Site of benzene pollution at Sparrows Point, with Key Highway Bridge in background.

Photo by: Mark Reutter

 Perhaps what’s most significant about the Chesapeake Bay Foundation’s long-anticipated lawsuit over Sparrows Point pollution is whom it doesn’t blame.

Filed on Friday, the lawsuit backs away from the group’s earlier assertion that the U.S. Environmental Protection Agency and Maryland Department of the Environment (MDE) failed to enforce a 1997 consent decree that was supposed to clean up hazardous wastes at the steel mill.

A year ago, CBF announced with great fanfare its intention to sue EPA and MDE – as well as the present and former owners of the mill – for causing “imminent and substantial endangerment to public health and the environment.”

In a press release then, CBF President William C. Baker said, “Sadly, federal and state agencies have not met their responsibilities at Sparrows Point” by allowing cancer-causing benzene and other chemicals to seep into Baltimore waterways.

Benzene and other chemicals are still seeping into the waterways – last month EPA project coordinator Andrew Fan said the benzene plume flowing from Sparrows Point was similar in composition to the Deepwater Horizon oil spill in the Gulf of Mexico.

But the CBF lawsuit filed in U.S. District Court in Baltimore drops EPA and MDE as culpable parties and instead seeks fines and an injunction only against Severstal North America, which currently owns the mill, and ArcelorMittal, which purchased the plant from Bethlehem Steel Corp. in a 2003 bankruptcy sale.

“It’s time to draw a line in the sand,” CBF President Baker said on Saturday on the CBF website, adding, “Our lawsuit will petition the court to require [Severstal] to stop this pollution, and to do a full assessment of the risk to human health and the environment.”

This is the second time the Bay advocacy group has backed away from challenging EPA. Two months ago, the group withdrew a lawsuit against the agency for neglecting its legal responsibility to clean up Chesapeake Bay. The decision to settle with EPA came after the Obama administration pledged to accelerate the pace of the agency’s 26-year-old Bay remediation effort.

CBF Litigator Criticizes Delays

In interviews with The Sun published on Friday, Bay Foundation officials said they were pleased that regulators had increased pressure on Severstal to take action to stem pollution. Jon Mueller, vice president of litigation, said the lawsuit was aimed at accelerating the clean up of toxic metals that have contaminated Bear Creek and other waterways.

But just five months ago, on February 24, Mueller sent a blistering letter to EPA accusing the agency of “failing in its obligations to protect human health by not requiring an immediate human health risk assessment of the contaminants found in Bear Creek.”

Mueller called on EPA to “require Severstal to immediately develop a work plan” for studying the risk to human health at Bear Creek.

The letter continued: “One of the primary reasons we issued our notice letter [to sue EPA and others] was due to the tremendous delays associated with the completion of tasks required under the 1997 consent decree… A human health risk assessment must proceed at a more rapid pace.”

EPA has still not required Severstal to conduct a human health risk assessment at Bear Creek. Instead, the agency has asked the company to install a groundwater pumping system at the Coke Point site.

Severstal’s chief lawyer, Scott Dismukes, said the company would not clean up Bear Creek because the 2003 bankruptcy sale freed the company from dealing with so-called “historic” pollution.

While government regulators dispute this claim, saying the bankruptcy proceeding did not change the terms of the decree, they have not yet resolved this issue – more than 10 months after it was first raised by Dismukes.

Clean Up May Still be Years Away

In an interview with the Brew last November, Mueller said regulators should try a fresh approach to resolving Bear Creek and other outstanding matters.

“The state and federal governments should either compel action by Severstal or use Superfund to clean up the site and seek to recover their costs from Severstal,” he said. (Superfund is the common name for the federal program that cleans up hazardous waste sites that threaten public health or the environment.)

By excluding EPA and MDE in the lawsuit, the CBF appears to have endorsed the agencies’ approach of slowly wrangling out studies of chemical pollution by the steel company.

Which means that even if Severstal consents to more studies, several more years will likely pass before so-called “final action” is determined for cleaning up Bear Creek and other waterways.