USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 1 of 34

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THE CITY OF CHICAGO,
Plaintiff,
v.
UNITED STATES STEEL
CORPORATION,
Defendant.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 2:18-cv-33
JURY TRIAL DEMANDED

COMPLAINT
The City of Chicago (“City”), by its Corporation Counsel, Edward N. Siskel, files this
Complaint under the Federal Water Pollution Control Act, commonly known as the Clean Water
Act (“CWA”), 33 U.S.C. §§ 1251 et seq., seeking relief against United States Steel Corporation
(“U.S. Steel”), and in support states as follows:
NATURE OF THE ACTION
1.

This action seeks to uphold the objective of CWA, to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
Specifically, the City aims to restore and maintain Lake Michigan, which U.S. Steel has harmed
and continues to harm through repeated and significant violations of its CWA permit limitations
and maintenance failures. These harmful and illegal acts include, but are not limited to, multiple
excessive discharges of toxic chemicals into the body of water that supplies the City’s two water
treatment plants, which serve as the source of drinking water for over 5 million people, over 40%
of the population of the State of Illinois. U.S. Steel has repeatedly evaded responsibility for
violating the CWA, and state and federal regulators have failed to enforce the law adequately.
The City seeks to hold U.S. Steel responsible for the injuries it has caused to Lake Michigan and

1

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 2 of 34

the adverse impacts upon the City’s interest in being able to provide drinking water to over 5
million people in Chicago and surrounding suburbs, uncontaminated by U.S. Steel’s illegal
discharges of pollutants into Lake Michigan. In addition, the City seeks to protect its crucial
interests in Lake Michigan, a vital economic engine for the City, a beloved source of recreation
and tourism for the City’s residents and guests, and the City’s aesthetic heart and soul.
2.

This is a civil action for injunctive relief and civil penalties, brought under

Section 505 of the CWA, 33 U.S.C. § 1365, against U.S. Steel for the discharge of pollutants in
violation of Section 301 of the CWA, 33 U.S.C. § 1311, and in violation of the National
Pollutant Discharge Elimination System (“NPDES”) permits issued to U.S. Steel pursuant to
Section 402 of the CWA, 33 U.S.C. § 1342. As a result, and as further alleged herein, U.S. Steel
has violated the terms and conditions of its NPDES permits and has violated Sections 301(a) and
402(a) of the CWA, 33 U.S.C. §§ 1311(a), 1342(a).
3.

The City seeks a declaratory judgment, injunctive relief, the imposition of civil

penalties, damages, and the award of costs, including attorney and expert witness fees.
THE PARTIES
4.

Plaintiff, the City is an Illinois municipal corporation and home rule unit of local

government organized and existing under Article VII of the Constitution of the State of Illinois
and the laws of Illinois, located in Cook County, Illinois.
5.

Defendant, U.S. Steel is a corporation registered in the state of Delaware with its

principal place of business in Pittsburgh, Pennsylvania.
JURISDICTION AND VENUE
6.

This Court has jurisdiction over the subject matter of this action pursuant to

Section 505(a) of the CWA, 33 U.S.C. § 1365(a)(1), and pursuant to federal question jurisdiction

2

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 3 of 34

under 28 U.S.C. § 1331. This Court also has supplemental jurisdiction under 28 U.S.C. §1367
with regard to the Sixth Claim For Relief (Negligence).
7.

The relief requested is authorized pursuant to Sections 309 and 505(a) of the

CWA, 33 U.S.C. §§ 1319 and 1365(a), and 28 U.S.C. §§ 2201 and 2202.
8.

In compliance with Section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A),

on November 20, 2017, the City gave notice of the violations specified in this Complaint and of
the City’s intent to file suit to U.S. Steel, the Administrator of the United States Environmental
Protection Agency (“USEPA”), the Regional Administrator of USEPA, the United States
Attorney General, the Indiana Department of Environmental Management (“IDEM”), and the
Attorney General for the State of Indiana. The City’s notice letter meets the requirements of 40
C.F.R. § 135.1 et seq. and provided U.S. Steel with notice of the CWA violations in this
Complaint. A copy of the City’s notice letter is attached hereto as Exhibit A.
9.

More than sixty days have passed since the City’s notice was served, and the

violations complained of in the notice letter are continuing at this time or are reasonably likely to
continue. U.S. Steel therefore remains in violation of its NPDES permit and the CWA.
10.

Venue is proper in this District pursuant to Section 505(c)(1) of the CWA, 33

U.S.C. § 1365(c)(1), and pursuant to 28 U.S.C. §§ 1391(b) and (c) and 1395(a), because the U.S.
Steel facility at issue is located in this District and the causes of the action alleged in this
Complaint arose in this District.
STATUTORY AND REGULATORY BACKGROUND
a. The CWA’s Citizen Suit Provisions
11.

The City and U.S. Steel are “persons” pursuant to Section 502 of the CWA, 33

U.S.C. § 1362(5), which defines “person” as “an individual, corporation, partnership,

3

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 4 of 34

association, State, municipality, commission, or political subdivision of a State, or any interstate
body.”
12.

The City is a “citizen” pursuant to Section 505 of the CWA, 33 U.S.C. §§ 1365(a)

and 1365(g), because it is a “person[] having an interest which is or may be adversely affected”
by U.S. Steel’s illegal discharges.
13.

U.S. Steel may be sued pursuant to Section 505 of the CWA, 33 U.S.C. § 1365(a),

which authorizes any citizen to “commence a civil action . . . against any person . . . who is
alleged to be in violation of an effluent standard or limitation.” “[T]he term ‘effluent standard or
limitation’” includes “a permit or condition thereof issued under section 1342 of this title.” 33
U.S.C. § 1365(f).
b. The CWA’s NPDES Program
14.

The purpose of the CWA is to “restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
15.

Section 101(a)(3) of the CWA prohibits “the discharge of toxic pollutants in toxic

amounts.” 33 U.S.C. § 1251(a)(3).
16.

Section 301 of the CWA, 33 U.S.C. § 1311(a), prohibits the “discharge of any

pollutant by any person” into navigable waters except in compliance with a NPDES permit
issued by the USEPA or an authorized state administrator pursuant to Section 402 of the CWA,
33 U.S.C. § 1342.
17.

At all times relevant to this Complaint, IDEM has been and continues to be

authorized by the USEPA to implement the NPDES permit program for discharges into
navigable waters within its jurisdiction pursuant to 40 C.F.R. § 123.1.

4

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 5 of 34

18.

Section 502 of the CWA defines “navigable waters” as “waters of the United

States.” 33 U.S.C. § 1362(7).
19.

Under Section 502 of the CWA, the term “discharge of a pollutant” includes “any

addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).
20.

Section 502 of the CWA defines “pollutant” as “dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6).
21.

Section 502 of the CWA defines “point source” as “any discernible, confined and

discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or
other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
22.

