>A/202/R-93/004
Interim Report Of
The Federal Facilities
Environmental Restoration
Dialogue Committee
Recommendations For Improving
The Federal Facilities Environmental
Restoration Decision-Making And
Priority-Setting Processes
February 1993
Recycled/Recyclable
Printed on paper that contains
al least 50% recycled liber
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This document is the result of the work of the Federal Facilities Environmental Restoration Dialogue
Committee, a federal advisory committee chartered by the U.S. Environmental Protection Agency and
facilitated by The Keystone Center. For additional copies of this report please contact:
Office of Federal Facilities Enforcement
Strategic Planning and Prevention Division
U.S. Environmental Protection Agency
401 M Street, S.W. (OE-2261)
Washington^ D.C. 20460
202-260-9801
or
The Keystone Center
Science and Public Policy Program
P.O. Box 8606
Keystone, Colorado 80435
303-468-5822
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INTERIM REPORT
OF THE
FEDERAL FACILITIES ENVIRONMENTAL RESTORATION
DIALOGUE COMMITTEE
RECOMMENDATIONS FOR IMPROVING THE FEDERAL FACILITY
ENVIRONMENTAL RESTORATION DECISION-MAKING PROCESS
AND SETTING PRIORITIES IN THE EVENT
OF FUNDING SHORTFALLS
February, 1993
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TABLE OF CONTENTS
FEDERAL FACILITIES ENVIRONMENTAL RESTORATION
DIALOGUE COMMITTEE
EXECUTIVE SUMMARY
1.0. INTRODUCTION
1.1. BACKGROUND ON FEDERAL FACILITIES ENVIRC JMENTAL RESTORATION
1.2. THE FFER DIALOGUE COMMITTEE: ITS MEN ERSHIP, PURPOSE, AND
GOALS, AND THE IMPLICATIONS OF THIS REPO T
1.2.1. Background on the FFER Committee
1.2.2. The Goal of the FFER Committee and the Impl itions of this Report
1.3. GENERAL PROBLEMS WITH THE CURRENT TER DECISION-MAKING
PROCESS
1.3.1. The Problem of Mutual Distrust
1.3.2. Ongoing Disputes Over Statutory Authorities
1.4. OVERVIEW OF THE RECOMMENDATIONS MD SCOPE OF ISSUES
ADDRESSED IN THIS REPORT
1.4.1. FFER Priority-setting and Decision-making
1.4.2. Federal Facility Environmental Restoration
1.4.3. Clarification of Commonly Used Terms
2.0. RECOMMENDATIONS FOR IMPROVING THE PROCESS 3F DISSEMINATING AND
EXCHANGING INFORMATION WITH AFFECTED STAKE 3LDERS
2.1. BACKGROUND AND STATEMENT OF NEED
2.2. DEMONSTRATED SUCCESSES AND PRIN PLES OF EFFECTIVE
INFORMATION DISSEMINATION AND EXCHANG
2.3. RECOMMENDATIONS
2.3.1. Overview and Scope
2.3.2. Information Dissemination Policy
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2.3.3. Citizen Use of FFER Information
2.3.4. Central Point of Contact within Agencies
2.4. IMPLEMENTATION STRATEGIES
3.0. RECOMMENDATIONS FOR IMPROVING THE PROCESS OF SOLICITING INPUT FROM
AFFECTED STAKEHOLDERS
3.1. BACKGROUND AND STATEMENT OF NEED
3.2. DEMONSTRATED SUCCESSES OF SITE-SPECIFIC ADVISORY BOARDS
3.3. RECOMMENDATIONS REGARDING THE ESTABLISHMENT OF SITE-SPECIFIC
ADVISORY BOARDS
3.3.1. Overview and Scope
3.3.2. When Site-Specific Advisory Boards Should Be Established or Restructured
3.3.3. Model Approach to the Formation of SSABs
a) Charter
b) Scope
c) Role of Regulated and Regulating Agencies
d) Membership and Membership Selection Process
e) Accountability
f) Interaction with the Public
g) Operating Procedures
h) Administrative and Technical Funding
3.4. IMPLEMENTATION STRATEGIES
4.0. RECOMMENDATIONS FOR IMPROVING ACCOUNTABILITY THROUGH ENHANCED
STAKEHOLDER INVOLVEMENT THROUGHOUT THE FEDERAL BUDGET PROCESS
4.1. BACKGROUND
4.2. OBJECTIVE
4.3. PRINCIPLES
4.4 OVERVIEW OF THE CONSULTATION AND ALLOCATION PROCESSES
4.5 CONSULTATION PROCESS
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4.5.1. Introduction and Scope
4.5.2. Consultation During Program Development and Execution
4.5.3. Consultation During the Initial Field-Level Development of Site-Level
Requirements
4.5.4. Notification after the President's Budget Submission
4.5.5. Consultation after Presidential/Congressional Appropriation and OMB
Apportionment
4.5.6. Consultation after Budget Execution
4.6 ALLOCATION PROCESS
4.6.1. Introduction and Scope
4.6.2. Important Considerations in the Allocation of FFER Funds
4.6.3. Fair Share Allocation Process to Address Insufficient Appropriations for Sites
That Are Subject to Outside Supervision
4.6.4. Fair Share Allocation Process to Address Insufficient Appropriations for Sites
That Are Not Subject to Outside Supervision
4.6.5. Allocation Process to Address Funding Shortfalls Caused by Unanticipated
Program Growth
4.6.6. Recommendation Against Congressional Earmarking
5.0. CONCLUSION
Appendices
Appendix A: List of FFER Dialogue Committee Members and Alternates
Appendix B: FFER Dialogue Committee Charter and Ground Rules
Appendix C: History and Description of the Federal Facilities Environmental Restoration Dialogue
Process
Appendix D: Statutory Provisions for Technical Review Committees
in
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ACRONYMS
A list of acronyms used
that the acronym repres
ATSDR
BRAC
CERCLA
DERP
DOD
DOE
DOI
DOJ
EM
EPA
ER
ERWM
FFA
FFER
FOIA
FUDS
FUSRAP
GAO
IAG
NASA
NCP
NEPA
NOAA
NPL
O&M
OMB
PEIS
PRP
RCRA
REO
RI/FS
ROD
SARA
SSAB
SVTC
TAG
TCE
TKC
TRC
UMTRA
USDA
Agency
BaseR
Compri
as at
Defenj
Depart
Depar
Depar
Depar
DOEt
Envirc
DOEl
DOE<
Federa
Federa
Freedo
Formei
Formei
Genera
Interag
Nation
Nation
Nation
Nation;
Nation;
Operati
Office i
Prograi
Potentii
Resoun '.
Regiom i
Remedi; .1
Record 1
Superfui i ,
Site-Spe fi
Silicon \ ill
Technica A
Trichlorc ;th
The KeyLton
DOD Techni
Uranium Mil
U.S. Departn
hout this document is provided below, along with the full name or term
c Substance Disease Registry
it and Closure (Act)
environmental Response, Compensation, and Liability Act of 1980,
mental Restoration Program
>efense
inergy
le Interior
ustice
Environmental Restoration and Waste Management
5rotection Agency
Environmental Restoration
Environmental Restoration and Waste Management
Agreement
Environmental Restoration
Tmation Act
Defense Sites
:ed Sites Remedial Action Program
iting Office
cement
wtics and Space Administration
gency Plan
imental Policy Act of 1969, as amended
: and Atmospheric Administration
js List
aintenance
;ment and Budget
ivironmental Impact Statement
msible Party
vation and Recovery Act of 1976, as amended
imental Officers
gation/Feasibility Study
ion
idments and Reauthorization Act of 1986
/isory Board
3xics Coalition
ant Grant
,e
enter
Review Committee
failings Remedial Act
IV
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EXECUTIVE SUMMARY
The federal facility environmental restoration challenge is enormous. The environmental legacy of the
federal government's mission-oriented activities is felt in communities throughout the country.
Environmental clean-up of the 24,000 sites on federal facilities in the United States may ultimately cost
as much as $400 billion and will extend well into the next century. From a technical perspective, these
clean-ups are likely to be particularly complex and challenging. Equally challenging is the process by
which federal facility clean-up decisions are made. From the perspective of many participants, the
current process has been unnecessarily hampered by feelings of mistrust and conflict over the appropriate
roles, responsibilities, and authorities of regulated and regulating agencies and other affected stakeholders.
Reinvigorating the process will require a fundamental change in the way the clean-up process is managed.
The cornerstone of this change must involve a shift from the decide, announce, and defend mode of
public involvement to a new partnership between all of the affected stakeholders.
The Federal Facilities Environmental Restoration (FFER) Dialogue Committee, which includes forty
representatives of federal agencies, tribal and state governments and associations, and local and national
environmental, community, and labor organizations (see Appendix A for a list of Committee members
and alternates), was established by EPA to develop consensus policy recommendations aimed at
improving the FFER decision-making process to ensure that clean-up decisions reflect the priorities and
concerns of all stakeholders.
In an era of increasing concern over federal budget deficits, the FFER Dialogue Committee believes that
it is essential for federal facility clean-up decisions to be broadly supported if the nation is to accomplish
its clean-up goals in a timely and efficient manner. Technical breakthroughs and scientific models alone,
as important as they are to ensuring progress, will not overcome the current problems with FFER
decision-making. Indeed, the future viability of federal facility clean-ups depends on the ability of the
federal government to incorporate the divergent views of all concerned stakeholders into the decision-
making process such that all stakeholders can become true partners in ensuring that clean-ups are
conducted in the safest, most efficient, and most cost-effective manner possible.
Unless otherwise noted, the recommendations contained in this report reflect the consensus views of the
members of the FFER Dialogue Committee, all of whom participated as individuals rather than as official
spokespersons of their respective agencies, organizations, or associations.
The Committee's recommendations focus on:
• improving the dissemination of FFER related information (Section 2);
• improving stakeholder involvement in key FFER decisions, with special emphasis on the
use of site-specific advisory boards (Section 3); and
• improving consultation on FFER funding decisions and setting priorities in the event of
funding shortfalls (Section 4).
What follows is a brief summary of the detailed recommendations that are found in each major section
of the report. It should be noted that the language in the report was debated word-by-word by the
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Committee. Due to the detailed and, in many instances, mutually interdependent nature of the
recommendations, the Committee encourages readers to refer to the full text of the recommendations
instead of relying solely on the Executive Summary.
INFORMATION DISSEMINATION AND EXCHANGE
The Committee makes three recommendations regarding the current process for disseminating and
exchanging information to affected stakeholders including:
• developing agency-wide information dissemination policies on information that is related
to environmental restoration;
• encouraging public participants to portray accurately the status of documents or other
information that they receive in draft form; and
• developing a central point of contact within each agency for assisting in FFER
information exchange.
To help facilitate the implementation of these recommendations, the Committee recommends that agencies
consider such options as establishing an "800" number for citizens to call for information on
environmental restoration activities, and establishing a mailing list of citizens interested in such activities.
INVOLVING AFFECTED STAKEHOLDERS
The Committee's recommendations for involving affected stakeholders more directly in FFER
decision-making focus on the creation and use of site-specific advisory boards (SSABs). The role of the
SSABs is to actively involve representatives of the local community and others in the clean-up decision-
making process. The Committee recommends that SSABs be used to streamline and complement, rather
than supplant, broader site level FFER public involvement initiatives. The intended scope of the SSABs
is to address federal facility environmental restoration issues, as well as waste management and
technology development issues that are related to environmental restoration.
The report describes when SSABs should be established and proposes a model approach to implementing
these recommendations, including:
• the appropriate SSAB charter and scope and roles of regulated and regulating agencies;
• a method for determining SSAB membership; and
• appropriate operating procedures and methods for ensuring accountability.
The Committee recommends that SSABs should be provided support for administrative needs. Most
Committee members also agree that regulated agencies should provide funding for technical assistance
to non-governmental SSAB participants to help ensure more effective and meaningful participation. The
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report describes recommended levels, appropriate uses, and implementation options for providing
administrative and technical assistance funding.
The Committee's recommendations for involving affected stakeholders are provided for consideration by
those who will be responsible for implementation at the site level. The Committee believes that it is
essential for the federal agencies to work closely with local communities to ensure that SSABs reflect and
are responsive to local community needs and concerns. The Committee recognizes that the
recommendations in this Interim Report will need to be tailored to meet the needs of each federal site and
its local stakeholders.
CONSULTATION ON FFER FUNDING MATTERS
In assessing the concern that federal clean-up programs are likely to experience funding constraints, the
Committee believes that extensive and meaningful stakeholder involvement is the key to reducing the
impacts of such conditions. As such, the Committee recommends that federal agencies communicate in
a timely manner site-specific or programmatic decisions affecting the ability of a site to meet its legally
binding clean-up obligations to stakeholders. In addition to such ongoing consultations, the Committee
recommends that information be shared during several discrete points in the FFER funding and decision-
making process, including:
• at the time of initial field-level development of site-level requirements;
• after submission of the President's budget to Congress;
• after Presidential/Congressional appropriation and during agency allocation; and
• after budget-year execution.
Such consultation should revolve around what FFER activities or projects are being considered for
execution and what FFER activities or projects have been executed. The information exchanged should
be at a sufficient level of detail to enable verification that an agency's budget request package includes
the activities and projects that are necessary to meet budget year obligations and milestones contained in
enforceable agreements and other documents as well as to ensure adequate progress toward out-year
obligations and milestones.
SETTING PRIORITIES IN THE EVENT OF FUNDING SHORTFALLS
The Committee agrees that existing milestones describe a set of obligations that should be honored to the
fullest extent possible. However, given the practical limitations of the federal budget process, even the
most arduous efforts may not ensure full funding for all FFER obligations. As a result, there may be
times when insufficient funds will prevent full implementation of all FFER obligations.
In light of the growing concern that federal facility clean-up activities may face funding shortfalls, the
Committee recommends a flexible strategy for applying "fair share" principles to allocating funding
shortfalls. The Committee recommends a detailed process for applying fair share principles in the event
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of funding shortfalls caused by insufficient appropriations and a more general set of principles for use
when shortfalls occur due to unanticipated program growth.
The Committee recognizes that it is not appropriate to use health risk as the single criterion to guide the
allocation of FFER resources. Other factors, such as environmental risk, indigenous peoples' rights, and
environmental equity, must also be considered. Even though health and environmental risks are not the
sole factors that should determine the allocation of FFER dollars, it is important to obtain more and better
information on environmental and human health exposure and risk from federal facility contamination.
