Not All Arsenic Tests are Created Equal (Page 2,956)

Guest post by Great Lakes Environmental Law Center staff attorney Nick Leonard.

On a summer day in July of 2013, a dangerous dark cloud of dust blew along the Detroit River between Windsor, Canada and Detroit. Video captured by an individual showed several people standing along the riverfront transfixed by the dust cloud as it completely obscured their view of the Ambassador Bridge, a normally omnipresent visual landmark for Detroit and Windsor residents alike. The dust cloud was coming from massive piles of petroleum coke that were being stored on the banks of the Detroit River. For many Detroiters, particularly those in Southwest Detroit, the event was an egregious incident, but not an unfamiliar one. After all, many had been claiming that dust from the same petroleum coke piles that caused the dust cloud, as well as a number of other bulk material facilities, routinely blanketed everything in their neighborhood, right down to the kitchen table. Residents had been raising the alarm and had been asking a lot of good questions about the health risks for their families and what was being done about the problem. They wanted answers and needed solutions. The images and video of the dust cloud blowing across the Detroit River had gotten the attention of other advocates, legislators, and government agencies. The moment to take action had arrived and the Great Lakes Environmental Law Center got involved help residents frame their questions, search for answers, and push for solutions.

One of the first questions residents had was what were these materials that were being stored in huge, open piles in their neighborhood and along the Detroit River? One such material was petroleum coke, or “petcoke,” which is a solid waste byproduct created by the process of transforming dirty tar sands oil into useable gasoline. Petcoke piles began piling up in Southwest Detroit after the Marathon Petroleum oil refinery in the neighborhood had begun accepting large quantities of tar sands oil from Canada via pipelines that travel under the Great Lakes. While petcoke can be used as an industrial fuel, its use causes higher amounts of sulfur dioxide and carbon dioxide emissions compared to coal. As such, it’s too polluting and inefficient to be of much use in the United States. While competitive markets for petcoke as a cheaper version of coal have existed in the developing world, the Supreme Court of India’s recent order banning the use of petcoke in certain states due to air quality concerns suggests these markets may be drying up. The piles of petcoke in Detroit were part of the chain of pollution and degradation that follows tar sands oil from mining to piping to refining to burning. Every step impacts communities with little local benefit, and the dust pollution was Detroit’s burden to bear for the global oil industry. (For more background and analysis of the environmental justice issues surrounding petcoke, see this prior post and article by Erica Shell.) However, petcoke was not the only material creating dust that was impacting the health of Detroit residents. Facilities throughout Detroit were storing a wide variety of materials in huge, uncovered piles, including metallurgical coke, coal, limestone, steel slag, and asphalt millings. All of these materials were contributing the dust problem that had been identified by residents, and any solution had to address not just petcoke, but these other materials as well.

While residents knew that the dust that blanketed their neighborhoods was a nuisance, what they wanted to know was whether dust from these enormous, open piles was impacting their health. What we found was that numerous studies had concluded that these facilities can create localized hot spots of particulate matter concentrations above the national, health-based ambient air quality standard set by the U.S. Environmental Protection Agency. Particulate matter is very small, inhalable particles with a wide variety of chemical compositions that are 10 micrometers or less in diameter. It is commonly referred to as PM10. These particles present a serious public health risk because they are small enough to be inhaled, enter people’s lungs, and get into their bloodstream where it can cause serious health impacts. Studies have shown a significant association between short-term exposure to elevated concentrations of PM10 and respiratory-related emergency department visits, hospitalizations, and exacerbation of asthma symptoms, particularly amongst children. Another study conducted in Detroit found that increased concentrations of PM10 pollution is associated with an increased risk of hospitalization for congestive heart failure amongst seniors. Some materials presented greater dust hazards than others. Petcoke storage and handling in particular has been found to cause concentrations of PM10 up to 32 times the ambient air quality standard due to its high silt content. Other materials, such as metallurgical coke and coal, contain trace elements of lead and arsenic that concentrate in dust that is blown into surrounding environments. The potential for facilities that store large quantities of material such as petcoke, metallurgical coke, limestone, and asphalt millings in open piles to create a localized public health problem was clear.

It was also equally clear where these facilities were located and whose neighborhoods they were polluting. In Detroit alone there were over a dozen facilities, and many were located in a concentrated area in Southwest Detroit in a neighborhood that was already overburdened by air pollution. Collectively, about 20,000 residents lived within a half mile of these facilities, and all of them were low-income communities of color. For example, one facility that we identified has approximately 3,000 residents living within a half mile and 99% of those residents are people of color and 70% live below the federal poverty line. Based on our review, it was clear that bulk material facilities were disproportionately impacting the health of people in low-income communities of color, a classic case of environmental injustice.

