Obama’s EPA finds bias in Flint power plant case

Melissa Nann Burke
Detroit News Washington Bureau

Washington — A day before the end of the Obama administration, the Environmental Protection Agency found the state of Michigan discriminated against blacks in Flint 24 years ago when allowing a power plant to be built there.

The EPA’s civil rights office found that state regulators made decisions during public hearings for approving the Genesee Power Station between 1992 and 1994 that resulted in African-American residents being treated “differently and less favorably” than whites. The state disputed the allegations.

The actions by the now-defunct Michigan Air Pollution Control Commission and the state Department of Environmental Quality included posting armed guards at the only hearing held in a predominantly black neighborhood in north Flint.

“For the black community, they found that to be just a very intimidating, insulting presence,” said the Rev. Phil Schmitter, a Catholic priest who filed the complaint in 1992.

The Michigan DEQ “didn’t respect everyone, and the whole water crisis in Flint – I think – motivated the EPA to return to this.”

At the time, Michigan courts and the EPA’s environmental appeals board adjudicated the claims and found no support for charges that the DEQ had intended to discriminate against African-Americans, DEQ spokesman Mike Shore said.

Schmitter, then working at the St. Francis Prayer Center a mile from the site of the plant, was among those objecting to a 35-megawatt plant so close to their neighborhood, citing concerns about the health effects of lead emissions and other toxic particulates in the air. Construction was permitted, and the plant is still in operation, burning wood waste, natural gas, animal bedding and other debris.

“The most important point is the EPA affirms that from 1992 to today there’s been no harm to public health from the facility that we were permitting. That’s noteworthy because that’s what the whole process is about,” Shore said.

In a Jan. 19 letter, the EPA’s External Civil Right Compliance Office closed the Genesee complaint without imposing any punishment on the DEQ, saying it would address the situation when it rules in a separate civil rights investigation stemming from the Flint water crisis.

Those complaints allege discrimination on the basis of race and disability by Michigan DEQ, Genesee County and the city of Flint in their handling of the lead contamination of the city's drinking water. The EPA indicated it has “serious concerns” that, among other things, the DEQ has an appropriate process for handling environmental complaints.

EPA recommended that Michigan DEQ improve its public participation policies and provide information about non-discrimination policies to its website, among other changes.

“Whatever the allegations are from 25-plus years ago, they don’t hold today,” Shore said.

“The hard part in discussing this is that so much of what’s held up as a failure by us has either been changed by us in the intervening years or isn’t required by statute. We have done everything we know how to fix our processes.”

The EPA declined to comment on why it took so long to rule on the Genessee Power Station complaint. The Republican administration of President Donald Trump took office a day after the decision.

Such EPA findings of discrimination under Title VI of the Civil Rights Act of 1964 are exceedingly rare, lawyers said.

“This is actually the second time in history that we know of that EPA has issued preliminary findings of discrimination in response to one of these Title VI complaints,” said Jonathan Smith, an associate attorney with the New York-based organization Earthjustice.

Earthjustice in 2015 sued the EPA on behalf of Schmitter and four other groups that filed Title VI complaints with the EPA between 10 and 20 years ago. The lawsuit is pending.

Under the EPA’s regulations, the agency is supposed to issue preliminary findings within 180 days of accepting a complaint, but sometimes the agency will enter into voluntary settlements to resolve a matter, Smith said. That did not happen after EPA accepted the complaint about the power station.

“It’s sort of baffling why it would take 10 or 20 years to rule on a lot of these things,” Smith said.

Schmitter, now 71, lamented that some fellow protesters, including Sister Joanne Chiaverini and resident Janice O’Neal, have died and won’t ever know the EPA finally sided with them.

The state DEQ cut short O’Neal’s testimony during the 1994 hearing at Flint’s Carpenter Road Elementary School without letting her finish and before three others had a chance to testify, according to EPA’s findings.

DEQ staff told the EPA in interviews that they were surprised by the decision to adjourn the hearing, noting it was neither atypically controversial nor was the audience disorderly.

At an earlier hearing in Lansing in 1992, O’Neal and state Rep. Floyd Clack – both black – asked to testify early due to scheduling conflicts. They were not permitted to, but a local white physician was allowed to speak early because he had to leave. And a white woman who interrupted the commissioners was also permitted to speak.

Because of confusion in how the Air Pollution Control Commission advertised the hearing, after arriving from Flint, community members ultimately waited 11 hours before they were allowed to speak. O’Neal was among them, giving her remarks after driving 120 miles to Flint and back to Lansing.

One commissioner was quoted in the meeting minutes recognizing that many Flint residents had come to Lansing twice, and the commission had “been so rude to those people, prolonging the meeting, dragging them out ... it’s going to be late at night, they have to get home to their children.”

EPA noted that Michigan DEQ has implemented procedures designed to prevent hearings that would require commenters to wait more than 10 hours, including limiting commenters to five minutes each.

On the same day, the black dissenters from Flint were objecting to the Genesee Power Station at the Lansing hearing, residents of the predominantly white community of Skandia in Marquette County were testifying against a proposed facility for recycling contaminated soil there. Commissioners that day granted the white community’s request and denied the black community’s, according to EPA’s letter.

“They were not treated with respect. They were not given the process that was supposed to happen under EPA’s own rules,” Schmitter said, adding that he disagrees with the EPA finding that the facility didn’t hurt the health of residents.

“They never have looked at the cumulative impact of polluting facilities here. ... When you put a bunch of them together, you’re piling up the resulting impact.”