PETCOKE: HOW AN OUTDATED AND INCONSISTENT REGULATORY FRAMEWORK DEFEATS ENVIRONMENTAL JUSTICE IN DETROIT

I. INTRODUCTION 3 A. Environmental Injustice in America's Industrial Capital 5 B. Petcoke - What Is It and How Did It Get Here? 8 II. BACKGROUND OF PETCOKE PRODUCTION AND STORAGE IN DETROIT 9 A. Marathon's Detroit Heavy Oil Upgrade Project (DHOUP) 9 B. Environmental Impacts of Petcoke Production 13 C. Detroit's Pile as a Lens to View Regulatory Inadequacies 14 III. MICHIGAN'S EXISTING REGULATORY FRAMEWORK FAILS TO ADDRESS PETCOKE'S IMPACTS 16 A. Applicable Federal Regulations 16 1. Air Quality 17 2. Water Quality 18 B. Michigan Law 19 IV. OTHER STATE AND LOCAL REGULATORY PRACTICES 22 A. California 22 B. City of Chicago 23 C. Moving Forward 25 V. CONCLUSION 26

I. INTRODUCTION

In the early spring of 2012, a black pile three stories high and as large as many of the surrounding buildings appeared along the shores of the Detroit River. (1) This pile was made up of petroleum coke, or "petcoke," a byproduct created by the process of transforming heavy tar sands oil into useable fuel. While petcoke is not traditionally burned in the United States, competitive markets exist for petcoke in the developing world. This pile's presence along the Detroit River stemmed directly from the recent construction of a tar sands processing facility at Marathon's Detroit refinery and Detroit's status as an important North American transportation and shipping hub. However, as black clouds formed and thick, black dust began to coat surrounding buildings, Detroit residents began asking where this uncontained pile of petcoke came from, who put it there, and whether its presence was lawful.

Despite the negative impacts on the surrounding community, Detroit's historically lax zoning and environmental policies placed minimal restrictions on the open storage of substances like petcoke. Since heavy tar sands processing on a national scale will increase with further development of tar sands deposits (and dramatically so if tar sands pipelines such as the Keystone XL gain approval), the risks posed by minimally-regulated petcoke storage will continue to magnify if regulatory structures do not come into alignment with contemporary energy policy. This article will examine these issues, with a focus on the policies that began during the heyday of Detroit's industrial activity and which continue to the present day, resulting in persistent environmental inequality for Detroit residents.

Part I explores the origins of environmental injustice in Detroit and the background of petcoke production generally. Part II addresses petcoke production in Detroit specifically and the environmental impacts created by petcoke production, storage, and transportation, using Detroit's petcoke pile as a lens through which existing local land use and environmental regulations may be examined. Part III examines existing federal and state environmental regulations and controls that potentially apply to petcoke production and storage. Part IV analyzes two sample jurisdictions whose regulatory frameworks offer more complete protection from petcoke's effects for communities, and whose approaches have a number of common themes that Michigan could replicate. Finally, this article suggests a number of regulatory improvements that Michigan should consider if it wants to continue processing...