{Above-Monona Terrace, September 2022. Photo-Maria Powell
~~~
See the postscript to this piece
As described in Part III, Monona Terrace proponents argued that the center would not only not cause adverse effects on the lake, it would “serve as a model for controlling storm water drainage and non-point source pollution”—it would, in fact, improve water quality. A Common Council resolution approving the center on November 16, 1993 was contingent on several stormwater reduction requirements.
These ambitious claims, along with the city resolution requirements, were the basis on which the Common Council and Commission on the Environment gave the center their stamp of approval.
Also, following from the enactment of U.S. EPA/Clean Water Act stormwater laws, Wisconsin’s stormwater regulations (NR 216) were promulgated in November 1994, just before Monona Terrace construction began. Not only was it right on the lake (and over a landfill built in the lake), the center was among the first large construction projects in Madison subject to the new stormwater laws. Some at DNR wanted it to serve as a precedent. As one DNR employee explained at the time, it was an “opportunity to set the tone for the stormwater management program.”
What happened? Was Monona Terrace a “model for controlling storm water drainage and non-point source pollution”? Were the stormwater control strategies implemented there effective? Did anyone monitor?
What kind of stormwater management precedent did it set?
Head of Madison’s stormwater program says there were no stormwater laws in 1995. Hmmm…
Wondering about whether Monona Terrace was in face a model of stormwater pollution control, on September 21, 2022 I asked Greg Fries, the Deputy City Engineer and head of the city’s stormwater program, who worked for city engineering in 1995 when the center was built, if I could review the stormwater files for Monona Terrace.
His first response was, “Monona Terrace was constructed in 1995 well before any SWM requirements were in place at the local level.” (SWM means stormwater management). “I have not seen Monona Terrace files in decades – not even sure they exist anymore they may have been purged long ago as we are only required to keep stuff 7 years and as I said there were no City standards in place for this at the time from a SW perspective.”
Somewhat shocked, I asked: “So are you saying you have no stormwater files for Monona Terrace now? It is 2022. There are city and state standards in place. Also, as you certainly know, NR 216 was promulgated in 1994.”
Fries said “To my recollection the current NR-216 that refers to compliance with SWMP did not exist in 1995…MTCC has no city SWM standards to meet and I looked at our digital records and there is nothing stormwater related. Pretty sure there is nothing in hard copy files either.”
I was a bit incredulous. But Fries was working at home when he wrote this, and when he was back in the office, he did in fact find some Monona Terrace records. So I made an appointment to review them.
The files included many communications and meeting minutes from 1994-1995 between city engineering, the DNR, the DOA about how to meet the stormwater requirements in the 1993 city resolution and state stormwater laws, NR 216, promulgated in 1994.
Fries, a young new city engineer at the time, was intimately involved in these meetings. In fact, he co-wrote and signed the city’s November 30, 1994 “Monona Terrace Convention Center Storm Water Management Plan,” required by NR 216 and also explicitly written to meet the 1993 city resolution requirements.
Fries forgot about the stormwater laws. Oops! LOL
Oddly, the Monona Terrace stormwater management plan was not in city stormwater files Fries put out for me to review that day. I found it in a separate file review at DNR. On October 13, I sent it to Fries. His response? “LOL – thanks I have no recollection of writing this at all (though I clearly did).”
Did Fries really forget this? To his defense, it was almost 30 years ago. I’ve forgotten much of what happened three decades ago too.
But really? Given his intimate involvement with this project, the importance of the stormwater reduction requirements to the city resolution, and the state stormwater laws, this is a bit hard to believe.
Maybe I should give Fries the benefit of the doubt. Maybe he really did forget that he wrote this plan, and forgot that there were state stormwater laws (albeit, new) as well as a city ordinance on construction erosion and runoff control at that time.
Stormwater runoff from Monona Terrace is obviously a non-issue for the city (and DNR)
Whether he forgot about these laws or not, Fries’ responses to my questions said a lot about the city’s concern about stormwater runoff from the center now–in 2022. Fries clearly hadn’t thought about Monona Terrace for decades, even though it is a half a block from his office and directly next to the lake. It was obviously a non-issue to him from a stormwater management perspective.
After reviewing the records, I asked him whether he thought the stormwater management strategies they implemented when the center was built had been effective, and whether there had been any monitoring since the center was completed. He said the last time he had been down there to check on the stormwater control devices they installed was around 2000 or so (over 20 years ago).
I asked why. Fries explained that the groundwater at Law Park is extremely shallow—only a few feet down. It is essentially at the same level as the lake. The sediment that built up in the devices that were installed there–which were basically immersed in the shallow groundwater–needed to be cleaned out periodically in order to be effective. Fries put on waders and attempted cleaning them out, but lake water continuously gushed into them, making it impossible. So the city abandoned them.
Knowing how shallow the groundwater is at Law Park, the DNR warned the city of this problem in 1994-95 when it proposed using these devices in its stormwater management plan. See full story below.
After Fries’ failed attempts to clean out the stormwater devices, the city didn’t do any further stormwater monitoring there. The state Department of Administration is responsible for screening devices inside the center’s parking ramps, but Fries didn’t seem to know whether or not the DOA is doing so.
Clearly it isn’t important enough for the city to check with the DOA to find out.
Not to worry! Tons of concrete and pavement are no worse for stormwater runoff than grass and trees…
Fries assured me that he didn’t think stormwater runoff at Monona Terrace is any worse than what was there before—grass and trees. Really? Impervious surfaces (concrete and pavement) are no worse for runoff than pervious ones (grass and trees)? Doesn’t this defy stormwater runoff 101? So was he suggesting that the stormwater management plans the city proposed in 1995 weren’t necessary at all?
Further, Fries had no recollection that center proponents, and the Common Council resolution, promised significant reductions in stormwater runoff (phosphorus, metals, sediments) to the lake as a result of building the center.
