EPA contractors excavate contaminated soil in October 2016 at a home in East Calumet, which is part of the USS Lead Superfund site in East Chicago.
EAST CHICAGO — Low-income, minority homeowners living in the contaminated USS Lead Superfund site who sued big-name polluters in late 2017 are now fighting in federal court to keep their lawsuit alive.
“This case lays bare one of the most pernicious effects of racial inequity — environmental violence. As the country struggles to recognize and solve these problems, the judicial system, generally, and the causes of action pled by plaintiffs, particularly, provide the only remedy for the specific injustices identified here,” wrote David Chizewer, attorney with Goldberg Kohn, a Chicago law firm working pro bono for East Chicago residents.
The lawsuit was first filed Oct. 31, 2017 in U.S. District Court for the Northern District of Indiana.
Chizewer filed opposition to the companies’ motion to dismiss on Aug. 21.
The original suit claimed polluters like DuPont/Chemours, and Atlantic Richfield that are associated with severely contaminated yards and homes are responsible for declining property values, emotional distress and difficulty in selling their homes to leave the toxic neighborhood.
EPA listed three neighborhoods — West Calumet, Calumet and East Calumet — as a hazardous Superfund site in 2009, but residents argue they didn't learn the full extent of the problem until East Chicago Mayor Anthony Copeland announced the evacuation of more than 1,000 people from the West Calumet Housing Complex in July 2016.
In the opposition filing, 46 residents and Chizewer urged Judge Joseph S. Van Bokkelen to not dismiss the three-year-old case, arguing they are entitled to recoup for the damage done and the emotional distress caused by “decades of environmental havoc” caused by lead smelting, refining and manufacturing.
“In the course of poisoning the properties of the East Chicago residents, defendants pocketed billions of dollars in profit. Yet, defendants ask this court to excuse them from any liability to the homeowners whose properties defendants so badly contaminated,” Chizewer wrote.
The Chemours Co. founded in 2015 as a spin-off from DuPont — and DuPont filed a motion to dismiss the case on July 31.
Companies argue statute of limitations
The companies argued the homeowners are well beyond the statute of limitations for suing them for “long-ago manufacturing operations” and that an EPA-led government cleanup is underway.
Chizewer argued that DuPont and Chemours have asked the court to relieve them of their responsibility and liability for “reasons that are both morally and legally bankrupt.”
“This Court should consider when was the last time it checked the Federal Register to see if its property had been contaminated,” Chizewer countered.
In 2016, Superfund site residents unsuccessfully attempted to intervene in EPA’s consent decree court proceedings to ensure EPA’s cleanup adequately protected them, but the court rejected the move as untimely, arguing residents received notification years prior.
The companies, in their court filing July 31, note a proposed cleanup plan was mailed to every residence within two miles of the contaminated Superfund site, a public meeting was held July 25, 2012, and the notice was also published in the Federal Register in September 2014.
DuPont asked the courts to dismiss the case because they provided “no facts on when the DuPont conduct occurred; where the DuPont conduct occurred; who at DuPont took part in the conduct; what was wrongful about the DuPont conduct; and how the DuPont conduct supposedly caused plaintiffs’ alleged injuries.”
“Plaintiffs acknowledge that DuPont Defendants, ARCO, and U.S.S. Lead operated different facilities that manufactured different products, at different times and in different locations … but they resort to insufficient conclusory allegations that the companies are collectively liable for plaintiffs’ alleged injuries,” the DuPont defendants wrote.
The parent companies of USS Lead — Mining Remedial Recovery Co., Arava Natural Resources Co. Inc., and Mueller Industries Inc. — originally were listed as defendants in the Oct. 31 filing, but plaintiffs voluntarily dismissed their complaint against them.
DuPont manufactured lead arsenate, zinc oxide and zinc chloride from 1893 until 2000 at 5215 Kennedy Ave., blocks away from plaintiffs’ homes, according to EPA records.
