Alter Trading Corporation d/b/a Alter Metal Recycling, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-1249

Alter Trading Corporation d/b/a Alter Metal Recycling,
Relator,

vs.

Minnesota Pollution Control Agency,
Respondent.

Filed April 20, 2026
Affirmed in part and appeal dismissed in part
Bratvold, Judge

Minnesota Pollution Control Agency

Ian A. J. Pitz, Michael Best & Friedrich LLP, Madison, Wisconsin; and

Ena M. Allen, Michael Best & Friedrich LLP, Milwaukee, Wisconsin (for relator)

Keith Ellison, Attorney General, Oliver J. Larson, Jordan Asch, Assistant Attorneys
General, St. Paul, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Bratvold, Judge; and Cleary,
Judge.*
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal by writ of certiorari, relator challenges a determination by respondent
state agency that relator is ineligible for a particular type of air emissions permit for its

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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facility; the agency also requested that relator apply for a different type of air emissions
permit. Relator seeks review of two agency decisions: the denial of relator’s request to
reconsider the ineligibility decision and the agency’s “withdrawal” of relator’s new
application for its preferred permit. Because the agency’s denial of relator’s request to
reconsider was not a final agency decision, we dismiss the appeal in part. And because the
agency’s withdrawal of relator’s permit application is supported by substantial evidence
and not legally erroneous and any claimed legal error is not prejudicial to relator, we affirm
in part.
FACTS
Relator Alter Trading Corporation, d/b/a Alter Metal Recycling, has a scrap and
waste material recycling facility in Anoka. Since 2008, Alter has operated the facility under
an option D permit from respondent Minnesota Pollution Control Agency (MPCA ).1 The
parties dispute whether Alter’s facility continues to qualify for an option D permit.
In an April 2025 letter, MPCA notified Alter of its determination that the Anoka
facility “no longer qualifie[d]” for an option D permit (April notice). MPCA explained that
it had “determined that site-specific requirements are needed to ensure [Alter’s]
compliance” with federal and state air quality standards. MPCA noted that emissions of
volatile organic compounds—one of the pollutants regulated through MPCA air emissions
permitting—“are variable depending on the number of end-of-life vehicles . . . that are

1 MPCA issues operating permits for air pollution emissions. See generally Minn. R.
ch. 7007 (2025). Regulated parties that meet certain criteria may apply for one of several
less stringent “registration” permits, including an option D permit. Minn.
R. 7007.1110-1130 (2025).
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processed” at Alter’s facility. MPCA also observed that the “shredder grate size affects
emissions, and a registration permit cannot specify the size of the grate used nor can it
prohibit [Alter] from using a different sized grate.” MPCA concluded that, because “neither
of the above [two] items can be enforced by a registration permit, ” Alter’s Anoka facility
“no longer qualifies for an Option D Registration Permit.”
The April notice also included a “request for a different permit application” and
stated that, within 120 days, Alter must submit, among other things, “an application for a
total facility individual air permit pursuant to Minn. R. 7007.0200 to 7007.0250, as
applicable, for the Alter Metal Recycling-Anoka facility” (individual permit). MPCA also
stated that, if Alter “fail[s] to submit the required permit application in the time required
[by rule], the owners and operators lose their right to operate” the facility.
Alter responded to the April notice in two ways.
First, Alter submitted a new application for an option D permit, dated June 24, 2025.
Alter stated that the application was “in partial response” to MPCA’s April notice. Alter
explained that the “purpose of this submittal is to provide new site-specific emission factor
information, clarify compliance demonstration methods, and reaffirm the ability for the
facility to comply with the requirements of the Option D Registration permit.”
MPCA responded, stating that “the Option D Issuance application” for Alter’s
Anoka facility was “being withdrawn” because the “facility has an Option D permit issued
on 12/30/2008” (application-withdrawal decision).
Second, Alter submitted a “Request for Reconsideration” of the April notice, dated
June 25, 2025. The reconsideration request stated that “Alter respectfully disagrees with
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MPCA’s conclusions and the asserted need for a different application.” Alter included a
memorandum arguing that its Anoka facility qualified for an option D permit.
MPCA responded, stating that “MPCA has considered and is denying your request
to rescind the permit application request” (reconsideration-denial decision).
Alter petitioned for a writ of certiorari on August 1, 2025.
DECISION
Alter seeks review of two MPCA decisions: the denial of its request to reconsider
the April notice and the withdrawal of Alter’s new option D permit application. Alter did
not petition for certiorari as to the April notice, and its opening brief does not ask us to
review the April notice.
In response to MPCA’s statement of the case filed pursuant to Minn. R. Civ. App.
P. 133.03, Alter’s opening brief argues that this court has subject matter jurisdiction over
the two MPCA decisions identified in its certiorari petition. 2 Alter contends that both
decisions were final and thus are properly before this court. 3 Alter specifically describes

2 MPCA’s statement of the case suggested that it would challenge the timeliness of Alter’s
appeal. See Minn. Stat. § 14.63 (2024) (stating that a petition for a writ of certiorari for
judicial review of an agency decision “must be filed with the court of appeals . . . not more
than 30 days after the party receives the final decision and order of the agency”). In its brief
submitted to this court, MPCA argues that Alter’s petition was not timely as to the April
notice. Because Alter does not seek review of the April notice, we need not consider
MPCA’s timeliness argument.