The Committee strongly supports increased efforts to develop such information.
Where funding shortfalls result from insufficient appropriations, the Committee recommends that, to the
greatest extent possible, all sites subject to outside supervision should share equally in the total amount
of the funding shortfall. This is defined as the "fair share" allocation. The Committee recommends that
a process of consultation between regulated agencies, state and federal regulators, affected tribes, and
other affected stakeholders, take place in an effort to reallocate funds among FFER projects and activities
within a site without missing legally binding obligations. However, if this is not possible or appropriate,
given the criteria summarized above and specified in more detail in the report, the Committee
recommends that regulating agencies renegotiate legally binding clean-up obligations, rather than
undertake punitive enforcement actions, so long as:
• the fair share allocation is adhered to;
• the regulated agency implements the recommendations contained in this report in a
responsible and good faith manner; and
• the funding requested for that agency's FFER budget represents the Executive Branch's
best estimate of the amount of funding that is necessary to meet that agency's legally
binding clean-up obligations.
Regulated agencies may suggest a reallocation of FFER resources in a manner that is not consistent with
the fair share principles specified in this report. However, the agency may be subject to punitive
enforcement action if such reallocation causes a legally binding obligation to be missed.
Where the funding shortfall is caused by unanticipated program growth, the Committee recommends a
greater emphasis on absorbing the shortfall at those sites where it arose. A consultation process would
still occur, but the Committee did not recommend granting enforcement relief for program growth
funding shortfalls.
The Committee recognizes that in certain cases an appropriation bill may specify or "earmark" precise
funding levels for particular sites. The Committee strongly recommends that Congress refrain from such
site-specific earmarking as it will detract from the principles of fairness that are built into the process
described herein, as well as diminish the value of stakeholder involvement in FFER programs.
CONCLUSIONS AND NEXT STEPS
This report is being issued as an Interim Report to communicate the results of the Committee's
deliberations at this critical stage of transition and to provide an opportunity to begin the process of
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implementing the recommendations where consensus exists among Committee members. The Committee
intends for its recommendations to be implemented with common sense consideration of the needs,
interests, and concerns of those who live near and, therefore, are most directly impacted by site-level
clean-up efforts. As such, the recommendations contained in this report are intended to serve as a model
that should be utilized and tested at both the field level and the national policy making level.
The FFER Dialogue Committee will be undertaking a variety of efforts to communicate its
recommendations and receive feedback from those who did not participate directly in its deliberations.
The Committee will continue to meet to assess the progress that is being made and address concerns that
emerge with the implementation of its recommendations.
The Committee believes that the recommendations contained in this report represent a new approach for
conducting federal facility clean-ups. It is based on the premise that all stakeholders should participate
in a meaningful manner in the FFER decision-making process. It is the view of the Committee that only
through such active involvement of all affected stakeholders can a true partnership develop that will lead
to broadly supported clean-up decisions.
It is the sincere hope of the FFER Dialogue Committee that the process it has gone through to develop
its recommendations, as well as the recommendations themselves, will usher in a new era of trust and
consensus-building that allows all parties to get on with the job of cleaning up federal facilities in a
manner that reflects the priorities and concerns of all stakeholders.
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1.0. INTRODUCTION
1.1. BACKGROUND ON FEDERAL FACILITIES ENVIRONMENTAL RESTORATION
Over the past decade it has become increasingly clear that environmental contamination at federally
owned and operated facilities poses a significant challenge for the nation. Over this period, it has also
become clear that there are many interests that have a stake in and are concerned about what is occurring
at these facilities.
With the passage of statutory provisions under the Resource Conservation and Recovery Act (RCRA) and
the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)1 and the
corresponding increased attention that has been placed on identifying environmental contamination at
federal facilities, the immense magnitude of this problem has become clear. Estimates for clean-up of
the approximately 24,000 currently identified sites at federal facilities range from $100 billion to upwards
of $400 billion. Clean-up efforts are projected to continue well into the 21st Century.2
By any measure, the cost of cleaning up the environmental contamination that is currently known to exist
at federal facilities is enormous. Such costs must be borne by taxpayers because of the public purposes
served by these facilities. More significantly, these costs must be borne by taxpayers in an era of
increasing concerns over the growing federal budget deficit.
Many who are involved in managing federal facility clean-up programs, as well as those who are
regulating or affected by these programs, are becoming increasingly concerned with the ability of the
nation to maintain the necessary level of funding to meet current clean-up goals. Because of these
concerns, there has been an increasing amount of attention paid to the need to establish publicly supported
priorities as the study and actual clean-up of these facilities proceed.
As the sheer magnitude of federal facility environmental contamination has become clear, so have the
technical complexities of these problems. In many instances federal facility environmental contamination
problems pose threats to human health and the environment that are similar to those that are found at
private sector sites. However, in numerous other situations, especially those found at the major defense
production facilities owned and operated by the DOE, the technical dimensions of the environmental
contamination problems are perhaps as complex as those found anywhere in the world.
Environmental contamination confronts federal agencies with challenges that are often fundamentally
different from those of their primary missions. Although clean-up problems exist at facilities owned by
most federal agencies, the number and severity of these problems are greatest at sites managed by DOD
and DOE. The facilities that are owned by these agencies were built and operated primarily to serve the
nation's defense needs. As in the private sector, many of the environmental contamination problems at
these facilities had their genesis in an era when there were few laws or regulations to address the disposal
1 See Section 6001 of RCRA and Section 120 of CERCLA.
2 Sources include: Milton Russell, et al., Hazardous Waste Remediation: The Task Ahead.
University of Tennessee, Dec. 1991. pg. 22; U.S. Department of Defense, Installation Restoration
Program Cost Estimate Sept. 1991; Congressional Budget Office. Federal Liabilities Under Hazardous
Waste Laws. May 1990.
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DEPARTMENT OF DEFENSE
It is estimated that there are over 15,000 sites where hazardous substances may have been
released at nearly 1,900 facilities owned or operated by the Department of Defense
(DOD). DOD estimates its clean-up cost to be in the range of $25 billion.
DEPARTMENT OF ENERGY
The Department of Energy (DOE) has identified 9,000 sites for clean-up. In
many instances, DOE is in the early stages of site assessment to determine the
nature and extend of the contamination. As a result, the costs and time to
complete remediation are difficult to ascertain. DOE estimates, however, that
clean-up costs may be in the range of tens of billions of dollars, and has set year
2019 as the goal for cleaning up the inventory of sites identified by 1989. As
DOE moves from the assessment phase into implementing remedial actions, actual
costs and time frames necessary to clean-up will become more clear.
DEPARTMENT OF THE INTERIOR
The Department of the Interior (DOI) currently has 422 sites listed on the Federal
Agency Hazardous Waste Compliance Docket and two sites that are listed on the
National Priorities list (NPL). The sites on DOI-managed lands and facilities are
generally not the result of DOI activities, but rather activities conducted on those
lands illegally or under various statutes authorizing use of public lands. The DOI
has not yet completed inventories of the 440 million acres of land that it manages,
so the total number of clean-up sites on DOI-managed lands is still unknown.
Thus, the costs and time frames necessary to clean up these sites are difficult to
determine given the preliminary state of evaluation of DOI-managed lands.
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U.S. DEPARTMENT OF AGRICULTURE
The U.S. Department of Agriculture (USDA) currently has 96 sites listed on the
Federal Agency Hazardous Waste Compliance Docket. None of these sites are
identified on the NPL as a USDA responsibility. However, USDA agencies
currently are involved with cleanup at two locations listed on the NPL.
In general, USDA agencies have completed an inventory and discovery process
for federally owned facilities or managed lands with two notable exceptions. The
Forest Service has not completed an inventory of potential problems on the 190
million acres of land it manages with respect to abandoned mining sites or closed
sanitary landfills. Most of these sites are the result of third party activities on
National Forest lands that have occurred in the past under authorizing statutes,
regulations, or permits. Thus, the total estimated cost of the Department's
hazardous waste cleanup program and the time frame for implementation has not
been determined at this time.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
The National Oceanic and Atmospheric Administration (NOAA), within the
Department of Commerce, has one site with an estimated clean-up cost of $50
million and a clean-up time frame of at least 10 years. This site is currently not
on the NPL. NOAA is just beginning to do environmental audits, so it may
discover more sites. The Department of Commerce has responsibility for more
clean-up sites which belong to other agencies, via lawsuits, with an estimated
clean-up cost of approximately $150 million over a 10-20 year period.
of hazardous and radioactive wastes. Furthermore, the national defense missions of these facilities were
seen as paramount. Often this mission required a high degree of secrecy (and in some instances still
does) regarding the precise nature of the activities that were taking place at these facilities.
With increased knowledge of environmental contamination at these facilities, there has been an ever
increasing level of public demand to clean them up. DOD and DOE have often tried to deal with rising
public interest and concerns, as well as increased regulatory oversight, through traditional command and
control approaches that have worked well in the context of their national defense missions. Although
much progress has been made toward bringing federal facilities into compliance with state and federal
environmental laws, there remain significant management and public credibility problems which
jeopardize efforts to prioritize clean-up efforts to prioritize clean-up projects and form strategies for
reaching long term environmental restoration objectives.
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Federal agencies other than DOD and DOE also have significant environmental contamination problems,
although most of these agencies do not have a national defense mission and the technical dimensions of
their contamination problems are typically much less complex than DOE's or DOD's. Nevertheless,
there are management and public credibility problems related to the clean-up programs at these agencies
that are similar to those at DOE and DOD.
The Committee believes that public involvement is essential for achieving publicly supported priorities
for clean-up. Federal agencies recognize and support the legitimate and important role the public has in
helping to identify clean-up priorities. The recommendations of this report, therefore, are aimed at
creating a more effective public participation process.
1.2. THE FFER DIALOGUE COMMITTEE: ITS MEMBERSHIP. PURPOSE. AND GOALS.
AND THE IMPLICATIONS OF THIS REPORT
1.2.1. Background on the FFER Dialogue Committee
In April of 1992, the U.S. Environmental Protection Agency established the Federal Facilities
Environmental Restoration (FFER) Dialogue Committee as an advisory committee under the Federal
Advisory Committee Act. As stated in its charter, the purpose of the FFER Dialogue Committee is to
provide a forum to identify and refine issues related to environmental restoration activities at federal
facilities. The Committee was intended to be a forum for the exchange of ideas and information among
individuals representing organizations and agencies that have an interest in or responsibility for managing
or overseeing environmental restoration activities at federal facilities. The Committee was formed with
the hope that such diverse parties might reach consensus on how to address issues related to improving
the manner in which decisions are made and priorities are established for the clean-up of federal facilities.
However, at a minimum, EPA, the chartering agency, wanted to ensure that issues were thoroughly
defined and that differing positions, as well as the reasons for those differences, were identified.
The FFER Dialogue Committee includes representatives of:
• Several federal agencies, including the
Environmental Protection Agency (EPA),
Department of Defense (DOD),
Department of Energy (DOE),
U.S. Department of Agriculture (USDA),
Department of the Interior (DOI),
National Aeronautics and Space Administration (NASA),
National Oceanic and Atmospheric Administration (NOAA), and
Agency for Toxic Substance Disease Registry (ATSDR);
• National and local environmental, citizen, and labor organizations;
• Tribal governments and Native American organizations; and
• State government and state government associations.
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Although each member of the FFER Dialogue Committee is affiliated with an agency, organization, or
association that is either responsible for or actively involved in federal facility environmental restoration
issues, Committee members were not asked to represent formally, or make binding commitments on
behalf of, their home organizations.
Appendix A includes a complete listing of FFER Dialogue Committee members and alternates. Appendix
B includes additional background information on the Committee, including a copy of the Committee's
charter and its agreed upon ground rules.
The impetus behind the creation of the FFER Dialogue Committee was an informal information exchange
and consensus-building dialogue that was initiated in early 1991. In the beginning, this informal dialogue
focused on exchanging information on the variety of approaches that federal agencies are using to help
set priorities for cleaning up their facilities. In exchanging such information, the Dialogue Group soon
recognized that other fora had already been established which were more appropriate for critiquing the
technical attributes of these various priority-setting models. Furthermore, the Dialogue Group agreed
that there was a much broader set of issues that needed to be addressed regarding the overall context
within which any particular priority-setting model might be utilized. These general agreements helped
form the basis of the discussions that then took place under the auspices of the FFER Dialogue
Committee. (See Appendix C for a detailed description of the events that led up to the formation of the
Federal Facilities Environmental Restoration Dialogue Committee.)
The FFER Dialogue Committee met four times, in April, July, November, and December of 1992. In
addition, the Committee formed two separate work groups, which met numerous times between
Committee meetings to produce draft documents for full Committee consideration.
1.2.2. The Goal of the FFER Dialogue Committee and the Implications of this Report
Soon after the FFER Dialogue Committee was formed, its members agreed upon the following goal
statement:
The goal of the FFER Dialogue Committee is to develop consensus policy
recommendations aimed at improving the process by which federal facility
environmental restoration decisions are made, such that these decisions reflect the
priorities and concerns of all stakeholders.
This report describes the outcome of the deliberations of the FFER Dialogue Committee. The Committee
wishes to emphasize that this report contains recommendations for policy changes rather than official
policy pronouncements. Unless otherwise stated in the report, the recommendations contained herein are
the consensus policy recommendations of the FFER Dialogue Committee. As defined in the Committee's
ground rules, proposals were considered to have achieved consensus when there was no dissent from any
member of the Committee.
In many instances, the language contained in the report was debated word-by-word and there was
considerable give and take between Committee members. Thus, some Committee members believe the
recommendations could have gone further or could have been more strongly worded and others believe
they go further than is necessary to bring about needed changes. In still other instances, policy
recommendations were proposed and strongly advocated, but are not included in this report because they
did not achieve consensus. Finally, in three instances, each of which is clearly noted, the Committee did
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not reach a full consensus. In two of these instances, some Committee members agreed with the
recommendations contained in the report but thought these recommendations did not go far enough to
address their concerns. In the other instance, an agency is taking the recommendation of other
Committee members under advisement. Because these issues were still considered to be important, the
outcome of the Committee's efforts are included in this report in order to characterize accurately the
Committee's deliberations and help inform future efforts that are aimed at resolving these issues. Even
where consensus was not possible, however, Committee members agree that the language contained in
the report accurately characterizes the outcome of its discussions.
