Michigan's Drinking Water State Revolving Fund Fails to Address the Water Affordability Crisis in Environmental Justice Communities

In 2018, Michigan significantly revised the State’s Lead and Copper Rule, the primary regulation controlling lead in drinking water. The Rule, which is regarded as the strongest in the nation, was widely lauded by drinking water advocates as a necessary response to address the shortcomings of the federal lead and copper rule, which were exposed during the course of the Flint Water Crisis.

One of the key requirements of Michigan’s revised Rule is that it requires every community water system to replace the entire portion of all lead service lines by 2041, or on another schedule approved by the Department of Environment, Great Lakes, and Energy. While this is the only way to effectively eliminate the risk of lead in drinking water, it comes with costs. While estimates vary, the cost to replace lead service lines generally ranges from $3,000 to $5,000 per line. With an estimate of 460,000 lead service lines in the State, the costs can quickly become daunting. This is of particular concern in environmental justice communities, which generally have high numbers of lead service lines, and which are already struggling with unaffordable water bills. Access to affordable and safe drinking water in many of Michigan’s cities, including Detroit and Flint, is tenuous and, for many residents, already non-existent. As such, it’s important that creative financing solutions are developed to remedy the existing and continuously growing crisis of access to affordable and safe drinking water.

The primary source of federal funds for drinking water infrastructure is the Drinking Water State Revolving Fund program. Established under the Safe Drinking Water Act, this program provides states with federal capitalization grants to fund drinking water infrastructure projects, so long as the state matches 20% of the federal grant. The state fund is generally used to issue low-interest loans to local water suppliers to pay for infrastructure upgrades. Historically, only “disadvantaged communities” have been eligible to receive grants instead of loans.

Michigan has recently published a draft of its “Intended Use Plan” for fiscal year 2020, which describes how the State plans to utilize its Drinking Water State Revolving Fund to pay for drinking water infrastructure upgrades. Particularly for environmental justice communities, these funds are more important than ever. However, the State’s Intended Use Plan leaves a lot to be desired:

  • The Plan proposes to provide grants for drinking water infrastructure improvements to wealthy communities, such as Lake Orion. Historically, grants have only been provided to “disadvantaged communities” that are struggling with water affordability issues. Providing these grants to wealthy communities fails to direct funding to the communities with the greatest need.

  • The Plan only provides 15% of its funds to “disadvantaged communities” in the form of grants. Both Illinois and Ohio have proposed to provide 55% of its funds in the form of grants.

  • Historically, Michigan has provided a single, flat interest rate for all communities regardless of economic status. Every other Great Lakes states, provide some type of discounted interest rate for environmental justice communities, some offering interest rates as low as 0%.

  • Michigan determines which cities qualify as a “disadvantaged community” by primarily relying on median annual household income. The American Water Works Association has stated the use of median annual household income for this purpose is “seriously flawed” and fails to accurately measure affordability.


Submit Your Comment On Michigan’s 2020 Intended Use Plan

How: Submit comments via email to Karol Patton at pattonk@michigan.gov

When: Comments must be submitted by 5:00pm Wednesday, 8/28

Link to 2020 Intended Use Plan: https://www.michigan.gov/documents/egle/egle-fd-mfs-DWRF-draft-DWiupppl2020_661272_7.pdf

Michigan Court of Claims Upholds Michigan's Revised Lead and Copper Rule

In a win for safe drinking water advocates, the Michigan Court of Claims recently upheld the State’s Lead and Copper Rule, which was significantly revised in the wake of the Flint water crisis. In an effort to protect Michiganders from exposure to lead in drinking water, the revised rule is more stringent than the federal rule of the same name, for example mandating the replacement of all lead service lines in the state by 2041, requiring additional tap sampling, requiring water systems to conduct a comprehensive inventory of the materials in their drinking water distribution system in order to identify locations of lead service lines, banning partial lead service line replacements, and lowering the lead action level from 15 parts per billion to 12 parts per billion.