In summary, the key premise upon which Monona Terrace was approved–that the center would reduce stormwater runoff, would not have any adverse effects on Lake Monona, and in fact would improve water quality—was quietly abandoned after the center was built.
Did anyone ever inform city leaders and alders who had approved the center of this? Who knows.
There is no evidence that the city or the state monitored any remaining stormwater control devices and/or stormwater runoff discharging from Monona Terrace after the center was finished in 1997. There are no city and DNR stormwater files after 1999.
Below is the full story. I have all the documents and articles supporting the points in this story, but did not take the time to link to them since few (if any) will likely read this long tedious blow-by-blow. If anyone is interested in those, let me know: mariapowell@mejo.us
Also, see the postscript to this piece
~~~
Common Council resolution required significant reductions in stormwater runoff at Monona Terrace
One of the obvious concerns about locating a large concrete structure with hundreds of parking slots right on Lake Monona—with sediments already known to be heavily contaminated with metals and petroleum compounds (per the FEIS)–was that it would exacerbate stormwater runoff into the lake.
The November 1993 Common Council’s resolution that there would be “no significant adverse environmental impact” on the lake from Monona Terrace was premised on 13 mitigation measures that were to be met in the future.
One of the stormwater mitigation measures was that [t]he plans and specifications for the Convention Center Project and the Project’s Maintenance Plan shall be developed with the following stormwater management goals for the completed project: a) reduce the sediment and metals in the stormwater runoff to 20% of the estimated present load; b) Reduce oil and petroleum in the stormwater runoff to 20% of the estimated present load; c) Reduce phosphorus in the stormwater runoff to 50% of estimated present load; d) Due to the unique nature of these goals, staff shall investigate the eligibility of grants for installation and monitoring of these facilities.
The resolution listed 12 other mitigation measures that “shall be undertaken as part of the design, construction or maintenance and operations of the Monona Terrace Project,” including: conforming to Chapter 37, Madison General Ordinances regarding erosion and runoff control, placing absorptive booms and silt curtains to “contain petroleum product released during construction,” weekly inspections and weed and debris removal from the center wall, and more.
The resolution, sponsored by Mayor Paul Soglin and Alders Bauman, Bigelow, and MacCubbin, also specified that the project must receive the required DNR exemption to build over a landfill and the U.S. Army Corps of Engineers (USACE) permit before going forward, as well as the water quality certification. As described in Part III, despite organized legal resistance by Shoreline Park Preservation, Inc., the DNR issued the exemption (conditional approval) June 1994, a “water quality certification” in July, and the USACE permit was issued in October, clearing the project to start.
There was one last hurdle, however– the project had to meet existing and new federal, state, and local stormwater laws. The Yahara-Monona watershed, including Lakes Monona, Wingra, and Waubesa, had been deemed a “priority watershed” by DNR in 1988. In 1992 the Dane County Regional Planning Commission completed the Yahara-Monona Priority Watershed Plan, in cooperation with the DNR, DATCP, the Dane County Lakes and Watershed Commission, the City of Madison, other municipalities in the watershed, and other governmental entities.
The stated purpose of the project, which would cost over $21 million over eight years, was “to reduce the amount of pollutants originating from nonpoint sources that reach surface water and groundwater within the Yahara-Monona Priority Watershed Project area.” Starkweather Creek and the Isthmus area, which of course included Law Park, were named as significant pollution sources to Lake Monona.[1]
One goal in the plan for Lake Monona was to reduce phosphorus and sediment runoff by 30%. Reducing heavy metal discharges was also an objective. Under “targets for community action,” the plan listed “vigorous enforcement of construction site erosion and runoff control ordinances,” “construction of wet detection basins and other structural water quality management practices,” and other practices to reduce stormwater runoff.
New stormwater laws; DNR conflicted about how to apply
The 1993 Final EIS for Monona Terrace, guided by a city scoping committee, was even more optimistic than the Common Council resolution that stormwater runoff problems would be controlled by adherence to local, state and federal stormwater laws—for the center and the whole city. “Independent of the Monona Terrace project,” it said, “the City of Madison will be required to implement a nonpoint source management plan under the Federal EPA Stormwater Management Program. This program applies to the entire city, not just the Monona Terrace site.” With these “nonpoint source control practices” at Monona Terrace, it predicted, “post-construction nonpoint source pollution can be reduced by 80 to 90 percent for sediment and metals and 40 – 60 percent for phosphorus… Oil and petroleum removal efficiencies can be up to 80-90 percent with a properly designed “best management practice.” Strict adherence to Madison’s erosion control ordinance…could reduce the sediment runoff by as much as 75 percent.”
The Common Council resolution focused on reducing pollutants in stormwater runoff caused by, or exacerbated by, the center itself—both during construction and afterwards. At that time, existing laws–the Federal Clean Water Act and Chapter 147 of Wisconsin State Statutes–required Wisconsin Pollutant Discharge Elimination System (WPDES) permits that restrict the quantity and quality of waste discharged from point sources of pollution into waters of the state. On November 11, 1994, Wisconsin enacted new stormwater runoff regulations under Chapter NR 216 which defined construction projects of over 5 acres as point sources requiring coverage under a WPDES permit. Monona Terrace construction would disrupt 11 acres, so it required a permit.
Documents and memos in DNR files indicate that agency staff were unsure and conflicted on how to apply these new stormwater laws to Monona Terrace—and many political tensions and pressures likely occurred behind closed doors, as the city and state were very anxious to start building as soon as possible and so wanted DNR to issue permits quickly.
