Table of Contents

21% Increase in Pollution from Appleton Papers
Important Public Hearing!
PCB Polluter Sued by State
Fox River Peer Reviews Available
General Electric and the Paper Industry: Partners in Propaganda?
1999-2001 State Budget Highlights
Pesticide Database Partly Vetoed
200 Protest Power Line
Overfished Species
Clinton administration fails to enforce our environmental laws
What You Can Do

Gov. Thompson's DNR proposes to issue a 5-year wastewater permit to allow a 21% increase in pollution to the Fox River from the Appleton Papers Locks Mill in Combined Locks.
 
The mill currently dumps 9.23 million gallons of process wastewater
per day, and another 7.7 million gallons per day of noncontact cooling
water during summer heat.
 
The DNR proposes a "less restrictive wasteload allocation" for BOD
(Biological Oxygen Demand).

What is BOD?

BOD is a combined measurement of how certain wastes use up oxygen
as they decompose in the  river.   BOD limits are used on the Fox River to
ensure that the state's standard for minimum levels of oxygen is maintained
in Wisconsin waters.   For a "lower class" river like the Fox, the minimum
concentration of oxygen must be 5 ppm (parts per million) of oxygen.   For
high-class Trout streams, the oxygen levels are protected to much higher
levels.  Many aquatic organisms need oxygen in the water to thrive.  When
levels fall below 5 ppm, fish kills can occur.

Dividing the Pie

On the Fox River, many industries and sewage plants discharge huge
quantities of BOD, and in the 1980's, the DNR created computer models to
divide up the river and "allocate"  BOD shares to each discharger, with
everyone restricted just enough to maintain minimum water quality.  Now,
dischargers are allowed to buy and sell their "right" to pollute, as if our
public water were now a private commodity.

Permanent Pollution

In effect, DNR's "Wasteload Allocation" created a river in which
BOD levels will never improve beyond current levels.   Pollution permits
are called "Wisconsin Pollutant Discharge Elimination System"  (WPDES)
permits, but our DNR has no intention of eliminating pollution.
 
We had hoped to see at least marginal improvements over time as
some industries eventually closed or changed processes, but this proposal
shows otherwise: DNR argues that because Consolidated Papers closed its
pulp mill nearby many years ago, that DNR can now give their old allocation
to Appleton Papers.   This doesn't bode well for the future.

114 Dump Trucks

The proposed permit would allow Appleton Papers to discharge
1,850,550 pounds per year of BOD and 2,731,660 pounds per year of Total
Suspended Solids, based on monthly average discharges.   This equals 2,291
tons per year, or 114 dump truck loads of these 2 types of wastes, dumped
in the Fox River each year from just one company.
 
If a private citizen were caught dump ing just one small bag of
garbage in the river, they'd pay a hefty fine and be subject to scathing
criticism --- but when a corporation dumps hundreds of truckloads the DNR
shakes their hands and calls them"customers."

Reward for Good Behavior?

The irony of this situation is Appleton Paper's aggressive public
relations campaign to avoid cleaning up after their past wastewater
dumping.  They are responsible for the largest share of the PCBs in the Fox
River sediments --- which has caused hundreds of millions of
dollars of damage and threatened the health of thousands of people.
 
At the same time, they've been taking out full-page ads in many
newspapers in Northeast Wisconsin bragging about their environmental
leadership.
 
What have they done to deserve a 21% pollution increase?  Why
should we accept more pollution?
 
Appleton Paper has been claiming that since their PCB dumping was
allowed in the past (because of government incompetence and vague health
standards) under their old permits, that Appleton Papers is not responsible
now for the consequences.   This implies that they won't feel responsible
for the consequences of their new proposed permit either --- so perhaps we
shouldn't continue letting such bad actors use our river.
 
It's time for citizens to stand up and demand accountability when
irresponsible corporations poison a major public waterway.

Poor Monitoring and Possible New Toxicity

The permit also lacks adequate monitoring and health studies for a range of up to 500 different chemicals used in carbonless paper making.
 
Prior to 1972, PCB oil (polychlorinated biphenyl) was used by NCR
Paper (Appleton Paper) as the ink pigment carrier, encapsulated in little
beads on the back of carbonless copy paper.  When a person pressed down on
the top sheet, the beads on the back broke and transferred the PCB oil and
pigment to the next sheet.
 
When PCBs were phased out due to toxicity,  Appleton Paper, NCR
Corporation and other carbonless paper makers switched to using other
chemicals in place of PCBs.

Unknown Chemicals Accumulating in the Fox River

In  1983, Paul H. Peterman,a research chemist from UW-Madison produced a Masters Thesis entitled: "Polychlorinated Biphenyl (PCB) Substitute Compounds in the Fox River System: Their Identification and Distribution."
 
His research showed that several new carbonless chemicals were now
being discharged into the Fox River, but with inadequate toxicity tests to
determine longterm effects.   He also found that some of these chemicals
were persistent (like PCBs), accumulating in the sediments (like PCBs),
chlorinated (like PCBs), and had the potential to accumulate in fish and
wildlife downstream (like PCBs.)
 
More recently, carbonless paper chemicals are being investigated by
the National Institute for Occupational Safety and Health (NIOSH) for their
toxicity, due to pressure from office workers across the country who claim
they've developed chronic chemical sensitivities, allergies, and
occupational asthma from continuous exposure to carbonless forms.   Several
studies have documented many toxic chemicals used now for decades on these
forms.
 
But this proposed wastewater discharge permit for Appleton Papers
does not require monitoring for this wide range of chemicals, which means
we could end up with (and may already have) a new form of Fox River
contamination.
 
And Appleton Papers will probably claim again that it is innocent
and knew nothing of any health risks.
 
Please attend the public hearing on Wednesday, December 8 to make
sure this doesn't happen.

Important Public Hearing!

Please attend the public hearing concerning this pollution permit!

Wednesday, Dec. 8 --- 6:30 p.m.
Meeting Room 1, Third Floor
County Administration Building
410 S. Walnut Street, Appleton

Please write to DNR and tell them how you feel about this increased
pollution from Appleton Papers (refer to WPDES Permit #WI-0000990-6)
Comments are due by Dec 8

Write to:

 Mr. Mike Hammers - WT/2
 Wisconsin DNR
 101 S. Webster Street
 P.O. Box 7921
 Madison, WI  53707-7921

PCB Polluter Sued by State

Isn't this a great headline?   Too bad it's not happening in Wisconsin.
  