The Oakland County Water Resources Commissioner, Great Lakes Water Authority, the City of Detroit, and the City of Livonia challenged many of these revisions, bringing suit against the Michigan Department of Environment, Great Lakes, and Energy (EGLE) in the Michigan Court of Claims in December 2018. In

The Great Lakes Environmental Law Center, in partnership with the Natural Resources Defense Council, filed an amicus curiae brief in support of EGLE. On July 26th, the court granted the MDEQ’s motion for summary disposition, rejecting the defendant waters systems’ challenge. 

Below is a brief summary of the arguments put forth by the water suppliers and local governments, and the court’s response in dismissing their claims.

Procedural Validity

 The plaintiffs first attempted to argue that the state did not follow proper procedures when revising the Lead and Copper rule, and therefore the rule was invalid. The plaintiffs claimed that the Regulatory Impact Statement (RIS) for the rulemaking did not include the estimated cost of compliance with the rules. The court held that, on the contrary, the RIS included the cost estimates and adequately addressed why the costs were necessary. Overall, the court found that the plaintiffs’ arguments concerned matters that could have been and were properly addressed during the public comment period, and simply because the plaintiffs disagreed with MDEQ’s conclusions did not mean that MDEQ failed to follow the requisite procedures.

Substantive Validity 

In addition to rejecting the plaintiffs’ arguments that the rules were procedurally invalid, the court also disagreed with the plaintiff’s contentions that the rules were substantively invalid. The plaintiffs asserted that the MDEQ exceeded its authority when it created rules that require water systems to replace the entire lead service line on both sides of the “curb stop” – the dividing line between the public portion of the line and the portion running under homeowners’ property, which is considered privately owned in some municipalities. The court disagreed and found that the Michigan Safe Drinking Water Act (MCL 325.1003) expressly grants EGLE the authority to regulate the entire waterworks system of a public water supply, which includes mixed public and private lines. Notably, the Michigan Safe Drinking Water Act’s statutory grant of jurisdiction is broader than what exists in the federal Safe Drinking Water Act. While both the state and federal law empower their respective administrative agencies to regulate the public water system, Michigan’s Safe Drinking Water Act broadly defines “public water supply” to include the entirety of the system of pipes and appurtenances through which water is obtained and distributed (See, MCL 325.1002(p), (x)). Comparatively, the federal Safe Drinking Water Act defines “public water system” to only include those distribution facilities under the “control” of the operator.

 Constitutional Claims

Finally, the court rejected plaintiffs’ claims that by requiring water supplies to pay for the cost of replacing private portions of lead service lines, the rules violated a provision of the Michigan Constitution that prohibits the state from lending credit (Mich. Const. art. 9, § 18). The court found that the supplies would not actually be lending credit under the rule because they could spread the replacement costs throughout the systems and thus would not be giving the service lines away for free, and further the supplies would be receiving a benefit in return: the elimination of potential sources of lead contamination in the drinking water system.

Moreover, even if there were a lending of credit, the court noted that paying for private lead service line replacement would fall under an exception that allows for the lending of credit where “provided by law, for any public purpose” (Mich. Const. art. 7, § 26) in that the costs expended would be for the public purpose of removing lead service lines and promoting public health.

Headlee Claim

 In addition to these claims, the plaintiffs also argued that the revised rule violates the Headlee Amendment of the Michigan Constitution, which prohibits the state from requiring municipalities to provide new or additional services without the state financing its mandate (Mich. Const. art. 9, §§25). In response, the state filed another motion for summary disposition, arguing that no such mandate exists in this case. The court has not yet issued its opinion on this “unfunded mandate” claim, but GLELC is optimistic that the court will once again find in favor of the EGLE and uphold the critical public drinking water protections set forth in the Michigan Lead and Copper Rule.

Conclusion

Pending appeal, the Court of Claim’s decision to uphold Michigan’s Lead and Copper Rule ensures that the strongest regulation regarding lead in drinking water will remain on the books. As local water systems begin the process of replacing all lead service lines throughout the state of Michigan, it will become increasingly necessary for both local water suppliers, EGLE, and the Michigan legislature to identify creative financing solutions to avoid the exacerbation of the rising issue of water affordability. This is particularly important considering that the greatest concentration of lead service lines are in Michigan tend to be in its communities of color and lower income, making this an important environmental justice issue. Simply put, all people should be able to afford clean drinking water. While the Michigan’s Lead and Copper Rule has survived its first legal hurdle, it likely has more to come. Additionally, the work to ensure that all people can afford lead-free drinking water remains.

