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The Dog Ate the Public Hearing Transcript

If DEP can’t get the little stuff right, how can they manage complexity?

[Update below]

Six months ago, the DEP held a public hearing on a draft permit to allow Dupont (Chemours) to conduct a controversial groundwater cleanup pilot study (that’s no typo: yes, Dupont is conducting a pilot study, 40 years after the start of the cleanup process).

By way of background – DEP regulations do not require and DEP initially did not require that a public hearing be held on this controversial Dupont pilot study. Only strong demands from residents of Pompton Lakes persuaded DEP to hold a public hearing.

Now, 6 months later, after getting multiple requests from the public for a copy of the public hearing transcript for DEP’s September 26, 2017 public hearing on the controversial Dupont (Chemours’) Application for New Jersey Pollutant Discharge Elimination System (NJPDES) Discharge to Ground Water Permit by Rule, the DEP has admitted that it can not provide one.

The dog ate the transcript!

Seriously, according to a March 15, 2018 email from Wayne Howitz, Assistant Director of DEP Remediation Oversight Element to people who requested a copy of the transcript – DEP is asking that they retroactively provide accurate or additional comments!:

Review of the public hearing transcript has revealed that it may not have captured some of the comments made during the testimony phase of the public hearing.  To ensure that we address your concerns and questions about the Permit by Rule Application, I have attached a copy of the transcript to this e-mail.  I am asking that you review the statements attributed to you in the transcript on pages 25-27, and let us know if it accurately reflects your comments.  If you believe your testimony was not fully captured, please provide us with written comments to accurately reflect the comments you made at the hearing.  If you believe the transcript accurately captured your comments, we would appreciate it if you would let us know that you approve the statements attributed to you in the transcript.

DEP must know that it doesn’t work that way.

So, I fired off this letter to DEP to demand that another public hearing be held so that the public can be provided their full due process rights and a complete and accurate administrative record is developed.

I urge all those who attended and/or testified at the public hearing to send a similar demand to DEP: Whether or not you write, DO NOT COMPLY WITH DEP’S REQUEST (I removed the DEP staffer’s name who sent the email to avoid embarrassment – and could you imagine the heads that would roll at DEP if DEP lost Dupont’s comments?)

Dear DEP:

A March 15, 2018 email from you to persons that testified at the subject public hearing (see below) was provided to me.

The Administrative Procedures Act, DEP regulations, and fundamental principles of Administrative Law require that a verbatim transcript of the public hearing be certified by a licensed stenographer. A verbatim transcript is required for, among other things, review by the DEP hearing officer, review by the DEP Commissioner, and review by an  Administrative Law Judge and/or judicial review by a law Court to review the complete and accurate administrative record.

The Department has failed to comply with basic formal public hearing requirements. As a result of that failure, the public has been denied full due process rights; the stenographer and the DEP Hearing Officer can not certify the public hearing; the DEP can not respond to public comments; and the OAL and law courts can not conduct judicial review of the facts.

Therefore the administrative record is flawed and must be remedied by holding another public hearing.

I demand that another public notice, public comment and public hearing be held in the subject matter to resolve this error.

Respectfully,

Bill Wolfe

 If DEP can’t get the little stuff right, how can they manage complexity?

[Update – 3/20/18 – A resident of Pompton lakes – who shall remain nameless here – apparently taped the DEP public hearing in question and provided that tape to DEP. She/he is now asking if DEP can use that to write the official hearing transcript. My reply:

No, DEP can’t use a citizen’s audio – do yo want DEP using a Dupont audio? Do you want DEP allowing Dupont to expand upon and rewrite their testimony like they did to “our side”?

What’s good for the goose is good for the gander.

The DEP hearing officer must certify the hearing record and the stenographer must certify the verbatim transcript – just like an accountant or lawyer or Notary Public or Court reporter.

WTF is XXXXX thinking? Why is she/he willing to play games with DEP all of a sudden?  ~~~ end update]