Section 402 of the CWA, 33 U.S.C. § 1342(a), provides that a permit-issuing

authority may “issue a [NPDES] permit for the discharge of any pollutant” into navigable waters
of the United States, but only in compliance with the applicable requirements of Section 301 of
the CWA, 33 U.S.C. § 1311, and such other conditions as the permit-issuing authority
determines are necessary to carry out the provisions of the CWA.
23.

NPDES permits establish “effluent limitations,” which are defined as “any

restriction established by a State or the Administrator on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents which are discharged from point sources
into navigable waters.” 33 U.S.C. § 1362(11).
24.

Section 308 of the CWA, 33 U.S.C. § 1318, requires NPDES permittees to

establish and maintain records; to install, use and maintain monitoring equipment; to sample

5

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 6 of 34

effluents; and to “make such reports” as required in the permit regarding permittees’ pollutant
discharges.
25.

Section 402(a)(2) of the CWA, 33 U.S.C. § 1342(a)(2), authorizes the

Administrator to “prescribe conditions for [NPDES] permits to assure compliance . . . including
conditions on data and information collection, reporting, and such other requirements as he
deems appropriate.”
26.

Failure to comply with any condition of a permit is a violation of Section 301 of

the CWA, 33 U.S.C. § 1311, and is actionable under Section 505 of the CWA, 33 U.S.C.
§ 1365(a)(1).
c. Judicial Relief in CWA Citizen Suits
27.

Section 505 of the CWA authorizes the district courts “to enforce such an effluent

standard or limitation . . . and to apply any appropriate civil penalties under section 1319(d)” in
suits filed by citizens pursuant to 33 U.S.C. § 1365(a).
28.

Section 309 of the CWA, 33 U.S.C. § 1319(d), provides that “any person” who

violates Section 301 of the CWA, 33 U.S.C. § 1311, or violates any permit condition or
limitation in an NPDES permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342,
“shall be subject to a civil penalty.”
29.

Each exceedance of a daily effluent limitation shall be treated as a distinct

violation, and each exceedance of a monthly average limit shall be treated as a violation for
every day in the month in which the violation occurred.
30.

Each separate violation of the CWA subjects the violator to a penalty of up to

$37,500 per day per violation for all violations occurring from January 12, 2009 through
November 2, 2015, and up to $52,414 per day for all violations that occurred after November 2,

6

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 7 of 34

2015, pursuant to Sections 309(d) and 505(a) of the CWA, 33 U.S.C. §§ 1319(d), 1365(a), and
40 C.F.R. §§ 19.1-19.4. See also 28 U.S.C. § 2461, 31 U.S.C. § 301.
31.

Under the citizen suit provision of the CWA, Section 505, the court may also

award “costs of litigation (including reasonable attorney and expert witness fees) to any
prevailing or substantially prevailing party.” 33 U.S.C. § 1365(d).
GENERAL ALLEGATIONS
32.

The City owns and operates two of the world’s largest conventional water

treatment plants with a combined capacity of 2,100 million gallons per day. These two plants,
operated by the City’s Department of Water Management (“DWM”), serve the City’s citizens,
schools, health care facilities, food establishments and other businesses, as well as 125
surrounding Illinois communities. In total, the City provides drinking water to over 5 million
people or over 40% of the population of Illinois.
33.

Lake Michigan is the sole source of the water, which DWM, in accordance with

state and federal drinking water laws and regulations, supplies for ultimate use and consumption
by its citizens and other customers through conventional water treatment processes and a
network of water mains and pipes consisting of approximately 4,400 miles in total.
34.

At all times relevant to this Complaint, U.S. Steel has owned and operated a steel

refinery known as the United States Steel Corporation, Gary Works – Midwest Plant at 6300
U.S. Highway 12, Portage, IN 46368 (“Midwest Plant”), which is located in Porter County.
35.

The Midwest Plant is located on Burns Waterway, a small industrial ditch, into

which the facility discharges both wastewater and stormwater, and which empties directly into
Lake Michigan. U.S. Steel is responsible for processing its wastewater in accordance with the
terms of its NPDES permit No. IN0000337.

7

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 8 of 34

36.

U.S. Steel discharges wastewater into Burns Waterway a few hundred feet from

where waters flowing from Burns Waterway enter Lake Michigan.
37.

U.S. Steel has repeatedly violated pollutant-discharge and maintenance provisions

in its permit during the past five years.
a. The April 2017 Illegal Discharge
38.

In April 2017, a broken pipe or pipes and a corroded collection trough or troughs

resulted in a spill, reported by U.S. Steel as consisting of approximately 350 pounds of total
chromium, of which nearly 300 pounds was carcinogenic hexavalent chromium.
39.

According to public reports, this spill began on April 10, 2017 and continued into

April 11, 2017. Under USEPA oversight, U.S. Steel collected water samples on April 11th that
showed levels of hexavalent chromium that were (i) hundreds of times greater than standards set
to be protective of human health in Burns Waterway and (ii) more than double those standards at
the point where Burns Waterway flows into Lake Michigan. Nonetheless, it appears that no
samples were collected in Lake Michigan itself until April 12, 2017.
40.

According to IDEM reports, U.S. Steel failed to notify any downstream users of

the waters affected by the April 2017 chromium spill.
41.

In response to U.S. Steel’s April 2017 chromium spill, numerous public beaches

were closed for several days, including the Portage Lakefront and the Indiana Dunes National
Lakeshore.
42.

Additionally, the public drinking water intake of Indiana American Water, serving

the City of Portage, ceased drawing Lake Michigan water and remained shut down for nearly a
week.

8

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 9 of 34

43.

On the afternoon of Tuesday April 11, 2017, the City received notification from

Illinois EPA of a hexavalent chromium spill into Lake Michigan from the U.S. Steel’s plant in
Portage, Indiana. Chromium and its components is a toxic pollutant under Section 307(a) of the
CWA, 33 U.S.C. § 1317(a). 40 C.F.R. § 401.15.
44.

Later that afternoon, DWM staff was mobilized for the purpose of implementing a

plan of action to assess the threat posed by U.S. Steel’s illegal discharge of hexavalent chromium
to the City’s Lake Michigan drinking water source and to DWM’s water intake cribs nearest to
the U.S. Steel plant in Portage, Indiana. The action plan called for: (i) every two hours sampling
of the Eugene Sawyer Water Purification Plant (“SWPP”) water intake crib, located
approximately 20 miles west north west of the point where the Burns Waterway enters Lake
Michigan, to identify any increase in hexavalent chromium levels at the crib; and (ii) initiation of
a hexavalent chromium sampling survey of Lake Michigan water in the area between the mouth
of the Burns Waterway and DWM’s SWPP crib in order to track the direction, speed, and size of
any advancing plume of hexavalent chromium contaminated water.
45.

Laboratory results from Lake Michigan water samples collected by the City on

April 12, 2017, showed that a plume of hexavalent chromium-contaminated water was migrating
in a westerly direction toward the SWPP intake crib at levels well in excess of residual values
normally recorded in the Lake by DWM.
46.

