[Above: Site of the proposed affordable and senior housing next to the old Kraft Heinz-Oscar Mayer site]
This story has many gaps and likely some inadvertent errors. It will be edited in coming days. Please let me know if you have corrections or anything to add: mariapowell@mejo.us.
UPDATED: A SECTION NOT IN PREVIOUS VERSIONS HAS BEEN ADDED–UNDER THE BLUE HEADLINE BELOW.
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Oscar Mayer & Company polluted a huge swath of Madison’s north side for over 100 years. During these decades, countless tons of Oscar Mayer’s toxic wastes sloshed via storm drains into the Yahara River, Starkweather Creek, Lake Monona and downstream lakes. City and state agencies, kowtowing to the powerful corporation–which was also the city’s biggest private employer and a beloved icon in Madison–allowed it to ignore many environmental laws.
The Mayer family sold the company to General Foods in 1981 and then it was owned and operated by various giant food corporations, most recently Kraft-Heinz Foods Company–according to its website, “the third-largest food and beverage company in North America and the fifth-largest food and beverage company in the world, with eight $1 billion+ brands.”
With these huge corporations (based outside of Madison) at the helm, pollution continued to spew into surface water, groundwater, and air in the neighborhood and beyond. Even after the first federal environmental laws were enacted in the 1970s, waste laws in the 1980s, and stormwater laws in the 1990s, city and state environmental agencies treated these powerful companies and their egregious toxic pollution with lax, hands-off approaches.
In 2017, Kraft Heinz closed up shop, leaving a disturbing legacy of toxic pollution behind. It sold the factory and surrounding land to Reich Brothers LLC, which then partnered with Rabin Worldwide (now referred to as Reich-Rabin)–based in New York and California. Now the city is planning, as part of the Oscar Mayer Special Area Plan, to develop much of the still contaminated factory site, and the adjacent Hartmeyer wetlands, into “affordable” and senior housing. (Depiction of proposed housing, above right)
Just as they protected these huge corporations in the past, our regulatory agencies will likely now help them sweep their legacy contamination under the rug in order to promote development over it. City leaders will tout affordable developments as being about racial and social equity. Sadly, we’ve seen this time and time again–for instance, this low income housing built on contaminated land on the north side in 2018-2020, and next to Madison-Kipp Corporation’s Fair Oaks factory in 2017.
City leaders tell us that this development, through the DNR’s “Remediation and Redevelopment” (RR) program, is the only way these contaminated sites will be remediated. If this is true, then something is very wrong with our environmental regulatory system.
As Juliet Ellis and her co-authors pointed out in a paper presented at the 2002 Second National People of Color Environmental Leadership Summit:
“The current environmental protection apparatus tends to focus on removing barriers to environmental liability as feared by developers, rather than on environmental justice issues in communities affected by brownfields’ existence and redevelopment…Limits to liability may also shift the burden of financial responsibility for cleanup onto the public sector, rather than holding corporations and private parties accountable for the actions that resulted in the contamination of brownfields.” (See the Appendix at the end of this story for more on how the doublespeak “develop to remediate” approach works.)
Given that city and state agencies have adopted this regulatory approach as their modus operandi, in coming years, we expect to watch environmental injustices being created right before our very eyes, all around the old Oscar Mayer site, with the city’s and DNR’s blessings.
Perhaps some responsible, ethical elected officials, government officials and agencies will arise and prove us wrong?
Kraft Heinz-Oscar Mayer left a huge toxic mess behind on the Hartmeyer propery
The first piece of land poisoned by Oscar Mayer, Kraft Heinz, and other corporations (collectively called Kraft Heinz-OM hereafter) that will go through the OMSAP and DNR redevelopment process is the Hartmeyer land next to the old, mostly abandoned Oscar Mayer factory.
How is the process going so far?
First, some background…
Oscar Mayer did a lot of things on its property in addition to raising and slaughtering cows and pigs–it manufactured pesticides, plastics, pharmaceuticals, treated factory wastewater, stored sludge, manufactured ice, incinerated wastes, and burned oil and coal to generate its own power. See some of that history here. For decades, large quantities of oil, coal, and petroleum products were handled, stored, and moved around on the site.
