Summer 2022: Vol. 24, No. 2

NELC asks DOJ to spur action on lead-contaminated Superfund site in Idaho

KELLOGG, Idaho—In March, NELC Litigation Director Chuck Caldart wrote to the U.S. Department of Justice (DOJ) expressing concern over long standing toxic metal contamination at the Bunker Hill Superfund Site in Idaho’s Coeur d’Alene River Basin, and urging the government to make the site an immediate priority.

More than 100 years of mining and milling practices spread heavy metals, including lead, mercury, and copper, throughout much of the region’s soil, groundwater, and surface water. Despite the Environmental Protection Agency’s designating the area as a National Priorities List Superfund site almost 40 years ago, the contamination is so widespread that residents still live in perpetual danger of exposure to these metals. The pervasive nature of this public health threat is seen in children who consistently show blood lead levels dangerously above the national average.

The Centers for Disease Control and Prevention (CDC) calculates a blood lead “reference value” to identify children with high levels of lead in their blood. The level is based on the 97.5th percentile of the blood lead values among U.S. children ages 1 through 5—meaning only 2.5% of all children in the country have a blood lead level (BLL) at or above the reference level. As of 2021, that CDC reference value is 3.5 micrograms of lead per deciliter (ug/dL) of blood. The average BLL of children tested in the Coeur d’Alene River Basin was precisely 3.5 ug/dL in 2020, and numbers ranged from 2.4 to 4.3 ug/dL over the previous 10 years, indicating that Bunker Hill children are consistently among the most heavily
exposed to lead in the nation.

The EPA appears to acknowledge the severity of this problem, but the agency’s published health guidance for the area places much of the burden of reducing lead exposure on Basin residents themselves. To minimize lead contamination in their homes, residents are advised to avoid areas with “bare dirt,” to rinse or dust off clothes after venturing outdoors, and to wash pets who have played in the dirt or river. Not only are these suggestions impossible to apply consistently, but they are also “band aid” measures that largely serve to illustrate just how far the EPA is from actually solving the problem.

The Silver Valley Community Resource Center (SVCRC), a local nonprofit dedicated to fighting lead contamination in the Coeur d’Alene River Basin, initially reached out to NELC asking for support in speeding up the cleanup process. Our letter to the DOJ expressed support for SVCRC’s aim to establish a community lead health center as a resource that could significantly improve access to lead health testing and services in the region. The hope is that our letter will serve as a push for state and federal agencies to redouble efforts to protect the environment and public health in these historic Northern Idaho communities.

U.S. Steel under fire on multiple fronts

PITTSBURGH—U.S. Steel Corporation’s three Mon Valley Works facilities—Clairton Coke Works and the Edgar Thomson and Irvin steel mills— are among the largest sources of industrial air pollution in western Pennsylvania. Cracking down on the company’s ever-expanding record of environmental violations has become nearly a full-time job, not only for the litigation team at NELC, but also for the enforcement staff at the Allegheny County Health Department (ACHD), the agency assigned to oversee Clean Air Act compliance.

In April 2019, NELC attorneys sued U.S. Steel after the company chose to operate the three Mon Valley plants for more than 100 consecutive days without essential air pollution control systems. A massive fire on Christmas Eve 2018 had destroyed the area of the Clairton plant responsible for removing pollutants from coke oven gas, which is generated in enormous quantities and combusted as fuel at all three facilities.

Documents obtained in the litigation, which was filed on behalf of PennEnvironment and the Clean Air Council, show that the fire was the result of fully preventable equipment breakdowns and that emissions of sulfur dioxide, hydrogen sulfide, and fine particles into surrounding neighborhoods soared above state and federal odor and safety thresholds.

Another preventable fire at the Clairton plant caused a second pollution control outage in June 2019, after which ACHD joined our lawsuit as a co-plaintiff.

On Jan. 26, 2022, U.S. District Court Judge W. Scott Hardy heard oral arguments on NELC’s motion seeking a pre-trial ruling that U.S. Steel had violated the Clean Air Act more than 10,000 times as a result of these breakdowns. For nearly five hours, Senior Attorney Josh Kratka walked the court through the extensive factual record and made the case that U.S. Steel’s own records and other undisputed evidence unequivocally establish the company’s liability.

If NELC’s motion is successful, a trial would then focus on the plaintiffs’ request that an outside monitor be appointed to overhaul U.S. Steel’s environmental compliance and that a civil penalty be assessed to deter future non-compliance and recoup the economic benefit the company gained through its violations. Penalties can be as high as $100,000 for each violation.

In other developments, ACHD issued a report in March conclusively establishing that U.S. Steel’s Clairton plant is the source of elevated hydrogen sulfide levels in the area, a fact that has been obvious to local residents but denied for years by U.S. Steel. Hydrogen sulfide has a powerful rotten egg odor and can cause headaches, eye irritation, and fatigue.

Also in March, ACHD assessed three separate administrative fines against U.S. Steel—totaling more than $7 million—for air emission violations occurring at areas of the Clairton plant completely separate from those at issue in NELC’s lawsuit.

NELC launches redesigned website: NELC.org

BOSTON—In April, NELC launched its redesigned website at a new, simplified web address, NELC.org. More than a year in the making, the new website provides expanded content, incorporates updated logos and imagery, and includes intuitive ways for visitors to learn about our work.

Crafted for a wide audience—including NELC supporters, community activists, other environmental organizations and legal practitioners, and job applicants—the site organizes NELC’s advocacy according to the broad issue areas our work addresses, such as clean air, clean water, and species protection. Visitors can review a synopsis of the historical and legal framework for each issue and browse NELC’s 30-plus years of enforcing environmental laws. Case summaries cover decades of successful litigation, with links to contemporaneous press releases, newsletter articles, and media reports.

“NELC’s track record of holding the nation’s largest polluters accountable speaks for itself—and our redesigned website reflects that,” explains NELC Attorney Matt Donohue. “The new website puts this work front and center, allowing NELC members to explore our history and the many accomplishments enabled by their financial support.” NELC encourages all of our members to visit NELC.org and to reach out with any feedback.