Last week, the Surfrider Foundation, represented by the Abrams Environmental Law Clinic at the University of Chicago Law School, filed public comments opposing a proposed settlement agreement between the Environmental Protection Agency (EPA) and Indiana Department of Environmental Management (IDEM) and the U. S. Steel Corporation. As you may recall, in January of this year Surfrider sued U. S. Steel for its chronic Clean Water Act violations at its Portage, Indiana facility. Perhaps most egregiously, in April 2017, U. S. Steel illegally discharged around 350 pounds of chromium – nearly 300 pounds of which were highly toxic and carcinogenic hexavalent chromium – into a small waterway that empties directly into Lake Michigan. This discharge and U. S. Steel’s numerous other violations have occurred immediately adjacent to the Indiana Dunes National Lakeshore, and at a popular spot for fishing, swimming, lakeside recreation, and surfing.
Following Surfrider’s lawsuit, the City of Chicago filed a similar suit, and the cases have been consolidated. In April, EPA and IDEM finally filed both a lawsuit and proposed Consent Decree – or, settlement agreement – against the steel manufacturer. Surfrider’s lawsuit has been stayed – or put on hold by the court – and the governments’ agreement was subject to a public comment period before it can be approved and entered by the court.
The governments have alleged that U. S. Steel committed numerous pollutant discharge violations (including the April hexavalent chromium violation, and yet another chromium violation in October 2017), as well as monitoring, reporting, operation and maintenance violations over the past five year statute of limitations period. Surfrider conservatively estimates that the Clean Water Act effluent violations alleged in the First Claim of the governments’ complaint alone could carry a statutory maximum penalty of $10,750,848 – and that doesn’t even include penalties for the governments’ Second through Seventh Claims for relief, which could amount to millions more. Yet they have proposed only roughly $600,000 in penalties. To put this into perspective, U. S. Steel generates over $600,000 in revenue every half hour. (According to Forbes, U. S. Steel has over $12 billion in annual revenue and over $10 billion in assets. This means that U. S. Steel generates over $600,000 in revenue every half hour.) As Surfrider argued in its public comments, if a penalty is to be a meaningful deterrent, it must mean more than 30-minutes of a corporate violator’s year. Quite simply, the $601,242 in total state and federal penalties are unconscionably low and cannot be expected to have any impact on how U. S. Steel makes compliance and investment decisions in the future. Furthermore, the penalty is far too small to deter other violators and sends a message to U. S. Steel and other industry actors that the federal government will not meaningfully enforce the Clean Water Act.
Relatedly, the proposed settlement fails in that it doesn’t include any local environmentally beneficial project. The penalty would simply go to the U.S. Treasury. Instead, U. S. Steel should be required to undertake a local project to benefit the area and communities negatively impacted by its actions.
Surfrider’s comments additionally explain how the settlement’s injunctive provisions, including technical requirements for the Portage facility, are inadequate to assuredly prevent future CWA violations or accomplish the goal of a clean environment.
Accordingly, because of the proposed agreement’s unfairness, unreasonableness, and inadequacy, Surfrider urged the U.S. Department of Justice (DOJ) to withdraw the proposed consent decree and negotiate a more robust, transparent and adequate agreement. Furthermore, if DOJ does not significantly improve the agreement, Surfrider argues the Court should withhold approval of it.
The Surfrider Foundation and our Chicago Chapter are committed to ensuring that U. S. Steel stops polluting Lake Michigan. For updates on this campaign, please stay tuned to the Coastal Blog and visit the Chapter’s website here.