A federal judge has upheld a costly strategy for cleansing the Fox River in northeastern Wisconsin of toxic industrial chemicals – requiring dredging and capping of the river bottom – that had been challenged by paper companies and others ordered to pay for the cleanup.
The U.S. Environmental Protection Agency and state Department of Natural Resources acted properly in imposing the combination of cleanup methods for remediating environmental damage caused by chemicals known as PCBs, U.S. District Judge William Griesbach ruled Wednesday. Griesbach is chief judge for the Eastern District federal court in Wisconsin.
There is no evidence of a “nefarious government plot” favoring significant use of dredging, a more expensive technique, rather than relying on capping alone, Griesbach says in a decision supporting regulators in their federal lawsuit against NCR Corp. and about 10 others.
The lawsuit was filed in 2010 after the companies said that they were doing the dredging under protest and that they had not agreed to take full responsibility for completing the cleanup plan.
Griesbach in his decision says the impact of decisions made by regulators extends beyond corporations to the fish in the river and the anglers and their families who eat them.
Walleye and other popular sport fish in the lower river accumulate high levels of PCBs in fatty tissue that are unsafe for human consumption.
The companies, by protesting the use of dredging, “were demanding poisonous chemicals be allowed to stay in the river,” Griesbach says.
The regulatory agencies embraced a hybrid strategy of using each method where appropriate in an attempt to reduce costs, according to the judge.
Capping the river bottom with sand and gravel was to take place where contaminated muck had been covered by clean sediment in recent years, under terms of the remediation plan. But caps have shortcomings and one is the requirement for long-term maintenance, which adds costs to the solution. And caps can be eroded in flooding, Griesbach says in his decision.
The primary benefit of dredging is the permanent removal of the toxic chemicals from the riverbed, he says. Regulators acknowledged small amounts of PCBs could be resuspended in the river and flow downstream during dredging.
“Removal of PCBs is inherently better than trying to contain them, even if the dredging solution is not perfect,” Griesbach says.
The financial stakes for the companies are huge.
The lower Fox River is the site of the largest cleanup of polychlorinated biphenyls, or PCBs, from a waterway in the United States.
Cost of the project is estimated at more than $1 billion. From 2009 through 2011, the Lower Fox River Remediation LLC, a special-purpose company set up by NCR and Appleton Papers Inc. for the cleanup, had spent $315 million.
Representatives of the companies could not be reached for comment Thursday, a spokesman for the group said.
The lower river targeted for cleanup flows from Lake Winnebago through Little Lake Buttes des Morts, Neenah and Menasha in Winnebago County; Appleton, Kimberly and Kaukauna in Outagamie County; to De Pere and Green Bay in Brown County.
PCBs were used in some papermaking processes from 1954 to 1971, particularly the production and recycling of so-called carbonless copy paper for typewriters. The chemicals were discharged to the river during that time and settled into river bottom muck or carried downstream to Green Bay and Lake Michigan.
PCBs were banned from use in 1971.
In April of this year, Griesbach ruled that Appleton Papers Inc. had contributed enough toward the cleanup. He removed the company as a defendant in the litigation.
Appleton Papers had spent more than $200 million in three years, 2009 to 2011, to dredge muck contaminated with PCBs from the river bottom, a company representative said.
Work abruptly halted in late summer of 2011 when Appleton Papers and NCR refused to spend more money on dredging.
In a second ruling in April, Griesbach ordered NCR to continue financing the cleanup on a 3-mile stretch of the river downstream of the state Highway 32 bridge at De Pere.
Work resumed May 14 and ended Nov. 12 for the winter, according to the Lower Fox River Remediation group.
An update on progress of the cleanup is available on the group’s website. In the 2012 work season, more than 660,000 cubic yards of contaminated muck was dredged from the river bottom. Much of the water is removed from the sediment in a processing plant on the shore of the river in Green Bay.
Around 1.63 billion gallons of contaminated wastewater were treated in the plant and returned to the river this year. Removing the water reduces the volume of sediment and an estimated 317,093 tons were disposed of in a landfill.
Earlier cleanup of a separate 6-mile section of the river downstream of Lake Winnebago already is paying dividends, according to the DNR.
Levels of PCBs in walleyes in that portion of the river, known as Little Lake Buttes des Morts, declined 73% from 2003 to 2010.
Check out cleanup
To view an update on progress of the cleanup of the Fox River, go to www.foxrivercleanup.com.