In September 2012, the Wisconsin DOJ filed a lawsuit against Madison Kipp Corporation. It is still unresolved. Why? Because it was always intended as a tool to protect Kipp from having to pay the true costs of polluting the neighborhood—and people’s bodies—with toxic chemicals. Given this, why would Kipp want to resolve it?
Here’s an abridged timeline:
July 25, 2011: The “intent to sue” under the Resource Conservation and Recovery Act (RCRA) was filed by Chicago attorneys on behalf of seven Kipp neighbors, with 90 days to file the lawsuit. Kipp called each of these neighbors and tried to convene a meeting to convince them to drop the lawsuit, but failed to do so.
August, 2011: With the lawsuit going forward despite Kipp’s attempts to stop it, a different strategy was pursued—to attempt deflecting it by having the State of Wisconsin sue Kipp. A team including Kipp management and attorneys, DNR and DHS representatives started working on a document called the “Scope of Work” (SOW). According DNR’s Michael Schmoller (in September 2011), the DNR’s intent was to include the SOW in a consent order between DNR and Kipp and to complete it before the RCRA lawsuit was filed.[1]
October 13, 2011: After the State of Wisconsin tried to bring a suit against Kipp in federal court to render the citizens’ class action suit moot, a judge ruled that the state was not statutorily authorized to bring a suit in federal court. In Schmoller’s 2012 legal depositions (see here and here) it was revealed that Kipp officials had visited Governor Walker’s office and asked that the State of Wisconsin sue the company in federal court. After this attempt failed, the DOJ decided to file the lawsuit in state court.
October 15, 2011: Citizens asked for a public meeting, which was then rushed because Kipp’s attorney David Crass (Michael Best & Friedrich) demanded that government agencies hold the meeting before the 90 day intent to sue period ended. At the Oct. 15 meeting, DNR’s Air and Waste Program Manager Eileen Pierce announced to citizens that the state had referred the Kipp case to the Department of Justice that week.
Citizens suspected, correctly, that this was another attempt to deflect the RCRA lawsuit or to “cut a sweetheart deal” for Kipp. They were disingenuously promised input into the SOW mentioned at the meeting—but of course they were never allowed any real input because it was part of lawsuit negotiations.
October 20, 2011: Class action RCRA lawsuit was filed.
For the next several months, behind closed doors, the SOW team, with strong direction from Kipp’s attorney David Crass, negotiated what would and would not be done regarding vapor intrusion and soil/groundwater contamination caused by Kipp. DNR and Kipp’s attorneys discussed (apparently for the first time since 1994 when the VOCs were discovered at Kipp) how Kipp could satisfy regulations relevant to the situation (NR700).
March, 2012: PCBs were “discovered” at Kipp at levels so high that EPA involvement was required. But fortunately for Kipp, though DNR had to coordinate with EPA on the PCB situation, the State of Wisconsin is in the lead in addressing the situation, according to the DNR-EPA’s “One Cleanup Program Memorandum of Agreement” or MOA.
The nature and extent of the PCB cleanup were then incorporated into the SOW negotiations. As with VOCs, Kipp’s attorneys, DNR and DOJ began to negotiate how Kipp could fulfill PCB regulations they had violated for decades.
August-September, 2012: DOJ attorney Steve Tinker and David Crass together drafted the DOJ “stipulation and order.” One of the terms they came up with was “Compliance with the terms of this Stipulation and Order shall constitute full satisfaction and release of the defendant Madison-Kipp Corporation, including its officials and employees, from all civil and/or criminal liability for any and all Wisconsin Department of Natural Resources (DNR) violations that might arise from the facts alleged in the complaint.” The initial draft proposed a “total penalty inclusive of all forfeitures and surcharges of $500,000” that would be reduced to $200,000 “should Madison-Kipp fully comply with the various DNR approved plans, within the agreed upon time limits and pays the DNR its cost recovery.”
September 28, 2012: With the above stipulation agreed upon by Kipp and DOJ, the DOJ lawsuit against Kipp was filed.
July 15 2013: Class action RCRA lawsuit settlement was proposed.
October 28, 2013: RCRA lawsuit was settled; Kipp paid $7.2 million to neighbors.
DOJ lawsuit negotiations, including the SOW, continued behind closed doors, unbeknownst to the public.
August 27, 2014: Kipp met with EPA to discuss how they will clean up the high levels of PCBs in soils and groundwater under the factory.
August 3, 2016: EPA wrote to DNR and Kipp.“While EPA presumes the parties continue to negotiate in good faith in this matter, EPA suggests that the time has come for the parties to promptly finalize the proposed agreement that addresses the PCB contamination at the MKC site.” Notably, someone from EPA Superfund program was copied on this letter.
