The Crawford Stewardship Project submitted an Administrative Law Hearing Request pursuant to Wisconsin Statute 227.42 on the Pattison Sand Nonmetallic Mining Operations Permit to Wisconsin Department of Natural Resources Secretary Cathy Stepp on Friday, July 26.
The permit, issued to Pattison by the DNR in June, covers the storm water control requirements and habitat issues for the frac sand mine Pattison intends to operate in Bridgeport Township.
“We submitted the hearing request as this mine is located in a most precious and irreplaceable state resource, the Lower Wisconsin State Riverway and along the Highway 60 Scenic Byway,” stated Edie Ehlert, a CSP Co-coordinator. “We are concerned that the frac sand mine will compromise the (Wisconsin) River’s health, as has happened in waterways in Wisconsin from other frac sand facilities.”
The CSP coordinator cited statements made by DNR Storm Water Specialist Roberta Walls in a recent published article.
“It’s very challenging,” Walls is quoted as saying of the frac sand mine storm water situation. “I really don’t see the state being able to provide the staffing levels that the workload demands.”
The CSP wants the opportunity to gain independent scientific review of the permit and the Pattison Sand Storm Water Plan, according to Ehlert, the group’s co-coordinator. She noted the permit requirements are a self-monitored “Quarterly Site Inspection of Storm Water Controls and Visual Check of Storm Water Runoff.”
Site inspection can be waived to annual frequency and visual checks can be waived altogether under certain circumstances, according to Ehlert.
According to a CSP statement, the nonmetallic mining permit does list impacts that must be avoided that could cause serious destruction of wildlife or habitat. These include:
• To avoid take of the Cerulean Warbler, Acadian Flycatcher, Prothonotary Warbler, no tree cutting and clearing of tress shall take place on any part of the properties from May 1 through August 31 of any given year.
• To avoid take of the Little Brown Bat or the Eastern Pipistrelle, no cutting or clearing of dead standing trees or dying trees shall take place on any part of the properties from June 1st through August 15th of any given year.
• Although the Gray Rat snake and Bull snake are only special concern, caution not to disturb any habitat during the active periods of March through October will help preserve these species.
“One of our major concerns is cumulative environmental impacts. This mine site is slated to be in operation for decades, for generations,” Edie Ehlert stated. “Tourism impacts, fragmentation of habitat, Riverway use and health, and the specific storm water calculations all deserve independent review.”
Jane Landretti, an attorney for the Wisconsin DNR, explained how the hearing request for nonmetallic mining permit issued to Pattison Sand would be addressed.
The department will begin by determining if the request was filed in a timely manner and properly served. An administrative hearing request must be received within 30 days of the action being taken—in this case the issuance of the nonmetallic mining permit.
Landretti said the request would also be reviewed to see if it proves things required to grant the administrative hearing. While Wisconsin Statute allows the petitioner to make a request for a hearing on the action of the department, it also requires the petitioner to demonstrate “specific harm” and show the petitioner had “a substantial interest threatened” by the action of the department. The petitioner must show the injury to them was of a different kind or degree than it would for the general public, Landretti said. The request must also include a dispute of material fact that went into making the decision to take the action.
If the department decides to grant an administrative hearing as requested, The Department of Administration’s Division of Hearing and Appeals would be scheduling and conducting the hearing. The division would seek to schedule such a hearing in as timely a manner as possible, but there aren’t any timelines on how soon a hearing would be held, Landretti explained.
Once the hearing is scheduled, specific timelines are established to allow for discovery, deposition of witnesses and other activities.
Pattison Sand and other individuals or organizations with an interest in the hearing can become parties to the hearing if they so choose, according to Landretti.
“There’s a generous provision in administrative law rules allowing others to become a party to the hearing,” Landretti said.
To participate as party in the hearing process, individuals or organizations must attend a pre-hearing conference. The administrative law judge will post notice of the conference. Being a party to the hearing allows for cross-examining witnesses, deposing witnesses, participating in discovery and being actively involved in the proceedings.
However, the public can also participate simply by showing up at the hearing and entering their statement if they are so inclined.
Pattison Sand or others may choose to become a party to the hearing at any point or never, Landretti explained. She noted that the hearing is contesting a decision made by the Wisconsin Department of Natural Resources to grant nonmetallic mining permit and the department through its attorney will defend and explain the decision.
Pattison Sand’s spokesperson and pubic relations official, Beth Regan, could not be reached for comment on Crawford Stewardship Project’s request for an administrative hearing on the nonmetallic mine permit.