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...

The parties, through their counsel of record, appeared before the Court on Monday, March 26, 2012.  Appearances were noted in the record.

The Court, after reviewing the parties' motions, pleadings, memoranda, affidavits, and arguments of counsel, and based upon the entire file, record and proceedings herein, makes the following



1.  The enforcement of the Court's prior orders in the matter are stayed pending further actions or rulings by this Court;

2.  Respondent/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;

3.  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.
The MPCA responded in their own release:

A public hearing at the Minnesota Pollution Control Agency (MPCA) today on the environmental review of a proposed permit amendment for Northern Metals in Minneapolis was stopped by order of Ramsey County District Court Judge David Higgs. The order stayed enforcement of prior orders by the same court that the MPCA Citizens’ Board (Board) vote on the matter at its regularly scheduled March meeting. Therefore, the previously scheduled agenda item on the Northern Metals environmental review will not be heard at the Board meeting on the March 27. The MPCA is unable to comment further on this matter until receiving further direction from the courts. Further information regarding the Northern Metals Environmental Assessment Worksheet and permit will be made available at a future date. 

So what does this all mean?


This places a delay on the whole process. Everything has been moving so fast, with so little chance for public input, that we have not had an opportunity to develop a full and strategic response to the draft permit and environmental assessment worksheet. Hitting the pause button gives the community more time to organize and more time to gather information about the full impact of Northern Metals’ proposed increases.


The MPCA staff had issued a recommendation that a full Environmental Impact Study be issued. Under a draft permit and Environmental Assessment Worksheet, the criteria that can be considered is much narrower than a full EIS. Over the past twenty years, MPCA staff recommendations have on occasion been tweaked and adjusted slightly, but no one I talked with could remember a recommendation ever being completely overturned. Without the court ruling today, a full EIS seemed quite likely. So...


This ruling was in some ways exactly what Northern Metals would have wanted. The one thing they absolutely want to avoid is having to do a full EIS. The EIS is costly, time-consuming, and broad enough to encompass a whole host of social, economic, environmental, and infrastructure issues. Since the MPCA was likely to have issued an EIS requirement today or tomorrow, any court action delaying that decision is useful to Northern Metals. They now have time to regroup, re-strategize, and organize their resources.

Given that a full EIS was all but assured as an outcome of Monday's hearing, this particular ruling benefits Northern Metals more than it benefits the community's efforts towards a healthier environment in north and northeast Minneapolis.  The other significant downside to this ruling is that the next step will come from a court hearing, and we simply don't know what that development might be.  In the meantime, the community can continue to organize and research around the necessity of a full Environmental Impact Statement.

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