"Wrong on the Facts, Wrong on the Law": Civil Rights Advocates Excoriate EPA's Most Recent Title VI Misstep

Luke W. Cole

Editors' Summary: The Select Steel decision marked the first administrative Title VI complaint that EPA decided on the merits. The complaint challenged the State of Michigan's decision to grant a permit to the Select Steel Corporation for a steel mini-mill in Flint, Michigan. EPA ruled that Michigan did not violate Title VI because the permit decision would have no adverse impact and, thus, no disproportionate impact, on the surrounding community. This Dialogue examines the background and context for the Select Steel decision. It then analyzes the decision itself as well as EPA's approach in deciding the Select Steel case. The Dialogue ends with a critique of EPA's decision and rationale, arguing that the Agency's decision was both factually and legally incorrect.

Luke W. Cole is the Director of the California Rural Legal Assistance Foundation's Center on Race, Poverty, and the Environment in San Francisco, California. The author thanks Quita Sullivan, Julie Hurwitz, and Ross Richard Crow for input on an earlier version of this Dialogue.

[29 ELR 10775]

On October 30, 1998, the U.S. Environmental Protection Agency (EPA) decided on the merits the first of more than 30 administrative Title VI complaints pending before the Agency. That decision, St. Francis Prayer Center v. Michigan Department of Environmental Quality,¹ concerned the state of Michigan's decision to grant a permit to the Select Steel Corporation for a steel mini-mill in Flint, Michigan (thus, the case is popularly known as the Select Steel decision). EPA ruled that Michigan had not violated Title VI because, EPA found, the permit decision would have no "adverse" impact—and, therefore, no disproportionate adverse impact—on the surrounding community.² The decision came in the context of a firestorm of criticism surrounding EPA's handling of Title VI complaints and stoked the flames of controversy. This Dialogue will examine the background and context for the Select Steel decision, the decision itself, and the strong critique of the decision made by environmental justice and civil rights advocates.

Background: The Title VI Logjam

Title VI of the Civil Rights Act of 1964 prohibits discrimination by entities that receive federal financial assistance.³ Although Title VI itself requires a showing of discriminatory intent, each federal agency, including EPA, has promulgated Title VI regulations that only require a showing of discriminatory impact.⁴ Title VI has become a new tool used by the environmental justice movement to challenge the discriminatory siting of facilities, as civil rights complainants have begun filing administrative complaints with EPA's Office of Civil Rights (OCR) to address situations of perceived disproportionate impact.

The Select Steel complaint was the 53d environmental justice Title VI administrative complaint filed with EPA. Since September 1993 when the first complaints were filed, the Agency has been struggling to figure out how to resolve them, and has thus far had difficulty finding its footing in what has turned out to be a political minefield. It took almost a year after the first complaints were filed for EPA to assign dedicated staff to resolve the complaints,⁵ and another three-and-a-half years for EPA to issue internal guidance to EPA staffers on how to resolve the complaints.⁶ Many of the complaints—40 of the 87 filed by September 30, 1999—have been rejected on procedural grounds, such as a lack of federal financial assistance or failure to file within the 180-day statute of limitations.⁷ Eighteen complaints are currently under investigation by EPA, and another 25 have been filed and are pending EPA's decision on acceptance or rejection. Many of the complainant groups (as well as the alleged violators) have submitted hundreds of pages of briefing and evidence as part of EPA's processing of their complaints, and EPA has conducted site visits in a half-dozen cases.

[29 ELR 10776]

The OCR is required to review a complaint for acceptance, rejection, or referral to another federal agency within 25 days of receiving the complaint.⁸ If a complaint is accepted for investigation, EPA must come up with a preliminary decision on the merits of the case within 180 days.⁹ Before the Select Steel decision, EPA had not met its regulatory deadlines for deciding Title VI cases in any case under investigation, and it has not met them in any case since. In 1996, in response to pressure from complainant groups concerned about the multiyear delays in getting their complaints resolved, EPA promised to expedite the consideration of five complaints. Among those currently being investigated on an "expedited" basis is an earlier complaint, St. Francis Prayer Center v. Michigan Department of Environmental Quality,¹⁰ filed by the same group that filed the Select Steel complaint, the St. Francis Prayer Center, concerning Michigan's permitting of a wood waste incinerator near the Select Steel mini-mill, commonly referred to as the Genesee Power case. The Genesee Power case has been under investigation by EPA for almost five years, with lawyers for the St. Francis Prayer Center filing thousands of pages of evidence and other briefing.¹¹ To date, EPA has not resolved the Genesee Power case, or any of the other "expedited" cases.