A December 7, 1994 letter from Bruce Moore, water resource engineer for DNR’s southern district, explained to Larry Nelson, City Engineer for Madison: “The stormwater rule, Chapter NR 216, Wisconsin Administrative Code, was effective 11/1/94. The Monona Terrace project is among the first large-scale construction projects that are subject to NR216. WDNR has only recently defined its role in assuring that the stormwater management plans for these projects adequately address water quality concerns.”
Where will construction “dewatering” discharges and excavated soils go?
A big challenge in managing stormwater runoff at the site during construction would be managing water in holes when the 1,725 piles were driven through the landfill into the lake bed. The holes would be filled with sand and then concrete poured into them; if the holes contained water, he wrote, “the contractor will pour a stiffer mix of concrete into the hole and displace the water. If this method of construction is successful, the contractor should not need to discharge potentially contaminated groundwater from the site.”
The memo discussed options. Findorff could treat the water and sent it to Lake Monona, pump it to MMSD, or “pump it to a seepage area on site and allow it to seep into the same aquifer from which at least a portion of it originated.” A new sanitary sewer and water main would be built under John Nolen Drive to serve the center, and Findorff discussed building it right away to take away construction wastewater. New fill would be placed under the piles and Findorff proposed building a “multimedia berm” surround the fill are to prevent it from getting into Lake Monona. According to a November 29 memo, Joe Demorett with the City of Madison was tasked with classifying materials excavated during construction as “clean” or “contaminated;” contaminated material would be hauled to Olin landfill (this plan changed over time—see below).[2]
Contaminants “are innocuous in nature and do not represent a threat to the environment”?
Sometime in November (no date specified) DNR staff took a stab at a draft “Monona Terrace Project Discharge Permit Information Sheet. It noted that contaminants of concern had been found at the site, but they “are innocuous in nature and do not represent a threat to the environment,” so a general permit could be issued. Though apparently “innocuous,” the info sheet noted, “concentrations of benzene, and polynuclear aromatic hydrocarbons (PAH)” had been discovered at the site, and so the permit would place specific limits on benzene (50 ppb), PAHs (0.1 ppb), and BETX (benzene, ethylbenzene, toluene, and xylene)(750 ppb). It also mentioned limits for “total suspended solids” (TSS), but didn’t specify what they were.[3]
According to this draft, DNR would inspect the project regularly during its initial phases. The permittee was required to monitor discharges and report to DNR monthly; violations of the permit were to be reported to DNR within 24 hours of discovery. If permit limits were exceeded, the “discharge will need to be shut down until the problem is fixed” (and water sent to MMSD if necessary). If violations continued, DNR would follow up using “standard stepped enforcement procedures” including referring the permittee to the Department of Justice for prosecution. Civil forfeitures for failing to comply with conditions of the permit range from $10 to $10,000 for each day of violation.”
The details in this “information sheet” changed considerably in the next couple months.
City of Madison’s Monona Terrace Storm Water Management Plan
The City of Madison Engineering Department submitted its “Monona Terrace Convention Center Storm Water Management Plan” on November 30, 1994. The plan explicitly aimed to fulfill the specific stormwater requirements outlined in the November 1993 Common Council Resolution. It began: On November 16, 1993, the Common Council of the City of Madison adopted a Substitute Resolution 50.515 “declaring that the construction of the Monona Terrace Community and Convention center will have no significant adverse environmental impact on Lake Monona.”
How would they assure these ambitious goals were met? City stormwater engineers considered two BMPs—the construction of two wet detention ponds east and west of the convention center, and mechanical street sweeping to clean the parking areas and John Nolen Drive. Their computer modeling estimated that these two BMPs “would retain the first 0. 5inches of storm water, a reduction of nearly 73% of the amount of sediment…that would drain into Lake Monona without the management practices.”[4]
DNR: “Wet ponds” on a landfill are not a good idea
After the city proposing these strategies, however, DNR informed the engineers that “the excavation of wet ponds was not compatible with the goal of minimizing the impact of the construction on the existing filled area at Law Park, and reducing the percolation of surface water through the fill and that the Department could not support the concept.” In other words, DNR did not think creating “wet ponds” over a landfill was a good idea because they would help contaminants percolate into the groundwater. Without any wet ponds, the BMPs would be even less able to significantly reduce sediment runoff from the project.
So in place of the wet ponds, the city stormwater management plan proposed trying “new storm water management practices to reduce the flow of sediments to the receiving waters” that were “currently being developed.” The city was investigating products called “Gully Washers” and “Vortechnics Grease and Grit Traps” that, manufacturers claimed, would significantly reduce sediments and petroleum products discharging from storm drains into the lakes. The plan recognized that these products were experimental. “It is emphasized that these devices are experimental with minimal documentation on their sediment removal efficiency,” it stated. “However, storm water management practices that are applicable to developed urban areas are very limited and experimentation is required if we are to advance in this area.”
To meet the WPDES long-term maintenance requirements, the city’s plan included the following: 1) John Nolen Drive, parking ramps and surface parking areas will be mechanically swept once per week during spring, summer and fall; 2) Storm water inlets within the parking structure will be fitted with inserts to retain sediment and petroleum products and will be maintained monthly to remove debris. The inserts, called “Gully Washers,” trap sediment, oil and other debris in the storm sewer inlets within the parking structure using filtering and absorbent materials; 3) Storm water sediment traps will be installed on two storm sewer mains within the site, and the traps will be maintained monthly during the spring, summer and fall to remove debris. The storm sewer drainage system to the east and west of the site will be fitted with “Vortechnics Grease and Grit Traps, which remove oil, grease and suspended solids from storm water using swirl concentrator and flow regulating devices.
DNR’s response to the city’s plan
On Dec. 7 1994, Bruce Moore, DNR water resources engineer for the DNR’s Southern District wrote to Larry Nelson responding to the city’s November 30 plan, asking for revisions. Several other DNR people were copied, as well as Findorff. It was clear that the agency was concerned about stormwater runoff control during center construction and afterwards.
