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Kipp Raingarden Update, Part 1: MEJO tests show that city land next to Kipp raingarden still contaminated with PCBs

Kipp Raingarden Update, Part 1:  MEJO tests show that city land next to Kipp raingarden still contaminated with PCBs

Photo: Kids walk along bikepath next to Kipp raingarden in February 2017.

Sadly, the seemingly never-ending Kipp raingarden saga continues. (See the long history of the Kipp Raingarden PCB Saga here, here, and here...and more).

In February 2017, MEJO gathered shallow soil samples next to the city bike path adjacent to the Madison-Kipp raingarden and had them tested for PCBs.  One sample had total PCB levels twelve times higher than the residential direct contact “residual contaminant levels” (RCL) appropriate for this area. Another had levels about five times higher than the residential RCL.[1][2]

MEJO’s samples were from surface soils (top 1-2 inches) right next to the bike path, where people walk and jog, children play, parents push strollers, and pets frolic. City and state officials have told us repeatedly that nobody could be exposed to PCBs along the bike path because surface soils there were not likely to be contaminated.

Also, this city-owned area was deemed “closed” by DNR in July 2016 with the understanding that PCBs remaining there over the RCLs had been excavated—or capped with clean, PCB-free soils to prevent exposures to people walking or playing there.

However, the MEJO samples with PCB over the RCLs were from areas that were never actually tested for PCBs because Madison Gas & Electric would not allow excavations near their utility poles and underground lines. (See this map of what areas were excavated and what areas were not because they were MGE “utility buffers.”) One of the samples was from a grassy area upstream of the raingarden where stormwater flows into the raingarden every time it rains—likely re-contaminating the raingarden. Another sample was downstream of the raingarden. Neither area was ever excavated or capped.

In one area inches from the bike path that was “capped” in October 2015 with a thin layer of purportedly “clean” soils, to cover remaining areas with PCBs over the RCLs, we found PCB levels over half the residential RCL. There really shouldn’t be any PCBs above detection limits in this cap soil. The July 16, 2016 DNR letter to Mayor Soglin about the DNR’s approval of final closure for the area states “[t]he soil and asphalt caps over the contaminated soil serve as a barrier to prevent direct human contact with residual soil contamination that might otherwise pose a threat to human health. Based on the current use of the property, the barrier should function as intended unless disturbed.”

The soil cap has been repeatedly disturbed since it was placed there (see here and here).  The snow fence placed around the original cap came down almost immediately and was never put back up.[3] The city driveway and parking lot caps, over highly contaminated soils, have also been repeatedly disturbed. The DNR closure agreement includes maintenance requirements to prevent disturbances of caps meant to protect people from exposures—but apparently nobody is taking these requirements seriously, despite the area’s heavy public use and location next to a community center.

The bottom line? The public area along the bike path next to Kipp is still contaminated with PCBs over the levels city and state officials agreed could remain there without being capped. The capped area is not PCB-free, and is highly disturbed. Adults, children, and pets walk, jog and play all over these areas.

Why are PCBs on this highly used city land not being fully investigated or remediated? Who is responsible? It is not clear. But it is very clear that public health is not being protected.

Where did these PCBs come from? See Part 2, coming soon…

[1] “Residual contaminant levels” are the contaminant levels that can remain in place without capping according to DNR policy. Responsible government officials typically decide whether to use lower, more protective “residential” or higher, less protective “industrial” RCLs based on the zoning of the land and how the land is used. According to DNR guidance, heavily publicly used land such as this area, next to residences and a community center, should use residential RCLs. Both MEJO samples over the residential RCLs were also over the industrial RCLs.

The city’s lease to Kipp for the raingarden, signed in Jun 2015, says: “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. The Lessee shall also determine the source of the contamination and take action to ensure that further contamination does not occur. New contamination shall be defined as shallow soil sample results above the DNR residential direct contact standard (RCL) for PCBs.” (highlighting added).

However, the Kipp consultant report says industrial standards would be used for cleanup decisions. Whose decision was this? On what basis was it made?

[2] These levels are 108 to 265 times higher than the RCL for the “soil to groundwater pathway.” The highest level of PCBs found along the bike path to date (1020 ppm), is over 108,000 times the soil to groundwater RCL. Yet, groundwater under the raingarden and bike path area has never been tested for PCBs.

[3] Our ongoing emails to city and state officials since 2015 with photos of this disturbed area were apparently ignored.