Although the FFER Dialogue Committee process was not intended to bind any of the organizations,
agencies, or associations with whom Committee members and alternates are affiliated or employed, all
of the signatories to this report have agreed to work proactively toward the implementation of the
consensus policy recommendations within their respective agencies and organizations.3 Furthermore,
Committee members have agreed not to undermine the implementation of the consensus policy
recommendations by others who may or may not have been members of the FFER Dialogue Committee.
As such, this report is intended to serve as a chronicle of the FFER Dialogue Committee's deliberations
and as a set of agreements and milestones that Dialogue participants (and others who read this report and
agree with its recommendations) will use to assess the progress that is being made towards "improving
federal facility environmental restoration decision-making processes such that they reflect the priorities
and concerns of all stakeholders."
1.3. GENERAL PROBLEMS WITH THE CURRENT FFER DECISION-MAKING PROCESS
Committee members believe there are two general problems that are currently preventing rapid
improvements to the decision-making processes for federal facility clean-ups - a high level of distrust
among some affected stakeholders and ongoing disputes over the interpretation of critical statutory
provisions related to the respective authority of state and federal regulators and federal facility program
managers.
These barriers range from subjective and perceptual differences to more complex and controversial
distinctions involving legal interpretations of statutes. But, real or imagined, the members of the FFER
Dialogue Committee believe these barriers must be eliminated in order to improve the current
inadequacies in site clean-up decision-making and priority-setting.
1.3.1. The Problem of Mutual Distrust
FFER Dialogue Committee members believe that the most visible and common impediment to effective
FFER decision-making results from a long history of deep-seated mutual distrust among some affected
stakeholders and some decisionmakers.
3 In the case of Committee members who are staff of state associations such as the National
Governors' Association, National Association of Attorneys General, and Association of State and
Territorial Solid Waste Management Officials, this means that they will bring this report to the attention
of the members of these associations (i.e., Governors, Attorneys General, and Department Heads). Other
Committee members, who are employed by the members of these state associations, agree to work
proactively within those associations toward implementation of the recommendations of this report.
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Some state and tribal government representatives, as well as affected citizens closest to the contaminated
federal sites, feel ignored and overwhelmed by a seemingly insensitive national bureaucratic structure that
appears to be making even the most fundamental decisions in isolation. Facility neighbors in particular
are often suspicious of federal agencies and feel excluded from important environmental restoration
decisions that may affect their future, the health of their families, and the value of their property.
Moreover, where a public involvement process is mandated by law -- whether in the National
Environmental Policy Act (NEPA) or federal and state clean-up laws — the public often perceives that
the process is used to defend decisions already made without meaningful dialogue with the affected
public.
Some regulators and citizens also question the sincerity and commitment of some federal agencies and
their facility managers to rapid and effective clean-ups. These feelings are based on negative experiences
in gaining public access to site information, failures on the part of federal agencies to deliver results or
meet agreements, and lack of feedback about the dynamics of initiating and funding clean-up at a
particular site.
Some federal agency representatives, on the other hand, see an apparently insatiable and unorganized mix
of groups and governments with often conflicting and sometimes unachievable expectations, demanding
action without regard to cost, risk, or priorities. Some federal stakeholders also question the motivations
of other stakeholders. From experience, they believe that these motivations can range from political
ambitions on the part of public officials, to the perceived desire to raise state revenues through fines and
penalties, to agendas moving beyond environmental restoration, per se, toward broader national
disarmament issues.
Furthermore, federal agency officials believe that public participation processes, unless carefully designed
and implemented, often are an impediment to efficient, cost-effective, and scientifically sound clean-ups.
Many federal officials stress the importance of balancing the scientific expertise and knowledge of the
government with the desires of the local citizens. Finally, public officials have numerous statutory
obligations that they must fulfill and these responsibilities, by law, cannot be delegated away to local
citizens or other governmental entities.
Through hearings and reports, Congress has registered its concern with the inability of those involved
in federal facility restoration to reach agreement over clean-up priorities. Congress did pass the Federal
Facility Compliance Act of 1992 (PL 102-386), which was signed into law by the President on October
6, 1992. While the focus of this Act is clarification of EPA and state RCRA enforcement authorities
regarding federal facilities, its long legislative history is replete with criticism of the delays and
inefficiencies frequently caused by on-site gridlock among federal agencies, regulators, and the public.
Although Congress has expressed concern and frustration with the inability of affected parties to resolve
their differences, it has so far stopped short of extensive intervention or preemption.
Obviously, the effects of such pervasive mutual distrust are not limited to the inhibition of effective
dialogue and decision-making at the local level. Rather, these dynamics can affect the relationships of
stakeholders at national levels of regulatory review, decision-making and program management as well.
The result of this mistrust is that the current decision-making process is often slow, convoluted, and
inefficient for all involved. All FFER Dialogue Committee members are concerned that the increasing
transaction costs of the current FFER decision-making process may jeopardize our nation's ability to
achieve its collective clean-up objectives. Even where agreements are reached, a polarized atmosphere
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sometimes remains that leads to a series of conflicts instead of a consultative, cooperative process that
allows for flexibility and promotes efficiencies and, ultimately, the building of public trust.
1,3.2. Ongoing Disputes Over Statutory Authorities
Another significant barrier arises from differing views of the authorities of state and federal government
as they relate to FFER decision-making. The most fundamental issues in disagreement arise from the
evolutionary dispute over whether or not federal facilities are subject to state authority under RCRA or
other state environmental laws that affect restoration, as well as the relationship of those statutes to
ongoing clean-ups being conducted under CERCLA.
Without attempting to specify the details or merits of these legal disputes, states and citizen groups
contend that RCRA and other state legal authorities entitle state regulators to impose specific
informational and procedural requirements, as well as substantive clean-up requirements, where clean-up
agreements or permits are in place. This includes participation in funding decisions where federal funds
are insufficient to meet legally binding agreements. Federal agency decisionmakers dispute such broad
statutory authority. Further, they contend that their departmental secretaries are personally responsible
for both the clean-up of facilities and the proper expenditure of appropriated monies (or in not spending
when monies are not appropriated). Consequently, while others may be involved in advice and
consultation, only the federal agency in question has the authority to make the final decisions on spending
for environmental restoration activities at a site.
FFER Dialogue Committee members agreed not to attempt to resolve these fundamentally different legal
interpretations. However, the Committee believes that the recommendations it has developed will help
to address some of the mistrust and inefficiencies that surround the FFER decision-making process. And,
in particular, the Committee believes that its recommendations on how to set FFER priorities in the event
of a funding shortfall are an attempt to balance carefully the legitimate needs, concerns, and authorities
of all stakeholders. When implemented, these processes may go a long way toward lessening the
significance of, if not resolving, these legally based disagreements.
1.4. OVERVIEW OF THE RECOMMENDATIONS AND SCOPE OF ISSUES ADDRESSED IN
THIS REPORT
1.4.1. FFER Priority-setting and Decision-making
Federal facility environmental restoration priorities are established and refined at numerous stages and
levels in the FFER decision-making process. Because of this, the Committee believes that the
establishment of more widely supported federal facility environmental restoration priorities can be
accomplished by improving the overall process by which federal agencies share information and involve
affected stakeholders in FFER decision-making. Based on these views, the Committee determined that
its discussion of priority-setting issues should focus on improving the overall process by which FFER
decisions are made, as well as an explicit discussion of how to set FFER priorities in the event of a
funding shortfall.
Committee members recognize that there is probably only a relatively narrow window of opportunity to
find some resolution to the inability of FFER stakeholding interests to deal effectively with each other
before future national fiscal constraints slow down current progress in federal clean-ups. Agencies in
charge of federal facility clean-ups are concerned that while they generally enjoy adequate funding for
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immediate environmental restoration needs, there is no guarantee that adequate funding will be available
for all necessary future clean-up efforts. Not all participants agree that fiscal constraints should inhibit
clean-ups rather than affecting other federal priorities, but all agree that eventually these constraints will
restrict choices and affect clean-up.
With this limited time for progress in mind, the FFER Dialogue Committee analyzed and dissected the
various phases and specific problems that must be addressed in order to improve FFER decision-making.
In addition to an inhibiting aura of distrust, numerous more specific problems became apparent as
Committee members examined the path of decision-making from the individual contaminated site through
the labyrinth of decisions affecting the selection and implementation of clean-up remedies and the timing
and funding of clean-ups that must take place as part of the national authorization and appropriations
processes. These more specific problems are described below, as they relate to the particular policy
recommendations that have been designed to remedy those problems.
The recommendations found below in their totality reflect an attempt to create an open, public,
consultative process that originates at the "local" or facility level and extends through the entire federal
hierarchy of departments, agencies, and offices of the Executive Branch. The Committee's
recommendations describe a consultative process and provide an outline of the procedures and ground
rules necessary to involve all stakeholders equitably in such a process.
The Committee also intends that its recommendations for improving the FFER decision-making process
should be implemented within all agencies that are responsible for regulating and cleaning up federal
facilities in as consistent a manner as possible, taking into account the unique structural and organizational
attributes of each agency, as well as the unique types of environmental restoration problems faced by each
agency.
Where necessary and appropriate, this document describes the Committee's views as to how the
recommendations should be implemented with specific departments and agencies. In addition, the
document contains recommendations that are addressed to stakeholders other than the federal agencies
responsible for clean-up, including state and federal regulators, local and national public interest
organizations, and the members of the general public who are concerned about federal facility clean-up
issues.
The Committee's recommendations revolve around three distinct problem areas, including:
• improving the overall process for disseminating and exchanging information with affected
stakeholders (Section 2);
• improving the process for soliciting and obtaining input from affected stakeholders
(Section 3);
• exchanging information in the context of the federal budget process and set priorities in
the event of funding shortfalls (Section 4).
The recommendations contained in Section 2, which address ways for improving the process by which
the general public can stay informed about the activities at a particular site, are the most broad. These
recommendations form the foundation for subsequent recommendations. Section 3 focuses on setting up
fora for stakeholders who want to be actively involved in providing input into the decision-making process
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as it relates to environmental restoration at a particular site. Section 4 contains recommendations that
will ensure that stakeholders who so wish will receive information on FFER funding decisions which are
made in the context of the federal budget process. The last section also describes an approach for setting
priorities in the event of FFER funding shortfalls, which builds upon and makes use of the consultative
mechanisms that flow from the recommendations contained in the previous sections.
1.4.2. Federal Facility Environmental Restoration
The phrase "federal facility environmental restoration" (FFER) is generally used to refer to the clean-up
of contaminated sites at currently and previously used or owned federal facilities.4 Except in Section
4.6, this includes clean-up activities that are conducted under CERCLA, as well as those that are
conducted pursuant to the corrective action provisions of RCRA, federal facility agreements, and other
state and federal regulatory requirements. In addition, the Committee believes that sites that are being
cleaned up under the Base Realignment and Closure (BRAC) Act should be subject to these
recommendations, once again with the exception of Section 4.6. Although the specific authority under
which a clean-up is conducted may result in significant differences in emphasis with regard to the needs
and responsibility of the various affected interests, this report addresses federal facility clean-up issues
in general. Elsewhere in this document, the term clean-up is used interchangeably with environmental
restoration.
Each of the major sections that follow addresses a discreet FFER policy area, including: 1) the general
process by which FFER information is exchanged with affected stakeholders; 2) the general process by
which affected stakeholders can become involved in FFER decision-making; and 3) the manner by which
information should be exchanged and priorities established in relation to FFER funding decisions. In each
of these sections the Committee states explicitly the scope of issues that it intended to address.
NOTE: The representatives: of the Yakima Indian Nation support the recommendations
of the Committee regarding the scope of issues covered by Sections 2, 3 and 4 of the
report. However, they believe that the scope of issues that should be addressed in
implementing the Committee's recommendations at DOE's Hanford site should include
all activities conducted under DOE's Environmental Restoration and Waste Management
Program. Specifically, they believe that the scope should include waste disposal activities
at Hanford including those that are not traditionally associated with a RCRA corrective
action or CERCLA remediation.
In the case of the Committee's recommendations regarding the dissemination and exchange of information
with affected stakeholders, the Committee uses the same general definition of federal facility
environmental restoration that is used above. Thus, the authority under which clean-ups are conducted
is not particularly important as it relates to these recommendations. In addition, the Committee
recommends that its recommendations regarding information dissemination and exchange with affected
stakeholders should cover waste management and technology development issues related to environmental
restoration, as well as environmental restoration issues as defined above.
4 Within the DOD, previously owned federal facilities are those sites that are managed under the
Formerly Used Defense Sites (FUDS) program. Within DOE, previously used or owned sites are
managed under the Uranium Mill Tailings Remedial Action (UMTRA) program and the Formerly
Utilized Sites Remedial Action Program (FUSRAP).
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The Committee's recommendations for involving affected stakeholders more directly in FFER decision-
making includes recommendations for the creation and use of site-specific advisory boards (SSABs). For
a variety of reasons, including practicality and efficiency, the Committee believes that it is important that
such site-specific advisory boards should not only be used to address federal facility environmental
restoration issues, once again regardless of the authority under which s.uch clean-ups are conducted, but
waste management and technology development issues that are related to environmental restoration as
well.
In the final section of the report, the Committee addresses two major issues: 1) consultation with affected
stakeholders in relation to FFER funding decisions; and 2) how to set FFER priorities in the event of a
funding shortfall. In the case of the former, the Committee recommends that its recommendations should
cover waste management and technology development issues related to environmental restoration, as well
as environmental restoration issues as defined above. However, in the case of the recommended process
for setting allocation priorities in the event of a funding shortfall, because of the nature of these
recommendations, the Committee decided it was critical to identify the specific FFER programs within
federal agencies under which these recommendations are intended to be applied.
These distinctions regarding the scope of issues addressed in this report are explained in more detail
below as they pertain to each of the major sections of the Report.
1.4.3. Clarification of Commonly Used Terms
Throughout this document recommendations are made regarding the roles and responsibilities of various
affected parties, including the regulated agency, the regulating agencies, affected tribes, other affected
stakeholders. It may be helpful at the outset to clarify what each of these terms signifies.
Regulated Agency - The term "regulated agency," refers to the agency that has the lead responsibility for
cleaning up the site including such agencies as DOD, DOE, DOI, USDA, NASA, NOAA, etc.