General Electric (GE) was sued this week by the state of New York
for PCB contamination in the Hudson River, with Attorney General Eliot
Spitzer, a Democrat, taking the lead.  Spitzer invited local governments
and private interests such as marinas and other waterfront businesses along
the nearly 200-mile length of the river to join in his suit or file their
own, on similar grounds.
 
"The legal theory, once we establish this legal theory, will open
GE up to damages that are vast, that will apply up and down the Hudson
River, and that will be monumental in scale," he said. "All the communities
up and down the river have been impaired because of the PCBs in the Hudson
- the value of property, the ability to get commerce through, jobs that
have been lost."
 
The suit does not address environmental and health effects of PCBs
because these issues are being pursued by the U.S. Environmental Protection
Agency, which has declared the river a Superfund site.  The  EPA is
expected to approve a final Superfund solution in 2001, deciding whether to
order widespread dredging of the river, which may cost GE $1 billion.
 
The state suit seeks "economic damages and to force GE to pay for
the dredging of the state-maintained Champlain Canal," which links the
Hudson River with Lake Champlain.   Dredging PCB-laden silt costs
approximately 10 times as much as it costs for non-contaminated sediment so
the canal has not been dredged in at least 15 years.   Spitzer says GE has
been dragging its feet for a quarter of a century and that the goal of the
lawsuit is to establish GE's responsibility for PCBs in the Hudson.   He
predicted an easy win.
 
Environmentalists support the suit because it will put added
pressure on GE to reach a settlement with EPA for large-scale dredging of
the river.  The Republican Governor, George Pataki, opposes the suit,
saying it interferes with the EPA's and his administration's efforts to
prepare a case and negotiate settlements with the company.  (EPA has made
no comment.)   Yet, environmentalists disagree and fear that any delay
beyond the year 2000 could put the EPA's case in limbo, if a new Republican
administration is elected in Washington that would be less likely to pursue
a Superfund enforcement.   They feel the state attorney general's suit is
vital for making progress.
 
Polychlorinated biphenyls, or PCBs, were used in electrical equipment made by General Electric.   The company estimates that its two plants on the Hudson, 50 miles north of Albany, dumped more than a million pounds of PCBs into the river, but Spitzer said the true figure was more than 100 million pounds.  General Electric argues that its dumping was legal, because no law explicitly prohibited it.  But others argue that the extent of the dumping made it illegal because it violated state clean-water laws, a position supported by Spitzer.
 
(From information provided in an article in the New York Times,  Nov 16, 1999)

It Could Have Happened in Wisconsin

Many people have wondered why Clean Water Action Council welcomes the federal government's involvement in  the Fox River cleanup, and the previous article illustrates this perfectly.  We simply haven't seen good leadership from our state
officials or agencies.
 
Wisconsin also has a  Democrat as Attorney General (James Doyle)
and a Republican Governor --- as described in the New York example.   But
our AG has only helped our Governor sign phony settlement contracts and
secret liability release deals with Fox River PCB polluters in Wisconsin,
and has shown no independent interest in protecting thousands of people
from PCB poisoning.

FOX RIVER PEER REVIEWS AVAILABLE

U.S. Environmental Protection Agency (EPA) and Wisconsin Department
of Natural Resources are making public two, independent peer-review studies
on cleanup of the Lower Fox River.
 
In September 1998,  EPA's contractor selected experts and
established two technical panels to review components of the draft Lower
Fox River Remedial Investigation and Feasibility Study (cleanup plan).
The first panel consisted of experts in Superfund data evaluation and
decision making.  A second panel included experts in natural recovery and
behavior of toxic chemicals.
 
The Superfund data panel concluded that environmental information
used to develop the cleanup plan supports moving ahead with a cleanup.  The
natural-recovery panel said that the natural-recovery option needed a more
complete evaluation.   Conclusions and recommendations of both panels will
be evaluated and incorporated into the cleanup plan.

EPA and Wisconsin agree:

1. with the panels' conclusion that existing information on similar
sediment cleanup projects is sufficient to make a final cleanup decision;

2. with the panels' assessments that the water-quality models used in the cleanup study appear to be appropriate for determining cleanup alternatives;

3. that a better explanation on the models is needed in the cleanup study; and

4. that further comparisons between natural recovery and other cleanup
options are needed.

General Electric and the Paper Industry: 
Partners in Propaganda?

Clean Water Action Council has attended several regional and
national meetings with other citizen groups fighting toxic pollution in
their communities.   As a result, we've talked with leaders of groups on
the Hudson River in New York, the Housatonic River in Massachusetts and
other PCB contaminated waterways -- and shared notes about our similar
problems, cleanup technologies, legal battles, government political
shenanigans, and industry manipulation.
 
It's amazing how the polluters seem to use the same themes, even
the exact same SENTENCES, in their public relations campaigns:
 
For example: at a recent hearing in Albany NY, General Electric
brought out all its big guns to attack the dredging of the Hudson to
remediate PCBs, including making sure that local politicians, business and
Farm Bureau folks came out to attack what they call the "dredge and dump"
plans for PCBs that they ascribe to EPA and environmental groups.
 
On the Fox River, the paper industry is orchestrating much the same
scene --- frightening local business leaders and public officials about the
economic and environmental risks of dredging and landfills --- playing on
people's fears of action.   They've managed to convince many good-hearted
people that "maybe it's safer just to leave the PCBs buried where they
are."  (... though the PCBs are NOT safely buried, they're moving
downstream in large quantities... and poisoning a food supply for thousands
of people....)
 
General Electric and the paper industry are both pushing "natural
recovery" as their preferred option, (as if PCBs were "natural.")
 
It's important for citizens to remain alert to very subtle media
messages and emotional manipulation from the high-paid public relations
people hired by these industries.  This high stakes battle is due to heat
up over the next 6 months.

1999-2001 State Budget Highlights

On October 27, the State Budget was finally signed into law, after
a number of  Gov. Thompson's vetoes.  Overall, the DNR received a net
increase of four full-time permanent staff positions.  (DNR lost about 400
staff in the 95-96 budget, so this keeps the DNR at that smaller size.)

Stewardship 2000 Program reauthorized at $460 million over the next 10
years. The expiring Stewardship program had been funded at $230.1 million
dollars for 10 years. The reauthorized program doubles that amount (to
account for inflation). Stewardship money is used primarily for state land
acquisition and development; it also provides matching grants to local
units of government and nonprofit organizations who spearhead land
preservation locally.