 

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Chief Environmental Justice Official at EPA Resigns

Chief Environmental Justice Official at EPA Resigns

Mustafa Ali, former head of EPA’s environmental justice program (photo from Wilson Center, Environmental Change and Security program/flickr)

By Phil McKenna, Inside Climate News

The head of the environmental justice program at the Environmental Protection Agency has stepped down, departing the government with a lengthy letter to Scott Pruitt, the EPA’s new administrator, urging him not to kill the agency’s programs.

Mustafa Ali, a senior adviser and assistant associate administrator at the agency, worked to alleviate the impact of air, water and industrial pollution on poverty-stricken towns and neighborhoods during nearly a quarter century with the EPA. He helped found the environmental justice office, then the environmental equity office, in 1992, during the presidency of President George H.W. Bush.

Ali leaves the EPA as Pruitt, who took office Feb. 17, prepares to implement deep cuts in the agency’s budget and staff. A Trump administration proposal would cut the EPA’s $8 billion budget by $2 billion and reduce its roster of 15,000 employees by 20 percent. An internal memo obtained by multiple news outlets on March 1 called for a complete dismantling of the office of environmental justice and elimination of a number of grant programs that address low-income and minority communities. A story in the Oregonian reported that funding for the office would decrease 78 percent, from $6.7 million to $1.5 million.

Read more here

 

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It Is Time to Reform Landscape Ordinances – Part 4

It Is Time to Reform Landscape Ordinances – Part 4

Photo: One of many pollinator-friendly yards in the City of Madison, as depicted by the city’s Pollinator Protection Task Force Report. Photo by Ledell Zellers.

By Janette Rosenbaum

During the time that this series was being published, Madison did in fact reform its landscape ordinances. For the first time since 1978, Madison updated its regulations pertaining to “natural lawns”.

Natural lawns – now referred to as “natural landscapes” – are defined by the city as residential yards in which grasses exceed eight inches in height. This category includes yards that are entirely landscaped with prairie plantings, yards that have a single ornamental clump of tall grass, and everything in between.

Previously, all yards in this category were required to obtain a permit. Without a permit, grass in excess of eight inches was a violation of the ordinances. As noted in previous articles in this series, many people in Madison have tall grass in their yard, while few have ever obtained – or even attempted to obtain – a permit.

As described in Part 2 of this series, Madison knew at the time the permit requirement was created that tall grass does not attract rats, hurt property values, or cause any of the other negative impacts commonly attributed to it. Still, the 1976 effort to completely eliminate a ban on tall grass failed due to the concerns of those who continued to believe in tall grass’s bad rap.

Today, Madison recognizes that banning tall grass – and thus virtually requiring fossil-fuel-powered mowing, fertilizers, pesticides, and all the other maintenance practices associated with lawns – interferes with the city’s goal of being more sustainable and more environmentally friendly. Specifically, making it difficult for property owners to establish prairie plantings, by requiring them to go through an onerous permitting process, presents an obstacle to the goal of protecting pollinators, which the city declared to be an urgent priority in the fall of 2015.

Still, the workgroup charged with taking action to protect pollinators failed to fully legalize tall grass. Instead, on January 3, 2017, the City of Madison adopted a limited revision to the natural landscapes ordinances that says the following:

  1. Grass in residential yards may not exceed eight inches in height.
  2. Grass in residential yards may exceed eight inches in height, if the property owner obtains a permit.
  3. Grass in residential yards may exceed eight inches in height without a permit, if the area containing the tall grass only occupies a certain limited percentage of the yard, and if this area is a certain distance from the property lines, and if the tall grass is a species found on a brief list included in the ordinance.

Supporters of the revised ordinance say that this change will make it easier for property owners to legally have natural yards. Others who were hoping for a more progressive update, however, have several concerns about the new rules.

First, the exemption to the permit requirement only helps property owners who have – or who would like to have – small natural plantings. Almost no one in this category currently has a permit, and almost none of them have been prosecuted for not having a permit. Eliminating the permit requirement for small natural plantings helps almost no one, while still leaving property owners with full natural yards vulnerable to prosecution.

Second, enforcement of the new ordinance would require Building Inspection employees to calculate what percentage of a yard is occupied by a natural planting. Although Building Inspection Director George Hank stated, at a city meeting where the proposed revision was being discussed, that his employees were good at math, those employees have stated to the author of this article that they often rely on eyeballing rather than measuring when determining the size and location of plants. If inspectors take that approach to the new ordinance, property owners could be forced to go to court to argue that their planting is in fact smaller than the percentage limit.