Regulating Agency(ies') - The term "regulating agencies," unless otherwise noted, refers to the state and
federal agencies that provide regulatory oversight of clean-up activities at a site. Typically, this will
include a combination of the state's hazardous waste agency and/or the office of the attorney general, and
EPA and the Department of Justice (DOJ). Two other governmental entities may also play regulatory
roles — tribes and local/municipal governments. In the case of localities, since local regulations typically
do not relate directly to federal facility environmental clean-ups, the Committee recommends that local
governments be treated like any other affected stakeholder, rather than as a regulator. To the extent that
local regulations do pertain to site-level federal facility environmental restoration activities, local
governments should be considered to be subject to the same recommendations for state and federal
regulators (see especially the discussion of model approach to the formation of site-specific advisory
boards in Section 3 and the allocation process in Section 4).
Affected Tribes - In the case of tribes, the Committee's recommendations attempt to account for a
complex set of relationships that includes at least four distinguishable bases for tribal interests in federal
facility environmental restoration activities. These include:
1) Instances where tribes serve as regulators of FFER activities that take place on tribal lands
through their own laws, which they establish as sovereign nations, or as a result of the delegation
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of federal statutory authority to the tribe through such statutes as RCRA, Clean Water Act, Clean
Air Act, etc.5
2) Instances where tribes have an interest in FFER activities that is derived from rights that are
specified in treaties with the U.S. Government. In some instances, these treaty rights may result
in legally binding obligations on the part of the U.S. Government that must be accounted for
during the conduct of federal facility environmental restoration activities. Typically these
interests will pertain to hunting, fishing, and religious freedom rights on ceded lands upon which
there exists a federal facility.
3) Instances where the interest of tribes in FFER activities are derived from the rights and privileges
that are specified in such statutes as the Historic Preservation Act, the Antiquities Act, the
American Indian Religious Freedom Act, and other aspects of the trust relationship between tribes
and the U.S. Government.
4) Instances where tribes do not have any special interests that are derived from their status as
sovereigns, or through treaties, or any federal statute, but nevertheless are still impacted by and
concerned about federal facility environmental restoration activities. In these instances tribes and
tribal members have interests that are equivalent to those of any other affected stakeholder.
As discussed in Sections 3 and 4 of the report, if tribes have interests in FFER activities that are derived
from their laws as sovereign nations, the delegation of federal regulatory authority, or from treaty or trust
relationships, their role in FFER decision-making should reflect the nature of these special relationships.
To the extent that tribes and tribal members interests are not derived from any such special relationship
(as per #4 above), tribes and tribal members should be treated the same as any other affected stakeholder.
Other Affected Stakeholders - There are a wide variety of other affected stakeholders who are impacted
by or concerned about federal facility environmental restoration activities. Although such stakeholders
exist at both the national and local levels, this report focuses primarily on those affected stakeholders that
exist at the local, site-specific level (particularly with the recommendation for the establishment of site-
specific advisory boards). These local stakeholders are defined as individual residents that live in the
communities or regions within which a site is located or representatives of citizen, environmental, and
public interest groups whose members live in the communities or regions within which a site is located.
It also includes workers or representatives of workers involved in or affected by site clean-up operations
and elected and appointed local government officials to the extent that they do not serve as regulators
of site-level federal facility environmental restoration activities.
5 Although the delegation of federal regulatory authorities to tribes for overseeing environmental
restoration activities has not yet occurred, it may occur in the near future.
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2.0. RECOMMENDATIONS FOR IMPROVING THE PROCESS OF DISSEMINATING AND
EXCHANGING INFORMATION WITH AFFECTED STAKEHOLDERS
2.1. BACKGROUND AND STATEMENT OF NEED
From the public's perspective, there has been some reluctance in the past on the part of federal agencies
to provide information on federal facility environmental contamination problems and restoration efforts.
Issues of access to information, including relevant classified information, the lack of clear ground rules
for gaining access to information, and the cumbersome and time-consuming processes to retrieve
requested information have all exacerbated the problem. Additionally, information dissemination and
exchange efforts have sometimes been perceived as more of a one-sided public relations approach rather
than the interactive dialogue that stakeholders in the decision-making process desire.
From the agencies' perspective, the public has sometimes requested such voluminous quantities of
information that it would have been difficult, if not impossible, to provide an adequate response,
particularly given limited resources. This desire for information and involvement on the part of the
public was often seen as interfering with the agency's ability to meet its mission objectives.
Today, it is generally recognized that federal agencies have important environmental obligations in
addition to their other missions and that disregard for these obligations is shortsighted and often
expensive in the long run. In response, these agencies have implemented public participation and
information dissemination and exchange efforts. In many cases, these efforts have been successful and
the recommendations in this report attempt to promote and build upon these successes. In other cases,
there are still improvements to be made in promoting information such efforts. In particular, stakeholder
concerns regarding current agency information dissemination and exchange efforts fall into three areas:
• Stakeholders' opinions are often solicited late in the process after the governmental
entities have concluded their investigatory work;
• The extent, timing, and scope of current information dissemination and exchange efforts
are inconsistent between sites and between agencies; and
• Stakeholders perceive that requests for information are treated by government officials
as burdensome and an impediment to management rather than as a right of citizenship.
2.2. DEMONSTRATED SUCCESSES AND PRINCIPLES OF EFFECTIVE
INFORMATION DISSEMINATION AND EXCHANGE
In the last several years, many agencies have dramatically changed the way they do business by making
environmental restoration data widely available to the public early enough to ensure stakeholders the
chance to have an impact on decision-making. For examples of this, see the box below.
In reviewing the successful use of methods for promoting information dissemination and exchange, the
Committee believes there are several important principles for ensuring the success of these efforts. These
include:
1) Federal agencies have an obligation to take the initiative in ensuring that information is provided
to all interested parties within applicable regulatory, resource, and budgetary constraints.
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2) Well developed information dissemination and exchange processes should ensure the timely
release of information of interest to stakeholders and provide the basis for informed involvement
in decision-making. This should hold true for any environmental restoration site, whether it is
on the National Priorities List (NPL) or not.
3) The information dissemination and exchange process must be consistent with Freedom of
Information Act (FOIA) principles, providing full disclosure of available information.
Classification of information on the basis of national security concerns should not be used to bar
the flow of relevant environmental restoration information where security/classification issues no
longer exist. Such information should be declassified.
Overall, an open, free flow of information will enhance the credibility of environmental restoration
actions proposed by federal agencies and may allow the stakeholders to gain a sense of ownership of the
final decisions.
DOE PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT
AND THE DOSE RECONSTRUCTION PROJECT
The public participation program for the DOE Programmatic Environmental Impact
Statement (PEIS) exceeded the procedural public involvement requirements mandated
by NEPA. Some of the innovative public participation activities undertaken in the
PEIS program included the release of documents not usually distributed for public
comment (e.g., the Implementation Plan), the distribution of information sheets on
particular topics, and the use of innovative interactive workshops in addition to the
traditional public hearings mandated by NEPA.
In another case, the director of DOE's Pacific Northwest Laboratory announced an
open-door policy for anyone interested in information related to the Hanford
Environmental Dose Reconstruction Project. The decision was made in response to
stakeholder demands for greater access to preliminary information. This open door
policy includes the opportunity for stakeholders to visit laboratory offices in order to
review environmental computer codes and any other related project information.
2.3. RECOMMENDATIONS
2.3.1. Overview and Scope
The Committee recommends three improvements to the current process for disseminating and exchanging
information with affected stakeholders including:
1) developing agency information dissemination policies;
2) encouraging affected stakeholders to portray accurately the status of documents or other
information that they receive in draft form; and
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3) establishing a central point of contact within agencies for assisting in disseminating
information.
The recommendations contained in this section are intended to apply broadly to all FFER activities,
regardless of the statute under which they are conducted. For example, the recommendations that are
presented in this section could be applied to clean-ups conducted under CERCLA, RCRA, BRAC, FUDS,
UMTRA, and FUSRAP, as well as other state and federal requirements, as described in Section 1.4.2.
2.3.2. Information Dissemination Policy
To address deficiencies and inconsistencies in the present process, the Committee agrees that federal
agencies need to take proactive measures to involve stakeholders and to respond effectively to requests
for information. To this end, the Committee first and foremost recommends that each agency work with
stakeholders to develop policies or procedures delineating the process and timetable for disseminating
environmental restoration related information, including information prepared by contractors and
government employees.
All Committee members agree that the policies should include, at a minimum, detailed language to
implement the following provisions:
a) Make environmental restoration documents that are considered deliverables under
CERCLA Federal Facility Agreements (FFAs), RCRA corrective action permits, or other
regulatory instruments available to the public at the same time that the agency submits
these documents for formal review to state, tribal, and/or federal regulators.
b) Regarding the release of all other FFER related information, define the different types
of data and information that the agency produces and relies upon in the FFER decision-
making process and establish definitive time frames for release of each category of data.
c) On a timely basis, provide information that federal agencies use in, or that is pertinent
to, environmental restoration decision-making. To the extent that the release of such
information is restricted because it is classified or exempted from FOIA, the agency will
either promptly declassify or reclassify the material such that it can be released, or
explain why it cannot be released.
d) Disseminate information, interpretations, and proposed direction to advisory groups such
as site-specific advisory boards (SSABs), Technical Review Committees (TRCs), and
recipients of Technical Assistant Grants (TAGs) to ensure effective involvement in the
evaluation of options.
e) Inform agency personnel responsible for environmental restoration of the agency policy
on information flow. The policy should emphasize the importance of public participation
and the need for timely, substantive responses to maintain public credibility.
The Committee recommends that such guidance be sufficiently detailed to: 1) ensure that individuals at
all levels in the departments clearly understand the guidance; 2) provide the public with the support
necessary to clarify the scope of their information requests in the event that any conflicts arise; and 3)
include a mechanism to ensure that the established time frames and policy provisions are met.
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2.3.3. Citizen Use of FFER Information
The Committee recommends that public participants should portray accurately the status of documents
or other information that they receive in draft form. In particular, the public has an obligation to
recognize and note the preliminary nature of draft materials and to use and distribute these documents
within this context only.
2.3.4. Central Point of Contact Within Agencies
The Committee recommends that regulated agencies should designate central points of contact to serve
as visible and accessible advocates of the public's right-to-know. The role of this contact is twofold.
The first is to investigate and attempt to resolve complaints promptly from individuals or groups who
assert that the agency is not responding to their requests for information in a timely or complete manner.
The second purpose is to identify -- through the effort to resolve citizen grievances - deficiencies in the
information-handling functions and policies of the agency and, when appropriate, suggest changes to
improve both the timeliness and quality of responses.
Agencies may choose to implement this recommendation in different ways to account for the differences
in the magnitude of clean-up problems and the different structures of the organizations. Please refer to
the boxes below regarding proposed implementation techniques at various agencies.
NOTE: Although all Committee members agree that the proposal to establish a central
point of contact within agencies is a positive step, several members expressed concern
that the Interim Report does not go far enough to ensure that this central point of contact
plays a productive role. In particular, many participants support the idea that the larger
agencies instead establish an independent ombudsperson. These Committee members
advocate that an ombudsperson who would serve as an independent public advocate could
offer more accountability to the agencies in a manner that is quicker, more
comprehensive, and more credible than having an internal agency official serve this role.
DEPARTMENT OF DEFENSE
DOD is in the process of creating regional environmental coordination offices that
would serve a number of coordinating functions among all the military services
and DOD installations within an area that corresponds to the EPA regional offices.
These "offices" are intended to streamline duplicative functions and improve
communication on environmental related matters not only among the services, but
also with environmental regulatory agencies and the public. They would serve as
central points of contact to raise and resolve matters related to the inability to gain
access to relevant data associated with clean-up actions.
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DEPARTMENT OF ENERGY
The Office of Environmental Restoration and Waste Management (EM) has
recently developed a public participation policy to ensure that EM provides
opportunities for meaningful, substantive, and early participation in its activities
by stakeholders and interested members of the public. To help implement this
policy, assistant managers for EM, or their designees, are being identified as EM
public participation liaisons. Their responsibilities include: coordinating site
public participation activities to ensure a coherent, comprehensive, coordinated
program so that the public is not confronted with multiple, overlapping,
disconnected participation opportunities; identifying resource and training needs;
helping to ensure that site public information and education materials support and
are compatible with public participation activities; and interacting and coordinating
with headquarters on public participation activities.
To respond to the recommendation of the FFER Dialogue Committee, DOE
proposes to expand the role of the public participation liaisons to serve as the
central point of contact for EM information requests at the field-level, and be
charged with the responsibility to provide stakeholder groups with requested
information in a timely fashion to facilitate their involvement in EM decision-
making. Should stakeholder groups experience problems with accessing
information through the field EM public participation liaisons, the director of the
EM Office of Policy and Program Information should be notified and he or she
would then take the necessary steps to ensure that DOE fulfill all reasonable
information requests given regulatory, budgetary, and policy constraints.
DEPARTMENT OF THE INTERIOR
DOI has nine Regional Environmental Officers (REOs) located throughout the
United States who serve to coordinate with field offices of the nine DOI bureaus,
the EPA, state and local governments, and the public. These REOs serve as field
representatives of the Office of the Secretary of the Interior to help resolve
disputes, including dispute over FFER information dissemination issues, and to
elevate issues to senior DOI management.
DEPARTMENT OF AGRICULTURE
The USDA-Forest Service has environmental engineers located at nine Regional Offices
throughout the United States who have designated responsibility for environmental
pollution prevention, control, and abatement. The Forest Service is in the process of
designating an individual in each Region who will have specific responsibility for
coordinating CERCLA clean-up activities. Other USDA agencies with smaller programs,
such as the Agricultural Research Service, have designated an individual at their
headquarters level as the contact point for environmental restoration activities.
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2.4. IMPLEMENTATION STRATEGIES
To provide an effective, responsive means of ensuring that public information needs are met, agencies
should consider implementing some combination of the following options:
1) With regard to providing a single point of contact at each agency for FFER related
questions, establish an "800" number for citizens to call and request information on
environmental restoration projects may help in this process.
2) Develop and maintain a mailing list of interested parties for ea:h facility.
3) Hold meetings to inform the public about the initial discovery of contamination at a
facility.