Conservation Reserve Enhancement Program --- This program, to be overseen
by the Department of Agriculture, Trade and Consumer Protection in
consultation with the DNR, provides approximately $200 million ($40 million
state, $160 million federal) for acquiring 100,000 acres of agricultural
land easements. The easements would be used mainly as buffer strips along
streams to protect water quality but also to provide wildlife habitat.
  
Unfortunately, the Governor vetoed several requirements for
Wisconsin's participation in this Program, such as the requirement for
permanent easements, which would have been the best way to make this
program effective.

Fish and Wildlife Conservation   The source of this $5 million biennial
funding - tribal gaming funds - is significant because it is the first
major influx of "alternative funding" to the department's Fish and Wildlife
Account, which is funded by conservation license fees. This gaming money
allows the agency to continue current operations without raising hunting
and fishing license fees. Hunters and anglers have asked the department to
seek funding from non-license sources to keep license fees down and to
encourage people who do not buy licenses to help pay for natural resource
management activities.

Recycling is Endangered.  The state's decade-old and most popular
environmental program was due to expire December 31, 1999. Wisconsin leads
the nation with 41 percent of municipal garbage being recycled and 97
percent of Wisconsin citizens participating. The new budget acknowledged
recycling's success and popularity by making the program "permanent" by
allocating from general tax revenues $24.5 million the first year, an
increase of $500,000 a year, but only $20 million the second year of the
biennium.   The business surcharge which had funded the program for the
first 10 years was ended.
 
Unfortunately, the longterm funding mechanism was vetoed by the
Governor, when he drastically reduced the landfill tipping fees which were
passed by the state Senate and Assembly.    ("Tipping Fees" are the per ton
fees charged when waste is delivered and "tipped" into a landfill.)
 
The legislature had recommended a new $2.00 per ton fee for regular
wastes, and a $.30 per ton fee for high-volume industrial waste, to
compensate for the phase-out of the business surcharge.   But the Governor
reduced the fee for regular wastes to only $.30 per ton, and completely
eliminated any fee for high-volume industrial waste.
 
Note that this shifts the burden for recycling from the high volume
waste generators and industrial manufacturers, to the general taxpayers who
will pay for the landfill tipping fees through their municipal or county
property taxes.   So those who produce huge amounts of waste or who
manufacture the wasteful packaging and millions of frivolous disposable
products will not be penalized.   They will have no incentive to reduce
their wasteful habits or produce more durable goods.
 
The Governor also vetoed a DNR landfill remediation study and toner
printer cartridge recycling provisions.

Brownfields Program.  This program provides state assistance and funds for
redevelopment of contaminated lands, especially in urban areas.  The
department received $1.45 million in new site assessment grants and seven
new staff positions. The Department of Commerce received $2.2 million in
cleanup grants, and $2.40 million of Sustainable Urban Development Zone
grants were awarded to Milwaukee, Green Bay, La Crosse, Oshkosh and Beloit.
    
Unfortunately, this program often allows the polluters to escape their cleanup responsibilities, while forcing taxpayers to pick up the clean-up costs.

Non-point water pollution.    "Non-point" is the general land run-off of
contaminated stormwater or snowmelt.  There's a 32 percent funding increase
for water quality protection efforts for rural nonpoint source pollution
abatement projects and a 72 percent increase for urban nonpoint source
pollution abatement, municipal flood control and shoreline restoration
projects.    Non-point has been grossly underfunded for decades, so these
seemingly large increases are minor compared to the true need.   The DNR
and state Department of Agriculture jointly administer the nonpoint program,
 
Unfortunately, the Governor vetoed important sections of the
funding for the urban nonpoint program.  This is the most important water
quality issue this state will face in the next decade.  We need to leverage
every dollar possible to tackle this problem.

Nonprofit conservation  This budget provides increased funding,  $750,000,
for nonprofit groups to help them build their capacity for participating in
local conservation partnerships. These partners are the River Alliance, the
Ice Age Trail Foundation, the Natural Resources Foundation, the Urban Open
Space Foundation, Gathering Waters and Becoming an Outdoors Woman.

Landuse --- Creation of a "Smart Growth" land use program for Wisconsin.
Sound land use is critical to all state programs and probably the greatest
long-term challenge for natural resource management in Wisconsin.

Air emission fees were increased $.86 a ton annually.   An increase in the
cap on air fees from 4,000 to 5,000 maximum billable tons also provided
about $1 million in new revenue. Recent action by the Natural Resources
Board also increased fees for new source construction permits.  However,
the DNR received significantly less in the budget than it requested.  The
DNR's Air Management program has a number of vacant positions it needs to
fill, and this funding falls short, which endangers the quality of DNR's
air quality program.

Wisconsin Water Initiative. The number of water regulation and zoning staff
will increase, but this only partly addresses long-term critical needs to
provide protections vital to the health of Wisconsin's shorelines and
wetlands.  (Originally, DNR studies had shown that the workload actually
required over 50 new positions, but they requested only 12 and received
only 7.)   Through the state master lease program, the department will gain
over $1.5 million in information technology-related goods and services that
will provide tools to make shoreline/wetland protection efforts even more
effective.

River Protection Grant Program.  This is the rivers counterpart to
Wisconsin's Lakes Protection program.   The Wisconsin Rivers and Streams
Protection Grants Program is a public/private initiative designed to help
clean up rivers, better manage river corridors and watersheds, and protect
future river health through an investment in community-based watershed
stewardship.  The budget includes $375,000 in Fiscal Year 2000 and $
375,000 in Fiscal Year 2001 for the initiative.  The idea behind this
proposal is to use state dollars to leverage private funds and tap local
volunteer energy and know-how to protect our 40,000 miles of highly prized
rivers and streams.
  
Unfortunately, the Governor vetoed funding for a watershed center
at the University of Wisconsin-Stevens Point and funding for a position at
DNR to administer the new grants program, which could seriously hamper the
success of the program.

Wetlands Political Influence -- Two wetland fills (in Trempealeau County-15 acres and Dunn County-4.2 acres) were legislatively authorized after the department indicated that permits would not be granted. Environmental groups have already filed legal challenges to these legislative provisions on constitutional grounds.

