URGENT UPDATE 3/26/2012, 2:40 P.M. CDT: The Minnesota Pollution Control Agency Citizens Board hearing on the need for an Environmental Impact Statement, which is referred to in the story below, was stopped when Ramsey County District Court Judge David Higgs issued an order stopping environmental review of the Northern Metals emissions permit until other court proceedings are completed.
The Minnesota Pollution Control Agency’s (MPCA’s) plan to postpone its environmental review of Northern Metals’ emissions permit application hit a snag Feb. 27. The snag is called a writ of mandamus, a court order requiring MPCA to speed up the process and make a key determination at its March 26-27 meeting. MPCA, however, has appealed the ruling and is asking the court to delay the writ until the appeal is decided. A hearing on that request is scheduled for March 26, just hours before the MPCA is set to begin its Northern Metals discussion if the writ stays in effect.
For information on the public meetings this article describes, including live webcasts, click here.
The judge will also be asked to decide whether MPCA can introduce newly-produced emissions data at the March 26-27 meeting. Northern Metals says the law forbids it; MPCA says the law requires it.
One more complication: The judge who issued the writ has removed herself from the case, and a new judge will be hearing the March 26 arguments.
Northern Metals operates a metal shredder on the west bank of the Mississippi River, just south of the Lowry Avenue Bridge. Company officials say they need MPCA to relax its regulations because the company cannot meet the standards in the existing permit.
An environmental assessment worksheet (EAW) was prepared for the permit change, and when that process reached the public comment stage late last year, MPCA received so many comments that it added a Feb. 28 meeting for public comments, only to cancel that meeting and postpone the public portion of the review indefinitely. MPCA officials said they want to make changes in the EAW and permit application, and then start the public process again.
After the public comment process, the MPCA’s Citizens’ Board is to decide whether a more extensive environmental review–an environmental impact statement (EIS)–is needed for the permit change.
On Feb. 27, Northern Metals’ attorney Jack Perry established–to a judge’s satisfaction–that MPCA has waited too long to decide whether or not an EIS is needed. The court’s order–called a writ of mandamus–does not tell MPCA what it must decide, but says that MPCA must make that determination at meetings it will hold March 26 and 27.
MPCA officials said they were not notified of Northern Metals’ legal action, and had no opportunity to state their case before the judge.
If MPCA decides an EIS is not needed, that starts a 90-day timeline for approval or denial of the permit application. If an EIS is conducted, the permit determination would have to come within 90 days of the conclusion of the EIS process.
At the Feb. 27 hearing before Ramsey County District Court Judge Elena Ostby, Perry said the deadlines have been established and tightened over the years because of government delaying tactics. “The reason all these rules came into existence is when I first started practicing law in the early ’90s, when I first met you, the number one way you stopped a project was through delay. The number two way was delay. Number three way was delay. That’s how you stopped it. Once the governmental body made a decision, then that decision was reviewable by courts. So governmental bodies sat on their hands and didn’t do anything if they didn’t want to approve a project.”
Perry also disputed MPCA’s authority to change the EAW or permit application. “Now they can deny or they can approve what we apply for, but they are a regulatory body that needs to review what is applied for.”
[According to online biographies, Perry and Ostby both worked at the Briggs and Morgan law firm in the 1990s.]
Minnesota Assistant Attorney General Katherine Winters wrote to Ostby March 7, requesting “permission to file a Motion for Reconsideration of the February 27, 2012 order.”
She wrote that such a writ “should not issue unless the right to require performance of the act is clear and it is apparent that no valid excuse for nonperformance can be given…MPCA has valid reasons for nonperformance that the court did not hear.”
She wrote that the EAW and permit application refer to a limit on particulate matter less than 10 microns in size “that is an error and requires correction.” Northern Metals, she said, inserted a limit more than twice what it had agreed to in an earlier stipulation, and MPCA permitting staff did not realize the error. “Time to correct the permit limit error is a valid reason for nonperformance.”
Perry argued later that the higher limit was not an error, that Northern Metals had made it clear from the outset of the review that they wanted a higher limit.
On March 15, Ostby denied Winters’ request to bring a motion to reconsider the writ. She also wrote in a clarifying memorandum, citing a state statute, that it wasn’t necessary to inform MPCA about the writ proceedings. The court has the “authority to decide the initial issuance of the writ solely ‘on the information of the party beneficially interested.’ Once the writ is issued, the respondent can answer the writ in the same manner as a civil action.”
On March 19, MPCA appealed the writ of mandamus order to the Minnesota Court of Appeals.
On March 22, Ostby removed herself from the case. She did not give a specific reason for removing herself, but noted that her action was “pursuant to the Code of Judicial Conduct and/or pursuant [to] Minn. R. Civ. P. Rule 63.02.”
That rule reads, in part, “No judge shall sit in any case if that judge is interested in its determination or if that judge might be excluded for bias from acting therein as a juror.”
MPCA Commissioner Paul Aasen said the writ caught MPCA by surprise. “It was the style and type of writ of mandamus that does not require that both sides appear,” he said. “It is not common in our experience. Our attorney general friends had not had experience with something quite like this. We’d rather not have these kinds of surprises.”
If the Citizens’ Board determines that an EIS is needed, Aasen said, the timeline is “not possible to predict.” It could be “six to 12, maybe even 15 months, with a potential for legal action…The timelines are rather fluid. Predicting the end points is very tough.”
According to an MPCA Impact Analysis Summary, the draft permit under consideration calls for “[updating the company’s] 1998 permit to reflect the pollution control equipment that is currently installed; update emission estimates and limits based on stack testing results; eliminate/reduce testing requirements for some pollutants (including metals, PCBs, dioxins/furans, asbestos, and mercury); eliminate feedstock restrictions in order to be able to shred auto hulks instead of only auto parts; and eliminate feedstock restrictions on the amount of aluminum, brass, copper and stainless steel scrap the facility can shred.”
Northern Metal’s predecessor on the site, American Iron and Supply, initially applied to build a metal shredder, called a Kondirator, on the property in the 1990s. City and state officials worked to stop the project, but American Iron eventually prevailed and won a multi-million-dollar settlement with the City of Minneapolis. Northern began operating a different kind of metal shredder, inside an enclosure, in 2009.