Oscar Mayer, Kraft Heinz, and other companies that owned the site left plenty of contamination behind on adjacent land they leased from the Hartmeyer family since the 1950s. Oscar Mayer likely used the land prior to this through informal arrangements; older residents say the company kept hogs on the land, among other activities. But the full range of activities Oscar Mayer and its successors did on this land is unknown.
In February 2020, Hartmeyer sued Kraft Heinz in an effort to get it to clean up contamination the company left behind.
Kraft Heinz-OM installed above-ground tanks to store fuel oil on the land it leased from Hartmeyer, and at some point the piping connected to the tanks leaked and “released thousands of gallons of fuel oil to the environment,” according to the complaint. Kraft-Heinz notified DNR of these spills in 1989 but did not tell its landlord until 17 years later. Coal was also stored on the property, with no liner or other protective barrier.
In 2001 one of the tanks was removed by Kraft-Heinz, and in 2016 the other was removed. More fuel oil contamination was found, and Kraft Heinz did further investigation and some remediation.
Some time after the fuel oil tanks were removed, Kraft Heinz constructed a “gas house” on the leased land, and an above-ground “bridge” to carry natural gas over the property line to the power plant. Fuel tanks and various pipes to transfer them spilled and leaked. Residual contamination at levels above state standards remained when the Kraft Heinz-OM lease with Hartmeyer lapsed in November 2019.
Hartmeyer’s lawsuit complaint alleged that in addition to not paying rent for September, October, and November 2019, Kraft Heinz failed to investigate, remove, treat and dispose of hazardous materials, in violation of state laws, left residual contamination in excess of applicable state clean-up standards, and other related offenses that violated terms of its lease with Hartmeyer. “The contamination has resulted in physical damage to the Property and a substantial diminution in the value of the fee-simple ownership of the Property by the Partners.” In addition to other claims, Hartmeyer argued that Kraft Heinz was liable to them “for damages due to waste both under common law and pursuant to Wis. State. Ch 844.”
[Above: the bridge, gas line, and gas house. This is what people will see from the “Family Housing-Relaxation area” (see below) on the east side of the proposed housing, facing the abandoned factory site. How long will it be until the factory is redeveloped? What will be developed there? (currently the site is one of the proposed options for an Amtrak station) As this highly contaminated industrial infrastructure is removed, what toxic chemicals will be released into air, water, soils? Will anyone measure, in order to prevent exposures to people living there?]
The Hartmeyer complaint asserted that the bridge, gas line, and gas house “encroach on the Property and there is no easement, license, or other interest that permits such encroachment.” Hartmeyer asked Kraft Heinz more than once to “cure” the encroachment by the end of the lease term (November 30, 2019), but it did not do so. “Kraft Heinz has taken the position that it has no responsibility for the encroachments on the Property,” the complaint said.
Further, Hartmeyer argued, the gas line, bridge, and gas house “constitute a trespass which diminishes the value of the property. “Kraft Heinz and Mayer are jointly and severally liable to the Partners from damages arising from the trespass,” it concluded. (The complaint indicates that Oscar Mayer still owns some of this structure on the old factory site depicted above). Hartmeyer argued that it is “entitled to exclusive possession of the Property and that Mayer must take steps necessary to remove the encroachments” and “for damages arising from Mayer’s encroachment on the Property.”
Hartmeyer also sued Kraft Heinz for damages “due to contamination on the Property, including without limitation damages for loss of value, use, and enjoyment of the Property and the cost of remediating the contamination…” as well as attorneys’ fees and related costs.
Kraft Heinz solves the problem by purchasing the Hartmeyer property!
We don’t know what happened after this, but apparently Kraft Heinz decided it would be better to just purchase the Hartmeyer property than to pay the legal fees to negotiate the lawsuit and possibly pay huge damages and cleanup costs for the contamination they left there.
Further, the company also knows very well, after years of experiences interacting with DNR, that it is powerful enough to influence DNR to be as lax as possible in investigating and cleaning up the site–and could hire environmental consultants that could help them avoid finding problems. If the Hartmeyer lawsuit went to court, these strategies might not work as well.
And–bonus!–the multi-national company can now make money by developing the contaminated property and placing low income and senior housing on it!
According to the city assessor’s page, Kraft Heinz bought the site in December 2020 for $3,025,000. The gas house, gas line, and bridge are still there, as of November 16, 2022 when I took the photo.
What poisons did Kraft Heinz and/or Oscar Mayer leave behind at Hartmeyer?
