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Judge affirms stop on uncovered coke breeze in Detroit

Christine Ferretti
The Detroit News

Detroit — A Wayne County Circuit judge has affirmed a city zoning board’s decision to keep a company from storing uncovered piles of the coal-based byproduct coke breeze along the Detroit riverfront.

Circuit Judge David Groner, in an order released Friday, sided with Detroit’s Board of Zoning Appeals in its July decision to uphold the conditions of a permit issued by the city’s building department for Waterfront Terminal Holdings LLC.

The company had applied to store metallurgical coke products, including coal-based coke breeze from coke ovens on Zug Island, uncovered at the former Revere Copper site.

In its application, which initially had been turned down by the city, Waterfront initially raised the possibility of storing petroleum coke, or “pet coke,” which is a byproduct of petroleum refining. But officials have said they have no plans to store the controversial byproduct on the west Jefferson site. Its amended permit application did not include it.

City building and safety officials ultimately agreed last April to allow storage of the carbonaceous materials on the site, but only enclosed in a structure with water-tight ground protection.

But Waterfront challenged the conditions on claims they were “onerous,” stressing its environmental practices and testing have shown the substance is not dangerous and does not create off-site dust.

The zoning board, following a lengthy July hearing, unanimously upheld the permit conditions, citing concerns over public health and the potential negative impacts of fugitive dust on surrounding properties, including nearby Historic Fort Wayne.

Groner in his Friday decision ruled the zoning board’s determination was proper and complies with law.

“The record is clear that a significant amount of testimony and documentary evidence was presented ... regarding the conditional land use at issue and the negative effects that it would have on the use and enjoyment of surrounding properties, the negative effects it would have on the values of surrounding properties, and the negative effects it could have on the health of individuals residing near the facilities,” the judge wrote.

Detroit’s Corporation Counsel Melvin Butch Hollowell said the judge’s decision is significant since Waterfront is currently the only coal or coke yard in Detroit permitted for outdoor storage and the city is working to ensure its done right.

“The major thing about this is it’s a fairly fundamental decision about what our waterfront is going to look like in the future and it’s a big win for environmental protection,” Hollowell said. “For Michigan and the city of Detroit citizens and even Canadian citizens for that matter.”

Beth Gotthelf, an attorney for Waterfront, said Wednesday the company was “disappointed” with the ruling and is considering its next moves, which may include an appeal.

“We believe that there was a basis for reversal and we’re considering our options,” she said.

Dan Austin, a spokesman for Waterfront, noted the area has been zoned heavily industrial since 1905 and is not part of a residential neighborhood. Metallurgical coke, he added, is not the same as pet coke, a less dense material that’s more likely to become airborne, and it’s being “unfairly grouped into this other debate.”

“What we have here is a business owner who is an upstanding member of the community in Detroit, who goes to bat for the city, invests in the city and has a track record that is unmatched,” Austin said. “He is looking to take on this material that is not the hazard that it has been portrayed to be and handle it in a manner that meets all DEQ and EPA regulations and guidelines.”

Waterfront in its circuit court appeal argued the zoning panel should be reversed because its reasoning was inadequate. Its decision, they said, wasn’t supported by substantive evidence and the challenged permit conditions are unnecessary and “cost-prohibitive.”

The company further contends it was deprived of the opportunity to present necessary facts and evidence, which violates its substantive due process rights.

The zoning board found that removing some of the conditions would be detrimental to the surrounding neighborhoods, injurious to the use and enjoyment of other property in the vicinity.

The storage of petroleum coke as well as coke breeze, a form of metallurgical coke, has been contentious since an unrelated company stored 30-foot high piles of petroleum coke along the river a few years ago and it blew onto homes and into the waterway.

Waterfront, Hollowell said, would still be able to store coke breeze on the site so long as they abide by regulations laid out.