Surfrider Foundation seek to intervene in proposed consent decree for U.S. Steel

Mike Calabro, from left, David B. Owen and Peter Lambert surf Lake Michigan near the Whiting lakefront in February.

HAMMOND — Attorneys for Chicago moved Thursday to intervene in the proposed consent decree for U.S. Steel, saying new data suggests the company's Portage plant may still be leaking toxic chromium into a Lake Michigan tributary more than a year after a major spill.

In a separate motion filed in U.S. District Court, the Surfrider Foundation said it also should be allowed to intervene. Pollution from U.S. Steel's Midwest Plant in Portage has affected its members' use and enjoyment of Lake Michigan, and the government's proposed consent decree fails to protect their interests, the foundation's attorneys wrote.

Surfrider and Chicago sued U.S. Steel in January for an April 2017 spill of nearly 300 pounds of hexavalent chromium — or 584 times the daily maximum limit allowed under state permitting laws — into the Burns Waterway and numerous other Clean Water Act violations. The two lawsuits were consolidated in March, and the parties agreed to stay the case after the Department of Justice in April announced a proposed consent decree.

The proposed settlement would require U.S. Steel to pay more than $600,000 in civil penalties and more than $630,000 to reimburse several agencies for response costs and damages caused by the spill into the Burns Waterway. 

In July, attorneys for Surfrider Foundation and Chicago filed motions to lift the stay in their case. U.S. Steel filed its opposition to their motions in August. No decision has been made in that case.

The foundation and Chicago now want the court to allow them to intervene in the Justice Department's case.

The Justice Department and U.S. Steel have two weeks to respond.

Surfrider and Chicago both pointed to a July 17 report, which noted hexavalent chromium was detected above screening levels in groundwater at the Midwest Facility's wastewater treatment plant. The report was filed with the Indiana Department of Environmental Management in July, after more than 2,700 public comments regarding the proposed consent decree already had been submitted.

Chicago must protect the drinking water it provides to more than 5 million people, according to the city's motion.

"Newly public facts suggest there may be acute, ongoing threats to the public from U.S. Steel's facility, i.e., that hexavalent chromium from April 2017 may be migrating through groundwater into the Burns Waterway and that a pipe carrying hexavalent chromium may be leaking," the city's attorneys wrote.

Chicago says the July report indicates U.S. Steel failed to resolve problems that caused or contributed to the Clean Water Act violations.

"Specifically, these documents indicate that the Midwest Plant may still be leaking chromium into the Burns Waterway, that U.S. Steel has not identified the precise cause of the leak, and that the chromium levels described in the consent decree are severely underestimated," the city's motion states.

The city said intervening in the Department of Justice's case "is the only way to ensure that this court is presented with critical information necessary for it to determine whether the consent decree is 'lawful, fair, reasonable and adequate.' "

Surfrider Foundation says its members are passionate about conservation and working to preserve the health of the lakeshore, but some of them have fallen ill after surfing near the Portage facility or chosen to avoid the Portage Lakefront completely.

"While the government must necessarily balance a whole host of factors in deciding how to bring and resolve enforcement actions — covering disparate concerns like environmental protection, the allocation of enforcement resources, recovery of damages to its own property, and the balance of other regulatory, economic, and political interests of the violator and others — Surfrider's interest is focused exclusively on protecting the water and those who rely on and recreate in it," the foundation's attorneys wrote.

They accused the government of negotiating a proposed consent decree that fails to protect Surfrider's interests, demonstrating "the divergence of interests here is significant, concrete and multifaceted."

If state and federal regulators had provided adequate oversight and enforced the law during the several years over which U.S. Steel's violations occurred, they might have helped to prevent more recent violations, the attorneys said.

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