“Before a stormwater discharge permit can be issued, the stormwater management plan must be acceptable to the Department,” he wrote. He listed “two general water quality goals for stormwater released from the site to Lake Monona following completion of the proposed project.” (highlights added): 80% removal of sediments, petroleum, and metals in the stormwater released to Lake Monona; and 2) 50% removal of phosphorus. These goals, he said “must be translated to parameter-specific water quality objectives.” Moore noted that some of the proposed BMPs in the city’s plan couldn’t achieve these goals, and suggested that the city evaluate alternative treatment approaches. The city also hadn’t considered stormwater from rooftops, which is a required element to the stormwater management plan per NR 216.
Because the proposed BMPs were experimental, Moore stressed that routine monitoring “will be necessary to determine whether the installed BMPs are adequate to meet the water quality objectives” and said the city should “expand the 2-year monitoring scheme to include determining the actual removal efficiencies of the installed BMPs.” Relatedly, he said the plan should include “provisions for installed BMPs whose performance does not meet water quality objectives.” He also recommended a “fallback approach”—steps that would be taken if the initial two years of monitoring showed that the BMPs “provide insufficient pollutant removal.” (No monitoring was ever done).
City’s stormwater reduction goals are “unrealistic”
Just two days after Moore’s letter to Nelson, on December 9, 1994, city staff from engineering, planning, and traffic engineering met with several Findorff employees and consultants to discuss the stormwater management issues.
Meeting minutes note that Larry Nelson said “the 80% reduction of current sediment and metals goal may have been unrealistic” and “NR 216 does not have the authority or responsibility to enforce the City’s goals.” But, he added, “the current stormwater plan contains the current technology available.” Fries said the 80% reduction goal couldn’t be verified, as DNR asked on Dec. 7, “due to the lack of testing information available on the system components.” However, even though these were city and not DNR goals, city engineering was “continuing to research the possibility of adding other measures which may reduce sediment levels.”[5],[6]
City’s stormwater reduction goals “will not be complied with”
On December 11, Larry Nelson wrote a hand-written comment on Bruce Moore’s letter about the 80% reduction goals (from the city’s resolution). “These comments are out of compliance w/NR216 and will not be complied w/. Subsequent communications w/DNR.”
DNR employees John Pfender, Julie Riley, and Bruce Moore met on December 13 with City of Madison engineers Mike Dailey, Greg Fries and Larry Nelson and several DOA engineers to discuss the stormwater management plan for the center. According to notes from the meeting, included in a December 20 memo, Mike Dailey, Madison’s Principal Engineer, “expressed concern about the DNR’s approval process for the storm water management plan.”
DNR assured city officials that the agency planned to issue the general construction permit on December 16, but had received a petition from Fleischli’s Shoreline Park Preservation group asking that the agency issue an individual permit, and the agency was “in the process of denying” their request. She assured Dailey that “it was the intent of the Department” to issue the general permit. (On December 22, the DNR denied Fleischli’s request—see below).
DNR has weak stormwater authorities, and city’s stormwater reduction goals “not regulatory in nature”
Discussions at this meeting elucidated the DNR’s very weak authorities to do anything about how the city and DOA managed stormwater during center construction and afterwards.
After Riley explained that NR 216 did not require DNR to approve the city’s stormwater management plan (even though it requires that such a plan be submitted), Moore noted that his December 7 letter about the city’s stormwater management plan “could be considered as suggestions rather than requirements.” The Department, Riley proposed, would continue to review the plan and any proposed changes and prepare a “letter of concurrence” with it once finalized (it’s not clear whether this happened; there was no letter in the files). But the agency, she said, didn’t have authority to set effluent limitations or water quality standards for storm water discharges and “the department does not intend to establish these types of requirements now in storm water permits.”
Further, notes said, “the City’s storm water management goals for the project set by the Common Council…should be considered the City’s goals and are not regulatory in nature.” City officials “acknowledged that the goals for the project, particularly the metals reduction was unrealistic.” Nelson shared that he had met with the Public Works Commission “new goals were established…the City would use the best available practices for the site.”
Wet ponds and stormwater control devices on landfills under water pose some challenges
Fries explained at the meeting that their stormwater management plan had included “ponds” in the parking lot access loops, but after DNR’s Bureau of Solid and Hazardous Waste “expressed concern about building ponds on top of landfills and the water table on the site posed maintenance problems,”“[t]his idea was dropped.”
So what did the city propose instead? In the parking ramps, about 40 “inlet washers” would be installed. Two “swirl concentrators” with “oil socks”—totally experimental technologies at that point–would “serve as a water quality treatment device for the center” and also “as a retrofit for the Pinckney Street and Main Street areas.”[7]
A city engineer cautioned that “trash removal mechanisms will be needed for the swirl concentrators,” so they would clean and monitor them monthly. A demonstration project at another site was recommended to “test pollutant removal rates” so that “pollutant removal data could be generated prior to construction of the management practices” at Monona Terrace.
DNR anticipated another problem with these swirl concentrators—that they “may be submerged in groundwater,” given how shallow the water table was at Law Park. Notes said “DNR
Staff indicated this could be a potential problem and that the manufacturer should be contacted to determine the potential affect (sic) on performance.”
The plan also incuded stormwater runoff from the parking ramps at the center. Mike Dailey explained that typically parking garages are “washed down” several times a year and that at Monona Terrace, “this washwater would be going into the swirl concentrators.” He proposed that the “maintenance plan could be accomodated to match the design of the vortext swirl concentrator and gully washers to maximize pollutant removals.” Stormwater runoff from John Nolen Drive was also part of the stormwater management plan; the city proposed weekly street sweeping “with a large mechanical sweeper” on John Nolen as well as the parking ramps. This sweeping, according to Larry Nelson, would occur “when the ramps and road are empty.”
