A month ago, a judge in Ramsey County District Court issued an order requiring the Minnesota Pollution Control Agency (MPCA) to decide on March 27 whether or not an Environmental Impact Statement is needed for amendments to Northern Metals’ metal shredder air emissions permit. Northern Metals operates the shredder on the west bank of the Mississippi River, just south of the Lowry Avenue Bridge.
That court order has come full circle, and then some.
Last week, another judge in the same court issued an order forbidding MPCA from making that determination, or from taking any other environmental-review actions on Northern Metals’ permit amendment.
For those who watch the court system, a lot happened in between, including a judge removing herself from the case. But for those who care about the shredder and its environmental impact, a grand total of nothing has happened; and, it’s unlikely anything will happen until some legal issues are resolved.
Who cares the most about the ins and outs of this case?
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.
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.
At that point, Northern Metals cried foul, 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.)
On Feb. 27, 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.
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.”
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.” She also wrote that the EAW and permit application before MPCA include 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.
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.
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.”
A hearing scheduled for the next day was canceled, and the case re-assigned to Ramsey County District Court Judge David Higgs, who scheduled a hearing for 10:30 a.m. March 26, two and a half hours before MPCA would begin the first part of the March 27 meeting at which it was required, under Ostby’s writ, to decide whether or not an EIS is needed.
Meanwhile, MPCA staff said they found updated information on the amount of particulates in the air without Northern Metals’ shredder operation. That, plus Northern Metals’ higher particulate level, would push the particulate level over a federally-established threshold and thus trigger a “positive declaration” that an EIS is needed for the permit amendments, a process that would likely delay the permit process by more than a year.
The attorneys took less than an hour to make their cases to Higgs at the 10:30 a.m. court hearing March 26. Perry, Northern Metals’ attorney, said the law forbids MPCA from bringing new information, such as the new levels of particulates in the air, into the review process. Winters, representing MPCA, said the law requires MPCA to use the new information.
MPCA’s meeting began at 1 p.m. After a brief introduction, MPCA’s William Lynott gave a history of the permit review, with the conclusion that, because of the new ambient-air information, an EIS was called for.
As members of MPCA’s Citizen Review Board were questioning Lynott, word reached the hearing that Judge Higgs had issued an order, and they took a recess to review it.
The order reads, in part:
- The enforcement of the Court’s prior orders in the matter are stayed pending further action or rulings by this Court;
- Respondents/Defendants shall stay any administrative actions related to Petitioner/Plaintiff’s pending Application before the MPCA (including, without limitation, environmental review of the permit amendments) pending further action or rulings by this Court, and
- The Court’s grant of a stay by this order shall not affect, nor shall it be construed as affecting, any party’s rights or defenses in this action.”
Higgs did not issue a ruling on whether or not MPCA’s “new” ambient-air data could be introduced. But the ruling effectively stopped that day’s proceedings.
MPCA Commissioner Paul Aasen, who chaired the meeting, read the order aloud and concluded the March 26 meeting (MPCA had other business that it would conduct the next day). No further court actions had been filed by the end of last week.
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 Metals began operating a different kind of metal shredder, inside an enclosure, in 2009.
CORRECTION 4/14/2012: As members of MPCA’s Citizen Review Board were questioning Lynott, word reached the hearing that Judge Higgs had issued an order, and they took a recess to review it.