Day #148/66 & 149/67

May 21 and 22

I didn’t bring anything with me to the Gov’s office other than my frustration and anger.

I should have brought these letters, but I just ran out of time. I don’t know if I can overstate how much of a hole (politically) the signees of these letters to Ms. Rothschild have dug for themselves with Gov Baker. It’s wonderful and sad and shows how much they care for the issue and citizens that they represent. They provide a leadership model for their peers AND superiors. Thank you so much.


DEP docs:

The first Alpha Analytical data dump file from May 17th

The “same” PDF from DEP from May 20th (hint: NOT the same)

I’m missing the original Alpha Analytics PDF.

Days 147/65 – GOV

May 20th

I’m back at the Governor’s waiting room for the foreseeable.

These two PDFs below are just some of the incredible work Greater Boston Physicians for Social Responsibility (GBPSR) has done to support Weymouth’s fight this year.

Please visit this link to see all of the news from GBPSR about the compressor

Regarding the public safety aspect, I re-made a tweet thread on the LEPC meeting that took place October 2018.

Days 144, 145, & 146

May 15, 16, 17 > Air Quality Hearing

https://weymouth.wickedlocal.com/news/20190516/professor-accuses-dep-of-accepting-enbridge-coaching-on-air-quality

https://www.patriotledger.com/news/20190516/expert-compressor-station-would-exceed-pollution-limits

https://www.patriotledger.com/news/20190518/dep-introduces-new-air-quality-data-in-weymouth-compressor-case?template=ampart

https://www.wgbh.org/news/local-news/2019/05/15/protesters-bolster-case-against-weymouth-compressor-station

https://www.wgbh.org/news/local-news/2019/05/16/two-days-into-weymouth-gas-compressor-hearings-safety-of-emissions-disputed

http://www.lowellsun.com/todaysheadlines/ci_32641694/dep-shows-new-air-quality-data-compressor-case

https://www.patriotledger.com/news/20190521/compressor-permit-based-on-incomplete-air-tests-state-says

https://www.patriotledger.com/news/20190520/state-regulators-blasted-for-withholding-fore-river-basin-air-data

https://www.wgbh.org/news/local-news/2019/05/20/hearing-officer-to-dep-tell-me-why-i-shouldnt-fine-you

https://podcasts.apple.com/gy/podcast/may-17-2019-state-house-takeout/id1373324277?i=1000438702777

https://www.wgbh.org/news/local-news/2019/05/18/a-hitch-in-the-weymouth-compressor-hearings

https://www.wbur.org/earthwhile/2019/05/21/weymouth-compressor-station-permit-incomplete-air-quality-tests-dep

https://www.patriotledger.com/news/20190522/agency-backpedals-on-compressor-station-study-findings

https://www.patriotledger.com/news/20190523/lawmakers-compressor-case-eroded-public-confidence-in-regulators

https://www.desmogblog.com/2019/05/22/massachusetts-dep-enbridge-weymouth-gas-compressor-air-permit-jeopardy

https://threadreaderapp.com/thread/1131582266205982720.html

Please follow Itai Vardi’s Twitter account for SO MUCH MORE information

LIVE TWEETS

https://threadreaderapp.com/thread/1128681963915812868.html

https://threadreaderapp.com/thread/1129015780031516672.html

https://threadreaderapp.com/thread/1129373363997171712.html

Days 141/59 and 142/60 laaaate

Sorry I’ve been so lazy with my posts, as I know everyone is stopping their lives until I post my stuff, LOL.

I didn’t bring anything with me days 141 & 142 (May 8th & 9th) as I have piled a few questions on DEP and was waiting for an answer. I received a visually dense, but nutritionally meager response via email yesterday from the Chief Presiding Officer of Office of Appeals and Dispute Resolution (OADR), Salvatore Giorlandino.

No punny jokes regarding DEP “OADR”, they’re all miiiine to make, right now.