THE BELOW SECTION IS UPDATED INFORMATION NOT IN THE PREVIOUS VERSION OF THE POST
Who was responsible for the 1989 fuel oil spill?
Investigations were done to assess the contamination left behind by the 1989 petroleum spill at Hartmeyer, referred to in the lawsuit complaint (the spill the complaint says Kraft Heinz didn’t tell its landlord Hartmeyer about for 17 years). After years of investigations, this site was closed by DNR in 2008. But for unknown reasons, the files from these investigations are not posted on DNR’s Bureau for Remediation and Redevelopment Tracking System (BRRTS), which only includes more recent reports.
I asked DNR to post this file, but was told they do not have the staff to do so. However, some time after I sent my queries to the agency (in late November), the agency quietly posted this “Limited Environmental Site Assessment” (LEA) done by Ramboll consultants for Kraft Heinz, dated July 29, 2019, with some limited information about the 1989 spill and 2008 closure.
Interestingly, this LEA says that in 1989 Oscar Mayer (not Kraft Heinz) notified the DNR of a release of “approximately 14,000 gallons of fuel oil from underground piping that serviced the ASTs located on the leased Hartmeyer property.” In 1989, Oscar Mayer was owned by Phillip Morris, the largest consumer products company in the world. Phillip Morris had also purchased Kraft, Inc. in 1988.
Who is responsible for the spills, and for notifying DNR (or not)? The changing corporate ownership of Oscar Mayer and use of the Hartmeyer site make it very confusing to sort out.
In any case, some fuel oil was “recovered” from the site and more investigations were done (data not included). In 2001 more sampling was done for “total petroleum hydrocarbons-diesel range organics” (TPH-DRO)(this method, which assesses total levels of hydrocarbons, is no longer used, possibly for political reasons). Levels of TPH-DRO in many places significantly exceeded NR720 “generic soil standards” at the time. Further sampling in June 2001 found DRO, benzene and ethylbenzene in soils above the NR720 standards and PAHs benzo(a)anthracene and benzo(a)pyrene above the “interim generic industrial direct contact Residual Contaminant Level (RCLs). Several other PAHs were above the groundwater pathway RCL. The 250,000 fuel oil AST there was removed.
After some further testing, DNR approved closure in January 2008, “with certain restrictions/conditions placed on the property, including listing in the WDNR GIS registry, proper management of any contaminated soil that is excavated or removed, and requirement for WDNR’s approval prior to installing any wells at the property.” (italics added)
Kraft Heinz and Oscar Mayer trying to blame each other–or unknown entities that stored coal and/or brought “fill” to the property in the past
Notably, the LEA states: “Historical coal storage appears to have occurred on the eastern portion of the property from approximately the early 1960s until the 1980s or 1990s. In 2002, fill containing cinders, coal, and fly ash was identified in soil borings advanced in the former AST area. Certain PAHs were detected in soil near the former AST area at concentrations above the criteria applicable at that time and were attributed to possible coal storage and the adjacent railway. The constituents in the railway area may not be related to Kraft Heinz’s use of the property. Given the long-term use of this property, it is possible that coal storage activities took place prior to Kraft Heinz’s use of the property.” (italics added)
Under “Areas of Known Soil Contamination as Part of Historical Closure Activities” the LEA says: “As discussed above, TPH-DRO and PVOCs above then applicable WAC NR 720 Generic Soil Cleanup Standards and PAHs above the then applicable interim generic industrial direct contact RCLs and groundwater pathway RCLs were left in place following approval and closure from the WDNR in 2008. In addition, napthalene and PVOCs remain in soil (below 4 feet depth) above the WAC NR 720 groundwater pathway RCLs associated with the 2016 incident.** Residual soil contamination located in the railroad right-a-way are not related to Kraft Heinz and not of concern for this Environmental Assessment.”
Again, these are the files DNR will not post on BRRTS, purportedly due to lack of staff capacity. To see these files, citizens would have to schedule time to review them at DNR offices, which would take a lot of time and is very tedious.
**The “2016 incident” was a fuel oil release that was discovered during hte removal of the southern Above-ground Storage Tank (AST) and associated pump house. Some contaminated soils were moved from this area, as described below in the April 2018 Site Investigation Report.
