DNR investigating 3M in new Wisconsin pollution case in wake of 2016 settlement that allowed the firm to avoid fines

Lee Bergquist | Milwaukee Journal Sentinel

The Department of Natural Resources is investigating air pollution at a 3M Corp. factory in Wausau that bears similarities to problems found when Attorney General Brad Schimel's Justice Department agreed in 2016 to let the company make upgrades rather than pay a financial penalty.

RELATED: Wisconsin allows 3M to settle pollution case without paying fine

The 2016 case was the first in which Schimel’s office allowed a polluter to spend money to make improvements in operations — rather than pay a forfeiture. The Justice Department used an option known as a supplemental environmental project, or SEP, that required Minnesota-based 3M to spend $665,000 at two sites in Wausau.

That deal was questioned at the time by the former top administrator of the DNR and a Justice Department lawyer, now retired. Both said they thought the Justice Department had been too lenient with 3M when air pollution control equipment stopped working and went undetected by employees.

RELATED: Penalties in environmental cases handled by Wisconsin Justice Department increased in 2017

Financial penalties have averaged less under Schimel, a Republican, than his predecessor, J.B. Van Hollen, a fellow Republican, and the two previous attorneys general who were Democrats in his first three years in office.

Schimel, who faces Democratic candidate Josh Kaul this fall, has been criticized by environmental groups and others for that drop. The DNR also has come under fire for a decline in enforcement actions since 2011 and the election of Republican Gov. Scott Walker.

Both agencies have said their mission is to get polluters to comply with environmental laws more quickly and that efforts at education and compliance are helping drive down cases that escalate to the point where polluters face penalties.

3M’s plant in Wausau makes granules used on roof shingles and is the Fortune 500 company’s oldest manufacturing plant.

Residents concerned

The latest incident came to light when Tom Kilian, who lives in the neighborhood where the factory is located, used Wisconsin’s open records law to get documents from the DNR that provided details.

Kilian said residents near the plant have had long-standing concerns about emissions at the plant. He provided copies of news stories dating back to 1934 when citizens sought help from municipal officials to address dirt and dust problems.

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“I am concerned not only about these short-term incidents when this happens repeatedly, but also the long-term consequences as well,” he said.

The records Kilian received, which were reviewed by the Milwaukee Journal Sentinel, show a pollution control known as a baghouse was not operating for about 4½ hours on April 13. The company did not turn the system back on until a maintenance worker recognized the controls were not working.

The documents also show in January and March the DNR notified 3M that the company had not reported emissions for some industrial processes for two pollutants — methanol and volatile organic compounds — during 2016 and 2017.

DNR spokesman Jim Dick said the emissions reporting problems have been resolved.

The pollution issues were first reported on Aug. 10 by the Wausau Pilot and Review.

3M spokeswoman Fanna Haile-Selassie said the 2016 settlement and the most recent case involved different problems.

In the first, an electronic communications system was not operating adequately. It has since been fixed, she said. At the time, the DNR determined pollution controls at the plant failed to operate for periods over 26 days in 2014 and 2015; there were also intermittent problems over three days at a quarry.

The situation was different in the April incident: After production started up, a baghouse that captured dust and other particulates failed to automatically start again, Haile-Selassie said.

“This is not an issue that has ever happened before,” she said.

She said the company contacted the DNR the same day the problem was discovered and has installed a system that prevents the line from restarting without the baghouse also operating.

Emissions from the incident were minimal, she said. The DNR’s Dick said agency staff is still trying to determine the extent of the air pollution.

Tougher action sought

After reviewing records on the latest 3M case, former DNR Secretary George Meyer said that if the agency's review confirms the problems, forfeitures should be sought.

Meyer was DNR secretary from 1993 to 2001 and led the enforcement unit of the DNR for 10 years before he became secretary.

”You are talking about one of the major international corporations,” Meyer said. “They should be penalized — both for what they did this time, and what they should have been penalized for the last time, to really create an effective deterrent for this company and to send a signal to other companies that this cannot be allowed in the future.”

Tom Dawson, a former assistant attorney general, who handled the 2016 case, told the Journal Sentinel in 2017 that he and other lawyers in the agency had pushed for stiff financial penalties. They were rebuffed and directed to use a supplemental environmental project to settle the case.

“Unprecedented,” he said at the time.

Meyer was the first state DNR secretary hired by a governor. After a law change that allowed a governor, instead of the Natural Resources Board to appoint the DNR secretary, Meyer was appointed by Republican Gov. Tommy Thompson and later replaced by his successor, Scott McCallum, also a Republican.

His concern about the $665,000 that 3M was required to spend is that the money was essentially an investment in its business operations.

“The only way you can deter the company is by a financial penalty that hurts, that really gets their financial attention,” Meyer said. “That didn’t happen last time and the fallacy of that low penalty last time surely has been borne out.”

Haile-Selassie said the upgrades the company was required to make in the supplemental environmental project, or SEP, were major investments and completed ahead of schedule.

Justice Department spokesman Alec J. Hanna said the agency has not received a referral from the DNR. At this point, the agency does not know whether the latest incident is related to environmental upgrades 3M was required to make.

Hanna said: “SEPs can be an important tool in getting companies back in compliance and providing long-term environmental benefit.”

He said that if 3M did not follow through on its commitments, it would have had to pay forfeitures that were built into the 2016 stipulation.