In addition, the aspect of the ordinance that allows only certain grass species to bypass the permit requirement depends on inspectors being able to accurately identify grass species. In previous cases, Building Inspection employees have been unfamiliar with native species, and have described natural yards as containing a “significant number of plants [they] couldn’t identify.” Again, a property owner could be falsely accused of not meeting the requirements for the permit exemption, and would then be forced to convince a judge that their grass belongs to the exempted species.

Third, given Building Inspection’s history of enforcing ordinances arbitrarily – as described in previous articles – it is not hard to see how the new ordinance could be misconstrued to mean that even with a permit, a property owner cannot have grass species other than those listed as allowable without a permit. The new section of the ordinance also requires tall grasses to be set back at least five feet from property lines – a requirement that could be inappropriately applied to those who have permits, who currently must provide a setback of only three feet, or none at all with the permission of the adjoining neighbor.

Clearly it is not the intention of the new ordinance to be more restrictive than the old one, but the confusing wording, along with the structure of exemptions to exemptions, could again force property owners to go to court to sort out which requirements apply to the type of yard that they have. The simple solution: stop imposing onerous regulations on grass, and allow property owners to landscape their yards with the most harmless and regionally-appropriate of plants.

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The Center for Health, Environment & Justice (CHEJ) funds Midwest Environmental Justice Organization project

The Center for Health, Environment & Justice (CHEJ) funds Midwest Environmental Justice Organization project

The Midwest Environmental Justice Organization (MEJO) has received a grant from the Center for Health, Environment & Justice, the grassroots organization founded in 1981 by Lois Gibbs after her historic and successful efforts to fight toxic pollution at Love Canal in Niagara Falls, New York.

“The Center for Health, Environment, and Justice is honored to be able to provide this grant to the Midwest Environment Justice Organization,” Gibbs said after the funding was awarded. “The program was very competitive, and their proposal reached the top because of the incredible work the group is doing. Grassroots groups across the country are underfunded given the level of impact they have on their communities and larger social change policies. CHEJ is privileged to be able to provide resources to all of these powerful groups, thanks to a small number of generous donors.”

MEJO works to educate community members about the effects of toxic pollution and to engage them in actions to stop it. “Unfortunately, even in a relatively privileged and progressive city such as Madison, many people from a variety of backgrounds are exposed to toxic pollution—and lower income people and minorities are more likely to be exposed than more privileged people,” MEJO President Maria Powell added.

“The CHEJ project,” Powell said, “will focus on outreach to people affected by industrial pollution to engage them in decisions on what to do about it—especially how to prevent toxic chemical exposures among the most vulnerable people. This is the core of environmental justice work.”

Since its founding in 2006, MEJO has worked to address environmental justice issues such as the race and class-based disparities in the consumption of contaminated fish, over-use of toxic pesticides on public land, and air and water pollution from urban brownfields and industries.

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Everyone deserves a safe & healthy home

Everyone deserves a safe & healthy home

Photo: The view from the site where the City of Madison has approved a low income housing development, with substantial city funding.

Click here for a brief taste of what people at this housing will see and hear from their apartments.

Waste trucks visit the Madison-Kipp Fair Oaks factory almost daily to suck up thousands of gallons of toxic wastes from aluminum melting and die casting processes and haul them away. Many of the same toxic chemicals, their combusted byproducts, metals and small particulates are emitted—unfiltered—from the factory stacks and open bay doors.

Would you want to see this out your living room window every day? To hear this noise every day? To smell and breathe the air emitted from these stacks, vents and trucks every day? Would you want your children to breathe this air?

We doubt that many Madison alders, public health officials, and other city decision makers could honestly answer YES to these questions. So why do they think it’s OK for low income and homeless Madisonians to live there?

The Madison Common Council has already approved $1.3 million in city funding for this housing project. On Tuesday, Feb. 28, alders will vote on whether to further support the project with $343,000 of Tax Incremental Financing (TIF) funds. See our comments–along with many Kipp neighborhood residents as co-signers–to the Madison Common Council here.

Please email Madison alders (allalders@cityofmadison.com) and Mayor Paul Soglin (PSoglin@cityofmadison.com) and ask them not to approve TIF funding for this project. Ask them where they live. Ask them to consider, honestly, if they would live in these apartments. As them to consider whether they assume different quality of life standards for less privileged people than for themselves.

Everyone deserves a safe and healthy home.

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Scientists find PCBs 10,000 meters below the ocean’s surface

Scientists find PCBs 10,000 meters below the ocean’s surface

Much of our work in Madison, Wisconsin in recent years has focused on preventing toxic contaminants such as PCBs (polychlorinated biphenyls) from being released into the environment and entering waterways–and eventually ending up in fish people eat.