A decade goes by, Kraft Heinz closes up the factory and leaves Madison…
In 2017, Kraft Heinz closed up shop in Madison, leaving a heavily contaminated factory site and also adjacent properties, like Hartmeyer, that had been polluted by its activities and those of its predecessor Oscar Mayer.
Following from the “2016 incident,” which had not received closure from DNR yet, in April 2018 Site Investigation Report (SIR), based on 2016-2017 testing, done for Kraft Heinz in the former above ground storage tank area, only included a very limited number of compounds (nine petroleum volatile organic compounds, or PVOCs). Testing found benzene compounds and napthalene in soils at levels well above soil-to-groundwater standards (also called “groundwater pathway RCLs). Benzene was found at up to 1,260 ug/kg and napthalene up to 19,700 ug/kg. About 465 tons of soil were excavated, down 10-12 feet, in a fairly small area near the pump house where the spill had occurred. The groundwater at the time, according to the report, was 3-4 feet down. Consultants sank just four shallow groundwater wells, and finding relatively low levels of the few contaminants tested, concluded that “groundwater does not appear to be substantially impacted.” Based on this, they requested closure from DNR (but presumably didn’t get it).
On November 25, 2019 Kraft-Heinz consultants submitted a “Technical Assistance Request” after they did an “Environmental Assessment” (EA) to “determine if any applicable State of Wisconsin soil cleanup standard is exceeded” as required by the lease, “in anticipation of the pending Lease termination.”
As part of this EA, in April and September 2019, the consultants again did some shallow soil testing in the area north of where the tanks were removed, in the area where coal was stored.
Arsenic was found in soils at up to 137 milligrams per killogram (mg/kg or ppm), greatly exceeding the groundwater pathway of 0.58 mg/kg.
Benzo(a)pyrene of up to 2,540 ug/kg at 1-2.5 feet and 4,280 ug/kg at 4-5 feet was found, well over the groundwater pathway of 470 ug/kg.
But no groundwater was tested for these compounds or others.
Both arsenic and benzo(a)pyrene were also far over residential direct contact RCLs: 115 ug/kg for BaP and 0.677 mg/kg (677 ug/kg) for arsenic, but only industrial RCLs were considered in the report since at the time the site was considered industrial.
Notably, they also found numerous petroleum volatile organic compounds (PVOCs), polycyclic aromatic hydrocarbons (PAHs), and other metals (barium, chromium, cadmium, lead) in addition to arsenic over the groundwater pathway RCLs. But they didn’t discuss these results in their report summary. Maps only included the arsenic and benzo(a)pyrene. (See arsenic map, right and on the last page of this document for clearer image)
The Kraft-Heinz consultants (Ramboll) asked for a meeting with DNR to get their “input and concurrence regarding next steps and a regulatory path forward regarding remaining contamination at the site.” They met with DNR on December 18, 2019. At this meeting, DNR asked the company to do more testing to delineate arsenic levels in shallow soils at the site.
DNR didn’t ask for any other testing–no metals or chlorinated compounds were tested in soils, and groundwater wasn’t tested at all. (The DNR project manager at the time was well known for being very lax in asking polluters to fully investigate sites.]
The arsenic testing was done in January 2020. Soils samples were taken about 4 feet deep “to assess the lateral extent of fill soil and delineate arsenic concentrations above the BTV” (background threshold value). These new samples were gathered on the periphery of the site, adding to the data from the earlier round of samples taken from closer to where the spills/coal piles were (which is right where the proposed housing will be located).
Per their discussion with DNR in December, consultants didn’t test to determine how deep the arsenic contamination went, whether it was in shallow groundwater, and if so, at what levels.
The arsenic report was issued on July 15, 2020. Most of the arsenic levels found in soils at the periphery were under the BTV, but nearly all were over the DNR’s industrial, non-industrial and/or groundwater pathway RCLs. (The important standards are the RCLs, not the BTVs, which are not standards. See Part II for a fuller explanation).
The consultants concluded that “Based on these results, the lateral distribution of arsenic at the site has been delineated as requested by the WDNR.” The vertical extent of the arsenic, which had not been investigated, was not mentioned. No full groundwater plume maps (horizontal and vertical isocontours) were included in any of the reports we found.
In sum, NR 700 regulations–especially NR 716, which requires delineation of the horizontal and vertical extents of contamination in all media (soils, groundwater, etc)–were largely blown off.
