Midwest Environmental Advocates is a nonprofit environmental law center that works for healthy water, air, land and government for this generation and the next. We believe that every citizen has the potential to make a difference.

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CWAC v. Utica Energy

— When Utica Energy violated the terms of their water pollution permit, Midwest Environmental Advocates represented a local water quality action group, Clean Water Action Council of Northeast Wisconsin, to enforce environmental law.

Case Summary

Corn ethanol plants in Wisconsin have too often blatantly violate federal and state environmental regulations, shirking their social and environmental responsibilities.  Utica Energy, in Oshkosh, Winnebago County, was one such facility.  Constructed in 2002, Utica received a 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 repeatedly violated many of the terms and conditions contained in its WPDES Permit, including effluent limitations for temperature, total suspended solids, chlorine, zinc, oil and grease and phosphorus. Utica also violated several of the monitoring and reporting requirements of their permit.

In February 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 provided 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.

When Utica failed to address the violations, Midwest Environmental Advocates 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 sought 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.

In November 2009, Midwest Environmental Advocates filed a proposed Consent Decree with the Court, thereby ending the federal Clean Water Act citizen suit against Utica Energy.  The Consent Decree embodied the settlement agreement reached between Clean Water Action Council of Northeastern Wisconsin (CWAC) and Utica Energy resolving CWAC’s claims that Utica repeatedly violated the limitations in its wastewater discharge permit.

The Consent Decree required 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 came 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.