Laboratory results from water samples collected by the City on April 13, 2017,

showed that the plume of hexavalent chromium-contaminated water was continuing to migrate
further west, advancing toward the SWPP intake crib at levels still well in excess of residual
values normally recorded in the Lake by DWM.

9

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 10 of 34

47.

Laboratory results from water samples collected by the City on April 14, 2017,

showed that a plume of hexavalent chromium-contaminated water was still continuing to migrate
further northwest toward the SWPP intake crib. While levels of hexavalent chromium were
lower than the levels from the previous days’ sampling, levels were still well in excess of
residual values normally recorded in the Lake by DWM.
48.

On or around April 15, 2017, the fifth day after U.S. Steel’s illegal discharge of

hexavalent chromium into Lake Michigan, laboratory results from water samples collected on
April 15, 2017 revealed that hexavalent chromium levels had dissipated to residual levels.
49.

The costs incurred by the City to sample, analyze, and monitor the potential

adverse effects and threat posed by U.S. Steel’s illegal hexavalent chromium discharge of April
10 – 11, 2017 were well in excess of $75,000.
50.

Prior to U.S. Steel’s April 2017 illegal discharge of chromium, it had violated the

chromium discharge limits set in its NPDES permit on at least two separate occasions in the
preceding five years, including in January 2017.
b. The October 2017 Illegal Discharge
51.

Sometime in October, 2017, on a date best known by U.S. Steel, U.S. Steel again

illegally discharged an excessive amount of chromium. Despite a third-party contractor working
for U.S. Steel observing a blue discharge with visible solids, U.S. Steel did not test to see how
much of the total chromium discharged was comprised of the more toxic hexavalent chromium.
52.

U.S. Steel did not notify anyone who might or actually did use Lake Michigan for

recreation, drinking water, or other purposes of its October 2017 illegal chromium discharge.
Instead, U.S. Steel notified only IDEM, and the company’s written report requested that IDEM
treat as confidential the information about the October 2017 discharge.

10

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 11 of 34

53.

IDEM did not conduct an accident inspection related to the October 2017 incident

until approximately three weeks later, on November 16.
54.

According to public reports, neither U.S. Steel nor IDEM officials notified

USEPA of the October exceedance. The Chicago Tribune reported that USEPA only learned of
the October 2017 incident when a Tribune reporter requested USEPA’s comment for an article
on U.S. Steel’s persistent CWA violations.
55.

In October, 2017, the City learned from after-the-fact newspaper accounts of this

additional illegal chromium discharge into Lake Michigan by US Steel’s Midwest Plant. Unlike
the illegal discharge of chromium in April, 2017, the City did not receive any notification from
U.S. Steel or any regulatory agency concerning the unlawful October chromium discharge.
56.

U.S. Steel’s failure to report the spill and its failure to notify the public and the

City prevented the City from initiating the timely surveillance actions necessary to assess the
potential threat posed to the City’s drinking water supply by a hazardous chemical and known
human carcinogen. U.S. Steel’s failure to notify the City of its unlawful chromium discharges
poses an unreasonable and unacceptable threat to the City’s drinking water source for over 5
million people.
57.

The City is concerned by the threat to its public drinking source posed by U.S.

Steel’s illegal discharges. Specifically, U.S. Steel’s unlawful discharges of chromium and other
pollutants harm water quality in Lake Michigan in the vicinity where the City obtains water for
drinking water purposes.

U.S. Steel’s unlawful discharges have directly and adversely

threatened and adversely affected, and continue to threaten and adversely affect, the City’s
ability to provide safe drinking water to its over 5 million citizens and suburban water
purchasers.

11

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 12 of 34

58.

In addition, the City has a vital interest in maintaining the quality of Lake

Michigan for purposes other than drinking water. Hotels and Navy Pier depend on the aesthetic
quality of the Lake for guests, tourists, and conventioneers. The City also receives revenues
from, among other things, fishing, boating, hotels, restaurants, convention business, beachgoers,
all of which would be adversely impacted by illegal discharges into the Lake.
59.

The City also has an interest in when and how the City and the public receive

notice of U.S. Steel’s illegal discharges. Receiving early and timely notification is imperative to
the City’s ability to take effective actions to avoid having the City’s water intake and distribution
system contaminated by U.S. Steel’s illegal discharges and to protect public health. U.S. Steel’s
failure to provide the City with timely notification of U.S. Steel’s illegal discharges and other
violations alleged herein pose an unacceptable and continuing risk of harm to the City’s ability to
provide safe drinking water to its over 5 million citizens and suburban water purchasers.
60.

The adverse effects and threats to the City’s use of Lake Michigan as a source of

public drinking water for over 5 million people as alleged herein are directly traceable to the
failures of U.S. Steel to comply with the terms of its NPDES permit.
61.

The relief requested herein from the Court would serve to restore and maintain the

chemical, physical, and biological integrity of Lake Michigan redress the threat to the interests of
City in being able utilize the Lake as a source of drinking water for millions of people without
being adversely affected by the illegal discharges of U.S. Steel.. The Court should enjoin U.S.
Steel from further discharges in violation of law, and require U.S. Steel to expeditiously take all
actions necessary to control its illegal discharges. In addition, the Court should impose a
significant monetary penalty to ensure that U.S. Steel enjoys no economic benefit from the
practices that led to these repeated violations and to serve as a meaningful deterrent for a

12

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 13 of 34

company as large as U.S. Steel. Thereby, U.S. Steel would control its discharges of chromium
and other pollutants as required by law, improving the quality of the water used by the City, and
addressing concerns about protecting the quality of Lake Michigan water used by the City to
provide drinking water to over 5 million people.
VIOLATIONS OF QUANTITATIVE PERMIT LIMITS
62.

NPDES Permit No. IN0000337 places limits on the quantity and concentration of

pollutants that U.S. Steel is legally permitted to discharge into Burns Waterway through Outfalls
004, 204, 304, and 500 by setting effluent limitations for Total Recoverable Chromium,
Hexavalent Chromium, Whole Effluent Toxicity, Oil and Grease, and Temperature, as well as
other pollutants.
63.

One version of NPDES Permit No. IN0000337 was in effect from March 1, 2011

to February 28, 2016 (“2011 permit”). U.S. Steel renewed NPDES permit No. IN0000337 in
2016, which came into effect on April 1, 2016 and will remain in effect until March 31, 2021
(“2016 permit”). The 2011 permit is attached hereto as Exhibit B. The 2016 permit is attached
hereto as Exhibit C. At all times relevant to this Complaint, U.S. Steel’s NPDES permit No.
IN0000337 remained in effect, and the effluent limitations for the pollutants listed in ¶ 97
remained unchanged.
64.

NPDES Permit No. IN0000337 describes Outfalls 004, 204, 304, and 500 at the

U.S. Steel Midwest Plant, each of which are “point source[s]” within the meaning of Section 502
of the CWA, 33 U.S.C. § 1362(14). These outfalls are “point source[s]” within the meaning of
Section 502 of the CWA because they are pipes from which pollutants are discharged into Burns
Waterway.

