Did Michigan violate civil rights law with its per...

Did Michigan violate civil rights law with its permit to US Ecology?

map with pinpoint on US Ecology facility

In November of 2018, an explosion at a US Ecology facility just outside Grand View, Idaho, population 450, killed one person and injured three. The official cause for the incident was identified as “non-conforming waste in the treatment process” or a chemical reaction caused by materials that weren’t supposed to be there. 

“Most of the skin has been blown out, and much of the metal has been bent,” Simon Bell, chief operating officer and vice president of operations for US Ecology, which owns facilities in the United States and across the globe, said of the building where the explosion occurred.

Some are worried about what would happen should a similar event occur at the US Ecology North facility located at 6520 Georgia St. in Detroit, where the state recently granted the company a permit to expand to roughly nine times its current size and store 677,000 gallons of hazardous waste, including PCBs, mercury, arsenic and PFAS. 

The permit to expand was issued by Michigan Department of Environment, Great Lakes, and Energy (EGLE) on January 29. The agency claims it followed all regulatory requirements in making its decision, stressing in a statement to Planet Detroit that their permitting decision “was bound by the laws and regulations that we enforce” and that “changes in those laws and regulations would require legislative action.”

But activists are trying a different tact: civil rights law. On July 27, the Great Lakes Environmental Law Center (GLELC) filed a civil complaint with EGLE, alleging that the US Ecology permit violates the agency’s obligations under Title 6 of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin for programs receiving federal assistance. 

“What we’re telling EGLE is that we think your processes for making decisions about hazardous waste licenses are having a discriminatory effect for people of color,” Nick Leonard, executive director for the GLELC, told Planet Detroit. 

The complaint charges that EGLE’s decision perpetuates a history of environmental racism in the community, and that the agency failed to properly engage residents who had limited English proficiency. This relatively uncommon legal challenge has the potential to force an agreement or investigation that could change not only the handling of the US Ecology permit, but how minority populations are protected from hazardous waste facilities statewide.

Neighborhoods surround US Ecology North, and it’s within a mile of Hamtramck, the most densely populated city in Michigan. Pamela McWilliams, who lives just to the south of the facility on Concord Street, is one of many concerned about a potential incident. 

“I find myself late at night sitting on the porch thinking, this is serious. What if something happens, will I make it out?” she said during a recent internet town hall hosted by the Michigan Environmental Justice Coalition.

McWilliams worries about the treatment chemicals that the company discharges into the sewer system. (The facility has permission to release 300,000 gallons of treated wastewater daily, an amount that is not supposed to increase with the expansion.) She and her neighbors suffer frequent sewer backups, which she fears could transport chemicals into her basement. 

In 2013, yellow foam that US Ecology claimed was soap bubbled up through the sewer system and covered a large area on Georgia street. The substance was never tested to see if it posed any environmental or health risks. “I’m worried about a flood,” McWilliams says of the potential for a large storm to cause backups. “How will we know? What if we’re asleep, and we don’t get a chance to evacuate?”

David Crumrine, director of marketing at US Ecology says that company’s facilities “require a detailed waste acceptance plan” and that “this practice ensures safety and is continuously updated based on lessons learned across the businesses, including lessons from the Idaho incident.” EGLE has also downplayed the threat to residents, writing in a historical summary of the facility that the “surrounding area has gone from residential to industrial”, a summation that those opposed to the project reject.

The backstory on on hazardous waste and inequity in Wayne County

It’s clear that Wayne County bears an outsize burden when it comes to hazardous waste facilities. Six of Michigan’s eight hazardous waste facilities that accept off-site material are in Wayne County, with another one just north of the border in Ferndale. According to the GLELC complaint, these facilities and one relatively small facility in Allegan County process 316,548 tons of material a year or the weight equivalent of about 914 Boeing 747s. Roughly 70% of the waste comes from outside the state. US Ecology North receives less out- of- state waste than most facilities, with about 80% coming from Michigan, but roughly 98% of the material it takes in comes from outside Wayne County.

In its complaint— filed on behalf of several individuals in Hamtramck and Detroit— GLELC says that 80% of those within a three-mile radius of the facility are people of color, 70% are low income and 12% have limited English proficiency. Overall there are 8,910 people within a mile of the facility and a number of churches, mosques, schools and nursing homes located inside a 1.5 mile radius. As for EGLE’s claim that the neighborhood has transitioned from residential to industrial, the complaint says this effectively continues “the erasure of the many people of color that do live nearby the Facility.” 

