Two environmental groups say they plan to sue a company responsible for more than 100 Clean Water Act violations in northwestern Indiana, including the release of cyanide 25 times higher than the level permitted by law.
The Environmental Law & Policy Center and the Hoosier Environmental Council served ArcelorMittal, the Luxembourg-based owners of the Burns Harbor steel mill, with a 60-day notice of intent to file a Clean Water Act lawsuit against the company.
The groups say they decided to sue the corporation because state and federal agencies have not taken any action against it, even after a long pattern of repeated water quality permit violations.
“We have been following this facility because it had come on our radar with past violations of the Clean Water Act, and as we had looked into it we had found that neither the state of Indiana nor the EPA have brought any formal enforcement cases against this facility,” said Jeffrey Hammons, staff attorney for the Environmental Law & Policy Center.
ArcelorMittal admitted that a loss of power at a blast furnace pump station on Aug. 11 led to the discharge of ammonia and cyanide beyond the amounts allowed by their Clean Water Act permit.
In a noncompliance report submitted to the Indiana Department of Environmental Management soon after the spill, the amount of ammonia daily mass and concentrations were reported at nearly double permitted limits. Cyanide concentrations for Aug. 13 were reported at .22 mg/l, or 25 times the .0088 mg/l permit limit. Subsequent reports detailed even more exceedances in the following days.
Those reports were submitted to IDEM days or even weeks after they happened.
“The first ammonia exceedances occurred on Aug. 11, the same day that the blast furnace lost power. But they didn’t notify IDEM until Aug. 15,” Hammons said. “Based on a past review of their violations and how quickly they’ve reported them, we have found instances where they did report the next day, and so that tells us that it’s likely that they knew about these and just didn’t report it. And we don’t think that’s right.”
Documents show that the ArcelorMittal Burns Harbor facility may have been violating its permit for longer than it reported.
According to reporting documents, IDEM instructed the ArcelorMittal Burns Harbor facility to go back and analyze any 24-hour water samples from the past that the company may have preserved. The company found that one sample from Aug. 5 that was sent out for analysis still survived. That sample showed ammonia daily mass and concentration was nearly double the permitted limit, even before the Aug. 11 spill.
The spill resulted in about 3,000 dead fish and closed down beaches and parts of the recently designated Indiana Dunes National Park.
IDEM told the Indiana Environmental Reporter that it is investigating the August incident.
“Upon completion of the investigation, the agencies will determine the appropriate enforcement actions to be taken. Until the investigation is complete, IDEM cannot provide more specific comment on future enforcement actions,” the agency said in an email statement.
The groups said IDEM inaction may be encouraging companies like ArcelorMittal to avoid fixing the cause of its permit violations.
They reviewed reports submitted by the facility going back as far as January 2015 and found more than 100 instances where the company self-reported violations.
The groups say IDEM and the EPA have not seriously pursued the facility’s violations.
“It’s important that there’s a response to water pollution events like this, either from the state or EPA. But when the two of them don’t act, then there needs to be a response from groups like ours,” said Indra Frank, director of environmental health and water policy at the Hoosier Environmental Council. “We only resort to litigation as a last resort, but if there’s no response then there’s no incentive for companies like ArcelorMittal to get out of this pattern of repeated pollution events.”
Under the Clean Water Act, citizens have the power to file a lawsuit on their own behalf against any person, the United States itself or any government organization or agency alleged to be in violation of waste water discharge restrictions known as effluent standards.
In order to sue, citizens must first give a 60-day notice to the alleged violator, the U.S EPA and the state in the alleged violations occurred. At that point, the agencies can intervene and possibly force action. If they don’t, the lawsuit can go forward.
The groups say they hope the notice of intent and the threat of a lawsuit encourage action.
“The ultimate outcome here is if we can figure out how to fix problems at the plant and prevent future violations. That will obviously benefit the people in the region that both live near it and also frequent the beaches and water for recreation and sport. The idea is that they can figure out what’s causing these problems and fix them so they don’t happen in the future,” said Hammons. “So, it’s time for the government to do its job. And if they don’t, we will.”