EPA Finds Civil Rights Discrimination in Flint — Two Decades Later

FLINT, MI — From posting uniformed, armed guards at public hearings to limiting comment time, Michigan environmental officials discriminated against African-Americans in Flint during public hearings on a proposed biomass power plant in Genesee County more than 20 years ago, the U.S. Environmental Protection Agency said in a letter written on President Obama’s last full day in office.

The plant, the Genesee Power Station, burns wood waste and other debris, including tire debris. It went on line in 1995 after Michigan Department of Environmental Quality permit hearings from 1992 to 1994. During those hearings, the EPA’s External Civil Rights Compliance Office said, “African-Americans were treated less favorably than non-African-Americans.”

A “preponderance of the evidence in EPA’s record would lead a reasonable person to conclude that race discrimination was more likely than not the reason …,” Lilian Dorka, the director of the agency’s civil rights compliance division, wrote in a Jan. 19 letter to the complainant, Father Phil Schmitter of the St. Francis Prayer Center in Flint.

In a statement to the Center for Public Integrity, which first reported the agency’s finding, Schmittler said that though it is “unbelievable that it took the EPA decades to make his finding,” it sends a clear message to the MDEQ that “it needs to change the way it does business.”

The finding of discrimination is the first by the EPA’s Office of Civil Rights Compliance in 22 years, according to the Center for Public Integrity, one of the country’s oldest and largest nonpartisan, nonprofit investigative news organizations. A 2015 integrity investigation by journalists there found tepid enforcement of Title VI by the EPA of the Civil Rights Act of 1964. That section of the landmark act prohibits agencies receiving federal funding from discrimination based on race, color, religion, sex or national origin.

In his statement, Schmittler also said: “Communities of color and schoolchildren have had to grow up near this horrible power plant and be subjected to its harmful emissions.”

Though the EPA said it did not find evidence of adverse health effects from the plant, the agency said in the letter to Schmittler that it found MDEQ officials “deviated from … standard operating procedures (at public hearings) on more than one occasion to the detriment of African Americans.”

In one example cited by the EPA, armed state conservation officers were stationed at an October 1994 hearing in a predominantly African-American neighborhood in Flint. It was one of two hearings on the permit held outside of Lansing and the last one before the Genesee Power Station was scheduled to begin operations. It was the only hearing in which the MDEQ asked armed officers from its conservation department to attend, the EPA said.

The EPA concluded that the armed guards were asked by their bosses at the MDEQ to attend as an intimidation tactic. At the time, the EPA said, the presence of uniformed, armed police was “uncommon” and assigning such officers seems only to have occurred in communities with high populations of African-Americans.

“There was no strong box to guard at the GPS hearing,” the EPA wrote in the letter. “There is no evidence in the record that personnel safety may have been a concern due to the controversial nature of an issue. … In evaluating the use of armed and uniformed officers in this situation, EPA considered the intimidation factor through threat of police force as historically used against African-Americans when attempting to exercise their rights.”

Also, the letter outlines instances in which Flint residents who wanted to speak weren’t allowed to do so because hearings were closed early or comment periods were limited. The EPA also said the MDEQ has done little to change its policies to address complaints about public participation at hearings.

In a statement to the Center for Public Integrity, the MDEQ said it “disagrees with the EPA assertion that MDEQ has not taken sufficient action to address public participation, especially in minority communities.”

“Above all, our purpose is to respect Michigan residents and to protect public health and the environment,” the MDEQ said.

MDEQ and Flint Water Crisis

Unrelated to the complaint about the power plant, the MDEQ has other problems, including employees’ handling of the Flint water crisis, in which residents of the community of 100,000 were exposed to lead-tainted water.

Flint’s water became contaminated in 2014 when the city switched its water supply to the Flint River from the cleaner, but more expensive, water drawn from Lake Huron. Since then, potentially thousands of Flint residents have been exposed to the lead tainted water, including children, for whom lead poisoning can be a life sentence of emotional and intellectual problems due to irreversible brain damage.

The MDEQ said this week the water tested below tolerable levels for lead, but that residents should continue filtering the water, because chunks of lead may break loose from aging water pipes as a pipe replacement project continues.

Among the 13 people charged so far are two former state-appointed emergency managers, who made day-to-day financial decisions, two mid-level MDEQ officials, and three high-ranking MDEQ officials. Michigan Department of Health and Human Services employees and city of Flint officials also have been charged.

Water Crisis Civil Rights Complaints

At least two Flint-water related civil rights complaints have been filed in Flint’s water crisis, one of them by Flint resident Rhonda “Rho” Kelso.

Kelso told Bloomberg News BNA that she sent an email to the EPA about the Flint water situation in 2015. The Civil Rights Compliance Office is supposed to respond to such complaints within five days, but didn’t do so until more than a year later.

In the email, Kelso said her “civil rights and human rights to safe water” had been violated by the city of Flint, Genesee County and the state of of Michigan.

“City of Flint residents are singled out (segregated) to receive only Flint River water,” she wrote.

The EPA told Bloomberg BNA that it was reviewing the emails and “information obtained through the EPA’s own efforts on the ground in Flint and the other efforts of federal agencies” to determine if they’re actionable under the agency’s Civil Rights Compliance Office.

The EPA has also been pulled into the investigation and has been accused of dragging its feet. It could have taken steps to protect Flint residents from the lead-tainted water seven months before the federal emergency was declared in January 2016, the EPA’s internal watchdog, Inspector General Arthur Elkins said in an interim report.

In that report, Elkins said the public health catastrophe should have generated “a greater sense of urgency” for the agency to “intervene when the safety of drinking water is compromised,” The Associated Press reported.

In Flint water crisis congressional hearings last year, EPA Administrator Gina McCarthy testified that MDEQ officials blocked federal authorities’ attempts to step in.

“They said, ‘We’ll do it.’ Since that point in time, MDEQ slow-walked everything they needed to do,” McCarthy testified at the time. “That precluded us from being able to jump in to the rescue. ... We were strong-armed. We were misled. We were kept at arm’s length. We could not do our jobs effectively.”

The EPA told Bloomberg BNA that “whatever challenges” the Office of Civil Rights “may have experienced in the past, they are simply not the cause of this tragedy.” The EPA acknowledged, though, that there was “absolutely a failure to place the well-being of Flint residents first” in the decisions to switch the water supply.

In the latest round of criminal charges, Michigan Attorney General Bill Schuette said the investigation so far has revealed that Flint is a “casualty of arrogance, disdain and failure of management, an absence of accountability, a shirking of responsibility.”

The investigation is also focusing on whether the contaminated water contributed to an outbreak of Legionnaires disease that killed 12 people, Schuette said earlier this month.

“That cannot be swept under the rug,” he said. “All too prevalent and very evident in this course of investigation has been a fixation on finances and balances sheet that cost lives. It’s all about numbers over people, money over health.”

Photo via Genesee Power Station