Northshore wins by default in air disputeThe ongoing legal battle continues between North-shore Mining and the Minnesota Pollution Control Agency over air monitoring for asbestos-like fibers in Silver Bay.
By: News-Chronicle, Forum Newspapers, Lake County News Chronicle
The ongoing legal battle continues between North-shore Mining and the Minnesota Pollution Control Agency over air monitoring for asbestos-like fibers in Silver Bay.
In the latest round, the taconite processor won by default when an appeal filed by the state was deemed improper because it arrived late.
The Minnesota Court of Appeals dismissed an appeal of a lower court ruling in favor of Northshore by Lake County District Judge Ken Sandvik. He ruled that an Environmental Assessment Worksheet isn’t needed for the PCA to decide whether it should drop air testing at Silver Bay from pollution regulations imposed at Northshore’s taconite plant.
The ruling, released last week, is a default victory for the mining company, owned by Cliffs Natural Resources, which opposes the assessments.
The MPCA sent its notice of appeal to the wrong address for Northshore’s attorneys. When it realized the mistake and got the notice to North-shore, it was two days too late.
State appeals Chief Judge Edward Toussaint wrote in his ruling that his hands were tied on the matter. “Where an appellant fails to serve respondent with a notice of appeal within the appeal period, the court of appeals has no jurisdiction to consider the matter.”
Sandvik said Wednesday that he believes the result would have been the same if Toussaint had been given a chance to rule on the merits of the case.
The appeal dismissal doesn’t mean the air testing will stop soon. Instead, the PCA must now decide how to formally consider the company’s request to drop the air monitoring requirement from the permit, along with dropping a requirement that fiber levels in Silver Bay be compared to fiber levels in St. Paul.
State officials said Tuesday they haven’t decided yet how to proceed on the company’s request, but they said the process will be open and will include a public comment period. They also said they are not obliged to abide by the company’s request.
If the company disagrees with the PCA’s eventual decision, it can appeal in court.
The requirement to test for airborne asbestos-like fibers remains in effect.
The PCA says the measurements and comparison are the only real way to keep track of how the fibers might affect human health. But the company says the monitoring is unnecessary and outdated and that comparison to St. Paul has no value.
Some say high levels of those fibers could cause lung ailments, and the PCA says the comparison with St. Paul is still important decades after being imposed by a federal judge. The requirement was part of the mega-legal battle that forced then-Reserve Mining to stop dumping taconite tailings into Lake Superior.
Northshore has been working for years to have the testing comparisons dropped.
Last year, a federal court ruled that the federal government no longer has jurisdiction in the case, throwing out Judge Miles Lord’s 1975 stipulations on Northshore [Reserve Mining] operations.
It said Minnesota still could require air testing as part of state air pollution permits.
Northshore again asked the state to drop the requirement last year and, when PCA officials refused, the company filed a lawsuit to have the air-test dropped, noting that fiber levels in Silver Bay were consistently below those in St. Paul.
In January, Sandvik ruled and agreed with the company, ruling that the state should not require Northshore to conduct a full environmental impact statement before applying for a change in the permit to drop the air testing standard. Sandvik ruled that the requirement was “arbitrary and capricious” and “an error of law.”
PCA air-quality officials say the testing is still important because little scientific data is available on what level of the fibers is safe. The PCA also said Sandvik ’s decision was based on inaccurate and incomplete data on asbestos-like fibers.
Northshore officials have repeatedly said fibers released from ore during the taconite pellet-making process are not true asbestos and are not a human health threat.