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by Rebecca Leighton Katers

In recent news media coverage, it's clear that the Wisconsin Dept. of Natural Resources (DNR) is lobbying the news media in defense of industry's Fox River PCB capping proposal, side-by-side with their corporate "partners."  The increasingly cozy relationship between the regulator and regulated has become a disturbing backdrop to the Fox River issue.  The DNR is now routinely using polluters' arguments to deflect citizen or media concerns about capping.

It's obvious that the state's long-term insistence on a "cooperative approach" is failed and one-sided. The DNR admits the industries are refusing to sign agreements to begin the major portion of the Fox River clean-up in 2008.    The only entity benefiting from the "cooperative approach" is industry.  The DNR and EPA continually make concessions, and as the years pass the Fox River clean-up proposal gets weaker and weaker.  But industry is not cooperating in return. 

Our DNR and EPA have been corrupted by corporate political pressure, and are no longer serving the public's interest.

Background

The slow pace of the Fox River clean-up is a direct outcome of industry lobbying which started decades ago, when industry claimed that "command and control" regulation was a failure and that we needed a new government response to the Fox River PCB problem, using a technique they called the "voluntary, cooperative approach."

Basically, the theory says that if we're NICE to polluters, and sit down with them to discuss problems in a polite and impartial way, the polluters will clean up their messes voluntarily and properly.  The theory calls for government regulators to stop calling them "polluters" and instead call them "partners" and "good corporate citizens," to create a "good working relationship" and voluntary compliance with the law.

In the 1980s, politicians and professors from the University of Wisconsin aided industry lobbyists by jumping on this bandwagon and insisting the "cooperative approach" to Fox River cleanup would be faster, more effective, and less expensive than law enforcement. 

They naively expected 7 huge paper corporations, who are direct economic competitors with each other, to voluntary donate over a billion dollars to clean up the Fox River PCBs and compensate the public for natural resource damages.   (... and they call environmentalists "dreamers.")

Failure #1 --- The Remedial Action Plan

The first overt evidence of this "voluntary, cooperative approach" was a long process called the Lower Fox River and Green Bay Remedial Action Plan (RAP), which was started in 1986, about 15 years after the DNR first issued reports on the PCB problem and 10 years after fish consumption advisories were issued.  Public health was clearly not a priority at the DNR. 

The DNR assembled roughly 80 people from the local community, representing local government, industry, the Chamber of Commerce, the DNR, the U.S. Fish & Wildlife Service, an outdoor sportsman and one environmentalist.   They formed a RAP Citizen Advisory Committee.  A second group of scientists, professors, industry consultants, and agency people were assembled to form a RAP Science and Technical Advisory Committee.  Both groups were charged with investigating the health of the river and bay system, identifying problems, and recommending solutions.  After two years of meetings, a plan was released in 1988.  A public hearing was held and hundreds of people participated enthusiastically.

Unfortunately, the RAP was misnamed and misleading to the public.  It was only an outline of a proposal, not a detailed engineered clean-up "Plan," because the RAP had no enforcement authority and no funding to make it come true.   The RAP also failed to produce "Action" on the PCB clean-up, though the Citizen Advisory Committee continued to meet for another 10-12 years and the Science and Technical Advisory Committee is still meeting, though infrequently, 21 years later.

In 1986, as a member of the RAP Citizen Advisory Committee, I wrote the Committee a long letter urging them to recommend the Fox River be added to the federal Superfund list for hazardous waste clean-up.  I argued Superfund was the only way to get the necessary funding and enforcement action.  The agencies and committee uniformly rejected my proposal, saying Superfund would delay Fox River clean-up by 10 years, because the industries would drag the issue into a lengthy court battle. 

This court battle argument is STILL being used 21 years later to block law enforcement.

Failure #2 --- “Go Away EPA, Let the State Handle It”

 In 1990, at the urging of environmentalists, the EPA asked Wisconsin Governor Tommy Thompson and the Wisconsin DNR to start a joint Superfund action with them on the Fox River.  The Governor and his staff told the EPA to back off and let the state handle the issue using the "voluntary, cooperative approach."  The EPA disappeared for another 7 years.

Failure #3 --- The Fox River Coalition

In 1992, the DNR gave up on the RAP committees because they had utterly failed to address the PCB problem (they spent most of the 1990s focused ineffectively on land run-off pollution instead).  The DNR formed ANOTHER separate process called the "Fox River Coalition" to again pursue a "voluntary, cooperative approach" to river clean-up.  This group was restricted to local government officials, DNR and all the industries identified as PCB polluters.  (One token environmentalist was appointed, but he worked for a group created and funded by PCB polluters, so of course he was a strong supporter of the cooperative approach.) 

Again, nothing happened.  Though they attended all the meetings, the polluting industries offered nothing of substance. They wouldn't cooperate even to pay for studies to identify exactly where PCB hotspots were in the sediment.  So the coalition focused instead on lobbying in Madison and Washington for government money, but got few results.  Citizens were allowed to attend and observe the Coalition's inaction, and could make comments at the ends of the meetings after all the decisions were made.  Our comments were ridiculed and we had no real input.  No public hearings were held.

Failure #4 --- $10 Million Consent Decree

By 1997, under the Clinton Administration, the U.S. Fish & Wildlife Service lost patience and launched a Natural Resources Damage Assessment of Fox River PCBs, which could have forced river clean-up.  Governor Thompson and the DNR staff were outraged, but couldn't stop the federal government.

The Fox River Coalition fell apart, but the state DNR immediately launched ANOTHER cooperative approach with industry, this time as a surprise $10 million consent decree, a legal contract between the state and industries to conduct a sediment clean-up demonstration project under industry control and a state Natural Resources Damage Assessment, also under industry control, which used industry consultants but had the endorsement of the DNR. 