SMELL TEST

Really, though, click on those two links embedded in those two words above for the Sec Beaton “your ethics are garbage, and FRRACS is the group to do something about it” news story. I may be wrong, but I have a feeling Beaton (from the anecdotal stories I’ve heard) has left a trail of ethics violations in every job he’s held. I digress.

OK, back to the letter from DEP OADR. PDF is here:

I’ll post the text of the PDF at the end of this post. Sorry, I’m too lazy to fix the sentence spacing on the pasted letter copy. I had Acrobat “recognize text” from the image scan, and it got all strange.

I think the bulk of the letter is what they send to people involved in the hearings: procedural info, mind your manners, the powers vested in thee, etc. I was interested in what kind of meeting they considered this hearing, and if it fell under Open Meeting Law or not.

Can you tell? I’m going to make some emphasis within the text that’s not in the original letter, for those who like to skim:

As for what OADR is and does, OADR is a quasi-judicial office within MassDEP, which is responsible for advising MassDEP’s Commissioner in resolving all administrative appeals of MassDEP Permit decisions and enforcement orders in a neutral, fair, timely, and sound manner based on the governing law and the facts of the case … MassDEP’s Commissioner is the final agency decision-maker in these appeals … To ensure its objective review of MassDEP Permit decisions and enforcement orders, OADR reports directly to MassDEP’s Commissioner and is separate and independent of MassDEP’s program offices, Regional Offices, and Office of General Counsel (“OGC”). OADR staff who advise MassDEP’s Commissioner in resolving administrative appeals are Presiding Officers.

Who are these Presiding Officers, anyway? An independent-from-DEP body?

Presiding Officers are senior environmental attorneys at MassDEP appointed by MassDEP’s Commissioner to serve as neutral hearing officers in administrative appeals.

BWAAHAHAHAA! I almost stopped reading at that sentence.

MassDEP’s Commissioner, as the agency’s final decision-maker, may issue a Final Decision adopting, modifying, or rejecting a Recommended Final Decision issued by a Presiding Officer in an appeal.

So, DEP is going to make a balanced decision “based on the governing law and the facts of the case” WHEN THE DEP DIDN’T EVEN FOLLOW GOVERNING LAW AND THE FACTS IN THE FIRST PLACE?!

This is my first hearing, but this kind of nonsense has been taking place for all the permits that have been challenged… I have shocking news for you: DEP ALWAYS FINDs FOR DEP.

Unless there is a statutory directive to the contrary, the Commissioner’s Final Decision can be appealed to Massachusetts Superior Court.

BECAUSE WE ARE ALL MADE OF MONEY


As to your question regarding publication of events on the MassDEP website, the agency posts information about public comment opportunities on environmental regulations, a permit prior to issuance, or draft report. This website does not include evidentiary Adjudicatory Hearings in administrative appeals of MassDEP Permit Decisions and Enforcement Orders, which as noted above, are quasi-judicial/civil court room trial type proceedings.

The procedures for notice to and by the parties in the administrative appeals before OADR is governed by the procedures set forth in the Adjudicatory Proceeding Rules at 310 CMR 1.00

Beware what you ask for, Andrea, LOLOL:

I read through 310 CMR 1.00. It doesn’t say anything about if the hearings are considered public meetings or not. All this Open Meeting Law stuff is definitely above my pay grade, but it seems like this quasi-judicial meeting should be considered an Open Meeting? From Mass.gov:

Frequently asked questions about quasi-judicial public bodies

Which quasi-judicial public bodies fall within exemption (d) to the definition of “meeting” as included in the OML?

The revised Open Meeting Law carves out a specific exception in the definition of “Meeting” for quasi-judicial bodies in certain circumstances. It states that a meeting subject to the Open Meeting Law shall not include “a meeting of a quasi-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it.” G.L. c. 30A, § 18. However, the OML does not define “quasi-judicial” and there is some confusion as to whether the exemption applies to local “quasi-judicial” bodies, such as zoning boards. It generally does not. The exemption applies only to certain state “quasi-judicial” bodies, and a very limited number of public bodies at other levels of government whose proceedings are specifically subject to G.L. c. 30A.