And what was the law doing about this injustice and the threat to people’s health? Not much. Failing began at the local level, with a facility that stored metallurgical coke along the Detroit River that had not obtained the necessary zoning permits. At the state level, we identified numerous points of concern. The main requirement for bulk material facilities under state law is the development of a fugitive dust plan pursuant to MCL 324.5524. However, upon review it was determined that many these plans do not contain adequate details to provide assurance that facilities are sufficiently controlling dust emissions given that many of these facilities exist in close proximity to residents, schools, and parks. The fugitive dust plans for many Detroit facilities are one-page documents with vague language such as “[m]easures will be taken to minimize trackout of material from unpaved surfaces at the facility onto the paved roadways.” Many different facilities have fugitive dust plans that are nearly identical, suggesting that industry is not taking the practice of drafting their plans very seriously. To make matters worse, record reporting and dust monitoring requirements under MCL 324.5524 are very lax. Facilities are not required to regularly submit records regarding the implementation of the fugitive dust controls described in their plans to the Michigan Department of Environmental Quality and there is no requirement regular monitoring of emissions. In fact, state law provides that during high speeds, which are known to cause spikes in dust emissions, facilities are exempt from all opacity limits.

Fortunately, Detroit was not the first community to confront this issue. As this issue was bubbling up in Detroit, Chicago’s Department of Public Health was considering the creation of local regulations to control dust emissions from bulk material facilities. Chicago’s regulations became the model of Detroit’s ordinance. Over the course of 4 years, we worked with numerous community leaders and partners to develop a Detroit dust ordinance that was passed by the city council on Halloween 2017 by a 7-2 vote.

At their heart, both Chicago’s regulations and Detroit’s ordinance operate in similar fashions. Both require bulk material facilities to install the necessary dust control measures to prevent the release of fugitive dust. Under both, any facility that stores bulk solid material must submit a more detailed dust plan to a local regulatory agency that describes all control measures, devices, and technologies to be used to control dust emissions. For example, both Chicago and Detroit require facilities that have outdoor bulk solid material piles to describe how they will monitor wind speeds and what dust control strategies to be utilized during high wind conditions in their dust plan.

Additionally, both Chicago and Detroit specify what types of control measures must be used for specific types of materials. One of the most important components of both Chicago’s regulations and Detroit’s ordinance was that petcoke, metallurgical coke, and coal must be handled and stored in a completely enclosed structure. This requirement is significant and was meant to prevent the reoccurrence of the 2013 Detroit petcoke dust cloud and to make sure that metallurgical coke and coal dust are not carrying trace elements of lead and arsenic into neighborhoods. All other bulk solid materials must employ specified dust control measures for specific parts of their facility, including their outdoor storage piles, conveyors and transfer points, facility roadways, vehicle loading and unloading operation, and outgoing trucks.

Another key component of both Chicago’s and Detroit’s regulatory scheme was requiring facilities to continuously monitor their PM10 emissions. Both Chicago and Detroit generally require facilities that store bulk solid materials to purchase, install, and operate continuous PM10 monitors that are capable of delivering PM10 concentration data in real-time to the facility. This requirement enables facilities to take more aggressive action to control short term spikes in dust emissions when their PM10 monitors detect concentrations above a reportable action level. Chicago’s regulations do not set a uniform reportable action level for each facility, but instead requires that a reportable action level be established by each facility’s fugitive dust plan. Detroit’s ordinance establishes 150 micrograms per cubic meter as the reportable action level. Another key difference is that while Chicago required PM10 monitors to be Federal Equivalent Method monitors, Detroit does allow for facilities to utilize non-Federal Equivalent Method monitors that are deemed acceptable by local regulators.

Chicago and Detroit both regulate outdoor bulk material pile height storage and siting. Chicago limits outdoor pile height to 30 feet while Detroit limits outdoor pile height to 50 feet. Additionally, Detroit requires outdoor storage piles to be screened from the view from adjacent roadways and from adjacent properties. Chicago requires outdoor piles to be set back at least 50 feet from any waterway while Detroit requires outdoor piles to be set back at least 25 feet from any waterway.