Forestry Program. Improvements included five new forestry positions for
private land management assistance; $150,000 to contract with private
foresters to increase private forest land management; $412,000 annually to
complete statewide forest inventories; and $291,300 annually to contract
with UW-Extension for four forestry basin educators and four half-time
support staff positions. The department also received funding enabling the
agency to contract with local fire departments for equipment plus $85,400
for the Federal Excess Property program.     A new Forestry
Division Administrator position was created.   As DNR Secy. George Meyer
stated, "I hold some reservations about this action because it marks the
first time in Wisconsin conservation history that a political appointee
rather than a civil service employee will head a single DNR program
function."    Could this be further evidence of the politicization of the
DNR?

Elk and whooping crane reintroduction programs were created in the DNR,
including $200,000 biennially and a half-time position for elk and $196,150
and a half-time position for whooping cranes.

Parks  Five additional parks positions were created to improve parks
service. Several parks will be able to hire full-time rather than seasonal
staff to better meet the increasingly year-round needs of our state park
visitors. A new parks reservation coordinator was created to support the
modernized campsite reservation system the department launched earlier this
year.
 
Unfortunately, the Governor transferred $6 million from the State
Forestry Account and $1.13 million in the State Parks Account into the
state general revenue account for tax reduction purposes.
 
Department efforts did prevent the Forestry reductions from
becoming permanent biennial funding cuts. We also obtained a veto from the
Governor to prevent another $1 million loss from the Parks Account.

Outdoor Education --- Outdoor skills for urban families created. The budget
provided one position and authorized $75,000 from the Parks Account to
develop an outdoor skills education program targeted to urban families and
other nontraditional outdoor recreational groups.  The program will focus
on teaching skills necessary to participate in camping, hiking, hunting,
fishing, canoeing and other forms of natural resource-based outdoor
recreation.

Leaking Underground Tanks  Further reduced the DNR's role in the
Underground Storage Tank Cleanup program, which is housed in the Air &
Waste Division's remediation and redevelopment program. There was
overwhelming legislative support to transfer authority for closing out more
cleanup sites to the Department of Commerce despite DNR efforts to fight
the transfer. DNR continues to face workload needs for this program that
exceed what current agency staff can accomplish.

Administrative Funding was cut in the DNR's Fish and Wildlife Account. 
The budget included language stating that the DNR can use no more than 16
percent of expenditures from the Fish and Wildlife Account for
administrative costs. Important department functions that could face
potential staff and funding cuts as a result of this cap include human
resources, information management, communication and education, and
division and field administration. The cut grew out of a 1998 Legislative
Audit Bureau report that examined administrative overhead and other fish
and wildlife account expenditures at the DNR.   The DNR has
challenged some of the audit's conclusions about administrative overhead
costs.

Cost Sharing Requirement --- The River Alliance has expressed
disappointment that the Governor did not veto a portion of an amendment to
require state or federal cost sharing as a part of any state effort to
require fish ladders at dam sites.  This provision raises serious financial
liabilities for the state with no identifiable benefits.

PESTICIDE DATABASE
Partly Vetoed

In past newsletters, we've described the importance of having
accurate information about pesticide use in Wisconsin.
 
The Wisconsin Legislature agreed and included funding to develop
and pilot test a pesticide sales and use database reporting system for the
state.
 
The legislature's Joint Committee on Finance set aside $250,000 of
segregated funds from the agricultural chemical management fund, created
from user fees for the purpose of regulating chemical use related to
agricultural production and commercial applications.   The Committee also
provided $150,000 from the environmental fund of the Dept. of Agriculture,
Trade and Consumer Protection.
 
Unfortunately, the Governor vetoed the funding from the agricultural chemical management fund.  He also eliminated the requirement for the department to contract for database development and the due date of the plan because, according to the Governor, " they are either inappropriate or overly restrictive."
 
The Governor left $150,000 for the department to "study" the
development of a pesticide database.   He asked the department to seek
"consensus" in developing a plan for review by the Joint Committee on
Finance before Dec. 31, 2000.
 
Essentially, the Governor got what he originally wanted, a study,
and ignored the wishes of the legislature, though the database had broad
bi-partisan support.

200 protest power line

One of the biggest and strongest citizen coalitions in recent memory has been forming due to the proposal to build a huge 250-mile power transmillion line across central and northwestern Wisconsin.
 
The threat of the transmission line - the biggest built in Wisconsin in decades - brought some  200 people living on or near the path of the line to drive to Madison in early November to express their opposition.   The group showed up at the Public Service Commission and later at the Capitol to air its concerns.    Some met with PSC staff members, but the new media were barred from this meeting.   (...open
meetings law violation?...)   Seven state lawmakers spoke to the crowd and
encouraged them to continue their fight against the project.
 
Wisconsin Public Service Corp. of Green Bay and Minnesota Power
Inc. of Duluth, Minn., have filed their plans for the $125 million to $175
million transmission line from Wausau to Duluth.
 
The state's utility industry, numerous business interests and
utility regulators all say that the state desperately needs more power
plants and transmission lines to move power through the state's energy grid
--- but many citizens believe improved energy efficiency, conservation and
other alternatives could do a healthier job of meeting public needs.
 
Many people also question whether the energy is for Wisconsin, or
would simply be shipped elsewhere on the handy new transmission lines.
According to a recent Milwaukee Journal article, transmission lines are
used to move bulk loads of power over long distances.   A 345-kilovolt
line, like the one proposed, is the largest capacity line used in the
state.   The lines have increasingly been used - and overburdened - since
the federal government allowed utilities located hundreds of miles away to
use them to buy power from each other.
 
In this case, the transmission line would be on towers 90- to
120-feet high every 800 feet.
 
Environmentalists fear the power line will spur the development of
more mine projects in northern Wisconsin.   Mining and metal smelting use
large amounts of power.
 
Representatives of Save Our Unique Lands, or SOUL, one of the
leading citizen groups opposing the project say that the transmission line
would drive down property values and ruin the beauty of the North Woods.
   
SOUL cited a 1992 study in the Journal of Real Estate
Research, which said that affected property values dropped by a mean of
nearly 8%.
 
They're also concerned that the power line's electromagnetic field
could cause health problems for those living nearby.
 
SOUL is seeking state intervenor funding on the case, a matter
which will be decided by the three-member Public Service
Commission next year.  (... the members are all appointed by Gov.
Thompson...)
 
The group has also hired Ed Garvey, a Madison lawyer and former
Democratic candidate for governor.   They are also hiring
their own experts to refute the need for the project.
 