December 2020, Kraft Heinz purchases the property, directs all subsequent testing
Following its purchase of the property, “Kraft Heinz Real Estate and Facilities” approved the “scope of work” for the new consultants, SCS Engineers, led by Eric Oelkers. It’s unclear exactly who is working for whom and what the politics of these arrangements are. Email exchanges say SCS was contracted by the developers (Lincoln Ave Capital from Santa Monica California), who are hoping to finalize the purchase of the Hartmeyer site by the end of the year. But other documents (such as the September 2022 Status report-link below) state that Kraft Heinz Real Estate and Facilities is calling the shots about investigations and what is shared with DNR. It seems they are all in bed together, although perhaps somewhat tentatively and nervously (as each entity has different stakes in the game).
In any case, under the scope that the Kraft Heinz group approved, SCS installed only seven shallow (around 5-10 feet deep) temporary monitoring wells and tested for a limited set of contaminants in summer 2022. Two soil samples were also taken and tested for contaminants, but the data was not included in the report.
Results were reported in the September 21, 2022 Status report.
Stunningly, neither benzo(a)pyrene nor arsenic–both of which were found at levels in soils at orders of magnitude over all relevant RCLs in previous testing–were included in this investigation. Other metals found previously (over relevant standards) were also not tested, nor were many PAHs found previously (only napthalene) and several other chemicals that could be there. Moreover, of the seven temporary groundwater monitoring wells, only two were right over the area where residential housing is planned: one near the former oil tank areas investigated in earlier testing and another was north of that near the gas metering house.
The depth to water ranged from from 3.45 to 7.09 feet (at three borings it was only 3-4 feet down). The report noted that “Visual examination of the soil encountered in the borings indicated non-native fill material (including residual coal and cinders) in soil less than 8 feet deep (but typically less than 5 feet deep) in borings…located mostly within the proposed development area. This type of material, especially soil with cinders, is commonly encountered in [formerly] low-lying areas on or near the isthmus that were historically filled to facilitate development.” (This seems like an effort to attribute the contamination to “fill” rather than the petroleum spills caused by Kraft Heinz).
According to the report summary, “trace amount of toluene were detected in most of the samples” but they were” well below regulatory standards and may be attributable to the sampling equipment or lab contamination” and not of concern to DNR. Only “low” concentrations of petroleum contaminants” were found in groundwater near the gas metering building but “none of the detected contaminants exceeds an NR 140 groundwater standard.” (For several of the contaminants found, there are no standards; this doesn’t mean that levels are fine.)
Notably, however, while downplaying levels of contaminants, and suggesting that some came from fill put there by an unknown party long ago, the report noted that “the soil below the water table here had a strong petroleum odor” and admitted that “[t]his contamination below the water table is likely related to the former piping for the aboveground fuel storage tanks (ASTs) and/or historical petroleum handling activities in this area.”
But consultants noted that petroleum contamination in the AST area had been previously investigated and “the WDNR’s contamination case file (BRRTS #03-13-00053) was closed in 2008.” This is the case file that is not posted on BRRTS. The consultants took one shallow soil sample at 0-2 feet down, tested for the same limited set of VOCs as they did for the groundwater, and reported that they “detected only naphthalene at a concentration well below the corresponding residual cleanup level (RCL) for soil.” But neither the napthalene level found in the soil, nor the specific RCL it was compared to, were reported.
What about chlorinated compounds?
Highly toxic chlorinated solvents such as perchloroethylene (PCE) and trichloroethylene (TCE) were used all over the adjacent Kraft Heinz-Oscar Mayer site over many decades, and several chlorinated compound plumes have been documented on the site. The factory’s own supply wells were contaminated by these compounds and by the early to mi-2000s all of them were shut down and the company used municipal water (Well #7) after that.
SCS tested for some chlorinated VOCs at the seven shallow groundwater monitoring wells and found low levels of cis-1,2-dichloroethylene (DCE) and vinyl chloride (VC). Consultants dismissed the DCE levels (1 ug/l at two wells) because they are “well below regulatory levels.” As for the highly toxic vinyl chloride, found at 0.33 ug/L (ppb), which exceed the DNR’s preventive action limits and enforcement standards for groundwater, they wrote this off by saying it “is not considered to exceed the groundwater enforcement standard under the NR 140 rules because the reported result is below the laboratory limit of quantitation.” (The DNR’s soil-to groundwater pathway RCL for vinyl chloride is only 0.001 mg/kg (ppb)). SCS didn’t find any chlorinated compounds in the one shallow soil sample (0 to 2.5 feet bgs) at this location, but again, the results weren’t shared so it isn’t known what they found, what the detection limits were, etc).
