United States of America v. United States Steel Corporation

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, et al.,

Plaintiffs,

v. Case No. 2:18-CV-127 JD

UNITED STATES STEEL

CORPORATION,

Defendant.

OPINION AND ORDER

Federal and state environmental regulators were put on alert in April 2017 when the

United States Steel plant in Portage reported a large release of dangerous chemicals into a

waterway that flows into Lake Michigan and sits adjacent to Indiana Dunes National Park. The

regulators investigated the release and found that the steel plant had a history of environmental

violations stretching back to 2013. The federal government and Indiana initiated enforcement

proceedings over the violations. Two other parties with interests in the outcome of the

enforcement action, the City of Chicago and the Surfrider Foundation, soon intervened in the

case. The governments and U.S. Steel negotiated a revised consent decree to resolve the case that

they insist properly responds to the violations. They now ask this Court to enter the decree

despite intervenor and public opposition. After weighing the extensive record, the Court

determines the decree should be entered for the following reasons.1

I. Factual Background

1 The Court notes that this case was reassigned from Judge Theresa Lazar Springmann to Judge Jon E. DeGuilio on

January 25, 2021. (DE 78.)

United States Steel is a corporation whose business includes running a steel

manufacturing and finishing facility in Portage, Indiana, known as the Midwest Plant

(“Facility”). (DE 1 ¶ 55, 56; DE 47-1 at 3.) The Facility is located adjacent to Lake Michigan

and Indiana Dunes National Park and, as part of its operations, discharges stormwater and

wastewater into an industrial ditch known as Burns Waterway that then, within approximately

500 feet, feeds directly into Lake Michigan. (DE 1 ¶ 57; DE 47-1 at 3.) U.S. Steel’s discharges

into Burns Waterway are subject to a host of governmental regulations that, among other things,

require U.S. Steel to ensure regular quantitative and narrative oversight and reporting, properly

maintain its facilities and systems, and advise of violations. (DE 1 at 10–12; DE 47-1 at 4–5.)

U.S. Steel is alleged to have frequently violated these requirements from 2013 through 2017.

(DE 1 at 30–31.) This case, filed in April 2018, and the revised consent decree this order

considers are a response to those violations.

A. Parties

While this case has drawn comments from a wide swathe of the public in the

approximately three years it has been pending, the actual parties are more finite. The case

originated as an action by the United States and the State of Indiana (together “Government

Plaintiffs”) against U.S. Steel. The federal government filed the case on behalf of the

Environmental Protection Agency (“EPA”), the National Park Service (“NPS”) of the United

States Department of the Interior, and the National Oceanic and Atmospheric Administration

(“NOAA”) of the U.S. Department of Commerce. The State of Indiana filed on behalf of the

Indiana Department of Environmental Management (“IDEM”) and the Indiana Department of

Natural Resources. (DE 47 at 1.) Each of the sub-entities the Government Plaintiffs represent

have played a role in the detection, analysis, or negotiation process that led to the proposed

consent decree now before the Court.

At the time the Government Plaintiffs filed their suit in April 2018, two other entities

were in the early stages of pursuing their own litigation over the same issues. The Surfrider

Foundation, a non-profit corporation with a national reach that aims to protect the world’s

oceans, waves, and beaches, and the City of Chicago (“City”), which draws its drinking water

from Lake Michigan, had each filed their own lawsuits several months before the Government

Plaintiffs filed this action. (DE 20 at 1.) Both Surfrider and the City sought to intervene in this

lawsuit (DE 12; DE 13), and the Court granted their motions (DE 20).

B. Pre-enforcement violations

The Facility manufactures steel sheet and tubular products using a variety of processes

that, if not properly controlled, can have a negative impact on the environment. The Facility is

permitted to release wastewater with certain amounts of chemicals and other potential pollutants

that would otherwise represent violations of the Clean Water Act (“CWA”), but it must do so

within the confines of its National Pollution Discharge Elimination System (“NPDES”) permit,

which sets limits based on state and federal regulations. Indiana has the delegated authority from

the EPA to issue the permit and both state and federal regulators can then monitor the Facility to

see if it is abiding by the terms of its permit. (DE 47-1 at 4.) The Facility has two water treatment

plants it uses during its manufacturing process to comply with the requirements. (Id. at 3.)

The catalyst event for this action occurred in April 2017 when U.S. Steel personnel

noticed discoloration in wastewater within the Facility and saw a bluish-green tint to the water

leaving the Facility and flowing into Burns Waterway. (Id. at 4; DE 50-3 at 12.) Upon

inspection, personnel concluded that a wastewater line carrying chrome waste in the Facility had

failed and caused the water to be sent not to the designated treatment facility for chrome waste

but instead to the plant that was not capable of such treatment. (DE 50-3 at 21–22.) The

wastewater passed through the plant untreated and then flowed into Burns Waterway. (Id.)

Sampling done at the time indicated that the wastewater that passed through the Facility

contained dangerous chromium compounds including roughly 300 pounds of hexavalent

chromium, which can have very serious effects on humans and the environment. (Id. at 18–19,

21–22.) U.S. Steel alerted the regulators that it had observed the problem and EPA and IDEM

personnel responded. Downstream users like the city of Portage and town of Ogden Dunes were

not alerted, however, until Indiana officials made the notifications. (Id. at 12–13.)

Both state and federal regulators determined during their investigation following the

April 2017 spill that U.S. Steel had violated environmental laws and regulations. Specifically,

the regulators found violations of several CWA provisions and corresponding Indiana state

regulations in the form of greater effluent discharges than were allowed under the Facility’s

NPDES permit. They found that the violations were not the result of blatant decisions to dump

large quantities of harmful chemicals into the waterway, but instead more indirectly stemmed

from internal Facility failures caused by a lack of preventative maintenance, poor condition of

equipment and materials within the Facility, and lacking management procedures that led to

inadequate inspection activities and inadequate routine monitoring of the equipment. (DE 47-2 at

15–26.) Additionally, because the discharge involved a large enough amount of chromic acid

that went unreported to regional stakeholders, the regulators found U.S. Steel violated the

Emergency Planning and Community Right-to-Know Act of 1986 (“EPCRA”). (DE 47-1 at 4.)

Further the EPA incurred $350,653.20 in response costs under the Comprehensive

Environmental Response, Compensation, and Liability Act (“CERCLA”), the NPS incurred

response costs under the System Unit Resources Protection Act (“SURPA”), and the NOAA

incurred costs under CERCLA in conducting natural resource damage assessments at and in the

area around the Facility. NPS also incurred damages for the costs of assessing the risk to Indiana

Dunes National Park and from the lost use of national park beaches that were closed for several

days after the spill. (Id.)

The April 2017 spill also prompted state and federal regulators to look for other NPDES

permit violations at the Facility. Regulators found a host of prior violations beginning in

February 2013. (DE 1 at 30–31; DE 47-1 at 4–5.) The violations included permit effluent

exceedances for several non-chrome pollutants, narrative standard problems stemming from

discharges of discolored water, monitoring and reporting violations, improper operation and

maintenance of systems used to collect and treat wastewater, and stormwater pollution

prevention plan violations. (DE 1 at 30–31; DE 47-1 at 4–5.)

The Facility then experienced another effluent exceedance in October 2017 when it again

violated its chromium discharge limits because of what U.S. Steel reported were failures with

visual inspections within the Facility, failures in having proper pathing to carry the wastewater at

issue, and improper maintenance of the equipment it did have. (DE 50-2 at 73–74.) Aware of this

most recent violation and the preceding violations, including the April 2017 spill, the

Government Plaintiffs engaged U.S. Steel in negotiation discussions in anticipation of filing the

current enforcement action.

C. The negotiations and the decree

The Government Plaintiffs’ information gathering and preliminary discussions with U.S.

Steel began immediately after the April 2017 spill and stretched through the spring and summer

of 2017. Following an in-person meeting between the parties in September 2017, the actual

negotiations picked up with special attention paid to the information U.S. Steel had submitted to

the government agencies, U.S. Steel’s existing permit requirements, and U.S. Steel’s existing

operations and maintenance plans. (DE 47-1 at 5.) The Government Plaintiffs describe the

process, which lasted until this action was filed in April 2018, as “arms-length over a number of

months” with “substantial give-and-take by experienced environmental lawyers and technical

experts representing the United States, the State, and U.S. Steel.” (Id.) At the same time, U.S.