If the PSC ultimately approves the project, Garvey said, SOUL would
file suit.

(From information provided in the Milw Journal Sentinel on Nov. 10, 1999.)

OVERFISHED SPECIES

98 species of fish in the United States are overfished, with the
status of more than 670 other species unknown, reports the Commerce
Department. Passing all past records, the number of overfished species is
up from 90 since last year, with another five nearing that category. The
Department warns that the increased numbers could reflect the new, more
complicated definition of overfishing that takes into account both
mortality rates and stock size of a species. A fishery is considered
overfished if the number of fish being removed exceeds the number being
replenished or if the stock cannot sustain itself at current fishing levels.

$150 Million in Lost Fishing Opportunities Due to PCBs

The U.S. Fish and Wildlife Service (Service) estimates $150 million
in public damages due to the impacts of Fish Consumption Advisories for
PCB's (polychlorinated biphenyls) in the Fox River and Green Bay areas of
Wisconsin.
 
That figure was included in reports for the Fox River/Green Bay
Natural Resource Damage Assessment (NRDA) being jointly conducted by
federal agencies, the Oneida Tribe of Indians and the
Menominee Indian Tribe.
  
The latest findings are outlined within the three reports (Recreational Fishing Damages From Fish Consumption Advisories In The Waters of Green Bay, Fish Injury, and Water and Sediment Injury).
 
The Service reports resulted from "following intensive studies,
rigorous methodologies and very conservative assumptions, which include
factoring in a cleanup proposed by the Wisconsin DNR," stated a Service
spokesman.  "However, a less-complete cleanup would increase damages
further.  Additional economic studies which look at injuries beyond fish
consumption advisories are nearing completion as well."
 
The reports also cover determinations of injuries to fish, and
damage to water and sediments as part of the Fox River/Green Bay NRDA.
These determinations show the widespread and long-lasting effects of PCBs
on the public's natural resources.
 
Historically, every species of sport fish in the Lower Fox River
and all of Green Bay have had fish consumption advisories for decades.
Additionally, studies show that Green Bay walleye have very high levels of
PCBs and liver tumors, and all of the waters of the Lower Fox River and Green Bay
exceed federal and state water quality criteria for the protection of
aquatic life and wildlife.
 
The Service also conducted an extensive study of lake trout
reproduction showing that there is still no recorded survival after
hatching anywhere in Green Bay or Lake Michigan.   PCB's, long thought
to be the primary factor for continuing lake trout reproductive failure,
appear less important than egg thiamine deficiency.  Egg thiamine
deficiency is believed to be associated with alewife in the diet since the
introduction of alewife to the Great Lakes.
 
The Service and its co-trustees plan to release additional economic
studies in the coming months, in association with next year's release of
the Wisconsin DNR's Superfund studies conducted for the EPA.  The
co-trustees plan to release determinations of actual restoration projects
needed to restore the Fox River and Green Bay, as well as determinations to
compensate the public for losses.

Understated Costs

The reports are actually major understatements of total economic
harm from PCBs, because they don't include economic losses of anglers who
haven't fished these waters for years due to the PCBs --- the studies only
calculate economic harm to people who DO fish these waters.  The costs of
lost drinking water and other economic activities is also not included, nor
is the cost of expensive channel maintenance for the Brown County Harbor or
private marina operators, as well as other major costs due to PCB
contamination.

OVERFISHED SPECIES: 98 species of fish in the United States are overfished,
with the status of more than 670 other species unknown, reports the
Commerce Department. Passing all past records, the number of overfished
species is up from 90 since last year, with another five nearing that
category. The Department warns that the increased numbers could reflect the
new, more complicated definition of overfishing that takes into account
both mortality rates and stock size of a species. A fishery is considered
overfished if the number of fish being removed exceeds the number being
replenished or if the stock cannot sustain itself at current fishing levels.

From: Kelley.Jeff@epamail.epa.gov <Kelley.Jeff@epamail.epa.gov>
To: Multiple recipients of list <eparegion5news@valley.rtpnc.epa.gov>
Date: Friday, November 05, 1999 12:14 AM

Clinton administration fails to enforce our environmental laws

 Robert Worth

When Newt Gingrich and his fellow Republicans forced a temporary government
shutdown in late 1995, Environmental Protection Agency Administrator Carol Browner scored points for the president by warning that "the environmental cop is not on the beat." Her warning worked. The image of government standing idly by whilecorporate polluters fouled the air and water was an effective scare tactic,
and it was credited with helping to ward off deeper cuts in environmental
spending.

Yet Browner's image was a little disingenuous, even at the time. As House
Commerce Committee Chairman Tom Bliley observed less than a year later, the
environmental cops appeared to have been "at the donut shop all along." In
a press release, Bliley noted that "inspections of toxic waste sites are
down, administrative actions against polluters are down, civil penalties
are down, and so are criminal penalties."

Since then the environmental cops have strayed even farther from their
beat, but no one in Congress--or anywhere else, for that matter--seems to
care. Promoting a new philosophy of "compliance assistance," state and
federal regulators now focus more on educating polluters than inspecting
them or punishing them when they break the law. The result has been a
precipitous nationwide drop in enforcement activity. Over the past five
years inspections, referrals for civil or criminal prosecution, and
sanctions--including fines--have dropped in almost every state. In some
cases the drop has been more than fifty percent, and hazardous waste
inspections have declined more than anyother category. Although many of the
worst offenses have occurred at the state level, the EPA has been remarkably
lax in its oversight role. "Browner has massively disinvested in
enforcement," says one former high-level EPA official.

Environmental officials are quick to respond that measuring inspections and
fines doesn't tell you whether the air or water is getting any cleaner. After all, if everyone were to comply with the law, enforcement activity would drop to
zero (inspections aside).

Unfortunately, that is not what has been happening. It's true that we've
made some enormous strides in protecting the environment over the past 30 years. Catalytic converters have made cars far cleaner than they used to be, and
removing the lead from gasoline has made all of us breathe easier. Many
nearly extinct species have recovered, and forests have returned to barren areas throughout the country.

But these gains could be reversed if we don't do a better job of enforcing
the law. Ground-level ozone, which causes a range of respiratory ailments, remains a serious health risk in most American cities, and in some areas it's getting
worse. Many of the industrial sources that create the bulk of ozone-forming
polllution are in violation of the law.

