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Archive for November, 2016

What a Surprise!! More PCBs found in city-owned Kipp raingarden…

What a Surprise!! More PCBs found in city-owned Kipp raingarden…

Photo: Madison-Kipp raingarden in August 2014; behind it, Kipp was building a new curb and fence and paving parking lots, without the required approval and permits. MGE was digging around transformers, with dirt all over the parking lot, draining into the raingarden…

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Sadly, the long and convoluted saga of the Madison-Kipp raingarden–otherwise known as the Toxic Sludgegarden– is not yet over. See previous stories here and here and here.

This past summer, we asked city officials if they had tested for PCBs in the Kipp raingarden, which the company leases from the city. This testing was required by their city lease, signed in June 2015. Over a year later, in mid-October 2016 (in response to our repeated queries?) the city finally tested for PCBs in the raingarden. So the city lease was violated from June 2015 to June 2016, and city officials apparently didn’t mind. Would they have even tested if citizens didn’t ask about it?

On November 17, 2016 John Hausbeck from Public Health Madison Dane County (PHMDC) informed city and state officials that the October tests found 7 ppm (mg/kg) of PCBs in shallow soils about 18 inches from the stormwater pipe that drains into the raingarden from the Kipp site–see map and results. This level is nearly ten times above the allowed industrial “residual contaminant level” (RCL) that city and state officials agreed to use for this area (0.74 ppm)–and over 30 times the residential RCLs (0.22 ppm) that are more appropriate for this public area, which is zoned residential. The reasons government officials decided to use industrial standards for this area–and who actually made these decisions–are not clear (see below).[1]

Where did these PCBs come from since the last time the raingarden was tested—in May 2014? Perhaps this timeline and photos can provide some clues…

The city lease says that if contamination is found in the raingarden, “the Lessee” (which is Kipp) “shall also determine the source of the contamination…” Hausbeck speculated on the sources: “It is not clear where these PCBs have come from…All the samples were collected in the top one foot, so they should all represent clean topsoil.” He listed some possible sources. “They may have been carried by storm water into the rain garden from adjacent excavations, or come from contaminated sediment that entered the storm sewer pipe from breaks that were later fixed. Both of these potential sources were stopped last year and are no longer adding PCBs to the rain garden.” Was he referring to this pipe?

The “hotspot” found in October will be excavated at some point in the future, and further tests will be done. Will warning signs be placed along the bike path during excavations? Citizens asked that warning signs be placed along the path before and during past PCB excavations, so people could avoid the area if they wanted—and warn children not to play there—but the city refused, due to concerns about their legal liabilities. Neighbors posted their own signs, which were taken down the next day.

Why aren’t residential PCB standards being used? Did the DNR closure supercede the city lease? Who made these decisions?

Sadly, city and state officials have chosen not to err on the side of protecting the public in their decisions about what RCLs to use. Neighbors and other community members have argued repeatedly since the PCBs were discovered that the city should use the lower, more protective residential RCLs for the raingarden and the grassy area along the bike path, in line with DNR policy (again, see footnote 1). But apparently citizens’ input about how much toxic contamination should remain on public land does not matter to our government officials.

Oddly, in March 2015, Kipp and DNR agreed on residential standards for the area long the bike path, but something changed after that.[2] The DNR has leeway to ask for an even more stringent RCL for such areas—and some experts think that would be appropriate for this heavily-used public area next to a community center, a children’s splash pad, a compost area, and many homes (see footnotes).[3],[4]. The city, which owns the raingarden and bike path areas, also presumably has the authority to ask that a lower RCL be used.

In fact, Kipp’s final lease with the city says the following, on pg. 5:

“The City shall, in consultation with the Lessee, conduct periodic sampling of the Biobasin for new environmental contamination. If the annual environmental sampling indicates new PCB contamination to the Biobasin, the Lessee shall remediate the contamination according to local, State, and federal standards… New contamination shall be defined as shallow soil sample results above the DNR residential direct contact standard (RCL) for PCBs.”    

Confusing matters further, as far as the city-owned Kipp driveway area next to the PCB-contaminated ditch along the bike path, the lease requires cleanup to residential standards in the future; it says on pg. 2: “WHEREAS, the DNR, the City and the Lessee have agreed that the Parking Improvements shall serve as an environmental cap throughout the remainder of the Lease term, and any further renewals or extensions thereof, and that upon the expiration or termination of the Lease the Lessee shall remove the Parking Improvements, remediate the contaminated soil to the DNR approved, site-specific, nonindustrial (residential) direct contact standard, and restore the Leased Premises as hereinafter provided, unless otherwise agreed to by the City and DNR.”

