Topo Map Proves To Be Key Evidence In Waste Cleanup Case

A year ago, Mark McBride '67 contacted us to borrow a copy of the 1958 edition of the Wauwatosa, Wisconsin, quadrangle topographic map. Since the request was easily met and Mark has always been a faithful supporter of Carleton, we were happy to oblige.

He later sent us a news clipping reporting that Wisconsin Electric Power Co. had been ordered to pay over $104 million in damages, including $100 million in punitive damages, by a jury that found the utility had intentionally polluted two sites in West Allis, Wis., with cyanide-tainted wood chips.

Mark explained the case:

"A few years ago, about 2000 truckloads of oxide box waste were found buried on a property in West Allis, west of Milwaukee. This is a residue from manufactured gas production, and consists of a mixture of wood chips and iron oxide, along with sulfur and cyanides that are removed when the gas passes through it. The city and the landowner were stuck with cleaning it up, at considerable expense, and with the loss of property value. Naturally, the city and the landowner wanted whoever was responsible to pay for the cleanup.

"Because of the quantity of waste, there were only two plausible sources, Wisconsin Electric (WEPCO) and Wisconsin Gas. The plaintiffs decided that WEPCO was at fault, and sued them. WEPCO didn't think they were responsible, so they in turn sued Wisconsin Gas and brought them into the case as a third party defendant.

"The topo map became important in establishing the timing of the dumping, and why it was probably done. In the NW quarter of Sec 31, T7N R21E, there is an elongate intermittent pond just south of a substation. The pond shows up on this 1958 quad, but not on later editions. We had aerial photographs, but the quad is in many ways more convincing as to the existence of the pond. It is based in part on field reconnaissance, and specifically identifies the pond as a water area rather than the 'dark area, probably water' that a photo analyst is likely to report.

"There is a power line running north-south adjacent to the east end of the pond. WEPCO built the substation and the power line in 1958-59, about the same time that they were also closing out their manufactured gas plant in Racine.

"The relation between the pond and the area where the oxide box waste was removed emerged as a major point in the trial, so the Milwaukee team asked me to prepare an overlay showing the waste area at the same scale as the quad. The waste area coincided almost exactly with the pond. An enlargement showing the coincidence of waste area and pond turned out to be one of our most effective exhibits, and appeared to make a big impression on the jury.

"So we think, in the spirit of the classic English murder mystery, that WEPCO had:

• Motive - They wanted to build the power line through the pond, and found it most convenient to fill it to make construction possible. They also had a lot of oxide box waste from their Racine plant that had to be disposed of.
• Means - They had lots of oxide box waste available from Racine, and construction equipment available at the substation and power line site.
• Opportunity - They were working right next door, and so had easy physical access to the waste site. "From the dates on the quad, we are sure that the pond existed in 1954-55, and probably existed in 1958. This constrains the filling to about the time that WEPCO was working on the substation and power line. The fact that the pond showed up only on the 1958 quad explains why I was so interested in getting hold of this particular edition."

Wisconsin Gas was cleared of any responsibility in the dumping.

Mark is currently with Capital Environmental, a Washington, DC consulting firm. Capital Environmental is an "affiliate firm" of Howrey Simon Arnold & White, a DC law firm that helped defend Wisconsin Gas.