According to a recently-released study of EPA records by the Environmental
Working Group, almost 40 percent of
major U.S. auto assembly, iron and steel, petroleum refining, pulp
manufacturing, and metal smelting and refining
industries were "significant violators" of the Clean Air Act between
January 1997 and December 1998. Only one
third of them have been fined, and the fines were almost always too small
to have any deterrent effect. According to
the report, EPA oversight of state enforcement is "virtually nonexistent."

Or consider water. In early September over 1,000 people drank contaminated
water at a county fair in upstate New
York. Two died and 65 others were hospitalized. If you think this couldn't
happen to you, think again. A recent
federal audit found that nearly 90 percent of all violations of the Safe
Drinking Water Act go unreported. Some of
those violations are harmless data-entry errors, but they also include
potentially lethal problems such as contamination
with pesticides and fecal coliform bacteria.

Meanwhile, 40 percent of U.S. waters are unsafe for fishing and swimming.
Why? EPA studies have found that 40 to
50 percent of major water pollution sources are in significant
non-compliance with the Clean Water Act. The true
figure could be far worse, because, according to a report written by
current and former environmental officials and
published by Public Employees for Environmental Responsibility, the EPA
does a stunningly poor job of monitoring
water quality. The report concludes that the states are "free to manipulate
numbers in order to falsely portray
continuing progress in water quality when, in fact, what fragmentary
reliable information exists often suggests the exact
opposite."

Or consider what has happened to the coal mining industry during the
Clinton-Gore years. Strip mining operations
frequently contaminate drinking water, destroy topsoil and forests, poison
workers, and damage houses. That's why
they're governed by one of the strictest environmental laws on the books.
Lately, however, that law hasn't meant
much. In West Virginia, the second-largest coal-producing state, federal
and state regulators made 470 inspections of
mines in 1993, and found 514 violations. In 1998 they made 92 inspections,
and found 67 violations. "These coal
companies didn't just get religion after 1993," says Carolyn Johnson of the
Citizens Coal Council. "The Clinton
administration made a conscious decision to back off enforcement of the
federal mining law."

The problem is worst at the state level, where 90 percent of all
environmental enforcement is carried out. When the
states do discover violations, according to Nikki Tinsley, EPA's Inspector
General, they often assess penalties that
are too small to offset the economic gain a polluter has reaped by breaking
the law. Moreover, enforcement
approaches vary wildly from state to state. This variability defeats the
whole purpose of federal environmental laws,
which were passed three decades ago to supply a common standard, so that
poor states would not compete for the
business of polluting industries in a "race to the bottom." That race is on
again, according to many observers, and the
EPA has done precious little to stop it. "The states don't like to enforce
the law, and frankly EPA doesn't like to
enforce the law either," says one former high-level EPA official.

EPA officials respond that their own (federal) enforcement program is in
good health, and there is some evidence for
that: fines collected from polluters and civil referrals to the Justice
Department have grown in recent years. Yet in its
larger role as a watchdog for the states, the agency has been far from
vigilant. In 1998 the EPA's Inspector General
released a series of reports blasting several states for failing to police
clean air and water laws. The stakes got higher
a few months ago when a reporter for the trade journal Inside EPA began
publishing internal EPA documents
(acquired through Freedom of Information Act requests) that showed a
drop-off in enforcement in almost every state.
Amazingly, not a single mainstream newspaper or magazine reported on this.

When the reports were published in May, the states angrily disputed them.
There were, in fact, some glaringly
obvious arithmetical errors and a number of inaccurate statistics. But if
the data are faulty, the states are partly to
blame, because they submit them in the first place. "It's not clear that
anyone oversees or checks them," says one
veteran EPA observer. "The databases are all old, and they don't
communicate with each other." The feds are at fault
too, because they're supposed to be supervising this process. Instead, they
often create more problems by failing to
add and tally the data accurately. In some cases the EPA's pollution
categories don't match up with those of the
states. Sometimes even the EPA's own categories don't match up from year to
year. This smog of confusion is
self-perpetuating, and it makes it very hard to hold anyone accountable for
failures to apply the law.

Still, the EPA will admit that enforcement activity has declined, as will
some state officials--off the record. That's
when you start hearing about how the traditional "bean counting" approach
to enforcement is obsolete, and how we
need to emphasize helping businesses to comply, not policing them. As
Virginia's Secretary of Natural Resources told
Congress in 1997, "[t]he truth is that enforcement action means failure,
not success." Businesses understand the need
for a clean environment and want to abide by the law. What they need is
trust and encouragement, not the big stick.

Carrots, Not Sticks

This approach, known as "compliance assistance," first emerged at the EPA
in 1993 when Administrator Carol
Browner approved a massive reorganization of EPA's enforcement office,
renaming it the Office of Enforcement and
Compliance Assistance. Initially, compliance assistance was viewed as a
supplement to traditional
"deterrence-oriented" enforcement tactics like inspections and fines.
Environmental laws can be dauntingly complex,
and many businesses--especially small ones--lack the money and know-how to
comply. Putting more effort into
training made sense.

Yet compliance assistance took on a new coloration after the Republicans
swept Congress in 1994. Suddenly EPA
was under ferocious attack, with Tom DeLay labeling it "the Gestapo of
government" and Newt Gingrich calling it the
enemy of small businesses across the country. Although the Republicans'
fury subsided in '96, Browner was clearly
under pressure to help the administration forge a political compromise with
Congress and with the states, where a
legion of newly-elected Republican governors was complaining about the
costs of regulation.

The substance of this compromise was a stronger emphasis on compliance
assistance, at the expense of traditional
enforcement. At EPA headquarters, for instance, the number of people doing
enforcement work dropped from 340
in 1993 to 140 in 1997. The states, which embraced compliance assistance
much more quickly and wholeheartedly,
tended to make deeper cuts in enforcement budgets and staff, with
predictable results.

Some environmental observers argue that Browner should have known better.
"Compliance assistance has always
been a code word for ådon't enforce the law,'" says one former EPA
official. While that may be an overstatement,
there's little doubt that the promoters of compliance assistance have
exaggerated the rigidity and harshness of
traditional enforcement. "Generally, [violations] have to be repeated and
serious before they're even considered,"
says Clifford Rechtschaffen, an enforcement expert and professor at Golden
Gate Law School. One extensive study
of the Clean Water Act found that "the intent of the enforcement process"
as it has traditionally been practiced is "not
to punish violators but rather to coax them toward compliance."