Given the extremely sparse and shallow testing, these results tell us almost nothing. But the fact that chlorinated compounds were found there at all indicate that investigations might reveal a much bigger problem if more and deeper testing was done. Where did these hits of chlorinated compounds come from? SCS noted, correctly, that these compounds “are commonly the result of partial degradation of chlorinated solvents such as tetrachloroethylene (PCE) and trichloroethylene (TCE).”
Again–PCE, TCE and other chlorinated compound contamination is all over the Kraft Heinz-OM factory site right next to Hartmeyer. Chlorinated compounds are extremely mobile in groundwater and can move large distances over time. They also tend to sink down deep into groundwater, so very shallow groundwater testing is not enough to understand whether or not they are present.
Professional engineers and scientists employed by Kraft Heinz “Real Estate” division to handle their contaminated properties are well aware of this. They also know that if chlorinated compounds are found in groundwater at Hartmeyer, the company is very likely the responsible party; these contaminants likely traveled from the former Kraft Heinz-Oscar Mayer site. Given this, the extremely limited and shallow testing done for chlorinated compounds by SCS, under Kraft Heinz’ direction, is very suspect–and totally inadequate to understand the potential vapor intrusion and other health risks to residents living at the proposed apartments, especially as groundwater moves around (for instance, when shallow groundwater rises during flooding events and is sump-pumped to keep buildings dry).
DNR is apparently OK with this sparse testing, wants to “keep the project moving forward”
What about PFAS and other “emerging contaminants” that could very well be found at the site? Illustrating the lax (and full of loopholes) NR 700 rules, on February 10, SCS submitted an “Emerging Contaminants Statement” for the Hartmeyer property. “The aerial photos and available 1942, 1950, and 1986 fire insurance maps,” it stated, “do not show evidence of manufacturing, dry cleaning, or disposal facilities on the Property. Based on the aerial photo history and fire insurance maps, there is no evidence or reason to suspect that PFAS-containing substances or chlorinated solvents such as 1,1,1-trichloroethane were used, stored, or otherwise deposited on the Property. None of the various Phase 1 ESAs completed for the adjacent OM plant property reviewed by SCS suggested other potential contamination sources on the Property. Based on the evidence discussed above, SCS does not believe that further evaluation of PFAS or 1,4-dioxane on the Property is necessary.” (highlights added)
DNR RR staff were fine with this. They met to discuss the site with Eric Oelkers from SCS and Lincoln Avenue Capital in a “Green Team” meeting on March 2, 2022. The agency’s Green Team process helps local governments, polluters and developers collaborate and work through the brownfield redevelopment process as easily as possible–and calm developers’ fears about liabilities (what Ellis et al refer to as “regulatory streamlining”).
An earlier set of exchanges between the consultant and the DNR reveal this clearly. SCS wrote to DNR on January 27, 2022: “We would like to set up a meeting with representatives of Lincoln Avenue Capital, SCS, and DNR to discuss the current status of the open BRRTS case file, the preliminary plans for proposed site redevelopment, and remaining actions necessary to bring the open case to closure. SCS will prepare a statement on emerging contaminants for discussion prior to the meeting. Overall, Lincoln Avenue Capital would like to develop a clear understanding of the outstanding environmental issues that remain to be addressed now, so that there will be no “surprises” after they take ownership of the property.“
March 2 Green Team meeting minutes said the agency agreed that the Emerging Contaminants Statement is “adequate, provided no additional information is discovered that would alter the understanding of the site history.” They also agreed that “Soil reuse on site should generally stick to soil contaminants that are not volatile. Proper characterization and a materials management plan should be submitted, and the DNR can provide applicable comments/considerations with specific details.”
So, in sum, the consultant working for the developer and doing investigations (approved by Kraft Heinz) wrote a statement that he “does not believe” that further evaluation for these chemicals is necessary and that is enough to exempt them from testing for these chemicals. Could the consultant have said more testing should be done? If it did, would Kraft Heinz and/or the developers just find another consultant to say what they wanted?
