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Great Lakes Article:

State suing MMSD over dumping of waste
Lautenschlager to pursue sewer upgrades, penalty
By Steve Schultze and Marie Rohde
Milwaukee Journal Sentinel
Posted October 25, 2005

After a year of failed negotiations aimed at averting litigation, state Attorney General Peg Lautenschlager said Tuesday that she would sue the Milwaukee Metropolitan Sewerage District for dumping about 1.5 billion gallons of untreated storm water and sanitary waste into local waterways in May 2004.

She said she would seek additional system improvements and penalties of up to $10,000 per day of violation.

MMSD officials, meanwhile, pledged to fight the suit. They said the district has already allocated $900 million for sewer projects and is in the midst of a $58 million long-range planning effort aimed at identifying still other improvements.

The suit will be filed Thursday in Milwaukee County Circuit Court, Lautenschlager said.

Last year's dumping tally included 1.09 billion gallons of untreated storm water and sanitary waste from Milwaukee's and Shorewood's combined sewers, and 477 million gallons of more concentrated waste from the separate sanitary sewers that serve parts of Milwaukee and Shorewood and all of the other 26 suburbs served by MMSD, Lautenschlager said.

Under the sewerage district's operating permit, dumping into streams and Lake Michigan from combined sewers is allowed up to six times a year, as long as it doesn't hurt water quality. Dumping from the separate sanitary sewers is banned, except under the most extreme weather conditions.

"MMSD and the folks representing it are out of touch with the people in Milwaukee and surrounding communities who wish to enjoy the lake and (who) would like to swim in a lake and not something that approximates a human toilet," Lautenschlager said during a news conference in Madison.

She said she would ask a Milwaukee County judge to force MMSD to stop future dumping by upgrading its system. That could include improved monitoring, overdue repairs and more strict enforcement of local ordinances, such as those that bar connecting downspouts to sanitary sewers.

West Allis Mayor Jeannette Bell, chairman of the sewerage commission, said at a news conference in Milwaukee that the lawsuit would likely lead to tax increases.

"Forcing expenditures beyond the cost-effective solutions required by the state and federal Clean Water Acts makes no sense," Bell said.

She said she didn't know what more Lautenschlager would have MMSD do.

MMSD last week released partial results of a study it commissioned to bolster its case that major spending on sewer improvements, such as expansion of the deep tunnel system, would be expensive and do little to improve water quality.

The report, based on a computer simulation, found that polluted storm-water runoff, not sewer overflow, was the biggest contributor to fecal bacteria in the Menomonee River watershed. Other research has made the same point, but experts caution that sewer overflow - dumping untreated waste into streams and Lake Michigan - is particularly hazardous because it carries human pathogens.

The state Department of Natural Resources asked Lautenschlager's office to prosecute the district and the communities it serves after the May 2004 storms. Initially, the district said it had dumped a record 4.1 billion gallons of combined sewer effluent during the month but later revised the estimate to 1.2 billion gallons. Tuesday, the district again revised the figures, to 1.09 billion gallons, saying refined modeling had come up with more accurate figures.

Making good on threat
A year ago, Lautenschlager issued a draft complaint based on the DNR request and threatened to sue MMSD and the 28 communities that it serves. But she said then that she would hold off filing the lawsuit to see whether a settlement could be reached.

She said Tuesday she would not include individual communities in the suit because talks with the City of Milwaukee and suburban communities have been "productive."

"We hope to reach an agreement with them soon," Lautenschlager said.

Sewage from the communities eventually reaches the MMSD system of major sewer interceptor lines, the deep tunnel system and two sewage treatment plants.

Lautenschlager accused MMSD officials of bad-faith bargaining, prompting her to file the suit. But MMSD lawyer Michael McCabe said state Justice Department lawyers had broken off negotiations.

"The attorney general demanded that we acknowledge that we violated our permit, that we acknowledge that the May storms were a violation of the law," McCabe said. "We simply said they weren't, and they broke off negotiations with us at that point."

Deputy Attorney General Daniel Bach said there have been many meetings and district officials have never acknowledged any problems with the sewerage system.

"They have a fancy PowerPoint (demonstration), all of which is geared toward a PR war or presentation to point out that the system works great," Bach said. "The system doesn't work, otherwise we wouldn't see billions of gallons of raw sewage dumped during these storms."

The lawsuit against MMSD alleges that the overflows violated terms of its permit, state and federal pollution laws and state nuisance laws.

Lautenschlager said MMSD had failed to live up to terms of a 2002 court-approved agreement by dumping sewage.

"They said no more (separate sewer overflows) would take place, and yet they have," she said.

The new case puts the sewerage district in court on two major pollution cases. For three years, MMSD has been fighting a separate federal lawsuit filed by two environmental groups, Alliance for the Great Lakes and Friends of Milwaukee's Rivers. That case cites MMSD's historic sewage dumping since its $3 billion deep tunnel system was finished in late 1993.

Lautenschlager dismissed MMSD's claims that the fixes she demanded were too costly, saying the district had not lived up to the 2002 agreement calling for improvements.

"To play the cost card now is irresponsible on the part of MMSD," she said.

Patrick Marley of the Journal Sentinel staff contributed to this report from Madison.

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