This is not to say that helping companies comply isn't a good idea. It is
telling, however, that when asked for a
"compliance assistance" success story, or some indication that the new
method works, EPA officials I spoke with
were stumped. Finally I was referred to a program that educates drycleaners
on how to properly dispose of the toxic
chemicals they use. The federal EPA office based in New York City sought
out over 200 drycleaners and even
printed up instructions for them in Korean, just to make sure they
understood what was required of them. But when I
called the New York office to find out how the effort was going, I was told
"Unfortunately, we've found that there's
still only a very small number of drycleaners in compliance, and we've had
to move back toward an enforcement
approach."

Part of the problem with compliance assistance is that its successes are
hard to measure. A 1998 GAO study found
that there is no clear indication of how such efforts are working. When
federal and state agencies do try to measure
them, they use relatively meaningless indicators such as the number of
brochures distributed, or names on a
conference sign-in list. Talk about bean-counting.

Whatever the original goals of compliance assistance, there's no question
that its "flexible" and "business-friendly"
aspects are what have made it catch on like a cult in statehouses across
the country in the past five years. Some
states have supplemented the new approach with cabinet-level offices to run
interference for businesses, helping them
to cut deals or avoid penalties. Former Virginia Gov. George Allen
pioneered this movement, modeling his own effort
on former Vice President Dan Quayle's Council on Competitiveness, which
became notorious during the Bush
administration for its efforts to gut environmental laws. New York Gov.
George Pataki has followed suit with the
Governor's Office of Regulatory Reform. Technically, the office existed
before, but only as a three-person
ombudsman for small businesses. Now staffed by about thirty, the office was
developed by Pataki's current budget
director Bob King, and "they are in the driver's seat when it comes to
environmental regulation," says one source in
the New York state government. "They've had a major chilling effect on
enforcement."

There's also no doubt that when states use compliance assistance without
holding businesses accountable through
inspections and a credible threat of enforcement, they are virtually
inviting polluters to ignore the law. "There's been a
massive shift in the approach to enforcement," says one New York state
official. "The [enforcement] numbers have
gone down. When you confront [agency officials] they say compliance is up.
But there's no way to check. What I've
heard from business is that no one is watching. They couldn't be happier."

Taking It Easy

An avalanche of anecdotal information suggests that in this new era,
officials who prosecute the law vigorously are
often pressured to cool it. If they don't, they face retaliation. Consider
Captain Ronald Gatto, a cop in New York
City's Department of Environmental Protection. You might suppose that Mayor
Rudolph Giuliani would be proud of
Captain Gatto. After all, Gatto has a law enforcement record to match Mayor
Rudy's. He has personally made 156
arrests for environmental crimes since 1990, with a 100 percent conviction
rate. The DEP's police unit is tiny, and
local environmentalists claim that Gatto is almost single-handedly
responsible for protecting the network of reservoirs
that supply the city's drinking water.

But instead of rewarding Gatto for his good work, Giuliani's administration
has subjected him to a steady campaign of
harassment, including denial of pay raises and promotions, and a series of
probes of his conduct by the city's
Department of Investigations, all of which came up with nothing. (In one
instance the investigators broke into his
office and stole his personal and police documents.) Gatto and his unit
have been so starved of necessary equipment
that he was forced to buy his own police telephone, fax machine, video
camera and the dye tablets necessary for
conducting wastewater investigations. In June he was reassigned away from
enforcement activities and effectively
demoted.

Giuliani's critics claim that his reluctance to police the watershed is a
favor to upstate developers and politicians, who
don't like to see environmental laws getting in the way of business, and
whose support happens to be vital to Giuliani's
upcoming Senate bid. Whatever the reasons, there's no doubt that the mayor
is flirting with disaster. If its water
supply deteriorates much further, the city will be forced under federal law
to construct a filtration plant for $8 billion,
at an annual operating cost of $300 million. By then, of course, Rudy will
either be sitting in the Capitol or in his
favorite lawn chair. Either way, he won't be mayor.

Stories like Gatto's may sound like something out of the movie "Chinatown"
to the rest of us. But some regulators say
they're run of the mill. Take Beverly Migliore, who had been running the
Rhode Island Department of Environmental
Management's hazardous waste program for eight years when the department
was reorganized in the mid-1990s.
"We were under lots of pressure to be more business-friendly," says
Migliore. Suddenly, her new supervisor began
finding fault with her decisions. "I'm not a strict, high-penalty close-
'em down kind of person," she says, but it soon
became clear that her new supervisor "didn't believe in assessing penalties
or even strongly worded statements." He
began overriding her decisions, with the approval of the program director.
In one case, a company called American
Shipyard left drums full of solvents festering in a Newport shipyard for
several years. Worried that the drums would
erode and leak solvents into the bay, Migliore pressed her superiors to do
something for two years. Finally she gave
up and made a public statement. "Then I came back one afternoon and found
my chief wheeling my computer out of
my office into a closet." She is now suing the department under state
whistle-blower laws.

A few months ago the EPA's Inspector General filed a report that backs up
Migliore's claims, calling the state's
enforcement "inadequate" because "serious violations, such as leaking
battery acid and drums of hazardous waste, did
not receive formal enforcement actions. Thus, the health and protection of
the state's population and environment was
put at risk."

A series of recent federal audits suggests that Migliore's experience is
common in state enforcement bureaucracies.

--In Florida, an Escambia county grand jury issued a 120-page report in
late June condemning the state Department
of Environmental Protection and demanding that its regional director be
replaced. Pointing to extensive pollution of
the bays, rivers, bayous and beaches of the Florida Panhandle, the report
concluded that "[t]he district [DEP]
director, and others acting on his behalf, ignored and concealed
environmental violations against the sound advice of
staff employees. ä In several instances, he and or others acting in his
behalf, disciplined or threatened to discipline
DEP employees who tried to implement and enforce environmental laws."

--In Texas, where inspections and enforcement have dropped considerably in
the past five years, regulators took an
average of 651 days to complete enforcement actions for the ten significant
violator cases reviewed by the EPA's
Inspector General last year. This is six times longer than federal
guidelines allow. Texas polluters often get off with no
penalty at all. In the mid-1990s a French-owned uranium mining company
injected radioactive water into the soil in
Duval county. When the state environmental agency found out, the company
offered to pay a large penalty. But the
state, after initiating a criminal investigation, dropped it--and then
failed to pursue any civil or administrative penalties.

