DEP Hearing Report

This was the view that greeted us as we arrived at Brunswick Golf Course on Wednesday, March 25th, for the all day marathon that was the DEP hearing on NNEPRA’s Stormwater Permit Application (SWPA.)  Fitting optics, we thought, though we’re puzzled as to why our greeter wasn’t showing any “All Aboard Brunswick” logo-wear.  Perhaps he didn’t pass muster with the standard bearers for that organization.

                          

Speaking of optics, Wayne Davis, the man who built the Downeaster service with his own hands, and to this day heads TrainRiders Northeast, was nowhere in evidence at the hearing.  Less than two weeks earlier, he was his camera seeking self, following the Augusta GOC committee meeting that voted unanimously to have OPEGA investigate NNEPRA.  Nor has he been seen at any of the several events since then that would normally summons his countenance to public view.

We can’t help but wonder whether the OPEGA vote hasn’t had a chilling effect on his public activities, and dampened his enthusiasm for on camera platitudes and banalities.  There are other possible explanation, we’re sure, but none have surfaced.  Not even on his usually reverential web site.  We won’t go so far as to suggest that our greeter was the man himself in theatrical disguise.

By the way, at one of the later NNEPRA related hearings in Augusta, TRNE’s attorney looked over at your correspondent and stated to the Transportation Committee that “we are not lobbyists for NNEPRA, but the Downeaster would not exist without us.”

Moving on, one of the first reports on the hearing was this one published by TRNE itself, which as you might expect, is a marvel of detached neutrality.

=======================================================================

Marathon DEP Hearing on NNEPRA's Storm Water Runoff Permit

Published on Thursday, 26 March 2015 13:07

It was an all-day event as the DEP held extensive sessions on NNEPRA's Storm Water Runoff Permit request. The permit is required for the construction of the Downeaster's Brunswick Layover Facility. It began at 9:00 a.m. and ended at 8:00 p.m. (with some lunch/dinner breaks). This was the first such public hearing the DEP has ever organized for this type of permit.

  

The evening public session, held at the Brunswick Golf Club, brought out nearly two hundred advocates - against and for the permit. Those against feared disruption of their neighborhood due to alleged pollution and flooding and those in favor disputed their fears and emphasized the economic benefits of the expansion.

=====================================================================

This is terribly inaccurate and self-serving reporting by Bill Lord, the TRNE ‘webmaster.’  Especially in the passage we highlighted above.  You’ll learn more about that shortly.  Lord’s reporting here only adds more tarnish to the reputation of ‘broadcast network news,’ the field in which we understand he spent his career.  We believe he even claims Dan Rather as a colleague.  The observation above is consistent with Rather’s revealed integrity.

======================================================================

A similar view of the event was provided by our friend Emily Boochever, a principal of “All Aboard Brunswick,” the group that encourages local area residents to ride the train and enjoy themselves unloading discretionary dollars at various points in the southerly direction.  Known around town as ‘the Booch,’ Emily filed this report in The Ostrich on April 8:

Sounding off on stormwater

Members of the public did sound off on NNEPRA’s stormwater management permit application at the Department of Environmental Protection (DEP) public hearing held in Brunswick on March 25. They also sounded off in 78 written comments on the proposed Brunswick Layover Facility (BLF), which were submitted to the DEP and posted on the Department’s website at http://www.maine.gov/dep/ftp/BLF/Written%20comments

The great majority of the commenters emphatically support the construction of the layover facility. Brunswick accounted for the greatest number of comments, but Harpswell, Topsham, Yarmouth, and Portland writers also made their views known.

Yes, the Booch is right.  Members of the public did sound off.  Those opposed to granting the SWPA permit scrupulously followed spoken and written guidelines and directives for testimony, your correspondent among them.  Those in favor of granting the permit assiduously avoided guidelines and directives, and instead, wallowed in emotional support for the concept of passenger rail and its magical but completely unsubstantiated benefits.

How can we make such claims?  Because we were there, and because we’ve read each and every one of the written comments Boochever refers to above.  And because we’re aware of, and understand, the directives regarding comment that DEP formally issued before the hearing, and reiterated during their opening guidance at the hearing.  No matter; when you love the train like a warm puppy, none of the usual rules apply.

But just so you know, here are the rules as published (emphasis ours):

From DEP Release dated March 16, 2015:

The purpose of the hearing is to receive testimony from the parties and the general public on whether the proposed project meets the relevant statutory and regulatory licensing requirements. The statutory and regulatory criteria associated with the Department’s review of this license application are: Storm Water Management law (38 M.R.S.A. § 420-D) and the Department’s rules concerning Stormwater Management (Chapter 500). Testimony at the hearing is limited specifically to the relevant licensing criteria (stormwater standards, including, but not limited to, basic, general, and flooding standards). An outline describing the relevant regulatory review criteria associated with the proposed project is available on the Department’s website at www.maine.gov/dep/permits/blf/ in the document, “Second Procedural Order and attachments.”

