PORTAGE — State environmental regulators now say they are seeking penalties against U.S. Steel following April’s illegal discharge of hexavalent chromium at its Midwest plant and a more recent, second illegal wastewater discharge in late October for which the company sought “confidential treatment.”
The Indiana Department of Environmental Management also told The Times last week the agency and its federal partners are “currently negotiating an agreement in principle with U.S. Steel … to be embodied in a federal consent decree that will address violations of the Clean Water Act.”
The news of potential penalties comes just days after the University of Chicago’s Abrams Environmental Law Clinic put the Pittsburgh-based company on notice of its intent to sue on behalf of the nonprofit Surfrider Foundation because of repeated violations of the Clean Water Act.
'Not rare breakdowns'
The threat of a legal challenge centers on the Portage facility’s permit to discharge wastewater into the Burns Waterway, a small industrial ditch which empties directly into Lake Michigan not far from a recreational spot used by area surfers.
“The Surfrider Foundation seeks to improve water quality in Lake Michigan by securing long-term compliance with applicable law,” U of C attorneys wrote in a letter to the company dated Monday.
Wastewater was incorrectly routed and so was not properly treated and was discharged without permission in April 2012. Equipment failure and malfunctioning controls in February 2013 then allowed for excessive discharge in the waterway, according to U of C attorneys.
Illegal discharges and water temperature fluctuations reported to IDEM since 2012 are in violation of the company’s National Pollutant Discharge Elimination System permit — which establishes quantitative and qualitative limits and standards for discharges, reporting requirements and maintenance standards, U of C attorneys allege in a letter to U.S. Steel.
The Pittsburgh-based company’s long-deferred maintenance at its Midwest plant resulted in April’s leak of hexavalent chromium, a second leak of total chromium first detected Oct. 25, as well as several past violations, the letter alleges.
As reported by The Times, the company withdrew plans in October to build a new galvanizing line at the Midwest Plant in Portage, instead investing $400 million at a facility in northwest Ohio.
“This pattern suggests that the problem is not rare breakdowns of single pieces of equipment but an ongoing failure to maintain plant facilities,” the letter alleges.
U.S. Steel blamed the April leak on equipment failure.
In the April incident, nearly 300 pounds of hexavalent chromium — or 584 times the daily maximum limit allowed under state permitting laws — leaked from the U.S. Steel’s Portage wastewater treatment facility into the Burns Waterway just hundreds of feet from Lake Michigan.
The leak — first reported to the public by the National Park Service — garnered immediate local and national media attention and spurred the U.S. Environmental Protection Agency to conduct round-the-clock sampling for about a week to ensure the toxic industrial byproduct had not reached Lake Michigan. It also forced the temporary closure Indiana American Water’s intake in Ogden Dunes.
Though smaller in scale, a second leak first detected Oct. 25, was not reported to the public by IDEM or U.S. Steel, which had sought "confidential treatment" from state regulators on that particular leak, according to publicly available IDEM documents. U of C attorneys and the Surfrider Foundation are arguing the public has a right to know.
"Where is the common sense in duty to inform the public?" said Rob Weinstock, an attorney working with U of C's Environmental Law Clinic.
Officials with the Indiana American Water Company and the Indiana Dunes National Lakeshore said last week neither learned about the company’s October leak until it was reported in the news media.
“Indiana American Water was not made aware of the apparent U.S. Steel permit exceedance in October and only recently learned of it … through a local news report. While it is unlikely the release from more than two weeks ago would still be present in the area, we are testing throughout our system as a precautionary measure,” spokesman Joseph Loughmiller said.
“We will also be reaching out to state officials and U.S. Steel to review emergency notification processes and this specific incident to determine what happened,” Loughmiller said.
NPS spokesman Bruce Rowe said the park service began an investigation Wednesday into the leak and has been in constant contact with EPA, IDEM and others since first learning about the October leak this week.
“Timely communication on spills is critical to protecting park resources and the health of our visitors and employees. We normally receive notification of hazardous spills through the Department of the Interior's Office of Environmental Policy and Compliance. Part of our investigation will be to determine why there wasn't a notification in this case,” NPS spokesman Bruce Rowe said in an email.
IDEM said they are evaluating information provided by U.S. Steel for the October discharge to “determine appropriate next steps,” and that part of that evaluation will include determining whether the proper notification procedures were followed by the company.
However, IDEM added that the October 56.7-pound leak at U.S. Steel of total chromium did not meet the 5,000-pound threshold for reporting to the National Response Center. Leaks below that threshold typically do not require spill notifications, IDEM said.
The outstanding question is whether the October discharge of chromium contained a high volume of hexavalent chromium, which is the more toxic form and has a lower reporting threshold, Weinstock said. This matters in determining whether U.S. Steel followed proper protocol, he added.
"We all need an affirmative statement that it was not hexavalent chromium," Weinstock said.
IDEM in an email on Thursday said while the agency did not "have a value from US Steel from (Oct. 25 or 26), of the 6 samples provided for the month, all were less than the limit of quantitation of 00025 mg/l indicating compliance with U.S. Steel’s permit for (hexavalent chromium) for a monthly average."
A spokeswoman for U.S. Steel declined to disclose in a email what amount, if any, of the total chromium that discharged into Burns Waterway in October contained hexavalent chromium.
"We immediately shut down the affected portion of the treatment plant and shifted to an alternate operation that allowed us to identify the cause. This allowed us to make the necessary corrections to be within allowable federal and state levels," she said. "The event did not pose any danger to water supply, human health or the environment."