Flint, MI—Oral arguments were heard on April 13, 2023, regarding the operation of a new asphalt plant adjacent to a residential neighborhood on Flint’s north side.
Judge David Newblatt of the 7th Circuit Court said he would issue his ruling at a later date after hearing from eight different attorneys representing the four parties now involved in the case.
Those parties are Ajax Materials Corp., the plant’s owner and operator, which argued that the plant’s approved air permit is too restrictive; Flint-based community groups and the City of Flint, who argued separately but both said that the permit’s approval should be reversed and EGLE should revisit the approval process for environmental justice and technical reasons; and the Michigan Department of Environment, Great Lakes, and Energy (EGLE) arguing that the agency met its mandate and granted Ajax a permit with the appropriate level of restrictions.
“On one side Ajax is saying EGLE did a little bit too much, on the other side the environmental groups and the City of Flint are saying that EGLE did too little, but what that shows is that EGLE got this exactly right,” said Gillian Wener, one of the attorneys representing EGLE.
The Ajax plant has been called an “act of environmental racism” by protesters and Flint community groups who have spoken out against it since summer of 2021. Attorney John Petoskey, representing several of those groups in court on Thursday, pointed to their rationale for such a claim.
“This case is about the issuance of a Clean Air Act permit for a hot mix asphalt plant in a low-income, African American community that is already severely burdened with air pollution,” Petoskey said. “And I want to point out that in this community where the Ajax plant plans to operate, there are 3,000 people living in a one mile radius, the asthma rate in this community is three times the state average, and there are 600 children and many elderly people” who will be exposed to the environmental emissions from the plant.
Despite the early protestations of Flint residents and the community groups Petoskey now represents—which include Flint Rising, Saint Francis Prayer Center, the Environmental Transformation Movement of Flint, Michigan United and a group called “C.A.U.T.I.O.N.”— EGLE issued an approved air permit to Ajax in November 2021.
That approval sparked the legal battle to which the City of Flint also threw its hat in the ring, though its claims on Thursday focused on not just the environmental justice aspect of the asphalt plant but also the information missing from its approval process.
“The primary argument is less technical, more ‘what’s missing?’” said Attorney Douglas Kelly, whose firm, Clark Hill, was hired to represent the city in the case. “Where’s the gap in the record?”
Pulling up a diagram and chart, Kelly pointed to equipment the City claimed was not included in the emissions estimates from the Ajax site, noting that without that information EGLE should not have issued a permit.
Petoskey had also noted an absence of information in the record, but focused on the missing justification for EGLE’s use of regional testing sites in Lansing and Grand Rapids “80 to 160 kilometers away from the Ajax site” to judge the air quality concerns facing Flint residents.
In response, EGLE’s attorneys held firm that the information being asked for by both groups was present in the record.
Though EGLE didn’t offer justification for the selected regional sites in oral arguments, Rebecca Smtih, Assistant Attorney General for the state’s Environment, Natural Resources, and Agriculture Division, noted the numbers the City said were absent were actually present, just not considered separately of other pieces of equipment to which they may be connected.
“The reason they weren’t considered separately is because the very guidance doesn’t provide methodology,” she told Judge Newblatt.
For Ajax’s part, Attorney Kurt Kissling argued EGLE’s permit restrictions were “arbitrary and capricious” and “prejudiced” against his client. He pointed to other asphalt plants in Michigan that had received their permits after Ajax, citing much less stringent restrictions on fuel type and emissions testing frequency, both of which may result in higher costs for Ajax and result in a competitive disadvantage.
To that, Maram Salaheldin, an attorney for the City, noted that while hypothetical cost considerations are part of EGLE’s mandate, the agency “is not required to prioritize” them. She also noted that other sites and permits issued by ELGE were “outside of the administrative record” that should be considered for this case.
EGLE’s own attorneys added that the agency must take into account the different circumstances at every proposed site, and noted that some plants Kissling referenced were in much more rural locations, away from residents.
The hearing lasted from 8:30 a.m. to nearly 4 p.m. with many more technical arguments, visuals and definitions presented by all parties before adjourning. Judge Newblatt’s office did not return Flint Beat’s request for a potential date of ruling by press time.
In the meantime, EGLE officials informed Flint community members earlier this week that Ajax gave notice of starting the site’s trial operations.
“The trial operations could include running some mix through the plant to check that equipment is functioning properly and if the mix is acceptable, they may pave some on-site roadways,” Jenifer Dixon, the planning and policy coordinator for ELGE’s Air Quality Division, wrote in an email.