Burns Waterway

Burns Waterway is seen April 12, a day after officials announced they determined a wastewater discharge from U.S. Steel's Portage facility contained hexavalent chromium. The carcinogenic chemical is a toxic byproduct of industrial processes that can cause reversible and irreversible skin lesions on direct contact, according to Save the Dunes.

PORTAGE — Attorneys threatening to sue U.S. Steel over violations of the Clean Water Act said this week said they’re concerned IDEM is "bending over backwards" to accommodate the company’s decision to assign a new wastewater operator at a plant where multiple chemical leaks have occurred.

Documents show the Indiana Department of Environmental Management on Nov. 27 granted a provisional certificate for a new wastewater-treatment operator at the U.S. Steel Midwest plant in Portage.

"The granting of a provisional certificate is a form of a variance from our rules and is not done routinely," IDEM said in a letter to U.S. Steel. "It is important you understand that neither an extension nor the granting of another provisional certificate to a second individual will be considered after the expiration of this certificate."

U.S. Steel sought the provisional certificate after a former operator was removed from the chrome treatment plant in Portage and assigned to other duties following an October leak, documents show.

Documents also show the new operator signed an October monthly operating report Nov. 21, six days before he was issued a provisional certificate.

Mark Templeton and Robert Weinstock, attorneys at the Abrams Environmental Law Clinic at the University of Chicago Law School, said the timing raises questions.

"We see a confusing managerial picture in a place where they clearly need to improve the management of their wastewater treatment plant," Weinstock said.

IDEM: Required payment lacking

IDEM said it received an application for the provisional certificate Nov. 15 that was "complete as it related to the required information." However, "the application was lacking the required payment."

"Once the fee was submitted, IDEM was able to complete the processing of the provisional certification and issued it on Nov. 27," a department spokesman said.

The monthly monitoring report signed by the provisional operator was not due until Nov. 28, IDEM said. The department also noted another person — U.S. Steel Midwest's manager of environmental control — also signed the report.

U.S. Steel said IDEM has stringent requirements on qualifications for wastewater employees.

"We staff these positions appropriately and within the requirements articulated by the department," U.S. Steel said in a statement.

Templeton and Weinstock represent the Surfrider Foundation, which sent U.S. Steel a notice of intent to sue in November over "repeated and ongoing violations of the Clean Water Act" at the Portage plant. The notice outlines 32 violations related to wastewater discharges and 24 reporting and monitoring violations at the Portage facility since 2013. 

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In April, nearly 300 pounds of hexavalent chromium — or 584 times the daily maximum limit allowed under state permitting laws — leaked from facility's wastewater treatment center into the Burns Waterway, just hundreds of feet from Lake Michigan. In October, the facility discharged 56.7 pounds — or nearly twice the daily allowable limit — of total chromium into the waterway.

The company initially sought "confidential treatment" for the October spill. IDEM in December released an inspection summary/noncompliance letter showing U.S. Steel did not monitor after the October leak for hexavalent chromium, a highly toxic form of the chemical.

Questions over cause for certificate

Templeton and Weinstock questioned whether the provisional certificate was properly issued under conditions laid out in state law.

The law says, "When a vacancy in a position of operator occurs due to death, resignation, extended illness, or a similar cause, the vacancy may be filled for a period not exceeding one year by an operator with a provisional certification."

Causes such as death and illness would clearly be outside of U.S. Steel's control, Templeton said.

However, the reassignment of an on-site operator is within the company's control, he said.

"They should have been managing better and within the terms of the law," he said.

IDEM said the law "provides a few examples of scenarios where an operator may have left suddenly, and also states '... or a similar case ...,' and the previous operator taking a new position in the company would be considered 'a similar case.' "

IDEM said the new operator's application provided documentation that demonstrated qualifications that met or exceeded the requirements to be granted a provisional certificate. The new operator must pass an exam within 180 days to continue in the position, records show.

Templeton and Weinstock said they have received no response yet from U.S. Steel to the notice of intent to sue, which requires a 60-day notice. After that deadline passes this weekend, Surfrider can file its lawsuit.

An IDEM spokesman said in December the department 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."

IDEM said Thursday no announcements regarding the U.S. Steel Midwest facility were expected before week's end.

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