Steel took several steps to address some of the root causes of the April 2017 spill, including

replacing a concrete trench that had failed to contain the leaking chromium wastewater and

installing stainless steel pipes for use in the chromium treatment process. (DE 46-1 at 15–16; DE

47-1 at 5.)

The negotiations eventually resulted in the first version of the consent decree, which the

Government Plaintiffs filed simultaneously with their complaint. (DE 1; DE 47-1 at 5.) That first

version of the decree was the subject of an extended public comment period. The parties received

approximately 2,700 public comments on the decree, many of which argued there were changes

that needed to be made before the decree could be effective. (DE 47-5.) After receiving those

comments, the Government Plaintiffs and U.S. Steel worked to revise the initial decree and

created the updated version now before the Court.

While the consent decree underwent several important changes over time, the core of the

decree has remained the same since it was first proposed. The decree’s stated objective is to

“cause U.S. Steel to take those steps that are necessary to bring the U.S. Steel’s Midwest Plant

Facility into compliance with” its environmental responsibilities. (DE 46-1 at 7.) It proposes to

achieve that objective in several ways, including by requiring three main plans to help run the

Facility, imposing mandatory notification requirements and stipulated penalties should violations

occur, and imposing a civil penalty. (DE 46-1; DE 47-1 at 5–6.) It also imposed mandatory

infrastructure upgrades, which U.S. Steel undertook soon after the April 2017 spill and while the

decree was being negotiated. (DE 47-1 at 7.)

The three plans the decree requires U.S. Steel to develop address the key areas in the

Facility’s operational standards the Government Plaintiffs found lacking during their review of

the company’s prior compliance. First, the decree requires that U.S. Steel create a

Comprehensive Wastewater Operations and Maintenance Plan (“O&M Plan”). The O&M Plan is

designed to ensure that U.S. Steel will properly operate and maintain all of its wastewater

treatment process equipment within the Facility. Second, the decree requires a related

Preventative Maintenance Program Plan (“PM Plan”) that is designed to help prevent

breakdowns and improve efficiency within the Facility’s wastewater infrastructure. And third,

the decree requires a Wastewater Process Monitoring System (“Wastewater System”) that covers

early detection of conditions that could precipitate spills like the April 2017 spill or other

discharges that would violate U.S. Steel’s permit limits. The Wastewater System also sets

standards and goals to ensure that new and improved monitoring equipment and technologies are

installed when needed to improve Facility wastewater monitoring. (DE 47-1 at 5–6, 16.)

U.S. Steel created and submitted the O&M and PM Plans to the EPA and IDEM in April

2018, prior to the close of the public comment period on the entire decree. EPA and IDEM did

not approve those initial plans, in part based on their consideration of public comments they had

received to that point, and informed U.S. Steel about the areas for needed improvement. (Id. at

8.) U.S. Steel then came back with updated versions of the two plans that the government

agencies approved in December 2018. Those updated versions included additional operational

procedures aimed at avoiding and minimizing spills from the Facility’s treatment plants, a

reference list of all standard operating procedures (“SOPs”) related to monitoring compliance

with the NPDES permit, more descriptions of how U.S. Steel would be managing and

documenting activities under the Plans, and language specifically describing how it plans to

inspect, clean, and maintain the outflow channel as well as how it will track those activities. (DE

47-1 at 8.)

U.S. Steel also had its Wastewater Monitoring Design approved after receiving feedback

from the state and federal regulators as well as considering public comments related to the

document. Many of the comments came from the intervenors in this case, who had received a 30-

day extension on the normal filing deadline. (Id. at 16–17; DE 47-2 at 6–8.) The revised

Wastewater Monitoring Design included detailed recommended actions to improve wastewater

process monitoring for early detection of potential spills as well as to prevent future discharges

that would exceed permit limits. It also included an assessment of the root causes that led to the

April 2017 spill. (DE 47-1 at 16.) Key changes U.S. Steel made in the revised version that

received approval included a schedule for completing installation of all monitoring equipment,

specifications for all monitoring equipment, and a status update for its planned activities. (DE

47-2 at 8.)

In addition to the three core plans, the revised consent decree kept the originally proposed

civil penalty and stipulated penalties. The civil penalty to be imposed totals $601,242 in the form

of two $300,621 payments, one to the United States and one to Indiana. The stipulated penalties

are tied to the type and frequency of any future violation and are designed to be imposed as

penalties on a per-violation and per-day basis. (DE 46-1 at 35–37.) The decree additionally

requires U.S. Steel to pay back the response costs the various government agencies incurred

when responding to the April 2017 spill (Id. at 31–34), imposes various reporting requirements

for updates from U.S. Steel on its progress and compliance (Id. at 28), and requires daily

chromium sampling and reporting of those results to IDEM. (Id. at 20–21.)

Further, the Government Plaintiffs and U.S. Steel made two larger revisions to the decree

in response to public comments before moving to enter it. First, they greatly revamped Appendix

B to the decree, which lays out the Facility’s notification requirements when there has been a

spill or unauthorized release. The changes added far more specificity to the requirements as well

as specifically listed the parties U.S. Steel is required to notify in the event of a violation. (DE

46-2 at 63–65.) Second, the Government Plaintiffs added a completely new Environmentally

Beneficial Project (“EBP”), which requires U.S. Steel to perform water quality sampling at the

shoreline of seven locations near the Facility, including directly around the Facility, around

Indiana Dunes National Park, and near Michigan City, Gary, and Ogden. (Id. at 21.) The

sampling is to be completed on either a weekly or monthly basis, depending on time of year, and

any results are to be made publicly available. (Id. at 22–23.) U.S. Steel estimates that it would

spend approximately $600,000 over the three-year duration of the EBP. (DE 47-1 at 37.)

D. Post-enforcement violations

Even though U.S. Steel was not required to abide by the technical requirements in the

government-approved O&M and PM Plans before the decree was officially entered, the company

decided to start voluntarily complying anyway after the plans were approved at the end of 2018.

But despite the voluntary compliance, the Facility still experienced NPDES permit violations in

late 2018 and through 2019.

In November 2018, state inspectors found that the Facility was releasing visible foam and

scum into Burns Waterway. (DE 50-1 at 69.) The investigators returned over the ensuing days

but did not see additional foaming. A sample of the water carrying the foam and scum showed

that while it was present, all effluent discharges were within the limits specified in the NPDES

permit. (Id. at 70; DE 64 at 5.) The Facility again received a complaint about discharging foam in

December 2018. When state officials arrived, they saw limited foaming and again found no

effluent limit violations. U.S. Steel attributed the foaming problems to insufficient use of a new

defoaming agent the Facility was using.(DE 50-1 at 87–88; DE 64 at 6.)

Several more violations occurred throughout the spring and summer of 2019. In early

May 2019, U.S. Steel notified state officials that it was noticing discolored water with a thin

sheen flowing from the Facility into Burns Waterway. (DE 50-1 at 89.) When officials initially

asked U.S. Steel about the source of the problem, U.S. Steel personnel told them it was excessive

iron and acid used to clean metals as they were being manufactured. (Id. at 90.) Five days later,

U.S. Steel issued a report to the state officials notifying them that the real problem appeared to

be a sulfuric acid release, which had not been previously reported either to IDEM or downstream

users despite evidence suggesting U.S. Steel was aware of the cause several days beforehand.

(Id. at 91–93.) There were no effluent limit violations reported from the incident. (Id. at 91–93;

DE 64 at 7.)

U.S. Steel then had more problems in August with reports of oil sheens showing up in

outflows, improper keeping of records on temporary paper notes, a need to revise its operations

manual for one of its treatment plants, and inaccurate reporting of outflow temperatures. (DE 50-

1 at 104–106.) U.S. Steel, in letters to state regulators did appear to have answers for why these

problems occurred and offered steps it planned to take to prevent them in the future. (Id. at 116–

17; DE 64 at 7–9.)