13

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 14 of 34

65.

Pursuant to Part I.C.2 of NPDES permit No. IN0000337, U.S. Steel is required to

“submit federal and state discharge monitoring reports to the Indiana Department of
Environmental Management containing results obtained during the previous month . . . no later
than the 28th day of the month following each completed monitoring period.”
66.

Pursuant to Part II.C.6.c of NPDES permit No. IN0000337, U.S. Steel is required

to certify upon signing the monthly reports that the information is “to the best of [the signer’s]
knowledge and belief, true, accurate, and complete.”
67.

U.S. Steel’s monthly Discharge Monitoring Reports (“DMRs”) report chronic and

frequent violations of NPDES permit No. IN0000337. According to DMRs that U.S. Steel filed
within the five-year statute of limitations period for CWA claims, and pursuant to USEPA
guidance on civil penalties, U.S. Steel has a total of ninety violations of its effluent limitations
for Total Recoverable Chromium, Hexavalent Chromium, Whole Effluent Toxicity, Oil and
Grease, and Temperature.
68.

Specifically, U.S. Steel self-reported violations of the following pollutants within

the five-year statute-of-limitations period:
TOTAL RECOVERABLE CHROMIUM
69.

Chromium is a “pollutant” as defined by Section 502 of the CWA, 33 U.S.C.

§ 1362(6).
70.

Total chromium includes both trivalent and hexavalent forms of chromium

because it can convert between forms under different conditions. Hexavalent chromium, also
known as chromium-6, has been linked to cancer in studies.
71.

Both the 2011 permit and the 2016 permit contain a daily maximum quantity limit

of 30 pounds per day of total recoverable chromium discharged from Outfall 304. The 2016

14

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 15 of 34

permit imposes a monthly average rate of 10 pounds per day of total recoverable chromium
discharged from Outfall 304.
72.

According to U.S. Steel’s DMRs, U.S. Steel exceeded its (i) daily maximum

quantity limit for total recoverable chromium four times within the five-year statute of
limitations period and (ii) the monthly average rate for total recoverable chromium one time
within the five-year statute of limitations period, for a total of thirty-four days of violation.
HEXAVALENT CHROMIUM
73.

Hexavalent chromium is a “pollutant” as defined by Section 502 of the CWA, 33

U.S.C. § 1362(6).
74.
75.

Both the 2011 permit and the 2016 permit contain a daily maximum quantity limit

of 0.51 pounds per day of hexavalent chromium discharged from Outfall 304. The 2016 permit
imposes a monthly average rate of 0.17 pounds per day of hexavalent chromium discharged from
Outfall 304.
76.

According to U.S. Steel’s DMRs, U.S. Steel exceeded (i) its daily maximum

quantity limit for hexavalent chromium three times within the five-year statute of limitations
period and (ii) the monthly average rate for hexavalent chromium one time within the five-year
statute of limitations period, for a total of thirty-three days of violation.
WHOLE EFFLUENT TOXICITY
77.

Both the 2011 permit and the 2016 permit require U.S. Steel to conduct quarterly

bioassay tests on model organisms to monitor the toxicity of the discharge from Outfall 004. If
the effluent exceeds 1.5 chronic toxicity units (TUc) during the tests on Ceriodaphnia dubia, this
is considered to demonstrate chronic toxicity and constitutes a failure of the toxicity test.

15

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 16 of 34

78.

Section 101(a)(3) of the CWA prohibits the discharge of “toxic pollutants in toxic

amounts.” 33 U.S.C. § 1251(a)(3).
79.

According to U.S. Steel’s DMRs, U.S. Steel failed the quarterly toxicity test on C.

dubia three times during the five-year statute of limitations period for a total of three violations.
TEMPERATURE
80.

Heat is a “pollutant” as defined by Section 502 of the CWA, 33 U.S.C. § 1362(6).

81.

USEPA’s Analysis and Control of Thermal Pollution Training Manual states that

even “temperatures which are not lethal to fish or shellfish may affect metabolism, reproduction
and growth, as well as reduce important food organisms, thereby inducing a change in the
balance of the entire system.”
82.

All temperature limits are for Outfall 500, which measures the “combined effect

of the [thermal] effluent from Outfalls 002, 003 and 004.” Both the 2011 permit and the 2016
permit mandate that “there shall be no rise in the temperature of the Portage-Burns Waterway of
greater than 2 F, as determined from upstream temperature and downstream temperature at the
edge of the mixing zone.” The 2016 permit defines the “mixing zone” as “the area of PortageBurns Waterway extending laterally from Outfall 002 to one-half the width of Portage-Burns
Waterway and to a distance of 300 feet downstream of Outfall 004.”
83.

Both the 2011 permit and the 2016 permit mandate that during the months of

December through March, the downstream temperature at the edge of the mixing zone may not
exceed the maximum limit for the month by more than 3 F at any time. The relevant monthly
maximums are: 57 F in December, 50 F in January, 50 F in February, and 60 F in March.
84.

During the months of April through November, the downstream temperature may

not exceed the limit for each month (subject to the below exceptions).

16

For April, May,

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 17 of 34

September, October, and November, the limit for each month is 65 F; for June, July, and August,
the limit for each month is 70 F.
85.

The 2011 permit allows an exception to the above April-through-November limits

when the upstream temperature equals or exceeds the maximum limitation for that day. The
2016 permit allows an exception to the above April-through-November limits when “the
upstream temperature is within 2 F of the maximum limitation for that day.” This exception in
the 2016 permit allows for downstream temperatures to exceed the limit for the month so long as
the downstream temperature is within 2 F of the maximum limit for that day.
86.

According to U.S. Steel’s DMRs, U.S. Steel exceeded the applicable daily-

maximum downstream-temperature limit for Outfall 500 sixteen times, when no exception
applied, within the five-year statute-of-limitations period. It also exceeded the daily-maximum
receiving-water temperature-difference limit for Outfall 500 three times within the five-year
statute-of-limitations period. Thus U.S. Steel had a total of nineteen temperature violations
within the five-year statute-of-limitations period.
OIL AND GREASE
87.

Oil and grease are “pollutants” as defined by Section 502 of the CWA, 33 U.S.C.

§ 1362(6).
88.

The USEPA website states that petroleum and non-petroleum oils can “cause

devastating physical effects, such as coating animals and plants with oil and suffocating them by
oxygen depletion; be toxic and form toxic products; destroy future and existing food supplies,
breeding animals, and habitats; produce rancid odors; foul shorelines, clog water treatment
plants, and catch fire when ignition sources are present; and form products that linger in the
environment for many years.”

17

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 18 of 34

89.

Both the 2011 permit and the 2016 permit contain a daily maximum-quantity limit

of 765 pounds per day of oil and grease discharged from Outfall 304.
90.

According to U.S. Steel’s DMRs, U.S. Steel exceeded its daily maximum-

quantity limit for oil and grease one time within the five-year statute-of-limitations period for a
total of one violation.
TABLE OF QUANTITATIVE LIMIT VIOLATIONS
91.

