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 — U.S. Steel did not monitor for a highly toxic form of chromium after a leak was discovered in late October at its Midwest plant, records show.

The disclosure — made Monday in an inspection summary/noncompliance letter released by the Indiana Department of Environmental Management — answers a key question asked by attorneys working on behalf of a foundation that has threatened to sue U.S. Steel over violations at the plant.

Attorneys with the University of Chicago's Abrams Environmental Law Clinic in November said U.S. Steel should disclose how much hexavalent chromium was contained in the 56.7 pounds of total chromium discharged into Burns Waterway in October.

Total chromium is a combination of hexavalent chromium — also called chromium 6 — and chromium 3, said attorney Mark Templeton, director of the Abrams Environmental Law Clinic. 

"Unless you know what the total chromium 6 is, you really don't have a handle on how toxic the total release is," he said.

Because no testing was done, "we don't know, and we're never going to know," he said.

U.S. Steel has said the October release "did not pose any danger to water supply or human health" and that it promptly reported the discharge.

IDEM conducted the inspection after the company self-reported in compliance with permit requirements, U.S. Steel spokeswoman Meghan Cox said in a statement Wednesday.

"The inspection findings are specific to that event and included a review of corrective actions that had been completed or were in progress," the statement said. "Since the date of the inspection, all of these corrective actions have been completed."

Multiple 'unsatisfactory' findings

IDEM inspectors visited the U.S. Steel Midwest plant Nov. 16 and 17, after the company reported the spill Oct. 31 and sought "confidential treatment." Inspectors rated operation, self-monitoring and effluent limits compliance at the plant as unsatisfactory, according to the IDEM report.

A contractor for U.S. Steel on Oct. 26 was conducting routine sampling and observed discharge that was blue with visible solids. U.S. Steel personnel were notified and found two of three discharge channels overflowing, the report says.

"Hexavalent chromium monitoring was not conducted upon noticing that the discharge was blue with visible solids, or upon obtaining a total chromium result above the daily maximum permit limit," the report says.

The daily allowable limit is 0.51 pounds for hexavalent chromium and 30 pounds for total chromium, Templeton said.

On-site personnel at U.S. Steel told inspectors that testing for hexavalent chromium was not conducted because the area of the facility experiencing operational deficiencies was subsequent to the area in which hexavalent chromium is reduced to chromium 3, the report says.

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Inspectors noted a review of operational records between 7 a.m. Oct. 25 and 7 a.m. Oct. 26 indicated pH was in the appropriate range for the chromium reduction to occur.

"Visual evidence of operational deficiencies, such as discolored effluent or solids leaving the facility or a total chromium result in excess of the daily maximum permit limit should lead the facility to monitor for hexavalent chromium to determine the extent of the impact, even if the on-site personnel believe there will be none or little," the IDEM report says.

U.S. Steel worked to correct operational deficiencies, and an on-site operator was removed from the chrome treatment plant and assigned to other duties after the October leak, the report said.

Templeton said another concern is that IDEM has not yet made public U.S. Steel's October monthly discharge monitoring reports for the Midwest plant.

IDEM said U.S. Steel submitted discharge reports on time, and they should be available online by Dec. 15.

Threat of lawsuit looms

Work continues on a potential lawsuit against U.S. Steel for repeated violations of the Clean Water Act during the last six years, Templeton said.

The law clinic, which represents the Surfrider Foundation, sent a 60-day notice of intent to sue to U.S. Steel in mid-October, he said.

Chicago Mayor Rahm Emanuel said in November the city plans to sue U.S. Steel over spills in October and April, and Portage also has threatened legal action.

Between April 11 and 12, the Midwest plant discharged nearly 300 pounds of hexavalent chromium into the Burns Waterway — or 584 times the daily maximum limit allowed under state permitting laws. The spill forced the closure of several beaches and a shutdown at Indiana American Water's Ogden Dunes water intake.

IDEM told The Times last month 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.”

U.S. Steel has not yet responded to the Abrams Environmental Law Clinic's notice of intent to sue, Templeton said.

If the government files its own case against U.S. Steel before the 60-day period ends, Surfrider Foundation could be precluded from filing a lawsuit, he said. In that case, the foundation would seek to intervene in the government's case, he said.

Chicago's Law Department said Wednesday in a letter to EPA the city would prefer to be involved in decree negotiations early on, but that the city will seek to intervene in the case if EPA and IDEM files a proposed consent decree. 

IDEM said U.S. Steel must provide by Jan. 10 a written, detailed response documenting corrections or a plan assuring future compliance. The response is required regardless of whether an enforcement action is pending, an IDEM spokesman said.

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