Legalectric

If you’re interested in what “streamlining” means in Minnesota, and for which we can thank Gov. Dayton for his “right out of the gate” push for MPCA and DNR to permit everything in sight NOW, here’s an example:

The MPCA is under siege, pushed by Northern Metals to ram through approval of permits, the push being a rare “preemptory writ” issued by Ramsey County District Court judge Ostby a couple weeks ago.  It’s rare, and it’s something that happens without notice to the other party, so the MPCA had no warning this was coming, was before a judge, and didn’t learn of it until they were served with the order, mandating that the MPCA hold the hearing on it tomorrow, March 27!  How’s that for slick?  The MPCA challenged that Order, and there’s a hearing going on in Ramsey County District Court about this right now, Judge Ostby (see below) has appropriately recused herself.  There’s more on this below, but FYI, Judge Ostby is a former partner at Briggs and worked with the attorney who brought the request for writ to her.  Isn’t that special!!!!!  No word yet how that hearing is going — this is when we need streaming hearings!

This just in from Alan Muller, across the hall:

Two matters of broad importance are coming before the “Citizens Board” of the Minnesota Pollution Control Agency today and tomorrow, March 26th and 27th.

You can watch it live on the webcast at www.pca.state.mn.us/webcasts

The first matter involves “environmental review” and air permitting for a scrapyard in Minneapolis, now doing business as Northern Metals.

Northern Metals has a long history of conflict with the surrounding communities. Why is this a matter of statewide import?  A DistrictCourt judge, Elena L. Ostby, has issued anunprecedented “Peremptory Writ of Mandamus”ordering the MPCA to act on March 27th. The district court issued this order or writ without hearing from the MPCA, as apparently is allowed with”peremptory” writs. If this becomes acceptablepractice, no regulatory program will be safe. Representative Joe Mullery, Minneapolis, introduced a bill, HF 2814, to prevent issuance of Peremptory Writs against the PCA, but, as one would expect, it is going nowhere under the present evil-minded legislative leadership. The PCA is asking the District to reconsider, and appealing to the Appellate Court.

In the normal course of events we don’t learn much about the legal tactics used by dischargers like Northern Metals to influence the regulatory and environmental review processes in their favor.

Here is a partial summary.  It illustrates how much harder regulators get hammered by special interests than by the health/enviro side.

Northern Metals started up a shredder in June 18, 2009 with an air permit issued on December 8, 1998, with no expiration date. No special effort was made to ensure than an over-ten-year-old permit was still appropriate for the facility.

Immediately, it became clear that the facility failed, by wide margins, to comply with the emission limits in the air permit. The causes of the mismatch between the permit and the facility are unclear to me at this time.

Enforcement actions eventually ensued but compliance did not.

On November 10, 1011, the PCA public noticed a draft air permit and draft EAW, having successfully requested Northern Metals to begin the environmental review process. The draft permit allowed large increases in emissions, as detailed in my December 16, 2011 Comment letter, and allowed Northern Metals an expanded range of activities, including the shredding of whole car hulks. The permit violations were to be “fixed” by loosening the permit limits so the high emissions would no longer be violations.

Approximately 65 public comments were received and nearly all objected to the proposed actions.  These Comments are posted HERE and many are very eloquent and convincing.  Exceptions:

o Northern Metals itself says it does not want to do the mercury testing required in the draft permit;

o The United Electrical, Radio and Machine Workers, Amalgamated Local 1139, want the permit modifications granted;

o The Met Council staff say no EIS is necessary, “The Council staff finds … [the EAW]… to be complete and accurate.”

As far as I have seen only one mainstream Minnesota “enviro” org, Clean Water Action, commented.

Attempting to respond to public concerns, the PCA first extended, then cancelled, further public comment periods, indicating an intention to rework the draft air permit and EAW.

Northern Metals then sought a Peremptory Writ of Mandamus from the 2nd District Court, Ramsey County, ordering the MPCA to act-to decide whether an Environmental Impact Statement is required–at a regularly scheduled Citizens

Board meeting on March 27, 2012. The Court granted the requested writ, without hearing from the MPCA.

Northern Metals also claimed it was suffering losses of two million dollars per month because of unjustified delays by the MPCA. The Court indicated an intent to award damages.

Several aspects of this judicial proceeding are unusual and disturbing:

The Writ was issued with no notice to the PCA and thus, no opportunity to present the other side of the story (Peremptory Writ).

The District Court website biography of the judge in the matter, Elena L. Ostby, indicates she formerly worked at the same firm, Briggs & Morgan, as presently does Mr. Jack Perry, who represents Northern Metals.

The transcript (READ IT ALL HERE) at page 2:

MR. PERRY: Your honor, Jack Perry, from the Briggs & Morgan law firm. Good to see you again after a few years.

The Court: It’s been a while.

At page 4:

MR. PERRY: . our old partner Rick Mark was involved in litigation involving the predecessors in permitting years and years ago.

I am no lawyer, but on it’s face, the statute allowing Peremptory Writ of Mandamus does not seem to apply to this situation:

586.04 PEREMPTORY WRIT.

When the right to require the performance of the act is clear, and it is apparent that no valid excuse for nonperformance can be given, a peremptory writ may be allowed in the first instance. In all other cases the alternative writ shall first issue.

How could the Court know what responses might be made by the MPCA when they’re not even provided notice of the hearing and are not present? How could the Court know whether a “valid excuse for nonperformance can be given?”

Common sense indicates that courts should not act without opportunity for response from the other side except in unusual circumstances.