3 Alter argues that the April notice was not a final, appealable decision because MPCA
failed to provide Alter notice of its “right of review” for a permit revocation under Minn.
R. 7001.0190, subp. 4 (2025). In response, MPCA contends that the April notice did not
“revoke” Alter’s option D permit and the notice requirement under rule 7001.0190 “does
not apply.” As explained supra note 2, we need not resolve this dispute.
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MPCA’s application-withdrawal decision as a denial of “Alter’s renewed application for
an option D permit.” MPCA responds that its reconsideration-denial decision was not a
final agency decision but agrees with Alter that MPCA’s application-withdrawal decision
is properly before this court.
We review our subject matter jurisdiction de novo. Lancaster v. Dep’t of Hum.
Servs., 18 N.W.3d 80, 83 (Minn. 2025) (discussing appealability of a decision by writ of
certiorari as “a question of subject matter jurisdiction” that appellate courts review de
novo). This court’s certiorari jurisdiction is “governed by the applicable statute.” Minn. R.
Civ. App. P. 115.01. Minnesota Statutes section 115.05, subdivision 11 (2024), which
authorizes judicial review of MPCA permitting decisions, provides that any aggrieved
party may obtain judicial review of a “final decision of the agency.” See also State ex rel.
Mosloski v. C ounty of Martin, 80 N.W.2d 637, 639 (Minn. 1957) (“[C]ertiorari will not
ordinarily lie unless there is a final determination of rights.”). Thus, we consider whether
MPCA’s reconsideration-denial and application-withdrawal decisions are final agency
decisions.
MPCA’s Reconsideration-Denial Decision
The supreme court’s decision in Lancaster guides our analysis of MPCA’s
reconsideration-denial decision. In Lancaster, the supreme court concluded that an agency
correction order directing the relator to “fix” violations in his home, where he provide d
adult foster-care services, was not appealable by writ of certiorari because it did not “bind
and irrevocably fix the legal rights of a license holder.” 18 N.W.3d at 81-82, 85-86. The
supreme court observed that a “correction order does not suspend or revoke a license or
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otherwise subject a license holder to sanctions” but instead gives notice that a
license-holder’s failure to address issues raised in the order could “lead to licensing
sanctions.” Id. at 84. The supreme court reasoned that, “[b]ecause a correction order creates
a mere possibility of future sanctions, it does not have a binding effect on a provider’s legal
rights such that they are irrevocably fixed.” Id. at 85 (emphasis added). The supreme court
also noted that the merits of the correction order could be challenged later if the conditions
alleged in the correction order led to sanctions. Id.
We acknowledge some differences between the analysis in Lancaster and the
analysis here. The supreme court in Lancaster analyzed whether an agency correction order
was appealable by writ of certiorari by determining whether it was a quasi-judicial
decision. Id. at 83. To do so, the supreme court applied three indicia, stating that “all three”
of the indicia “must exist for certiorari review.” Id.
By contrast, here, we apply the statutory provision for judicial review of agency
permitting decisions set out in section 115.05, subdivision 11. But the third indicium of a
quasi-judicial decision, as applied in Lancaster, is helpful because it requires consideration
of whether the agency decision was binding. Id. at 8 3-85 (explaining that the third
requirement for a “binding decision” requires “some element of finality such that the rights
of the parties are irrevocably fixed by the final decision” (quotation omitted)). We conclude
that the third indicium discussed in Lancaster is analogous to section 115.05,
subdivision 11’s provision that judicial review is available for a “final decision of the
agency.” Therefore, the supreme court’s reasoning on the third indicium in Lancaster
guides our analysis.
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Like the correction order in Lancaster, the reconsideration-denial decision did not
have a “binding effect on” or “irrevocably fix” Alter’s legal rights because MPCA imposed
no sanctions or similar consequences. 18 N.W.3d at 85. Just as the correction order in
Lancaster created a “mere possibility of future sanctions,” MPCA’s reconsideration-denial
decision raised the “mere possibility of future” consequences for Alter. Id. MPCA’s
reconsideration-denial decision referred to the April notice, which stated that Alter’s failure
to timely “submit the required permit application” would cause Alter to “lose [its] right to
operate” and to “be considered in violation of Minn. R. 7007.0150, subp. 1.”
But MPCA’s reconsideration-denial decision did not revoke Alter’s option D permit
and actually extended the deadline for Alter to submit the individual permit application
required by the April notice. And like the relator in Lancaster, Alter can challenge any
future consequences should they occur. For example, if MPCA imposes sanctions, revokes
Alter’s option D permit, or takes other final action based on the April notice and
reconsideration-denial decision, judicial review is available as provided in section 115.05,