The Complaint

In May 1998, the Michigan Department of Environmental Quality (MDEQ) granted a permit under the federal Clean Air Act (CAA)¹² to the Select Steel Corporation of America to operate a steel recycling mini-mill in Flint, Michigan. Two activists, Father Phil Schmitter and Sister Joanne Chiaverini of a local social justice group, the St. Francis Prayer Center, sent a one-page letter to the EPA OCR on June 9, 1998, expressing their concern that an "unfair and disparate burden of pollution will fall on a group of minority [residents]" and, thus, that the MDEQ had violated Title VI. EPA accepted the letter as a Title VI complaint on August 17, 1998. In communications with EPA after filing the complaint, the St. Francis Prayer Center raised additional concerns about volatile organic compounds (VOCs), lead, air toxins, and dioxin.

The Decision

EPA handed down the Select Steel decision a mere 74 days after the complaint was accepted, a swiftness that surprised state officials and other Title VI complainants, some of whom have waited up to six years with EPA yet to resolve their complaints. Moreover, 16 other Title VI complaints were under investigation when the Select Steel case was accepted, several of which were filed in 1993, with 6 of those complaints under "expedited" investigation. These complaints involved allegations of significant civil rights violations that were argued in hundreds of pages of briefing and documented by thousands of pages of evidence. It was difficult, therefore, for observers to understand why, on a legal basis, EPA would choose the Select Steel case—a one-page, general complaint not written by a lawyer that was filed in 1998—to make as its first decision on the merits in a Title VI complaint before the Agency. It is not difficult, however, to determine the political motivation behind the decision to move Select Steel to the front of the line. The primary critics of EPA's Title VI policy have been Michigan Governor John Engler, MDEQ Secretary Russell J. Harding, and the partisan Detroit News. Months before the Select Steel decision was issued, Governor Engler, Secretary Harding, and the Detroit News had taken EPA to task for focusing on environmental justice and had led the charge against EPA's Title VI efforts.¹³ In addition to the unprecedented haste with which the Agency processed the complaint, during the investigation EPA also informed the MDEQ of the estimated time line for resolving the complaint and promised a decision by October 30, 1998¹⁴—a move that stunned complainants in the cases filed and accepted for investigation before Select Steel who had been pressuring EPA for years for some resolution to their pressing situations.

The closely watched decision was issued, as promised, on October 30. As the first Title VI complaint to be decided on the merits, it set out forthe first time EPA's approach to resolving Title VI complaints:

In analyzing the Complainants' concerns regarding air quality and public health effects, EPA has determined that this facility would not pose an "adverse" effect on the community. In this case, EPA did not base its finding on whether the effects would be disparate since the effects did not rise to the level of "adverse." After reviewing all the facts in this case, OCR has found that neither the Complainants' concerns regarding air quality nor those regarding the opportunity for public participation rise to the level of a discriminatory effect within the meaning of Title VI and EPA's implementing regulations. Therefore, OCR dismisses Complainants' allegations in this case.¹⁵

EPA's reasoning was set forth in greater detail in its consideration of the potential impacts of VOC pollution:

In examining VOCs as ozone precursors, EPA studied the additional contribution of VOCs from the proposed Select Steel facility and has determined those emissions will not affect the area's compliance with the national ambient air quality standards (NAAQS) for ozone.

The NAAQS for ozone is a health-based standard which has been set at a level that is presumptively sufficient to protect public health and allows for an adequate margin of safety for the population within the area; therefore, there is no affected population which suffers "adverse" impacts within the meaning of Title VI resulting from [29 ELR 10777] the incremental VOC emissions from the proposed Select Steel facility. Therefore, EPA finds no violation of Title VI or EPA's implementing regulations associated with VOCs as ozone precursors.¹⁶

While many environmental justice advocates expressed dismay with the predicted precedential impact of the Select Steel case, the decision itself creates a very narrow substantive precedent. A plain reading of the decision indicates that if indeed EPA is setting forth a new "adverse impact" threshold (which is not clear),¹⁷ it is narrowly defined and its precedential value is limited. The Select Steel decision states that if an area is in compliance with health-based national ambient air quality standards (NAAQS) and the facility at issue would not change that compliance status, EPA's presumption is that there will be no "adverse" impact from the air emissions produced by that facility.¹⁸ As explained below, environmental justice advocates have pointed out that EPA's reasoning is legally and factually flawed; however, even if taken at face value, the decision creates a very narrow precedent unlikely to apply to any other complaints currently pending before the Agency.