The industry NRDA was in direct competition and contradiction to the federal NRDA.  The state deliberately undercut the U.S. Fish & Wildlife Service's efforts.  In addition, the sediment clean-up demonstration (at site 56/57) was designed to fail horribly and prove that dredging was dangerous.  The site required emergency remediation the following year from the federal EPA, to fix the deliberately botched job. 

At the time of the $10 million announcement, Governor Tommy Thompson and Attorney General Jim Doyle touted the effort as huge progress, when these politicians were actually endorsing dirty work being done by the polluters, against the public's interest, in the name of the "cooperative approach."

Failure #5 --- Anti-Superfund Compromise Between the State and EPA

In 1997, when the EPA saw what the state was doing, it finally stepped in and nominated the Fox River for Superfund clean-up enforcement, despite state opposition.  Governor Thompson and DNR staff went ballistic.  Intense fighting occurred behind the scenes, which ultimately resulted in a compromise.  The EPA agreed to temporarily hold off and not finalize the Fox River's Superfund status, in exchange for the state and industries agreeing to writing and implementing a detailed Fox River PCB clean-up. 

The EPA provided about $4 million in start-up funds to write the initial engineering in the draft plan.  The state and industries had to do the rest.   If the state didn't make progress, the EPA reserved the right to step in again.  Unfortunately, after the elections of 2000, this was an empty threat due to President Bush's pro-corporate, anti-environmental agenda.

So, in 1997, ANOTHER "voluntary, cooperative approach" was launched by the DNR, this time entirely behind closed doors.  For 10 years now, the public and the media have been excluded from ALL the technical planning meetings, as the government staff and industry consultants chose clean-up goals and methods.

The "voluntary, cooperative approach" has now devolved into industry hiring their own consultants, overseen by another local allied industry (Boldt Construction), with the agencies in the sidelines running interference for the polluters with the news media and politicians.  All the closed door meetings involve one-sided lobbying by industry only, with no public interest representatives allowed.   The first priority is to save the polluters' money and to use the cheapest possible clean-up method, in the short-term, while ignoring long-term costs for the public.

Now, 10 years later, we're being told by the DNR that the polluting industries have STILL not signed any agreements to start the bulk of the Fox River clean-up below the DePere Dam, so 85% of the PCBs are still unaddressed. 

Our government agencies are working in collusion with the polluters to pressure and frighten the public into accepting the caps or see several more years of delay in the clean-up.  The corporations benefit either way.  We shouldn't be put in this position.

The new Capping Plan is the POLLUTERS' CHOICE, not the choice of the public or of independent experts assessing the issue.  (We've also heard many  government staff people oppose capping, but they feel helpless to stop it.)

DNR staff are offended that we refer to the last 10 years as a “voluntary, cooperative approach,” claiming that these meetings are “settlement negotiations” backed up by the threat of legal action if the industries don’t produce results. 

But the agencies have no teeth.

Superfund went bankrupt in 2003 because in 1995 congressional Republicans eliminated the surcharge tax on oil and chemical feedstocks which had supplied the Fund.  This means EPA and DNR have no backup money to start cleanup work immediately if they can’t get the paper companies to agree to a settlement and provide the money up front.  If the agencies start an enforcement action NOW, they know this could delay the cleanup for several years more, for lack of money.

This puts the polluters in the driver’s seat during negotiations.

Ideally, detailed cleanup studies and legal action should have started 35 years ago on the Fox River, as soon as the DNR issued their first report about PCBs in 1972, and certainly after the fish consumption warnings were issued in 1976.

Failure #6 --- The Compromised Natural Resources Damage Assessment

In 1999, the U.S. Fish & Wildlife Service completed its ~$10 million assessment of PCB damages to wildlife, habitat and public recreation on the Fox River and Green Bay.   Public hearings were held and the public was very supportive.   The plan called for approximately $333 million in compensation from the polluters, to be used for habitat restoration, water quality improvements and recreation projects.  (This figure was far lower than it could have been, and already represented significant compromises.)

Unfortunately, the Service's work was neutralized by the Bush Administration in 2000.  In addition, the state's $10 million consent decree with the polluters (see above) undermined the federal assessment. 

The result was an outrageous final NRDA settlement with Georgia Pacific Corp. for only $10.86 million, when prior studies had shown that G-P's fair share of the $333 million should have been about $73 million. 

Worse yet, using the "voluntary, cooperative approach" the government agencies allowed the polluter, G-P, to decide which projects should be funded with the money. 

This was supposed to be compensation to the public for damages, but G-P was allowed to buy political favors with all the major local governments in Brown County by giving each a valuable piece of the settlement, for their pet recreation projects, though the federal Restoration Plan, supported at public hearings, placed LOW PRIORITY on such projects, and many other counties downstream along the bay deserved equal access to those dollars.

Now, we worry that the rest of the PCB polluters will get off just as easily, or worse, and additional dollars could be equally misdirected. 

There’s Something Seriously Wrong Here

It's time to return to good old-fashioned law enforcement, strict deadlines, and proactive scientific planning of cleanups led and directed by our government agencies, using independent 
unbiased scientists and engineers.   Our government must stop playing footsie with polluters, and stop passively WAITING for the corporations to do the correct types of work.   If this means that our government has to get tough on the polluters in order to get the job done right, so be it.  It may even take a few more years to get a PROPER cleanup plan underway, after legal action, but we have no alternative.

The PCB contamination has always been a serious public health emergency affecting thousands of people in our region.  It also destroyed many commercial fishing and fish processing industries in the region. 

It requires urgent priority attention by our government, not the half-hearted yawns we've been getting over the past 35 years. 

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