Beyond the differences described above, Chicago’s regulations and Detroit’s ordinance does have one additional significant difference. In both Chicago and Detroit, the definition of “bulk solid material” is a threshold definition. It determines what types of materials will be subject to the requirements in Chicago’s regulations and Detroit’s ordinance. Chicago’s regulations expressly excludes construction and demolition materials such as crushed stone, sand, gravel, and hot mix asphalt plants and ready mixed concrete plants. Detroit’s ordinance contains a more expansive definition of bulk solid material, as it expressly includes construction materials as well materials such as asphalt millings, ores, iron and steel slag, gravel, sand, and limestone. As such, Detroit’s ordinance applies to more materials than Chicago’s regulations.

However, with Detroit’s more expansive definition of “bulk solid materials” came a compromise. As mentioned above, many bulk solid material facilities are regulated by the state, albeit by more relaxed standards than those posed in Detroit’s ordinance. To satisfy industry complaints that Detroit’s definition of “bulk solid materials” was overly broad, Detroit created a safe harbor for specific types of facilities. Facilities that store or handle construction materials, which is defined to include asphalt millings, ores, iron and steel slag, gravel, sand, and limestone, and that have already submitted a fugitive dust plan to the Michigan Department of Environmental Quality pursuant to state law qualify for the safe harbor in Detroit’s ordinance and only needs to comply with the requirements in section 22-5-6. This section requires a facility to comply with the pile height limits and the waterway setback requirements described above, requires a facility to monitor wind speeds and to describe how it will limit dust emissions during high wind conditions, and requires the submission of additional information to supplement the existing fugitive dust plan requirements under state law. However, facilities that qualify for the safe harbor are not required to install the fugitive dust control measures described in Detroit’s ordinance, do not need to install PM10 monitors, and are not required to regularly submit their records to local regulators. Nonetheless, Detroit’s ordinance does grant local regulators the authority to ensure that qualified bulk solid material facilities are being good neighbors. BSEED has the authority to review all fugitive dust plans for qualified bulk solid material facilities to determine if it satisfies the requirements of section 22-5-6, is sufficient to protect the public health and environment, and is sufficient to prevent the emission of fugitive dust in a manner that would cause an unreasonable interference with the comfortable enjoyment of life and property. Local regulators are also required to conduct semi-annual inspections of qualified bulk solid material facilities. Lastly, if local regulators determine that a facility is not operating in compliance with its fugitive dust plan, is not in compliance with section 22-5-6, or if a facility is found to cause an unreasonable interference with the comfortable enjoyment of life and property, then it is disqualified from the safe harbor and must comply with all of the requirements contained in Detroit’s ordinance.

The takeaway is that while Detroit’s ordinance is broader in its scope, Chicago’s regulations are a bit stricter as to what it requires regulated facilities to do to control dust emissions. One key difference that’s important to note is that while Detroit addressed this issue by the city council enacting an ordinance, Chicago did so through administrative rulemaking. This is significant for a couple of reasons. First, the administrative process in Chicago appears to have been more amenable to technical comments than Detroit’s legislative process. Factors such as pile height and wind speeds have serious impacts on the amount of dust emissions that can be predicted to come from the facility and determining how those factors correspond to dust emissions requires reference to highly technical studies. However, while the Center repeatedly submitted verbal and written comments to city council members and city departments regarding technical studies relied upon in Chicago’s rulemaking process to determine limits for things such as pile height, these comments tended to get lost in the legislative wash. As a legislative action, the development of Detroit’s ordinance was largely driven by council members rather than technical experts. As a result, discussions tended to be focused on broader questions, such as who would be regulated by the ordinance, whether facilities should be required to install PM10 monitors, and what types of materials should be enclosed. Second, the city council sponsor of Detroit’s ordinance was subjected to political attack as a result of the ordinance. Regulated industries made large political contributions to her opponent who ran against her in an election that took place shortly after the ordinance was passed. Although the council woman prevailed, the general election results were much closer than the primary results had been just a few months earlier partially due to the influx in contributions from industry to her opponent.

The passage of Detroit’s dust ordinance after 4 years of consistent effort from numerous people in city government, community leaders, and residents over strong opposition from industry was a treasured and rare win for a community that often struggles to push back against the numerous environmental injustices that it is subjected to. Particularly in Southwest Detroit, existing air quality laws and regulatory systems simply are not adequate to protect the health of our country’s most vulnerable residents. Given this reality, it is easy for residents and advocates fighting for clean air to often feel overwhelmed and disillusioned in their attempts to work within existing systems. Increasingly, residents and advocates are trying to change existing systems by passing new laws that aim directly at the heart of environmental injustice. This ordinance is an example that shows impassioned residents, knowledgeable advocates, and dedicated decision-makers can create effective solutions to address environmental injustices, which will be important to keep in mind for the efforts ahead.