The "adverse impact" threshold set forth in Select Steel is based on three factors: (1) compliance with (2) a health-based environmental standard that (3) covers a wide area (ambient). Each of these three factors must be met under EPA's reasoning. First, if an area is not in compliance, there would be a presumed impact because the health-based standards were not being met. Second, if the environmental standard at issue was not a health-based one, but instead technology- or otherwise-based, then there could be no presumption of a no health impact. Finally, if the standard being met covered just one facility, and not a broad area, then there could be no presumption that the facility's emissions do not have a cumulatively significant impact. Thus, the Select Steel case, if it has any substantive precedential value at all, is extremely limited in its application.

Despite its narrow precedent, environmental justice advocates, including many with other Title VI complaints pending before the Agency (including the author of this Dialogue), were unsparing in their criticism of the decision. "The Select Steel decision is dreadful,"¹⁹ one advocate was quoted in the Baton Rouge Advocate. "Policy was sacrificed on the altar of expediency."²⁰ Twenty community groups that were named complainants in 14 pending Title VI complaints filed a "joint petition" to re-open the Select Steel investigation based on flaws in the decision they detailed in the 37-page filing.²¹ The joint petition set forth the factual and legal basis for environmental justice advocates' claims that the decision was "wrong on the facts, and wrong on the law."

The Critique, Part I: "Wrong on the Facts"

EPA dismissed the Select Steel complaint in part because EPA stated the air basin in which the Select Steel plant is proposed to be built was "in attainment" for ozone, and, thus, EPA reasoned, there would be no adverse impact on the community from the facility. Environmental justice advocates have pointed out that the Select Steel decision is factually incorrect in two ways. First, looking at the specific facts of the case, the Flint area was not and is not in compliance with NAAQS for ozone. Second, looking at broader factual and policy issues, being "in attainment" is not the same as having no adverse impact: toxic hot spots, significant health impacts even at "attainment" levels of air pollution, acute effects of pollution, industrial accidents and upset conditions, data gaps, and inappropriate health standards all combine to discredit EPA's approach in the Select Steel case.

EPA's Assumption That the Flint Area Was in Attainment Was Incorrect

EPA based its decision on Flint being in compliance with NAAQS for ozone.²² This assumption is demonstrably not true, however, as EPA knew when it made its decision: Flint has never been determined to be in compliance with NAAQS for ozone. First, in the investigative report accompanying the Select Steel decision, EPA acknowledged that "Genesee County is classified as an attainment area for all criteria pollutants except ozone. Genesee County was initially designated as a nonattainment area for the old 1-hour ozone standard."²³ EPA fudged the "attainment" determination by then stating, "Genesee County demonstrated compliance with the old 1-hour ozone standard based upon three years of air quality data. In practical terms, this means that the old classification of 'non-attainment' has been superseded by a determination that Genesee County was meeting the old ozone standard."²⁴ EPA's "practical terms" do not equate with legal terms, however. The area was not in compliance with the old ozone standard when the permit decision was made, nor is it in compliance with the new ozone standard today.

When the MDEQ made the decision to grant the permit to Select Steel on May 27, 1998, the area was not in attainment for the "old" one-hour ozone standard. In fact, less than two weeks earlier, on May 15, 1998, Flint hit a one-hour ozone level of 130 parts per billion (ppb)—a full 60 percent above EPA's health-based NAAQS of 80 ppb. On July 22, 1998—after Michigan issued the permit and after the Title VI complaint had been filed—EPA revoked the one-hour NAAQS for the Flint area, and the area was then covered by the eight-hour ozone NAAQS.²⁵ On both of these [29 ELR 10778] dates—May 27, 1998, for the permit decision and June 9, 1998, for the filing of the complaint—Flint was not in attainment with either the one-hour ozone standard or the eight-hour ozone standard.

