Federal Actions Stir Progress

When the U.S. Fish and Wildlife Service initiated the federal NRDA process, they triggered an accelerated state effort to produce at least a semblance of action.
 
The Governor's clear goal during the first round of NRDA negotiations in 1996 was to give himself all decision-making authority, make the federal investigators subservient to him, and disempower the tribes.
 
When the federal and tribal negotiators refused to agree, Thompson initiated secret meetings with the polluters to pre-empt and undercut federal and tribal enforcement efforts with Thompson's $10 million settlement agreement with the polluters.
 
Throughout this controversy, the Governor has insisted he could do a better job than the federal government, yet the DNR has said repeatedly at dozens of meetings that it wants to pursue only voluntary efforts --- which unacceptably limits a sincere state NRDA effort.  If polluters know the Governor won't follow through with an enforcement action, they'll feel no pressure to settle fairly out of court.
 

Consequences of $10 Million Governor/Polluter Agreement

Gov. Thompson's surprise $10 million settlement contract with the Fox River polluters on January 30, 1997 created many serious concerns.  The full impacts are just now being felt.  The contract is full of ideas which favor the polluters and weaken enforcement.

•  No Public Involvement --- The public was completely excluded from all aspects of the decision process.  The Governor signed a binding contract with the polluters without any public input of any kind, before the public, media or federal agencies knew negotiations were being held.

•  Deceived and Manipulated Public --- The agreement was deliberately timed to upstage the federal Notice of Intent to sue, and create positive media coverage for the paper industry.  The Governor used his position to portray the industry's $10 million offer as generous and voluntary, an obvious public relations ploy to help the paper industry maintain goodwill in the community.  The Governor stated, "This action exemplifies good corporate ethic by enabling immediate action on behalf of the river."26

The public was also led to believe the polluters were paying for two demonstrations, which is untrue.  One project will be paid for by state taxpayers and $500,000 from federal EPA, not by the polluters.

After the Governor's announcement, the next day's news of the federal Notice of Intent to sue was covered as only a subnote on the Governor's actions.  The media were confused between the two government actions, so the news emphasis was on competing agencies, rather than the harm caused by PCBs.  It was perfect, from the paper industry's standpoint.

The Governor betrayed the trust of the federal and tribal negotiators, and this reflects badly on the State of Wisconsin.  His bad-faith actions threaten the integrity of future negotiations.

•  Governor Claimed All Power --- The agreement proclaims that the state will be the arbitrator of all natural resource claims, which ignores clear federal rights in this issue.

• Polluter-Friendly Litigation ---The agreement  states that if any Federal agency sends a Notice of Intent to sue, the State will file a claim against the companies in Federal court, and the parties to the agreement will seek judicial approval of the Governor/Polluter agreement as furthering the purposes of  CERCLA (the federal law which includes Superfund and NRDAs.)  This action seems designed to undercut the federal case and shelter the polluters from federal enforcement by having the state take over and handle the case more favorably for industry.  (This portion of the agreement has not been carried out yet.)

• Duplication and Competition --- A significant portion of the $10 million will be spent to write a state NRDA, to compete with the federal NRDA.   Gov. Thompson claims he can do the clean up more efficiently than the federal government, but this duplicate and competing NRDA is a clear waste of money.

The state's NRDA will focus exclusively on the Fox River and Bay within state boundaries; therefore, it will not be as protective of upper Green Bay or Lake Michigan as the federal NRDA.  It will also be written without input from the federal or tribal governments.
 
Duplicate risk assessments and economic analyses will be produced (by industry-chosen consultants) which will increase the risk of  litigation to decide which analysis is correct, the state's or the federal government's.  This portion of the agreement will undercut the federal government's case in court, and act against the public interest, because the state NRDA will give legitimacy to industry consultants in court.

• Polluters Control Consultants --- The agreement forces the DNR to accept polluter control over the  consultants who are writing the state's NRDA.

The irony is that Wisconsin has world class researchers, like Dr. Rich Bishop in Madison, who have conducted extensive local economic research.  The DNR should be allowed to use such experts.

Federal agencies require potential consultants to certify in writing that they have no "Conflict of Interest" with the polluters (potentially responsible parties).  They also require a "Past Performance Survey" in writing to document the history of the consulting firms.  And finally, they require a "Confidentiality Agreement," to ensure that all research and results by the consultant are not shared with the polluters or others who could interfere with the cleanup through litigation.  These three requirements were not used by Thompson's DNR when hiring or allowing industry to hire consultants for the state.
 