=====================

From Chapter 3 of Rules governing the conduct of licensing hearings, Page 17 Section 20:

20. Evidence

A. Relevancy. Evidence will be admitted if it is relevant and material to the subject matter of the hearing and is of a kind upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Evidence which is irrelevant, immaterial or unduly repetitious will be excluded. The Department’s experience, technical expertise, and specialized knowledge may be utilized in the evaluation of all evidence.

======================

From the Second Procedural Order, dated January 13, 2015:

=============================

In short, per DEP pronouncements, testimony/comments would be accepted only on the specifics of the SWPA itself. Comments and/or testimony in support of passenger rail service, Amtrak, the Downeaster, NNEPRA, the proposed MLF, or on any other non-SWPA subject, would be out of order and should not be entertained in any form, written or spoken.

Here’s one example of public testimony given, as reported in the press:

"The (layover facility) is critical for our region," Margot Knight of Page Street said.  "More frequent (train) service is in high demand, and we need the layover facility in order to supply it."

You couldn’t find a better example of how non-complicit the permit ‘supporters’ were with the clearly stated and formally delivered rules of hearing conduct.

Devoted informants that we are, your correspondent has diligently reviewed the 70 plus letters referred to by Boochever.  We’re pretty sure anyone who spoke in support of the permit, and who also had a letter posted in advance, simply read their letter at the hearing, or damn close to it.

Here’s our tally of those posted letters (emails.)  All but three spoke of how they love the train and want the MLF built where proposed.  None of these addressed specifics of the permit application, other than to say ‘please approve the permit.’  Several spoke of NIMBY influences, and politics entering the fray.  None, zero, offered specific data to support economic benefits provided by the train, though 29, by our count, contained glib assertions that it does.  There were numerous examples of common language, indicating suggested text had been promulgated, and dutifully parroted by the faithful.

Twenty-four, on the other hand, gave specific examples, some emphatically so, of how they take the train south for a variety of purposes that all have economic value for their destinations.  A number of these were emphatic on the issue, mentioning frequent trips south (as many as 100.)  If we were a bit more diligent, we’d strip all these passages out for a subsequent follow up post on our invitation to participate in a nascent economic study.

Of the three remaining posted items, two spoke against approving the SWPA, and the last was a letter from your correspondent, formally objecting to lack of compliance with DEP rules referenced above.  You can read that letter here: http://www.maine.gov/dep/ftp/BLF/Written%20comments/Letter%20to%20Bill%20Bullard%20commenting%20on%20received%20public%20%20%27testimony%20%27.pdf

It includes comments on the individual letters that had been posted to that date.  We filed a similar letter to DEP Commissioner Aho asking for diligent enforcement of the published rules.  Anyone who attended the public hearing knows that while the rules were mentioned at the start, they were not enforced once the public began speaking.

As an attorney and principal of AAB, we believe Boochever had an obligation to be fully cognizant of published rules, and to counsel her followers accordingly.  She should have, but she didn’t. 

She decided it was acceptable to flaunt the rules of procedure that had been set.

A friend of the court?  We don’t think so, pilgrim.  But when you think about it, her behavior is a good match for Bill Lord’s lack of journalistic integrity.

=======================================================================

On a related note, TRNE waxed rhapsodic about how their attorney challenged the directly related evidence of a railroad professional and had some of it excluded from spoken testimony.  At the same time, the testimony of AAB and TRNE supporters was all in conflict with the published and reiterated rules for the hearing.

    

We should note that Town Councilors Jane Millett, John Perreault, and Kathy Wilson spoke at the hearing.  Councilors Millett and Perreault demonstrated admirable political courage by expressing concern about permit approval, while Councilor Wilson sided with the horde of sticker wearing AAB’ers.

              

Playing off the image just above, we’ll close on what we think of as an entertaining note.  Claudia Knox, AAB and BDA principal, rose to speak, stating that she wanted to deliver the testimony of John “Johnny Protocols” Richardson, who could not attend the hearing because of other commitments.  Funny how often that happens with him; we won’t say it has anything to do with politics, because that would be a cheap shot.

               

We will go so far, however, to say the above is a lovely symbolic portrayal of Johnny telling Claudia and the Booch that he wouldn't be able to attend the hearing.

        

And so he asks Claudia to deliver his remarks.  Claudia approached the podium and described her mission, which drew an immediate objection from the hearing officer, who said that if he couldn’t be present to respond to questions about his testimony, it couldn’t be presented.  Oh the inhumanity, the injustice!

We have every confidence that Claudia was about to read Johnny P’s previously submitted letter, though we can’t be certain:

Another salient passage is this:

Nice try by the would be Governor of Brunswick, but out of the 1800 previous applications submitted to the DEP, we imagine that virtually none were submitted by other agencies of Maine State Government.  We think that calls for an extra measure of concern for the public trust, lest ‘politics’ be involved.  Or insider ties.

                                      

Which leaves us to relegate Johnny’s offering to some other purpose.

