WASHINGTON -- A federal investigator has found that Michigan is guilty of civil rights violations in its handling of permits for a wood-waste power plant near Flint, Environmental Protection Agency staff told The Detroit News.
If endorsed by top EPA officials, the preliminary finding by the lawyer from the EPA's Atlanta office would mark the first time the agency concluded that state environmental regulators were guilty of violating the 1964 Civil Rights Act.
It also could spark new legal and political clashes over the EPA's "environmental justice" policy, which intends to use civil rights laws to lower pollution in areas in which mostly minorities live.
As the EPA considers action against the state, Michigan's environmental regulators are putting the final touches on a consent agreement with the plant that includes $ 50,000 in fines and changes to the plant's operations. That action has no bearing on the environmental justice issue; the fines are for strong smells emanating from the facility and several technical violations of the plant's pollution permit.
To environmentalists, the civil rights decision would be an important victory after the EPA's stinging dismissal last month of environmental justice charges concerning a proposed Select Steel mini-mill near Flint.
"We fervently hope that the EPA will resist giving in to the political pressures from those who would have the EPA completely disregard the problems of racially discriminatory licensing," wrote Julie Hurwitz, lawyer for the community group that complained about the Flint power plant, in a recent letter to the EPA.
She did not return calls seeking comment. Other environmental justice advocates declined to comment until a final decision comes out.
Russ Harding, Michigan's top environmental regulator, thinks the political pressure on the decision is coming from supporters of environmental justice, rather than Lansing.
"I am worried that the EPA is being overzealous in looking for a different outcome than Select Steel," he said. "The EPA is under immense pressure from environmental activists to make a decision unfavorable to us."
In recent months, the two Michigan cases have moved the state to the center of a national battle over an "environmental justice" policy released by the EPA last February. The policy, designed to ensure that minority neighborhoods aren't disproportionately affected by industrial pollution, has sparked widespread opposition from a bipartisan coalition of mayors, governors and state environmental regulators.
Harding says the factual similarities between the Select Steel case decided in October and the Genesee Power Station case are so close that "if the two decisions don't closely mesh, it will be a good issue to litigate."
Michigan spent more than $ 200,000 fighting a previous state court battle over the Genesee Power Station.
According to internal EPA documents, the power station case initially was investigated in 1995 by an EPA lawyer, who found no violation of civil rights laws. That report exonerating Michigan regulators, written in August 1996, was rejected by the EPA general counsel three months later and covered up, The Detroit News revealed in July.
In December 1996, the case was reopened and assigned to another investigator who agency officials believed was more likely to find the state guilty.
Harding, in November, suspended further cooperation with the EPA on this investigation until the agency sets a deadline for its decision as it did in the Select Steel case.
U.S. Rep. Joseph Knollenberg, R-Bloomfield Hills, said the EPA's original report and the decision to reopen the case will be central to deciding if a new ruling is credible.
"It just seems they're trying to engineer the results they want," he said of EPA officials.
EPA staff said the decision won't be made public before March.
EPA spokesman Dave Cohen asserted agency investigators had not reached any final conclusions and said the investigation was continuing.
"Our approach is as straightforward as we can make
it," Cohen said, "and no one is changing the policy."