Nor is Flint in compliance with the new eight-hour ozone standard today. Flint was over the 0.080 parts per million (ppm)²⁶ eight-hour NAAQS for ozone in 1996, 1997, and 1998. According to the MDEQ, Flint's 1996 "Site Average" was 0.082 ppm, rising to 0.084 ppm in 1997, and then to 0.086 ppm in 1998. As the MDEQ was readying the Select Steel permit for issuance, on May 15, 1998, Flint hit an eight-hour ozone value of 105 ppb—30 percent above EPA's health-based standards.²⁷ Thus, the central underpinning of EPA's decision and theory of no adverse impact—that Flint was in attainment for ozone—is demonstrably false.²⁸

An Air Basin's Attainment Status Under NAAQS Does Not Mean a Polluting Facility Will Not Have an Adverse Impact on the Surrounding Community

Even were Flint to be in attainment for ozone, EPA's reasoning is flawed because polluting facilities can still have an impact on a community even when NAAQS are met. EPA's rationale—that attainment under NAAQS equals no adverse impact—is factually incorrect and conceptually flawed on six different grounds because it ignores toxic hot spots, ignores the fact that significant health effects can occur at exposure to air pollution levels below NAAQS, ignores that "health-based" standards are set through a political process, ignores acute health effects of exposure to VOCs, ignores accidents and upset conditions at plants, and ignores the fact that health-based standards are normed on healthy white males. These deficiencies are detailed below.

First, EPA's rationale ignores toxic hot spots, or localized impacts from air pollution sources that do not cause an areawide effect. U.S. environmental history is replete with examples of facilities that have had a significant impact on the health of nearby residents while the air basin remained in compliance with NAAQS. Such local impacts may be diluted or lessened when averaged or spread across an entire air basin. This is particularly true for some VOCs such as toxic air contaminants, which have their greatest effect when they are most concentrated, and for lead, which tends to "fall out" close to its source of emission.

Second, EPA's presumption that compliance with ambient air quality standards equals no impact ignores the fact that significant health damage can occur at exposure levels well below NAAQS levels. Researchers funded by EPA have found significant health damage to humans exposed to pollution at levels lower than EPA's health-based standards. In an example directly relevant to the Select Steel case, researchers at the Loma Linda University studied more than 6,000 nonsmoking volunteers for over a 15-year period to determine the impact of ozone and other airborne pollutants on nonsmoking individuals. The study found that men exposed to ozone levels of 80 ppb were three times as likely to contract lung cancer as men exposed to lower levels. Additionally, both men and women regularly exposed to levels of particulate matter lower than NAAQS of 50 micrograms per cubic meter ran an increased risk of lung cancer. Men and women exposed to elevated levels of sulfur dioxide also ran an increased risk of lung cancer.²⁹ Other studies have demonstrated that long-term exposure to low levels of lead can also have significant impact to kidney function.³⁰

What does this mean in Flint? According to the MDEQ's records, Flint's average eight-hour ozone levels were between 0.082 and 0.086 ppm in 1996-1998. Not only does this violate EPA's health-based standard of 0.080 ppm, but it is also above the 80 ppb level at which EPA-funded researchers found significant health impacts. Yet in the Select Steel decision, EPA equated a level of ozone pollution that caused levels of lung cancer three times the norm in nonsmoking individuals with "no adverse impact."

EPA's rationale also ignores the fact that the setting of health-based standards for air pollutants such as ozone is partly a political process in which the standards are often set based on negotiations with industry. Moreover, health-based standards are not infallible: in case after case, new, more restrictive standards have been promulgated when the existing health-based standard has proven inadequate. The environmental justice joint petition noted examples such as the government's failure to set correct or adequate standards for blood lead levels—over the past 15 years, the Centers for Disease Control has lowered the "safe" blood lead levels from 40 micrograms per deciliter ([mu]g/dL), to 25[mu]g/dL, to 20[mu]g/dL, to today's current 10[mu]g/dL—to the constant readjustment of buffer zones and re-entry intervals for pesticides in agriculture. Further, significant data gaps exist, particularly in the area of VOCs, that make it impossible to state with certainty that exposure to such chemicals—even at "safe" levels—will not have an impact.

EPA's reasoning does not take into account acute health impacts of exposure to VOCs and also omits the cumulative physiological and psychological effects of environmental pollution from trucking, odors, noise, vibrations, and stigma, all of which increase human stress. Moreover, there is considerable evidence that exposure to air pollutants such as VOCs also causes increased stress.³¹

Overlooked in EPA's analysis, but perhaps of greatest consequence to communities adjacent to hazardous facilities, are industrial accidents and upset conditions. The fact that a facility's permit meets health-based standards is no guarantee there will not be accidents or upset conditions at that facility. The impact of industrial accidents has been [29 ELR 10779] well documented by federal agencies—including EPA—and watchdog groups. The U.S. Chemical Safety and Hazard Investigation Board (CSHIB) reports that "no comprehensive, reliable historical records exist"³² regarding chemical accidents in the United States, and, thus, the scope of accidents is under reported. The number of accidents that is reported, however, is staggering. The CSHIB reports that "during the years 1988 through 1992, six percent, or 2,070 of the 34,500 accidents that occurred resulted in immediate death, injury and or/evacuation; an average of two chemical-related injuries occurred every day during those five years."³³ Further, theCSHIB notes that between 1982 and 1986, 464,677 people were evacuated from their homes or jobs due to chemical accidents.³⁴