American Rivers and Great Lakes Environmental Law Center Release Report Surveying How Great Lakes States Are Addressing Key Drinking Water Issues

The report, titled Protecting Drinking Water in the Great Lakes: A Primer on Existing State Policies and Using the Safe Drinking Water Act, was published by American Rivers. It was developed in partnership by American Rivers and the Great Lakes Environmental Law Center.

The report surveys how the 8 Great Lakes states are using state laws, regulations, and policies to address 10 key drinking issues impacting the region. The drinking water issues addressed are:

  1. Maximum Contaminant Levels, Treatment Techniques, and Monitoring Standards

  2. Lead as a Drinking Water Contaminant

  3. Consumer Confidence Reporting

  4. Loans and Grants

  5. Public Participation in Standards, Permits, and Enforcement

  6. Operator Certification

  7. Management of Drinking Water Emergencies

  8. Management of Algal Blooms and Their Consequences

  9. Private Water Supplies: Well Construction and Protection from Pollution

  10. Per- and Polyfluoroalkyl (PFAS) and Drinking Water

The report will be a valuable tool for community activists, environmental organizations, and policymakers working on drinking water issues throughout the Great Lakes region. It will enable these stakeholders to quickly reference how each state is addressing important drinking water issues, and to brainstorm effective solutions for their own state.

The full report is available here.

MDEQ to Hold an Additional Public Meeting And Provide Translation Services For Bengali and Arabic Speakers Regarding Proposal to Expand U.S. Ecology’s Hazardous Waste Facility

The MDEQ has agreed to host an additional public meeting regarding a proposal from U.S. Ecology that would allow the company to increase the hazardous waste storage and treatment capacity at its facility at 6520 Georgia Street on Detroit’s eastside. The public meeting will be held on March 28th from 6:00-9:30pm at Bridge Academy East (9600 Buffalo Street, Hamtramck). Starting at 7:30pm, the public will have an opportunity to provide comments to the MDEQ regarding the proposal. A full agenda of the public meeting in Arabic, Bengali, and English is provided below.

What does U.S. Ecology do?

U.S. Ecology owns and operates a hazardous waste facility located at 6520 Georgia Street in Detroit. It is currently permitted by the MDEQ to store 76,118 gallons of hazardous waste, and to treat 114,000 gallons of hazardous waste per day. The company accepts a wide variety of hazardous wastes from industrial processes.

The treatment process creates three main byproducts: wastewater, nonhazardous solid waste, and hazardous solid waste. Hazardous and non-hazardous solid wastes are disposed off-site. Wastewater is discharged into the Detroit sewer system in accordance with a permit issued to the company by the Great Lakes Water Authority. Discharges from the facility into the storm sewer system have exceeded the permitted levels on numerous occasions.

What is U.S. Ecology proposing to do?

U.S. Ecology is seeking a license from the Michigan Department of Environmental Quality that will allow it to increase the amount of hazardous waste that it stores and treats at its facility on Georgia Street. The proposed increases are provided below:

  • Proposing to increase hazardous waste storage capacity from 76,118 gallons to 676,939 gallons (9x increase)

  • Proposing to increase treatment hazardous waste treatment capacity from 114,000 gallons per day to 432,115 gallons per day (3x increase )

Didn’t the MDEQ already hold a public hearing regarding this issue?

The MDEQ did hold a public hearing regarding U.S. Ecology’s proposal in 2015. However, it did not provide any translation services to Arabic or Bengali speakers despite the presence of Bengali and Yemeni communities nearby the facility. Many residents in these communities speak and understand limited English, and without translation services they were unable to learn about U.S. Ecology’s proposal or provide meaningful input to the MDEQ.

What is the MDEQ doing differently at this public hearing?

As a result of the advocacy of local Yemeni and Bengali residents, in partnership with the Great Lakes Environmental Law Center and the Coalition to Oppose the Expansion of U.S. Ecology, the MDEQ has agreed to provide translation services for both Arabic and Bengali speakers to enable such residents to provide meaningful input to the MDEQ regarding the proposed expansion of U.S. Ecology’s hazardous waste facility.

