtful Development asked for, but did not get, injunctive relief of "illegal air pollution emissions" related to the alleged delays in installing a fabric filter, which Didion was supposed to install on its silo vents.

Judge Barbara Crabb of the U.S. District Court for the western district of Wisconsin ruled in April 2008 that, while it was "undisputed the defendants violated the Clean Air Act by failing to comply with the terms of its permits," Cambrians for Thoughtful Development could not prevail because the group did not have standing to sue.

The lack of standing, according to Crabb, stemmed from her conclusion that the violations that Cambrians for Thoughtful Development alleged were "not ongoing at the time and were unlikely to recur." Cambrians for Thoughtful Development was ordered in August to pay $2,500 in court costs for this suit, though the judge ruled against Didion's request that the organization also pay Didion's legal fees.

ljerde@capitalnewspapers.com

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