This conclusion is based on the plain language of the definitions included in the revised Open Meeting Law, G.L. c. 30A, §18, read in harmony with the definition section found at G.L. c. 30A, § 1. That section defines “adjudicatory proceeding” as “a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing.” G.L. c. 30A, § 1(1) (emphasis added). Chapter 30A, § 1(2), defines “agency” as:

[A]ny department, board, commission, division or authority of the state government or subdivision of any of the foregoing, or official of the state government, authorized by law to make regulations or to conduct adjudicatory proceedings, but does not include the following: the legislative and judicial departments; the governor and council; military or naval boards, commissions or officials; the department of correction; the department of youth services; the parole board; the division of dispute resolution of the division of industrial accidents; the personnel administrator; the civil service commission; and the appellate tax board.

G.L. c. 30A, § 1(2) (emphasis added). Applying these definitions to G.L. c. 30A, § 18, an adjudicatory proceeding of a quasi-judicial board or commission may only be held by an agency, and an agency is an entity of state government. Therefore, exemption (d) to the definition of “meeting” under G.L. c. 30A, § 18, applies almost exclusively to state public bodies holding adjudicatory proceedings under G.L. c. 30A. It may also apply to a very limited number of other public bodies whose governing statutes specifically direct them to hold adjudicatory proceedings in accordance with G.L. c. 30A.

State “quasi-judicial” public bodies are cautioned that they must still follow the requirements of the Open Meeting Law, including posting notice of meetings, retaining minutes, and opening their meetings to the public. The “quasi-judicial” exemption from the definition of “meeting” is limited to meetings held “for the sole purpose of making a decision required in an adjudicatory proceeding brought before it.” Id. (emphasis added). The adjudicatory proceeding itself must still be open to the public.

Chapter 30A, section 3A seems to think there should be a notice posted:

Notices filed in accordance with sections two and three shall be published by the state secretary as required by section six no later than one week prior to the date of any hearing or action to which such notices relate.

Honestly, my head hurts and I have to stop now. Ha.

One more bit from 310 CMR 1.00

(f) Intervention to Protect the Environment. Pursuant to M.G.L. c. 30A, § 10A, any group of ten or more persons may intervene collectively as a party in any adjudicatory proceeding in which damage to the environment as defined in M.G.L. c. 214, § 2A is or might be at issue;

I’m one of the Ten Persons, BTW.



May 10, 2019

Dear Ms. Honore,

Thank you for your e-mail message of May 6, 2019 to MassDEP regarding the upcoming May 15, 2019

appeal hearing (“the Appeal Hearing”) on the subject of the Weymouth Compressor Station Air Permit.

The Appeal Hearing is open to the public and the media, but it is a quasi-judicial/ civil courtroom trial

type proceeding on the Weymouth compressor station air permit appeals cases and, similar to a hearing

in a courtroom, the matter will be presented by the parties’ respective attorneys and testimony will be

provided only by the parties’ respective witnesses who have previously submitted sworn written Prefiled

Testimony related to the appeals.

The Appeal Hearing will commence at 9:00 a.m. on Wednesday, May 15, 2019 and is expected to

conclude by Friday, May 17, 2019. The Appeal Hearing will be conducted by Presiding Officer Jane

Rothchild of MassDEP’s Office of Appeals and Dispute Resolution (“OADR” -see OADR description

below) and recorded by a court stenographer, who will prepare a written transcript of the Appeal

Hearing that will be filed with OADR within approximately 10 days after the Appeal Hearing’s conclusion.