Airborne contaminants to blame, suit says
The suit claims the companies trespassed on properties with the release of airborne contaminants that settled into soil and through soil fill contamination in yards. DuPont, in particular, remains an ongoing source of groundwater contamination in the area, the suit alleges.
Citing the Indiana Court of Appeals' decision in KB Home Indiana Inc. v. Rockville Tbd Corp., companies fought against the trespassing claim, arguing the defendants have long ceased operations. To uphold a trespass claim, plaintiffs must possess the land during the alleged trespassing, the companies argue.
In his latest filing, Chizewer argues against the defendants' notion that they escape responsibility because it's impossible to know whether the lead and arsenic contamination in the soil can be traced back to a particular company.
"In other words, if the lead and arsenic that Defendants deposited into Plaintiffs' soil and groundwater was not specifically branded as 'DuPont contamination' or 'ARCO contamination,' then all defendants magically escape responsibility. These arguments and others like it are not just legally meritless, they are deeply misguided. Indeed, they further evidence that Defendants have embraced the deep-seated inequities in need of correction. Defendants' motions to dismiss should be denied, and this case should move forward immediately," Chizewer said.
A changed community: The East Chicago lead crisis one year later
A community thrust into the spotlight
East Chicago, one of the country's most industrialized cities, was thrust into the spotlight last summer with news of dangerously high lead and arsenic levels in the soil at the West Calumet Housing Complex.
For months, much of the attention centered on people like Tara Adams — then a resident of the low-income public housing site — being evacuated.
The crisis soon gave rise to a multitude of community groups and shed light on a larger picture: Thousands of homeowners were living in the nearby Calumet and East Calumet neighborhoods — aka Zones 2 and 3 of the EPA's USS Lead Superfund site.
Unlike West Calumet families, people like Elbert and Theodora Williams, who live in Zone 3, were told they would not have to leave their homes while the U.S. Environmental Protection Agency cleaned the soil.
Many churches quickly became ground zero for community meetings and, later, water distribution centers. But by spring 2017, the complex had been vacated, and church memberships were considerably reduced.
The city has experienced a resurgence of activism since the lead crisis. Even people who once made it a point to look the other way are turning out at community meetings opposing more pollution in East Chicago.
The Times spoke with a preacher, a mother, an elderly couple, and an environmental activist — all of whom have ties to the Superfund site in some way. Here are their stories.
The Rev. Douglas Sloss
A Bible is laid open to the Gospel of Luke, Chapter 5, as the Rev. Douglas Sloss, of the First Baptist Church, stands at the front of the sanctuary readying for a Wednesday night service.
The theater-style space with high ceilings can seat up to 425 people. But for tonight's Bible study, fewer than 20 devotees, mostly adults and seniors, turn out "hungry for God's word."
"If you come through in the daytime, it's crickets," Sloss said. "It's eerie, because before I could be sitting in the office and could hear kids running through the church yards. Now there are no kids. When you're thinking long-term viability, how do you grow something if you don't have that next generation?"
It's no secret the city's Calumet neighborhood has struggled to retain or attract homeowners and businesses. A once-bustling place that decades prior had its own movie theater, several grocery stores and barber shops has given way to vacant lots and abandoned structures, taverns, liquor stores and the area's many churches.
The situation worsened last summer when more than 1,000 people — including 680 children — were forced out of the nearby West Calumet Housing Complex due to high levels of lead and arsenic contamination found in the dirt.
The First Baptist Church's membership has suffered greatly, he said. On any given Sunday, he preaches to a sanctuary of 125 people — whereas before, anywhere between 180 to 225 members regularly attended.
The area's other churches have faced similar losses, Sloss said.
The original First Baptist Church is the oldest black church in Calumet, established in 1920. The original building sits on the corner of 149th Place and McCook Avenue not far from the church's newer, $1.8 million building constructed 14 years ago.
Early on in the lead crisis, Sloss worried the area's reputation as a contaminated Superfund site would reduce the property value and the building's worth.
