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This has been said so many times, many people believe it’s true.

But it’s not true, for several reasons:

The DNR Wasn’t Aware of PCBs in the Discharges
 

During the peak years of PCB discharge, from 1954 to 1971, the Wisconsin Dept. of Natural Resources (DNR) was unaware of the presence of PCBs in the paper mills’ discharges and, therefore, did not regulate them.  When the DNR discovered that the Fox River was contaminated with PCBs, they issued a report in 1972, which speculated that the PCBs might have come from the paper industry. None of the Fox River industries had permits specifically allowing PCB discharges during those years.

In 1971, the PCB discharges by Appleton Paper and NCR Corporation ended when the companies phased out their use of PCBs in making carbonless copy paper.  That was the year that Monsanto (the patent holder on PCBs) began requiring its customers to sign a waiver relieving it of financial liability for improper uses of the chemical, because Monsanto feared lawsuits.  (see The History of PCBs - When were health problems detected?)

For the other five paper companies that recycled large quantities of waste from Appleton and NCR, the discharges also dropped in the mid-1970s, as the new federal Clean Water Act of 1972 was implemented and the mills were required to improve their wastewater treatment systems.  This was not a voluntary improvement by the mills.

In 1979, the DNR added simple PCB monitoring requirements to the mill’s discharge permits, in order to better understand the discharges, and in 1989 specific PCB permit limits were set which were stringent and aimed at virtual elimination of PCBs. But by that time, of course, most of the PCB discharge had stopped.  Only one company, Fort Howard Corporation, continued to discharge significant PCBs (about 50 lbs/year) in the 1980s, until about 1990.   The DNR waited and set specific PCB limits only when the last discharger was ready to comply (we’ve seen this kind of delayed/irrelevant behavior repeated by DNR on several issues.)

Older Laws Were Ignored by Industry and Government

It can easily be argued that these industries violated the Refuse Act (33 USC 407), which is section 13 of the Rivers and Harbors Act of 1899.   The Fox River paper mills never received a Refuse Act permit to discharge PCBs.

Several federal court cases have established that violations of the Refuse Act occurred regarding discharges of fuel oil into navigable waters in the decades prior to 1966, when the U.S. Supreme Court decisively found discharges of chemical pollutants constituted violations of the Refuse Act.  (Source:  Hudson Sloop Clearwater)

The Rivers and Harbors Act of 1899 is the basic act for controlling works or activities in navigable waters of the U.S. Under the Act, the District Engineer for the U.S. Army Corps of Engineers must subject a proposed project to a "public interest review" having two aspects. The first includes a review of such factors as economics, aesthetics, general environmental concerns, historical values, fish and wildlife values, flood damage prevention, water quality, etc. The second component of the review is more restrictive and requires that the proposed project be "water dependent" and that no feasible alternative sites are available. 

This 1899 statute, which was intended by Congress to protect water quality, fish and wildlife, prohibits the discharge of materials into a navigable water without a permit from the U.S. Army. Those dischargers that do require a permit must show that "applicable water quality standards" can be met, or that the discharge can be brought into compliance with these standards within a specified period of time. 

A recent court ruled that past dumpers must remove harmful waste material which was dumped into a navigable waterbody without a U.S. Army permit under the Rivers and Harbors Act of 1899. 

Certainly, the intent of Congress was clear. This 1899 Act predates all PCB dumping and shows that a SPECIFIC ban is redundant. 

Lack of Enforcement Doesn’t Mean It Was Legal

On the Hudson River in New York State, General Electric Corporation was successfully prosecuted in 1975-76 by the State for dumping PCBs. The State of Wisconsin could have taken similar action on the Fox River but chose not to. The paper industries weren’t prosecuted; however, the intent of the law was clear and these discharges were illegal. 

The lack of enforcement by the State of Wisconsin is disturbing, and probably reflects the political power of the paper industry as the largest manufacturing sector in the state.

A Discharge Permit is Not a License to Kill 

Other legal standards also applied to the Fox River, but were ignored by the paper industry.  Historically, United State’s law is based on English "Common Law" standards which date back to the Middle Ages.   Under “Common Law,” people are prohibited from harming their neighbors and damaging other people’s property, intentionally or otherwise.

This means corporations can't dump toxic chemicals into a public water supply and claim it's legal just because no government has passed a specific law yet prohibiting the dumping of that particular chemical.  A discharge permit is not a license to kill.  It is not a permit to wreak havoc downstream with unnamed toxic substances. The corporations didn’t own the Fox River or Green Bay from 1954 to 1990. They were impacting property which didn't belong to them and they had a legal (and moral) duty to be careful. 

When an industry gets a discharge permit, it is only because they have claimed or implied  in their application that their discharge will not cause significant harm downstream. If the government has no evidence otherwise, they take the industry at its word and the permit it granted. Most discharge permitting systems are grounded in the Wisconsin State Constitution, statutes and Common Law standards that prohibit harm.  Between 1954 and 1989 there may have been no numerical limits for a specific chemical such as PCBs, but the general narrative legal standards of Wisconsin require the permit holder to not cause significant harm. The permit holder is responsible for making sure they meet this standard. The government doesn't have limitless research dollars to test each of the 80,000 chemicals in commerce just to relieve industry of all future liability. The liability still remains with the permit holder. 

