JURIST Guest Columnist Sonya Ziaja of Ziaja Consulting, LLC says that the Romulus, Michigan toxic waste wells provide an example of the EPA’s failure to follow its own environmental justice guidelines requiring consultation with the affected community, a procedure which could have avoided costly subsequent litigation.
Posted 16 July 2011, by Sonya Ziaja, The Jurist (University of Pittsburgh School of Law),
The new environmental justice guidelines and goals from the Environmental Protection Agency (EPA) necessitate increased public participation during permitting processes. In the case of an underground injection well permit (UIC permit)—which allows hazardous waste to be injected into deep wells—public participation is a crucial element to ensuring both environmental justice and proper management of a potential toxic waste site. The history of hazardous waste injection wells in Romulus, Michigan, part of the Detroit metropolitan area, illustrate what can happen when community involvement in the UIC permit process and environmental justice considerations are constrained.
Over the past 20 years, the Romulus wells have been at the center of litigation and scandal. The wells injected approximately 400,000 gallons of toxic chemicals per day beneath the heart of Michigan’s largest and most densely populated metropolis. Although the Romulus city council initially supported the wells, the city later invested $1 million in legal fees to try to close them.
The most recent Romulus UIC permit holder was Environmental Disposal Systems, Inc. (EDS), which began operating the wells in 2006. Within one year of operation, the Michigan Department of Environmental Quality found leaks at the facility. However, by this time EDS was bankrupt and divested its interest in the real property to a subsidiary of the Police and Fire Retirement System of the City of Detroit (RDD). EDS did not follow the proper procedure to abandon the wells safely, as required by the Underground Injection Control Program, 40 CFR §§ 124, 144, 146.
Instead, while the EPA began the process to terminate the UIC permit, EDS and RDD sought to transfer it to a third party. They found that party in Dimitrios Pappas, a Detroit casino and hospitality investor. Pappas formed Environmental Geo-Technologies, LLC (EGT). However, before EGT would purchase the site and part of the debt RDD had incurred, it needed the EPA to agree to transfer rather than terminate EDS’s permit. Initially, the EPA declined to act on EGT’s proposal to transfer the permit. EGT then turned to the Environmental Appeals Board (EAB), hoping to halt the termination and force through the permit transfer, but was rebuffed twice. EGT then petitioned for review of the EAB decisions in the US Court of Appeals for the Sixth Circuit. However, instead of proceeding with the termination, the EPA entered into a settlement agreement with EGT and RDD in 2010. The agreement stipulated that the EPA stay the termination proceeding, EGT dismiss its lawsuit against the EPA, and that the EPA proceed with the transfer of the EDS permit to EGT. The EPA held a notice-and-comment period in 2011, but the agency has yet to make its final decision. By the terms of the settlement agreement, if the EPA appears to delay or reject the transfer of the UIC permit, EGT can bring suit against the EPA again.
The wells have been a failure on every level. From a business perspective, they have not been profitable. The first operator went bankrupt shortly after the wells became operational. And as of 2009, RDD had invested $43 million in them, although the pension fund trustees found that the wells were worth at most $10 million. From an environmental perspective, the wells are no better. The entire point of hazardous waste disposal in underground injection wells is to sequester the toxic liquid. A facility that leaks defeats that purpose.
Increased public participation could have played a role in averting these negative outcomes. Indeed, a 2003 Government Accounting Office report [PDF] on the UIC permit process suggested that including affected communities earlier in the permitting process bolsters accountability and avoids litigation. Without community participation, the EPA is the only empowered watchdog. The agency’s ability to act is limited. It can only base its permitting decisions on the Safe Drinking Water Act. Community members, on the other hand, can take into account a myriad of health, safety and economic factors. They can demand changes to the project and seek help from appropriate state and local officials.
The EPA itself has observed that increased public participation can improve the quality of decision-making. One avenue the agency has for ensuring adequate public participation is following environmental justice standards. The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” As of 2010, the EPA must consider its environmental justice guidelines in making all decisions: “Achieving environmental justice (EJ) is an Agency priority and should be factored into every decision.” It further states that “[its] programs will incorporate environmental justice and children’s health considerations at each stage of the Agency’s regulation development process and in implementation and enforcement of environmental regulations.” It is an agency decision when the EPA considers issuing a UIC permit and requires the agency to consider environmental justice guidelines. In “Considering Environmental Justice In Permitting” [PDF], recent guidelines on the implementation of environmental justice, the agency states that “environmental justice concerns are given as full consideration … in the decision to issue a permit and the terms of the permits issued under federal environmental laws.”
For the agency to meet the environmental justice standard, it must meet both the “fair treatment” and the “meaningful involvement” requirements:
Fair Treatment means that no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.Meaningful Involvement means that: 1) potentially affected community members have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health; 2) the public’s contribution can influence the regulatory agency’s decision; 3) the concerns of all participants involved will be considered in the decision-making process; and 4) the decision-makers seek out and facilitate the involvement of those potentially affected.
In other words, the EPA must both ensure a meaningful chance to participate in the decision-making process and consider the burden its action might place on the community. In the case of the Romulus wells, however, neither of these obligations were met.
Part of the problem in the Romulus case was that in 1998, the EPA initially determined that EDS’s application for a UIC permit did not qualify as an “environmental justice case.” The guidelines that distinguish environmental justice cases have changed dramatically over the past 23 years. Previously, whether a decision compelled the consideration of the environmental justice guidelines hinged on the percentage of low-income and minority populations within the affected geographic area. By contrast, the most recent environmental justice guidelines issued by the EPA state that it “will incorporate environmental justice” in every decision “at each stage of the Agency’s regulation development process and in implementation and enforcement of environmental regulations.” Accordingly, the EPA must consider whether it has provided for the meaningful involvement of the community.
Unfortunately, even after the new guidelines were adopted, it seems as though the Romulus community was neglected. There is no evidence, for example, that the EPA provided for meaningful involvement when it entered into its 2010 settlement agreement with EGT. The settlement agreement has made the recommencement of hazardous waste storage at the wells more likely, which is “a proposed activity that will affect [the community's] environment and/or health.” As such, it was necessary for the community to have a voice in the settlement negotiations.
Not only would community involvement in the settlement negotiations have helped to meet the agency’s environmental justice obligation, it also could have prevented some of the negative outcomes facing the wells’ investors, the community and the environment. Had the community been at the table for those negotiations, it is likely that the agreement would have taken a very different form. The community has been resisting these wells for years. Of course, they may have encouraged the regional EPA to terminate the EDS permit, which would not have resulted in a settlement agreement. On the other hand, they could have encouraged EGT to take extra safety measures and avoided future litigation between the community, EPA and EGT. As it stands though, the community was left out. Due to this, even if the EPA has temporarily avoided litigation with EGT through the settlement agreement, both parties face the prospect of incurring even more legal fees to keep to the project going.
Sonya Ziaja is co-owner of Ziaja Consulting, LLC, which handles a wide range of cases, including those involving environmental and administrative law. A graduate of the University of California, Hastings College of the Law, in the fall Ziaja will matriculate at the Wolfson College, University of Oxford, to work on a masters degree in water science, policy and management. She writes regularly for LegalMatch and Shark. Laser. Blawg.
Suggested citation: Sonya Ziaja, Environmental Justice and the Romulus Wells: A Model of Failure, JURIST – Sidebar, July 16, 2011, http://jurist.org/sidebar/2011/07/sonya-ziaja-environmental-justice.php.
This article was prepared for publication by JURIST’s professional commentary editorial staff. Please direct any questions or comments to them at firstname.lastname@example.org