Cathy Stepp file photo (2011)

State Department of Natural Resources Secretary Cathy Stepp.

The state Department of Natural Resources is considering asking officials to disclose any possible conflicts of interest before handling enforcement actions against suspected polluters, DNR Secretary Cathy Stepp said Monday.

Stepp’s comments were in response to a story in the Wisconsin State Journal on Sunday that raised questions about a decision by DNR Executive Assistant Scott Gunderson not to send a complaint against an Oconomowoc waste hauler to the attorney general for prosecution.

Gunderson, a political appointee and former Republican state legislator, previously received $750 in campaign contributions from Richard Herr, the owner of Herr Environmental Inc., the septic disposal company that was the subject of a staff investigation and recommendation to refer the case to the Department of Justice. Instead of sending the case to the DOJ, Gunderson chose to have district attorneys in Waukesha and Jefferson counties issue five citations against Herr Environmental for violations ranging from keeping inaccurate records to spreading human waste on Jefferson County fields far in excess of amounts allowed in its permit. The company was fined the minimum $4,338 for the violations.

"Going forward," Stepp said in a news release late Sunday, "Gunderson has indicated he will check past campaign reports prior to agreeing to handle any case that could be assigned to him."

Bill Cosh, an agency spokesman, said Monday the policy change likely will be handled as part of a broader ongoing review of enforcement procedures he said was undertaken before the Wisconsin State Journal story.

Dems call for review

Eleven Democratic legislators asked Attorney General J.B. Van Hollen on Monday to conduct an inquiry into "political interference with science-based law enforcement" at the DNR.

Among those who requested the investigation was State Rep. Brett Hulsey, D-Madison, who said the actions of top DNR officials on the Herr violations "did not pass the smell test."

Also signing the letter was State Rep. Louis Molepske Jr., D-Stevens Point, who charged the DNR seemed to exhibit more concern for the violator in this case than the people affected by the excessive spreading of waste for which Herr Environmental Inc. was cited.

In their request that the case be prosecuted by the Department of Justice, DNR enforcement staff cited concerns about potential contamination of wells near the fields.

About 40 drinking water wells are nearby, according to DNR documents. Agency enforcement officials who requested prosecution by the DOJ said they anticipated settlement of the case by the Justice Department would have included a requirement that Herr pay for well testing. No such agreement accompanied the DNR resolution of the violations.

"The DNR is helping out the violator and leaving the innocent bystanders to deal with the pollution of their wells," Molepske, a member of the Assembly Natural Resources Committee said. "Their only recourse is to hire a private attorney."

Gunderson told the State Journal health concerns as a result of the spreading were not a major part of the discussion during his handling of the case.

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Monday, state Sen. Mark Miller said the DNR should pay for testing of the wells near the fields where excessive spreading may have happened.

"Residents near those fields are no doubt wondering how much waste has been dumped on the fields around their homes since 2009," Miller said. He added they should not have to live in fear their wells may be contaminated.

In a statement released Monday by Cosh, the DNR said it "encourages all private well owners to test their wells" and referred residents affected by the Herr spreading to the agency's private well program for advice on how to test their wells.

Suspension possible

Stepp defended the staff's handling of the Herr case.

Resolving the violations through citations in the Waukesha and Jefferson circuit courts was appropriate, she said, because it gave the agency the option of being able to suspend Herr Environmental's operating license if future violations occur. Steve Means, with the Department of Justice, agreed with that assessment and said only the DNR, not the Justice Department or local courts, have the authority to suspend an operator's license.

After the State Journal notified the agency of potential conflicts of interest, the DNR sought opinions from Jonathan Becker, head of the State Division of Ethics and Accountability. Becker responded by email that Gunderson did not violate the state ethics code because he is no longer a state legislator.

Also, Becker said Matt Moroney, deputy secretary, would not have been required by state law to recuse himself from the case due to a previous business acquaintance with another Herr official. Moroney did recuse himself and turned the case over to Gunderson because he has had business dealings with Todd Stair, a vice president with Herr.

Even so, Moroney, after Stair complained to him about the agency's handling of the case, asked that DNR staff address Stair's concerns because "he has always been a straight shooter" and "we all make innocent mistakes."

Stepp criticized the State Journal story for raising the issue of political favoritism. "Why did it imply political favoritism when the final decision was not swayed at all by political influence?" Stepp wrote in her news release, which was posted Sunday night on the DNR website. "I will let you, the citizens of this great state, come to your own conclusions."

But Becker said Monday the State Journal appropriately raised the issue, even though the actions of the DNR officials hewed to the letter of the law.

"It sounds like people here may have been exerting political influence," Becker said. "But however one may feel about that, it is not against the law."

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