Many local citizen groups, even in the 1950s, protested the paper mill pollution in the Fox River, but the corporations were too arrogant to listen and ask themselves obvious questions about safety. The corporations knew people drank water and ate fish downstream from their PCB dumping. If industries wanted the PRIVILEGE of dumping chemical wastes into our public waterway they had a moral and legal obligation to perform adequate research to make sure they were not causing harm. They were  negligent for not doing so, and now must be held accountable for their actions. 

Under Common Law, corporations are liable for the consequences if their pollution caused economic harm or endangered public health, whether their actions were intentional or accidental. The legal liability for chemical dumpers is clear. The "Common Law" standard is the prevailing law, until politicians decide to write laws contradicting it. This means that because the paper corporations did not have a waste discharge permit specifically to dump PCBs and this dumping caused harm, the corporations are liable for the result. 

More Background on Common Law

The following definition was found online at: http://www.lectlaw.com/d-c.htm --- 

"COMMON LAW - That which derives its force and authority from the universal consent an immemorial practice of the people. The system of jurisprudence that originated in England and which was latter adopted in the U.S. that is based on precedent instead of statutory laws." 

"Traditional law of an area or region; also known as case law. The law created by judges     when deciding individual disputes or cases. The body of law which includes both the     unwritten law of England and the statutes passed before the settlement of the United     States." 

"In Old England there were two types of Courts - law and equity. In the law court the  Judge applied statutes. As time went on situations that were not covered by statutes were    uncovered and Judges 'created' law, usually in equity. This is 'common law.'" 

"The U.S. is a common law country. In all states except Louisiana (which is based on the      French civil code), the common law of England was adopted as the general law of the     state, EXCEPT when a statute provides otherwise. Common law has no statutory basis; 
judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts and torts are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states and thus state courts are the primary source of common law. Thus, 'common law' is used to fill in gaps. Common law changes over time, and at this time, each state has its own common law on many topics. The area of federal common law is primarily limited to federal issues that have not been addressed by a statute. Even if federal common law otherwise would operate, it is displaced when Congress has decided the matter." 

NOTE: This definition specifically mentions property and tort law, which are both key issues on the Fox River and Green Bay. These waterways are public properties which have been harmed. Tort law often involves toxic poisoning cases. 

The Public Trust Doctrine 

Another relevant law is the Public Trust Doctrine, which was established in the Northwest Ordinance of 1787 (which included Wisconsin). The Doctrine was formally added to the Wisconsin Constitution in February of 1948 (before PCB dumping began on the Fox River). It states that all rivers, lakes and navigable waterways are under the jurisdiction of the State of Wisconsin. Any structure which is built on a waterway impacts the public rights to that waterway, and needs to be monitored by the State of Wisconsin to assure safety, water quality, public access and monitor its impact on Wisconsin wildlife. 

In Muench v. Public Service Commission, in 1952, the court determined that the public trust was a matter of statewide concern. The court reasoned that: "The right to fish and hunt, or to enjoy scenic beauty, as an incident to the right to navigate the navigable waters of this state ...is an example of the type of legislation which affects the interests of the people of the entire state, as well as those of a particular county. If a particular county is permitted to take action which will lead to the impairment or the destruction of hunting, or fishing, or the right to enjoy scenic beauty on that part of a particular navigable stream lying within the limits of the county, the interests of the people of the entire state may be adversely affected thereby....[T ]herefore ...the test which ought to be applied in determining the validity of delegation of legislative power in such a case is that of paramount interest." (See article on Public Trust by: Midwest Environmental Advocates)

The discharge of PCBs into the Fox River clearly violated the Public Trust Doctrine. And though certain local governments along the Fox River may have been more concerned about the economic interests of the paper industry than they are about public health, the State of Wisconsin and the Wisconsin Legislature have a duty to first protect the public rights of ALL residents of Wisconsin, including thousands of people impacted downstream on the Fox River, on Green Bay and along Lake Michigan. The interests of future generations must also be considered. 

Laws Governing Toxic Trespass and Domestic Violence 

Due to corporate foot-dragging, the PCBs dumped by the Fox River Group of paper industries have been allowed to escape the Fox River and spread throughout the region to the point where PCBs are found virtually everywhere in Northeast Wisconsin and the Upper Peninsula bordering the Bay --- in the water, air, soil, plants, wildlife and humans.  (In addition, up to 70% of the waterborne PCBs in all of Lake Michigan have come from the 7 responsible paper companies on the Fox River.)  This is the equivalent of trespassing on private property and toxic assault against individuals. 

The Universal Declaration of Human Rights, signed by the U.S. in 1948, says in Article 3, "Everyone has the right to life, liberty, and security of person." Article 4, Section 4 of the U.S. Constitution obligates the federal government to protect the citizenry against "domestic violence" which arguably includes modern forms of domestic violence such as toxic assault. 

The U.S. government, through the U.S. Environmental Protection Agency, has the responsibility to address this issue. We’ve heard many excuses for pollution over the years. It’s time for the defense of the public’s right to live in healthy surroundings without chemical trespassing. The corporations have had too much political power, allowing them to avoid pollution controls, clean-up and accountability for the damage they’ve caused, for many decades. This must change. 

Retroactive Liability is Recognized in State and Federal Laws

If this issue goes to court, the seven corporations who dumped PCBs in the Fox River will likely be held accountable for cleanup costs using retroactive liability under the Federal Superfund Law and the Wisconsin Spill Law.  Superficially, this may seem unfair, until one accounts for all the factors listed above. 

For information on current PCB regulations, click here.

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