Information about the proposal and the public meeting is available in Arabic, Bengali, and English at the MDEQ’s website.

A notice and agenda regarding the public meeting in English, Arabic, and Bengali is provided below. The MDEQ will also translate all documents regarding this issue into Arabic and Bengali, will translate its presentation at the public meeting into Arabic and Bengali, and will have Arabic and Bengali translators available on-site at the public meeting.

What are the issues with U.S. Ecology’s proposed expansion?

The proposed expansion continues the legacy of disproportionately locating hazardous waste facilities in low-income communities of color.

Studies by Paul Mohai of the University of Michigan’s School of Natural Resources and Robin Saha of the University of Montana have found a consistent pattern over a 30-year period of placing hazardous waste facilities in neighborhoods where poor people and people of color live. These communities are often seen as the path of least resistance, because residents in these communities have fewer resources and political clout to oppose the siting of unwanted facilities.

Michigan is no exception to this general trend:

  • There are 10 commercial hazardous waste facilities in Michigan that accept hazardous waste that is generated off-site.

  • 8 out 10 of commercial hazardous waste facilities in Michigan are located in Wayne county.

  • Collectively, 60,405 people live within 1-mile of the 10 commercial hazardous waste facilities in Michigan. 59% are low-income; 70% are people of color.

In short, commercial hazardous waste facilities in Michigan are concentrated in Wayne county and are disproportionately located in low-income communities and communities of color.

The proposal to expand U.S. Ecology would continue this disturbing trend. 10,021 people live within 1-mile of U.S. Ecology’s facility on Georgia Street. 81% are low-income; 65% are people of color.

Additional Documents

MDEQ Public Meeting Flyer (Arabic)

MDEQ Public Meeting Flyer (Bengali)

MDEQ Public Meeting Flyer (English)

MDEQ Public Meeting Agenda (Arabic)

MDEQ Public Meeting Agenda (Bengali)

MDEQ Public Meeting Agenda (English)

Additional MDEQ Documents (Arabic, Bengali, and English)

Great Lakes Environmental Law Center Comments Regarding the U.S. Ecology Proposal to the Wayne County Commission

UPDATED: Detroit Building, Safety Engineering and Environmental Department Extends Public Comment Period Regarding Marathon's Request for a Variance from the Detroit Dust Ordinance

The Detroit Building, Safety Engineering and Environmental Department (BSEED) has extended the deadline for public comment regarding Marathon’s request for a variance from the Detroit dust ordinance. Most importantly, Marathon has requested an exception from the Ordinance’s requirement that all petroleum coke be stored, processed, and handled in a fully enclosed structure. The public may submit comments until March 18, 2019. Comments may be submitted either online or by mail. Information regarding how to submit comments as well as Marathon’s request for a can be found here.

However, BSEED has not committed to hold another public hearing on Marathon’s request for a variance. While BSEED held a public hearing on January 23rd, it did so before it provided proper notice as required by section 22-5-64 of the ordinance. Contact BSEED to insist that they comply with the Detroit dust ordinance, and hold another public hearing so that residents can provide their input regarding Marathon’s request for several exemptions from the Detroit dust ordinance. Contact BSEED at 313-224-2733.

What is Petroleum coke?

Petroleum coke is an extremely dusty byproduct of oil refining. When stored in large quantities, it can create large amounts of fine dust, commonly referred to as particulate matter, which can blow into nearby neighborhoods and impact people’s health. A study commissioned by the City of Chicago found that the maximum predicted concentration of fine particulate matter from a petroleum coke pile placed outdoors was approximately 4,900 micrograms per cubic meter of air, which is 32 times the health-based ambient air quality standard set by the U.S. Environmental Protection Agency.

What does the Detroit dust ordinance require, and what is a “variance”?

In 2017, the city of Detroit passed an air quality ordinance to strictly regulate the storage of petroleum coke. This Ordinance requires all facilities in Detroit to store, handle, and process petroleum coke in a completely enclosed structure to limit human exposure to particulate matter pollution. However, a facility may request a “variance” from a requirement if they believe that compliance with the Ordinance will impose an unreasonable hardship. A variance is an exemption from specific requirements of the Ordinance that is granted on a case-by-case basis by BSEED.