subdivision 11. Because MPCA’s reconsideration denial was not a “final decision of the
agency,” certiorari review of that decision is unavailable, and we dismiss it from this
appeal.
MPCA’s Application-Withdrawal Decision
MPCA does not dispute that certiorari review is available for its
application-withdrawal decision, and we agree. MPCA’s application withdrawal was a
final agency decision because MPCA “complete[d] its decisionmaking process” as to the
option D permit application and “the result of that process directly affect[ed]” Alter. See
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Contel of Minn., Inc. v. Minn. Pub. Utils. Comm’n (In re Investigation into Intra- LATA
Equal Access & Presubscription), 532 N.W.2d 583, 588 (Minn. App. 1995) (stating that
“[a]gency action is final and reviewable when the agency completes its decisionmaking
process and the result of that process directly affects a party”), rev. denied (Minn. Aug. 30,
1995). Therefore, we consider the merits of Alter’s challenge to MPCA’s
application-withdrawal decision.
This court’s scope of review for a final agency decision is set out in Minnesota
Statutes section 14.69(a)-(e) (2024). See Minn. Stat. § 115.05, subd. 11 (providing for
judicial review of final MPCA decisions “pursuant to [Minnesota Statutes] sections 14.63
to 14.69”). As is relevant here, “[a]n agency’s [permitting] decision may be reversed if it
is determined to be unsupported by substantial evidence, arbitrary or capricious, or affected
by other error of law.” City of Minneapolis v. State, Minn. Pollution Control Agency (In re
Am. Iron & Supply Co.’s Proposed Metal Shredding Facility), 604 N.W.2d 140, 149
(Minn. App. 2000) (citing Minn. Stat. § 14.69). Appellate courts may reverse or modify an
erroneous agency decision if “the substantial rights of the petitioners may have been
prejudiced.” Minn. Stat. § 14.69. Alter, as the party challenging an agency decision, bears
the burden of establishing error on appeal. In re Rev. of 2005 Ann. Automatic Adjustment,
768 N.W.2d 112, 118 (Minn. 2009).
MPCA’s application-withdrawal decision stated that the “reason the application is
being withdrawn is [Alter’s] facility has an option D permit issued on 12/30/2008.” Alter
asserts that MPCA’s decision “to ‘withdraw’ the application was arbitrary, capricious and
9
unsupported by substantial evidence” and “affected by [an] error of law.” Alter fails,
however, to establish error.
First, Alter cites rule 7007.1110, subpart 5, which requires MPCA to “issue” or
“deny” a permit. But the rule does not require MPCA to consider an application for an
option D permit that Alter already holds. Because Alter does not provide authority showing
that it had a right to MPCA review of its new option D permit application, it has not met
its burden to show an error and prejudice. See Minn. Stat. § 14.69 (requiring prejudice to
reverse or modify an agency decision).
Second, substantial evidence shows that Alter had an option D permit when MPCA
withdrew Alter’s option D permit application. In re NorthMet Project Permit to Mine
Application, 959 N.W.2d 731, 749 (Minn. 2021) (defining substantial evidence in review
under section 14.69 as “relevant evidence that a reasonable mind might accept as adequate
to support a conclusion” (quotation omitted) ). Indeed, Alter’s option D permit is in the
administrative record and plainly states that it is “considered not to expire until a new
permit is issued.”
Alter argues otherwise, first maintaining that the application-withdrawal decision
“ignores the fact that,” in the April notice, MPCA “declared” that the Anoka facility “no
longer qualifies” for an option D permit. We are not persuaded. The April notice set a
120-day deadline for Alter to apply for an individual permit and did not revoke or set a
date for termination of Alter’s option D permit. Thus, Alter’s option D permit was still in
effect at the time of MPCA’s application-withdrawal decision.
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Second, even assuming, without deciding, that MPCA erred by withdrawing, rather
than denying, Alter’s permit application, Alter was not prejudiced because this court would
apply the same analysis in reviewing a denial as it has applied herein to the withdrawal .
See Minn. Stat. § 14.69 (allowing reviewing courts to reverse or modify an agency decision
“if the substantial rights of the petitioners may have been prejudiced” by an erroneous
decision).
Finally, Alter maintains that its option D permit application was “the appropriate
means” to challenge MPCA’s adverse eligibility decision in the April notice and to present
MPCA “with new information.” We disagree. As discussed above, if MPCA takes final
action that binds and irrevocably fixes Alter’s rights, Alter may petition for a writ of
certiorari. See Lancaster, 18 N.W.3d at 85.4
Affirmed in part and appeal dismissed in part.

4 Citing Minn. R. Civ. App. P. 128.05, Alter submitted as supplemental authority an order
from an administrative law judge (ALJ). The ALJ ordered MPCA to “cease and desist from
requiring current holders of registration permit option D to request new kinds of permits
absent one of the permissible determinations under Minn. R. 7007.1110, subp. 16.” An
appeal of the ALJ’s order is currently pending before this court. In re Petition of Upper
Midwest Chapter of Recycled Materials Ass’n, No. A26-0236 (Minn. App. Feb. 19, 2026)
(order).