On August 2, 2002, Clean Water Action Council filed a Motion to Intervene in federal court in Milwaukee, to improve the federal, state and tribal governments’ proposed final settlement with Georgia-Pacific Corporation (G-P, formerly Fort James Corporation & Fort Howard Corporation).  The settlement (Consent Decree) attempted to resolve Georgia-Pacific’s liabilities for natural resource damages on the Fox River and Green Bay, due to toxic PCBs discharged by the company. 

Clean Water Action Council was represented by Melissa K. Scanlan, Executive Director of Midwest Environmental Advocates, an experienced Wisconsin attorney, and Michael D. Hausfeld and R. Joseph Barton, of Cohen, Milstein, Hausfeld & Toll PLC, experienced Washington DC attorneys and international negotiators. 

Federal Judge Lynn Adelman, in Milwaukee, presided over the case.

Judge Accepts G-P Settlement

We were disappointed to learn recently that Judge Adelman finally ruled on our challenge to the Georgia-Pacific settlement, and decided to approve the deal.

This was a settlement to compensate the public for decades of past PCB damages to the Fox River and Green Bay, and for future damages during the cleanup and from PCB residuals more than a century into the future.   Settlement funds are to be used for restoration and enhancement projects above and beyond simple sediment cleanup.

We had argued that the settlement was far too small, spent on the wrong kinds of projects, not distributed fairly and set a bad precedent.

Despite our frustration at losing the case, we did uncover many irregularies and gained several concessions from the state, federal and tribal governments which will improve future settlements with the other six PCB polluters.

A few examples:

1.  True Value Exposed --- If it weren’t for our lawsuit, the public would never know that the settlement was worth only $10.86 million, not the $16.1 million described in all the news media reports.   This is a $5.24 million discrepancy.   The governments claim the media made a reporting mistake (they didn’t, we were at the news conference too), but the governments made no attempt to correct the public’s impression of a $16.1 million settlement.  Many in the news media are angry about this, so they will be scrutinizing future settlements in detail.  The public, media  and government officials were badly misled during the 30 day public comment period.  This $10.86 million  is only 3.2% of the $333 million in PCB damages identified by the U.S. Fish & Wildlife Service four years ago, which was a low-end conservative estimate of the damages.  According to earlier DNR reports, G-P’s share of this damage was supposed to be approximately 22.5%.  (Our governments now claim that all these estimates were “for illustration purposes only.”  So the federal government spent $10 million and 8 years, with more than 80 world class experts, to arrive at damage estimates that the governments now prefer to ignore.  We need to watch this.)

2.  Recreation To Be Downplayed --- The governments promised the judge that this settlement would not be typical and that future settlements will de-emphasize recreation projects (docks, boat ramps, parking lots, walking trails, picnic areas) in favor of wildlife habitat enhancements and restoration, and direct water quality improvements, as prefered by public polls and at hearings, and as promised in the Restoration Plan.

3.  Distribution To Improve --- The governments promised the judge that future settlements will equalize the distribution of funded projects to better compensate the entire region damaged by PCBs, not just Brown County.

4. Restoration Plan Will Be Followed --- The governments promised that they would comply with the guidelines laid down in the federal final Restoration Plan for all future settlements.
This brings the state into sync with the federal Restoration and Compensation Determination Plan, a much better effort.

5. Future Settlements Higher --- The governments told the judge that G-P’s settlement was lower than expected only because the first company to settle should be rewarded for settling early. They promised that future settlements will “make up the difference.”  The other companies will be expected to pay more than their share.  

6.  Main Sources As Targets ---The governments said that the original producers of the PCB-coated carbonless copy paper (Appleton Paper and NCR Corporation) should pay a higher share of the total cost, as compared to companies like G-P that recycled the paper.

7.  State Actions Damaged Case --- The governments admitted that the competing state damage assessment (written by corporate consultants) did weaken the federal legal case, which increased litigation risks, just as we warned back in 1998.   The judge cited this litigation risk as a factor in his decision accepting the settlement.   We are outraged that the state helped the polluters escape justice in this way.   

Overall, we helped strengthen future settlements by making the agencies accountable and calling media attention to their actions.  Our legal efforts were  a good investment, but we must continue watching and speaking out on each settlement, to hold them to their promises.

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