Marathon has requested a variance from numerous requirements in the Detroit Ordinance, including the following:

  • Requirement that Marathon store, handle, and process petroleum coke in a fully enclosed structure

  • Requirement that Marathon conduct a street sweeping program in compliance with the Ordinance

  • Requirement that Marathon install a rumble strip for outgoing trucks to limit the track out of dust onto roadways

  • Requirement to conduct visual emissions observations

If Marathon is issued a variance, it does not have to comply with the specific requirements described above. Before being issued a variance, Marathon must demonstrate that being exempt from these requirements will not create a pubic nuisance, or adversely impact the surrounding area, environment, or property uses.

Additional Information

Detroit Dust Ordinance

Great Lakes Environmental Law Center Fact Sheet + Talking Points

Great Lakes Environmental Law Center Comments Regarding Marathon Variance Request

Marathon’s Variance Application

Marathon’s Fugitive and Coke Handling Dust Control Guide

Information About How to Submit Comments

Center releases report on how vegetative buffers can be used to improve local air quality and public health

Screenshot 2019-01-28 16.19.20.png

The Great Lakes Environmental Law Center is happy to announce the release of its latest report detailing how trees may be used to create vegetative buffers to improve local ambient air quality to improve pubic health in Detroit.

The report, titled “Vegetative Buffers and Tree Canopy: Promoting the Use of Trees to Improve Local Air Quality with Local Policy,” analyzes how trees and shrubs may be utilized to form vegetative buffers between common sources of air pollution, such as industrial facilities and roadways, and places where people live, work, and play. People that live near high-traffic roadways and industrial facilities are commonly exposed to high levels of several air pollutants, including particulate matter and a variety of gaseous pollutants.When properly designed and implemented, vegetative buffers can limit human exposure to these pollutants and improve the public health for people that are often the most overburdened by air pollution.

The Center, in partnership with the University of Michigan Dow Sustainability Fellows program and Detroit City Council Member Raquel Castañeda-López’s office, received feedback from local residents regarding the potential use of vegetative buffers in Detroit. This report details the feedback received from residents, scientific support for the use of vegetative buffers to improve local air quality, a review of existing Detroit laws and policies regarding vegetative buffers, and a survey of vegetative buffer ordinances from other cities.

Read the full report here:

https://drive.google.com/a/glelc.org/file/d/1FxidCMIgIG8XZ3b531NQvDtihLi6pOV-/view?usp=sharing

This report was made possible with funding from the Community Action to Promote Health Environments (CAPHE), a community-based participatory research partnership that includes community-based organizations, the health practice community, environmental organizations, and academic researches. Please read more about their work at: http://caphedetroit.sph.umich.edu/

GLELC Publishes Report Detailing How Supplemental Environmental Projects Can Promote Environmental Justice in Michigan

The Great Lakes Environmental Law Center is proud to release its latest report, titled “Furthering Environmental Justice in Air Quality Enforcement with Supplemental Environmental Projects.” The report details how supplemental environmental projects may be used to promote environmental justice in the context of air quality enforcement, the current obstacles in the Michigan Department of Environmental Quality’s (MDEQ) policy that prevent the wider use of supplemental environmental projects, and provides recommendations for how the MDEQ’s policy may be amended to better promote environmental justice through the use of supplemental environmental projects.

Supplemental environmental projects are environmentally beneficial projects that a violator agrees to undertake pursuant to an enforcement action that was initiated due to a violation of an air quality standard. For example, a supplemental environmental project may consist of a violator of an air quality standard agreeing to purchase and install a state-of-the-art air filtration system in a nearby school to improve indoor air quality, or agreeing to replace or retrofit old diesel engines in the community to improve outdoor air quality.

Particularly in Michigan, environmental justice communities often prefer that an enforcement action include a supplemental environmental project (SEP) because monetary penalties for air quality violations go to the state general fund and fail to provide community members with any form of redress for the excessive risk they have been exposed to due to the violation. As a result, supplemental environmental projects are a key method to further environmental justice. However, the MDEQ’s current supplemental environmental project actively disincentivizes the inclusion of supplemental environmental projects in negotiated settlements because a settlement with a SEP is inevitably more expensive than a settlement without a SEP. As a result, supplemental environmental projects are an underutilized tool to further environmental justice in Michigan.

