Ruling Stirs Fears of Sewage Dumpings: Decision in Favor of Boston Store Puts MMSD in a Jam

By Don Behm, Milwaukee Journal Sentinel

Feb. 5–Unchecked overflows of billions of gallons of sewage into Milwaukee’s rivers and Lake Michigan for a year or longer are among the possible consequences of a local judge’s order to line a 1-mile section of deep tunnel beneath downtown with concrete, state and sewerage district officials say. The costs of lining a mile of the sewage and storm water storage cavern easily could surpass tens of millions of dollars, if it were permitted by state regulators, the officials said. Milwaukee County Circuit Judge Jean DiMotto last week ordered the Milwaukee Metropolitan Sewerage District to provide the lining to block the flow of groundwater now seeping into the North Shore leg of the tunnel beneath Boston Store downtown. Seepage of groundwater into the tunnel has lowered the level of the water table below downtown, exposing the Boston Store building’s old wood pilings to air and causing them to rot, the building’s owners have said in a long-running court battle with MMSD. The lining will curtail leaks, restore the water table and prevent future damage to the building’s foundation, according to lawyers for building owner Bostco LLC. Bostco, which is owned by Wisconsin Energy Corp., leases space to owners of Boston Store. MMSD consultants, however, have said there is no ongoing problem because the water table already has risen to pre-construction levels. “We are pleased with the court’s ruling,” said Rick White, a spokesman for Wisconsin Energy. “We believe the damage is continuing and this order would stop that,” White said. “Lining the tunnel would solve the problem.” A single unit, on or off If the entire 26.5-mile-long underground wastewater storage system were shut down for the work, sewage overflows might become as routine an occurrence as they were before the deep tunnel system began operating in late 1993, said Mike Martin, director of technical services for MMSD. That scenario would put the sewerage district in violation of state and federal environmental laws and its operating permit, he said. Before the tunnels opened, there were 60 or more sewage dumping incidents a year. Since 1994, the first full year of operation, there has been an average of about three overflows per year. If MMSD proposed lining a portion of the tunnel to comply with the judge’s order, the state Department of Natural Resources would require the district to complete a costly environmental impact study that would determine how many sewage overflows might occur during the shutdown and how they could be avoided, a DNR representative said. State environmental regulators likely could not by law permit the work to be done if it required closing the tunnels. It is not possible to take just one leg of the four-leg tunnel system out of service, said Chuck Burney, a DNR special assistant responsible for monitoring MMSD sewage overflows. “There are no controls to shut off one leg or the other. It was designed to operate as a single unit,” Burney said. “It is either in service or out of service.” For that reason, Burney doubts the sewerage district could comply with the lining order. Costs and constraints Complying with the judge’s order would harm taxpayers, according to state Rep. Pedro Colon of Milwaukee, chairman of the 11-member commission that oversees MMSD. He also complained that Judge DiMotto had not considered the environmental consequences of closing the deep tunnels to do the work. “This order creates a conflict with state environmental laws and regulations,” Colon said. DiMotto, in an interview, said the environmental consequences of her order were not considered. She was deciding only whether building owners were entitled to the proposed relief from future damage, DiMotto said. No decision has been made on whether to appeal the order, Colon said. Colon also questioned why the judge agreed to decide the tunnel lining request after verdicts were reached in a July 2006 jury trial. The magnitude of the harm was established at the trial, with jurors awarding the company $6 million for past and future damages, the judge said at a Jan. 30 hearing on the lining request. However, in September, trial Judge Jeffrey Kremers cited state law protecting local governments when he reduced the jury’s award by setting a cap of $100,000 in total damages. When that occurred, the jury’s remedy was no longer adequate, DiMotto said at the hearing in explaining her order. After Kremers’ September ruling, Bostco sought relief from future damages by asking for the tunnel lining. The company estimated the cost of future damages to its building at $9.1 million. In her verbal order, DiMotto gave MMSD until noon on Feb. 28 to identify some material other than concrete that could be used for a lining to prevent groundwater from leaking into the tunnel. Bostco lawyers had introduced a concrete lining as a remedy during the trial. A transcript of the hearing in front of DiMotto was released Friday. No written order has yet been prepared. MMSD’s Martin declined to comment on how the work could be done or estimate how much it would cost until there has been further analysis. “It would take many months if not a year or more,” Martin said of the lining project. Martin does know that loss of the deep tunnels would result in frequent sewage overflows, he said. Prior to the tunnels, each storm dumping just one-quarter inch of rain or more would cause an overflow, he said. The deep tunnels stored 6.8 billion gallons of a mix of sewage and storm water in 2006 that otherwise would have been dumped in the rivers and Lake Michigan. Last year, about 3.8 million gallons of wastewater was released in overflows from MMSD sewers. That compares with the 8 billion to 9 billion gallons routinely released in the early 1990s before the tunnels began operating, records show. About 55% of the original three-legged deep tunnel system is not lined. After the storage system began operating in late 1993, engineers estimated that about 4.7 million gallons of groundwater a day were leaking into the tunnels. The DNR required full concrete lining of about 45% of the tunnels after an analysis of groundwater infiltration and the stability, or extent of fracturing, of the bedrock, the DNR’s Burney said. What could happen If MMSD proposed lining a portion of the tunnel to comply with the judge’s order, the state Department of Natural Resources would require a costly study to find out how many sewage overflows might occur during the shutdown and how they could be avoided, a DNR representative said. State environmental regulators likely could not by law permit the work if it required closing the tunnels. Buy a link here

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