GLELC argues that designating this area as industrial is  an extension of Detroit’s history of redlining and the city’s 1951 Master Plan that designated many Black neighborhoods as industrial corridors, creating the conditions for neglect and environmental racism. 

“Any inaction to address the root cause of that facility being there…is inherently a continuation of that legacy” Leonard says.

The permitting decision is likely to add to the pollution burden residents already experience as a result of industries like Flex-n-Gate, Strong Steel and various trucking companies that produce odors, dust and other emissions in the area. McWilliams says that these emissions have contributed to her asthma, and she is concerned the US Ecology expansion would exacerbate the problem by bringing more truck traffic and with it more diesel emissions and dust.

Crumrine argues that US Ecology North produces less than 10% of the truck traffic in the area, although it’s unclear what kind of increase the expansion could create.

Residents may also be left in the dark about what effect if any the facility is having on soil and groundwater. Although US Ecology North is not technically a disposal facility, it will be storing and treating large amounts of material on site. Concerned residents may not take much comfort in EGLE’s decision to extend waivers for soil and groundwater monitoring requirements at the site, even though US Ecology will be adding a new building and three 30,000 gallon pits for treating waste. 

If you’re a person of color in Michigan, you’re much more likely to live near a hazardous waste facility than not. A 2007 report cited in the complaint found that in neighborhoods that host a hazardous waste facility, 66% of residents were people of color; in non-host neighborhoods, people of color comprised only 19% of the population   The report also found that within three miles of these facilities, 65% of the residents are people of color, even though this group made up only 25% of the state’s total population during the time.

Abraham Aiyash, a Hamtramck native running to represent the 4th district in the Michigan House, compares the situation to “someone who lives 20 minutes away from you and they are deciding every single day to come in and throw all their garbage on your front lawn…It means that they don’t respect you, they don’t dignify you as a person.”

A unique legal strategy

Historically, civil rights challenges for environmental issues haven’t had much success at the federal level, although Leonard says this is the first time this kind of complaint has been brought against EGLE. 

GLELC feels that in light of Gov. Whitmer and EGLE’s professed desire to pursue environmental justice–which has included the creation of the Michigan Advisory Council for Environmental Justice and appointing an Environmental Justice Public Advocate–they have an opportunity to press the issue.

The complaint draws a distinction between whether or not the permit is technically legal and how it impacts the surrounding community. 

“The fact that EGLE does not select the site in a license application does not relieve it of the responsibility of ensuring that its actions in issuing licenses for such facilities do not have a discriminatory effect,” it reads. In other words, EGLE needs to account for the “adverse disparate effects on individuals” and not just the legality of the project itself.

The issue of inadequate translation for the hearings is also built into the complaint. EGLE says it translated key documents during the hearings into Arabic and Bengali for the many Yemeni and Bangladeshi Americans in the area. However, Leonard says that the first public meeting concerning the expansion was held entirely in English and that the agency only provided translation for a 2018 meeting when GLELC told them that it was a clear civil rights violation.

But Aiyash says that the translators for that event, “were not able to effectively get the message across. A lot of folks were left confused.” By bringing limited English speakers into the hearings later than others and providing inadequate translation, the complaint argues that EGLE has failed in their Title VI requirement to not discriminate on the basis of national origin.

Over the next 90 days, EGLE and those lodging the complaint will attempt to come to an agreement, which could include a modification to the permitting for US Ecology North, more protections for area residents, a plan for engaging with those with limited English proficiency in future decisions and changes to statewide hazardous waste policies and procedures that would to protect communities of color. If an agreement isn’t reached, EGLE will conduct an investigation into whether or not they fulfilled their Title VI obligations.

Meanwhile, activists are calling on residents to contact EGLE with complaints concerning odors, dust and trucks in the neighborhood, and there is a petition circulating to encourage Gov. Whitmer to use her authority to address hazardous waste policies in the state. 

Aiyash says that although the coalition opposing the expansion suffered a major setback when EGLE approved its permit, the fight continues. 

“They thought that after the permit was given to US Ecology that folks would just put their arms up and walk away,” he says. “But that has not been the case.”

Brian Allnutt is a writer living in Detroit. He covers open space, environmental justice, food and gardening.