U.S. Steel then had several more violations before the end of 2019. It exceeded its copper

discharge limits on two occasions (DE 50-1 at 57–60), allowed wastewater with an oil sheen to

be discharged on one occasion (Id. at 123–24), and reported a violation involving water

discoloration and a likely loss of solids into Burns Waterway (Id. at 133–34). U.S. Steel

attributed the additional oil sheen problems, water discoloration, and loss of solids to equipment

problems that it had plans to repair. The Facility also had another violation related to a

hexavalent chromium discharge it reported to regulators in October 2019, although on a far

smaller scale than it did in April 2017. Upon discovering the discharge, U.S. Steel immediately

shut down the relevant production lines and notified government agencies, downstream users,

and other stakeholders. (Id. at 123–24, 129.) It attributed the hexavalent chromium event to

operator error within the Facility that exacerbated a problem with inadequate chemical feed that

was meant to treat the hexavalent chromium before it reached Burns Waterway. It also explained

in detail to regulators how it planned to fix the problem for the future. (Id. at 123–24; DE 64 at

9–10.) No parties have filed any documents to suggest there have been any violations since the

end of 2019 despite having the opportunity, as seen through the parties’ filings on other topics as

this case remained pending, to do so.

E. The litigation over the revised decree

The Government Plaintiffs moved to enter the revised consent decree in November 2019,

arguing it not only would respond to the past violations and bring the Facility into compliance

with its NPDES permit requirements, but also that it adequately reflected the large amount of

feedback the public and intervening parties had given throughout the course of its development.

(DE 46; DE 47.) The Government Plaintiffs filed several attachments with their briefing,

including affidavits from EPA, IDEM, and NPS experts attesting to the expected success of the

consent decree. Both the City and Surfrider filed responses to the Government Plaintiffs’ motion

in December 2019, urging the Court not to approve entering the consent decree for a variety of

reasons, including its inadequate technical provisions, a civil penalty that was too low, and a lack

of protection for the public. (DE 50; DE 51.) Surfrider filed approximately 640 pages of

additional exhibit material along with its briefing, including an affidavit from a hired expert

giving his opinion about the decree. The City filed several smaller exhibits, including an opinion

from its own hired expert. (DE 52; DE 52-2.)

The Court also received additional filings related to the consent decree both from

Surfrider and several non-parties to this case. Surfrider filed a notice of supplemental authority

(DE 74) alerting the Court to the Supreme Court’s decision in County of Maui, Hawaii v. Hawaii

Wildlife Fund, 140 S. Ct. 1462, 1465 (2020) and how it broadens the ability of a regulator to

pursue environmental damage from groundwater contamination. The Court also received a joint

letter from numerous public interest groups from the northern Indiana region (DE 54) and an

amicus brief from the National Parks Conservation Association (DE 80). Additionally, both

Surfrider and the City filed an additional motion asking that the Court hold an evidentiary

hearing or, in the alternative, allow oral argument to explore factual issues they believe still exist

related to the decree. (DE 90; DE 94.)

II. Standard of Review

Approval of a consent decree is a judicial act committed to the sound discretion of the

district court. Madison County Jail Inmates v. Thompson, 773 F.2d 834, 845 (7th Cir. 1985); see

also United States v. BP Amoco Oil PLC, 277 F.3d 1012, 1019 (8th Cir. 2002). A district court

reviews a consent decree to determine whether it is fair, adequate, reasonable, and consistent

with applicable law. See United States v. George A. Whiting Paper Co., 644 F.3d 368, 372 (7th

Cir. 2011), as amended (June 17, 2011); United States v. Union Elec. Co., 132 F.3d 422, 430

(8th Cir. 1997); United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1435 (6th Cir.

1991); United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990); E.E.O.C. v.

Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985). Of particular importance in that

analysis is determining whether a proposed decree adequately protects and is consistent with the

public interest. United States v. BP Expl. & Oil Co., 167 F. Supp. 2d 1045, 1049 (N.D. Ind.

2001).

In analyzing the decree before it, the Court should be aware of the policy favoring

approval. Public policy strongly favors voluntary settlement of disputes without litigation.

Cannons, 899 F.2d at 84. And that policy is particularly strong where a consent decree has been

negotiated by the Department of Justice on behalf of a federal agency, like the EPA, which

enjoys substantial expertise in the environmental field. See Whiting Paper, 644 F.3d at 372;

Akzo, 949 F.2d at 1426; see also E.E.O.C., 768 F.2d at 890 (“a district court should be chary of

disapproving a consent decree”). But that deference to the Government’s judgment should by no

means be a rubber stamp. BP Exploration, 167 F. Supp. 2d at 1050 (citing Kelley v. Thomas

Solvent Co., 717 F. Supp. 507, 515 (W.D. Mich 1989)). Instead, the Court must conduct an

individual evaluation based on the particular facts of the case but with caution not to substitute

its judgment for that of the parties or engage in the type of detailed investigation that would be

required if the parties were trying the case. Id. (citing Akzo, 949 F.2d at 1434).

III. Discussion

The parties on either side of this consent decree offer strongly divergent views of the

future it will create for U.S. Steel, Indiana Dunes National Park, and the rest of the region

abutting Lake Michigan. The Government Plaintiffs, along with U.S. Steel, insist that the decree

and the requirements it places the Facility under will bring the Facility into compliance with its

permit. Surfrider and the City, however, foresee a future where U.S. Steel continues its polluting

under the decree’s too lax requirements to the detriment of the public and the regional

environment. The decree’s stated objective is to “cause U.S. Steel to take those steps that are

necessary to bring U.S. Steel’s Midwest Plant Facility into compliance with” the environmental

regulations imposed upon it. (DE 46-1 at 7.) This opinion determines how well the decree meets

that stated objected and whether it does so in a way that is fair, reasonable, adequate, and

consistent with applicable law.

A. Intervenors’ requests for additional hearing

Before getting into the merits of the revised decree specifically, the Court first addresses

the intervenors’ requests that the Court hold an evidentiary hearing or allow for oral argument.

Surfrider was the primary advocate for an additional hearing (DE 90), with the City later joining

the request (DE 94). Surfrider argued that an additional hearing was necessary because the

Government Plaintiffs’ filings in support of the decree “fail to address adequately many factual

issues relevant to the questions before the Court.” (DE 90 at 2.) The specific issues Surfrider

highlighted as needing more explanation were what it claims are the decree’s inadequate

technical provisions, failure to sufficiently protect Indiana Dunes National Park, and a

substandard civil penalty. (Id.; DE 68 at 4.) Surfrider envisioned the parties having the chance to

cross-examine various experts, hear from U.S. Steel employees, and otherwise press U.S. Steel

and the Government Plaintiffs on those aspects of the revised decree the intervenors still believe

are lacking. U.S. Steel opposed both an evidentiary hearing and oral argument given what it

argued was an already extensively briefed, voluminous record. (DE 66.) The Government

Plaintiffs opposed an evidentiary hearing for similar reasons but stated they “would not object” if

the Court found an oral argument necessary. (DE 63 at 5.)

The decision to hold an evidentiary hearing or schedule an oral argument is a

discretionary one for the Court. See Union Electric, 132 F.3d at 430; United States v. Metro. St.

Louis Sewer Dist (MSD), 952 F.2d 1040, 1044 (8th Cir. 1992); Cannons, 899 F.2d at 94; N.D.

Ind. L.R. 7-5(c)(1) (“The court may . . . grant or deny a request for oral argument or an

evidentiary hearing in its discretion”). While some courts have found it helpful to hold additional

hearings in environmental consent decree cases, see, e.g., United States v. City of Akron, 794 F.

Supp. 2d 782, 787 (N.D. Ohio 2011); B.P. Exploration, 167 F. Supp. 2d at 1049, many courts

have held that additional hearings are unnecessary. That is particularly true when there is already

an extensive record, when there is evidence that every party has had an opportunity to be heard,

and when there are no unexplored topics essential to the Court’s final decision. See Union

Electric, 132 F.3d at 430; United States v. Charles George Trucking, Inc., 34 F.3d 1081, 1085

(1st Cir. 1994) (noting “requests for evidentiary hearings are, for the most part, routinely

denied—and properly so—at the consent decree stage in environmental cases” and compiling

cases). “[T]he test for granting a hearing should be substantive: given the nature and

circumstances of the case, did the parties have a fair opportunity to present relevant facts and

arguments to the court, and to counter the opponent’s submission?” Cannons, 899 F.2d at 94

(internal quotation omitted).

