East Chicago residents want say in lead cleanup

As families in the West Calumet Housing Complex have upended their lives and relocated to other communities, the East Chicago neighborhood, with contamination levels high enough to make it a Superfund site, has welcomed several political dignitaries in recent months.

Indiana Gov. Eric Holcomb has made trips up I-65 to the city and signed emergency declarations as well as a bill to provide state resources to help clean the lead and arsenic from the ground. Also, U.S. Environmental Protection Agency Administrator Scott Pruitt and U.S. Housing and Urban Development Secretary Ben Carson have visited the contaminated neighborhoods.

The officials are keeping the spotlight on the USS Lead Superfund Site that was listed among the worst contaminated sites in the United States in 2009.

Waterhouse Waterhouse

However, Carlton Waterhouse, director of the Environmental, Energy and National Resources Law Program at Indiana University Robert H. McKinney School of Law, still sees no real political will to address the larger problem of industrial contamination. Especially among Midwestern states that have substantial manufacturing bases, state officials have been slow to commit the resources needed to remediate the known toxic sites and identify other geographic areas with significant environmental and public health issues.

To underscore his point, Waterhouse pointed to Senate Bill 491, introduced in the 2017 session of the Indiana General Assembly, which would have increased lead-poisoning screenings for children on Medicaid. It never received a hearing. Already, federal law requires children receiving Medicaid benefits to undergo the tests, but according to a 2012 report from the Indiana Department of Health, only 28.9 percent of Hoosier youths had been tested.

State and federal officials who have visited East Chicago have expressed their commitment to cleaning the site and helping residents. While the Legislature rejected the lead-testing bill, it overwhelmingly approved House Enrolled Act 1344, which pushes state agencies to cooperate with federal agencies in the cleanup effort and requires Indiana Department of Environmental Management to test the East Chicago water supply for lead.

In addition, lawsuits seeking damages for the residents in the site are percolating in the courts. A quick search of the docket found at least seven complaints filed in federal court alone.

Samuel Henderson, staff attorney for the Hoosier Environment Council, is keeping watch on a separate legal action that he believes could have a broad impact on public policy well beyond East Chicago. The residents are trying to intervene in a consent decree reached between the federal government and the companies that left the lead and arsenic pollution.

If they are successful, Henderson said community members at other Superfund sites could be given a greater voice in determining the cleanup process.

‘Somebody’s got to pay’

Chizewer Chizewer

East Chicago residents and community groups decided to become part of the consent decree because, according to their attorney David Chizewer, they did not feel the cleanup was proceeding fast enough, nor was the scope of the remediation broad enough. Among the specific concerns are the potential for toxins getting into the air and groundwater during the planned demolition of the West Calumet Housing Complex.

The housing project and a neighborhood of single-family homes sit on the USS Lead Superfund Site. These dwellings sprouted while the factories were still open for business and the entire area, including the housing project, now contains more than 1,000 houses, plus parks, schools and public buildings.

Building on former manufacturing grounds is not uncommon. Waterhouse noted many public schools and low-income neighborhoods were constructed in the 1970s on what are now Superfund sites. At that time, the harms that come from lead were not appreciated but as homes went up, the well-to-do stayed away and working-class whites, African-Americans and Hispanics moved in.

In the 1980s, the risks of living on top of industrial sites were becoming better understood and the Superfund program was created to try to limit the danger. Henderson said East Chicago is one illustration of the bargain many communities made in the 20th century. Pollution was overlooked because the companies were providing jobs, but today the jobs are gone and the contamination remains.

Chizewer, principal at Goldberg Kohn Ltd. in Chicago, is not convinced the factories did not know about the harmful effects of their processes. At least some companies knew and they should have taken steps to limit the public’s exposure, he said. With the health problems residents are facing, the manufacturers need to be held accountable.

“People are suffering and somebody’s got to pay for it,” Chizewer said. “Shouldn’t it be the people benefiting from the actions that happened on the property? Shouldn’t they bear a greater burden than society as a whole?”

Chizewer and Goldberg associate attorney Emily Gilman are representing the residents pro bono in their motion to intervene in United States of America and State of Indiana v. Atlantic Richfield Company and E.I. Du Pont De Nemours and Company, 2:14-cv-00312.

The residents lost the first round. Their motion was filed about two years after the consent decree was approved by the U.S. District Court for the Northern District of Indiana. Magistrate Judge Paul Cherry ruled in May 2017 that the motion was untimely filed.

Henderson said he understands that timeliness is an issue. There are reasons for laws and regulations but sometimes, as in this case, the rule “got in the way of justice.”

Trying to be heard

The residents have filed an objection, hoping to persuade Judge Phillip Simon to find in their favor.

They argue, contrary to the EPA’s position, the case is not closed since the federal agency modified the consent decree after it was approved by the court in 2014. Moreover, the decision to demolish West Calumet fundamentally altered the cleanup plan, and the neighbors were not notified or nor given the opportunity to comment.

“This failure to engage residents is significant considering the great risk of further contamination or recontamination posed by this demolition project,” the residents stated in their objection.

The EPA could not answer questions about the cleanup or the consent decree by IL deadline.

Gilman Gilman

Essentially, the residents want to have a say in how the cleanup is done, Chizewer and Gilman said. Contending the EPA failed to implement its remediation plan and did not give adequate information about the levels of contamination, the motion to intervene asserts the residents’ property values have plummeted and they fear for their safety and health.

Working with the residents in East Chicago, Henderson has seen the impact their advocacy has had. Most recently, the neighbors were able to get a public hearing after HUD found the demolition of West Calumet would have “no significant impact” on the “quality of human environment.”

Although the meeting turned out to be frustrating for the residents because HUD officials did not answer questions and could still see no significant impact, Henderson said getting the agency to listen to the public is one testament to the strength of the residents.

“I think we’re seeing a re-energized environmental justice movement in this area,” he said.•

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