This report is meant to serve as a resource for organizations and residents that are interested in how air quality enforcement interacts with the concept of environmental justice, and how supplemental environmental projects may be used to promote environmental justice. It is also meant to serve as a resource for state environmental quality agencies, particularly the Michigan Department of Environmental Quality, that are interested in promoting the use of supplemental environmental projects.

Read the full report here:

https://drive.google.com/open?id=1HrL3ZTqAmmrA7joibGuOykiLJO264H1V

This report was made possible with funding from the Center for Urban Responses to Environmental Stressors (CURES), an environmental health sciences core center headquartered at Wayne State University. Please read more about their work at: https://cures.wayne.edu

GLELC Visits Mosques to Discuss the Michigan Department of Environmental Quality's Obligations To Engage Yemeni and Bengali Residents Regarding Proposal to Expand Hazardous Waste Facility

The Great Lakes Environmental Law Center visited two mosques in Detroit and Hamtramck before Friday prayer on July 20, 2018 and spoke to the respective congregations about the proposal to expand U.S. Ecology’s hazardous waste facility, as well as the need for the Michigan Department of Environmental Quality to provide translation services to the Yemeni and Bengali communities.

U.S. Ecology is a hazardous waste treatment and storage facility that is located at 6520 Georgia Street on Detroit’s east side. The facility has proposed a 9-fold expansion in its storage capacity, and a 3-fold expansion in its treatment capacity. The Michigan Department of Environmental Quality held a public hearing regarding the proposal in 2015, but has refused requests from the Great Lakes Environmental Law Center and the Coalition to Oppose the Expansion of U.S. Ecology to hold another public hearing.Pursuant to Title VI of the Civil Rights Act of 1964, the U.S. Environmental Protection Agency has enacted regulations that requires any state environmental department that receives EPA assistance, including the MDEQ, to not discriminate on the basis of national origin. The prohibition against discrimination on the basis of national origin specifically prohibits conduct that has a disproportionate effect on people that speak or understand limited English. As such, EPA regulations affirmatively requires the MDEQ to provide people that speak or understand limited English with the ability to meaningfully access its programs.

While the MDEQ has held a public hearing regarding the proposed expansion, as required by law, it did not provide any notice of the public hearing in Arabic or Bengali. It also did not translate other vital documents, such as the fact sheet that describes the basic information about U.S. Ecology’s proposal, into Arabic or Bengali.

According to data from the U.S. Census Bureau, there are significant number of immigrants nearby U.S. Ecology, most of which are Yemeni or Bengali. One mosque that we visited on Friday is approximately 1,600 feet from the fence line of U.S. Ecology. Additionally, in the neighborhood surrounding the Hamtramck Public Library, which was the location of the MDEQ’s public hearing regarding U.S. Ecology in 2015, approximately 47% of people are immigrants and 20% speak limited English.

While the Center wrote a letter detailing these concerns to the MDEQ in early June, we have not received any response. We are urging concerned residents to contact Richard Conforti and Katie Kruse at the Michigan Department of Environmental Quality, whose contact information is provided below. Concerned residents should urge the MDEQ to:

  • Comply with EPA non-discrimination regulations, which prohibits the MDEQ from discriminating on the basis of national origin.
  • Hold an additional public hearing, with notice of the hearing provided in both Bengali and Arabic
  • Provide information regarding the proposed expansion of U.S. Ecology in both Arabic and Bengali so that all community residents can provide the MDEQ with meaningful input.