While the Court understands the intervenors’ concerns and has weighed their arguments

for an additional hearing carefully, it does not find one necessary. The intervenors and the public

have already had repeated opportunities to provide the Court with their opinions and to submit

any evidence they believed pertinent. The public, including the intervenors, participated in the

public comment period on the initially proposed decree, which saw 2,700 comments filed. (DE

47-5.) The intervenors then were able to submit briefing on the revised consent decree to explain

their opposition, which they ably did. They further had the opportunity to submit any supporting

evidence to the Court they thought relevant, which they did in the form of approximately 650

pages of attachments made up of expert reports, affidavits, and other exhibits. Finally, both the

intervenors and the public have had the opportunity to submit any additional documentation to

the Court outside of briefing as they thought applicable. In that respect, the Court has before it an

amicus brief from the National Parks Conservation Association (DE 80), a joint letter from

numerous northern Indiana organizations (DE 54), and a notice of supplemental authority from

Surfrider (DE 74). All these materials that make up the current record convince the Court that the

intervenors and public have had a sufficient opportunity to be heard without holding additional

hearings and provide an adequate basis upon which to evaluate the decree.

What is more, the Court finds that Surfrider’s and the City’s reasons for holding a hearing

are not new but instead simply mirror the same reasons they already extensively and capably

briefed in their filings before the Court. For example, Surfrider’s reply to its motion for

additional hearing reads as a recitation of the arguments and reasoning already contained in its

response to the Government Plaintiffs’ motion to enter the decree. (DE 50; DE 68.) The Court is

well aware of Surfrider’s and the City’s positions about the decree’s alleged failings and does not

believe a new hearing, either evidentiary or to hear oral argument, is necessary before moving on

to consider the consent decree. The Court thus moves to consider the extensive record and

briefing before it to determine whether the decree is fair, reasonable, adequate, and consistent

with applicable law.

B. Fairness

A court’s fairness analysis for a consent decree is comprised of two prongs, procedural

fairness and substantive fairness. BP Exploration, 167 F. Supp. 2d at 1051 (citing Cannons, 899

F.2d at 86). Procedural fairness focuses on the negotiations process, specifically whether it was

open, at arms-length, and involved balanced bargaining. Id.; see also United States v. Bayer

Healthcare, LLC, 2007 WL 4224238, at *3 (N.D. Ind. Nov. 28, 2007). Substantive fairness

“concerns concepts of corrective justice and accountability.” Id. The Court evaluates fairness

from the standpoint of signatories and non-parties to the decree. Akzo, 949 F.2d at 1435; BP

Exploration, 167 F. Supp. at 1052.

1. Procedural fairness

There is nothing in the record or from any parties to the case to make the Court doubt the

Government Plaintiffs’ statement that the terms of the decree “were negotiated at arms-length

over a number of months, with substantial give-and-take by experienced environmental lawyers

and technical experts” on both sides. (DE 47-1 at 5.) The Government Plaintiffs took several

months to gather evidence and determine the scope of violations after the April 2017 spill and

only began serious negotiations after they had that information. (Id.) The Government Plaintiffs

and U.S. Steel then took from September 2017 to April 2018 to negotiate the first version of the

decree. (Id.; DE 1.) And after filing the proposed decree, they solicited, evaluated, and made

changes based on the roughly 2,700 public comments they received over an extended comment

period. See United States v. Lexington-Fayette Urban Cty. Gov’t, 591 F.3d 484, 489 (6th Cir.

2010) (recognizing government’s good faith in considering all comments to proposed decree);

(DE 65 at 11–12).

Additionally, while it is true that Surfrider and other non-parties to the decree did not

directly participate in the negotiations (DE 47-5 at 107), direct participation by third parties is

not required. BP Exploration, 167 F. Supp. 2d. at 1052. Further, the record shows non-parties

were kept abreast of the negotiations and that their lack of direct participation did not dilute their

ability to influence the decree. (DE 47-1 at 13–14, 17–19, 25–31, 33–39, 41, 43.) Given those

facts, the Court concludes the negotiations process was procedurally fair.

2. Substantive fairness

The Court also finds the revised decree substantively fair while acknowledging the

intervenors’ strong belief otherwise. The Seventh Circuit, evaluating consent decrees in other

areas of law, has listed several factors for determining substantive fairness. Those factors are: 1)

a comparison of the strength of the plaintiff’s case with the extent of the settlement offer; 2) the

likely complexity, length, and expense of litigation; 3) the amount of opposition to the settlement

among affected parties; 4) the opinion of counsel; and 5) the stage of the proceedings and

amount of discovery already undertaken at the time of the settlement. Gautreaux v. Pierce, 690

F.2d 616, 631 (7th Cir. 1982); see also EEOC, 768 F.2d at 889 (restating factors). The first factor

is the most important, EEOC, 768 F.2d at 889, so the Court begins and focuses much of its

analysis there.

a. Strength of case versus extent of the settlement offer

The Government Plaintiffs have a strong case against U.S. Steel given U.S. Steel has

already admitted to many of the violations the Government Plaintiffs and intervenors have

alleged. (DE 87; DE 88). U.S. Steel has also been cooperative in the enforcement process to date.

But while the company has made those admissions and been amenable to negotiating up to this

point, it has certainly not admitted to all the violations alleged against it and could very easily

take a more adversarial approach should the case proceed toward trial. The revised decree must

thus reflect the Government Plaintiffs’ strong case and bargaining position, but it need not

amount to the relief the Government Plaintiffs could have achieved through fully litigating this

matter. See EEOC, 768 F.2d at 889–90 (recognizing that “[e]ach side gains the benefit of

immediate resolution . . . and some measure of vindication for its position while foregoing the

opportunity to achieve an unmitigated victory”).

In determining the appropriateness of the extent of the decree in light of the strength of

the Government Plaintiffs’ case, the Court first considers the civil penalty portion of the decree

as that proved to be a central area of disagreement between the parties to the decree and the

intervenors. Under the decree, U.S. Steel would be required to pay a $601,242 civil penalty split

evenly between the federal government and Indiana. (DE 46-1 at 35.) The Government Plaintiffs

and U.S. Steel argue that penalty is sufficient and substantively fair given the facts of the case

and the other provisions in the decree. (DE 47 at 11–13, 21–23; DE 64.) The intervenors and a

number of public comments disagreed, arguing the civil penalty is too low and makes the decree

substantively unfair. (DE 47-1 at 33–35; DE 50 at 17–23; DE 52 at 7–9.)

Civil penalties in environmental cases are not an exact science. See United States v.

Comunidades Unidas Contra La Contaminacion, 204 F.3d 275, 281 (1st Cir. 2000) (holding

concepts like amount of a penalty imposed “do not lend themselves to verifiable precision”).

And courts have held that the EPA can “depart from rigid adherence to formulae wherever the

agency proffers a reasonable good-faith justification for departure.” Cannons, 899 F.2d at 88

(“we are confident that Congress intended EPA to have considerable flexibility in negotiating

and structuring settlements”); see also Comunidades Unidas, 204 F.3d at 281 (applying Cannons

and holding that “[i]n environmental cases, EPA’s expertise must be given the benefit of the

doubt when weighing substantive fairness”) (internal quotations omitted).

With that flexibility in mind, there is still guidance available to courts and regulators to

ensure a fair penalty is achieved. Section 309(d) of the CWA instructs a court evaluating a civil

penalty to consider “the seriousness of the violation or violations, the economic benefit (if any)

resulting from the violation, any history of such violations, any good-faith efforts to comply with

the applicable requirements, the economic impact of the penalty on the violator, and such other

matters as justice may require.” 33 U.S.C. § 1319. Specific EPA-issued guidance for CWA

violations, though purely advisory and not binding on the regulators, similarly advises

considering the economic benefit and gravity of the violations as well as weighing litigation

considerations, the violator’s ability to pay, and any supplemental environmental projects.2 U.S.

Env’t Prot. Agency, Interim Clean Water Act Settlement Penalty Policy 4, 23 (1995) (“EPA

Settlement Policy”).

