Great Lakes Article:

River cleanup decision expected by year’s end
Ed Culhane
Post-Crescent
12/15/2002

Regulators say they plan to release a cleanup decision for at least part of the Fox River by year’s end, despite pressure from some affected paper companies for a delay.

A spokesman for Arjo Wiggins Appleton, the former owner of Appleton Papers, said the company has proposed a $400 million-plus settlement for the cleanup that will be pulled off the table if a Record of Decision is released.

The Record of Decision is a formal document under federal Superfund law. It is the government’s final decision on a cleanup plan for the PCB-contaminated Fox River, crafted in this case by the Wisconsin Department of Natural Resources and the U.S. Environmental Protection Agency. Backed by state and federal justice departments, it carries the force of law and cannot be appealed or negotiated.

It could be fought in court, however, which Arjo Wiggins spokesman Craig Peterson said would be likely.

“We would no longer have a cooperative environment,” Peterson said. “There is a high likelihood that litigation would commence.”

Greg Baker, the DNR administrator heading the cleanup effort, said the $400 million offer is not as strong as it sounds. The costs would be spread out over a 10-year period, he said, and it doesn’t resolve different cleanup strategies proposed by the government and the companies.

PCBs, or polychlorinated biphenyls, have been linked to developmental problems in children and are considered a probable carcinogen. Until their use was banned in the United States in 1976, PCBs were used in the Fox Valley by NCR and Appleton Papers in the production of carbonless paper. They also were discharged by mills that recycled carbonless paper.

The DNR and EPA have proposed removing the majority of contaminated sediments from a 39-mile stretch of river in the largest environmental dredging project ever proposed anywhere. The PCBs in the river are leaching their way into the food chain, scientists say, contaminating fish and the people who eat them.

The paper companies, with Appleton Papers’ former owner Arjo Wiggins now in the lead, have proposed capping the sediments in place under layers of clean sand, arguing it’s the fastest and most cost-effective way to remove PCBs from the food chain.

Baker said the release of a formal cleanup plan — even a partial one — will give regulators their first chance to respond officially to the paper companies, environmental groups and the thousands of people who wrote the agencies during the public comment period on a draft released last October.

“We have been silent because the (public comment) process doesn’t allow us to discuss the comments before we issue a Record of Decision,” Baker said. “One of the benefits of issuing a ROD is that we can include a formal response to some of these capping issues.”

Government regulators said they don’t see release of their plan as the end of talks.

Once the cleanup decision is issued, the government negotiates with the paper companies on who will conduct the engineering and who will hire the contractors.

“If we can get a ROD issued … we’ll be in a much better position to negotiate a settlement,” Baker said.

Moreover, Baker said, the issuance of even a partial plan would allow detailed engineering work to begin next summer. It also would keep alive the possibility of beginning the actual cleanup the following year.

“We’re very focused on trying to get into the river in 2004,” he said.

The Record of Decision comes after more than 15 years of studies and a 4½–year Superfund-style process of feasibility studies, proposed plans and public comment.

Ed Lynch of the DNR, in charge of feasibility studies, said the formal cleanup plan will cover portions of the Fox River, which has been divided into four segments for planning purposes. It will not cover the bay of Green Bay, he said.

DNR officials are not commenting on reports that their formal plan will be for two upstream stretches, including Little Lake Butte des Morts and the long stretch running from Appleton to the Little Rapids lock east of Kaukauna.

Any portion of the cleanup area not covered with this decision will be covered in a plan issued next year, said Lynch.

Jennifer Feyerherm, a sediments specialist with the Sierra Club’s Great Lakes program, said Friday that more than 1,200 people from Wisconsin have written the DNR and EPA pleading with the agencies not to segment their formal plan.

Most of the pollution is downstream, she said.

“We want them to give us a decision for the whole river,” Feyerherm said, “and not to leave 90 percent of the contaminants to languish while they leave whole communities at risk.”

Baker said the agencies would speak to those concerns with their plan.

In the meantime, the Arjo Wiggins offer was a work in progress. Peterson said some of the other companies were involved in the discussions. He said Arjo Wiggins executives and others argue that a negotiated settlement should be part of the agencies’ final plan.

“We believed there was the opportunity for greater participation by the other companies,” he said. “The issuance of a ROD makes the opportunity for a cooperative, global remedy much more difficult. What we don’t want is to go the traditional Superfund route where it is a pay-as-you-go process with no one knowing what the final cost will be.”

The paper companies responsible for paying for the cleanup are Appleton Papers and Arjo Wiggins Appleton, NCR, P.H. Glatfelter Co., Georgia Pacific (formerly Fort James), WTM1 (formerly Wisconsin Tissue), Riverside Paper Co., and U.S. Paper Co., the DNR and EPA said.

When Arjo Wiggins sold Appleton Papers to the employees of the Appleton plant in 2001, it retained most of the liability for PCB pollution.

The liability of the employee-owners is capped at $25 million, said Dennis Hultgren of Appleton Papers.

Superfund law makes it extremely difficult for a company charged with cleanup costs to challenge the Record of Decision, and it provides for severe penalties for non-compliance.

“They’ve got hammers out there,” Hultgren said. “There is not a whole lot of leeway once the ROD comes out.”

Both EPA and DNR officials said there has been no interference in the process from Bush administration officials or the governor’s office. One wild card is the upcoming change of administrations in Madison, with Democrat Jim Doyle becoming Wisconsin’s governor on Jan. 6 after 16 years of Republican leadership.

Baker said Doyle is familiar with the Fox River cleanup because he was Wisconsin’s attorney general in 1997 when the Justice Department signed off on an agreement between the DNR and the paper companies on river studies and demonstration dredging projects.

“This is not a new issue for him,” Baker said, “which is one of the advantages we have.”