Citing racism, Flint residents take fight over Ajax asphalt plant to court

Flint advocacy groups are appealing a decision by state environmental regulators to allow a hot mix asphalt plant be constructed near a low-income Black neighborhood bordering an industrial zone.

They said the state approved the project despite objections from residents and federal housing and environmental officials and argue regulators allowed Troy-based Ajax Materials Corp. to use faraway air monitors to determine its proposed facility would not push nearby air past federal pollution standards.

"What EGLE has done here is clearly environmental racism," said Eric Ini, of Environmental and Climate Justice for Michigan United, one of the groups involved in the appeal. "It is shocking that an agency that is expected to protect communities from pollution is, instead, the one that is spearheading environmental pollution by granting permits for activities like the Ajax asphalt plant that will harm our community."

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The groups filed their appeal Friday in Genesee County Circuit Court.

EGLE officials approved Ajax Materials Corporation's request for an air pollution permit in November, allowing the plant to emit limited amounts of sulfur dioxide, nitrogen oxides, volatile organic compounds and other air pollutants. 

Before granting approval, regulators they took "aggressive and unprecedented steps" to respond to community concerns, EGLE spokeswoman Jill Greenberg previously told The Detroit News. The department extended public comment period, hosted community meetings, required Ajax to conduct additional air quality monitoring, prohibited it from burning waste oil and limited the sulfur content it could use in its fuel.

Ajax Materials Corp. also is appealing EGLE's permitting decision, contending regulators are illegally holding the plant to stricter standards than other hot mix asphalt plants. 

"Despite the fact that the draft (permit) met every applicable requirement under state and federal law, and that the governing law did not change during the public comment period, EGLE modified the final (permit) to become much stricter with little or no legal justification and very little (if any) explanation," the company said in its appeal. 

"EGLE issued the Ajax air permit using existing federal and state regulations, appropriately," Greenberg said in an emailed statement. "Our inclusive, extended public comment process — coupled with use of our legal authority — resulted in comprehensive measures built into the permit to protect the health and environment of nearby neighborhoods."

The asphalt plant will be located in an industrial region of Genesee Township along its border with Flint, the Genesee County city still reeling from a widespread lead exposure crisis. The site is within a half mile of two low-income public housing developments with mostly non-White residents. 

Nearly 3,000 people live within a mile of the Ajax plant site, the groups behind the appeal said.

"It is immoral that EGLE and [Genesee] Township are allowing yet another polluting plant in a neighborhood that is still recovering from lead poisoning," said Deborah Hawley, director of St. Francis Prayer Center. "This community cannot and should not take more chemical pollution."

One of the groups' major complaints centers around air quality data Ajax included in its 2020 permit application to show the proposed plant would not cause the state to violate federal air quality standards created by the Clean Air Act.

Some of the pollution data was collected by state-owned monitoring devices in Lansing and Grand Rapids, which do not reflect what Flint residents breathe, Great Lakes Environmental Law Center Executive Director Nicholas Leonard said. He said there are "serious flaws" in the state's permitting process. 

EGLE officials responded to similar criticism during the permitting public comment period and said those monitors show background levels of pollution for the Flint area and were analyzed with local emissions data to show overall pollution.

The Great Lakes Environmental Law Center and Earthjustice are representing the Flint groups in their appeal. Flint Rising, Environmental Transformation Movement of Flint, St. Francis Prayer Center, Michigan United and C.A.U.T.I.O.N are behind the appeal. 

"For months, community members, and even EPA, said a toxic asphalt plant has no place in Genesee Township," said Nayyirah Shariff, Flint Rising director, in a Monday press release. "EGLE consistently puts companies over communities. Hopefully, the court will center the health of our community and not validate EGLE's rubber stamping of corporate interests."

The appeal is the latest in the Flint groups' effort to block the asphalt plant. They formed a coalition to block the plant's construction and in October filed civil rights complaints against the state with the U.S. Environmental Protection Agency and U.S. Department of Housing and Urban Development. 

Leaders from both federal agencies wrote letters to EGLE Air Quality Division Director Mary Ann Dolehanty in September voicing concerns about the civil rights ramifications the Ajax plant would have on nearby communities, including the public housing complexes.

Then-EPA acting regional administrator Cheryl Newton pushed the state to conduct a cumulative analysis that would show how emissions from the Ajax plant would combine with emissions from nearby industrial facilities "to provide a more complete assessment of the ambient air impacts of the proposed facility on this community."

EGLE officials contended existing state and federal permitting rules require them to review permits on an individual basis and do not allow them to consider nearby pollution, although department Director Liesl Eichler Clark has asked the EPA for further guidance.

ckthompson@detroitnews.com