The purpose of the Appeal Hearing will be the cross-examination of witnesses who have previously filed

sworn written Pre-filed Testimony in the appeals on behalf of a particular party to the appeals. The

Petitioners’ (appellants’) witnesses in the Appeal Hearing will be cross-examined first by the Applicant’s

and MassDEP’s respective legal counsel, beginning on Wednesday, May 15, 2019, and in the order the

appeals were filed unless the Petitioners have agreed among themselves to present their witnesses out

of order, which Presiding Officer Rothchild can allow. If they go in order then the witnesses for the

Petitioner Ten Residents Group represented by Attorney Michael Hayden will be cross-examined first,

followed by the witnesses for the Petitioner Town of Braintree, followed by the witnesses for Petitioners

Town of Weymouth and the associated Citizens Group.

The Applicant’s witnesses will be cross-examined next by the Petitioners’ and MassDEP’s respective legal

counsel, and then the Department’s witnesses will be cross-examined by the Petitioners’ and the

This information is available In alternate format. Contact Michelle Waters-Ekanem, Director of Diversity/Civil Rights at 617-292-5751.

TTY# MassRelay Service 1-800-439-2370

MassDEPW ebsite:w ww.mass.gov/dep

Printed on Recycled Paper

Applicant’s respective legal counsel. It is entirely possible that some of the Applicant’s witnesses and all

of MassDEP’s witnesses will not be called to testify until Friday, May 17, 2019. However, Presiding

Officer Rothchild has no way to predict how much cross-examination any party will have.

A total 19 witnesses are expected to be cross-examined at the Appeal Hearing. Specifically:

(1) the Petitioners together have presented Pre-filed Testimony from 10 witnesses,

7 of whom are scientific/technical experts;

(2) the Applicant has presented Pre-filed Testimony from 5 scientific/technical experts; and

(3) MassDEP has presented Pre-filed Testimony from 4 scientific/technical experts.

As for what OADR is and does, OADR is a quasi-judicial office within MassDEP, which is responsible for

advising MassDEP’s Commissioner in resolving all administrative appeals of MassDEP Permit decisions

and enforcement orders in a neutral, fair, timely, and sound manner based on the governing law and the

facts of the case. In the Matter ofTennessee Gas Pipeline Company, LLC, OADR Docket No. 2016-020

(“TGP”), Recommended Final Decision (March 22, 2017), 2017 MA ENV LEXIS 34, at 9, adopted as Final

Decision (March 27, 2017), 2017 MA ENV LEXIS 38, citing, 310 CMR 1.01(1)(a), 1.01(1)(b), 1.0l(S)(a),

1.01(14)(a), 1.03(7). MassDEP’s Commissioner is the final agency decision-maker in these appeals. TGP,

2017 MA ENV LEXIS 34, at 9, citing, 310 CMR 1.01(14)(b). To ensure its objective review of MassDEP

Permit decisions and enforcement orders, OADR reports directly to MassDEP’s Commissioner and is

separate and independent of MassDEP’s program offices, Regional Offices, and Office of General

Counsel (“OGC”). TGP, 2017 MA ENV LEXIS 34, at 9. OADR staff who advise MassDEP’s Commissioner in

resolving administrative appeals are Presiding Officers. ]Q. Presiding Officers are senior environmental

attorneys at MassDEP appointed by MassDEP’s Commissioner to serve as neutral hearing officers in

administrative appeals. ]Q. Presiding Officers are responsible for fostering settlement discussions

between the parties in administrative appeals, and to resolve appeals by conducting pre-hearing

conferences with the parties and evidentiary Adjudicatory Hearings (quasi-judicial/civil courtroom trial

type proceedings) and issuing Recommended Final Decisions on appeals to the Commissioner. TGP,

2017 MA ENV LEXIS 34, at 9-10, citing, 310 CMR 1.01(1)(a), 1.01(1)(b), 1.01(5)(a), 1.01(14)(a),

1.03(7). MassDEP’s Commissioner, as the agency’s final decision-maker, may issue a Final Decision

adopting, modifying, or rejecting a Recommended Final Decision issued by a Presiding Officer in an

appeal. TGP, 2017 MA ENV LEXIS 34, at 10, citing, 310 CMR 1.01(14)(b). Unless there is a statutory

directive to the contrary, the Commissioner’s Final Decision can be appealed to Massachusetts Superior

Court pursuant to G.L. c. 30A, § 14. TGP, 2017 MA ENV LEXIS 34, at 10, citing, 310 CMR 1.01(14)(f).

