D E P A R TM E N T

OF

LAW

C ITY O F C H IC A G O

April 13, 2018
Jeffrey H. Wood
Acting Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
601 D St NW
Washington, DC 20579
Cathy Stepp
Region 5 Administrator
U.S. Environmental Protection Agency
Ralph Metcalfe Federal Building
77 West Jackson Boulevard
Chicago, IL 60604-3590
RE: United States of America and the State of Indiana v. U.S. Steel Corporation, Civil Action
No. 2:18–cv–00127 (N.D. Ind.) – Proposed Consent Decree
Dear Acting Assistant Attorney General Wood and Regional Administrator Stepp:
As you know, on April 2, 2018, the Department of Justice (“DOJ”) filed a complaint in the
above-captioned matter against United States Steel Corporation (“U. S. Steel”) alleging certain
Clean Water Act (“CWA”) violations and other claims arising from illegal pollution from U.S.
Steel’s Midwest Plant (“Plant”) in Portage, Indiana. At the same time, DOJ filed a proposed
Consent Decree (“Proposed CD”) with the aim of resolving that Complaint.
After an initial review of the Proposed CD, we believe the Proposed CD is unfair, unreasonable,
and inadequate and we intend to advocate for a number of improvements and changes through all
available forums. Lake Michigan is a critical natural resource for Chicago and the surrounding
region, and a national treasure for water recreators and the public; we will oppose entry of any
consent decree that does not properly hold U. S. Steel accountable for its actions as well as
ensure that the Plant is never again the site of another dangerous incident such as those that
occurred in April and October 2017. In addition to concerns with the Proposed CD itself, we are

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 also troubled by a lack of sufficient transparency necessary to properly evaluate the sufficiency
of the Proposed CD. These concerns might have been addressed prior to lodging the Proposed
CD if EPA had granted our requests to be included in negotiation of the Proposed CD.
As a threshold matter, unless certain changes are made regarding the process for considering the
Proposed CD, we will be forced to oppose its entry simply because neither we nor the broader
public will have a meaningful and fair opportunity to evaluate its adequacy. First, DOJ should
immediately finalize and publish an extension of at least 30 days to the public comment period
for this matter. Given the significant public interest in the region regarding U. S. Steel’s
violations of the CWA, such additional time is the bare minimum needed for proper evaluation
by interested parties like the City and Surfrider. Second, DOJ and EPA, working with IDEM
and U. S. Steel, should immediately release to the public all plans, reports, and other written
submittals by U. S. Steel referenced in the Proposed CD, including those already submitted and
those that will be submitted in the near future. Under the terms of the Proposed CD, these
submittals will be reviewed and their contents will become final obligations imposed on U. S.
Steel; without reviewing what U. S. Steel proposes, there is no way to evaluate whether those
obligations will be sufficient. Put simply, we will vigorously oppose entry of the Proposed CD if
we cannot review these submittals now. Finally, DOJ should commit to either supporting or
taking no position if we seek intervening party status in this case. The CWA provides all citizens
with an unconditional right to intervene in enforcement actions such as this one, 33 U.S.C. §
1365(b)(1)(B), and it is critical to include our perspective as parties to achieve an appropriate,
efficient resolution.
As noted above, it is difficult for us to properly evaluate the substance of the Proposed CD
without the company’s submittals to EPA and IDEM. Nonetheless, after an initial review, we
have already identified certain elements that are inadequate and must be modified. Some of
those elements are:
•

Given the nature of the violations, the financial penalty is insufficient to reflect their
gravity and the risk of harm to Lake Michigan, a drinking water and recreational source
for millions;

•

There is no focus on the needs of the local community around southern Lake Michigan,
such as through a supplemental environmental project in lieu of a penalty deposited in the
state and federal treasuries;

•

Given the repeated nature of the violations (and lack of reporting of certain violations)
and the history of insufficient regulatory oversight, inspections, and enforcement,
independent, third-party water and sediment sampling and study is needed to determine
potential impacts beyond those identified during immediate spill response and to consider
possibly necessary remedial measures and Plant improvements;

•

While the incident notification plan in the Proposed CD’s Appendix B would be an
improvement over the communications during the 2017 incidents, it does not propose a
more protective approach, such as automated, early warning systems used in other key
waterbodies.
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 As we stated in the past, our advocacy and attention to this matter is rooted in a confluence of
concerns: the Plant was the site of repeated violations, and U. S. Steel has asked regulators to
keep some of those violations confidential and hidden from the public and stakeholders like the
City and Surfrider’s members. At the same time and for years, state and federal regulators have
failed to provide adequate oversight or take necessary enforcement action. Lake Michigan is our
region’s most precious resource and we are determined to change this situation permanently and
positively and to prevent such violations from recurring.
We look forward to hearing from you regarding the concerns outlined in this letter, especially as
to the three time-sensitive procedural concerns stated above.
Sincerely,

Edward N. Siskel
Corporation Counsel
City of Chicago

Michelle Kremer, Esq.
Chief Operating Officer
Surfrider Foundation
cc:

Arnold Rosenthal, U.S. Department of Justice
T. Leverett Nelson, U.S. EPA Region 5
Nancy King, IDEM General Counsel
Patricia Orloff Erdmann, Office of the Indiana Attorney General
Paul M. Drucker, Barnes & Thornburg LLP (counsel for U. S. Steel Corporation)
Chris Wheat, Chief Sustainability Officer, City of Chicago

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