The Court finds that the civil penalty and the Government Plaintiffs’ reasoning for the

amount is appropriate given that guidance. First, the Government Plaintiffs clearly considered

the economic benefit to U.S. Steel in allowing the violations to occur. In doing so, they noted

that the economic benefit, while present, was not very high given the violations resulted

primarily from poor personnel and operating procedures as opposed to foregoing larger scale

expenditures. (DE 47-1 at 35.) That observation is supported by the Court’s review of the record,

which shows some cost savings from not spending to replace certain infrastructure but that many

of the violations stemmed more centrally from poor reporting procedures and personnel errors.

(DE 1; DE 47-2.) Further, the Government Plaintiffs took U.S. Steel’s failure to replace

infrastructure and other cost savings into account, ensuring that the civil penalty “fully recovers

the economic benefit that U.S. Steel obtained as a result of avoided or delayed expenditures

needed to address the violations.” (DE 47-1 at 33.) Second, the Government Plaintiffs considered

2 The Government Plaintiffs stated they included the new EBP in the revised decree without considering the cost to

U.S. Steel of implementing it in penalty mitigation. (DE 47 at 14–15.)

the seriousness of the violations as well as the number of violations alleged, deciding that the

violations stemming from the April 2017 spill deserved the most weight because they were the

most serious. (DE 1 at 30–31; DE 47 at 11–14, 22; DE 47-1 at 33–35.) The Court also finds that

decision to account for all violations but increase the penalty most because of the magnitude of

the 2017 violations reflects the factual record. The Court does note that the Government

Plaintiffs did not provide a specific, per-violation calculation, but the Court does not find one

necessary given the flexibility regulators have in determining penalties and the mitigating factors

the Government Plaintiffs considered in imposing a penalty that they admitted is lower than it

would be on a straight, per violation calculation.

One reason the Government Plaintiffs gave for what is ultimately a lower penalty was

U.S. Steel’s good faith efforts shown by participating in negotiations, quickly starting to remedy

the problems at the Facility, and voluntarily complying with the terms of the decree before it was

entered. (DE 47-1 at 33.) That good faith participation, while coming on the heels of a long

string of violations, greatly sped the process for compliance along, made it more likely that

dangerous conditions in the region’s waters would be minimized as the enforcement action

proceeded, and saved the Government Plaintiffs time and resources. See Cannons, 899 F.2d at 88

(discussing the need to encourage early, cost-effective settlements and account for the benefits of

them). (DE 47 at 22; DE 47-1 at 33–34.) There were thus clear benefits to that compliance that

the Government Plaintiffs understandably considered in the penalty calculation.

Additionally, the Government Plaintiffs properly factored litigation considerations into

their penalty determination. EPA Settlement Policy at 4; (DE 65 at 13–14.) Surfrider is correct

that the Government Plaintiffs did not fully explain their specific litigation considerations (DE

50 at 19), but the Court does not find an accounting of the considerations necessary given the

Government Plaintiffs’ privilege concerns (DE 65 at 14–15) and interest in not broadcasting their

litigation strategies. BP Exploration, 167 F. Supp. 2d at 1052 (“the Government is under no

obligation to telegraph its settlement offers, divulge its negotiating strategy, or surrender the

normal prerogatives of strategic flexibility which any negotiator cherishes”). The Court also

disagrees with Surfrider’s suggestion that given the Government Plaintiffs’ strong case against

U.S. Steel, there is no rationale here where litigation considerations could lead to a lower

penalty. (DE 50 at 19.) The Government Plaintiffs have a strong case, but U.S. Steel has not

admitted to every violation and thus could still mount a defense that leads to not only a

potentially less favorable outcome for the Government Plaintiffs, but also cause the loss of time,

money, and degree of certainty that the Facility will be operating within its permit requirements

on a faster timeline and be protecting both parties and non-parties in the region. These litigation

considerations are certainly relevant in calculating the ultimate penalty assessed.

Finally, the Court did not find any case from Surfrider (DE 47-5 at 124) or elsewhere that

suggests the Government Plaintiffs’ decision to impose a $601,242 civil penalty based on their

consideration of the specific facts and circumstances, including the economic impact on U.S.

Steel and how the penalty fits into the overall scope of the decree, is inconsistent with other

penalties or will create a regional inconsistency in imposed penalties. The civil penalty amount

may not be as much as the intervenors would have sought or what the Government Plaintiffs may

have received through more extensive litigation. But the Court finds the Government Plaintiffs,

with their flexibility and expertise on these topics as well as their understandable decision to

settle instead of pursuing further litigation, sufficiently justified their calculation methodology,

adhered to the standards guiding such consideration, and weighed the relative strength of their

case in arriving at a substantively fair amount.

Having considered the civil penalty and determined that it is substantively fair under the

circumstances, the Court also notes that the penalty is only one aspect of the decree and thus

does not on its own determine whether the extent of the decree is substantively fair. For example,

the civil penalty is just one of multiple penalties and payments enumerated in the decree. The

decree also requires U.S. Steel to pay approximately $644,000 in statutorily mandated costs

associated with the assessment and monitoring that various government organizations had to

incur following the April 2017 spill (DE 46-1 at 31–34), as well as imposes stipulated penalties

on U.S. Steel for any violations at the Facility should they occur after the decree is entered. Both

of those payment components contribute to the decree’s substantive fairness.

Further, the decree would impose a host of non-monetary requirements on U.S. Steel that

reflect the strength of the case against the company. Those requirements include creating and

abiding by the three core plans that fundamentally reform how the Facility is run, establishing

new, far more thorough notification requirements in the event of a violation, running a three-

year, $600,000 water sampling project that the Government Plaintiffs likely could not have

obtained through further litigation (DE 65 at 12), and agreeing to periodically submit reports to

regulators about progress at the Facility, new compliance problems, and ideas for continued

improvement. The Court also notes that the Facility cannot get out of the decree easily given that

the decree can only end through court order after U.S. Steel shows it has been in full compliance

with the decree for two years. And even then, U.S. Steel would have to have the core aspects of

the decree included as requirements in its NPDES permit, ensuring the decree’s continued

operative value. The fact that the Government Plaintiffs could get U.S. Steel to agree to this

fundamental reforming of its procedures, the thorough oversight provisions, and the civil penalty

and other payments reflects the strength of the Government Plaintiffs’ case and thus the

substantive fairness of the decree.

b. Other substantive fairness considerations

While that first, most important, consideration supports a finding that the revised decree

is substantively fair, the other considerations that go into a substantive fairness analysis, when

weighed together, also support such a finding. First, any litigation in this case would likely be

complex, lengthy, and expensive given the technical nature and number of violations, even

though U.S. Steel has already admitted to certain violations. That complexity and cost suggests

that a comprehensive consent decree like the one now before the Court provides a fair resolution.

Second, while there was and continues to be public opposition to entry of this decree, the

Government Plaintiffs and U.S. Steel addressed key public concerns by revising the decree to

account for the concerns and make sure it is fair not only for the parties but also to the non-

parties in the region who have a stake in this action’s outcome. For example, the Government

Plaintiffs strengthened the O&M Plan, added the EBP, greatly fleshed out the notification

requirements for any violations that might occur, and demanded revisions to U.S. Steel’s initially

proposed plans all in response to public comments. EEOC, 768 F.2d at 892 (holding that a large

number of objectors holds minimal weigh absent other factors); (DE 46-2; DE 47-1).

Third, the Court has also considered the opinions of counsel. Counsel for the parties to

the decree, who are presumed to be competent, clearly support the decree as their clients stand

ready to be bound by it. See Bayer Healthcare, 2007 WL 4224238, at *4. The Court does note

that the intervenors’ counsel, who are likewise presumed to be competent, oppose the revised

decree, which somewhat negates the parties’ counsels’ approval. But that disagreement between

counsel at most makes this a neutral factor.

And fourth, although the case is technically still in the early, pre-discovery phase of

litigation, the information available to the parties as they came to this revised decree was

expansive and the result of the Government Plaintiffs having engaged closely with U.S. Steel for

approximately a year between the April 2017 spill and the April 2018 filing of this action. The

Court is assured that the record is sufficiently substantial at this point for the parties to have

thoroughly assessed the merits of their positions and reached a substantively fair settlement.