August 12, 2016: Kipp’s attorney David Crass at Michael Best responded to EPA, admitting that “these settlement negotiations reach back some time” but “that is not to say that the matter has been dormant since the parties’ meeting in August 2014” and “MKC has accomplished much by way of further investigation and remediation at the site generally and specifically with respect to polychlorinated biphenyls.” He proposed to meet on in September after a Sept. 7 meeting scheduled for MKC and State representatives.
November-December 2016 (specific date unknown) Kipp/DNR/DOJ/EPA met. Meeting notes included part of settlement communication (dated September 29 2016) among Kipp, DNR, and DOJ. In this settlement excerpt, it says “PCBs have been present in the soils beneath the Madison Kipp facility for nearly 50 years” (it has likely been much longer than this) and “The State and Madison-Kipp are discussing an iterative process to monitor and, if necessary, remediate soil beneath the facility if it is confirmed that PCBs have dissolved into and impacted groundwater,” and described various options for dealing with this.
Also, it said, the “State of Wisconsin and Madison-Kipp” have discussed a “financial assurance mechanism” whereby Kipp assures the state it will establish a fund of $1.2 million to clean up PCBs. (This is not remotely enough to clean up the PCBs there—and is a drop in the bucket for Kipp).
October-December 2016: PCBs over the RCLs were found in the raingarden, which was already “closed” by DNR in July 2016.
February 14, 2017: Kipp’s consultants submitted a report asserting that “the detections of dissolved PCBs in three monitoring wells…beneath the MKC facility footprint are suspected to have been caused by the installation of the wells and not an indication of PCBs migrating in groundwater at the site.” Consultants argued that “Numerous references conclude that PCBs are not known to migrate readily to groundwater due to the tendency for PCBs to strongly adsorb to soil particles and to their low water solubility. PCBs do not migrate significantly to groundwater except under extreme conditions and, for the same reasons, they do not significantly migrate if in groundwater.” They cited three outdated government documents, none of which are scientific studies. They concluded that “The groundwater data collected to date at the MKC site, suggest that there is neither widespread, nor migrating PCB contamination in groundwater.”
(Shallow groundwater under the highly PCB contaminated ditch and raingarden has never been tested for PCBs despite citizens repeatedly asking that it be done, especially since the water table there is often just a few feet down.)
December 2016-March 2017: Further testing following up from the PCB findings in the raingarden found PCBs at levels up to 120 ppm in storm drains that travel under the factory and discharge at the raingarden and in city storm drains. A report summarizing the Oct 2016 through March 2017 results was shared with a small group of interested citizens.
April 13, 2017: Tony Koblinski told Steve Verburg at the Wisconsin State Journal that the PCBs found recently in the raingarden and drainage system “have set back efforts to resolve a state Department of Justice lawsuit that was filed in 2012,” but that he “expects soon to have a plan for cleaning the drainage system and the bike path area.” Koblinski says he had expected the lawsuit to be settled later last year, but the discovery of additional PCBs near the bike path and in the drain pipe have created delays.” Further, Koblinski said, “the company has complied with DNR instructions on soil cleanup since the mid-1990…”
Could the recent PCB findings actually help Kipp???
Kipp may very well have “complied with DNR instructions” since the 1990s, as Koblinski told the Wisconsin State Journal, but the DNR didn’t actually ask Kipp to follow relevant regulations on VOCs and PCBs until after the RCRA lawsuit was filed—and until after the SOW process/DOJ lawsuit negotiations allowed them to be off the hook for any regulatory violations. How fabulous for Kipp! And no worries about the recent findings of high levels of PCBs in the storm drainage system under Kipp—the company will be protected by the DOJ lawsuit, which will now drag on even longer. Also, as long as the lawsuit is still open, many records that would otherwise be public—about Kipp’s pollution and how it is being addressed—are not available to citizens because of “attorney-client privilege.”
While this lawsuit drags on and on, PCBs are repeatedly dug up next to a public bike path where people, including many children, walk and play every day.
Is our regulatory system working to protect public and environmental health? Clearly, NO. Is it protecting polluters? Clearly, YES.
[1] The SOW team included DNR staff (Schmoller, Hanefeld, Geisfeldt, Pierce), DHS (Nehls-Lowe, Jessica Maloney), Kipp’s human resource manager (Mark Meunier) and two attorneys from Kipp’s law firm Michael Best and Friedrich (David Crass, Leah Ziemba).