Finally, Bruce Moore raised concerns about roof drainage, the plan had not mentioned “what types of materials would be used and potential pollutants.” City engineers assured that the roof materials would be “concrete pavers, landscaping and planter boxes” and would include no metals. The area would drain to the swirl concentrators.
Some at DNR thought the agency should “assert more control” but were quashed
Some at DNR were clearly concerned that the city’s stormwater management plan for the center was inadequate and the agency should require more. The day after the above meeting (December 14), DNR’s Bob Weber penned a memo to colleague Jack Saltes about the Monona Terrace stormwater management plan. He wrote: “Bruce and I would like to discuss the approval of the post construction stormwater management plan. It is my understanding that the department can assume only an advisory role in commenting on the post construction plan. It seems to me we must assert more control over the entity receiving the permit. The Department must be more proactive in dealing with these entities. If the permittee chooses to ignore our input or recommendations, we will need to invest staff time in the future to identify and correct problems. This is not an effective use of staff time let alone a positive approach of protecting the environment. We cannot wait until problems to develop before we react.”
Weber also highlighted that the way they handled Monona Terrace would set an important precedent for their storm water management program. “We are missing an opportunity to set the tone for the stormwater management program,” Weber wrote, “and let the public know what the expectations of the Department are. I do not know if the NR 216 allows the Department to require practices in this type of a permit, but I feel very strongly that we should take advantage of every opportunity available to resolve or prevent problems that may occur in the future. I realize we cannot and do not want to review every post management stormwater permit, but for the select ones we do, the Department should have the ability to require the preventive measures necessary to protect the environment.”
Mr. Saltes forwarded this memo to several other higher level DNR personnel, including the stormwater attorney. Presumably after receiving their responses (which weren’t in the file), he responded to Weber the next day. “Thanks for your comments about the project. I appreciate your thoughts about being proactive and protecting the environment. It is everyone’s mutual goal and interest.” He went on “It is my understanding from Dan Graff, the Stormwater Attorney, that we do not have the authority to predicate the issuance of the stormwater permit upon the approval of a stormwater management plan. But it also my understanding from Roger Bannerman and Julia Riley that what the City is proposing for the Terrace is way ahead of what they have for other parking lots, ramps, etc in the City. We also do not have any design standards in place nor water quality standards or effluent limits procedures in place for stormwater discharges. But we can, in partnership with the City, assist them and provide guidance and advise on what they propose for stormwater control and management, which we are doing so that water quality goals are met. We just do not have approval authority.” He suggested they meet with Graff to discuss further. “If I am wrong, I need to be corrected. I believe from protecting the environment we are all heading in the right direction. Let’s sit down and talk about this further.”
But there was no further discussion. The next day, December 15, Mary Jo Kopecky, Director of the DNR Bureau of Wastewater Management, notified George Austin, City of Madison Director of Planning and Development, that it would receive a stormwater permit under Chapter 147, Wis. Stats., Chapter NR 216, Wis. Adm. Code, and in accordance with Wisconsin Pollution Discharge Elimination System (WPDES) General Permit No. WI–0067831-1) issued on November 29 1994. The city was advised to “please read it carefully and be sure you understand its contents” and also to “be sure to take the following actions, which included implementing and maintaining the erosion control and storm water management plan throughout construction. The controls were to be routinely inspected at least every 7 days and within 24 hours after a precipitation event of 0.5 inches or more. “Weekly written reports of all inspections must be maintained.”
Bruce Moore, who had written to Larry Nelson on December 7, outlining items to address in the city’s stormwater management plan, wrote a much shorter letter to him on December 15. He reminded Nelson again that “The Monona Terrace project is among the first large-scale construction projects that are subject to NR216. WDNR has only recently defined its role in assuring that the stormwater management plans for these projects adequately address water quality concerns.” He concluded “It is the Department’s view that the comments in my 12/7/94 letter to you concerning the stormwater management plan have been adequately addressed and that the requirements under NR 216.47 have been met.”
After the WPDEs permit was issued, DNR put together a very different “Monona Terrace Construction Site Stormwater Discharge Permit Information Sheet”
The final “Monona Terrace Construction Site Stormwater Discharge Permit Information Sheet” (specific date unknown) permit requirements differed considerably from the draft (described earlier).[8] According to this revised document, the general permit for Monona Terrace would have no discharge limits. The document explained that, as stated in the November 29 WPDES permit, “neither EPA nor DNR have established specific pollutant discharge limits for storm water discharges from construction sites.” Instead, “the assumption is that if appropriate best management practices are properly put into place and maintained through implementation of the erosion control plan, then adequate protection exists for waters of the state.” The DNR considered compliance with the general permit and use of BMPs to “constitute compliance with pollutant discharge limits associated with construction activity.”
The BMPs required in the general permit included silt fencing out in the lake to control construction debris and silt flow out into the lake, and gravel roads on the land to prevent tracking of soil from the site. Excavated soil would not be stockpiled on site and would be removed for “proper disposal.” Storm water inlets would “be protected to prevent soil-laden runoff from flowing into Lake Monona and other housekeeping measures will be used to control erosion at the site.” The general permit also required a “storm water management plan” that required “a description of the management practices that will be used to control storm water flows and pollutants, and provisions must be made for long-term maintenance.”
Is excavating on a landfill really legal? Citizens resist
While negotiations between the DNR, city, and Findorff were going on, community opponents of the center continued to question the project legally, saying it was violating permits issued in recent months. On December 5, 1994, Attorney Anne Fleischli, on behalf of the group Shoreline Park Preservation, Inc, petitioned the DNR saying it is “aggrieved and its substantial interests…are injured if the DNR does not require an individual storm water discharge permit by the city of Madison and/or the Wisconsin Department of Administration for the construction of the Monona Terrace and parking ramp because the provisions of s. NR 216.53(3) apply.” The stormwater discharge, the petition noted, would affect the groups place of business, the quality of water that enters the lake, and city aquifer and the city well from which the group obtains its drinking water.”