EPA itself has documented the impact of industrial accidents on communities. A summary by EPA's Chemical Emergency Preparedness and Prevention Office (CEPPO) of Accident Investigations provides a sobering look at life in a community where an industrial accident has occurred. One such community is Savannah, Georgia, where an accident happened at Powell Duffryn Terminals, Inc., on April 10, 1995. EPA reports that 2,000 residents were evacuated—some for as long as 30 days. The local elementary school was temporarily closed, and water in an adjacent marsh was heavily contaminated.³⁵ Other reports by EPA's CEPPO chronicle similar evacuations of the surrounding community. One report concerning an accident at a Shell Chemical facility in Deer Park, Texas, on June 22, 1997, describes "broken window damage reported in area"³⁶ and an explosion that could be heard 10 miles away. Another accident at the Accra Pac facility in Elkhart, Indiana, on June 24, 1997, reports a fire and an explosion involving ethylene oxide that required approximately 2,500 residents to be evacuated and 59 people to be treated at a hospital.³⁷

Similarly, EPA's rationale that a permitted facility cannot be considered to have a disparate impact on a community ignores the reality of compliance violations (sometimes in the form of upset conditions). Communities and the public are well aware, and facts substantiate, that accidents and even the potential for accidents and compliance violations from an industrial facility have a serious impact on community health and well-being.

Finally, the health-based standards historically have been set using the norm of a healthy, white male of average weight. The use of such standards may be discriminatory in itself, and certainly does not take into account sensitive receptors and people who fall outside the "norm." By omitting any consideration of the critiques of existing regulatory standards and procedures by the environmental justice movement and others, EPA's Select Steel decision naturalized environmental injustice.

The Critique, Part II: "Wrong on the Law"

Environmental justice activists also were critical of EPA's application of the law in the Select Steel decision, pointing out that the decision did not follow the OCR's Title VI interim guidance or EPA's cumulative impact guidance, and that it created a potentially insurmountable legal hurdle for Title VI complainants.

EPA issued its Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance) on February 5, 1998.³⁸ The Interim Guidance sets forth internal Agency procedures for handling Title VI complaints. The Interim Guidance provides five steps "for determining whether a disparate impact exists[.]"³⁹ These steps are: (1) identifying the affected population; (2) determining the demographics of the affected population; (3) determining the universe(s) of facilities and total affected population(s); (4) conducting a disparate impact analysis; and (5) determining the significance of the disparity.⁴⁰

Despite this clearly delineated path, the OCR did not undertake any of the steps, but instead determined that the facility would have no impact, and, thus, it did not even need to proceed to step 1. The OCR's approach also contradicts its Interim Guidance's statement that "permits that satisfy the base public health and environmental protection contemplated under EPA's programs nonetheless bear the potential for discriminatory effects[.]"⁴¹ Indeed, the Interim Guidance states clearly that "merely demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered a substantial, legitimate justification."⁴²

EPA also did not follow its own guidance on cumulative impacts. On July 3, 1997, EPA Administrator Carol [29 ELR 10780] Browner issued a Cumulative Risk Assessment Guidance.⁴³ The guidance calls for risk assessments to take into account multiple sources, effects, pathways, and stressors in all cases for which relevant data are available. In deciding the Select Steel case, the OCR did not follow this guidance and did not look at multiple effects, pathways, or stressors. Instead, it only looked at a small subset of the multiple sources of pollution. In the memorandum accompanying the issuance of the Cumulative Risk Assessment Guidance, Administrator Browner notes that of "particular importance are the right-to-know implications of this guidance, which requires that we build opportunities for citizens and other stake-holders to understand our ongoing risk assessments, and to provide us with their comments."⁴⁴ Here, the OCR ignored Administrator Browner's guidance and issued its risk assessment conclusions without any opportunity for the affected community—the complainants—to understand or provide comments on EPA's methodology. This stands in marked contrast to the processing of another high profile Title VI complaint, the Shintech case. St. James Citizens for Jobs & the Environment v. Louisiana Department of Environmental Quality,⁴⁵ in which the OCR consistently consulted with the complainants as to the methodology for resolving their claim.