As to your question regarding publication of events on the MassDEP website, the agency posts

information about public comment opportunities on environmental regulations, a permit prior to

issuance, or draft report. This website does not include evidentiary Adjudicatory Hearings in

administrative appeals of MassDEP Permit Decisions and Enforcement Orders, which as noted above,

are quasi-judicial/civil court room trial type proceedings. The procedures for notice to and by the

parties in the administrative appeals before OADR is governed by the procedures set forth in the

Adjudicatory Proceeding Rules at 310 CMR 1.00. The quasi-judicial/civil courtroom trial-type nature of

evidentiary Adjudicatory Hearings is reflected in the provisions of 310 CMR 1.01, including 310 CMR

Andrea Honore

Page 2 of 3

1.01(13)(b)(2), commonly known as the Decorum Rule. The Decorum Rule of 310 CMR 1.01(13)(b)(2)

states that:

All parties, authorized representatives, witnesses and other persons present at a

hearing shall conduct themselves in a manner consistent with the standards of decorum

commonly observed in any court. Where such decorum is not observed, the Presiding

Officer may take appropriate action, including imposing sanctions as described at 310

CMR 1.01(10).

A violation of the Decorum Rule is a serious infraction. Possible sanctions under 310 CMR 1.01(10) for a

violation of the Decorum Rule include, without limitation:

(a) taking designated facts or issues as established against the party being

sanctioned;

(b) prohibiting the party being sanctioned from supporting or opposing designated

claims or defenses, or introducing designated matters into evidence;

(c) denying summarily late-filed motions or motions failing to comply with

requirements of 310 CMR 1.01(4);

(d) striking the party’s pleadings in whole or in part;

(e) dismissing the appeal as to some or all of the disputed issues;

(f) dismissing the party being sanctioned from the appeal; and

(g) issuing a final decision against the party being sanctioned.

Thank you again for your e-mail message of May 6, 2019 to MassDEP.

Salvatore Giorlandino

Chief Presiding Officer

MassDEP/Office of Appeals and Dispute Resolution

Page 3 of 3

Day #140/58 – DEP

Sooooo, I don’t know if you’ve heard, uh, but there’s a hearing at DEP’s Boston office May 15th?

JOIN US at the DEP AIR QUALITY HEARING Re: compressor AQ permit

PUBLIC MEETING STARTS* Wed. May 15 9am

Come for a 1/2 hour, come all dayDowntown Crossing, Boston 1 Winter Street (go in The Corner food court door, & up the escalators)

*Will likely go from May 15th-May 17th


I went to DEP offices today, and left these requests:

May 7, 2019

Dear MassDEP-                                                                                                                                                                                                          

Good afternoon!

I’m writing to request that the May 15, 16, and 17 Weymouth compressor Air Permit hearings be placed on MassDEP’s public calendar(s) with all relevant information, as DEP does for other hearings. Also, please include the point of contact email for any questions about the hearing.

I am planning on attending the Air Quality hearing and want to make sure I will be able to hear everything. Are there microphones at your hearings? If not, would DEP please add mics for those of us that need hearing assistance?

Thank you,

Andrea

I also wrote, by hand, a question asking what statute governs these hearings? Is this an open meeting, is it subject to open meeting law, or not? These hearings with one adjudicator seem to be in a grey area, at least according to the person who called me back from AG’s office. She had no idea what to make of what I described of the arrangements, and suggested I ask DEP. So I did. I’ll let you know what I find out, unless they ignore me.

