Surfers have sued U.S. Steel, which dumped toxic hexavalent chromium into a waterway that feeds Lake Michigan near the coast of northwest Indiana. Credit: Richard Anderson

Surfrider Chicago is looking to relaunch its federal lawsuit against U.S. Steel, which it says sickened surfers when it dumped toxic hexavalent chromium in a waterway connected to Lake Michigan in northwest Indiana.

Attorney Mark Templeton of the U. of C.’s Abrams Environmental Law Clinic said Tuesday that he filed a motion on Surfrider’s behalf seeking to reopen the case in the U.S. District Court in Hammond. The suit had been on hold after U.S. Steel agreed to work out a consent decree with the U.S. EPA to resolve problems at its plant in Portage, Indiana, where the spill took place last year.

But Surfrider is now looking to reopen the case so it can compel the steelmaker to comply with discovery requests “necessary to evaluate the consent decree between U.S. Steel and the government,” Templeton said.

Templeton added that because Surfrider’s case against U.S. Steel is much broader in scope, “resolving the government’s complaints won’t resolve ours.” He claimed that in order to know what U.S. Steel needed to do to become compliant with the Clean Water Act, the plaintiffs require documents that can only be obtained by lifting a stay on the case.

U.S. Steel did not respond to a request for comment.

The company has until August 3 to file a response to the motion.

In April, Surfrider agreed to stay its lawsuit to evaluate a proposed settlement between the EPA and U.S. Steel. But last week, Surfrider announced its opposition to the proposed consent decree for its “unfairness, unreasonableness, and inadequacy.”

The consent decree proposes that U.S. Steel pay a $600,000 civil penalty for damage to the environment, a penalty that Surfrider says is “unjustifiably low,” according to public comments filed July 6.

The penalty is especially low considering the strength of the government’s case against U.S. Steel, Surfrider said. U.S. Steel admitted to several of the charges brought against it in legal documents, including four separate chromium violations since 2013; monitoring violations on 20 different days for temperature differences in the waterway; and maintenance failures at its Portage facility. The maximum penalty for these legally binding admissions is $5,370,448, according to Surfrider’s calculations, making the proposed penalty just over a tenth of that figure—far below the maximum penalty for the total charges alleged against U.S. Steel by the EPA, the Surfrider statement said.

Mitch McNeil, chairman of Surfrider Chicago, said that he hopes that a revised settlement between U.S. Steel and the EPA will “serve as a statement that this is serious and [that] we’re watching.”

According to an EPA report conducted in May 2017, U.S. Steel did not have a spill prevention maintenance program and did not record plant inspections or maintenance in a systematic manner. Surfrider compared the consent decree’s proposed enhancements to U.S. Steel to a game of whack-a-mole, and claimed that “fixing a few specific pipes does not address systemic and managerial problems.” v

McNeil hopes that a revised decree will “reform the culture that has produced these problems.”