In addition to being legally incorrect, environmental justice advocates are concerned that EPA's new Title VI policy as set forth by the Select Steel decision may create a legal hurdle that is impossible to surmount for Title VI complaints in CAA attainment areas. By setting the threshold of "adverse" impact at the level at which a facility will "affect the area's compliance with the national ambient air quality standards."⁴⁶ EPA has effectively shut the door on any Title VI complaints from areas in attainment under the CAA because EPA's hurdle is legally impossible to meet. It is legally impossible under the CAA for an agency to grant a permit in an attainment area that would result in the violation of NAAQS.⁴⁷ In other words, if a facility applied for a permit that would violate NAAQS, the agency would be required to turn it down; if a facility is granted a permit, by definition it does not violate NAAQS. Thus, EPA's hurdle—that a permit must cause a violation of NAAQS to have an impact—means that, legally, there can never be a successful Title VI claim filed in an attainment area. EPA has effectively read TitleVI out of the equation entirely.

EPA was unswayed by the environmental justice advocates' joint petition, tersely responding on July 29, 1999, that EPA "continue[s] to support the conclusions and analyses presented in the October 30, 1998, decision" on Select Steel, and that "EPA will not be providing a formal response to the Petition."⁴⁸

Conclusion

The Select Steel decision, thus far EPA's only decision on the merits in a Title VI complaint, is deeply flawed factually and legally. To observers in the civil rights and environmental justice community, the decision was an indication that the Clinton Administration would put politics over principles in applying civil rights laws, to the detriment of the disadvantaged communities the laws are designed to protect. Only time will tell whether EPA will actually begin to enforce Title VI and its Title VI regulations. Thus far, the Agency's performance in processing complaints and in the Select Steel decision has been a grave disappointment to environmental justice and civil rights advocates. Community groups interested in civil rights enforcement will have to turn back to the courts, where Title VI suits have had limited success.⁴⁹

Epilogue

In an irony not lost on environmental justice activists, despite EPA's extraordinary measures to move the Select Steel complaint to the front of the processing line and ignore the facts and the law in rendering its decision, it appears that the Select Steel plant will not be built in Flint. The company announced that it would locate in another Michigan community, Lansing, and blamed environmental activists for the decision.⁵⁰ As this Dialogue went to press, Select Steel announced that it had been unable to secure financing for the mill and it would not be built at all.

1. Letter from Ann E. Goode, U.S. EPA, Office of Civil Rights, to Father Phil Schmitter, Sister Joanne Chiaverini, St. Francis Prayer Center, and Russell J. Harding, Michigan Department of Environmental Quality, re: EPA File No. 5R-98-R5 (Select Steel Complaint) (Oct. 30, 1998) [hereinafter Decision].

2. Id. at 2-3.

3. 42 U.S.C. § 2000d.

4. EPA's Title VI regulations can be found at 40 C.F.R. § 7 (1998).

5. Luke W. Cole, Civil Rights, Environmental Justice and the EPA: The Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. ENVTL. L. & LITIG. 309, 392 (1994).

6. U.S. EPA, INTERIM GUIDANCE FOR INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS (Feb. 5, 1998) (available from the ELR Document Service. ELR Order No. AD-3660) [hereinafter INTERIM GUIDANCE].

7. 40 C.F.R. § 7.120(a) (federal funds requirement); id. § 7.120(b)(2) (180-day statute of limitation for administrative complaints). Litigators should note that the statute of limitations for judicial challenges under Title VI ranges from six months to four years, depending on the jurisdiction; most states apply the statute of limitation that covers personal injuries to civil rights injuries. Cole, supra note 5, at 321-22 nn.51, 52.

8. 40 C.F.R. § 7.120(c); id. § 7.120(d)(1)(i).

9. Id. § 7.115(c)(1). The complaint investigation starts when EPA notifies the parties that it has received a complaint. EPA is required to initiate complaint processing procedures "immediately" after notification of receipt of a complaint. Id. § 7.120(d).

10. EPA No. 1R-94-R5 (complaint filed Dec. 15, 1992).

11. Although the Genesee Power complaint was actually filed in December 1992, it was "lost" by EPA until it was resubmitted to the Agency by the Sugar Law Center in late 1994. Cole, supra note 5, at 387.

12. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

13. See, e.g., David Mastio, Michigan in Forefront of Fight Over EPA Rules. DET. NEWS, June 28, 1998, at A1; David Mastio, Engler Fights EPA Policy: Governor Will Use Flint Press Conference to Denounce Environmental Justice Rules, DET. NEWS, Sept. 2, 1998, at B1 (Michigan governor to "go on the offensive" against environmental justice policy).

14. Letter from Ann E. Goode, U.S. EPA, Office of Civil Rights, to Russell J. Harding, Michigan Department of Environmental Quality (Sept. 29, 1998).

15. Decision, supra note 1, at 2.

16. Id. at 3.

17. In the Decision, EPA appears to set forth a case-by-case approach for resolving Title VI complaints: "It is important to note that EPA believes that the evaluations of adverse, disparate impact allegations should be based upon the facts and totality of the circumstances each case presents." Id. at 2.

18. Id. at 3.

19. Vicki Ferstel, Michigan Ruling's Shintech Effect to Be Discussed, BATON ROUGE ADVOC., Dec. 6, 1998, at A1.

20. Id.

21. Joint Petition to Re-Open Select Steel Investigation, or, in the Alternative, to Set Aside Investigative and Analytical Methods, filed with U.S. EPA Administrator Carol Browner on March 1, 1999 [hereinafter Joint Petition]. The Joint Petition was filed by the Sugar Law Center for Economic and Social Justice, of Detroit, Michigan, and the Center on Race, Poverty, and the Environment, of San Francisco, California.

22. Decision, supra note 1, at 3.

23. U.S. EPA, OFFICE OF CIVIL RIGHTS, INVESTIGATIVE REPORT FOR TITLE VI ADMINISTRATIVE COMPLAINT NO. 5R-98-R5 (SELECT STEEL COMPLAINT), Oct. 30, 1999, at 14 [hereinafter INVESTIGATIVE REPORT].

24. Id. (citations omitted).

25. The new ozone NAAQS, based on an eight-hour averaging period, was promulgated almost a year before the Select Steel permit decision on July 18, 1997, and became effective September 16, 1997 National Ambient Air Quality Standard for Ozone, 62 Fed. Reg. 38856 (July 18, 1997).

26. The measurement 80 ppb is equivalent to .080 ppm.

27. See Air Quality Div., MDEQ, Summary of the Highest 8-Hour Ozone Values for 1998 for All Sites in Michigan (visited Oct. 13, 1999) http://www.deq.state.mi.us/aqd/images/984hi8hr.gif.

28. Remarkably, in making the Select Steel decision, EPA stated: "EPA examined recent air monitoring data (from 1995-97) from Genesee County in the context of investigating this complaint and has determined that Genesee County is also currently meeting the new 8-hour ozone standard." INVESTIGATIVE REPORT, supra note 23, at 17. In the Joint Petition, environmental justice advocates charged that this statement "displays either willful blindness to the actual air monitoring results, or frightening incompetence." Joint Petition, supra note 21, at 18 n.25.

29. W. Lawrence Beeson et al., Long-Term Concentrations of Ambient Air Pollutants and Incident Lung Cancer in California Adults, 106 ENVTL. HEALTH PERSP. 813-23 (1998).

30. Ja-Liang Lin et al., Chelation Therapy for Pattents With Elevated Body Lead Burden and Progressive Renal Insufficiency, 130 ANNALS OF INTERNAL MED. 7-13 (1999).

31. See, e.g., J. Timmons Roberts, Stress, Trauma, and Hidden Impacts of Toxic Exposures on Valnerable Populations, Testimony presented at the National Environmental Justice Advisory Council, Baton Rouge, La. (Dec. 9, 1998).

32. U.S. Chemical Safety and Hazard Investigation Board, Exact Numbers of Chemical Accidents in United States Difficult to Determine (visited Oct. 27, 1999) http://www.csb.gov/about/why_03.htm.

33. U.S. Chemical Safety and Hazard Investigation Board, What Human Consequences Result From Chemical Accidents (visited Feb. 2, 1999) http://www.csb.gov/about/why_04.htm.