On December 16, Fleischli wrote DuWayne Gebken at DNR, asking the agency to suspend the permits issued due to several violations. Firstly, she wrote, [i]t is my understanding that the applicants imminently intend to remove 1.5 feet of soil from Law Park in an area the size of two football fields, roughly 200 feet by 300 feet.” This violates “Finding of Fact” #4 listed in the conditional approval issued by DNR on June 28, which she attached (see Part III): “Any excavation conducted within the former landfill will be limited to pile caps, utility trenches and loading docks.” Secondly, she wrote, [i]t is my understanding that the applicants then intend to dump the contaminated soil, removed in violation of its permit, in Quann Park” a conservation and dog walking park on the south side of Madison. She argued that this violated condition #1 of the permit, which said “[a]ny waste excavated from the areas where the pile caps, utility trenches and loading docks are to be constructed shall be disposed of at a licensed sanitary landfill. Clean fill shall be used to back-fill in those areas.”
Fleischli also raised questions about “hydraulic elevators” that would be included in the center—“huge water-filled tubes in the ground that are part of the hydraulic system designed to move the elevators up and down in the building.” Six of these, she argued, violated the terms of the permit because they would require deep excavations. “More than that, they clearly will provide an avenue for contaminants to mix throughout the layers of fill and till since they will not be filled with concrete like the pilings and cannot be sealed and then operate in a hydraulic fashion.” She attached a “schematic” to illustrate her points.
Because the elevators had to have water in them to operate hydraulically, she wrote, they are “the equivalent of huge syringes, pressuring the contaminated landfill’s groundwater whenever the elevators are used” and two of the deepest elevators wells were close to city well #17. Consequently, she called them “monstrous delivery systems of contaminants.”
She asked Mr. Gebken to suspend the permit until the elevator design was examined, and asked the DNR Secretary “to suspend the permit on his own initiative if it is clear that the applicants did not disclose these elevators during the permitting process.” Her letter concluded: “I anticipate that, pursuant to this request, the DNR will not let the applicants violate the terms of their permit with the wholesale excavation of Law Park, the dumping of contaminated soil and the elevator construction.”
DNR questions the use of excavated soil at Olin Landfill
Fleischli’s questions about hauling excavated soil to Quann park (Olin Landfill) were well-founded. In fact, on December 15, the day before her letter to DNR was dated, Dr. Lakshmi Sridharan in Chief of the DNR’s Solid Waste Management Section, wrote to Larry Nelson about how they would handle excavated soils during the project. Her first concern was about handling “large volumes of soil” in the winter. “Placing disturbed soil over a large area (380 by 300 feet) on frozen ground conditions has the potential to result in problems associated with significant erosion and sediment movement off-site.” Her second concern was that the city had identified the soils they would haul to Olin for “surface drainage improvements” there as “clean granular fill…from Law Park.” She said the DNR was “aware that Law Park may contain waste materials and there was some question on the part of my staff regarding which materials were proposed to be used at the Olin Avenue Landfill. Only clean cover soils should be accepted at the Olin Avenue Landfill…”
Fleischli requests revoking the permit again
After discovering (in an open records request) the December 15 letter from Sridrahan to Larry Nelson about Quann Park being on top of Olin Landfill, on December 19 Attorney Fleischli wrote another request to DNR to terminate the permit, this time to Mary Jo Kopecky, the Director of the Bureau of Wastewater Management, who signed the stormwater permit on Dec. 15. She pointed to the “erosion control plan requirements” in the permit, which said “No solid material, including building materials, may be discharged in violation of chs. 30 and 31, Wis. States., or U.S. Army Corps of Engineers Section 404 permit requirements.” The excavation of two football fields worth of contaminated soils to Olin Landfill, she argued, violated this provision, and also provisions in the Army Cops 404 permit under which the applicants were operating. In particular, the USACE permit limited excavations only to loading docks, utility trenches and pile caps, and required that any waste excavated for these purposes by disposed of at a licensed sanitary landfill. “My understanding is that the wholesale stripping of the Law Park landfill is not excavation for those listed purposes and Quann Park is not a licensed sanitary landfill.”
She also pointed to a provision in the DNR’s stormwater permit: “S. Toxic Pollutants. This permit does not authorize the discharge in storm water to the Great Lake Waters of any of the substances identified in Ch NR 102, Wis. Adm Code, or their tributaries, when such discharges result from the contamination of storm water by contact with raw materials, products, by-products, or wastes used or stored by the permittee. Such a discharge must be regulated by an individually drafted permit…(emphasis added).”
Her letter included data from the FEIS as well as subsequent testing done in 1994 showing contaminants found at Law Park. “It should be readily apparent,” she wrote, “that the storm water in this permit will contain toxic pollutants and requires an individual permit.” She also pointed to “Part IV: Effluent limitations, monitoring and records requirements” which stated that “[t]he DNR may deny coverage under a general WPDES permit and require submittal of an application for an individual WPDES storm water discharge permit based on a review of the completed NOI or other information.” Further, she explained to Kopecky that the park is only one foot above lake level, so excavation of 1.5 feet would be below this level. “Given the unique location of the building site on a lake bottom landfill filled with certified hazardous contaminants that include human health concern contaminants with levels above the E.S. and PAL levels and the presence of PAHs and VOCs in both the lake and the city aquifer itself from the landfill, the undersigned asserts that more than a general permit is warranted.”