Richard Conforti, Waste Management and Radiological Protection Division

 

Katie Kruse, Environmental Justice Liaison:

Concerned residents can also distribute flyers with information about U.S. Ecology and the MDEQ’s obligation to provide information in Bengali and Arabic to others in their community. Flyers are available in Arabic, Bengali, and English via the links below:

Bengali Flyer
https://drive.google.com/file/d/1Bw2H9ZdvjyoY43P9grE29wDWXss_Xfxr/view?usp=sharing

Arabic Flyer
https://drive.google.com/file/d/1JElTGNxud-fXjuePKt9dgMzpl6Yz1z8v/view?usp=sharing

English Flyer
https://drive.google.com/file/d/1U8v0TEdBVvpQqXhE9pzejahmzRy5JTr6/view?usp=sharing

Michigan Supreme Court Issues Key Decision In Favor Of Community Residents and Environmental Organizations in South Dearborn Air Permitting Case

This week, the Michigan Supreme Court issued a key ruling in an air permitting case involving AK Steel in South Dearborn. The Great Lakes Environmental Law Center and Olson, Bzdok & Howard P.C. served as plaintiff counsel in the case. Chris Bzdok from Olson, Bzdok & Howard P.C.  argued the case in the Michigan Supreme Court. In South Dearborn Environmental Improvement Association, Inc. v. Department of Environmental Quality, by a 4-3 decision, the court held that a petition for judicial review of the issuance or denial of a permit to install for an existing source must be filed within 90 days of the Michigan Department of Environmental Quality’s final permit action. In ruling that the petition for review must be filed within 90 days, the Michigan Supreme Court overruled the decision of the Michigan Court of Appeals, which found a petition for review must be filed within 60 days, and rejected the position of AK Steel and the Michigan Department of Environmental Quality, both of which argued that a petition for review must be filed within 21 days.

 

The ruling of the Michigan Supreme Court is significant for two primary reasons. First and foremost, since the plaintiff’s permit challenge was filed within 59 days, which is well within the 90-day filing period the court found to be applicable, the challenge can now move forward to the substantive issue. Second, this ruling is significant because it is generally favorable for environmental organizations that may seek to challenge permits to install for existing air pollution sources going forward. The Michigan Supreme Court held that the permit appeal at issue must have been filed within a 90 days, as opposed to the 60 days previously required by the Michigan Court of Appeals or the 21 days argued for by AK Steel and MDEQ. In doing so, it has ensured that residents and environmental organizations will have 90 days should they wish to challenge permits to install issued by the MDEQ to existing facilities. This grants residents and environmental organizations with a sufficient amount of time to file their appeal, and ensures that they will have their day in court.

With the decision from the Michigan Supreme Court, the case will now go back to the state circuit court for consideration of the substantive issues involved in the MDEQ’s permitting decision. The key substantive issue is whether the Michigan Department of Environmental Quality had the legal authority to issue a correction to an existing permit to install and to “grandfather” the correction by applying the laws and regulations that existed at the time when the original permit was issued, rather than at the time the revised permit. The Great Lakes Environmental Law Center has argued that the MDEQ lacked authority to revise a permit to install. Instead, it must issue a new permit to install and apply the more stringent air quality regulations that were in effect at the time of permitting. We’re looking forward to litigating the substantive issues in the case.

Say Hello to Erin Mette, the Center's 2018 Equal Justice Works Fellow!

The Great Lakes Environmental Law Center is excited to announce that in September 2018 it will welcome Erin Mette, who will join the Center as an Equal Justice Works fellow. Erin’s fellowship project will focus on protecting children in Detroit and Flint from home-based environmental health hazards by providing legal counseling and representation to affected families and advocating for policy that addresses the root causes of this unique environmental justice issue.

For too many residents in environmental justice communities, their home is a hazard to their health. Home-based environmental health hazards include lead paint on the walls of older homes and a lack of access to clean drinking water due to lead contamination and water service shutoffs. Many of these homes that contain environmental health hazards are the homes of children, who are especially vulnerable to the life-long health impacts that these hazards cause. Additionally, these hazards disproportionately affect children in low-income communities of color, whose voices have typically been excluded from the process of creating and enforcing the standards meant to prevent such harms. The families impacted by home-based environmental health hazards overwhelmingly lack access to legal services to help them address these issues. Through her Equal Justice Works fellowship, Erin will provide a wide variety of direct legal services to families confronting home-based environmental health hazards to ensure that those families are being adequately protected from such hazards.

