I surveyed all of these plausible arguments and wondered how I might prevent the paper companies from turning them into a sea of obfuscation stretching out in every direction as far as anyone could see.
By P. David Allen II and Susan Campbell
Adapted from Paper Valley by P. David Allen II and Susan Campbell, released by Wayne State University Press.
The paper companies were playing their part well, too well for my comfort. They had already hired many well-known experts whose back- ground and experience helped company arguments the most. They were refining a series of clever and legitimate points that focused on key uncertainties about cleanup and restoration. If successful, they could limit how much the paper companies would have to pay to clean up their PCB mess and make the public whole, even if EPA finally brought its full authority to bear.
Fundamentally, the paper companies had refused for years to pay for significant cleanup actions in the river until somebody could prove just how much any individual action, like removing PCB-contaminated sediments from the river bottom, would reduce risk and injuries to people and the environment. Cleanup justification under the law required more than the narrowly defined engineering solutions initially offered by DNR, which focused mostly on PCB pounds removed per additional dollar spent on dredging. Instead, successful cleanup arguments would have to include more complete and complicated scientific analyses con- ducted by specific legal authorities showing how much various cleanup actions helped and at what cost.
Company experts also hammered away at potential problems that could come from digging up PCB-contaminated sediments from the river bottom. PCB discharges into the river had peaked during the 1970s, and as PCB releases declined in subsequent decades, the layers of new Fox River sediments were progressively less contaminated.
Leaving the sediments in place and doing nothing might allow this trend to continue until a natural “clean enough” cap successfully buried and contained the older, dirtier sediments. Beyond that, the company experts argued that storms and high river flows were not as dangerous as government agencies warned. Rare flooding events were the most likely way to cause catastrophic movement of Fox River sediment and spill the entrapped PCBs into the bay of Green Bay. But it was hard to predict exactly how big, and how rare, a flood would have to be to cause such a PCB catastrophe. Rare flood events did not coincide with the multitudinous river sampling days recorded in Fox River studies—and if they had, the sampling would not have been practical while floodwaters raged. That meant the question of just how big and rare a storm would have to be to flood Green Bay with more Fox River PCBs could not be easily resolved with data.
The companies also pointed to many environmental impacts beyond their own responsibility, and cast doubt about how much could be fixed by focusing solely on their share of the bay’s problems. They pointed to other sources of PCBs all around Lake Michigan, and other sources along the Fox River. These included governmental sources, like agencies that recycled carbonless copy paper containing PCBs, and local waste- water treatment plants that accepted industrial wastewater for treatment. Even if forced to accept responsibility, the paper companies could use these arguments to reduce their share of the blame and the costs. They also pointed to other contamination in the bay, like atmospheric mercury from power plants and chemical DDT from widespread agricultural use, to show how a PCB cleanup wouldn’t rid the bay of all toxic pollution. They highlighted how fish and wildlife populations were constantly changing because of natural factors like migration and weather. And they pointed out that these populations were changing due to other, non-PCB factors, like hunting and fishing, habitat destruction, and exotic species invasions—all to show that a PCB cleanup wouldn’t eliminate every last injury to fish and wildlife. Finally, they offered up inexpensive but popular public restoration projects, like park improvements, as alternatives to expensive PCB cleanup. In short, the companies asserted that whatever benefits might come from cleaning up paper company PCBs, they were likely insignificant compared to other actions that could be much more practical—and much cheaper.
I surveyed all of these plausible arguments and wondered how I might prevent the paper companies from turning them into a sea of obfuscation stretching out in every direction as far as anyone could see. I knew that the paper companies might well succeed in befuddling the public by pressing legitimate arguments too far. So I resolved to test every one of them. I would use the best experts in the country to delve deep into the mountain of scientific data already collected in Green Bay. I would aim my impressive team at turning that mountain of data into evidence applicable under the Superfund law, and at collecting new data wherever necessary to meet legal requirements. I would prove the company arguments correct or incorrect in the eyes of the law. Ferreting out the truth was at the very heart of my strategy. Doing that well could win the support of the scientific community and the public. Doing that by the book could win with attorneys and courts. It was also the surest way to unify reluctant government agencies and force paper company attorneys and officers to ultimately confront whichever scenarios turned out to be true.