Government agencies have told us repeatedly when we’ve raised concerns about PCBs moving into waterways from industrial sources that they will not move because they are not very water soluble and tend to stick to soils. While it is true that PCBs aren’t highly water soluble, and tend to attach to soils and other organic matter–it is well known that soils and other materials with PCBs attached to them can and do move into waterways. Also, it is well-established by scientific studies that PCBs are semi-volatile and can travel through air for long distances.

Now, further refuting the argument that PCBs do not move, a Washington Post article by Chelsea Harvey reports that scientists in the UK have discovered PCBs and related compounds PBDEs (polybrominated diphenyl ethers)  “in some of the ocean’s deepest trenches, previously thought to be nearly untouched by human influence” at levels that rival some of the most polluted waterways on the planet.”

If PCBs do not move far from their source, as Madison’s government officials keep telling us, how did they get to this remote place? Clearly, PCBs can move.

Why does it matter? PCBs and PBDEs, according to the article, “may cause a variety of adverse health effects, including neurological, immune and reproductive issues and even cancer (in humans).” Further, both PCBs and and PBDEs “have the potential to remain intact for long periods of time” and tend to “bioaccumulate,” meaning they can build up in organisms over time. The article cited a study showing that certain organic pollutants, including PCBs and PBDEs “are widespread in fish throughout the world.”

Read the whole Washington Post article here

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No, chemical industry, you can’t have your cake and eat it too (Part 1)

No, chemical industry, you can’t have your cake and eat it too (Part 1)

Richard Denison, Ph.D., Environmental Defense Fund

There is an extreme anti-regulatory and anti-science bandwagon moving fast through Washington, and much of the chemical industry seems to have jumped right on board.  We’re also seeing growing signs of industry pushback against even modest early actions EPA is taking to implement the Lautenberg Act, which reformed the obsolete Toxic Substances Control Act (TSCA) and passed with strong bipartisan support only last June.

Read more here

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Send Your Valentines for Babies’ Hearts

Send Your Valentines for Babies’ Hearts

From Laura Olah, Citizens for Safe Water Around Badger.

EPA will be holding a public meeting on Feb. 14 (Valentine’s Day) to receive input on its efforts to establish the scope of risk evaluations for 10 toxic chemicals including the solvents TCE and PCE. This is a great opportunity to raise awareness about the risk of infant heart defects from prenatal exposure to these highly toxic compounds.

YOU can make a difference for babies’ hearts… send this Valentine to EPA!

You can make your own Valentine or print this one. Add your personal message and sign, including your mailing address!

MAIL your paper heart Valentine to:

EPA Office of Pollution Prevention & Toxics
c/o Citizens for Safe Water Around Badger
E12629 Weigands Bay South
Merrimac, WI 53561

 WOW!  We will make sure your Valentine is HAND DELIVERED at the Feb. 14 meeting in Washington DC!

In order for this campaign to be the most effective, we need LOTS OF HEARTS !!!

WANT TO HELP EVEN MORE?  Share this message with your friends and family and ask them to participate too!

FOR MORE INFORMATION:

Public meeting info including registration and deadlines: http://bit.ly/2jQwU7k

Health info from: https://www.atsdr.cdc.gov/sites/lejeune/tce_pce.html

Web address for Valentine to EPA:

http://cswab.org/safewater/wp-content/uploads/2017/01/Heart-Action-Alert-sheet-TCE-PCE.pdf

This Action Alert is also posted on our website at:

http://cswab.org/send-your-valentine-for-babies-hearts/

Laura Olah, Executive Director

Citizens for Safe Water Around Badger (CSWAB)

Coordinator, Cease Fire Campaign

E12629 Weigand’s Bay S, Merrimac, WI 53561

(608)643-3124

info@cswab.org

www.cswab.org

www.twitter.com/CSWAB

www.facebook.com/cswab.org

http://cswab.org/resources/cease-fire-campaign

http://www.facebook.com/ceasefirecampaign/

No effort, no matter how small is wasted when it is in the service of a clean and just world.

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It Is Time to Reform Landscape Ordinances – Part 3

It Is Time to Reform Landscape Ordinances – Part 3

Photo: Tim Wong’s bush has grown next to his neighbor’s driveway for over 20 years without causing any problem.

By Janette Rosenbaum

The first two parts of this series reviewed how Madison’s vegetation ordinances came to be, whether they are benefitting the public, and how enforcement of them might be reformed. This third part examines a specific case of enforcement.