Day #139/57 – DEP

Today I went to sit in the DEP Boston offices with a(nother) mission. I have mentioned before that MassDEP has not placed the May 15th hearing on their public calendar. Every day since I discovered it, I’ve been checking to see if the hearing has been added.

NOPE.

I decided to make a request.

Dear MassDEP-

Good afternoon!

I’m writing to request that the May 15, 16, and 17 Weymouth compressor Air Permit hearings be placed on MassDEP’s public calendar(s) today, May 6, 2019.

I have checked the DEP’s online calendars for over two weeks—including today—and I have not seen the hearings listed anywhere. I have friends who have attempted to call in to find out times and dates for this hearing, and they have come away with no information.

I have checked both of these links, and found nothing, day after day.

https://www.mass.gov/service-details/massdep-public-events-calendar

https://www.mass.gov/service-details/massdep-public-hearings-comment-opportunities

Please place the May 15, 16, and 17 Weymouth compressor Air Permit hearings on MassDEP’s public calendar(s) with all relevant information, as DEP does for other hearings. Also, please include the point of contact email for any questions about the hearing.

Attached:
Printouts of MassDEP public calendars from May 6, 2019

REMINDER:

I’m sitting in DEP’s Boston office to remind DEP that Weymouth and its citizens will not accept any permits issued for this compressor. I’m sitting here to demand the air permit be revoked, especially in light of the existing air quality results uncovered recently by Itai Vardi. I’m sitting here to demand that DEP use the laws to deny any further permits, and revisit/revoke and previously issued permits.

I’m formally requesting a meeting with Commissioner Suuberg to discuss why DEP is handing this compressor to Enbridge, despite MA’s clean air, clean water, GWSA, and Environmental Justice laws that would prohibit such a facility from being placed on that site. I have not heard anything from DEP or Suuberg’s office other than an acknowledgement that I have asked for a meeting.

If possible, I’d like to also discuss the current air quality in MA (in light of the latest Globe story) and how the DEP plans to conform to the GWSA while 4 new gas infrastructure projects are being reviewed, in addition to the gas transmission compressor in Weymouth.

  • Tennessee Gas Pipeline (TGP)’s “261 Upgrade Projects” to expand Agawam compressor & add loop to Lateral
  • Columbia Gas “Reliability Plan” for Greater Springfield Service Area since impacts West Springfield, Springfield, Agawam and Longmeadow
  • Lowell modernization
  • Charlton LNG facility, Liberty Energy Trust

I understand that per Open Meeting Law, DEP does not have to list the hearing until 48 before the hearing. But, gosh, why wouldn’t they have the hearing date loud and proud on their calendars? If they think they are doing the right thing by Weymouth and the South Shore, why aren’t they making sure everyone involved knows where to go, and what time?

SPEAKING OF WHICH

JOIN US at the DEP AIR QUALITY HEARING Re: compressor AQ permit

PUBLIC MEETING STARTS* Wed. May 15 9am

Come for a 1/2 hour, come all day

Downtown Crossing, Boston 1 Winter Street (go in The Corner food court door, & up the escalators)

*Will likely go from May 15th-May 17th

ONE LAST darling thing:

Please take a moment to do this quick, easy thing so we can get DEP to add the air quality permit hearing to their damned calendar. The links are below, and the feedback form is on the bottom of the pages, check NO, and then paste your request. Feedback area looks like this 👇

I’m writing to request that the May 15, 16, and 17 Weymouth compressor Air Permit hearings be placed on MassDEP’s public calendar(s).

I have checked both of these links, and found nothing.

https://www.mass.gov/service-details/massdep-public-events-calendar

https://www.mass.gov/service-details/massdep-public-hearings-comment-opportunitiesh

Please place the May 15, 16, and 17 Weymouth compressor Air Permit hearings on MassDEP’s public calendar(s) with all relevant information, as DEP does for other hearings. Also, please include the point of contact email for any questions about the hearing.

Thank you,