DNR: Stormwater discharge not a “significant source of pollution”
DNR memos and notes indicate that the responsible agency personnel had no intention of seriously considering any of the concerns raised in Fleischli’s letters—that at that point, it was a done deal and there was no going back. They knew that the city, state and their contractors were itching to move forward as fast as possible, and had support from high levels—the Governor’s office.
On December 16, Bruce Moore penned a memo to his colleagues saying that “Findorff is awaiting an “order to proceed” from the Governor’s Office, which they may receive yet today, which is the last clearance needed to resume work at the site.”
Kopecky wrote a letter to Fleischli on December 22 flatly denying her request for an individual permit. “Your petition requests that the Department consider individual permit coverage …the Department does not believe that coverage under and individual construction site storm water discharge permit is warranted.” She explained that S. NR 216.53(3)(a) “permits the Department to require individual permits when it determines that storm water discharge is ‘a significant source of pollution.’” But, she argued, “you do not identify the kinds or quantities of pollutants that you allege are likely to enter the Lake as a result of Convention Center construction, nor how they will move to the aquifer and public water supplies in a manner that will cause significant pollution.”
Further, she explained, the City “submitted a Storm Water Management Plan (which sets out measures planned both during and after construction) to meet NR 216 requirements and in the meeting on December 13, the Department “obtained sufficient information” to conclude that the storm water management plan meets the requirements of NR 216…” The agency “intends to carry out ongoing field reviews…and assure that these provisions are followed.” The City also informed the DNR that “the stormwater control devices will be installed in the on-site storm sewer inlets and parking structure to capture pollutants in storm water running off the site after construction is finished.” The DNR “believes that the City’s plans and proposed measures, and our plans for field review, will significantly reduce the level of pollutants in storm water runoff from the Convention Center during and after construction.”[9] (emphasis added)
By this point, as described above, DNR was aware that many of the stormwater mitigation strategies the city had proposed for the site wouldn’t work, the Common Council’s ambitious goals for stormwater pollutant reduction could not be met.
Building a giant convention center will not require excavating the solid wastes six inches down?
DNR’s Gebken penned another letter to Fleischli on December 28, responding to her recent letter alleging that planned excavations and elevator shafts violated the agency’s conditional approval to build over a landfill. He explained that “we do not anticipate that stripping of the landfill cover material…will require excavating into the solid waste since the excavation will be on top of the landfill rather than into the solid waste itself. (Previous documents stated that the landfill was covered with six inches of soil, which implies that the landfill was only ½ foot down.)
He assured that in the event that solid waste is uncovered during any phase of excavation for the project, including stripping of the cover material or excavation for footings, pile caps, utility trenches, light standards, driveway curb and gutter, storm sewers, sidewalks, traffic signs, electrical ground rods, or any other numerous possibilities, there is a contingency to separate the solid waste from the clean material.”
How would “clean waste” and “solid waste” (landfill) be separated? Gebken clarified to Fleischli that Madison’s hydrogeologist (Joe Demorett) would be on site during excavation “to determine whether the material is clean or whether it must go to a licensed landfill.”[10] (So, by visually observing the wastes, Demorett—who would apparently be able take time out of his work days for over two years to examine the excavations—could somehow determine whether excavated soils qualified as “clean” or as “solid waste,” whether or not they were contaminated?)
Trees removed, construction begins—“Everyone is going to win”
On December 2, a large photograph of a Madison Parks worker removing trees from the shoreline appeared in the Wisconsin State Journal. On December 22 an article announced that construction had begun.
A column by Capital Times editor Dave Zweifel, one of the biggest cheerleaders for the center appeared on December 30: “Finally it was the year of Monona Terrace.” Zweifel waxed happily about the economic benefits the center would bring to the downtown. “But what I continue to see as the most important contribution of Monona Terrace is not what it will do to the convention business, but what it will bring to every Madisonian. Because the Frank Lloyd Wright-designed structure will finally tie the Capitol Square to the city’s lakes, downtown Madison has an outstanding chance to once again become the place where residents from all parts of the city can come together to enjoy what is so uniquely Madison. I truly believe that many who still oppose this project don’t understand just how much it will mean to the average citizen. This will be a facility that will be perfect for everything from summer weddings and picnics to strolls along the lakeshore, from small community group gatherings to big citywide dinners…”
“To be sure, the animosities that have plagued the building of this facility for some 50 years aren’t going to fade with the end of 1994 and the start of a new year. But I’m more certain than ever that once this project is complete, everyone is going to win. And it finally got its start in 1994.”
Did the stormwater control devices work? Were they maintained over time?
In early 1995, even as all permits were issued and construction was beginning, the DNR, DOA, the city and contractors had many meetings about the design of the “silk curtains,” stormwater control devices, and other aspects of the project. Many discussions revolved around how to maintain these mitigation devices.
One challenge they faced was keeping the landfill wastes from sloshing into the lakes over the long term. Contractors for the city were building “revetment materials” (walls) beneath the center to “prevent additional erosion of the lakebed beneath the center,” but recognized that it would be “difficult, if not impossible” to repair and replace them.[11] Regardless, DNR concluded that this was “not likely to cause a significant increase in environmental contamination nor endanger public health or welfare” and therefore no modification to the existing approval to build over a landfill was needed.
In July 1995, when a portion of the revetment under the center was complete (but work was still ongoing), the city considered having it inspected by “performance divers,” and put out requests for proposals. Existing documentation on the revetments already constructed showed that they were “not as closely in conformance with the specifications as we had intended,” but were “marginally acceptable.” Based on the records in city and DNR files—or rather, lack thereof–divers were never hired to inspect the revetment under Monona Terrace.
The city took responsibility to maintain and clean out the “catch basin” devices (Vortechnics boxes) and the DOA agreed to maintain the 56 inlet filter baskets in the parking ramps, which would include removing and emptying the “baskets,” cleaning and replacing the “absorbent socks,” and disposal of removed materials at a sanitary landfill. Sweeping of the ramp would be required weekly.