Each row of the following table sets forth an individual violation by U.S. Steel of

a numeric permit violation, by describing the discharge type, violation date(s), outfall, measured
value, allowance type, and relevant permit allowance.
Discharge
Type
Chromium,
Total
Recoverable
Whole
Effluent
Toxicity,
Chronic – C.
dubia
Temperature,
Downstream
Temperature,
Downstream
Temperature,
Downstream
Whole
Effluent
Toxicity,
Chronic – C.
dubia
Whole
Effluent
Toxicity,
Chronic – C.
dubia
Temperature,
Downstream

Date(s) of Violation

Outfall

Type of
Allowance
Daily
maximum

Permit
Allowance
30 lbs/day

004

Measured
Value
36.17 pounds
per day
(lbs/day)
2.0 TUc

02/03/2013

304A

Week of 08/04/2013

Quarterly
maximum

1.5 TUc
(100/IC25)

05/26/2014

500A

65.66 F

65 F

05/27/2014

500A

65.37 F

05/29/2014

500A

66.25 F

Week of 06/08/2014

004

2.9 TUc
(100/NOEC)
/ 2.3 TUc
(100/IC25)

Daily
maximum
Daily
maximum
Daily
maximum
Quarterly
maximum

Week of 06/22/2014

004

2.9 TUc
(100/NOEC)
/ 1.6 TUc
(100/IC25)

Quarterly
maximum

1.5 TUc
(100/NOEC) /
1.5 TUc
(100/IC25)

06/02/2014

500A

71.11 F

Daily
maximum

70 F

18

65 F
65 F
1.5 TUc
(100/NOEC) /
1.5 TUc
(100/IC25)

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 19 of 34

Discharge
Type
Temperature,
Downstream
Temperature,
Downstream
Temperature
Difference
Receiving
Water
Temperature,
Downstream
Oil & Grease
Temperature,
Downstream
Temperature,
Downstream
Temperature,
Downstream
Temperature,
Downstream
Temperature,
Downstream
Temperature,
Downstream
Temperature
Difference
Receiving
Water
Temperature
Difference
Receiving
Water
Chromium,
Hexavalent
Temperature,
Downstream
Temperature,
Downstream
Temperature,
Downstream
Chromium,
Total
Recoverable
Chromium,

Date(s) of Violation

Outfall

06/03/2014

500A

Measured
Value
70.64 F

Type of
Allowance
Daily
maximum
Daily
maximum
Daily rise

Permit
Allowance
70 F

09/15/2014

500A

66.65 F

10/01/2014

500A

7.55 F

10/02/2014

500A

66.73 F

65 F

2.1 F

Daily
maximum
Daily
maximum
Daily
maximum
Daily
maximum
Daily
maximum
Daily
maximum
Daily
maximum
Daily
maximum
Daily rise

03/19/2015

304A

848 lbs/day

10/07/2015

500A

65.6 F

10/08/2015

500A

65.6 F

10/09/2015

500A

65.1 F

10/10/2015

500A

65.4 F

10/22/2015

500A

65.7 F

10/23/2015

500A

65.5 F

09/07/2016

500A

11/02/2016

500A

2.1 F

Daily rise

2 F

01/12/2017

304A

2.371 lbs/day

0.51 lbs/day

02/26/2017

500A

53.35 F

02/27/2017

500A

53.93 F

02/28/2017

500A

54.54 F

04/10/2017

304A

138.8 lbs/day

Daily
maximum
Daily
maximum
Daily
maximum
Daily
maximum
Daily
maximum

04/11/2017

304A

204.0 lbs/day

Daily

30 lbs/day

19

65 F
2 F

765 lbs/day
65 F
65 F
65 F
65 F
65 F
65 F
2 F

50 F
50 F
50 F
30 lbs/day

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 20 of 34

Discharge
Type
Total
Recoverable
Chromium,
Total
Recoverable
Chromium,
Hexavalent
Chromium,
Hexavalent
Chromium,
Hexavalent

Date(s) of Violation

Outfall

Measured
Value

Type of
Allowance
maximum

Permit
Allowance

April 2017

304A

13.97 lbs/day

10 lbs/day

04/11/2017

304A

902.8 lbs/day

04/12/2017

304A

1.782 lbs/day

April 2017

304A

50.26 lbs/day

Chromium,
Total
Recoverable

10/25/2017

304A

56.7 lbs/day

Monthly
average
maximum
Daily
maximum
Daily
maximum
Monthly
average
maximum
Daily
Maximum

92.

0.51 lbs/day
0.51 lbs/day
0.17 lbs/day
30 lbs/day

The February 3, 2013 Total Recoverable Chromium violation reflects the amount

reported by U.S. Steel in the narrative cover letter it appended to its DMR submission. The
DMR data that U.S. Steel reported for this day was 34.37 lbs/day, which would also violate the
relevant permit limit.
93.

The April 11, 2017 Hexavalent Chromium figure was submitted by U.S. Steel in

its April 2017 DMR. U.S. Steel staff attested to the accuracy of this figure in certifying its
submission. Nonetheless, U.S. Steel stated in a footnote that this figure represented “an absurd
result” of the mathematical formula required by the permit. According to other reports U.S.
Steel submitted to IDEM, during April 11 and 12, 2017, the facility released a total of
approximately 346 pounds of total chromium, approximately 298 pounds of which was
hexavalent chromium.
NARRATIVE WATER QUALITY PERMIT CONDITION VIOLATIONS
94.

Pursuant to Part I.B. in both the 2011 permit and the 2016 permit, U.S. Steel is

required to follow certain “Narrative Water Quality Standards.” These standards mandate that

20

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 21 of 34

the Midwest Plant’s “[d]ischarge . . . shall not cause receiving waters, including the mixing zone,
to contain substances, materials, floating debris, oil, scum or other pollutants . . . that are in
amounts sufficient to be unsightly or deleterious . . . [or] that produce color, visible oil sheen,
odor, or other conditions in such degree as to create a nuisance.” The discharge must also not be
“in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, or
other animals, plants, or humans.” Outside the mixing zone, the discharge must not contain
“substances in concentrations which . . . are believed to be sufficient to injure, be chronically
toxic to, or be carcinogenic, mutagenic, or teratogenic to humans, animals, aquatic life, or
plants.”
95.

Upon information and belief, U.S. Steel has violated the Narrative Water Quality

Standards in its permit. On the morning of April 11, 2017, U.S. Steel reported a bluish-green
color in the effluent from Outfall 004.
96.

Additionally, as reported in the relevant monthly DMRs and other reports made

by U.S. Steel to IDEM, effluent discoloration was also observed one time in December 2013 and
two times in April 2016. In all three cases prior to the April 2017 chromium incident, U.S. Steel
reported white or cloudy discoloration observed at Outfall 004, and in all three cases, IDEM
noted these events as violations.
97.

