June 23, 2023

Lessons from Someone Else’s Book About a Big Matter I Handled

Posted on June 23, 2023 by David G. Mandelbaum

I recently finished P. David Allen II’s and Susan Campbell’s new book Paper Valley: The Fight for the Fox River Cleanup (Wayne State Univ. Press 2023).  Allen was a wildlife biologist in the United States Fish and Wildlife Service’s Green Bay Field Office. Campbell was the environment beat reporter for the Green Bay Press Gazette.  Their subject is the cleanup of PCB-contaminated sediment in the bed of the Lower Fox River and Green Bay Site in northeast Wisconsin.

As did a whole troupe of environmental lawyers, scientists, economists, and others, including several ACOEL Fellows, I spent a fair bit of time engaged on that matter. I received a call in late February 1991 from the vice president responsible for environmental affairs of my firm’s client, the P. H. Glatfelter Company. He had previously sought some quick advice about an upcoming meeting with Wisconsin DNR, but after that meeting, he wanted me to open a new file for the matter.  I was 31.  Some years later, the federal district court in Green Bay entered what is hoped to be Glatfelter’s (and everyone else’s) final consent decree concerning the site.  United States v. NCR Corp., No. 1:10-cv-910-WCG (E.D. Wis. Mar. 14, 2019).  I was a month shy of 60.

Interestingly, Allen and Campbell understood what was going on in the matter quite differently than I did.  The importance of that observation lies not in who was right and who was wrong, but just in the fact of different perceptions of people spending a lot of time in parallel, but only infrequently with each other.  We each have only the information we can gather about what other parties are thinking and doing, and sometimes that information may be a little skewed.

To be concrete, my work on the Fox River matter centered on two big issues: (a) how to reduce the risk posed by the PCBs in sediment, and (b) how the costs of the work should be allocated.  On the first issue, the question was whether PCBs had to be dredged out of the river until the sediments achieved some target concentration, or whether that removal could be more selective; that is, whether the sediments only most directly connected to routes of exposure (that is, fish and birds consumed by people) should be removed, and those sediments that were buried, or unlikely to be exposed to fish for other reasons be left in place with or without a cap.  The second issue involved a set of fairly straightforward Superfund questions.

Interestingly, Allen and Campbell do not feature either of those sets of issues.  Their “fight for the Fox River cleanup” largely focuses on a dispute between the Fish and Wildlife Service and Wisconsin DNR over whether the sediment should be cleaned up.  Surely I perceived tension between FWS and DNR over control, and surely my colleagues and I sought to exploit that tension.  But I do not think we considered that any agency did not want to clean up at all.  Indeed, at one early meeting I attended with a political appointee in Wisconsin, we were informed that DNR understood the very presence of any PCB molecule in the bed of the river to violate the Wisconsin Public Trust Doctrine, and therefore it would seek to “start at the top and dredge until the money ran out.”  Allen and Campbell saw the fight to be over whether there would be removal at all.

Allen and Campbell characterize the approach of several of the private parties, including my client; they say that our team was, among other things, “more aggressive, more adamant, louder – even sarcastic – and less in the mood to compromise, but also flamboyant and fun to watch.”  (I find that oddly gratifying.)  But they do not seem to have understood the extent to which everything that happened over the three decades we worked on this matter turned on questions of who was liable for which parts of the river, and in which shares.  The first agreement reached about the cleanup of which I am aware had to do with upgrading the remedial investigation and feasibility study for a sediment deposit known as “Deposit A” to be consistent with the National Contingency Plan so as to preserve contribution claims for ultimate cleanup costs.  We had a great deal of litigation over allocation that ultimately affected settlements and enforcement by the government.  None of that made the book.

And even to the extent that Allen and Campbell tell a story of inter-governmental and intra-governmental politics, I would have put certain individuals at EPA and DOJ at the center of the tale.  Allen and Campbell have them in supporting roles, and in some cases only cameos.

So there are lessons here.  Communication, even in sprawling, long-lived matters like the Fox River, is tightly controlled, and therefore, incomplete and often misleading.  What you think really matters to what is going on depends on who you are and what you know.  And all of this probably has substantive consequences.