Tim Wong is a member of the Schenks-Atwood-Starkweather-Yahara (SASY) neighborhood association, which conducted the violation survey described in Part 1 of this article. He is also one of the residents of that neighborhood who received complaints about his yard.

Wong quickly resolved the complaint, which regarded flowers in his terrace being too tall. Then, Building Inspection (BI) supervisor Kyle Bunnow came to his property to “make sure he understood the rules”. During that visit, Bunnow pointed to a bush in a vision triangle in Wong’s yard, which had existed in that location for over 20 years without issue, and declared, “That has to go.”

The case ended up in court, where Bunnow constructed the following story in his testimony: Suppose that a car is backing out of an adjacent driveway, while a child is approaching on the sidewalk. The motorist and pedestrian do not see each other, because of the bush, and tragedy results.

This hypothetical danger ignores the following facts: First, Wong does not own a motor vehicle and has a tree growing in his driveway. The neighbor’s driveway, which more closely abuts the bush, is occupied by a picnic table most of the year; the neighbors only park vehicles in their driveway during winter, when the leafless bush is nearly transparent. Second, another of Wong’s neighbors testified that she has never seen any motor vehicle in Wong’s driveway. Third, as described in Part 2 of this article, almost no motor vehicle accidents anywhere have been attributed to the presence of a plant.

It is thus extremely doubtful that the destruction of Wong’s bush would result in any benefit to traffic safety – or to public health, safety, welfare, or morals more generally. Another feature of Wong’s case — to which we shall return in a moment — also illustrates the questionable legal grounds on which Madison’s vegetation ordinances are enforced.

The Fourteenth Amendment of the United States Constitution states that all citizens must be treated equally under the law. Harvey Jacobs, an expert on property rights and professor at the University of Wisconsin-Madison, explains how this relates to a citizen’s use of their private property: Use of private property is controlled by local zoning laws, but because people own property in different zones, they do not all have the same rights as to how they can use their property. In the 1920’s, the Supreme Court ruled that this is not a violation of the Fourteenth Amendment, so long as everyone owning property in the same type of zone is subject to the same restrictions on the use of their property.

To return to our main topic, this should mean that Madison’s vegetation ordinances are acceptable under the Fourteenth Amendment, so long as everyone in the same neighborhood is held to the same standards. But to return to the case of Mr. Wong, this does not appear to be how enforcement is handled.

During that meeting with Supervisor Bunnow, Wong pointed to a bush on a neighboring property, which was clearly overhanging the sidewalk. Although this is a violation of the ordinances, Bunnow stated that he “had no problem” with it. It thus does not appear as though Wong and his neighbor were treated equally.

The Fourteenth Amendment sometimes allows for inequal treatment based on special circumstances; perhaps one of those exceptions applies here. Some examples of valid inequal treatment are as follows: One restaurant might be allowed to serve alcohol on their premises, while another restaurant in the same neighborhood is not, on the basis of only the first restaurant possessing a liquor license. Or, a residential property owner might receive special permission to violate setback ordinances due to their property having unusual topography.

The inequal treatment of Wong and his neighbor might be valid if, for example, the neighbor had a natural yard permit. This permit allows Madison residents to be subject to a somewhat more lenient set of vegetation ordinances. However, since the permit exception was created several decades ago, the city has issued perhaps 100 such permits. This is hardly enough to cover all the violations in the SASY neighborhood, let alone the many yards all across the city that are only in compliance with the ordinances if they have a permit. It is thus unlikely that Wong’s neighbor has a permit.

It is also possible that Wong’s neighbor had not received any complaint about their property. However, this does not seem like a reasonable criterion on which to discriminate between Wong and his neighbor. Neither bush had received a complaint (remember that Wong’s complaints were about another aspect of his property, which he addressed), and at any rate it is doubtful that any of the complaints in the neighborhood reflected a valid use of the police power to begin with.

Third, it could be the case that the discrimination reflected intelligent enforcement of the ordinances – that is, Wong’s bush was judged to be an actual hazard, while the neighbor’s bush was not. However, as described above, there is very little evidence that Wong’s bush was in any way endangering anyone.

In conclusion, the ordinances must be enforced through fair and reasonable criteria, so that true safety hazards are addressed while technical violations are left alone. The current enforcement practices do not support this goal. While the city may not have the resources to find and resolve all true safety hazards, shifting resources away from the senseless prosecution of technical violations would surely help to address the shortfall.

 

 

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