The “silk curtains” out in the lake that were to hold in sediments released during center construction failed at least once during the project (they probably failed more frequently but were not reported). On September 6, 1995, Gebken at DNR wrote a memo saying “yesterday I got a call from Jamie Campbell” (a resident who lived near the lake on the east side). “His complaint indicated there was a ‘massive plume into the lake.’” (italics added). Gebken called the responsibl contractor and was told that a “barge had hit the east end of the silt curtain and tore a hole in it,” but it was being fixed. He wrote that “there was an increased level of turbidity at the area of filling, but again this is to be expected since the fill material was breaker run and there were some fines in it.” Nevertheless, he concluded: “I doubt that any significant amount of sediment left the enclosure due to the short time between when the accident occurred and when repairs were initiated.”
At some point the city installed the “gully washers” (baskets in storm drains, with filters to capture runoff) in the parking ramps that DOA was responsible to maintain. But in summer 1997, when Principal Engineer Mike Dailey took the Commission on the Environment to tour the stormwater management system at Monona Terrace, he observed that only one of the gully washers had the required filter media installed, and the “vortech manholes” also had structural problems. It’s not clear whether or how these problems were resolved.
In June 1999, the DNR construction stormwater permit for the center expired. There is nothing in DNR (or city) stormwater files for Monona Terrace after this.
What’s happening now? Nobody seems to know or care
In October 2022 when I reviewed DNR stormwater files on Monona Terrace, I talked to Eric Rortvedt, a lead water resources engineer in the agency’s stormwater program. Monona Terrace was built before his tenure at DNR, he told me, so he wasn’t aware of what happened in the 1990s. He knew very little about stormwater management there currently. He did say that the parking ramps need to be periodically washed by state Department of Safety and Professional Service employees. When that occurs, he explained, the wash water goes into the storm drains in the ramps and then into storm sewers that drain to the lake. He didn’t mention whether or not the “gully washers” or other inlet baskets to trap sediments and pollutants are still there and maintained by DOA. Clearly it is not something that DNR is monitoring.
The city obviously isn’t either. Again, Greg Fries said the last time he went to attempt cleaning out the Vortechnic devices placed next to the center—which were to receive the wastewaters from the parking ramps—was around 2000 or so. Again, after that attempt failed, the devices were abandoned (he didn’t say whether they removed them or left them in place).
Ignorance is Bliss! Again!
Obviously Monona Terrace wasn’t the “model” of stormwater runoff control that center proponents said it would be. Did the few stormwater management control strategies implemented, among the key premises on which building the center was approved, do anything whatsoever? Did the center exacerbate stormwater runoff into Lake Monona?
Nobody knows. Nobody cares.
~~~
[1] Priority watersheds were selected to participate in the Wisconsin Nonpoint Source Water Pollution Abatement Program, administered by DNR and DATCP. Watersheds were chosen for the program if they had serious nonpoint pollution problems and “there is a serious commitment from local officials to address these problems.”
[2] Larry Nelson and Joe Demorett with the City of Madison would “coordinate any pertinent environmental issues.” Contaminated water from dewatering would go to the sanitary sewer after being filtered for suspended solids; Demorett would also be in charge of determining whether this water was contaminated. Rob Phillips with the City was to be the “interface with the concurrent DOT project.”
[3] These limits, the info sheet said, were based on levels existing treatment technologies could achieve.
[4] Even these seemingly ambitious goals wouldn’t cut it, however. “While that is a substantial decrease, it is nevertheless short of the goal of reducing the sediment load to the lake to that which is 20% of the estimated 4,600 lobs/yr of present conditions at Law Park plus and improved John Nolen Drive.”
[5] Fries said storm drains would be left in place but “punctured to prevent gas buildup.” Nobody raised the concern that these storm drains would act as conduits for contaminated landfill leachates to drain into the lake. According to the DNR’s December 1992 “Guidelines for Review of Requests for Exemptions to Construct on Abandoned Landfills,” A section in the guidance on “concerns regarding construction on abandoned landfills” included: methane collection in buildings, toxic gases collecting in structures, disturbance of the landfill cap, utility lines acting as conduits for gas and leachate, dewatering problems, worker exposure, and settlement problems.
[6] They also discussed what to do with “exposed landfill material,” which Joe Demorett felt sure would be considered municipal waste by DNR because of the coal ash in it, and would need to be taken to a licensed landfill. He said “DNR is concerned with water infiltrating into this exposed material.” He proposed putting a plastic liner under the stone base that the center would be built on (to prevent infiltration), but McCutcheon said he didn’t think that would be necessary. McCutcheon added that “the DNR does not consider this cutting operation as excavation; but feels public perception of this operation could be an issue.”
[7] The city said it would use the biggest swirl concentrators available, and would pursue grant funding “since they were serving as a retrofit for existing development.”
[8] The date of this document is unknown, but it was likely written some time in December 1994 or early 1995.
[9] She also noted that “there are no promulgated effluent limitations or standards for storm water discharges different than the conditions contained in Ch. NR 216…”
[10] The clean fill would be used for fill or go to Olin, and the solid waste would go to the Dane County Landfill (Rodefeld). Construction waste (other than broken concrete) would go to the Mad/Prairie Landfill.
[11] From Wikipedia: “A revetment in stream restoration, river engineering or coastal engineering is a facing of impact-resistant material (such as stone, concrete, sandbags, or wooden piles) applied to a bank or wall in order to absorb the energy of incoming water and protect it from erosion. River or coastal revetments are usually built to preserve the existing uses of the shoreline and to protect the slope. In military engineering it is a sloped structure formed to secure an area from artillery, bombing, or stored explosives.”