The paper companies were usually unified in their skepticism about government proposals and programs to clean up and restore the river and bay, but I noticed big differences in style when individual companies pled their particular cases. I began to think of each as a distinct personality, and this helped me navigate my interactions with them. Fort Howard was the sophisticated ringleader, the chess player always thinking many moves ahead, hiring experts and attorneys with impressive résumés, and displaying subtlety in its iron-willed resistance. P. H. Glatfelter was more aggressive, more adamant, louder—even sarcastic—and less in the mood to compromise, but also flamboyant and fun to watch. National Cash Register and Appleton Papers were more buttoned down and corporate, hard to read, hard to move, but willing to compromise if their spreadsheets suddenly showed enough advantage. The other mills seemed more like small mom-and-pop operations, open-minded but worried and trying hard to keep up with the big dogs. Together, the Fox River Group was formidable, but the partnership was fragile. I was pretty sure those personalities would lead to conflicts behind the scenes, that the eventual allocation of responsibility among the companies would drive wedges into their group quicker and deeper than any of Fort Howard’s ploys to turn DNR against the other agencies. Indeed, the best way for each company to reduce its own share of cleanup costs and damages would be, ultimately, to blame the others.
Still, the paper companies would be sharpening their knives and skillfully using them to carve up the government’s plans. They would reserve their best technical and legal arguments, as well as their best technical and legal experts, for the times and places of greatest impact. They would hit every official government document with volumes of criticism. At the same time, they would continue to drive wedges among the agencies by offering dangerously clever compromises during vulnerable negotiations. And they would threaten worried government managers with litigation and bad press as the alternative. No matter what happened during negotiations, the companies would continue to lobby elected officials in Madison and Washington, and they would amplify public criticism of the Feds and Superfund everywhere within their reach. They would project their influence quietly in back rooms with sympathetic bureaucrats and politicians, and loudly at meetings, in the press, and on radio and television. And their arguments would resonate far and wide. Meanwhile, paper company allies, especially those within financial or political reach, would trumpet, amplify, and expand company arguments without worrying much about stubborn facts or legal context. These emissaries would soon step up for duty: from local businesses and trade groups; from sympathetic media and paid advertisers; from local officials reliant on paper company taxes and cooperation; from people who’d already made up their minds about the evils of regulation; and from people who viewed the world only through a partisan political lens.
The paper companies were formidable adversaries. Yet I had faith that the facts could rule the day. The mills were highlighting facts they hoped could legitimately limit or alter the scope of proposed cleanup and restoration in the Fox River and the bay of Green Bay. But powerful arguments were also coming into focus about just how big the problem really was. Revealing the facts most relevant to the law was the best way to determine the cleanup and restoration answers. Revealing them directly to the scientific community and the public was the best way to ensure that governmental agencies followed the facts, regardless of how much resistance the paper companies put forth.
It wouldn’t be easy. The paper companies were exceptionally skilled at this game. But EPA’s Remedial Investigation and Feasibility Study could create the necessary analyses for cleanup decisions. The RI/FS, as it was called, would also carry the full weight of the Superfund law— which was the real reason the companies opposed the entire Superfund program.
I already knew I could rely on Jim Hahnenberg, EPA’s on-the-ground Superfund manager, and Roger Grimes, EPA’s lead counsel. However, influencing the federal agency’s weighty institutional momentum would require more than careful coordination with Jim and Roger. So, I committed to deploy my team to bolster EPA at every turn. Fish and Wildlife would spend as much effort working with EPA as it did on its own damage assessment. More critically, I would aim the entire dam- age assessment at a very public explanation of technical and scientific facts that underpinned both the damage assessment and EPA’s RI/FS. Attention from the public and the scientific community would carry even more weight with EPA than Fish and Wildlife’s technical assistance and formal comments, and hopefully more than the litany of inevitable complaints from the Wisconsin DNR. It could also help sway skeptical paper company attorneys and officers.
