Groups opposed to a Monroe County frac sand operation are accusing a Georgia timber company of trying to subvert the legal process by asking the head of the Department of Natural Resources to overrule a judge’s decision on a DNR permit.
Earlier this month, administrative law judge Eric Defort ruled that the DNR didn’t have information required by state law when it issued a permit allowing Meteor Timber to fill 16.25 acres of wetlands for the proposed $70 million processing and loading facility near Millston.
Defort revoked the permit, which had been challenged by the Ho-Chunk Nation and Clean Wisconsin.
On Friday, Meteor asked DNR Secretary Dan Meyer to overrule Defort’s decision, saying it contained factual and legal errors. Attorneys for the company cited a chapter in the state’s administrative code that they believe gives the agency discretion to reverse such a decision.
In a letter sent Wednesday, attorneys for Clean Wisconsin and the Ho-Chunk argue the request is based on a misreading of the rule and that it “undermines the integrity of the contested case hearing process.”
“Meteor Timber’s request that the secretary, a political appointee, overrule the decision of an impartial administrative law judge is inappropriate and asks the secretary to act beyond his legal authority,” the groups said. “If the company does not agree with the judge’s decision, there is an authorized process for appealing that decision to a circuit court judge who will serve as an impartial decision maker.”
Under the little-used administrative rule, Meyer has 14 days to decide whether to act on Meteor’s request for a review. If he grants the request, he could order briefs, oral arguments or a rehearing of the evidence.
DNR spokesman James Dick said Meyer has not made a decision on the review and had no comment on Wednesday’s letter.
Meteor spokesman Chris Mathis provided a statement through attorney John Behling saying the secretary has the legal right to review permit decisions and “make sure the ALJ got it right.”
“We think this case is so complex, that the agency best positioned to make permit decisions should review the ALJ decision and be allowed to come to their own conclusion,” Mathis said. “A direct appeal to the secretary is part of the existing legal process set forth in Wisconsin law, and we would hope (the petitioners) would respect the due process afforded to companies who are trying to bring jobs and opportunities to local townships that unanimously support this project.”
Defort’s ruling came after a five-day hearing, during which several former DNR employees said the agency granted the permit in spite of its own staff findings and a long list of unanswered questions.
“It is abundantly clear that the DNR did not have the necessary information to assess the net positive or negative environmental impact of the proposed project at the time that it issued the permits, as required by the statute,” Defort wrote in his decision. “Notably, the DNR explicitly announced in both versions of the permit that it lacked information that the DNR deemed ‘necessary’ for it to consider the applicant’s proposals with respect to the net positive or negative environmental impact.”
Meteor claimed nine of Defort’s 32 findings were inaccurate and failed to take into account the testimony of DNR and company witnesses.
“We believe the aforementioned samples are illustrative of a number of errors which cannot be allowed to stand for both this project and for Wisconsin as a whole,” they wrote. “The law provides the secretary the discretion to correct such errors and this petition asks the secretary to review the decision of the ALJ.”