4) Where substantial public interest exists, hold meetings at the formative stages of FFA negotiations
when the first conceptual outline of the technical requirements is developed. Agencies may also
hold additional meetings at later stages in the negotiations when public involvement can still
provide useful input to the negotiations. These meetings should also be used to update citizens
on negotiations and clean-up activities. In addition to announcing public meetings in the local
paper, individuals on the mailing list should be notified.
5) Develop annual bulletins that provide updated information on progress at a site or group
of sites. Bulletins should be distributed to individuals on the mailing list and in response
to requests for information from the public. Depending upon the particular public
interest at an installation, the facility may develop special, more in-depth "reports" for
significant events or milestones. In some cases, a regular newsletter may be appropriate.
6) Make technical documents available on loan from the agency, when possible.
Administrative records should also be available through public reading rooms in local
libraries. If a large number documents exist in the administrative records for a site,
indices, along with microfiche and/or computer disk storage and access, should be
available in public reading rooms.
7) Where practicable, have the government employees responding to requests for
information contact the requesting parties to facilitate the process. A direct conversation
should help refine and focus the request. This will help ensure that the requesting party
receives the actual information they are seeking and may help minimize the disruption
and demands upon government resources.
The above recommendations are intended to improve the current processes for exchanging information
with interested parties. The Committee notes that these measures should ensure that any citizen or
stakeholder can receive a base level of information at any site, regardless of its size or potential hazard,
on a timely basis.
The following section focuses on establishing fora for stakeholders who desire to receive more detailed
information on the events at a site and to be actively involved in providing input into decision-making.
The Committee intends for these recommendations to be most crucial at large or particularly controversial
or difficult sites where citizens want to be intimately involved with the ongoing clean-up efforts.
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3.0. RECOMMENDATIONS FOR IMPROVING THE PROCESS OF SOLICITING INPUT
FROM AFFECTED STAKEHOLDERS
3.1. BACKGROUND AND STATEMENT OF NEED
As federal agencies have instituted massive environmental restoration programs designed to investigate
and remediate contamination at their facilities, there has been a growing desire by those affected by these
clean-up efforts (who are referred to here as affected stakeholders) to have a greater role in the clean-up
decision-making process. This desire for a greater role is a result of many factors, including an increased
awareness of the environmental and health effects of contamination at federal facilities sites, a recognition
of the complexity and scientific uncertainty surrounding many decisions at sites, and a mistrust of the
government's intentions to consider the concerns of local citizens sufficiently.
In response to this concern for a greater role in the decision-making process, various statutory,
regulatory, and other mechanisms have been established to help solicit input from affected stakeholders.
Historically, however, these opportunities for citizen involvement have been inconsistent and have not
necessarily provided for a meaningful dialogue between participants. Among the issues of greatest
concern to these stakeholders are:
1) Affected stakeholders have not been substantively consulted in the early stages of
decision-making. At sites where FFAs have been negotiated, for example, public
comment has typically been solicited only after the signing agencies have agreed to
circulate a draft agreement. The perception is that the public is consulted only after the
key decisions have been negotiated by the agencies.
2) The laws governing the generation and disposal of wastes did not contemplate problems
of the complexity and scale that exist at federal facilities. The public involvement
mechanisms in these laws tend to focus on the specific proposal at issue, and do not
allow consideration of how that proposal may relate to other proposed or existing
activities.
3) Compounding the problem of late public involvement in decision-making is the lack of
opportunity for meaningful dialogue in the formal comment and response process used
in the regulatory decision-making process. Some perceive there is a strong tendency for
this process to serve the needs of agencies to defend decisions rather than incorporate
common or insightful concerns into decision-making. Likewise, it does not allow for an
interactive and substantive exchange that promotes better understanding and consensus-
building.
4) Finally, the burgeoning number of public involvement opportunities — including NEPA,
those required by regulators in permitting, FFA processes, and other voluntary and
required facility-sponsored events - is in many instances overwhelming and dissipates
the public's ability and interest to participate effectively. There is a need to focus,
coordinate, and streamline, where possible, the public involvement process especially at
larger sites involving literally dozens of permitted units.
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The net result is that many stakeholders consider the current methods for soliciting input to be too late
in the process, inefficient due to overlap with other efforts, and ineffective because the result is often a
one-way communication instead of a two-way dialogue.
3.2. DEMONSTRATED SUCCESSES OF SITE-SPECIFIC ADVISORY BOARDS
Site-specific advisory boards (SSABs), as the term is used in this report, are independent public bodies
established to provide policy and technical advice to the regulated and regulating agencies with respect
to key clean-up decisions. The Committee believes that such boards can improve the decision process
by:
1) Providing a setting for direct, regular contact between agencies and a diverse set of
stakeholders;
2) Providing a forum for stakeholders and agencies to understand the competing needs and
requirements of the government and the affected communities;
3) Providing a forum for discussing citizen issues and concerns, thus enabling the
development of a more complete and satisfactory plan or decision;
4) Enabling citizen review and the evaluation of plans and their technical adequacy in more
depth than is possible in most single opportunity public participation efforts;
5) Permitting a more detailed consideration of issues than is possible as a result of the
minimal legal requirements identified in various state and federal laws; and
6) Broadening consideration of issues to include values as well as facts.
For these reasons, both citizens and federal agencies will benefit from the creation of SSABs. Such
boards provide unique opportunities for public participation in the decision-making process for
environmental restoration, either not found or not fully available in more traditional fora such as public
hearings or public meetings. There have been some exceptional examples of circumstances where the
public has been successfully allowed and encouraged to advise the decision-making process. The
information in the box below provides an example of the effective use of a site advisory board.
3.3. RECOMMENDATIONS REGARDING THE ESTABLISHMENT OF
SITE-SPECIFIC ADVISORY BOARDS
3.3.1. Overview and Scope
In order to realize the benefits of citizen/federal agency interaction, the Committee believes a process is
needed that accomplishes the following goals:
• consistent opportunity for involvement;
• regular, early, and effective public participation in federal clean-up programs; and
• consolidation of the many public involvement initiatives addressing clean-up.
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THE MOFFETT MODEL
Moffett Naval Air Station, Pacific headquarters for the Navy's subchasing P-3C
"Orion" aircraft, sits in the heart of Silicon Valley, at the southern edge of the
San Francisco Bay. Its 26 Installation Restoration Program sites include a
massive plume of shallow groundwater contaminated with TCE and other volatile
organic compounds. The plume, shared with electronics industry Superfund sites
just to the south, threatens local drinking water supplies as well as the Bay and its
wetlands.
The Navy first discovered contamination in 1983, and the base was added to the
NPL in 1987. In 1989-1990, when Moffett first negotiated its interagency
agreement with state agencies and the EPA, community groups, area newspapers,
and the other Superfund parties called the Moffett timetable too slow.
In early 1990, the base commander, Captain Tim Quigley, established a Technical
Review Committee (TRC), composed of Navy personnel, regulators, and
representatives of the local community, including the Silicon Valley Toxics
Coalition (SVTC). Quigley established an active community relations program,
disseminated fact sheets, and shared more detailed technical information upon
request.
Through the TRC and other community relations activities, local residents and
their representatives gained respect for the Moffett clean-up program, but the
SVTC and others remained critical of the remediation schedule. They took their
case to the press, elected representatives, and Defense Department officials.
Informed by participation in the TRC, they focused on the so-called "regional"
TCE plume.
In late 1991, after Moffett was approved for closure, the Navy proposed dividing
Moffett into six distinct operating units. Clean-up of the main plume, the highest
priority operating unit, was accelerated three years. This solution has won praise
from all parties. The SVTC believes that the Moffett experience shows that if you
give activists a "seat at the table," they can participate effectively in the setting of
clean-up priorities. SVTC has applied to EPA for a Technical Assistance Grant to
aid in its involvement in the clean-up process.
The Committee recommends that, as an important step toward achieving these goals, the agencies should
establish and make use of SSABs, where appropriate and practicable. The Committee believes that
SSABs will improve the effectiveness and consistency of public involvement at federal facility sites by
providing focused and timely advice to the regulated and regulating entities on environmental restoration
activities occurring at the site level. The recommendation is to have, at most, one SSAB at any facility
or group of facilities to help coordinate advisory efforts and decision-making initiatives.
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The Committee wishes to make clear that SSABs should be used to complement rather than duplicate or
supplant broader site level FFER public involvement initiatives. Nor is it the Committee's intent that
SSABs should be established at all federal facilities or sites where clean-up activities are taking place.
Rather, such boards should be established on an as-needed basis, as is described below. In addition, such
boards should in no way hinder or impede the effectiveness of broader public involvement activities,
including those that are required by law and those that are not. Not every affected stakeholder will have
the time or inclination to participate in SSABs and the Committee believes that it is vitally important that
all members of the public be afforded their full rights and privileges with respect to public involvement.
The following recommendations detail when SSABs should be established and propose a model approach
to implementing this recommendation. The Committee believes that it is essential for the federal agencies
to work closely with local communities to ensure that SSABs reflect and are responsive to local
community needs and concerns. The Committee recognizes that the recommendations in this Interim
Report will need to be tailored to meet the needs of each federal site and its local stakeholders.
The recommendations contained in this section are intended to apply broadly to all FFER activities,
regardless of the statute under which they are conducted. For example, the recommendations that are
presented in this section could be applied to clean-ups under CERCLA, RCRA, BRAC, FUDS, UMTRA,
and FUSRAP, as well as other state and federal requirements, as described earlier in Section 1.4.2.
3.3.2. When Site-Specific Advisory Boards Should be Established or Restructured
The Committee recommends that agencies form SSABs at sites where no advisory committee currently
exists and where there is a need as evidenced by:
• an affected local, state, tribal or federal government entity requesting the establishment
of an SSAB; or
• at least fifty residents of the community or region in which a site is located signing a
petition requesting an SSAB.
Where site advisory boards already exist, the Committee intends for its recommendations to build upon
existing groups and not to supplant them, particularly where they have proven successful.6
State and federal agencies will need to assess their existing public participation initiatives addressing
environmental restoration issues to determine the extent to which they operate according to the model
described below, and then implement the recommendations where needed. For example, where an
advisory board, committee, or group currently exists for addressing clean-up issues, agencies may need
to increase the scope of issues to be addressed by the group, add members to ensure representation of
a wider constituency, change the way in which the group interacts with the general public, etc., in order
to be consistent with these recommendations. When more than one group exists, agencies should consider
consolidating their activities.
Regardless of whether or not a site advisory board currently exists at a site, the Committee does not
intend for the implementation of SSABs to be a replacement or substitute for current public involvement
activities such as community relations plans under CERCLA or the legally required public involvement
in the Record of Decision (ROD) process. SSABs would be complementary to existing public
6 Currently, only the DOD is required by law to establish site advisory boards. See Appendix D
for more detailed information regarding these statutory requirements.
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involvement requirements. As such, they are not intended to hinder the continued ability of citizens to
comment and participate individually or in groups of their own selection.
3.3.3. Model Approach to the Formation of SSABs
The following model approach to the formation of SSABs is intended to serve as an example for how to
establish SSABs at sites where they do not currently exist and as guiding principles for how existing
advisory groups should be revised to be consistent with these recommendations. These recommendations
build upon the lessons learned from both the successes and failures of other site advisory boards. In
addition, the Committee believes that its recommendations are sufficiently broad to permit flexibility for
each agency and the affected communities to adapt them to their own circumstances.
a) Charter
A charter outlining the mission and duties of the SSAB should be developed at each site. It should
provide for SSABs to advise both the regulated and regulating agencies on key policy and technical issues
and decisions related to environmental restoration at the site. The Committee discussed the potential
application of the Federal Advisory Committee Act (FACA) to the recommended SSABs. The Committee
believes that the approach that it has taken is consistent with the spirit of FACA to create advisory
committees that are balanced and subject to an open and fair process. Because of this, and in order to
facilitate the implementation of these recommendations and avoid unnecessary administrative burdens,
the Committee does not believe that it is necessary or prudent to charter SSABs as federal advisory
committees. This is consistent with the current practice with DOD's Technical Review Committees and
numerous other site-level efforts where advice is given to federal agencies.
b) Scope
In all federal departments, environmental restoration issues are often integrally linked with waste
management issues. Also, the people within the communities surrounding federal facilities that are
concerned about environmental restoration issues are also likely to be the same people who are concerned
about other environmental management issues at that site. The Committee recognizes there may be
pressure to use SSABs as a "sounding board" for site-level environmental issues that go beyond
environmental restoration. The Committee believes it is vitally important that SSABs not become the
general community advisory board for any and all environmental or other issues of concern to
communities that surround federal facilities. For example, the Committee believes SSABs should not be
used to address land and wildlife management issues that are not related to environmental restoration.
However, the Committee does recommend such Boards be used to address waste management and
technology development issues that are related to environmental restoration.
In focusing on environmental restoration, the boards should provide advice on issues related to:
• identifying clean-up activities and projects (including those necessary to meet regulatory
requirements such as milestones in FFAs);
• tracking progress on those activities/projects (as per the recommendations contained in
Section 4);
• providing information and perspectives on clean-up priorities;
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• addressing important issues related to clean-up, such as land use, level of clean-up,
acceptable risk, and waste management and technology development issues related to
environmental restoration; and
• developing clean-up strategies.
The SSABs should have the discretion to hear presentations on the social, economic, cultural, aesthetic,
and worker health and safety effects of environmental restoration and waste management and technology
development issues related to environmental restoration. In addition, the Committee agrees that SSABs
may hear presentations on other environmental management decisions that SSAB members regard as
relevant and appropriate.
c) Role of Regulated and Regulating Agencies
As stated above, the SSAB is intended to be a forum through which advice can be given to both the
regulated and regulating agencies on environmental restoration and waste management and technology
development issues related to environmental restoration.7 As such, senior representatives of both
regulated and regulating agencies should serve as "ex-officio" members of the SSAB. The term ex-officio
is used here to imply that representatives of these agencies should attend SSAB meetings and participate
in SSAB discussions. However, because the advice to be given by the SSAB will be directed at their
agencies, these agency representatives should not take part in any decisions about what advice should be
given.8
The regulated agency should serve as the host of the SSAB and should provide administrative assistance,
meeting facilities, etc., as necessary. Also, because of the important role that operations and maintenance
(O&M) and environmental restoration contractors often play in actually conducting environmental
restoration activities on behalf of regulated agencies, agencies should include contractor representatives
as part of their team. However, because contractors serve as subordinate agents of the regulated agency,
the Committee agrees that contractor participation in SSAB discussions should never serve as a substitute
for the participation of senior representatives of the regulated agency. Contractor salaried employees
(i.e., those in managerial positions) should not serve as members of SSABs.
d) Membership and Membership Selection Process
The Committee recommends that SSABs should reflect the full diversity of views in the affected
community and region and be composed primarily of people who are directly affected by site clean-up
activities. Thus, in addition to regulated and regulating agencies serving as ex-officio members, the
7 As used here and elsewhere in this document, the terms regulated and regulating agencies refer to
those agencies that are either regulated or serve as regulators regarding site level environmental
restoration activities. In the case of regulating agencies, the Committee assumes that this will principally
include state and federal regulators and, where applicable, tribal regulators.