Erin’s Equal Justice Works fellowship is for a term of two years and is sponsored by Munger, Tolles & Olson LLP and an anonymous donor. Equal Justice Works is a nonprofit corporation dedicated to creating a just society by mobilizing the next generation of lawyers committed to equal justice. Each year, it provides funding to a limited number of applicants that have proposed innovative public interest law projects that seek to address pressing legal issues around the country through a highly competitive and rigorous process. Erin is the Center’s second Equal Justice Works fellow. The Center’s current staff attorney, Nick Leonard, initially joined the organization in 2014 through an Equal Justice Works fellowship.

Erin Mette is a 2018 graduate of Wayne Law and also holds a Master of Science from the University of Michigan School of Natural Resources and Environment as well as a Bachelor of Arts from Kalamazoo College. During her time at Wayne Law, she was a student in the Transnational Environmental Law Clinic. 

After public hearing CMS Energy withdraws application to expand power plant across from Salina Elementary School

Dearborn Industrial Generation, owned by CMS Energy, has withdrawn its application to install an additional 263 megawatt combustion turbine generator at its natural gas-fired power plant located across from Salina Elementary School at 2400 Miller Road in Dearborn, Michigan. The expansion was estimated to result in significant increases in a number of air pollutants, including 416 tons per year of nitrogen oxides, 913 tons per year of carbon monoxide, and 167 tons per year of volatile organic compounds.

The power plant is located within 700 feet of Salina Elementary, and is nearby a community with a large immigrant population. It is located in close proximity to other major sources of air pollution, including AK Steel and the Ford Rouge Complex. At the public hearing, community residents expressed concerns about the potential health impacts that would result from allowing more air pollution to be emitted close to an elementary school in a neighborhood that already suffers from poor air quality. Many asserted that allowing a facility to increase its air pollution in a predominantly immigrant community would amount to an environmental injustice. 

Early on, Great Lakes Environmental Law Center identified the proposed expansion as a potential environmental justice issue. While the MDEQ initially proposed a 30-day public comment period in October, the Center identified that none of the public notice and comment documents provided by the MDEQ were available in Arabic despite 40% of residents in the community having limited English proficiency. Based on concerns raised by the Center that residents would not be able to effectively participate in the public comment process, the MDEQ extended the public comment period by two months and translated some of its public participation documents into Arabic. “When DEQ considers applications for facilities that will be located in areas where there is a significant minority or low income or non-native English speaking population, it must adhere to basic environmental justice principles,” said Oday Salim, Executive Director and Managing Attorney of the Great Lakes Environmental Law Center. He  added “Providing 30 days of public comment with no real local outreach and no translation into Arabic and other relevant languages was inexcusable. Thank goodness the Southend Dearborn community was brave and resilient enough to make their voices heard.”

The Center worked with several residents and organizations to develop lengthy written comments in opposition to the proposed expansion. With the assistance of students from the Wayne State University Law School Transnational Environmental Law Clinic, the Center identified several legal issues regarding the proposed expansion and presented those concerns to the MDEQ. “The Clean Air Act requires that major modifications at major air pollution sources such as this facility install the best available control technology to control emissions and preserve air quality in the area. We identified other similar facilities that used more effective pollution control technology” said Nick Leonard, Staff Attorney of the Great Lakes Environmental Law Center.

All people, especially children, should be able to breathe freely in the places that they live, work, go to school, and play -- no matter their race, national origin, or income level. Moving forward, DEQ needs to learn from this experience and improve its permitting approach in environmental justice communities.

SAVE THE DATE!

4TH ANNUAL BLUE WATER BASH
THURSDAY, NOVEMBER 9, 6:30-10PM
TONY V'S (5756 Cass Ave Detroit, MI)

Our 4th Annual Blue Water Bash is coming up! At the Bash, we get to thank the communities we work with & our clients, our staff & board, the students & interns who devote their time to our cause, and our funders & collaborators.

We also recognize the value of journalism to our work and the work of other environmental professionals by presenting our Excellence in Environmental Journalism award. This year, we are celebrating the contributions of Anna Clark. Anna has written numerous articles about the Flint water crisis and is currently writing a book about the subject. She has written about the continuous evolution of Detroit and other Michigan cities. And she is a tireless advocate of journalism as an institution. You can find her work here.

Please join us. There will be food, refreshments, and great tunes. Tickets are $15 and can be purchased beforehand online with a credit card, or at the event with cash or check.