Thus, having considered all the factors, the Court concludes the revised decree represents

corrective justice and ensures accountability in a substantially fair manner.

C. Reasonableness, adequacy, consistency with applicable law

The Court next evaluates whether the revised decree is reasonable, adequate, and

consistent with applicable law. In doing so, it considers: 1) the nature and extent of potential

hazards; 2) the availability and likelihood of alternatives to the consent decree; 3) whether the

decree is technically adequate to accomplish the goal of cleaning the environment; 4) the extent

to which the decree is consistent with applicable law; 5) the extent to which the Court’s approval

is in the public interest; and 6) whether the consent decree reflects the relative strength or

weakness of the Government’s case against the Defendant. BP Exploration, 167 F. Supp. 2d. at

1053 (citing Akzo, 949 F.2d at 1436; Cannons, 899 F.2d at 89–90.) The Court takes each

consideration in turn.

1. Nature and extent of potential hazards

The hazards at issue in this case encompass impermissible runoff from the Facility

directly into Burns Waterway and the Lake Michigan ecosystem. The specific violations

included a combination of effluent exceedances, water temperature exceedances, and reporting

violations, each of which risk harm to the region’s ecosystem and citizens. (DE 1 at 30–31.)

Surfrider also claims that this case, and thus the revised decree, should deal with potential

groundwater pollution given the Supreme Court decided County of Maui (DE 74), which held

that groundwater contamination could qualify as source pollution that must be regulated, in the

time this case has been pending. 140 S. Ct. 1462 (2020); (DE 74 at 4.) But the Government

Plaintiffs specifically did not choose to cover groundwater contamination violations in this case,

(DE 47-1 at 21; DE 75 at 2–3), leaving it instead to Indiana alone to bring a separate action

should it choose to do so. (DE 75 at 3.) The nature and extent of potential hazards the revised

decree must cover thus remains those hazards addressed in the Government Plaintiffs’ complaint

and comprehensively in the revised decree.

2. Availability and likelihood of alternatives

If this revised consent decree is not entered, the Government Plaintiffs and U.S. Steel

would be forced to either start the negotiation process for a new decree or forge ahead with what

would likely be a lengthy, complex, and unpredictable litigation process. Either alternative

would not only keep U.S. Steel from being subject to the requirements of the revised decree now

and lessen its incentive to continue voluntarily complying, but would also force the Government

Plaintiffs, U.S. Steel, the intervenors, and the judicial system to expend their limited resources as

the case continues. Those alternatives suggest a settlement like this revised decree, which ends

the litigation while affording relief and protection to the surrounding region, is reasonable and

adequate.

3. Technical adequacy

The revised decree’s reasonableness and adequacy is also clear through its technical

requirements. The core of the technical fixes within the decree are the three plans U.S. Steel has

already submitted, gotten approved, and starting voluntarily complying with. The first plan is the

O&M Plan, which required a list of the Facility’s NPDES permit requirements, a description of

and operation information for all wastewater treatment process equipment, a compilation of job

descriptions or operating duties of assigned personnel, laboratory requirements, recordkeeping

requirements, references to all pertinent operation and maintenance forms and procedures, and a

plan for proper routine visual inspection, cleaning, and maintenance of outfall channels. (DE 46-

1 at 17.) The second plan is the PM Plan, which required compiling procedures and

methodologies for periodic inspection and servicing of machinery and equipment, recording of

repairs, alterations, and replacements to the Facility’s wastewater treatment infrastructure, and at

least yearly review and reporting of any necessary modifications to the O&M Plan to be

submitted to environmental regulators. (Id. at 17–18.) And the third is the Wastewater System

plan, which required U.S. Steel to evaluate its existing wastewater monitoring to formulate ways

to maximize early detection of conditions that may lead to unauthorized discharges. (Id. at 19–

20; DE 47 at 6.) In addition to the three plans, the technical requirements imposed also include

daily chromium testing (DE 46-1 at 20), extensive public notification requirements (Id. at 63–

70), required reporting on progress and areas for improvement (Id. at 28–31), required repairs of

key infrastructure (Id. at 15–16), and eventual codification of the core of the decree into the

Facility’s NPDES permit (Id. at 53–54).

The Government Plaintiffs argued that the three plans and other technical provisions

contain detailed and comprehensive requirements that directly address conditions that led to past

violations and promote future compliance. (DE 47 at 21.) Surfrider and the City were much more

wary. Both intervenors, relying in part on the opinions of retained experts, argued that the

violations that occurred after the Facility had supposedly started implementing the three plans

show that the plans and other provisions are inadequate. (DE 50 at 8–9; DE 52 at 2–7.) Surfrider

also went further, arguing that the decree responded too narrowly to the April 2017 spill and is

still missing key components.

The Court finds that the three plans and other technical requirements address the core

underlying issues that led to this lawsuit. As the Government Plaintiffs note somewhat regularly

in their briefing and attachments, regulators’ review of U.S. Steel’s non-compliance at the

Facility showed that most of the violations in the complaint stemmed from deficiencies in

operation and maintenance procedures. (DE 47-1 at 34–35; DE 65 at 4.) It thus stands to reason

that a core component of the decree would be a set of plans to address those inadequate

procedures and ensure the Facility’s proper functioning in the future. The three plans do that by

compiling a comprehensive list of standard operating procedures, documenting job and training

requirements, ensuring there is regular maintenance, and, when needed, requiring replacement of

equipment and technology within the Facility. (DE 47-1 at 34–35; DE 47-2 at 4–8.) The

additional technical provisions add to the plans by reforming notification procedures, imposing

chromium testing, and ensuring the decree will be in place for a long enough time to ensure

sustained compliance. The decree also imposes reporting and regulator oversight requirements

beyond those already required through U.S. Steel’s permit and other statutes, including semi-

annual progress reports, required inclusion of chromium monitoring results in Facility discharge

monitoring reports and monthly monitoring reports, and a reservation of right for regulators to

enter the Facility at all reasonable times to monitor U.S. Steel’s progress with the decree, verify

information U.S. Steel has submitted in reports, and obtain sampling and other data as may be

necessary. (DE 46-1 at 20, 22, 28–31, 45.) The Court’s review of the nature of violations that

occurred before the lodging of the decree, the environmental officials’ reports on the violations,

and U.S. Steel’s own account of why certain violations occurred, all support the Government

Plaintiffs’ conclusion that these plans and provisions are necessary and get to the heart of the

underlying issues.

The Court additionally does not give much weight to the intervenors’ argument that the

ongoing NPDES permit violations in late 2018 and through 2019, after U.S. Steel’s voluntary

implementation of the plans, shows the plans and the decree are inadequate. (DE 50 at 8–10; DE

52 at 2–7.) There are three reasons why the Court finds that argument is flawed.

First, it is unreasonable to fully judge the plans and the decree based on only voluntary

compliance. As the Government Plaintiffs noted in their reply, the decree has only been

implemented on a voluntary basis, which prevents any truly effective enforcement of its

provisions. (DE 65 at 3.) If the decree had been entered at the time U.S. Steel committed the

violations in late 2018 and throughout 2019, U.S. Steel would have faced stipulated penalties for

each violation and for each day a violation occurred. The company did not have those

repercussions to worry about or the knowledge that the decree was actually entered at the time of

the violations. Thus, the provisions in the decree were inherently constrained from achieving

their full potential.

Second, pre-judging based on the 2018 and 2019 violations fails to account for the degree

of change that had to occur at the Facility to ensure it was brought into line with its permit

requirements. Surfrider’s own expert, Dr. Ranajit Sahu, concluded in his affidavit that “U.S.

Steel appears to have had no preventative maintenance system in place at all,” before the 2017

spill, was “not recording its maintenance activities,” and had ample evidence of poor equipment

conditions. (DE 50-1 at 4–5) (emphasis in original). He concluded that “U.S Steel’s Midwest

Plant lagged far behind the current industry standard for maintenance and environmental

compliance programs.” (DE 50-1 ¶ 9.) The plans and other provisions in the revised decree

address each of those key flaws. And while it would have been ideal for the Facility to

voluntarily begin complying with the decree and immediately bring what had been a deeply

flawed system into compliance, it is unsurprising given how far behind U.S. Steel was that there

were ongoing violations as the Facility was first starting to implement changes. Further, the

decree was not designed as a quick fix but instead is meant to create an iterative process where

U.S. Steel will have to periodically review components of its plans to ensure it addresses any

ongoing problems and continues to assure compliance. (DE 46-1 at 18; DE 65 at 3.) In that

sense, the decree becomes even more effective as time goes on.

