Surfrider Chicago responded last Monday to U.S. Steel’s attempts to hold off the environmental advocates’ lawsuit, claiming that the consent decree reached between the Pittsburgh-based steel company and the U.S. Government will not address the violations that are still taking place at the company’s Portage facility. Namely, that chromium in the groundwater near the plant is still migrating towards the Burns Waterway, according to a July report with the IDEM only recently made public by U.S. Steel.

“Since the proposed consent decree was published, a lot of new information has come to light.” says Rob Weinstock of the University of Chicago Abrams Law Clinic representing Surfrider. “If [U.S. Steel] doesn’t have a systematic way of dealing with these issues, which they don’t, then that suggests some much broader problems than simply what happened to one containment trench and one pipe last April.”

Surfrider has already made several complaints regarding the proposed consent decree, but decided to file and reopen their case in July to obtain documents through discovery from U.S. Steel in order to evaluate what the company would need to do for compliance with the Clean Water Act.

“The plan [initially proposed] needed to be fixed and they could’ve fixed that plan from the get-go.” says Mark Templeton, of the University of Chicago Abrams Law Clinic, “It goes to show that even when they’re given the chance to fix things, they won’t come up with a plan sufficient to do that. It raises concerns about how serious U.S. Steel is about solving the problems on the ground here.”

On August 3, U.S. Steel filed their response, claiming that Surfrider’s lawsuit “advanced similar or identical claims” to the government’s, so “the consent decree, in its current form, or as revised based on the comments submitted by [Surfrider] and others, will resolve and bar most, if not all, of the claims in [Surfrider’s] complaints.” U.S. Steel goes on to add that only four months after the stay, their situation is unchanged, and so there is no reason to reopen the lawsuit.

Now, in a legal reply filed August 13, Surfrider claims that “circumstances have indeed changed” and that the “fundamental shortcomings in the Government’s’ approach assure that this or any modified consent decree will not sufficiently remedy U.S. Steel’s [Clean Water Act] violations or require U.S. Steel to correct fully and finally the problems that caused its illegal discharge.”

Surfrider claims that the government’s’ case focused on U.S. Steel’s April 2017 spill is “too narrow to deal with these multifaceted and systematic problems.” Their reply details several developments since agreeing to the stay which have shown the inadequacy of the government’s’ approach, which has failed to prevent U.S. Steel from continuing to dump chromium into the surrounding groundwater.

“What our reply highlights is that this new information reveals the true nature of Clean Water Act violations at the Portage facility,” says Weinstock, “and what that shows us is that the proposed consent decree doesn’t go far enough.”

According to a July 18 report, the amount of leaked chromium cited in the consent decree may be wrong. U.S. Steel’s groundwater sampling, reviewed by the City’s experts, shows the carcinogenic hexavalent chromium may still be discharging into the Burns Waterway, which flows into Lake Michigan. Not only this, but flow monitors installed by U.S. Steel in its Enhanced Wastewater Process Monitoring Design study gave contradicting chromium levels, meaning the dangerous toxin could still be leaking, unmonitored, according to Surfrider’s reply.

“When the hexavalent chromium spill happened last April, not all of the chromium went down the outfall pipe,” claims Weinstock, “We’ve learned that there’s hexavalent chromium in the groundwater beneath the facility. That is new information [since agreeing to the stay.] Ground impacts are not reflected at all in the consent decree. If there was chromium that spilled into the soil and got to the groundwater, that raises serious questions about the volumes of the spill that were used to notify the public and were used in calculating penalties.”

The consent decree, which would bring U.S. Steel into compliance for its April 2017 spill, would only address the causes of that specific spill — breached conveyance, poor maintenance, and inadequately designed containment — but would not address the causes of the ongoing groundwater leakage or even the October 2017 chromium spill, which was caused by inspection, cleaning, and monitoring failure, according to Surfrider’s reply.

Templeton went on the say, “when a company is breaking the law, is aware that it’s breaking the law, and regulators know and are not enforcing the law, then what kind of behavior do you think the company is going to engage in?”

U.S. Steel declined to comment while both parties wait to hear from magistrate judge Andrew Rodovich at Hammond’s U.S. District Court on whether he will lift the stay.