Note that this dates from 2012. I”m posting it here because of the ongoing controversy…..
Date: Tue, 20 Mar 2012 23:37:02 -0500
To: mpls@forums.e-democracy.org
From: Alan Muller <amuller@dca.net>
Subject: [Mpls] Northern Metals festivities …..
Sender: mpls@forums.e-democracy.org
Permit issues will be discussed at some length,
but 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
<http://greendel.org/wordpress/http://greendel.org/wordpress/wp-content/uploads/2012/03/northernaircommentsrev.pdf>comment
letter, and allowed Northern Metals an expanded
range of activities, including the shredding of whole car hulks.
Approximately 65 public comments were received
and nearly all objected to the proposed
actions. (These are posted
<http://www.pca.state.mn.us/index.php/view-document.html?gid=17518>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
<http://greendel.org/wordpress/http://greendel.org/wordpress/wp-content/uploads/2012/03/nothern-metals-transcript.pdf>transcript,
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? 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
<http://greendel.org/wordpress/http://greendel.org/wordpress/wp-content/uploads/2012/03/nothern-metals-ltr-to-judge.pdf>letter
to
<http://greendel.org/wordpress/http://greendel.org/wordpress/wp-content/uploads/2012/03/nothern-metals-ltr-to-judge.pdf>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 the
1.83 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’
<http://greendel.org/wordpress/http://greendel.org/wordpress/wp-content/uploads/2012/03/nothern-metals-docs.pdf>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
<http://www.pca.state.mn.us/index.php/about-mpca/mpca-news/current-news-releases/mpca-citizens-board-to-hear-comments-on-northern-metals-eaw-at-special-board-meeting.html>announced
an MPCA CITIZEN’S 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).
Why does the PCA now say 1.83 is the right
number, when it was proposing 4.2 until
recently? PCA technical staff on this have not
been talking to Alan Muller. 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 much higher
than previously thought. (Does this also apply
to other airborne pollutants in the area?)
An EIS is needed for many reasons, to sort out many issues.
am
Alan Muller
N/A, Red Wing, MN/Port Penn, DE
About Alan Muller: http://forums.e-democracy.org/p/alanmuller
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