8 Similar to the recommended role of state and federal regulators of environmental restoration
activities, where any other government agencies participate on SSABs they should operate in an ex-
officio capacity (by not taking part in SSAB decisions about what advice should be given) on matters in
which they serve as regulators.
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Committee recommends the following affected stakeholders be given primary consideration for SSAB
membership:
• individual residents that live in the communities or regions in which a site is located;
• representatives of citizen, environmental, and public interest groups whose members live
in the communities or regions in which a site is located;
• workers or representatives of workers involved in or affected by clean-up operations at
the site, with a priority for clean-up and production workers who are currently employed
at the site; and
• representatives of Indian Nations and other indigenous people that have treaty or statutory
rights that are affected by clean-up activities at the site.
The Committee recommends that in order to address environmental equity concerns, special efforts should
be made to provide notice and opportunity to participate for people who are or have historically been
disproportionately impacted by site contamination.
In some cases, potentially responsible parties (PRPs) from the private sector that are directly involved
in or affected by site clean-up activities could be added as ex-officio (non-voting) members at the
discretion of the SSAB. The Committee believes that participation on an ex-officio basis is appropriate
because PRPs may stand to benefit or gain financially from decisions of the SSAB. For example, at
Moffett Field (which is described above) contamination from sites owned by private sector PRPs has
mixed with the ground water plume from Moffett Field. Because clean-up activities at these private sites,
from a technical perspective, must be addressed in conjunction with Moffett Field clean-up activities,
these PRPs can be said to be "affected by" the federal facility clean-up efforts. In other cases, companies
have been named as PRPs for the actions they took on federal facilities, such as in the case of Shell Oil
at the Rocky Mountain Arsenal. In these cases, such PRPs can be said to be "directly involved in" the
clean-up activities at the site. In both cases, these private sector PRPs should be distinguished from the
O&M and environmental restoration contractors for the regulated agency, whose proper role is described
in Section 3.3.3.c) above.
The Committee recommends that the size of the boards should be limited to promote efficiency and
encourage participation, while also ensuring that the major stakeholders or groups of stakeholders are
adequately represented. With some exceptions, given the wide variety of circumstances, the Committee
believes the optimum size for SSABs will typically be 10-20 people, not including the ex-officio
members. Every effort should be made to include divergent interests and viewpoints, regardless of
technical expertise. The Committee recommends that appropriate qualities for an SSAB member include:
• an ability to focus on environmental restoration issues irrespective of any interest in or
concern over other issues that are unrelated to environmental restoration; and
• a willingness to devote the time necessary to serve on a board.
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In order to ensure confidence and trust in the establishment of SSABs fhat represent the full diversity of
views within a community on FFER issues, the Committee recommends an SSAB membership selection
process that has the following features:
1) Regulating agencies shall actively and publicly solicit nominations for SSAB membership from
interested individuals and organizations, ensuring that ample notification is given to those with
an active interest or obvious stake in environmental restoration activities at the site.9 Such
notification should also be given to national organizations that have expressed an interest in that
agency's environmental restoration program.10 Interested organizations and individuals,
including those whose nomination has not been solicited by the regulating agencies, should submit
nominations for SSAB membership to the regulating agencies. Furthermore, the regulating
agencies shall solicit nominations from the governor, local congressional representative(s), state
legislators, and affected county, city, and tribal governments.
2) Based on the criteria set forth above, the regulating agencies should review all nominations,
submit a proposed list of SSAB members to the regulated agency, and make this list publicly
available. Furthermore, this list should be mailed to all who were nominated or submitted
nominations.
3) The regulated agency shall accept the recommended list of SSAB participants unless it determines
that the list does not ensure a sufficient diversity of viewpoints or an appropriate balance of
affected interests. Decisions of the regulated agency to accept or reject the proposed list must
be made and explained openly and publicly. Once again, all who have been nominated or
submitted nominations as per Step 1 should be notified of the decision of the regulated agency.
4) If the regulated agency rejects the proposed list, the regulating agencies, with the advice of
federal, state, tribal, and local government representatives, shall propose, and make publicly
available, an alternative list that addresses the specified imbalance or lack of diversity.
5) If SSAB membership selections issues have not been resolved after step 4, the regulating and
regulated agencies will refer the matter to higher levels of authority within their agencies for final
resolution.
SSABs, once established, should develop procedures for adding, replacing, or removing Board members.
In doing so, the SSAB should consider carefully the need to assure that the Board does not become too
large so as to be unmanageable and that the full diversity of views in the community/region are fairly
represented. Procedures for adding new members should give special emphasis to:
• interests that, in the view of the SSAB, are not adequately represented at the time of the
initial formation of the SSAB; and
9 The Committee believes that ample notification can best be accomplished by the regulated,
regulating, and affected agencies and institutions jointly pooling their resources to develop a contact list
for purposes of soliciting nominations for SSAB membership.
10 Notification of national organizations is for the purpose of allowing those organizations to
themselves notify any local members who may have an interest in participating on an SSAB.
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• expressions of new interests that may not have existed or were not considered at the time
of the initial formation of the SSAB.
Notwithstanding the recommended role of the SSAB on these matters, it remains the obligation of all
participants — including the regulated and regulating agencies — to ensure the membership of the SSAB
is composed of a manageable number of people, is properly balanced, and adequately represents the
diversity of views within the affected community.
e) Interaction with the Public
As noted above, SSABs operate in a larger context in which members of the public, who may not have
the time, resources or inclination to participate on an SSAB, must be kept adequately informed of and
involved in clean-up decisions that affect their lives and their communities. As such, SSABs should
conduct their activities in a manner that complements rather than duplicates or supplants broader public
involvement efforts, some of which will be legally required. To this end, members of the SSAB, along
with the participating regulated and regulating agencies, should make every effort to coordinate the timing
and focus of SSAB activities with the need for broader public involvement activities. The Committee
encourages regulated and regulating agencies to use the SSAB to obtain advice as to how and when such
broader public involvement activities should be conducted. In addition, in order to maintain trust and
accountability, interested members of the public should be notified of SSAB meetings, SSAB meetings
should be open to the public, and some type of record documenting the meetings should be made
available to the public. Finally, SSABs should provide opportunity for public comment at their meetings
and should make every effort to respond to both written and verbal comments that are submitted to it in
a timely manner.
0 Operating Procedures
At the establishment of each SSAB, SSAB members as a group should develop appropriate ground rules
and operating procedures to allow for the efficient and productive operation of the group. Each SSAB
should consider establishing procedures regarding the following:
• Determining explicitly how the SSAB will make decisions about what advice and
recommendations it should give and, in particular, how to ensure that minority or
dissenting views are addressed;
• Naming a chairperson, hiring a coordinator, or appointing an independent facilitator, as
deemed necessary by the SSAB, whose principal role would be to ensure that:
SSAB meetings are run effectively and in a manner that is consistent with the
SSAB's agreed upon ground rules;
the board maintains its focus on environmental restoration issues and waste
management and technology development issues related to environmental
restoration; and
whatever logistical and administrative tasks that the SSAB determines are
necessary to play its advisory role effectively are accomplished.
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• Forming subcommittees where and when it is appropriate;
• Providing training to SSAB members regarding relevant regulatory processes;
• Determining what type of public record is kept of meetings (video, minutes, general
summary, etc.);
• Establishing procedures for adding, replacing, and removing SSAB members;
• Deciding what, if any, terms, rotational schedule, term limits, or use of alternates are
appropriate to help ensure a balance of interests and continuing opportunity for and
access to SSAB participation; and
• Determining when the work of the SSAB is comnlete or the overall interest in
participating has diminished to such a level that the SSAB should be dissolved.
In addition to the above, the regulated agency shall establish and make public operating procedures that,
to the extent possible, attempt to ensure continuity in the availability of the staff who are principally
responsible for interacting with the SSAB.
g) Accountability
Federal agencies and regulators should respond to recommendations and advice from SSAB members by
providing information on which recommendations or advice can be implemented, which need to be
modified in order to be implemented, and which cannot be implemented. The SSABs may request a
written response to any recommendation or advice made by its members. SSABs and agencies should
maintain a record of recommendations or advice made by the board and the status and substance of all
responses. SSABs also have the responsibility to respond to issues raised by the regulated agencies. A
log of such issues and responses should be kept.
Members of the SSAB have a responsibility to share information with and provide feedback from the
constituencies they represent. In addition, members have an obligation to attend all SSAB meetings to
the extent possible. Finally, members of SSABs have a responsibility to portray accurately data or
information provided to them as members of the SSAB. If members distribute documents to others
outside of SSAB, they must indicate the preliminary or draft nature of the document.
h) Administrative and Technical Assistance Funding
NOTE; Representatives of DOD have indicated that they wish to take the
recommendation of all other Committee members that are specified in 3.3.3.h) under
advisement. For this reason, any references to the "Committee" in this section of the
report do not include DOD representatives. When and if DOD accepts the general
recommendation of other Committee members to provide administrative and technical
assistance funding to SSABs, the Committee agrees that it will revisit the more specific
question regarding appropriate funding levels for DOD sites and that these funding levels
should address both the large number of and greatly varied conditions that are found at
DOD-managed sites.
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The Committee recommends that the regulated agency should provide SSAB funding for both
administrative support and technical assistance in order to ensure meaningful public involvement. The
first two sections that follow outline the general principles the Committee agrees to regarding each type
of funding. The last section discusses a number of funding implementation issues.
(i) Administrative Funding
The Committee recommends that regulated agencies provide funding to cover the routine administrative
needs of SSABs that will allow them to operate efficiently and effectively, such as meeting space,
document duplication, mailings, etc. The Committee agrees that funds should be provided for per diem
and travel expenses of local SSAB members who must travel to meetings, hiring a coordinator or
independent facilitator (where deemed necessary by the SSAB), and other similar administrative expenses
necessary for SSAB business. The Committee does not support providing funding for SSAB members'
salaries or honorariums.
The Committee recommends that regulated agencies should work with SSABs to establish a limit or
ceiling on administrative costs for each SSAB. SSABs should be responsible for establishing priorities
and allocating the administrative funding provided.
(ii) Technical Assistance Funding
Committee members agree that neighbors of major hazardous waste sites often lack the technical
resources to monitor and comment effectively on the technical aspects of investigation and clean-up at
their sites. Thus, the Committee supports providing funding for technical assistance to the non-
governmental SSAB participants to help ensure more effective and meaningful participation, especially
as it relates to SSAB review and comment on technical reports and documents being developed by the
federal facility managers and their contractors. In addition, the Committee recommends that SSABs'
technical assistance funding should be used to provide local training courses to educate SSAB members
regarding relevant regulatory processes.
The Committee agrees that it would be appropriate for SSABs to use technical assistance funding to
provide travel, per diem, and compensation to technical experts and researchers from national public
interest organizations, universities, or private consulting firms to attend one or more SSAB meetings to
assist the board in discussions and deliberations involving technical issues.
The Committee also agrees that technical assistance funding should be used to complement, rather than
duplicate, the technical programs of both the regulated and regulating agencies. Therefore, SSAB
technical assistance funds may not be used to perform additional sampling, to underwrite legal actions
in any way, including the preparation of testimony or the hiring of expert witnesses. Also, the work of
any SSAB technical consultants must occur concurrently with the on-going efforts of the regulated and
regulating agencies so as not to slow down or impede the process. It is the responsibility of the regulated
agency to help coordinate this review process and to provide information willingly to expedite the
soliciting of input from the SSAB and SSAB technical consultants.
(iii) Funding Implementation
The administrative and technical assistance funding support recommended by the Committee is intended
to build upon the principles of the existing Technical Assistance Grant (TAG) program under CERCLA
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by: 1) connecting the use of such funds to the activities of the SSAB and, in particular, to the technical
assistance needs of the citizen participants in the SSAB;11 2) linking funding amounts to the magnitude
and complexity of clean-up at each site; 3) providing funding for administrative support and technical
assistance; and 4) providing funding for non-NPL sites that have established SSABs, as per the procedures
specified above, as well as at NPL sites with SSABs.
The Committee recommends that individual SSABs and the regulated agency providing the funds should
work together to determine an appropriate mechanism for making administrative and technical assistance
funds available to the citizen members of the SSAB. Whatever approach is selected should ensure that
decisions regarding the administration and use of such funds be made by the citizen members of the
SSAB, in accordance with the guidelines specified above. Possible mechanisms identified by the
Committee include:
1) Channeling the funds through a member of the SSAB that represents a public interest and/or
citizen-based organization that has non-profit legal status who would administer the funds in a
timely and accountable manner;
2) Channeling the funds through a non-profit organization that is or has been created for the explicit
purpose of serving as a legally responsible fiduciary and administrator of the funds;
3) Channeling the funds through an independent entity, such as a university or accounting firm, that
is mutually agreed upon by the citizen members of the SSAB and the regulated agency that is
providing the funds; and
4) Channeling the funds through a state or local government agency that is both capable and willing
to administer the funds in a timely and accountable manner.
The above options should not preclude the possibility of the citizen members of the SSAB negotiating
procedures with the regulated agency for direct disbursement of administrative and technical assistance
funding. The Committee expects that in some cases, it may be necessary — if only on an interim basis -
- for the regulated agency to oversee the direct disbursement of administrative and technical assistance
funds while the SSAB decides on how to receive funds over the long-term. For the other long-term
options, the participating, newly created, independent, or local/state governmental entity would serve in
a legally responsible fiduciary capacity, administering the funds in a manner to be decided by the citizen
members of the SSAB, in accordance with the guidelines specified above.