DNR project site manager Cynthia Koepke responded to the September 21 investigative report on September 28, 2022. She called the petroleum VOCs in groundwater “not surprising, considering the former land use in that part of the property.” As for the chlorinated compound detections, she noted that “It’s unclear what the source may be” for the DCE, but the level was under the enforcement standard; she deemed the vinyl chloride detection a fluke because it wasn’t found in a second sample.
In sum, she concluded that “These groundwater data are consistent with our previous understanding of the site conditions. Since no NR 140 standards were exceeded, DNR is not requesting any additional actions based on these groundwater results.”
As for the sources of the contaminants, she said she agreed with the consultant that it was fill materials which were “very similar to what I have seen at other sites in the central part of the city. The 1892 USGS topographic map of Madison shows extensive wetlands in what is now the northeastern part of the city.”
Develop to remediate! Move along, nothing to see here
Though the March 2 meeting minutes were general, it’s clear that the DNR’s “Green Team” role is to move things along as quickly as possible and assure developers (and Kraft Heinz) that the agency will not slow development. Meeting attendees discussed “site-specific needs to keep the project moving forward” including “DNR written concurrence” and “Remaining Action Needed letters, approval of MMP once received/reviewed, etc.” Interestingly, minutes also noted that “The developer is not the RP of the site, and some consideration on moving forward should be taken there with the two private parties.” The RP they referred to is presumably Kraft Heinz, and the “two private parties” are Kraft Heinz and Lincoln Avenue Capital (or Hartmeyer?), but that wasn’t clarified, nor was what “some consideration on moving forward” means.
Representatives from “Kraft Heinz Real Estate and Facilities” are most certainly in ongoing communications with DNR urging the agency to “keep the project moving forward.” These communications are, of course, off the public record (phone calls, meetings).
“As the redevelopment project moves forward,” minutes said, “we want to keep the remediation project moving forward as well. DNR will likely need to review a Materials Management Plan for activities in contaminated soil areas. Where the land uses are residential, the non-industrial NR 720 residual contaminant levels will apply to soil” (highlights added; to date, the investigations and reports had all used industrial RCLs). Further, minutes said, “[b]ecause the water table is shallow in this area, you may need to work with your client to get the applicable permits for construction dewatering…I appreciate you keeping the lines of communication open and look forward to moving the remediation project toward close-out.”
So, in sum, this is how our regulatory process works in regards to contaminated sites that developers are itching to build on top of. The lax regulations and DNR help protect the corporate polluters (Kraft Heinz) from accountability, allow them to hire consultants to do their bidding in minimizing and/or hiding the pollution they left behind, and help the development process move as quickly as possible by not asking for too much testing before development goes forward.
If contamination is found after construction on new developments is going forward (e.g., during dewatering), is anyone going to halt the project to clean it up? Of course not. Then the contamination is just sent to the storm and/or sanitary sewer. (In practice, few and sometimes no contaminants are tested if dewatering is needed at a project; at that point, few are paying attention as the development goes forward).
DNR remediation and redevelopment employees are accustomed to this modus operandi. They and their superiors are also very likely receiving pressure from powerful polluters like Kraft Heinz behind closed doors.
To be continued in Part II…
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APPENDIX: The”remediation and redevelopment” mantra: To remediate, we must redevelop! In other words, the cleanup process is quasi-privatized
City officials say these proposed “affordable” housing developments on contaminated land are about social justice and racial equity–they are creating much needed housing for low income people. Oblivious to their ironic doublespeak, they will tell us (as they have already) that “redevelopment is the most effective tool in remediating brownfield properties”–the dubious mantra that underpins the ALEC-sponsored Brownfields Redevelopment Act that helped create this approach (the Act may look good to a naive reader, but the devil is in the details).
Yup, it’s win-win-win all the way around! Here’s the happy story we are to believe: Developers will thoroughly clean up the toxic messes left by previous polluters and also make money! The low income people living in the new developments will be protected from toxic exposures when developers (often from nowhere near Madison, sometimes other states) willingly spend all the money necessary–because they care so much!–to thoroughly clean up the poisons.
Right. Haha. You have to be very naive to believe this magical thinking (otherwise known as bullS!#T).
None of this is about thoroughly cleaning up the contamination and protecting people from exposures. Was that ever the priority for polluters and developers? Is it now? Of course not. As always–it’s all about money.
