PORTAGE – Claiming state and federal regulators have not taken proper action in response to repeated violations of the Clean Water Act, two environmental organizations plan to bring a lawsuit against ArcelorMittal for "repeated violations" of its federal discharge permit.
"ArcelorMittal has a record of 100 violations of the Clean Water Act since 2015, including their spill of ammonia and cyanide into the Little Calumet River in August," according to Indra Frank, environmental health and water policy director of the Hoosier Environmental Council.
"In that time neither the U.S. Environmental Protection Agency, nor the Indiana Department of Environmental Management has taken any formal enforcement action. This suit is intended to ensure there are consequences for this long record of violations."
The HEC filed notice with ArcelorMittal on Oct. 4 of its intent to sue, in conjunction with the Environmental Law & Policy Center.
ArcelorMittal's steel mill in Burns Harbor is located near the Indiana Dunes National Park, and discharges water into the East Branch of the Little Calumet River, which flows directly into Lake Michigan, the groups said in a joint statement.
"ArcelorMittal’s violations include exceeding its permit limits for total cyanide, free cyanide and ammonia. In August 2019, ArcelorMittal’s excessive pollution, including significant amounts of cyanide, killed 3,000 fish and closed a beach on Lake Michigan at the National Park," the statement said.
Despite requirements in its permits, "ArcelorMittal did not even report that incident until two days after citizens reported the fish kill" to IDEM and the Indiana Department of Natural Resources, the statement said. "Neither IDEM, nor the U.S. EPA has taken any formal enforcement action against ArcelorMittal for the August 2019 incident or any of the other 100 alleged violations."
Frank said that has to change.
"Without consequences, the pattern of violations and the damage to Lake Michigan may continue. Meaningful consequences will create a strong incentive for ArcelorMittal to prevent future violations."
And federal law makes that possible, according to Jeffrey Hammons, staff attorney for the ELPC.
“The Clean Water Act authorizes citizens to sue when the government lets us down,” he said. “ArcelorMittal needs to be held accountable, and IDEM and EPA need to do a better job of protecting Lake Michigan, Indiana Dunes National Park, and the people who enjoy them.”
The suit would be the second threatened against ArcelorMittal in the wake of the August spill.
Portage attorney Thomas Dogan filed a notice in late August of intent to sue, with plaintiffs including the Portage Port Authority, Marquette Yacht Club, VI Marina, Dunes Harbor LLC and KLM Dunes, along with nearly 70 people who claim they were affected by the spill.
Dogan said at the time the plaintiffs "consist of persons and businesses who recreate, enjoy the natural resources, engage in healthy exercise, instil proper morals, raise their families, enjoy hunting, fishing and other outdoor activities; and conduct legal businesses within the area of the Burns Waterway and nearby Lake Michigan and its environs near Portage."
All are "adversely affected by pollution from the ArcelorMittal Burns Harbor Plant" and intend to sue "for violations of the Clean Water Act resulting from the facility's operation in violation of the law," he said.
In the latest notice of intent, the “total cyanide load” discharged from one just outfall at the ArcelorMittal was 548% higher than the legal limit on Aug. 12; 795% higher on Aug. 13; 557% higher on Aug 14; and 419% higher on Aug. 15, according to Hammons. The amount of ammonia discharged also far exceeded the legal limit, he said.
"The EPA and IDEM have said they will file inspection reports about the Aug. 11 spill, but neither agency has taken formal enforcement action over any of the steel mill spills over the past four years," Hammons said.
“In the face of this repeated, illegal damage to Lake Michigan, we can no longer just stand by and wait for the state and federal government to act,” Frank said. “The damage has to stop for the sake of everyone who gets their drinking water from the Lake; everyone who swims, fishes, or boats in the lake; and the wildlife that make their home in the lake.”
She believes state funding cuts have hampered IDEM's ability to properly act.
"The HEC is concerned that chronic underfunding of IDEM is contributing to its lack of action," she said. "The Indiana legislature and Governor's office have repeatedly cut IDEM's budget over more than a decade, so that they are now operating with 100 fewer staff than they had in 2005.
"Indiana needs IDEM's funding fully restored so that polluters can be held accountable and our environmental problems can be addressed."
ArcelorMittal said in a statement it is unable to comment on the notice of intent to sue, but it continues to focus on compliance and reassuring community stakeholders that they hear and take their concerns "very seriously."
The company continues to monitor the Little Calumet River and has been in compliance since Aug. 17, the statement said. And it is working with federal and state authorities to address issues and concerns from the August release.
Save the Dunes, which is not a party to the pending suit, applauded the news.
"Accountability in situations such as the recent cyanide and ammonia exceedances from ArcelorMittal takes a multitiered, strategic approach," a statement from the group said. "We’re pleased to share that our colleagues at the Environmental Law and Policy Center and Hoosier Environmental Council are pursuing a lawsuit. We will continue to work closely with them as we move forward together to change Indiana’s toxic reputation."
Michigan City-based outdoor guide Todd Hatfield, who found and reported a smaller diesel fuel spill on Trail Creek earlier in the summer, says IDEM "dropped the ball" on both spills.
He said when he reported the Trail Creek spill, an IDNR representative responded immediately, but no one from IDEM showed up until the following morning, which "allowed the fuel to continue spilling into the stream and into Lake Michigan for another 12-14 hours."
He said he tried to contact IDEM about the Trail Creek spill, and later the Little Calumet spill because the latter affected his business. "A lot of people thought that spill was affecting water all along the lakefront," he said.
"IDEM was completely incompetent on handling that. I called them about that – it was bad for business – and while I had someone on the phone I asked about the spill on Trail and why nothing was ever said – and they tried to deny that it happened.
"I said I was the one who called it in and have video proof. I said that I wanted a full detailed report about what happened, how [it happened], how bad, is it cleaned up ... I have yet to receive that info."