Upon information and belief, the April 2017 discharge of hexavalent chromium

also constitutes a violation of the permit condition forbidding water “outside the mixing zone, to
contain substances in concentrations which on the basis of available scientific data are believed
to be sufficient to injure, be chronically toxic to, or be carcinogenic, mutagenic, or teratogenic to
humans, animals, aquatic life, or plants.” The USEPA’s Final Removal Report for this incident

21

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 22 of 34

describes observed concentrations of hexavalent chromium outside of the mixing zone as
potentially harmful to human health.
VIOLATIONS OF PERMIT CONDITIONS REQUIRING PROPER MAINTENANCE
AND APPROPRIATE RESPONSES TO DISCHARGE VIOLATIONS
98.

Pursuant to the 2016 permit, U.S. Steel “shall at all times maintain in good

working order and efficiently operate all facilities and systems . . . for the collection and
treatment which are installed or used by the permittee and which are necessary for achieving
compliance with the terms and conditions of this permit.”
99.

Based on publicly available data, U.S. Steel failed to meet maintenance

obligations required by the permit. Photographs taken immediately after the April 2017 spill
show extensive corrosion that allowed for the unpermitted discharge of chromium into Burns
Waterway.
100.

The IDEM inspection report following the April 2017 incident rated the facility’s

“Operations and Maintenance” as “unsatisfactory” because of the equipment failure that led to
the re-routing of toxic wastewater. Additionally, IDEM’s post-incident inspection rated “flow
measurement” as “marginal” due to potential obstructions in the channels of two of the facility’s
outfalls.
101.

In February 2013, U.S. Steel attributed its excessive chromium discharge to

control malfunctioning.
102.

In March 2015, the Midwest Plant exceeded its permitted levels of oil and grease

discharge because a loss of oil-processing capabilities led, according to U.S. Steel’s report, to
“accumulation” of oil “during the week prior” that was either not detected or inadequately
addressed.

22

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 23 of 34

103.

In two separate but related incidents in April 2016, leaking oil was not properly

contained and mingled with non-contact cooling water, leading to the discharge of untreated oilcontaminated water.
104.

In October 2017, U.S. Steel discharged almost twice as much total chromium as

its permit allows. According to U.S. Steel’s report, a technician reported that a daily 24-hour
composite sample for Outfall 204 was “discolored.” Subsequent investigation revealed that flow
through a lamella clarifier was not uniform “due to heavier solids buildup on one side of the
lamella, and as a result there was excessive solids carryover.”
105.

According to IDEM, the technician discovered the October 2017 total chromium

violation when, in the course of conducting routine sampling at Outfall 204, the technician
observed that the discharge was “blue with visible solids.”
106.

Pursuant to the 2016 permit, in the event of an unauthorized release or discharge,

including any spill, leak or discharge of non-stormwater not authorized by the permit, U.S. Steel
must “take all reasonable steps to minimize or correct any adverse impact to the environment
resulting from noncompliance with [the] permit,” including by conducting accelerated or
additional monitoring to determine the nature and impact of the noncompliance.
107.

According to IDEM, U.S. Steel failed to take reasonable steps to minimize or

correct the October 2017 illegal total chromium discharge because U.S. Steel failed to perform
monitoring necessary to determine how much of that illegal discharge was comprised of
hexavalent chromium. IDEM described such monitoring as necessary because the discharge was
“blue with visible solids.”

23

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 24 of 34

108.

These documented maintenance failures indicate a pervasive and persistent failure

by U.S. Steel to maintain the Midwest Plant in good working order as necessary to comply with
the limitations and conditions of its NPDES permit.
109.

Upon information and belief, U.S. Steel’s failure in performing its maintenance

responsibilities at the Midwest Plant are not limited to the single days on which the above
consequences of such failures were observed. These observed and reported incidents indicate
that U.S. Steel continues not to maintain properly the Midwest Plant.
REPORTING AND MONITORING VIOLATIONS
110.

Both the 2011 permit and the 2016 permit contain conditions that impose various

reporting and monitoring obligations upon U.S. Steel.
111.

Pursuant to Part III.A.8 of both the 2011 permit and the 2016 permit, U.S. Steel is

required to list the calculated temperature difference between the daily maximum upstream and
daily maximum downstream temperature.
112.

Pursuant to Special Condition [5] to Parts I.A.4–5 of the 2016 permit, U.S. Steel

is required to submit a certification statement in lieu of quarterly monitoring for Total Toxic
Organics.
113.

Pursuant to Part I.A.7 of the 2011 permit, U.S. Steel is required to conduct

quarterly monitoring of stormwater runoff from Outfalls 001, 102, and 103.

Per Special

Condition [3], U.S. Steel is allowed to conduct the sampling during any month in the quarter, but
“the result from this reporting timeframe shall be reported on the [quarterly final month] DMR,
regardless of which of the months within the quarter the sample was taken.”

24

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 25 of 34

114.

Pursuant to Parts I.A.4–5 of the 2016 permit, U.S. Steel is required to monitor the

pollutants Total Cyanide, Total Recoverable Zinc, Total Recoverable Chromium, Total
Suspended Solids, and Oil & Grease five times per week for Outfalls 204 and 304.
115.

Each row in the following table represents an individual violation by U.S. Steel of

a reporting or monitoring requirement in the 2011 permit or the 2016 permit, by setting forth the
discharge type, date(s) of violation, outfall, description of the violation, and the type of violation:
Discharge
Type

Date(s) of
Violation
December
2012
June 2013

Outfall

Temperature

10/01/2014

500A

Temperature

01/06/2016

500A

Temperature

01/07/2016

500A

Temperature

01/09/2016

500A

Temperature

01/10/2016

500A

Temperature

01/15/2016

500A

Temperature

01/16/2016

500A

Temperature

01/20/2016

500A

Temperature

01/21/2016

500A

Temperature

01/22/2016

500A

Temperature

04/23/2016

500A

Temperature

04/24/2016

500A

Temperature

06/07/2016

500A

Description of Violation

Type of Violation

No quarterly testing was
conducted in this month
Required quarterly testing data
missing
7.55 F temperature difference
reported as a 2 F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference

Not conducted as
required
Not reported as required

25

Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 26 of 34

Discharge
Type
Temperature

Date(s) of
Violation
06/09/2016

Outfall

Description of Violation

Type of Violation

500A

Temperature

06/22/2016

500A

Temperature

06/26/2016

500A

Temperature

06/28/2016

500A

Temperature

08/19/16

500A

Temperature

08/20/16

500A

Temperature

08/21/16

500A

Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference
Incorrectly calculated
temperature difference

Total Toxic
Organics
Total
Suspended
Solids, Oil &
Grease,
Cyanide,
Zinc, and
Chromium

October
2016
December,
2016

204A,
304A

2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
2 F difference reported as 1
F difference
Missing Total Toxic Organic
Certification
Inadequate monitoring
frequency (should be 5/week)

116.

* Note: This constitutes ten
independent monitoring
violations as each pollutant
must be monitored at each
outfall.