And third, Surfrider’s argument does not properly account for the improvements in

frequency and types of violations that occurred. While the Court recognizes that any permit

violation is discouraged, it notes that U.S. Steel appeared to quickly work to resolve many of the

violations throughout 2018 and 2019 and that the violations were often much less severe than the

pre-enforcement violations. (DE 52 at 3–4; DE 64 at 4–11.) Of particular note is U.S. Steel’s

hexavalent chromium violation from October 2019, which while admittedly concerning given the

Facility’s history, was in a vastly lower amount than the April 2017 exceedance, had a human

error cause that was readily identified and addressed, and exhibited U.S. Steel’s ability to make

timely, proper notifications to stakeholders in the region as it was required to do under the decree

and which it had previously struggled with in May 2019. (DE 50-1 at 123–24, 129.) Further, the

overall number of effluent exceedances at the Facility dropped significantly after U.S. Steel

began negotiating and voluntarily complying with the consent decree, dropping from thirteen

instances in 2017 to four between January 2018 and December 2019. (DE 65 at 6.) Additionally,

the Government Plaintiffs were well aware of these subsequent violations but still moved

forward with this motion believing that the decree is reasonable and adequate. The Court thus

finds it would be unreasonable to discount the technical requirements and decree because of the

late 2018 and 2019 violations.

The Court also has considered the intervenors’ experts opinions about the adequacy of

the technical provisions but does not find the problems they believe exist warrant finding the

decree inadequate. The City’s expert premises her opposition almost entirely on the inadequacy

of the technical requirements in light of the violations over the course of 2019. (DE 52-2.) For

the reasons just explained, the Court does not view the 2019 violations as an indication that the

technical requirements are inadequate or unreasonable.

Surfrider’s expert, Dr. Sahu, while offering a more extensive view of why he believes the

revised decree is still flawed, also does not convince the Court that the decree’s technical

provisions are inadequate and unreasonable. Dr. Sahu opined that the decree was too focused on

the 2017 spill and left out certain things like detailed flow numbers, the current condition of U.S.

Steel’s equipment, and a sufficiently independent analysis by government experts of U.S. Steel’s

internal information. (DE 50 at 7.)

Initially, the Court finds the Government Plaintiffs satisfactorily addressed several of Dr.

Sahu’s concerns, including that the decree focused too narrowly on the April 2017 spill and that

the decree doesn’t address the root causes of the Facility’s problems in their revisions to the

initial iteration of the decree and in their thorough responses to comments. (DE 46-2; DE 65 at

10–11.) The Court also does not find the record supports Dr. Sahu’s allegation that the

government experts have not properly analyzed U.S. Steel’s internal information given the

extensive evidence of regulator review of U.S. Steel’s practices and procedures while negotiating

this decree. (DE 47-1 at 4–5; DE 47-2 at 10–107.)

Additionally, Dr. Sahu’s specific recommendations for needed improvement, while they

may add to the decree, do not suggest to the Court that it is deficient in its current form.

Government experts, who were far more involved in the investigation of the Facility’s violations

than Dr. Sahu, opined that the new plans and standard operating procedures at the Facility give

Facility operators “more than enough information and guidance” to allow U.S. Steel to comply

with its permit and have “adequately addressed the root causes” of the violations. (DE 47-2 at 6,

8; DE 47-3 at 4.) To the extent U.S. Steel or the government regulators believe more peripheral

improvements, like Dr. Sahu’s suggestions of more detailed flow numbers or a list of the current

condition of each piece of Facility equipment, are needed as the decree plays out, the decree

makes room for those improvements to be discussed as part of the ongoing obligation by U.S.

Steel to periodically communicate with the government regulators about progress and places for

improvement. (DE 46-1 at 28–31; DE 65 at 3.)

Considering all the technical requirements in the decree, as well as the expert’s opinions

and the facts of this case, the Court concludes the decree is both well-tailored to address the

Facility’s history of violations and technically adequate to bring about compliance in the future.

See United States v. Metro. Water Reclamation Dist. of Greater Chicago, 792 F.3d 821, 825 (7th

Cir. 2015) (citing Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d

743, 759 (7th Cir. 2004)) (considering whether the consent decree is likely to bring about

compliance with environmental regulations).

4. Consistency with applicable law

The Court also finds the decree is consistent with and furthers the goals of the statutes

underlying this litigation. The statutes at issue here are the CWA, CERCLA, SURPA, the

EPCRA, and Title 13 of Indiana Code, which deals with state environmental regulations. (DE 1.)

The purpose of the CWA is to restore and maintain the integrity of United States waters,

including by preventing toxic discharges of pollutants and protecting wildlife and recreation. The

laws within Title 13 of Indiana Code have a similar goal of preserving, protecting, and enhancing

the quality of the environment so that future generations can enjoy it. Ind. Code § 13-12-3-1. The

revised decree furthers those goals by imposing detailed compliance plans and reporting

requirements on U.S. Steel to prevent toxic emissions from the Facility and alert those within the

Facility and in the surrounding region when there is a potential threat.

The goal of CERCLA is to preserve and protect the environment from the effects of

hazardous substances that may be released and ensure those responsible for any releases bear

responsibility. Cannons, 899 F.2d at 90–91. The revised decree does this not only for the reasons

previously mentioned, but by requiring U.S. Steel to pay both the remediation costs the

government agencies incurred and a civil penalty. (DE 46-1 at 31–36.)

SURPA’s goal is to recover response costs and damages for harm to national parks, 54

U.S.C. § 100723, which the decree does by mandating U.S. Steel pay both response costs and

damages based on what NPS experts found with respect to the damages caused by the Facility’s

permit violations, particularly in relation to the April 2017 spill. (Id. at 32–33; DE 47-4.)

Finally, EPCRA has as one of its purposes to ensure accurate, reliable information on the

presence and release of toxic chemicals is compiled and made available at a reasonably localized

level. Citizens for a Better Environment v. Steel Co., 90 F.3d 1237, 1239 (7th Cir. 1996), vacated

on other grounds, 523 U.S. 83 (1998). The revised decree does this through its notification

requirements, primarily contained in Appendix B. (DE 46-1 at 63–70.) The decree thus is

consistent with applicable law. See BP Exploration, 167 F. Supp. 2d at 1049.

5. Public interest

The Court next analyzes whether the decree is in the public interest. At the outset, the

Court notes that the public interest is particularly high in this case given the Facility’s proximity

to Indiana Dunes National Park. See Akron, 794 F. Supp. 2d at 792 (finding that there was an

especially high public interest because of presence of Cuyahoga National Park). The presence of

other public beaches and water intake facilities for communities near the Facility adds to the high

public interest here. But the decree and its requirements adequately account for this high public

interest and importantly address the special consideration of a national park in such close

proximity to the Facility.

First, the decree imposes a thorough system of compliance measures on the Facility that

addresses the root causes of the violations that had potentially harmful impacts on the national

park and surrounding area. Those measures, as discussed above, are designed to bring the

Facility into compliance with environmental requirements specifically tailored to the Facility’s

location in the region by ensuring that it is properly maintaining its equipment and is operating

with personnel who are trained in now extensive and detailed standard operating procedures. The

reporting requirements, including semi-annual reports to regulators on the Facility’s progress in

abiding by the decree (DE 46-1 at 20, 22, 28–31), as well as the regulators’ reserved right within

the decree to enter the Facility at any reasonable time to collect information and decide for

themselves if U.S. Steel is properly complying with the terms and goals of the decree, are key

components of those compliance measures. (Id. at 45.) The major reformation the decree

represents inherently helps the surrounding area as it greatly eliminates the risk for dangerous

water pollution outside the bounds of what the Facility’s NPDES permit allows.

