It appears the decision on a looser emissions permit for the metal shredder at Northern Metals on the west bank of the Mississippi River just south of the Lowry Avenue Bridge (the successor to American Iron and Supply) is held up on an unintentional legal technicality, with the next round scheduled for July.
Northern Metals people say they want the permit amendments approved so they can increase their shredding activity; and, according to their attorney, bring in an extra $2 million a month. They also say they cannot meet the standards in the existing permit.
Many Northeast and North Minneapolis residents and officials have said they’re concerned that more emissions will be harmful to residents and the environment.
The courts got involved in February, after an environmental assessment worksheet (EAW) was prepared for the permit change. 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.
Northern Metals took the case to court, saying that state laws require MPCA to decide, within a certain time frame, whether or not a more extensive environmental review—an environmental impact statement (EIS)—is needed for the permit change. MPCA’s plan, they said, went past its deadline.
(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.)
Northern Metals’ attorney Jack Perry told Ramsey County District Court Judge Elena Ostby that MPCA had waited too long to decide whether or not an EIS is needed, and Ostby agreed. Her order—called a writ of mandamus—did not tell MPCA what to decide, but said that MPCA had to make that determination at its regularly scheduled March 27 meeting.
MPCA officials said they were not notified of Northern Metals’ legal action, and should have had an opportunity to state their case before the judge. 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.”
Ostby denied the request, and clarified her order in the matter to be a “final judgment,” writing that she “should have directed entry of judgment in favor of [Northern Metals] for purposes of appeal… Therefore, the writ shall stand but will be immediately appealable to the Minnesota Court of Appeals as an appeal from a final judgment.”
She also said that her “statement…that [Northern Metals] shall be granted ‘such other equitable relief as is permitted’ was in error and shall be stricken. The court wishes to clarify that the only relief granted was the Writ of Mandamus.”
MPCA filed an appeal with the Minnesota Court of Appeals. Northern Metals then filed a motion asking the Court of Appeals not to hear the case, because Ostby’s order lacked a provision for damages for Northern Metals, and was therefore incomplete and could not be appealed.
A three-judge panel of the Court of Appeals ruled May 1 that even though Ostby had specifically crafted her order so that it could be appealed, Northern Metals’ interpretation that it could not be appealed was correct. Quoting from a 1982 St. Paul case, the judges wrote, “An adjudication that there is liability, without determination of damages, is not an adjudication of even one entire claim. A judgment that partially adjudicates a claim is not immediately appealable.” They wrote that MPCA could bring the ruling back to the Court of Appeals “in a proper review after entry of a final judgment.”
MPCA then filed motions in Ramsey County District Court to quash Ostby’s writ and judgment. A hearing is scheduled for July 23.
Ostby removed herself from the case in March, and the new judge on the case, David Higgs, ordered a halt to the MPCA procedures that Ostby’s order had required. It’s unlikely that the shredder-related issues will progress until that order is lifted or superceded.