Appeals Court Limits Citizen Challenge to Preferred Sands Frac Sand Mine Permit
Sep 09, 2014
On Wednesday, the Wisconsin Court of Appeals District III sided with the Wisconsin Department of Natural Resources to deny citizens a full hearing to challenge a frac sand mining facility’s inadequate air pollution control permit. But despite the appeals’ court decision, petitioners who live near the Blair, WI mining facility will likely pursue a contested case hearing.
“Midwest Environmental Advocates and petitioners in this case are disappointed that the court’s decision won’t allow all of the petitioners’ legal and factual disputes to be fully heard,” said staff attorney Sarah Williams. “But we stand by the legal rights of citizens to participate and be heard in decisions made by the DNR, particularly in pollution control permits that impact people’s health.”
This and other recent court decisions have provided mixed opinions on citizens’ rights to judicial review, to develop legal and factual disputes, and to build a record of problems with DNR decisions. With the health of people and their clean air and water at stake, citizens need clarity on what their rights are to review agency decisions on controlling pollution.
“This is yet another illustration of the moving target public participation in our government’s decisions has become,” said Williams. “Without consistency and transparency from the DNR, citizens are left guessing at how to have their concerns heard or to have the agency’s decisions formally reviewed. And even when court decisions side with the agency, citizens still don’t have a clear path to participate or get answers to their questions about whether the DNR is protecting our health and our natural resources.”
At issue in the appeal is whether or not citizens could challenge the DNR’s decision not to require Preferred Sands, LLC to conduct emission tests, keep records and report on fugitive dust control, or monitor ambient air quality for PM2.5 (a hazardous dust created in mining and processing silica sand). Read more about the challenge on Midwest Environmental Advocates’ website.
In this case, as well as a similar challenge to an air pollution control permit for FML Sand, LLC which had a broader contested case hearing this spring, the DNR refused to conduct an environmental assessment or impact statement on how the cumulative impact of industrial sand mining facilities affects the quality of air, water, land and life in the region. People living near frac sand mining need answers to questions about how the industry impacts their lives and their health, but the DNR instead relies on the limited information collected for pollution control permits as a substitute for comprehensive environmental impact studies. Ultimately, citizens need more answers, not expensive litigation.