Wednesday, March 28, 2012

A Layman's Summary of the Northern Metals Legal Wrangling

Post and photos by Jeff Skrenes, Hawthorne Neighborhood Council Housing Director.

"Dramatic" and "roller coaster" are two words rarely associated with something as dry and bureaucratic as a Minnesota Pollution Control Agency Citizens' Advisory Board meeting.  But those two descriptions certainly applied on Monday, March 26th as the board took up the issue of Northern Metals' request for increases in their pollution limits.  The board had taken up consideration of whether to approve the request or require a full Environmental Impact Statement (EIS).  In part because there has been no public meeting on the application yet, over forty residents and employees within North  Minneapolis took time out of their workday to attend the hearing and speak on the issue.  We were also supported by many of our elected officials, including Linda Higgins, Bobby Joe Champion, Joe Mullery, Barb Johnson, Diane Hofstede, Kari Dziedzic, Phyllis Kahn, and Jon Olson.

But even arriving at this point was a long and winding road.  In recent months, it started with Northern Metals applying for what amounts to increases in pollutant levels and decreases in emissions testing and requirements.  Public meetings were announced and subsequently cancelled.  The MPCA realized that their calculations around particulate matter emissions were inaccurate.  As they were in the process of reworking that data set, Northern Metals did an end-around on the process by going to a judge to issue a peremptory writ of mandamus.  That legal wrangling essentially required the MPCA to take up the matter at their next board meeting.

The writ had several extenuating circumstances that were quite rare.  First, it appears the MPCA had not even received notification of its filing, and had no chance to represent itself at the hearing.  Second, the district court website biography for the judge in the matter, Elena Ostby, indicates that she once worked for the same law firm, Briggs & Morgan, as the attorney representing Northern Metals.  Finally, it appears that this particular ruling is unprecedented in the history of Minnesota.  The highly unusual--and frankly, rather suspect--sequence of events meant that the MPCA was working feverishly to overturn or at least slow down the judge's order.  And many environmental justice groups were watching these proceedings with bated breath.

But because Ostby issued that order, the MPCA had to proceed assuming it would not be overturned.  In those proceedings, the staff issued a recommendation that a full Environmental Impact Statement be issued.  Short of a flat-out denial of the permit application, an EIS is about the best thing the community could ask for.  The current draft permit application and Environmental Assessment Worksheet is rather limited in scope - on top of the fact that the particulate matter emissions data is inaccurate.  A full EIS would allow for more accurate information, but it would also allow a broader scope of criteria.

In an EIS, we could look at environmental justice issues, such as how low-income and minority communities are disproportionately affected by asthma and other diseases and hospitalizations related to elevated pollution levels.  We could look at future land use policies, such as the Above the Falls master plan and the Mississippi Riverfront Design Initiative.  Both of those plans call for more and expanded bike, pedestrian, and park usage along the Mississippi River, much of which would be directly adjacent to the Northern Metals facility.

I asked many of our elected officials how much weight the staff recommendation for an EIS carried with this board.  No one could think of a time when the staff recommendation was overturned or ignored.  It was possible that the recommendation for an EIS could get some minor adjustments to it, but highly unlikely that it would be disregarded by the board.  Amid all the consternation, the most probable outcome of the hearing was a required EIS of some kind.

Since the MPCA did not want to be legally outmaneuvered, and since Northern Metals did not want the burden of an EIS, we were unclear as to who initiated the order to stop the day's proceedings.  Luckily, I snapped a photo of the judge's order.  (Ostby recused herself and a new judge had been appointed.)  That order shows Northern Metals as the plaintiff.  However, I am unsure if Northern Metals simply remained as the plaintiff since they initiated the writ of mandamus.

In any case, the court order reads...

Friday, March 16, 2012

A Northern Metals Update

The Northern Metals courtroom saga is well-documented elsewhere, but Hawthorne wishes to provide the following update:
The Citizens' Advisory Board meets on March 26-27. On the 26th, the meeting starts at 1:00 p.m. They will take public testimony at that time. On March 27, the meeting starts at 9:00 a.m. and no public testimony will be done then. We are encouraged, though to bring as many people to both meeting times as we are able.

Public comments will be accepted up to five calendar days before the meeting on the 26th. To be on the safe side, comments should be submitted by March 20. This includes the petition. Please direct public comments to The board will be given copies of all public comments.

It will also be helpful for the MPCA to get a list of those who wish to speak at the hearing on the 26th.

That hearing is at 520 Lafayette Road in St. Paul, and can accommodate between 200 and 250 people. Let's put that number to the test. Who can come?