EPA, EES Coke Battery are $135 million apart on Clean Air Act penalties as Zug Island pollution trial ends

Don’t miss out!

Join more than 13,000 of your neighbors who already receive our informative, independent reporting on climate, health and the environment in their inbox each week.

Sign me up

When faced with testimony that Zug Island’s EES Coke Battery is one of Michigan’s worst sulfur dioxide polluters, an attorney for the facility said Monday: “So what?”

The DTE Energy-owned facility was “permitted to do so,” said Michael Hindelang, attorney for the utility and its subsidiaries that are defendants in the EPA’s Clean Air Act lawsuit over the emissions.

Hindelang and a U.S. attorney representing the EPA made their closing arguments Monday in a federal bench trial. U.S. District Judge Gershwin Drain said each party has until Oct. 9 to submit its findings of fact in the case.

The EPA requested that EES Coke Battery pay a $140 million civil penalty and begin operating with full desulfurization technology within three years.

Hindelang said a $5 million penalty should be assessed against EES Coke Battery, and the facility should continue reasonable environmental reporting requirements until otherwise directed by the state. 

The court should decide whether it’s a civil fine or environmental mitigation funding, and the facility is willing to install pollution controls that would reduce at least 33% of sulfur dioxide emissions, he said.

The EPA is asking Drain to order the installation of full desulfurization, including the best available control technology with the lowest achievable emissions rate.

EES Coke Battery produces coke, a raw material in the steelmaking process. The facility has contracts of one to five years in length to sell its product to Cleveland-Cliffs and ArcelorMittal, a DTE Vantage executive testified last week. 

Drain ruled Aug. 25 that EES Coke Battery violated the Clean Air Act by making a major modification to its operations, instead of a minor modification as its 2014 permit allowed. 

U.S. attorney Tom Benson said Monday that EES Coke Battery discovered that blast furnace gas was harming the battery, and chose to switch fuels and apply for a new Clean Air Act permit in 2014.

EPA lawyer on Zug Island pollution: ‘They buried their heads in the sand’

The U.S. government seeks to bring EES Coke Battery back into compliance and secure a penalty, Benson said Monday.

To follow the law, EES Coke Battery needs to obtain New Source Review permits from the state within 90 days, pay $140 million, and begin operating full desulfurization within three years, he said. 

New Source Review is a Clean Air Act permitting program that requires facilities to install modern pollution controls when they build new plants or make major modifications.

“This is not a shutdown order. Defendants can afford to comply with the law and keep running the battery,” Benson said. 

Hindelang said the government’s proposal amounts to a shutdown order — “a wolf in sheep’s clothing,” he said. The government is asking for an order EES Coke Battery cannot afford or physically accommodate, and it’s on an unfeasible timeline, Hindelang said. 

“Benson is saying the quiet part loud: ‘clean up or shut down,’” he said.

EES Coke Battery can either clean up, by installing pollution controls that would cut at least 33% of sulfur dioxide emissions, or shut down, Hindelang said. The desulfurization technology the EPA proposes is “massively expensive” and would not fit on Zug Island, he said. 

EES Coke Battery can afford a Claus reactor, a type of desulfurization technology, that could prevent future violations on the island, Hindelang said. 

The Claus reactor is “good,” Hindelang said, but the government wants “great,” and “great is a shutdown order,” he said. 

Benson said a 33% reduction in sulfur dioxide emissions is “not a solution at all.” Referring to New Source Review permitting, the U.S. attorney said: “You can’t uncrack an egg.

“Once a major modification is done, the law steps in,” Benson said. “The Clean Air Act has spoken, and they have to install the best available control technology and lowest achievable emissions rate.” 

Hindelang said EES Coke Battery made good faith efforts to comply with its permits, while Benson said the state never approved emissions increases that it did not know were occurring. 

“Closing your eyes is a choice that brought us here today,” he said. 

Clean Air Act penalties factor in the duration of a violation, which is seven years in this case, Benson said; prior payments, of which he said there are none; and the seriousness of the violation based on health impacts.

“They buried their heads in the sand and hoped the court wouldn’t notice. They already harmed thousands of people downwind,” Benson said.

“The community didn’t choose to roll the dice, but they lost nonetheless. Some had heart attacks, some died earlier than they should have.” 

Hindelang said installing desulfurization technology takes six years, not the three the government is requesting, “if everything goes smoothly.”

Permitting would take two years, installation of desulfurization technology would take three, and engineering design would take more than a year, he said. 

The waterfall effect of a shutdown order would include a loss of $450 million in economic output from EES Coke Battery, a $900 million overall loss to Michigan, and 2,700 job losses across the state, Hindelang said. 

A shutdown order would eliminate the coke that supports the production of 2.5 million tons of steel a year, he said.

MORE ZUG ISLAND TRIAL COVERAGE

DTE’s Zug Island operation switched fuel sources after damage to facility: Court testimony

EES Coke Battery on Zug Island switched to coke oven gas as its exclusive fuel source after damage to the facility was discovered around 2011 and 2012, according to federal court testimony.

by Dustin Blitchok September 26, 2025September 26, 2025

EES Coke Battery exec: Pollution controls cost more than Zug Island facility is worth

EES Coke Battery’s net worth is about $135 million to $155 million, executive vice president testifies Thursday.

by Isabelle Tavares September 25, 2025September 26, 2025

DTE Energy witness defends Detroit’s air quality in Zug Island trial testimony

Toxicologist Kathryn Kelly agrees with statement that Detroit’s air quality is “very good” in Wednesday testimony.

by Isabelle Tavares September 24, 2025September 29, 2025

EPA, DTE on Zug Island facility’s public health impact

Twenty-six premature deaths, 3.8 nonfatal heart attacks, 8,000 acute respiratory symptom days, 14.5 new asthma cases, and additional Alzheimer’s cases are modeled to have occurred in 2019 due to sulfur dioxide and particulate matter pollution from the coke battery, an epidemiologist testified in federal court earlier in the trial.

Joel Schwartz, professor at the Harvard T.H. Chan School of Public Health, said the social cost of pollution from EES Coke Battery from 2019-2022 totals $1 billion. 

An air quality expert with 40 years of experience testified Sept. 17 that EES Coke Battery’s excess particulate matter emissions are “one of the largest sources I’ve ever seen.”

Pollution from the coke battery reached Maine, Missouri, and North Carolina’s coast, according to Lyle Chinkin, an air quality expert and CEO and chief scientist of Sonoma Technology.

Hindelang said Monday there’s no proof that public health impacts can be traced to EES Coke Battery emissions. 

“We understand the concerns of the Sierra Club witnesses,” Hindelang said. Some of the witnesses called to testify were lifelong residents of 48217, the highly polluted zip code near Zug Island.

Their stories of red-orange skies are from long before the coke battery opened, Hindelang said.

The Sierra Club intervened in the lawsuit, which was filed by the EPA in 2022.

The biggest harm to public health occurs at EES Coke Battery’s fenceline and is from fugitive sources like door leaks — when a worker opens the oven door to shovel coal in — and there’s no technology to fix that, Hindelang said.