It also appears that the Court was mislead regarding the issue of particulate emissions. Transcript at page 10:

MR PERRY: What they have done is they have said we’re going to change the emissions levels from 4.3 pounds per hour [of particulate matter] to 1.83 pounds per hour. If they do that, that is effectively a denial because it’s not what we’ve applied for.

But Ms. Winters, Assistant Attorney General representing the MPCA, responds in her March 7, 2012 letter to Judge Ostby:

…on August 3, 2010, Petitioner signed a settlement with MPCA enforcement staff for violations of its existing permit by which it committed to a Plan with a 1.83 lb/hr limit.

Petitioner had submitted a permit application with the 1.83 lb/hr limit in March, 2010. On August 26, 2010, after it signed the settlement, Petitioner changed its application to 4.2 lb/hr without revealing to permitting staff that the1.83 lb/hr was a condition of the settlement Plan.

But Judge Ostby did not know this because she acted before hearing from the MPCA.  This is not, of course, to excuse the apparent lack of communication between the permitting and enforcement staffs of the MPCA.

Northern Metals uses inflammatory language in its pleadings. Some examples from Northern Metals’ Petition for Peremptory Writ of Mandamus:

… There is no end in sight to MPCA’s dilatory tactics. MPCA has gone to press once again to hijack the proceedings. (page 11)

… MPCA’s most recent gamesmanship also highlights the unlawful steps it is willing to take . (page 12)

… MPCA’s manipulation of the process has gone on long enough. (page 16)

… Northern Metals has and will continue to lose over $2,000,000 in revenues per month due to these delays. (page 16)

In her letter to Judge Ostby, Winters writes:

Petitioner mislead this Court, the MPCA, and the public. Through failing to disclose important, relevant facts, Petitioner has abused the judicial, the environmental review, and the permitting processes.

From my point of view Judge Ostby clearly made bad decisions, and made them in a manner that raises concerns about bias. Hopefully the MPCA and the Attorney General will be able to get these decisions changed or overturned. If this Peremptory Writ stands, no regulatory program is safe.

However, assuming the decisions stand for the moment, the March 27th deadline for action has effectively eliminated the normal opportunities for a “public information meeting,” for members of the public to petition for a “Contested Case,” to review the files in this long-drawn-out matter, etc.

The PCA has announced an MPCA CITIZENS’ BOARD SPECIAL MEETING on March 26th/27th with the sole agenda item being Northern Metals Request for Decision on the Need for an Environmental Impact Statement.

Along with this goes a “Board Packet” of 190 pages including the public comments and 132 proposed Findings of Fact. These include a recommendation to the Board that an Environmental Impact Statement be required. Of the face of things this looks like progress, but a closer reading shows problems:

The MPCA says that the ONLY problem is that the permit limit for particulate matter (dust) should be 1.83 pounds per hour rather than the 4.2 pounds per hour Northern Metals wants.

Everything else is OK. No problems with increased emissions of all sorts of other pollutants. No problems with noise. And so on.

If Northern Metals is willing to go along with the 1.83 pounds per hour, the PCA is willing to roll and withdraw the recommendation for an EIS.

So where did the 1.83 come from? “At 1.83 lb/hr, the modeled ambient concentration is 34.3 … [micrograms per cubic meter], which is slightly below the [federal standard] of 35 ….” In other words, the 1.83 looks to have been “back calculated” from the federal maximum. “How high can we legally make the permit limits?” There are lots of problems with this approach, including:

o The federal standard is known to be too high and not truly protective of human health;

o no safety margin is included, or leeway for increased emissions from other sources;

o the emission rate actually measured during “performance testing” in 2009 was 1.32 lb/hr.;

o the present permit limit is apparently

0.43 lb/hr (but there are some confounding technicalities).

o all air pollution is a health threat. There really aren’t any “safe levels.”

Why does the PCA now say 1.83 is the right number, when it was proposing 4.2 until recently? There appear to be two things going on:

o The PCA woke up to the fact that Northern Metals had already agreed to 1.83 in the Settlement of its violations; and

o “updated ambient air concentration data,

a critical input in the modeling, has now become available.” In other words, background concentrations of particulates are higher than previously thought. (Does this also apply to other airborne pollutants in the area?)

It appears to me that the basic MPCA permitting policy is to issue the loosest permits that are defensible, as quickly as possible. The priority is servicing the polluters, not “pollution control.” The vast majority of permitting actions never get significant public attention, so the agency gets away with implementing this shameful policy most of the time.

A full Environmental Impact Statement (EIS) is needed for many reasons, to sort out many issues.

Note: Northern Metals had its version of the controversy up on its website, but this appears to have been taken down.

More information:

o <http://forums.e-democracy.org/groups/mpls/messages/topic/4sWw94S45iMQqpS8axGtX6>Letter

from Reps. Joe Mullery and Phyllis Kahn

ACTION: Demand a full Environmental Impact Statement for the Northern Metals permit,regardless of any last minute actions by the courts or Northern Metals.

o Paul Aasen, Commissioner of the MPCA, 651-757-2016, Paul.Aasen@state.mn.us

o Governor Dayton, 651-201-3400, mark.dayton@state.mn.us

o your state senator and representative. <http://www.gis.leg.mn/OpenLayers/districts/>Who represents me?

<http://www.leg.state.mn.us/leg/faq/faqtoc.aspx?id=47>How do I let a Representative or Senator know how I feel about an issue?

o Attend and speak at the Citizens’ Board meeting.  Requests to provide comment to the board during the meetings on Monday and Tuesday must be made in advance to the board administrator (651-757-2025 or

<mailto:citizensboard.pca@state.mn.us>citizensboard.pca@state.mn.us)

or by filling out a request to comment form on the day of the meeting and providing it to the board administrator. The board chair will call on commenters who have requested to comment at the appropriate time.