5 days in a row without
tests (6 days in a row
without a test for
cyanide)

Every instance in which U.S. Steel violated its obligation to report accurately the

temperature difference involved U.S. Steel under-reporting the temperature difference, including
one time in which it reported a 7.55 F temperature difference as a 2 F difference.
STORMWATER ROUTING VIOLATIONS
117.

Pursuant to the 2016 permit, certain stormwater management practices that the

2011 permit authorized are currently disallowed. Specifically, the 2016 permit no longer allows
Outfall 004 to discharge stormwater runoff, whereas the 2011 permit allowed for stormwater
discharges to be routed through Outfall 004.

26

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 27 of 34

118.

The fact sheet attached to the 2016 permit indicates that Outfall 004 continues to

handle stormwater runoff from over twenty-five acres of industrial property. If the Midwest
Plant is continuing to route stormwater through Outfall 004, then U.S. Steel has been committing
ongoing permit violations every day—or at least every rainy day on which it has discharged
stormwater—since the issuance of the 2016 permit.
119.

In sum, the allegations in this Complaint are based on publicly available

information. Additional information, including information in U.S. Steel’s possession, may
reveal additional violations, and the City expressly reserves the right to amend this Complaint to
reflect, or to otherwise introduce evidence of, any additional violations discovered hereafter
through discovery in this litigation or otherwise.
FIRST CLAIM FOR RELIEF
Pollutant Discharges in Violation of the Permit and the CWA
120.

Paragraphs 1 through 119 are realleged and incorporated herein by reference.

121.

At all times relevant to this Complaint, U.S. Steel has discharged and continues to

“discharge” “pollutants” within the meaning of Section 502 of the CWA, 33 U.S.C. § 1362, into
Burns Waterway.
122.

U.S. Steel’s pollutant discharges are discharges from a “point source” into

“navigable waters” of the United States within the meaning of Section 502 of the CWA, 33
U.S.C. § 1362.
123.

Burns Waterway and Lake Michigan are “navigable waters” within the meaning

of Section 502(7) of the CWA, 33 U.S.C. § 1362(7).
124.

Between November 13, 2012 and November 13, 2017, U.S. Steel self-reported

ninety violations of the effluent limitations contained in its permit. These ninety violations

27

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 28 of 34

included excessive discharges of Total Recoverable Chromium, Hexavalent Chromium, Oil &
Grease, and Temperature and violations of Whole Effluent Toxicity standards.
125.

Each of U.S. Steel’s ninety permit violations constitutes a violation of Section 301

of the CWA, 33 U.S.C. § 1311, and is actionable under Section 505 of the CWA, 33 U.S.C.
§ 1365(a)(1).
126.

Based on U.S. Steel’s ongoing violations of its permit, U.S. Steel will continue to

discharge in violation of Section 301 of the CWA, 33 U.S.C. § 1311, unless enjoined by this
Court.
127.

Pursuant to Sections 309 and 505 of the CWA, 33 U.S.C. §§ 1319 and 1365, and

40 C.F.R. §§ 19.1-19.4, U.S. Steel is liable for injunctive relief and civil penalties of up to
$37,500 per day for each of the nineteen violations occurring from January 12, 2009 through
November 2, 2015 and $52,414 per day for each of the seventy-one violations occurring after
November 2, 2015. 33 U.S.C. §§ 1311, 1365; 40 C.F.R. §§ 19.1-19.4.
SECOND CLAIM FOR RELIEF
Violations of Narrative Water Quality Standards in the Permit and the CWA
128.

Paragraphs 1 through 127 are realleged and incorporated herein by reference.

129.

Part I.B in both the 2011 permit and the 2016 permit prohibit U.S. Steel from

violating certain “Narrative Water Quality Standards.”
130.

U.S. Steel has violated the Narrative Water Quality Standards in its permit on at

least four occasions according to U.S. Steel’s DMRs for the months covering April 2017,
December 2013, and April 2016 (describing two violations).

28

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 29 of 34

131.

Each of U.S. Steel’s four narrative water quality violations constitutes a violation

of a condition or limitation of NPDES permit No. IN0000337 and Section 301 of the CWA, 33
U.S.C. § 1311, and is actionable under Section 505 of the CWA, 33 U.S.C. § 1365(a)(1).
132.

Pursuant to Sections 309 and 505 of the CWA, 33 U.S.C. §§ 1319 and 1365, and

40 C.F.R. §§ 19.1-19.4, U.S. Steel is liable for injunctive relief and civil penalties of up to
$37,500 per day for the violation that occurred between January 12, 2009 and November 2, 2015
and $52,414 per day for each of the three violations occurring after November 2, 2015. 33 U.S.C.
§§ 1311, 1365; 40 C.F.R. §§ 19.1-19.4.
THIRD CLAIM FOR RELIEF
Failures to Maintain Equipment or to Respond as Required to Permit Violations in
Violation of the CWA
133.

Paragraphs 1 through 132 are realleged and incorporated herein by reference.

134.

Pursuant to the 2016 permit, U.S. Steel “shall at all times maintain in good

working order and efficiently operate all facilities and systems . . . for the collection and
treatment which are installed or used by the permittee and which are necessary for achieving
compliance with the terms and conditions of this permit.”
135.

As described above, on at least six occasions, U.S. Steel failed to maintain

properly the Midwest Plant to such a degree as to lead directly to violations of other permit
limitations or conditions.
136.

Pursuant to the 2016 permit, in the event of an unauthorized release or discharge,

including any spill, leak or discharge of non-stormwater not authorized by the permit, U.S. Steel
must “take all reasonable steps to minimize or correct any adverse impact to the environment
resulting from noncompliance with the permit,” including by conducting accelerated or
additional monitoring to determine the nature and impact of the noncompliance.

29

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 30 of 34

137.

As described herein, U.S. Steel failed to minimize the adverse impact of its

October 2017 illegal chromium discharge by failing to perform appropriate additional
monitoring for hexavalent chromium.
138.

Each of U.S. Steel’s six observed maintenance violations, as well as its additional

failure to minimize the adverse impacts of its October 2017 total chromium violation, constitutes
a violation of a condition or limitation of NPDES permit No. IN0000337 and Section 301 of the
CWA, 33 U.S.C. § 1311, and is actionable under Section 505 of the CWA, 33 U.S.C.
§ 1365(a)(1).
139.

Because U.S. Steel must meet the maintenance obligations in NPDES permit No.

IN0000337 at all times, U.S. Steel has been in violation of maintenance requirements
continuously for the entire time period relevant to this Complaint, punctuated by the incidents
alleged herein to have been caused by such ongoing maintenance failure.
140.

Pursuant to Sections 309 and 505 of the CWA, 33 U.S.C. §§ 1319 and 1365, and

40 C.F.R. §§ 19.1-19.4, U.S. Steel is liable for injunctive relief and civil penalties of up to
$37,500 per day for each violation occurring from January 12, 2009 through November 2, 2015
and $52,414 per day for each violation occurring after November 2, 2015. 33 U.S.C. §§ 1311,
1365; 40 C.F.R. §§ 19.1-19.4.
FOURTH CLAIM FOR RELIEF
Failure to Report or Monitor in Violation of the Permit and the CWA
141.

