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E-M:/ judge issues injunction against deq

Enviro-Mich message from mienvcouncil@igc.apc.org (dave dempsey)

A Genesee County Circuit Court Judge today issued an injunction blocking
the state DEQ from issuing permits for major pollution sources until the
agency revises permit review procedures.

In the landmark Genesee Power Station case, Judge Archie L. Hayman found
that the DEQ's failure to take into account multiple pathways of exposure
to toxic contaminants violates both the Michigan Constitution and the Air
Pollution Act.  While finding that the impact of an estimated two tons per
year of lead emissions from the Power Station will disproportionately
affect minority groups in the Flint area, Hayman rejected the plaintiffs'
claim that state policies violate the Elliott-Larsen Civil Rights Act.

Hayman issued an immediate injunction blocking the DEQ from issuing permits
for major pollution sources until the agency prepares and he approves new
procedures which would require a comprehensive risk assessment, at the
applicant's expense, for such sources.  He also instructed the DEQ to
assure that the new procedures provide "meaningful" opportunities for
public participation and comment, particularly when there is an impact on
public health and the environment outside the jurisdiction in which a
facility is sited (and where planning and zoning decisions are made).

DEQ gets 180 days to prepare the procedures;  the plaintiffs (including the
NAACP's Flint Chapter, Janice O'Neal, Lillian Robinson, and the
Flint-Genesee Neighborhood Coalition) then get 90 days to comment on them.
The judge scheduled a March 6, 1998 hearing to make the procedures final.

"I don't believe this is a race issue," Judge Hayman said.  "This is an
issue of public health."

Attorneys for the plaintiffs were Kary Moss, Tom Stephens, and Bill
Lienhard.  Although their claim of disparate impact was rejected by the
judge, observers believe the effect of the judge's ruling is similar in
that minority and low-income populations tend to be more exposed to
multiple sources of risk.   The judge, in fact, found that DEQ's policies
not only fail to protect public health from such sources, but also fail to
protect residents of the urban environment generally.

In the Genesee Power Station case, the judge found for the plaintiffs'
claim that existing sources of lead in the affected community -- including
lead-based paint and lead in soils -- should have been considered by DEQ
before granting the Station's permit.  He said the DEQ has authority under
the Air Pollution Act to deny a permit if it poses an "imminent and
substantial endangerment," which he said additional lead exposure would do.
Plaintiffs presented evidence that up to 50% of children in northern Flint
have elevated blood levels and health impacts could be exacerbated through
additional lead exposure.   They also showed high levels of lead in soil in
the area and a high proportion of older housing stock which often contains
lead-based paints which are now banned.   The judge specifically supported
a "precautionary principle" as the basis for DEQ actions in such cases.

The judge also found that DEQ's procedures are inconsistent with Article 4,
Section 51 of the Michigan Constitution, which declares protection of
public health "a primary public concern" and requires the Legislature to
enact laws to fulfill that concern.  Judge Hayman said from the bench that
the Legislature needs to enact additional laws to fulfill the mandate,
particularly in cases of cross-jurisdiction impact where local ordinances
are insufficient.  But he also said the DEQ currently has the authority to
take multiple pathways of exposure into account and has to consider the
total environment and the cumulative impact of all sources of pollutants,
not just whether the facility at issue complies with standards.  The
policies of DEQ "do not protect the public health, safety and welfare" of
certain citizens, he said.

This last concern prompted the judge to instruct DEQ that its procedures
should provide opportunities for citizens to present concerns and be heard
when they are not residents of the local jurisdiction which makes a zoning
or planning decision.  In the Genesee Power Station case, Mt. Morris
Township zoned the facility but the downwind population was in Flint and
another township.  He noted that Mt. Morris officials had little reason to
be concerned about health or environmental impacts raised by citizens they
do not represent.

The judge indicated that the DEQ's procedures should include a board or
review process in which "neutral arbiters" could hear these concerns.

After the judge's 55-minute recitation of the ruling, plaintiffs embraced
each other and praised the ruling.

Dave Dempsey
Michigan Environmental Council
119 Pere Marquette, Suite 2A
Lansing, MI  48912
(517) 487-9539
(517) 487-9541 (fax)

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