In signing those first seventeen Information Request letters back in February 1996, Bill Hartwig had triggered an avalanche of documents that would eventually risk smothering the Reading Room we’d set up in our Green Bay office. The negotiations over whether—and when—any of the seven paper companies in the Fox River Group would respond to requests took months. Some of the companies claimed “confidential business information” protections, which required Fish and Wild- life to establish rigid document control procedures—and to buy a really good safe. The subsequent negotiations with the companies over the thoroughness of their responses lasted years more. By 1998, all of them had complied.
The Fox River Group companies responded to our request letters by sending information that included highly sensitive documents about corporate ownership, finances, and PCB measurements the paper mills themselves had taken over the years. But the companies now had a new strategy in mind: they would bury Fish and Wildlife with hundreds of thousands of pieces of paper. To that end, boxes of documents were routinely delivered to the Green Bay office via UPS, FedEx, and U.S. mail. If I’d been away on travel, I could usually tell by the secretaries’ sly smiles that a load had arrived even before I found the latest shipment blocking the path to my desk. If I was already at my desk, I’d discover the boxes blocking my office door when I tried to leave. P. H. Glatfelter, in particular, sent box after box of documents, and the documents inside every box looked like they had been deliberately shuffled. Each box held a mishmash of papers with disparate dates, subjects, and sources. I laughed out loud when I noticed Glatfelter’s own legalistic numbering schemes in some of the boxes, probably from some earlier litigation. Even these blocks of documents were in haphazard order. Where’s the next document? It could be anywhere, but probably in a different box! It was a deliberate mess, and my colleague Joe Moniot and I somehow had to sort it all out.
Some paper mill reps had ventured far enough into the Green Bay office to see Ken Stromborg’s “lab” and the chaos of the rest of the field office, which might have led them to underestimate my team. Plus, it was probably obvious that Fish and Wildlife was way outside its institutional comfort zone when identifying responsible parties and sending Information Requests under the Superfund law. Given all this, the paper companies might well have been counting on my local office to drop the ball. I figured this could work to my benefit, reasoning that the companies may have been more lax than they should have been in deciding what information to send and how to obscure damning details. Hence, there might well be jewels in those carefully disorganized boxes, jewels that would lead to sending the companies more pointed and revealing Information Requests, and jewels that belonged in an expertly organized Reading Room for others to see.
My team was more than up to the task of organizing the documents, making sense of them, and using them effectively. Our secret weapon was Joe Moniot. A slim, unassuming man in his fifties, Joe was easy to miss except for his attire—which was somehow attuned to a previous decade, including thick, square, metal-rimmed glasses. He was quietly relentless, almost too meticulous, and very bright. In fact, Joe’s awkward, quiet demeanor hid his passions, talents, and humor well. He would have first crack at this puzzle. Joe and I sat next to each other in the highly organized damage assessment office—an island within the disorganized chaos of the surrounding field office—and both of us reported directly to the uber-efficient Frank Horvath.
For its part, DOJ had already sent its experts to Green Bay to help set up the Reading Room, and they regularly advised us on how to maximize the room’s potential. The Reading Room would serve a dual purpose. It leveled the playing field for the public, giving the public and press access to most of the information shared between the paper companies and the agencies. And it shielded Fish and Wildlife staff from being inundated with the paper companies’ formal requests for federal documents. Such weaponizing of the U.S. Freedom of Information Act was a popular strategy companies used to hamstring federal scrutiny. Agency responses to these requests played right into the companies’ hands, as it diverted massive agency time and effort away from the very work the companies sought to slow. My colleagues at Justice taught me how a reading room could not only thwart this strategy, but also take the fun out of it for the paper companies: “Come as often as you like! Copy everything!”