After several months of back-and-forth negotiations, Sloss said the bank recently agreed to reduce the remainder of the church's loan debt. Sloss said he asked for the reduction because of the contamination and a loss in membership.
"(The contamination) has been negative and it has hurt us, but what I've found out about this community is that it is very resilient," he said. "I have no doubt that we're going to bounce back. There's a resilience in Calumet. Over time, it's going to turn around."
Tara Adams
Tara Adams never expected to land the role she now plays in the city’s lead crisis: A leader, unapologetic in her pursuit to protect future East Chicago children, unshaken in her fight to hold industry and local, state and federal government officials accountable.
Last fall, she began telling her story at countless community meetings with the EPA, housing authority officials and the city. She’s a single mother of three, who for 10 years unknowingly exposed her children to toxins in the soil at the complex because no one cared to tell her.
These days, Adams is among the few former residents left speaking for the hundreds of others forced out of the now-emptied, low-income, minority housing complex.
“I actually prefer that they represent themselves. We tried to get everyone involved,” Adams said. "But what I was not going to do was allow people to just brush over this. I knew that was not going to happen."
Earlier this year, Adams settled on a place in Hobart, but returns to the city at least once a week to attend community meetings, she said.
On a recent trip to Washington, D.C., Adams joined forces with Moms Clean Air Force, a group advocating for clean air and climate change policy, and Rebel Bells Collective, a Calumet Region organization that teaches young girls about social justice.
There, she met with Indiana’s congressional leaders and staff to discuss the Superfund site, and to oppose plans to store more contaminated dredged material less than a half mile from East Chicago schools.
Last year, her middle child, now 19, tested positive for lead in his blood while living at West Calumet, but it was below the federal threshold for action. But growing up in the complex, he was exposed for years. That recent test result is only a snapshot, she said.
The city and state health departments have historical data of children testing positive for lead at the complex — built in the early 1970s on top of a former lead smelter — but only recently did anyone act with any sense of urgency, she said.
Currently, children younger than 7 who tested positive for lead in the past year are being prioritized for state case management services.
"That's our concern," she said. "What about the older children who have been here since basically the beginning of their life? What about them?"
Elbert and Theodora Williams
Dozens of faded childhood photographs hang along the dimly lit hallway of Theodora M. Williams’ red-brick home that sits on a quiet slice of Ivy Street.
“I call it the 'Wall of Fame.' My kids call it the 'Wall of Shame,'" said Theodora, a retired paper-factory worker, on a recent Thursday afternoon.
If Theodora, 68, and her husband, Elbert, 78, have it their way, the couple’s prized wall of framed family photos will stay put for many years to come — even as the EPA digs deep into their neighbors’ lead- and arsenic-polluted yards to remove legacy toxins left over by industry.
The couple’s backyard — but not the front — was deemed toxic enough for cleanup this spring, they said. Out of concern, they have requested the agency retest the front yard.
It’s long been known the soil in the complex and the Calumet and East Calumet neighborhoods is contaminated. But East Chicago Mayor Anthony Copeland last summer shed light on the problem when he advised more than 1,000 men, women and children to relocate from the complex.
“I think (Mayor Copeland), he did the best he could with the information that was given to him at the time. What’s happening in West Calumet is bigger than what happened in Flint. They didn’t have to relocate anyone,” she said.
Theodora was part of one of the first families to move in 1972 into the West Calumet complex. That same complex now stands empty following a yearlong evacuation.
Elbert said he worries about what happens after the cleanup.
“Everybody says property values have gone down. Some say it wasn’t affected by the lead. Whether they say it does or it doesn’t, anyone that knows something is going on, is not going to want to buy into it,” he said. “Even when they say they’ve cleaned up, does that assure the property is really clean?”
