RE: Hearing Ruses

[Alan Strasser <astrasser@hazmed.com>]

Glenn Landers wrote: "Ohio, for instance, usually begins a hearing with an "information session where citizens can ask questions. Unfortunately, many citizens use this time to voice complaints which are not recorded and do not become part of the record. The more formal part of the hearing, which involves coming up to a microphone and speaking, often intimidates citizens who complained earlier." 

I would like to address the issue of expectations and the distinction between hearings versus meetings. To the agency's credit, EPA's "Public Involvement in Environmental permits: A Reference Guide" (see www.epa.gov/permits or the archive) clearly discusses the distinction between meetings and hearings on page 3-20. Yet, despite the fact that many appreciate that no public record (and right to appeal a permitting decision based on that record) is established, many argue that public "hearings"-- the result of notice and comments processes--can encourage posturing and do not lead to a robust exchange that can foster consensus building. This is due to the "one-way" nature of such hearings where officials are passive due to legal requirements and need to accurately record the proceedings. 

Public "meetings" usually also have the element of posturing. Many attribute this to the customary comment periods. Community leaders often argue that such short periods (e.g., 30 days) do not allow them the proper time to analyze such complex, technical permits, absent resources or technical assistance. Industry and permit proponents often counter that these comment periods should not be extended for fear that further public involvement may lead to delay and increased expense.

Where a permitting decision is deemed controversial, the agency should consider conducting additional public meetings to address scientific/health/environmental uncertainties.  This allows for an exchange, "though off the record."  If there is enough concern after a preliminary meeting, an agency should consider whether a more active collaborative process is needed to facilitate stakeholder involvement. Such a process would be tailored to the need of the participants, have groundrules regarding the goal of the group, the duration of group's charge, address decision-making by consensus or some other means, and have a leader or facilitator that is respected by all. Prior to all that, a neutral party should conduct a "convening" analysis of the issues, parties, and process for reaching an acceptable outcome (see Negotiated Rulemaking Act, 5 USC Sec. 581-590). Any stakeholder should be suspicious of engaging in any open-ended process that does not have any groundrules or structure.  This led to many problems in recent initiatives where certain fundamental issues, such as the definition of consensus, was ignored, thereby leading to delays and unnecessary confusion.

Glenn notes that "hearings can be used to give the impression of public involvement, without the substance." Due to the potential for misunderstandings regarding what can be accomplished in various venues, I think that agencies have to be clear regarding what issues a process will and will not tackle. This may require more training for agency personnel regarding how to conduct public hearings and meetings, and more technical assistance/training for the public (e.g., TOSC).  For instance, if using a community advisory group (CAG) or some other type of non-required meeting the agency or facility sponsor should disclose which issues can and cannot be addressed. This prevents individuals from having unrealistic expectations (e.g., I came to object to the siting decision, but operating issues are on the table). Participants in any collaborative process must be aware that agencies use such process for a variety of reasons ranging from consultations or information exchange to advisory to helping explicitly come to a consensus agreement. Participants are often eager for "face time" with regulators in dialogues only to find out that the meetings were not designed to bridge certain issues per se, but to identify the range of issues at hand. Yet, that is a legitimate use of a meeting in the administrative process. Consultative processes are creatures of agency's administrative process. Public involvement tools that are non-required augment such official processes. I think an educated consumer of these processes will be the most satisfied. Again, this starts with education and training.

Alan