DOJ also hired a former EPA engineer with expertise in papermaking, PCB releases, and federal liability cases. He was a regular, if quiet, visitor to my office, and he would be drafting the next rounds of Information Requests from Bill Hartwig to the most significant PCB dis- chargers on the Fox River. Plus, Hagler Bailly had brought in a company with some of the best PCB fate and transport modelers in the country.
They would help Fish and Wildlife determine the pathways taken by PCB molecules after their discharge to the Fox, and also provide technical assistance for EPA and DNR. I now focused the whole team on the onslaught of paper company documents that threatened to overtake our humble Green Bay office. The companies’ shuffling and diluting of files had no chance of deterring the team from unearthing useful documents for the liability case and PCB pathway determination. Indeed, it had the opposite effect.
I had other strong motives to make sense of these files: I wanted to make it easier for each company to point the finger at the others’ liability. The seven paper companies could save Fish and Wildlife an enormous amount of time and effort by helping to identify PCB release and liability information about one another. The Reading Room was about to make the Green Bay field office a very popular destination.
The Reading Room featured about fourteen government-issue file cabinets painted in various drab colors that had been scratched and chipped over the years. These surrounded an old government-issue table with some folding chairs. Each cabinet had about eight drawers that were locked with metal bars and padlocks that Joe had picked up at Menards. The whole space was wedged into the field office’s attached garage, which also housed dissection tables for cormorants and lake trout, and freezers for biological samples. Within the drab space and well- worn cabinets, however, a gold mine awaited. Each drawer contained long rows of brand-new identical, neatly labeled accordion files. Each file contained exactly eight hundred pages. Every single loose page was carefully stamped with a unique page number, and the entire Reading Room was sequentially ordered by those page numbers.
After making an appointment and signing in, anyone could peruse the documents and make copies. Hard copy indexes on the table pointed to every numbered cabinet, numbered drawer, numbered document, and numbered page. An electronic relational database cross-referenced every page number with document categories, dates, page ranges, content summaries, and status under the federal Freedom of Information Act. Thus, any member of the public could search an electronic listing of every document in the Reading Room.
There were literally hundreds of thousands of pages. Every document relevant to the Green Bay Natural Resource Damage Assessment was here, except those legitimately shielded from Sunshine Laws. Copies of official government documents and correspondence, published literature, historical documents, press clippings, and responses to Information Requests filled the cabinets and lined the shelves in the increasingly crowded Reading Room. At the time, Google Search, launched the previous year, was yet to prove its worth. Wikipedia wouldn’t be invented for another four years, Google Scholar not for another three years after that. Digitizing documents to CDs still cost over $1 per page.
The Reading Room, for all its comically rickety appearance, was cutting edge.
Soon after the Fox River Group companies finished sending responses to the first round of Information Requests, attorneys for each company began making appointments to visit the Reading Room. I gave the first visiting attorney a personal tour. Dressed in an expensive suit, stylish shoes, and fine jewelry, my guest made no effort to hide a smirk as he surveyed the space and feigned admiration for Fish and Wildlife’s “mahogany cabinets.” I played along and asked if he wanted a cup of coffee, apologizing that he might find the odor of dissected lake trout offensive. I was still unlocking cabinets when the attorney opened one of the drawers. He pulled out a folder, looked inside, then visibly straightened and turned to me with a look of incredulity. In an unguarded moment the lawyer asked, “Are these all copies? Did you Bates-stamp every page?”
“Yes,” I deadpanned, then offered breezily: “You should be able to find everything with the index on the table, but I’ll be in my office if you need any help.” I suppressed my own smile now as I wondered how much more surprised my guest would be if he knew about the duplicate case files my team was also maintaining in Milwaukee, Washington, and Boulder.
In the coming months, multiple law firms would copy every page in the Reading Room. It wouldn’t be long before the companies began turning on each other.
P. David Allen II is a retired wildlife biologist and environmental consultant, who has worked for federal, state, tribal, and local governments in twenty-five states.
Susan Campbell is a former environmental reporter for the Green Bay Press-Gazette and the coauthor of Beyond Earth Day: Fulfilling the Promise, with the late Earth Day founder, Sen. Gaylord Nelson.