Federal agencies sometimes hire consultants who have conflicts of interest, but these federal agencies also insist on legal contracts which require the consultants to perform work to agency standards.  Contracts include a scope of work, schedules and deadlines, specific review and comment guidelines, requirements to incorporate agency comments, and penalties ($25,000 per day) for contract violations, and prosecution for lying.
 
The Governor/Polluter agreement lacks most of these quality controls, leaving the DNR powerless to control important activities of the industry consultants.
 
The agreement forces the DNR to legitimize in court industry consultants and lobbyists who are not working in the public interest.

• No Clean-up Standards ---The agreement includes no minimum criteria for cleanup performance, so the Governor's goals are undefined.  The agreement capped industry liabilities at Deposit 56/57 at $7 million, before the site cleanup options had been studied.  As a result, DNR staff are proposing solutions where minimizing cost seems to be the prime goal, rather than public or wildlife health.  DNR staff are proposing stop-gap solutions, such as simple landfilling rather than detoxification, and relaxation of water quality standards to allow wastewater discharges in violation of state water quality criteria.  Cost controls also seem to dictate how much of a sediment hotspot gets cleaned, rather that health-based standards.

• Industry Hopes to Show Failure? ---The Governor/Polluter Agreement calls the two projects "demonstrations" but they will add nothing new to our scientific understanding.  They are just dredge and landfill proposals, using methods already used elsewhere.  The projects do pose a risk however, because the polluters have a strong incentive to show a negative result, to help them argue against dredging and to save them millions in future cleanup costs.

Even before the Governor and the DNR examined cleanup options, they signed the settlement agreement which capped industry liabilities at Deposit 56/57 at only $7 million, which may be drastically less than needed to clean it correctly.
 
Industry proposes to cut a hole in a huge continuous bed of contaminated sediments to try to remove the worst PCB hotspot in the river (Deposit 56/57), by the Fort James Broadway Mill in Green Bay.
 
They propose to cut into a layer cake of contaminated sediments, exposing deeper PCBs, but may not have enough money to remove all they should.   This could increase PCB flows downriver.  The mills want to sample water and fish afterwards, but are likely to show no improvement or increased PCBs, because PCBs will still be present all around the site.
 
They may also demonstrate inflated costs, because they won't have the economy of scale of a large project which drives down unit costs.

• Too Little Money Overall --- The agreement says companies will provide up to $10 million, but could be less than 1% of the potential total cost of the clean-up.   The Remedial Action Plan Committees have estimated the costs could range from $300 million to $1.2 billion total, depending on the clean-up extent and methods.

At this rate, cleanup could take more than 100 years, assuming a similar $10 million contract occurred every year.  Meanwhile, people and wildlife will be poisoned.

• Undefined Money --- The $10 million has not been turned over to the DNR.  The polluters control the details of how the money is spent.  The agreement describes the $10 million as undefined goods and services, and the DNR staff have been given no budget describing consultant expenditures.

The DNR staff have worked for 1.5 years to get records from the Fox River Group of financial transactions under the terms of the Governor/Polluter agreement, to allow the DNR to determine how the consultant money is being allocated.  A month ago, the Fox River Group finally turned over a  box filled with a foot tall stack of papers with detailed expenditures, burying the DNR in paperwork.  At the same time, the DNR has also been deluged with information requests from the polluters, which the DNR is obligated to respond to, taking them away from their regular work.

• Unrelated Actions --- More than $400,000 of the $10 million is being used for unrelated projects --- such as parking lots at Point au Sable and recreational structures at Thousand Islands Nature Center.82

• Misleading Presentations --- The DNR and EPA have shown videos of hydraulic dredging and water filtration efforts at the Manistique Harbor dredging project, with the implication that these technologies will be used on the Fox River.  That dredging showed very little sediment stirring.

However, the DNR has hired a different contractor to perform dredging at Deposit N using a "swinging ladder" style of hydraulic dredge which is significantly different from the video --- a style which may result in more resuspension of sediments.
 

• Inexperienced DNR Staff --- The DNR staff are unhappy with the situation, but insist they are in control.  Unfortunately, none of the DNR staff have experience with this type of NRDA, or such major litigation.  The consultants are all experienced and, acting together, could overwhelm harried DNR staff, many of whom have other job duties as well.

DNR Report Sections:
 
  Twelve Years of Delay - A Fox River Clean-up Timeline
  Deals, Consultants, Paper Industry Allies, and Tourism
  The Health Risks of PCBs and Landfilling Contaminated Sludge
  Legislative Connections, Paper Company Economics, and Industry Control of the Process
  Conclusions and Recommendations
  The Paper Money Trail - Political Campaign Contributions to the Governor
  DNR Report Study Methods
  References