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E-M:/ ALJ hearings getting messed up



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Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>
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This was sent by an anonymous contributor describing how
administrative contested hearings are getting seriously messed up
in the Engler/Posthumus Michigan DEQ.....

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The balance in contested case hearings has recently tilted sharply in favor 
of a party petitioning for a hearing on a DEQ permit decision.  These 
hearings are held in front of  an aministrative law judge (ALJ).  Because 
the Attorney General's (AG) office is not adequately staffed, many 
contested case hearings are not assigned legal counsel from the AG.  In the 
past, the Land and Water Management Division (now glommed together with 
Geological Survey to create a sterile hybrid) would assign one of its own 
staff to act as quasi-legal counsel to question, cross-examine, and object 
to testimony, as best they could, in a hearing.  Apparently, the Bar 
Association objected to non-lawyers acting as counsel (at least that's what 
we were told by the front office).

Their complaint may be legitimate for legal reasons, but it has left DEQ 
staff severely handicapped in the contested case process.  If no AG lawyer 
is assigned, the person who made a decision on the permit is allowed only 
to read a statement at the hearing; no questioning or cross-examination of 
witnesses or objection to testimony is permitted.  This might be fair if 
the same rules applied to the petitioner, but they do not.  DEQ staff are 
subject to cross-examination and objection from counsel for the petitioner.

Contested cases of statewide significance are occurring in this one-sided 
system.
The rulings of ALJs may not set precedent in our legal system, but they 
have huge implications - at least in wetland, inland lakes and streams, and 
Great Lakes bottomlands issues - as to what the DEQ will permit or 
deny.  The DEQ front office has not, to anyone's knowledge, attempted to 
discuss the issue with the Bar or done anything to ameliorate this 
situation.  Our field staff are going to slaughter in these hearings and 
the result will be hearing decisions that are potentially very damaging to 
the environment.  Let's hope the upcoming election results in a swift and 
thorough house cleaning!



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Alex J. Sagady & Associates  http://my.voyager.net/~ajs/sagady.pdf

Environmental Enforcement, Technical Review, Public Policy and
Communications on Air, Water and Waste/Community Environmental Protection

PO Box 39,  East Lansing, MI  48826-0039
(517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com
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