In order to avoid duplication of effort, the Committee recommends that after an SSAB is established it
will not be necessary to award grants under the existing CERCLA TAG program. In particular, the
Committee recommends that TAGs should not be awarded to organizations that choose not to participate
in SSABs. The Committee wishes to make absolutely clear, however, that in situations where SSABs
are established and organizations have received TAGs in the past, such organizations would not only be
11 The Committee does not intend for control over this technical assistance funding to be shared by
private sector responsible parties or contractors who may be participating in the SSAB. Also, consistent
with the TAG program, no group (other than the SSAB) created or sustained by a PRP or the regulated
federal facility shall benefit from the technical assistance funding to be provided as a result of these
recommendations.
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eligible for participation on the SSAB, they are likely to be prime candidates for SSAB participation
because they have already evidenced an active interest and involvement in clean-up issues at the site.
Furthermore, where SSABs have not been established, it is the Committee's view that community groups
would still be eligible to receive TAG awards.
The recommended levels and factors to be considered in providing administrative and technical assistance
funding to SSABs are as follows:
• The Committee also anticipates that SSAB technical assistance funding needs will be
proportional to the level of environmental restoration assessment activities at a site in a
given year.
• The Committee believes that typical funding needs will be $50,000 per year, and
normally will not exceed $250,000. Need will be determined based on an application
from the citizen members of the SSAB, and on the approval of the regulated and
regulating agencies. This approval will be based on criteria developed by the regulated
agencies in consultation with stakeholders. To accelerate the implementation of this
program, the Committee urges the regulated agencies to begin this process of consultation
as soon as possible.
• Greater amounts of funding should be provided in the early phases of the FFER clean-up
process in recognition of the fact that technical assistance needs will be greater during
these early phases of the decision-making process. Funding levels should be reassessed
after site remedies have been selected.
• Although the Committee anticipates a typical funding need of $50,000 per year, it is
likely that funding needs will be greater at the larger, more complex DOE sites and, in
some cases, may exceed $250,000 per year.
• It is likely that technical assistance funding at the levels cited above will not be necessary
at minor sites with small clean-up budgets. The level of administrative and technical
assistance funding at such sites, if any, should be determined by the regulated agency in
consultations with the regulating agency and the SSAB. The Committee notes that few,
if any, NPL sites should be considered minor and that many non-NPL sites are major
sites.
• Agencies are encouraged to group together small sites with similar technical concerns,
especially if they are in the same region, to provide common technical assistance funding.
The Committee recommends that the above approach to providing funding for administrative and technical
assistance be reassessed in the early phases of the SSAB program.
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3.4. IMPLEMENTATION STRATEGIES
The Committee recommends that each agency, working with affected stakeholders, should develop
agency-wide policies to ensure that administrative and technical assistance funding levels not be arbitrarily
changed or adversely affected by whatever advice the SSABs choose to give.
At agencies where site advisory boards already are mandated by law, the Committee recommends
building upon existing structures to implement the recommendations outlined here. Also, the Committee
recognizes that some agencies have efforts underway to implement the use of site advisory boards. In
either case, the Committee recommends that the provisions outlined above be adopted and grounded in
policy or guidance whenever possible. Options for implementing these recommendations are suggested
below:
1) At DOD sites, the regulations which implement TRCs could be amended to account for
the additional provisions outlined above, making it clear that SSABs fulfill the SARA
Section 211 requirements for TRCs.
2) At non-DOD sites with existing FFAs, the community relations plans included in
agreements could be amended to provide for the establishment of SSABs upon request
or petition. Also, any party to the FFA could initiate efforts tc amend each of the FFAs
pursuant to the procedures outlined in those agreements.
3) At non-DOD sites where FFAs are pending, the establishment of SSABs may be
incorporated into the community relations plans for these sites. Negotiations on the FFA
should not, however, preclude the earlier establishment of SSABs. Prior to conclusion
of the negotiation of the FFA, EPA and the other parties to the pending FFA should
initiate efforts to notify the public of the option to establish SSABs.
4) At federal facilities or groups of facilities of significant public concern, but not on the
NPL, the Committee suggests that facility operators work in coordination with EPA,
states, and tribal governments to notify the public regarding the potential establishment
of SSABs and designate a contact at the regional or local level for those who may be
interested in preparing a petition for establishing a SSAB.
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4.0. RECOMMENDATIONS FOR IMPROVING ACCOUNTABILITY THROUGH ENHANCED
STAKEHOLDER INVOLVEMENT THROUGHOUT THE FEDERAL BUDGET PROCESS
4.1. BACKGROUND
As federal agencies continue to implement FFER programs at an increasing number of sites, and as these
sites proceed through the clean-up process, the scope of the federal government's clean-up responsibilities
will mount. As sites proceed into the more costly remedial construction phase, the government's total
clean-up funding needs will also increase. The ability of each agency to obtain sufficient funds to ensure
execution of projected environmental restoration activities in a given year will be an important factor in
determining the overall success of the federal government's environmental restoration efforts.
Executive Order 12088 requires federal agencies to request sufficient funds in their budget submission
to OMB to meet all environmental restoration obligations.12 To date, federal agencies have generally
been successful in obtaining sufficient funds to carry out all such obligations, as well as certain additional
essential activities.13
Stakeholder confidence in each agency's environmental restoration program is contingent upon continued
progress on clean-ups and an understanding that the agency has made every effort to plan for and execute
its clean-up obligations. These obligations are usually expressed in some form of a legally binding
obligation, which contains detailed time frames and milestones for required activities. While federal
agencies are indeed committed to meeting these time frames, the practical limitations of the federal budget
process indicate that even the most arduous efforts may not ensure full funding for all FFER obligations.
As a result, there may be times when insufficient funds will prevent full implementation of all FFER
obligations or related, but not required, activities.
The Committee has developed a process that should ensure that such funding shortfalls do not create an
undue burden upon individual sites or stakeholder expectations. By building upon the principles of open
and active involvement described earlier, the Committee hopes the consultation and allocation process
described below will ameliorate the effects of funding shortfalls on FFER programs.
4.2. OBJECTIVE
The primary objective of this section is to establish a credible process for planning and undertaking FFER
activities and dealing with funding shortfalls in an equitable and cost-effective manner. In order to meet
this objective, the Committee has developed a set of recommendations for a process whereby affected
stakeholders are informed of, and to the extent feasible, participate in, important decisions that will affect
the scope of work to be performed at federal agency sites.
12 The term environmental restoration obligations means all legally enforceable or otherwise
applicable federal, state, tribal, or local requirements as those terms are used in the Interagency Review
of the DOE ERWM Program, April 1992. These are usually expressed in statute, treaties, regulation,
permit, order, or Interagency Agreement.
13 For example, though generally not legally required, DOD and DOE have initiated extensive RI/FS
investigations at non-NPL sites. These studies have been essential in m?naging a comprehensive clean-up
program.
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4.3. PRINCIPLES
In recognition of the important linkage between funding availability and work to be performed, the
Committee endorses the active engagement of stakeholders in important FFER decisions. This applies
to all decisions regarding the scope, timing, and priority of activities to be performed, and, to the extent
feasible, budgetary matters. Where affected stakeholders cannot actually be involved in the decision-
making process, they should be advised of relevant decisions to the extent practicable so that they retain
confidence in the federal agency's efforts.
Many aspects of the federal budgetary process are deliberative and are therefore confidential. These
include many aspects of the budget formulation process. However, the Committee recognizes that there
are essential aspects of establishing budgetary requirements that are not confidential and that are subject
to disclosure. This includes most of the information relating to the scupe of activities to be performed.
This is fortunate, as it is the activities that will be performed, and not the amount of funds being
requested, that are of greatest interest to the stakeholders. Accordingly, the process that has been
developed is intended to emphasize communication regarding the scope of activities that the federal
agencies expect to perform.
4.4. OVERVIEW OF THE CONSULTATION AND ALLOCATION PROCESSES
What follows is an introduction and overview of the consultation and allocation processes that have been
developed by the Committee. The recommendations and discussion of these two interrelated subjects are
presented in separate sections of this report, but each bears upon the other and the Committee's
recommendations with regard to each are intended to operate in conjunction with one another.
The consultation process provides for extensive input by the affected stakeholders into the FFER process.
By actively consulting and communicating with stakeholders in the decisions that affect the scope of
activities to be performed, federal agencies will enhance their FFER programs.
In addition to describing a process for timely communication, the Committee has developed a
methodology for allocating funds in the event of FFER funding shortfalls. Described as a "fair share"
allocation, the methodology provides a process for distributing funding shortfalls in an equitable manner.
There are several important variations and caveats to the process, and these are described in much greater
detail below.
Prior to further discussion of the consultation and allocation processes, there are several important terms
that warrant explanation in order to provide the reader with maximum clarity. Terms that are not
described below retain their plain language meaning.
Activity/Project: In order to ensure consistency and accountability for the consultation and allocation
processes, it is important to retain a consistent "unit of analysis." The term "activity/project" is one or
a collection of activities, projects, tasks, or work items that are conducted pursuant to a federal agency's
ER program. These may range from an individual task to the restoration of a collection of individual
hazardous substance sites that are in close proximity.
It is impossible to prescribe a size or scope for activities/projects that will be consistent throughout all
FFER programs. However, the term should define units that will enable accurate tracking and sufficient
accountability of FFER programs. As such, the process of site-level consultation, which is described
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herein, should be utilized to reach consensus on the activities/projects at each site that will meet the goals
of accurate progress tracking and accountability.
Ideally, the identification of appropriate activities/projects at the site level should be at a sufficient level
of detail to enable verification that the agency's budget request package and the President's budget request
to Congress for that agency includes the activities/projects that are necessary to meet budget year
obligations and milestones (required by FFAs, other regulatory documents or the agency's own planning
documents), as well as to ensure adequate progress toward out-year obligations and milestones. Indeed,
the principal purpose of utilizing a unit of analysis at the activity/project level is to enable consistent
evaluation of each facility's ER program progress over time.
Field-Level Manager and National Program Manager: The terms "field-level manager" and "national
program manager" are used throughout this section of the report to connote two distinct levels or types
of decision-making that take place within federal agencies. It is recognized that for some agencies,
particularly DOD and DOI, this nomenclature may vastly oversimplify complexities in the FFER
decision-making process related to the multiple organizational layers within such agencies. Nevertheless,
the terms "field-level manager" and "field-level decisions" are meant to connote decisions and interactions
that take place at the local site/facility/field office level. "National program managers" refer to the level
of management and decision-making that relates to the overall management of a FFER program. In some
departments there may be a multitude of such programs and program managers.
Programmatic Versus Site-Specific Decisions: The Committee is aware of the extremely dynamic nature
of the federal facility environmental restoration decision-making process. Sometimes decisions are made
at the local level (i.e., the site/facility/field office level) that could affect the scope or schedule of an
FFER activity/project. Other times decisions are made within agencies or within the Executive Branch
that are of a programmatic or policy nature. When these types of decisions are made it is sometimes
possible to ascertain whether they will affect the scope or schedule of a particular FFER activity/project.
However, it is probably more typical, because of the nature of these decisions, that it is not possible to
ascertain their potential impact on site-specific FFER activities/projects until such time as the President's
budget is submitted. This is particularly true with programmatic and policy decisions that are made in
the context of the federal budget cycle.
Affected Stakeholders: The terms affected stakeholders or stakeholders will be used throughout this
section in a manner consistent with the intent of the previous sections of this report. Accordingly, where
stakeholders are affiliated with an SSAB, the terms should be used interchangeably. Where no SSAB
exists, then the term stakeholders is intended to refer to the federal agency, regulatory agency, tribal,
public, and other affected parties who are most interested and concerned with the FFER activities/projects
to be performed.
4.5. CONSULTATION PROCESS
4.5.1. Introduction and Scope
Regular and extensive communication and consultation amongst the affected stakeholders is essential to
ensuring that all parties are active participants in the FFER process. Throughout this continuous
consultative process, there are several key points that are important opportunities for the stakeholders to
confer on matters related to the availability of resources to carry out environmental restoration activities.
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The Committee has identified four distinct points within the FFER process at which enhanced
communication among stakeholders is recommended:
Point #1: Initial field-level development of site-level requirements.
Point #2: Submission of the President's budget to Congress.
Point #3: Presidential/Congressional appropriation and agency allocation.
Point #4: Completion of the budget-year execution.
Additional communication regarding resources should also occur, to the extent feasible, throughout the
process, but the Committee has not identified distinct times for consultation other than those listed above.
Rather, the principle stated above, timely and continuous communication of important decisions, should
serve as a guideline for use throughout the entire FFER process, as recommended in Section 4.5.2.
The communication process that is described in this report is intended to enhance stakeholder
understanding and participation in the FFER decision-making process. It is envisioned that the
consultation and communication that is described herein will be conducted primarily at the local level
among representatives of the federal facility and affected stakeholders, such as the SSABs and the
regulators. It is not envisioned that this communication will occur often at the national level.
It is noted that the federal budgetary process is both a multi-year and cyclical process. For the sake of
efficiency, the Committee encourages agencies to coordinate their efforts to implement these
recommendations, such that information on two or more separate budget development and implementation
cycles can be shared at the same time, where practicable and appropriate. This suggestion for
coordinated review and consultation of budget-related information is in no way intended to diminish the
importance of the ongoing and continuous consultation between affected stakeholders, regulators, and site
managers that is recommended in Section 4.5.2. and elsewhere in this report.
The recommendations contained in section 4.5. are intended to apply broadly to all FFER activities,
regardless of the statute under which they are conducted. For example, the recommendations that are
presented in this section could be applied to clean-ups conducted pursuant to CERCLA, RCRA, BRAC,
FUDS, UMTRA, and FUSRAP, as well as other state and federal requirements, as described earlier in
Section 1.4.2. However, as explained below, the applicable scope of the allocation process, which is
described in Section 4.6., is narrower than that which applies to the other recommendations contained
in this report.
4.5.2. Consultation During Program Development and Execution
Recommendation
The Committee recommends that when site-specific or programmatic decisions are made that affect the
ability of a site to meet its clean-up obligations, federal agencies should communicate these decisions to
stakeholders in a timely manner.