So why is the city only requiring cleanup to industrial standards in the raingarden and along the grassy areas next to the bike path? Was the change to industrial standards “agreed to by the City and DNR” in the months between when the lease was signed and the DNR closure was approved? Did the DNR closure of the raingarden and bike path areas supercede the city lease?

Three months ago, we asked city officials to explain this, but have not received a response.

Why was closure granted without testing? Why isn’t stormwater from Kipp tested?

In June 2016, after Kipp asked for “closure” for the raingarden and bikepath areas, I asked DNR officials Linda Hanefeld and Mike Schmoller how they knew the raingarden wasn’t re-contaminated since May 2014. They didn’t respond. The DNR South Central Closure Committee, which Hanefeld and Schmoller are both on, approved closure for the area in July 2016.

This sad saga raises many questions about city and DNR decisionmaking and whose interests they serve. Wouldn’t it have been a better idea to test raingarden soils after all the excavations were done, before leasing the area to Kipp, and before approving closure? Doesn’t it seem like common sense—as citizens have asked repeatedly for years, to no avail—to periodically test the stormwater draining from Kipp into the raingarden to make sure this water is not re-contaminating the soils there? Apparently, according to the “common sense” of city and state regulators, NO.

Shouldn’t the citizens our city, county, and state government officials serve have some say in these decisions?

[1] DNR NR 720 says “Responsible parties shall classify the land use of a site or facility as industrial if all of the following criteria are met: 1. The site or facility is currently zoned for, or otherwise officially designated for, industrial use. 2. More stringent non−industrial residual contaminant levels for soil are not necessary to protect public health on or off the site or facility. Note: Situations where a non−industrial classification would apply include site or facilities which could otherwise be classified as industrial, but where proximity to non−industrial land use, such as residential housing located across the street, makes a non−industrial classification more appropriate.” (emphasis added)

[2] A memo from Kipp’s consultant Arcadis to Schmoller dated March 13, 2015 said that the grassy area on city property along the bike path would be considered residential– and residential RCLs would be used.

[3]November 2014 USEPA – DNR agreement on PCB cleanup,” says “EPA may require a cover or a cleanup to more stringent cleanup levels than are otherwise required based on the proximity to areas such as residential dwellings, hospitals, schools, nursing homes, playgrounds, etc.” and “depending on the form or isomer of PCB, the RCL for non-industrial sites without a cover can be as low as 0.0000341 mg/kg.” City and state agencies should be requiring PCB congener testing, but they refuse to do so.

 

 

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City’s Priorities Out of Order; Citizens Punished for Doing the Right Thing (a new series)

City’s Priorities Out of Order; Citizens Punished for Doing the Right Thing (a new series)

Above: The city has prioritized replacing a paved segment of terrace with grass, over repairing a pothole where children slip on ice (see story below).

MEJO introduction to series:

City of Madison ordinances, or lack thereof, reflect the city’s priorities in regards to public and environmental health and safety. The city’s over-enforcement of some ordinances—while others are rampantly violated with no consequences—also says a lot about city priorities.

In our environmental justice work in Madison, we have learned that the city—in spite of years of citizen pressure to do so—will not improve its weak noise ordinance, largely due to business and industry resistance. The existing noise ordinance is regularly violated, with no consequences to violators; some are actually rewarded. An industry can spill high levels of PCBs along city bike paths, and the city has no obligation to notify path users of their presence. There’s no ordinance on that. So the city, or someone else, could spill toxic chemicals on the sidewalk in front of your house and the city has no legal obligation to notify you, your neighbors, or the public who use it. City pesticide and stormwater laws are rampantly violated, and the city looks the other way—a long story in itself. The list goes on…

Meanwhile, the city issues citations to some citizens for violating the city’s absurd and obsolete residential yard laws—while ignoring thousands of others who violate it. Below, we share another story by Janette Rosenbaum about over-enforcement of city ordinances and punishment of a resident who was just trying to do the right thing.

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Resident Makes Repairs to Property, Asks City to Do Likewise – Ends Up Prosecuted

By Janette Rosenbaum

Bennett Ramage didn’t expect to be charged with violations of city ordinances for trying to improve his property.

Ramage bought a rundown home on Ravenswood Road, on Madison’s southwest side, about two and a half years ago. In short order, he set about making much-needed repairs.