While Elbert grew up in the city’s New Addition neighborhood, the couple has lived together in the same house on Ivy Street for the last 38 years. The EPA in recent months started a groundwater study of the Superfund site earlier than anticipated, partly in response to residents' concerns about basement seepage and flooding.
That's Thedora and Elbert's biggest worry: Are lead and arsenic contaminants infiltrating their basement each time there is a flood?
The couple love their home and have no intention of leaving. Half jokingly, Theodora said she'd take an offer on the house — but it all depends on the price and the weather that day.
"I don't know, if they came out and gave me an offer on a rainy day, I may take it," she said. "If it's a sunny day, I'd have to think about it."
Thomas Frank, environmental activist
The Brickyard. Marktown. West Calumet.
These East Chicago neighborhoods have two things in common:
1. Vulnerable, low-income residents of color have been forced out over the last two decades by rampant pollution.
2. They all are featured stops on Thomas Frank’s “Toxic Tour.”
The environmental activist says the tour offers people the opportunity to view his adoptive hometown's skyline for what it is: Home to one of the country’s most industrialized cities, as has been the case for the last century.
“(Tradebe) moved in next door (to Brickyard). Very quickly, people got sick. Instead of trying to address the polluters, (BP) decided they’d buy out the neighborhood and tear it down,” Frank said.
“And then just three years ago, BP moved next to Marktown, a national historic district … and they, too, have chosen to tear down Marktown. BP is buying them out.”
Tradebe is a waste treatment storage and disposal plant at 4343 Kennedy Ave. in East Chicago. In the mid-1990s, when families were bought out and forced to leave the Brickyard neighborhood, the plant was known as Pollution Control Industries.
Just a small fraction of the city’s 12 square miles is fit for families to live in, city and federal EPA administrative records show. The rest — estimated at about 80 percent — of the land is zoned for heavy industry and the largest taxpayers.
“We’ve been cannibalized by industry, and we’re contracting,” Frank said on a recent cloudy afternoon before jumping in his SUV with members of a regional social justice group in the back seat to embark on his "Toxic Tour."
Frank, who lives in the Washington Park section of East Chicago, is a former urban planner and once-director of the Indiana Harbor Shipping Canal. He’s also no stranger to the environmental justice scene as a member of both the Southeast Environmental Task Force and the Chicago Southeast Side Coalition to Ban Petcoke.
These days, Frank said he fields more requests than ever from people — environmental groups, national news outlets, college students and residents included — to take the tour. Even EPA Region 5 Acting Administrator Robert Kaplan — who is overseeing cleanup of the USS Lead Superfund site — attended Frank’s tour last month.
“Prior to this West Calumet story breaking, we didn’t call it pollution. People saw the smoke and they called it jobs. They were really, up until that point, seeing smoke as meaning food on the table,” Frank said. “They now know it is pollution.”
Frank says he is shedding light on the Region’s worst-kept secret. There always will be people who look the other way, but Frank says he has witnessed an awakening in East Chicago since news broke last summer.
Residents now are fighting back against the Army Corps of Engineers’ plans to store highly contaminated dredged material less than a half mile from several schools in the city. Though residents agree the dredging of the canal is necessary, they clashed recently with U.S. Rep. Pete Visclosky, D-Merrillville, at a community meeting when he said he wouldn’t go on record opposing the project.
The EPA and Indiana Department of Environmental Management are reviewing the Corps’ permit.
“What we’re seeing now is more people getting involved and recognizing our environment is the issue,” Frank said. "If you destroy the land, destroy the water, destroy the air, there’s really nothing to build economic development on."
More East Chicago lead crisis coverage from The Times
For a timeline of key moments, check out this link.
For an FAQ on the East Chicago lead crisis, check out this link.
For more E.C. lead coverage, check out this link.
Lauren Cross
North Lake County Reporter
Lauren covers North Lake County government, breaking news, crime and environmental issues for The Times. She holds a master’s degree in Public Affairs Reporting from UIS. Contact her at lauren.cross@nwi.com or 219-933-3206.