Second, the decree includes extensive requirements for public notification in the event of

a violation. And these notification requirements were heavily fleshed out to specifically respond

to and incorporate concerns contained in the public comments the Government Plaintiffs

received. (DE 2-1 at 56–59; DE 46-2 at 63–70.) Appendix B of the decree, the section

containing the notification requirements, not only instructs U.S. Steel about the specific

information it must gather should a violation occur, (DE 46-1 at 63), but also includes a full list

of parties to be notified as well as descriptions of how those parties should be notified, why they

should be notified, and what personnel within the Facility have certain notification

responsibilities (Id. at 64–66). The section additionally clearly spells out U.S. Steel’s

responsibilities in the event of a wide variety of different violations that could potentially occur.

Surfrider was still unhappy with the revised Appendix B, but the Court does not agree

with Surfrider that the requirements fail to protect the public interest. Surfrider argued that the

changes the Government Plaintiffs made to Appendix B still failed to provide a way to directly

notify individual members of the public who may be interested in notification. (DE 50 at 25.) But

the Government Plaintiffs addressed this concern in their response to comments, concluding that

such a notification requirement, while beneficial, was not necessary because there was no

feasible way to notify every member of the public immediately as Surfrider seemed to be

seeking. (DE 47-1 at 32.) While the Court recognizes that immediate notification may be ideal, it

agrees with the Government Plaintiffs that the current list of entities to be notified sufficiently

accounts for the public interest and will allow members of the public with an interest in being

notified to be notified quickly. Appendix B and its focus on keeping the public, including

national park officials, patrons, and users of nearby public beaches, informed helps satisfy the

strong public interest in this case.

Third, the Government Plaintiffs included a new environmentally beneficial project

within the revised decree that also furthers the public interest. The EBP would require U.S. Steel

to perform water quality sampling at the shoreline of seven locations near the facility, including

near the national park and surrounding communities. In that way, the EBP would give the public

additional protection by alerting them to potentially harmful compounds and conditions in the

water, whether caused by the Facility or not, should the testing discover them. (DE 46-1 at 21–

23.) This project is special to the decree and the Government Plaintiffs expressed doubt that it

could have achieved this relief through litigation. (DE 65 at 12.) Additionally, the Government

Plaintiffs gave Surfrider an opportunity to negotiate several modifications to the EBP before

putting it into the decree, which they did. But Surfrider still argued the final version of the EBP

was lacking because, among other things, it is not being implemented by an independent research

institution, does not have enough sampling locations, does not sample frequently enough, and

does not include a wide enough variety of factors in testing. (DE 50 at 25–26; DE 50-5.) The

Court appreciates Surfrider’s concerns and has considered them, but ultimately finds that a

project that will test at seven locations for eight potentially harmful conditions on a weekly basis

during peak public use, and will then make that information publicly available, is squarely in the

public interest. (DE 46-1 at 21–25.)

Finally, the Court specifically analyzes the impact on Indiana Dunes National Park as

well as comments the Court received from the National Parks Conservation Association in an

amicus brief. The NPCA’s brief, which echoed and added to the concerns expressed from other

public commenters and the intervenors about the national park, opposed entry of the revised,

arguing: 1) the decree does not account for the heightened public interest in protecting the park;

2) the decree does not recover adequate past or future damages to the park; and 3) the proposed

civil penalty is too small to serve a deterrent purpose. (DE 80 at 4–10.)

The Court finds the NPCA’s first argument unavailing given the host of technical

requirements, notification requirements, sampling requirements, and monetary penalties, all of

which account for the heightened public interest given the proximity of a national park. It is also

clear that the Government Plaintiffs carefully considered the national park in negotiating the

decree given their reliance on expert reports that spoke specifically to the effect of the Facility’s

violations on the national park. (DE 47-4.) Finally, the Court notes that the NPS, which is

charged with overseeing and protecting the country’s national parks, not only played a central

part in this case but has given its approval to the decree as one of the Government Plaintiffs. The

Court thus finds the heightened interest in the proximity of a national park well represented in

the decree.

The NPCA’s second argument essentially suggests that the Government Plaintiffs got it

wrong when they determined that the only damage to the Park from the five years of violations

was the costs associated with the April 2017 spill. (DE 80 at 7–8.) But the NPCA only theorizes

that there was additional damage, it has offered no proof that was the case. The Government

Plaintiffs, on the other hand, provided the Court with an NPS expert opinion that detailed why

the Government Plaintiffs sought only to recover the response costs and damages associated with

the April 2017 spill. That opinion noted that other than the beach closures associated with the

April 2017 spill, there was no evidence of damage outside of what could have occurred from the

releases allowed under the Facility’s NPDES permit over the preceding five years. (DE 47-4 at

3–4.) Finally, to the extent the NPCA and other non-parties to the decree are concerned about

future violations, the decree includes stipulated penalties for future violations and does not

prevent regulators from pursuing new enforcement actions should new violations occur.

And as for the NPCA’s third argument, the Court does not give it great weight for the

same reasons it found the civil penalty substantively fair and the decree’s provisions technically

adequate earlier in this opinion. (DE 50 at 20–22; DE 52 at 8–9.) While it is true that there were

violations at the Facility after U.S. Steel was made aware of the amount of the civil penalty, the

process of reforming the Facility was still within its early months at that time and it would be

unreasonable to expect immediate and total compliance that quickly. Further, the number and

severity of violations decreased after U.S. Steel was made aware of the civil penalty, which

suggests that the penalty did serve as a deterrent. The Court thus concludes the civil penalty, as

well as the rest of the decree, is reasonable and adequate in light of the public interest in this

case.

6. Relative strength or weaknesses of Government’s case

The final reasonableness factor largely mirrors the Court’s analysis of the first factor

within the substantive fairness portion of this opinion. There is no doubt that the Government

Plaintiffs have a strong case here given U.S. Steel’s admissions to many of the violations, but the

decree reasonably reflects that strong position. The Government Plaintiffs were able to negotiate

a decree with U.S. Steel that reformed the central functioning processes of the Facility itself and

imposed a host of new requirements at multiple levels of the Facility’s day-to-day operations,

including personnel management, daily chromium sampling, equipment upkeep, reporting

requirements, and longer-term areas of improvement for continued compliance. In addition to the

imposition of those technical requirements, the Government Plaintiffs also had U.S. Steel agree

to a substantial civil penalty, a costly environmentally beneficial project, stipulated penalties, and

ongoing periodic reporting requirements. (DE 46-1 at 15–21, 28–31, 36–40.) Finally, the

decree’s termination standards, including the two years of full compliance and need to include

the core requirements in the Facility’s NPDES permit, ensures the revised decree will still be

highly effective even after it is technically no longer in force. The Court considers those

provisions and agreements to be reasonable and adequate given the relative strength of the

Government Plaintiffs’ case against U.S. Steel.

In coming to this conclusion, and the overall conclusion that the decree is fair and

reasonable, the Court again notes that the Government Plaintiffs may have been able to impose

more requirements or force higher payments if they had fully litigated this case. But that is not

what happened, and it is not the Court’s role to decide this case as if it had or to substitute its

judgment for that of the parties bound by the decree. EEOC, 768 F.2d at 889; BP Exploration,

167 F. Supp. 2d at 1050. Both the Government Plaintiffs and U.S. Steel decided to negotiate in

good faith toward a settlement in the form of the revised decree now before the Court. “The

essence of settlement is compromise” and that is what the Court finds occurred here. See EEOC,

768 F.2d at 889. The Government Plaintiffs, with extensive public feedback, created and got

U.S. Steel to agree to a consent decree that addresses the root causes of the violations listed in

the complaint and has already led the Facility back toward compliance with its NPDES permit

even without being fully enforceable. The Court thus finds, given its individual evaluation of the

extensive record and the strong policy in approving a consent decree negotiated by federal

regulators with expertise in the environmental field, that the consent decree is reasonable,

adequate, and consist with applicable law.

IV. Conclusion

For the foregoing reasons, the Court DENIES the Surfrider Foundation’s and the City of

Chicago’s motion for an evidentiary hearing or oral argument (DE 90; DE 94) and GRANTS the

United States of America’s motion to enter the revised consent decree (DE 46). The Clerk is

ORDERED to enter judgment in accordance with the terms of the revised consent decree.

SO ORDERED.

ENTERED: August 30, 2021

/s/ JON E. DEGUILIO

Chief Judge

United States District Court