Technorati Tags: DEP,NNEPRA,SWPA,Brunswick,Downeaster,AAB

======================================================================

For those of you who might be interested, here’s the testimony we prepared for delivery at the hearing.  Naif that we are, we skipped much of the content in our live delivery, attempting to comply with the time pressure expressed by the hearing officer.  We expect we were the only one; how little we know, how much to discover.

====================================

Good evening. I'm Pem Schaeffer; I've lived in Brunswick for 18 years. I'm a retired engineer with two advanced degrees. I spent my career at a high tech company specializing in complex systems.

I live about two miles from the proposed construction site, in a coastal protection zone, and we get our water from wells on our own property, and process household waste water with septic systems on the same property.

My initial comments on this application are these:

• The applicant is the State of Maine. NNEPRA is an agency of state government; there is a public trust urgency to this application that rises well above the norm.

• The Application is critically inadequate; both pre-filed testimony and public comment have addressed the multiple, serious deficiencies.

• The Application and supporting documents provide no objective plans for measurement of existing or future pollutant loads, or analysis of their impacts.

• Too many unknowns plague the proposal, making it impossible to ensure that catastrophic consequences will not follow from construction and operational use of the facility. These afflict not only known service and equipment planning, but the unbounded consequences of vastly expanded service to new destinations, and the equipment and service increases they will necessitate.

• Lastly, as others have described, prior activities on the proposed and adjacent sites, coupled with natural complexities, create unique and arduous challenges that cannot be cost effectively mitigated while honoring the public trust.

An Analogy For Consideration:

• I think of this project as a giant industrial septic system.

• I've owned and lived with a septic system for nearly 18 years, and am solely responsible for its operation and maintenance. Technically speaking, this is an on site sewage facility, a waste-water system to treat and dispose of effluent on the property that produces it. The design is a function of the number of persons reasonably expected to use it on a regular basis.

• The major differences between the system under consideration here and the system at my home are these:

  • The proposed design must process highly toxic industrial waste products; my system handles only organic waste.

  • No quantitative limits on the amount of waste can be derived, because an operations plan and limits on loading are not specified.

  • The “leach field” is of vast size and consequence, well beyond the constraints of an engineered residential field. And well beyond the site on which the facility would be constructed and operate.

  • Significantly, NNEPRA has not yet applied for actual permits to discharge to the Brunswick Sewer District, including human sewage, drip pan and oil-water separator contents, or excess dewatering volume. An addendum provides additional details.

Operating and Maintenance Concerns:

• Making matters worse, ownership and accountability for the short term and long term performance of this “septic system” is clouded by unclear reporting and operating responsibility, and muddled lines of authority.

• In the final analysis, the designer, owner, and operator of this system will be the State of Maine; this is not a private enterprise project.

  • The State of Maine means all of you, all of us in this room, and everyone else who lives in Maine and pays taxes to operate our government. The public trust issue must be paramount in your decision process.

• The application does not specify what operations and procedures will take place on the property, nor the frequency and number of each. Nor does it guarantee what railroad-related operations and procedures will not take place on the site, and who guarantees they won't.

  • The chain of command for response to spills and other emergencies is not clearly presented in the Application. This is a serious deficiency regarding implementation of good housekeeping practices.

• A reporting matrix for both non-recurring and recurring aspects of this project is absent. Clear delineation of responsibility for all aspects of its planned useful life, and a single point of accountability to take the infamous “3 am phone call” are missing.

  • Notwithstanding they haven't been provided, who will ensure that short term and long term operating limits are not exceeded?

  • Who will be responsible for responding to and correcting malfunctions, overloads, and other operating problems? Where does the buck stop, not who is the contractor to call?

  • Who will maintain and monitor the operation of the facility, and how will they do so? How will it be inspected; by whom; and how often?

• Of great concern is the planning and advocacy for service expansion to New York City, Lewiston-Auburn, Augusta, Bangor, Rockland, Quebec, and who knows where else. How will these expansions in service and equipment multiply environmental consequences through vastly increased operations and maintenance?

Conclusion:

• Making use of my analogy, concerns come down to this:

  • How many figurative “bedrooms and bathrooms” will this facility encompass?

  • How are town residents going to know when this giant “septic system” is not performing as promised? What will be the signs and symptoms? Will they be immediately apparent, or only become evident when discovered through long term effects on people, their health, and the environment?

  • “Who we gonna call” when things don't go according to the promises made, and the system malfunctions?

• This case is unique; it's not a private enterprise initiative. Ultimately, the applicant and responsible party is the State of Maine, and it alone bears all liability exposure.

• Clearly, excessive unknowns plague this challenging and complex proposal, any of which could invalidate a decision to approve. The most worrisome unknown of all is an increase in operating and maintenance tempos caused by future service and equipment expansions.

  • Simply put, if you don’t know the specifics and quantity of what you're dealing with, how can you possibly design systems to deal with it?

• In light of the opposing points presented, my strong belief is that this Storm Water Permit Application is fatally flawed, and should be summarily denied.