Paragraphs 1 through 140 are realleged and incorporated herein by reference.

142.

According to U.S. Steel’s DMRs, U.S. Steel incorrectly calculated the difference

between daily maximum downstream and daily maximum upstream temperatures, which is

30

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 31 of 34

required to be accurately reported under Part III.A.8 of both the 2011 permit and the 2016
permit, twenty times during the five-year statute of limitations period.
143.

According to U.S. Steel’s DMRs, U.S. Steel failed to attach the certification

statement for 2016 Q3 (July-September), which is required to be submitted under Special
Condition [5] to Parts I.A.4-5 of the 2016 permit, which constitutes a permit violation during the
five-year statute of limitations period.
144.

According to U.S. Steel’s DMRs, U.S. Steel failed to report the quarterly

monitoring results in the final month of 2012 Q4 (December) and 2013 Q2 (June), as required by
Part I.A.7 of the 2011 permit, which constitutes two permit violations during the five-year statute
of limitations period.
145.

According to U.S. Steel’s DMRs, U.S. Steel did not monitor for the pollutants

Total Cyanide, Total Recoverable Zinc, Total Recoverable Chromium, Total Suspended Solids,
and Oil & Grease for at least five consecutive days at Outfalls 204 and 304 in December 2016,
making it impossible to comply with the five times per week monitoring requirement under Parts
I.A.4-5 of the 2016 permit. This monitoring failure constitutes ten total permit violations—one
for each pollutant at each Outfall.
146.

Each of U.S. Steel’s thirty-three monitoring or reporting violations constitutes a

violation of a condition or limitation of NPDES permit No. IN0000337 and Section 301 of the
CWA, 33 U.S.C. § 1311, and is actionable under Section 505 of the CWA, 33 U.S.C.
§ 1365(a)(1).
147.

Pursuant to Sections 309 and 505 of the CWA, 33 U.S.C. §§ 1319 and 1365, and

40 C.F.R. §§ 19.1-19.4, U.S. Steel is liable for injunctive relief and civil penalties of up to
$37,500 per day for each of the three violations occurring from January 12, 2009 through

31

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 32 of 34

November 2, 2015 and $52,414 per day for each of the thirty violations occurring after
November 2, 2015. 33 U.S.C. §§ 1311, 1365; 40 C.F.R. §§ 19.1-19.4.
FIFTH CLAIM FOR RELIEF
Stormwater Routing in Violation of the Permit and the CWA
148.

Paragraphs 1 through 147 are realleged and incorporated herein by reference.

149.

Pursuant to the 2016 permit, certain stormwater management practices that the

2011 permit authorized are currently disallowed. Specifically, the 2016 permit no longer allows
Outfall 004 to discharge stormwater runoff, whereas the 2011 permit allowed for stormwater
discharges to be routed through Outfall 004.
150.

The fact sheet attached to the 2016 permit indicates that Outfall 004 continues to

handle stormwater runoff from over twenty-five acres of industrial property. If the Midwest Plant
is continuing to route stormwater through Outfall 004, then U.S. Steel has been committing
ongoing permit violations every day—or at least every rainy day on which it has discharged
stormwater—since the issuance of the 2016 permit.
151.

Each of U.S. Steel’s potential stormwater violations constitutes a violation of

NPDES permit No. IN0000337 and Section 301 of the CWA, 33 U.S.C. § 1311, and is
actionable under Section 505 of the CWA, 33 U.S.C. § 1365(a)(1).
152.

Pursuant to Sections 309 and 505 of the CWA, 33 U.S.C. §§ 1319 and 1365, and

40 C.F.R. §§ 19.1-19.4, U.S. Steel is liable for injunctive relief and civil penalties of up to
$52,414 per day for each violation occurring after November 2, 2015. 33 U.S.C. §§ 1311, 1365;
40 C.F.R. §§ 19.1-19.4.

32

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 33 of 34

SIXTH CLAIM FOR RELIEF
Negligence
153.

Paragraphs 1 through 152 are realleged and incorporated herein by reference.

154.

U.S. Steel has a duty of reasonable care not to discharge toxic pollutants,

including hexavalent chromium, into Lake Michigan in violation of its NPDES permit.
155.

U.S. Steel breached its duty of reasonable care to not illegally discharge

hexavalent chromium into Lake Michigan in violation of its NPDES permit.
156.

U.S. Steel’s discharge of hexavalent chromium into Lake Michigan was the direct

and proximate cause of the City incurring costs in excess of $75,000, the exact amount to be
proven at trial, to sample, monitor, and assess the threat posed to the City’s drinking water
supply from U.S. Steel’s illegal discharge of hexavalent chromium.
PRAYER FOR RELIEF
WHEREFORE, the City respectfully request that this Court:
A.

Declare that U.S. Steel is in violation of the CWA and NPDES permit No.

IN0000337;
B.

Enjoin U.S. Steel from discharging pollutants from its facility into Burns

Waterway unless and only to the extent authorized by NPDES permit No. IN0000337;
C.

Order U.S. Steel to complete expeditiously all actions necessary to ensure that it

complies with its permits and all applicable requirements of the CWA;
D.

Order U.S. Steel to provide written notice to the City of any illegal discharge by

U.S. Steel’s Midwest Plant into Lake Michigan within one hour of the time of the illegal
discharge;

33

 USDC IN/ND case 2:18-cv-00033 document 1 filed 01/24/18 page 34 of 34

E.

Order U.S. Steel to pay a civil penalty to the United States for each violation that

occurred during the five-year statute of limitations period, and for each subsequent violation until
the company achieves compliance or until this suit is resolved, pursuant to Section 309(d) of the
CWA, 33 U.S.C. § 1319(d); 28 U.S.C. § 2461; and 40 C.F.R. §§ 19.1–19.4;
F.

Award the City its costs of litigation, including attorney and expert fees, pursuant

to Section 505(d) of the CWA, 33 U.S.C. § 1365(d);
G.

Enter an award of damages in favor of the City and against U.S. Steel in an

amount to be determined at trial resulting from U.S. Steel’s negligence, including but not limited
to the costs incurred to sample, monitor, and assess the threat posed to the City’s drinking water
supply from U.S. Steel’s illegal discharge of hexavalent chromium; and
H.

Grant such other relief as the Court may deem appropriate.

Dated: January 24, 2018.

Respectfully submitted,
EDWARD N. SISKEL
Corporation Counsel, City of Chicago
BY:

/s/ Fiona A. Burke

Fiona A. Burke, Chief Assistant Corporation Counsel
Aviation, Environmental, Regulatory, and Contracts Division
City of Chicago Department of Law
30 N. LaSalle St., Suite 1400
Chicago, IL 60602
312-744-6929
Fiona.Burke@cityofchicago.org

34