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.