--In Virginia, a scathing audit by the state's General Assembly in 1996
found that the state failed to take enforcement
actions against persistent and serious violators. One investigator
concluded that the state's regulators "work with
industry [and] don't enforce the law."

--In Pennsylvania, EPA's Inspector General found in 1997 that state
regulators routinely failed to report significant
violators because they wanted to avoid "federal meddling." Understandably
suspicious of the state's reports, auditors
reviewed files for 270 of the state's 2,053 major polluters and found 64
significant violators the state had failed to
report.

In most cases, the regulators aren't corrupt. They fail to enforce because
their funding and staff have been cut, or in
response to a demand for more "business-friendly" policies.

But sometimes it's an old-fashioned quid pro quo. In Connecticut, one of
Gov. John Rowland's officials literally
demanded cash from polluters in exchange for easy treatment by the DEC,
according to a report written by a group
of state employees and published by Public Employees for Environmental
Responsibility. The employees describe this
scandal, which is currently under federal investigation, as only one part
of a campaign which has "systematically
dismantled [the state's] enforcement program to the direct detriment of
public health." One of the many examples they
provide: A chemical manufacturer whose executives were also Rowland
campaign contributors caused a toxic spill
which killed 12,000 fish, but paid no fine, thanks to a back room deal with
the governor's bag man.

State agencies aren't the only ones who cave in to polluters or their
political flunkies. The EPA has ten regional offices
spread throughout the country which oversee the states and have some
enforcement responsibilities as well. One
regional official told me her administrator "will reduce or eliminate our
enforcement response after congressmen get in
touch with him." This is a direct violation of EPA ethics rules--not to
mention the public interest. But she claims that it
happens in up to one quarter of the cases she oversees. The administrator
has expressed interest in running for
Congress and has no desire to alienate his future colleagues. "I had one
case where we were told not to do a
penalty," says the official. "They allowed congressional aides to show up
at the settlement negotiations [on an
enforcement case]. We were instructed to zero out the penalty." She adds
that "most people are afraid to speak out
because of reprisals."

Missing In Action

In theory, a regional EPA office can take its own enforcement action where
the state has failed to do an adequate
job. Yet "over-filing," as it's called, happens only a few times a year.
The regions tend to use it only as a last resort,
because it's likely to infuriate congressmen and state politicians.
Furthermore, the courts have been known to frown
on overfiling, viewing it as double jeopardy for the polluter in question
(since they are subject to both state and
regional actions). Eight years ago the regional EPA office in St. Louis
discovered that a company called Harmon
Electric, which manufactured electrical components for the railroad
industry, had illegally dumped toxic solvents on its
property over a period of several years. The solvents might easily have
gotten into the groundwater, endangering the
health of people living nearby. The state had done nothing, so the regional
office investigated and sought a $2 million
penalty against the company. Only then did the state file its own action,
which did not include any penalty. In late
1994 an EPA administrative law judge set a penalty of $586,000. After
several years of appeals, the Eighth Circuit
Court of Appeals ruled in early September that the EPA had no right to
overfile.

"This could have a massive chilling effect on enforcement," says one former
EPA official who has followed the case.
Supposing a company is caught dumping toxic waste on its property,
threatening the health of thousands of people
living nearby. The EPA might judge the company liable for millions of
dollars in fines, based on the harm done and on
similar cases. But suppose also that the state environmental commissioner
owed a favor to the governor, who owed a
favor to (or wanted to please) the company in question. The state could
bring its own case, and demand a fine of only
a few thousand dollars. If the Harmon precedent holds, the EPA could do
nothing about it.

If a state is consistently refusing to apply the law, EPA does have the
authority to revoke the state's authority to
enforce federal laws such as the Clean Air and Water acts. But this is
virtually an empty threat. It has never
happened, and as one law review article puts it, "[t]he procedures for
withdrawal of state programs would be suitable
for the Nuremberg trials, and will be invoked only upon epochal occasions."
Taking over a state program is
enormously expensive, and as it is the EPA can barely afford to do its own
meager share of enforcing environmental
law.

Even the last resort in the face of failing government entities--citizen
enforcement--has been weakened. Although
citizen suits were envisioned as an important bulwark of enforcement in the
major federal laws passed in the late '60s
and early '70s, Congress barred them in 1987 in Clean Water Act cases where
the state was "diligently prosecuting"
the violation. Since then, the courts have tended to apply that standard to
all environmental laws, and they have
defined "diligent prosecution" to mean any kind of state action, including
friendly negotiations.

Silent But Deadly

Why has the failure of enforcement received so little attention--not only
from politicians and the press, but from the
environmental community itself? For one thing, unlike signing an
environmental bill into law, which makes a politician
look like an instant hero, enforcing that law doesn't offer much payoff. By
the time the number-crunchers have figured
out whether he's been doing it or not, the average politician may be out of
office. Besides, complying with
environmental laws costs money and creates enemies. Major environmental
groups are also dependent on grants and
donations, and enforcement doesn't play well on the cocktail circuit.

The data smog that surrounds enforcement issues only makes matters worse.
State and federal regulators routinely
respond, when asked about it that data can't be trusted. As if that were supposed to comfort us. An internal
EPA report written earlier this year
acknowledges that the agency's data on "significant non-compliers" with
environmental law are so poor, thanks to
mismatches between state and federal definitions and databases, that they
are not reporting it for this year.

One thing that is clear, however, is that companies cannot be trusted to
comply with environmental laws out of the
goodness of their hearts. The data may not be perfect, but they do suggest
that where enforcement is down,
compliance with the law is down too. Politicians need to start recognizing
that if they're going to "get tough" on crime,
they had better get tough on environmental offenders as well.

Luckily, there's some evidence that tougher laws can make a difference. New
Jersey's Clean Water Enforcement
Act, passed in 1995, includes mandatory minimum penalties for serious
violations and significant noncompliance, and
requires that penalties recover the economic gain polluters have realized
through noncompliance. In other words, the
state has insisted (unlike most other states) on an enforcement program
with teeth. So far, the warning appears to
have worked: Clean Water Act violations have dropped 78 percent since 1992.

That should hardly be surprising. Street crime has dropped in the past five
years, thanks to more vigorous policing of minor offenses. Maybe it's time we put the environmental cops back on the beat too.

The Washington Monthly Washington D.C.

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Governor Tommy Thompson 
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