Minnesota Lawyer
A long-simmering environmental fight over a metal shredding operation on the banks of the Mississippi River in north Minneapolis is heating up and could be headed for trial.
In an aggressive and some say unusual legal gambit six weeks ago, Northern Metal Recycling filed a writ of mandamus asking Ramsey County District Court Judge John Guthmann to compel the Minnesota Pollution Control Agency to remove two air pollution monitors the agency installed adjacent to company’s riverfront scrapyard and shredder.
In its filing, Northern Metal chastises the agency for its “inexplicable refusal” to look at other possible sources for ambient air quality violations in the vicinity.
On Monday, the MPCA struck back.
In a three-count counterclaim, the agency alleged that Northern Metal caused or contributed to an “unprecedented” run of ambient air quality violations last fall and “willfully continued to operate its facility without making any changes to address the pollution problem.”
In a related memorandum for summary judgment, the MPCA dismissed Northern Metal’ “meritless” mandamus petition as an unnecessary “pre-emptive strike.”
Reached by phone, Katherine Winters, the general counsel for the MPCA, described Northern Metal’s use of mandamus “a very unusual tactic.” She said she was unaware of any prior cases in which a business had turned to the court to demand the removal of MPCA pollution monitors.
“There is certainly a separation-of-powers problem raised by asking district courts to direct or limit the activities of a state agency,” Winters said. “That is of serious concern to us.”
In Northern Metal’s petition, attorney Jack Perry, of the Minneapolis firm of Briggs and Morgan, argues that the MPCA installed the two air monitors because its prior efforts to shut down Northern Metal’s shredder didn’t pan out.
The company also wants the court to force the MPCA to conduct its air-quality investigations through the use of modeling techniques, not the fixed monitors. Barr Engineering, a consultant hired by the company, used a modeling technique and determined Northern Metal “did not cause or even significantly contribute” to the exceedances, according to the petition.
Northern Metal also seeks unspecified monetary damages, claiming that the MPCA was obligated to shut down one of its monitors under an established timeline and federal air quality monitoring program.
That’s nonsense, the MPCA responded.
The agency acknowledged that is required to notify the Environmental Protection Agency when it switches up air monitors which are part of the so-called SLAMS network — the “state or local air monitoring stations” — used to measure compliance with federal air quality standards.
But the agency said that doesn’t apply to the monitor in question — a “special purpose monitor” which was never part of the SLAMS network. Additionally, the agency said it has no obligation to seek prior approval from the EPA to install monitors in the first place.
“Northern Metal has failed to cite any law that prohibits the MPCA from adding different monitoring equipment at an existing monitoring station, or from starting a new monitoring station,” MPCA attorney Ann E. Cohen wrote in a motion seeking summary judgment. “As a result, its petition should be denied and the writ terminated.”
Cohen characterized Northern Metal’s petition as “a thinly veiled attempt to prevent the MPCA from doing its job.”
In a telephone interview, Perry said the MPCA has unfairly targeted Northern Metal.
“The company is environmentally responsible, fully compliant with its permit and has done everything imaginable to improve their emissions voluntarily,” he said. “There is no other metal shredding operation in the state of Minnesota, in the United States or in the world that is totally enclosed.”
He also chafed at Winters’ characterization of the mandamus tactic as out of the ordinary. He noted that he filed another mandamus action against the MPCA on behalf of Northern Metal fewer than four years ago. The issue at play at then — whether the agency wrongly extended a timeline on a public comment period — was settled after the MPCA’s Citizen Board granted the permit.
However, Thad Lightfoot, a veteran environmental law attorney and Dorsey partner, said mandamus actions are rarely invoked in environmental fights and predicted a tough legal slog for Northern Metal.
“Anytime you’re challenging an agency’s decision it’s an uphill battle. The agency’s decisions are presumed correct, so you’ve got to establish the agency is acting arbitrarily and capriciously in order to prevail,” Lightfoot said. “Typically when agency actions are challenged, they’re challenged in the Court of Appeals, not the district court. And they’re not challenged through mandamus actions; they’re challenged under the Minnesota Administrative Procedures Act.”
In its counterclaim, the MPCA said it discovered high levels of “total suspended particulate” shortly after installing a monitor immediately to north of the metal shredder last October.
“In the 31 years of experience of MPCA’s air monitoring unit supervisor, it was unprecedented for a TSP monitor to recorded exceedances or near-exceedances three times over a period of 18 days,” the agency stated.
Northern Metal faults the MPCA for not looking more closely at other potential sources, pointing to several other industries in the vicinity, including GAF Industries, a nearby asphalt roofing company.
The MPCA responded that it contacted several of the businesses, including GAF, which was not in operation at the time of the violations.
And the agency claims it has a smoking gun: After removing the filter from the air monitor, technicians using a magnet found high levels of iron and Northern Metal is the only business in the vicinity that could have generated “metallic particulate matter.”
The agency said inspections of the metal shredder turned up other violations. In one instance, agency technicians said they could see a visible cloud of “fugitive emissions” wafting from the facility, which produced “a metallic taste in their mouths, burning eyes, and scratchy throats.”
In its counterclaim, the agency seeks damages of up to $25,000 per day of violation, as well as compensation for all or part of litigation costs.
By the time the MPCA and Northern Metal next meet in court, Perry said he expects to have another cudgel at his disposal: a signed affidavit “from one of the most well-respected lobbyists at the Capitol” that, he said, will shed new light on the MPCA’s motivations.
According to Perry, a legislator from Minneapolis told the lobbyist — “in unbelievably nasty language” –that that the MPCA’s regulatory efforts are aimed at putting Northern Metal out of business.
With Minneapolis city officials looking to redevelop the remaining industrial riverfront above St. Anthony Falls, it remains an open question how long Northern Metal will remain in its current location. In June, the company suffered a significant blow when Congress closed the Upper St. Anthony Lock, eliminating its ability to move product down river via barge.
At the Capitol this spring, Sen. Jim Metzen, DFL-St. Paul, introduced legislation that would provide Northern Metal with $20 million to relocate. The bill received an informational hearing but was not acted upon.
