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Domino, et al. v. Didion Ethanol

— Didion Ethanol caused problems for citizens of Cambria, WI, for years. Neighbors stood up for their rights and demanded Didion stop discharging polluted waters to their Tarrant Lake.

Case Summary

Citizen Suit Enforcement Action: On April 9, 2009, on behalf of seven Columbia County residents, MEA filed a civil complaint against Didion Ethanol in the US District Court, Western District of Wisconsin, citing ongoing violations of Didion’s water pollution control permit and the Clean Water Act.  The complaint sought a court ordered injunction requiring Didion to fully comply with the terms of its WPDES permit, as well as civil penalties.  In November 2009, Federal Court Judge Barbara Crabb found Didion Ethanol violated the terms of its water pollution permit  on several occasions since the facility began operating in April 2008, by discharging pollutants such as total suspended solids, floating solids, and additives, in excess of permitted levels.

Soon thereafter, Didion Ethanol requested that the DNR revoke its discharge permit, stating that the facility would no longer discharge wastewater.  On March 5, 2010, the DNR formally revoked Didion Ethanol’s WPDES permit.  The facility is therefore no longer authorized to discharge wastewater to waters of the state.

In May 2010, the citizen plaintiffs reached an agreement with the company, settling their claims related to Didion Ethanol LLC’s discharge of polluted wastewater to the Duck Creek watershed.   As part of the settlement, Didion Ethanol will provide funding for critical environmental improvement projects in the surrounding community, including increased water quality monitoring, conservation projects, and building a pier to access Tarrant Lake.  Just weeks earlier, in a separate enforcement action, the Wisconsin DNR held Didion Ethanol financially responsible for numerous violations of its wastewater discharge permit.  

Because Didion Ethanol’s wastewater discharge pipe is capped, and the facility is no longer authorized to discharge polluted wastewater pursuant to a water pollution permit, the petitioners dismissed their challenges to the terms of the Didion WPDES permit.  

WPDES Permit Challenge:  In March 2008, the Wisconsin Department of Natural Resources (“DNR”) issued a water pollution permit, known as a Wisconsin Pollution Discharge Elimination System (WPDES) permit, to Didion Ethanol near Cambria, WI. The WPDES permit authorized Didion to discharge polluted wastewater from its new ethanol plant to a tributary to Duck Creek less than one mile upstream from its confluence with Tarrant Lake in Cambria, Wisconsin. Tarrant Lake, and its adjacent park, is the heart of the community of Cambria. The citizens of Cambria devoted time and resources to restore Tarrant Lake, from a lake dominated by algal blooms, crappie, and carp, to its former excellent panfishery. The DNR awarded a lake planning grant to develop a lake management plan for Tarrant Lake, creating optimism among local citizens that the lake will again provide an excellent recreational resource.

The petitioners were concerned that Didion’s wastewater threatened the future of Tarrant Lake, Duck Creek and its tributaries because Didion’s water pollution permit did not sufficiently limit pollutants discharged from the facility such as zinc, chlorine and arsenic. By law, these pollutants must be limited to protect the fish and aquatic life and recreational use of the waters. The petitioners also charged that the necessary antidegradation analysis – clean waters should remain clean unless lower water quality is necessary and will provide social and economic benefits – was not completed for Didion Ethanol’s new discharge. Without sufficient limits to protect Duck Creek and Tarrant Lake, the community feared revitalization efforts in these waters would be futile.

On May 27, 2008, Midwest Environmental Advocates filed a Petition for Administrative Review with the Wisconsin DNR, as well as a Petition for Judicial Review and Declaratory Judgment, on behalf of five Columbia County citizens concerned about the effects that Didion Ethanol’s polluted discharge could have on their local waters. The petitioners requested that the DNR review Didion’s WPDES permit as currently written and revise the permit to comply with state and federal clean water law.  The Petition for Administrative Review was granted in part and denied in part, and, on March 16, 2009, citizens petitioned for a judicial review of the Department’s decision to partially deny the Petition for Administrative Review – challenging DNR’s decision that citizens’ comments during the informal public comment period were inadequate to preserve a challenge to the permit.

When the citizens filed a federal Citizen Suit against Didion, the Petitions for Administrative and Judicial Review were stayed, pending the Federal Court’s decision.  When a settlement was reached in the Federal Suit, the Administrative Review and Judicial Review Petitioners were dropped.