The polluters’ priority is to spend as little money as possible cleaning up its messes, and the developers’ priority is to spend as little money as possible on remediation and make as much money as possible from their developments. The environmental consultants hired by polluters and developers to do environmental investigations/remediation follow their bosses’ directives, and of course they want to make money too. It’s a great game.
Meanwhile the city, as it grows fast and furious, desperate to squeeze affordable developments in wherever it can–with some good intentions, but also wanting to cover up vacant brownfields and increase the tax base–make sure the developments go forward as quickly and smoothly as possible. City planners work closely with developers and their consultants, often behind closed doors and off the public record, to facilitate the process. The public is in the dark, aside from occasional token public meetings, often held after the important decisions have already been made.
What about DNR? Unfortunately, the agency has been courting developers and their consultants since the NR700 laws pertaining to cleaning up contaminated properties (brownfields) were promulgated in 1994. The laws are self-implementing, full of loopholes, nearly voluntary in some regards. Various liability protections are built in to protect polluters and developers. How closely regulations are followed by polluters and developers depends on the DNR site managers assigned to particular sites and how susceptible they are to arm-twisting of polluters to make exemptions for them.
The DNR has a special Green Team process to help local governments, polluters and developers through the process as easily as possible. Does DNR have a Green Team to help citizens in communities affected by these redevelopment projects? Or can we join their “collaborative process?” Of course not.
The doublespeak name of these “regulations,”– “Remediation and Redevelopment”–says it all. Develop to clean up pollution?
Other environmental justice scholars have written about the problems with this approach to brownfields
Juliet Ellis and her co-authors pointed out in a paper presented at the 2002 Second National People of Color Environmental Leadership Summit:
“Strongly influenced by traditional private property rights and capitalism, most zoning has historically supported uses of land that generated profit for landowners, taxes for governments, and the land values of the more affluent. As a result many zoning decisions allowed for the siting of industries that used or produced toxic chemicals as a lucrative means of making profit. In addition, the lack of environmental standards meant that polluting activities at these sites threatened the public health and the environment of adjacent communities. In many cases, toxic chemical use and disposal went unmonitored for many years, allowing toxins to be released into the environment via the air, water, and soil.
Although environmental regulations do now exist to address the environmental, health, and social impacts of undesirable land uses, these regulations are difficult to enforce because many of these sites have been toxic-ridden for many years and investigation and cleanup of these sites can be expensive. Further, due to pervasive discrimination, contaminated sites in low-income communities and communities of color receive much lower levels of clean up and much slower clean up than those located in wealthier communities.
Further, communities located near these contaminated sites suffer disproportionately from the health burdens associated with exposure to contaminants left on these pieces of land…(and more details here).
The current environmental protection apparatus tends to focus on removing barriers to environmental liability as feared by developers, rather than on environmental justice issues in communities affected by brownfields’ existence and redevelopment...
The typical policy direction taken by state and federal entities in encouraging brownfields redevelopment is driven by the desire to increase market demand through regulatory streamlining and liability relief. Regulatory streamlining focuses on reducing red tape and its associated costs for developers navigating through the remediation process. This is done by developing uniform cleanup standards and instituting interagency coordination in expediting the approval of remedial plans. Liability relief usually goes hand in hand with regulatory streamlining, in the sense that property owners or developers participating in voluntary cleanup programs are then assured that they will not be responsible for any future cleanup activities.
Regulatory streamlining and liability relief have been characterized as reinforcing old business practices that emphasize benefits for the private sector at the expense of social equity considerations for brownfields-impacted communities. The push for universal cleanup standards that is part and parcel of regulatory streamlining initiatives has led to the proliferation of “risk-based corrective action” (RBCA). RBCA bases cleanups on the proposed end use and on minimizing pathways of exposure through institutional or engineering controls, effectively supplanting the previous emphasis on the highest standard (residential use) involving physical removal or breaking down of contaminants into less harmful substances.
RBCA may result in the continued exposure of low-income communities of color to unequal environmental protection, as inner city brownfields are subjected to less stringent cleanup and development standards than greenfields in affluent, predominantly white suburbs. Limits to liability may also shift the burden of financial responsibility for cleanup onto the public sector, rather than holding corporations and private parties accountable for the actions that resulted in the contamination of brownfields.”