A year into this to-do list, he contacted the city to report a low spot along the curb in front of his house. He had noticed that the dip in the pavement tended to fill with water, and that this was especially problematic in the winter, when kids walking to and from school slid on the ice while trying to cross the street

The city didn’t respond to Ramage’s request for repairs. Eventually, frustrated by the lack of action, Ramage asked his alder, Matt Phair, for help.

In mid-September of this year, city inspector Bill McGuin finally came to look at the problem. Ramage explained his concerns, but McGuin didn’t feel the icy patch was a hazard, and said the city would not fix it.

Ramage can hire a contractor himself to repair the pavement, McGuin said, and the city would pay some of the costs of the work. But, any contractor chosen by Ramage would need to be approved by the city before work could be done, and after the pavement is fixed, if an inspection finds that the work is not up to the city’s standards, Ramage would be responsible for re-fixing it.

Ramage was disappointed by the outcome of this meeting, but he was astonished when, a week later, he received a letter from McGuin citing him for violations of city building code. The letter listed several issues.

First, McGuin had noted that a fence Ramage had recently installed along his backyard was exceeding height limits. Ramage has fixed the problem, and is awaiting re-inspection.

Second, the letter stated that Ramage’s driveway does not meet current requirements. The driveway, which extends beyond the edge of the house, has terrace and curb in front of this extra portion, instead of a widened apron. The section of terrace in front of the driveway is paved instead of grassed (see photo below).

The city has prioritized replacing a paved segment of terrace with grass, over repairing a pothole where children slip on ice.

Ramage says all of that is left over from the previous homeowner, who did not disclose the violation when they sold the property, probably because they didn’t know their driveway was illegal. Ramage is working on breaking up the pavement in the terrace, and plans to seed the area with grass.

The issue of the driveway itself is more complicated. The extra width is legal if it leads to an 8×18 parking spot alongside the house, according to city ordinances. Adding the parking spot would require Ramage to move his fence, and install additional gravel or pavement.

Ramage also could tear up the nonconforming asphalt, but this would leave him with insufficient parking. He could park in the street, but said it would look bad and create a hazard, while the widened driveway doesn’t seem to be hurting anybody.

In investigating the issue, Ramage found that his driveway is legal if it was widened prior to 1993, when the current ordinance went into effect. The city agrees with this, but says it’s Ramage’s responsibility to prove the age of the driveway.

Ramage was able to contact the previous owner of the house, who says the driveway was widened in 1992. No photos have turned up, though, and the city may not accept a statement unsupported by documentary evidence.

The previous owner also told Ramage that the low spot in the street was originally caused by an overloaded city truck riding too close to the curb.

Ramage plans to pursue the grandfathering exemption for the driveway. If that fails, he says he’ll install the extra parking spot.

The amount of work Ramage has put into the property is obvious. The kitchen looks like new, and even the garage appears to have been redone. Ramage says neighbors have been happy to see the house getting needed repairs. No one had complained about the violations McGuin cited, nor has the city claimed that any of the violations were creating a public hazard.

Ramage doesn’t mind adding the city’s requests to his to-do list, but can’t believe the citations were issued in the first place, apparently as punishment for asking the city to fix a problem in the public street.

Addendum 1, November 19 2016: Following a re-inspection, the city agreed that Ramage’s fence and terrace are in compliance. However, the city did not accept a signed, notarized affidavit from the previous homeowner, stating that the driveway was at its current width since 1992, as evidence that the driveway qualifies for the grandfathering exemption. The city continues to demand that Ramage either narrow the driveway or add the legal parking spot, and that he submit a highly-detailed plan, which must be approved by the city before any work can begin. Ramage is now consulting with a real estate attorney to explore other options.

Addendum 2, December 30, 2016. Despite the aid of a real estate attorney, Ramage was unable to persuade the city to accept the notarized affidavit or otherwise resolve the issue with the driveway. Instead, he will be forced to spend thousands of dollars tearing up legal pavement that no one ever complained about.
“The city was completely unreasonable and unwilling to do anything for me,” said Ramage. “The lesson I learned here was to NEVER report anything to the city.”

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Ramage is not the only Madison resident with a story like this. While citations are issued much too rarely to constitute consistent enforcement of the ordinances, they are issued often enough to look like a pattern of targeting specific residents – often those who, like Ramage, called attention to themselves by making a request of local officials. Calling out this behavior on the part of the city can lead to further harassment. One property owner who was targeted declined to talk to me, fearing retaliation by city inspectors.

Have a similar story to share? Contact jrosenbaum3@wisc.edu.

 

 

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