After years of declining financial penalties for Wisconsin polluters, Republican Attorney General Brad Schimel has settled a case with no fine at all.
Schimel spokesman Johnny Koremenos said the Justice Department is proud of the court settlement reached in November that requires 3M Co. to spend an estimated $665,000 by August 2018 on improvements to pollution control equipment that failed repeatedly at two plants in Wausau.
Top environmental regulators said they weren’t aware of any case in the last 25 years in which a Wisconsin attorney general took a polluter to court without winning a penalty.
“This doesn’t provide effective deterrence for the companies that want to cut corners on pollution controls,” said George Meyer, who led the Department of Natural Resource’s enforcement division before serving as secretary from 1992 to 2001.
The expenditures 3M has agreed to are considered a “supplemental environmental project,” Koremenos said. Under federal rules, such projects are supposed to reduce penalties while producing environmental benefits beyond what is required for a defendant to come into compliance with the law.
Koremenos said the $665,000 is greater than the cost for the company to bring its facilities into compliance with the law, but he didn’t respond when asked how much money was spent on meeting legal requirements and how much covered additional improvements.
3M spokeswoman Fanna Haile-Selassie said she wasn’t aware of specific changes the company had made to come into compliance after the DNR cited pollution violations. However, the company is always making improvements to its operations, she said.
The supplemental environmental project includes adding electronic equipment that is supposed to let employees know when pollution control machinery stops working, as well as continued participation by the company in a private environmental improvement program it has been enrolled in since 2010 called ISO 14001.
Meyer said the company should have begun fixing its problems as soon as it became aware of them in 2014 or earlier.
“You are talking about a Fortune 500 company that has the resources to know what it is required to do,” Meyer said. “So what the Department of Justice basically did with the (supplemental environmental project) is they gave them credit for things they already had to do.”
The DNR has long viewed its most urgent task in dealing with polluters as bringing them quickly into compliance with the law to minimize contamination of air and water. Many cases are settled informally by the DNR.
The department sends violations to the Justice Department when there are serious violations involving extensive emissions of pollutants, repeated violations or companies that resist making needed changes, said Scott Hassett, an attorney who ran the DNR from 2003 to 2007.
Meyer, Hassett and two other former DNR secretaries — Darrell Bazzell and Matt Frank — contacted by the Wisconsin State Journal said they weren’t aware of a previous case where a Wisconsin attorney general settled a serious violation without a fine.
“If the process is working right, once there’s been a referral, there is going to be some kind of fine,” Hassett said.
Fines ensure businesses know they can’t gain an advantage over competitors by cutting costs in the area of pollution controls, said Frank, who was DNR secretary from 2007 to 2011 and Justice Department legal services director, with the responsibility to oversee environmental cases, from 1996 to 2002.
“We were looking for forfeitures as a penalty, as a deterrent to ensure that companies knew there was an equal playing field, that all the companies were following the law and doing the right thing,” Frank said.
The Milwaukee Journal Sentinel, which first reported on the 3M deal, quoted Tom Dawson, who supervised the Justice Department environment unit from 2003 until he retired last year, saying he and others pushed for a fine between $100,000 and $1 million but Schimel’s chief of staff directed them to require only the supplemental environmental project.
The 3M Greystone Plant mines and crushes rock, and the Wausau Plant screens and colors it for use on roofing material.
Microscopic particles created in the process are subject to pollution control laws because they can cause serious health problems if inhaled. The smallest ones can become embedded deep in lung tissue and even enter the bloodstream, threatening respiratory problems, heart attacks or cancer.
DNR inspectors found the equipment designed to capture airborne particles failed repeatedly in 2014 and 2015.
The company didn’t report the breakdowns promptly and didn’t maintain records used to determine if it was maintaining equipment properly, DNR air management engineer Jessica Kramer and DNR enforcement specialist Ashley Gray said in a 2015 memorandum recommending referring the case to the Justice Department.
Wausau air quality
The company’s failure directly affected air quality, which was of particular concern with the Wausau Plant because it is in a residential neighborhood, Kramer and Gray said.
“The Department has had a number of formal contacts with 3M over the past 5 years in efforts to obtain voluntary compliance but 3M has not yet implemented measures that reliably and consistently ensure compliance with air pollution control laws,” they said.
The 3M spokeswoman, Haile- Selassie, said many of the equipment failures were only a few minutes in duration, particles generally stayed in chutes and conveyor equipment and weren’t safety concerns for employees or the public.
Before the settlement, DNR and Justice Department staff visited the plants and observed how equipment operates, Haile-Selassie said.
DNR spokesman Jim Dick said the department wouldn’t comment on the settlement.