34. Id. The U.S. Public Interest Research Group (U.S. PIRG), in its recent report Too Close to Home, chronicles some of the serious impacts on surrounding communities from chemical accidents at facilities. In August and September 1994, in Rodeo, California, a 16-day release of 125 tons of a caustic catalyst at a Unocal facility sickened and injured 1,500 people living near the plant. The report elaborates: Victims experienced vomiting, headaches, memory loss, brain damage, and other cognitive disorders. Some residents remained sick for well over a year after the Unocal accident. U.S. PUBLIC INTEREST RESEARCH GROUP, Too Close to Home: A Report on Chemical Accident Risks in the United States (1998). The report can be found at http://www.pirg.org/pirg/enviro/toxics/home98/page4.htm (visited Feb. 2, 1999). U.S. PIRG's Too Close to Home found a strong correlation between high disaster potential and actual accident frequency. The report publishes a table titled: "Top U.S. Counties ranked by worst-case disaster potential," which found Harris County. Texas (Houston), number one, Los Angeles County, California, number two, and Cook County, Illinois (Chicago) number three in the nation for disaster potential. These areas already have well documented environmental justice problems.

The report also discusses Williamsport, Pennsylvania, where on January 4, 1996, a thick cloud of chlorine gas blanketed the city, sending 26 people to the hospital. Victims suffered headaches, eye irritation, and breathing problems. The cloud formed as a result of a chlorine leak from a railroad tanker at the Lonza Chemical Plant. A 1993 accident at General Chemical Corporation in Richmond, California, sent 24,000 people to the hospital from inhaled acid mist. The U.S. PIRG report lists several other mass evacuations, including one in Superior, Wisconsin, in 1992 where 40,000 people were evacuated. Id.

35. U.S. EPA. Office of Solid Waste and Emergency Response, Chemical Emergency Preparedness and Prevention Office, Summary of CEPPO's Accident Investigations (visited Feb. 2, 1999) http://www.epa.gov/swercepp/pubs/accsumma.html.

36. Id.

37. Id.

38. See INTERIM GUIDANCE, supra note 6.

39. See id. at 8.

40. Id. at 8-10.

41. Id. at 9-10.

42. Id. at 11.

43. U.S. EPA, CUMULATIVE RISK ASSESSMENT GUIDANCE-PHASE I PLANNING AND SCOPING (July 3, 1997) (available from the ELR Document Service, ELR Order No. AD-3708).

44. CAROL BROWNER, U.S. EPA ADMINISTRATOR, FRED HANSON, U.S. EPA DEPUTY ADMINISTRATOR, MEMORANDUM ON CUMULATIVE RISK ASSESSMENT GUIDANCE-PHASE I PLANNING AND SCOPING (July 3, 1997) (memorandum accompanies CUMULATIVE RISK ASSESSMENT GUIDANCE, supra note 43).

45. No. 4R-97-R6 (complaint filed May 1997).

46. Decision, supra note 1, at 3.

47. 42 U.S.C. § 7475(a)(3), ELR STAT. CAA § 164(a)(3); Approval and Promulgation of Implementation Plans, 40 C.F.R. § 52.21(k) (1998). The Code of Federal Regulations is clear:

The owner or operator of the proposed source or modification shall demonstrate that allowable emission increases from the proposed source or modification … would not cause or contribute to air pollution in violation of:

(1) Any national ambient air quality standard in any air quality control region[.]

Id. § 52.21(k).

48. Letter from Ann E. Goode, U.S. EPA, Office of Civil Rights, to Julie Hurwitz and Luke W. Cole et al. (July 29, 1999).

49. For more on Title VI in the judicial arena, see generally Bradford C. Mank, Is There a Private Cause of Action Under EPA's Title VI Regulations?: The Need to Empower Environmental Justice Plaintiffs, 24 COLUM. J. ENVTL. L. 1 (1999); Michael Fisher. Environmental Racism Claims Brought Under Title VI of the Civil Rights Act, 25 ENVTL. L. 285 (1995); James H. Colopy, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 STAN. ENVTL. L.J. 125 (1994); Luke W. Cole, Environmental Justice Litigation: Another Stone in David's Sling, 21 FORDHAM URB. L.J. 523, 531-34 (1994).

50. David Mastio, EPA Race Policy Costs Flint a Plant; Lansing Gains From Environmental Justice Controversy, DET. NEWS, Mar. 2, 1999, at A1. Although Select Steel executives cited objections from environmentalists as the reason for relocating, it is probable that Lansing's economic incentive package had more to do with the relocation than the civil rights complaint which had been rejected five months before. The company's decision to move the plant, and its convenient statements blaming environmentalists, did give additional fodder to environmental justice foes in Michigan state government and at the Detroit News. See, e.g., Editorial, Killing Jobs in Genesee, DET. NEWS, Mar. 4, 1999, at A10 ("environmental justice policies provide boundless opportunities for mischief," urging Congress to axe EPA's environmental justice initiatives).