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Discussion
The Committee recommends that at any time site-specific or programmatic decisions are made that will
affect the ability of an individual facility to meet its clean-up obligations, these decisions, regardless of
when or in what context they are made, should be communicated in a timely manner to affected
stakeholders at the facility. This recommendation is intended to focus on communicating decisions that
result in changes to the scope or schedule of proposed FFER activities/projects, which in turn affect the
ability of federal facility managers to meet their FFER obligations. The Committee is especially
concerned that decisions that affect the ability of an individual facility to meet FFER obligations that are
specified in legally enforceable agreements, permits, orders, etc., be communicated in a timely manner.
This recommendation builds upon the recommendations and principles contained in the previous two
sections of this report, which address information exchange and the establishment of SSABs. This
recommendation also forms the broader context within which the remainder of the recommendations
contained in this "Consultation Process" subsection (all of which focus on consultation at discrete points
in the FFER budget development and implementation process) should be considered.
It is intended that this recommendation should apply to any site-specific or programmatic decisions,
including those that are made in the context of the budget process. However, this recommendation does
not apply to the numerous deliberative, predecisional considerations and discussions that occur within the
federal government during the development of the President's Budget.
These recommendations are not intended to detract from or diminish the importance of the Committee's
recommendations regarding early and ongoing consultation with affected stakeholders (see Sections 2 and
3). Rather, the focus on communication of decisions in this recommendation is intended to complement
these other recommendations and serve as a means of maintaining trust and credibility, particularly in
those situations where local field-level managers are not directly involved in decisions that may affect
their ability to meet FFER milestones.
4.5.3. Consultation During the Initial Field-Level Developmenf of Site-Level Requirements
Recommendations
The Committee recommends that:
a) Field-level managers should work with stakeholders to define the appropriate unit of
analysis14 and to identify the activities/projects for inclusion in the budget request
package for the national program manager;
b) Field-level managers should share planning cost estimates where practicable; and
c) Stakeholders should treat and portray such planning cost estimates appropriately and
accurately.
14 As discussed above, once an appropriate unit of analysis is identified, the agreed upon
activities/projects should be utilized from that point forward as a means of tracking those same
activities/projects through time.
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Discussion
These recommendations reflect the Committee's recognition of the important contribution stakeholders
can make in advising federal agencies about proposed clean-up activities/projects and their related scope
and priority. The first step in this consultation is the establishment of a common unit of analysis. As
noted, the precise activity/project descriptions that are agreed upon should be at a sufficient level of detail
to enable verification and tracking over time of those activities/projects that are critical to the ability of
the site manager to meet established milestones. The level of detail should also be sufficient to enable
stakeholders to ensure that adequate progress is being made toward meeting out-year obligations and
milestones.
Regarding the type of information that is shared at this time, it is understood that information on the
actual dollar amounts that are included in the activity request package that is submitted by field-level
managers to national program managers for the purposes of developing the President's budget cannot be
provided. This is due to restrictions on the availability of federal budget information prior to submission
to Congress and concerns about providing sensitive information on cost estimates for specific projects not
yet released for competitive contract bids. Thus, this recommendation focuses on the sharing of
information on FFER activities/projects at this early stage of the federal budget cycle rather than the
actual dollar amounts that are being requested by field-level managers as part of their budget request
package.
Although this recommendation focuses on sharing information on the activities/projects that will be
included in field-level submissions, federal agencies, as part of the activity/project planning process,
should share planning cost estimates, to the extent possible. In a number of instances, legislation and
negotiated agreements (particularly pertaining to DOE and DOD) currently require the sharing of final
planning cost estimate information. As noted above, it is agreed that there is an affirmative obligation
on the part of those who receive such planning cost estimates, which may not be of budget quality (i.e.,
the agency has not verified their accuracy), to portray this information as still being in the planning stage.
4.5.4. Notification after the President's Budget Submission
Recommendation
The Committee recommends that as soon as possible after the President submits the budget to
Congress, federal agencies should provide information to stakeholders that disaggregates the
budget to an activity/project level consistent with the level of disaggregation utilized during the
initial field-level development of requirements. Information provided at this point should address
both the scope and dollar amount of proposed activities/projects and should identify which
activities/projects are or are not included in the President's budget in comparison to the
activities/projects specified in the initial field-level consultation.
Discussion
To implement this recommendation, regulated federal agencies should provide information to affected
stakeholders that disaggregates the President's budget to an activity/project level. Disaggregated
information provided at this point in time will enable stakeholders to understand which activities/projects
are still included in the President's budget, as compared to the activities/projects that were identified
during the initial field-level consultation (as per Section 4.5.3. above).
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Information on the proposed funding level for each activity/project that is included in the President's
budget will normally be provided at this stage. There may be exceptional circumstances where this
practice cannot be followed in detail. For example, concerns about providing information on budget
amounts and cost estimates for specific FFER activities/projects not yet released for competitive contract
bids may limit a federal agency's ability to provide information at the level of disaggregation specified
by the agreed upon site-level FFER activities/projects. It is also recognized that it may be difficult to
provide disaggregated information immediately after the submission of the President's budget, but federal
agencies should make every effort to do so in a prompt manner which would allow other stakeholders
to participate in the congressional authorization and appropriation debates.
In addition to providing the information on the activities/projects described above, federal agencies should
provide information to stakeholders, when requested and to the extent such information is available, on
the basis of any changes in the activities/projects that have been requested in the President's budget in
comparison to the initial field-level requirements identification. As noted above, the consultation process
described in this subsection is intended to be performed primarily at the local level, and not in a
centralized manner at the agency headquarters level. However, in order to ensure that the rationale for
changes to the scope or schedule of FFER activities/projects are communicated to affected stakeholders
in a timely manner, this information should be provided by agency representatives at whatever
organizational level within the agency it is available.
4.5.5. Consultation after Presidential/Congressional Appropriation and OMB Apportionment
Recommendation
Field-level managers should communicate the results of agency allocation decisions to
stakeholders. In cases where there is no funding shortfall, the field-level manager should inform
stakeholders of the results of agency FFER budget allocation decisions. In cases where there is
a funding shortfall, consultations and negotiations, as appropriate and as described in Section 4.6
below, should occur.
Discussion
After Congress approves and the President signs a bill to appropriate FFER funds, and the Office of
Management and Budget (OMB) completes its apportionment of the approved budget, national program
managers should allocate funds to the field-level in a manner that is as consistent as possible with the
FFER activities/projects that were included in the President's budget. If the appropriation from Congress
was insufficient or there has been significant unanticipated program growth between the time the
President's budget was developed and appropriations are finalized, agencies should allocate FFER funds
in accordance with the recommendations contained in Section 4.6. below.
The agency should inform affected stakeholders of the actual funds allocated, as well as the projected
scope of activities the agency expects the allocated funds to achieve at each facility. As with the other
discrete points of consultation process described in this section, the information provided should be
disaggregated to an activity/project level. This should include information about which activities/projects
are included in the facility's budget, as compared to the activities/projects that were identified during the
initial field-level consultation, along with information on the budgeted dollar amounts associated with
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these activities/projects. The consultation at this step should be performed in a timely manner to enable
prompt initiation of agreed upon activities/projects.
In the allocation process described below, the Committee has developed a method for allocating funds
in cases where there are insufficient funds to meet all FFER obligations. The recommendation in this
subsection is intended to operate in conjunction with the subsequent recommendation on allocation
strategies by ensuring that, as allocation decisions are made that affect the scope or budget of activities
to be performed, stakeholders are informed or consulted with, as appropriate.
4.5.6. Consultation After Budget Execution
Recommendation
The Committee recommends that federal agencies should provide stakeholders with a status report
on clean-up activities that have been conducted and on funds expended at the end of the fiscal
year following budget execution.
Discussion
At the end of the budget year, the federal facility should communicate to the affected stakeholders the
amount of funds that have been obligated and spent and the work that has been performed. This
information should be disaggregated at the same activity/project level as has previously been described
in order to ensure continuous activity/project tracking. This will ensure a common understanding of the
progress the site is making in meeting its current and future FFER obligations.
4.6 ALLOCATION PROCESS
4.6.1. Introduction and Scope
Federal facility environmental restoration priorities are established and refined at numerous stages and
levels in the FFER decision-making process. The Committee believts that the establishment of more
widely supported federal facility environmental restoration priorities can be accomplished by improving
the overall process by which affected stakeholders are involved in FFER decisions. It is for this reason
that the Committee has included recommendations in this report related to both improving the exchange
of information and involving affected stakeholders in FFER decision-making. However, even with these
improvements there is a need to establish an agreed upon approach to setting FFER priorities in the event
of a funding shortfall.
The Committee believes that the recommendations that follow establish a FFER priority-setting system
that balances the respective interests, responsibilities, and authorities of FFER program managers, state
and federal regulators, tribes, and other affected stakeholders.
The Committee believes that the allocation process it is recommending will establish a competent,
efficient, and cost-effective approach to the allocation of federal facility environmental restoration
resources in the event of a funding shortfall. Such an approach should instill congressional and public
confidence in the management of FFER programs and, thereby, support for these programs. This
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confidence will help promote the federal government's overall goal of enhanced environmental protection
and restoration.
What follows is an explanation of certain concepts that are critical to understanding the recommended
approach to priority-setting and allocation contained in this section. The reader should note that the
applicable scope of the recommendations contained in this section is, for purposes of practicality, more
narrowly defined than that of the previous sections of this report.
Two Different Types of FFER Funding Shortfalls: The Committee identified two different types of
funding shortfalls that warrant different responses. The first are those shortfalls that are caused by a
failure on the part of Congress to appropriate the amount of FFER funds that were requested in the
President's budget for a particular agency's FFER program. This circumstance is referred to below as
an "insufficient appropriations shortfall."
The second are those funding shortfalls that are caused by a variety of circumstances, including: a)
unanticipated events, new circumstances, or new data; and b) underestimated FFER costs. These types
of funding shortfalls are referred to below as "program growth shortfalls." Although the Committee
recognized that it will often be difficult to distinguish between these two major types of funding shortfalls
- insufficient appropriations and program growth — as well as between the different causes of program
growth shortfalls — unanticipated events and underestimated costs — it is nevertheless important to
maintain these distinctions for reasons that are specified below.
Applicable Scope and Focus of the Allocation Process: In order to understand fully and implement the
Committee's recommendations regarding a process for making FFER allocation decisions in the event
of a funding shortfall, it is necessary to specify the precise programmatic parameters within which these
recommendations are intended to be applied.
The "fair share" allocation process, which is described below, focuses primarily, but not exclusively, on
funding shortfalls caused by insufficient appropriations. This process can only be implemented if all who
are involved in its implementation are clear about the programmatic budget from which the fair share
allocation is to be derived.
The Committee recognizes that some environmental restoration activities take place under the "operation
and maintenance" (O&M) portions of agency budgets. However, the Committee believes that at this time
it would simply be too complicated to include all ER activities that are now funded through O&M budgets
in its recommended allocation process. Thus, the Committee recommends that the allocation process
described below should be applied only to the specified ER program budgets within agencies. In the case
of DOE, the allocation system described below would be applied to the Office of Environmental
Restoration budget15 and would not apply to other budget accounts such as the Office of Waste
Management, the Office of Technology Development, and the Office of Facilities Transition; for DOD,
the Defense Environmental Restoration Program budget, which is under the managerial control of the
Office of the Assistant Secretary of Defense (Environment) and the operational control of the DOD
components (i.e., the Military Services and the Defense Logistics Agency)16 and would not apply to
15 As it existed in December 1992.
16 As it existed in December 1992.
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other budget accounts such as BRAC and FUDS; for all other agencies it would be the specific program
or portion of their budget under which environmental restoration activities take place.
The Committee recommends that at some later date, after the allocation process described below has been
tested, agencies should consider using this process to address shortfalls for environmental restoration
activities/projects that are funded through other parts of the agency's budget, as well as for waste
management and technology development activities that are related to environmental restoration.
The limitation regarding the applicability of the allocation process described below is not intended to be
determined by the authority under which a clean-up is conducted, but rather by whether the funds for
conducting the clean-up are included in the portions of agency-wide budgets that are specified for
environmental restoration activities. Depending on the agency, these programs typically include clean-up
activities that are conducted pursuant to a variety of laws and regulatory requirements including
CERCLA, RCRA corrective action, federal facility compliance agreements, permits, orders, etc.
Inter- versus Intra-site Allocations: As noted in the introduction to this report, in grappling with the
perceived need for "national" federal facility priority-setting, the Committee agrees that this need should
not result in the establishment of a single, unitary priority-setting process or system whereby federal
facilities from all departments are considered together. Rather, the term "national" federal facility
priority-setting is used in this report to refer to the question of how best to set clean-up priorities at the
national level within each department (i.e., between sites within each federal department).17 The
allocation of FFER funds between sites but within a department is referred to below as "inter-site
allocations."
Another important level of priority-setting occurs between activities/projects within a site.18 This level
of priority-setting and allocation of FFER resources is referred to below as "intra-site allocations." See
Figure 1 for a graphic depiction of inter- versus intra-site allocations.
Sites That Are Subject to Outside Supervision Versus Sites That Are Not: Federal facilities are subject
to numerous clean-up requirements that are specified under or result from federal, state, and local laws,
and treaties with Indian Nations. These requirements are generally applied to a facility through a Federal
Facility Agreement (FFA), order, permit, or some other legally binding instrument. In general, the
application of external requirements coincides with heightened external interest from regulators, tribes,
and other affected stakeholders. When such external requirements are applied, the regulating agencies,
tribes, and other affected stakeholders will become more actively involved with the facility, especially
in tracking whether the regulated agency is meeting its legally binding FFER obligations. It is in
recognition of the heightened concern of stakeholders and the special role that regulating agencies, and
possibly tribes, will play under these circumstances that the allocation process described below
differentiates between sites that are, versus sites that are not, subject to external supervision. This
distinction is especially relevant to the parts of the recommended allocation process that are described in
Sections 4.6.3. and 4.6.4. below.
17 For example, within DOE (Rocky Flats vs. Hanford, etc.).
18For example, landfill A vs. lagoon B, etc. at "Fort Moosebreath."
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Figure 1
TWO LEVELS OF FUNDING ALLOCATION
INTRA-SITE ALLOCATION
(allocation within sites)
Landfill
Solar
Ponds
RI/FS
Study
INTER-SITE ALLOCATION
(allocation between sites)
RI/FS
Study
Landfill
RI/FS
Study
Landfill
Tanks
RI/FS
Study
Ponds
SITES:
B
D
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4.6.2. Important Considerations in the Allocation of FFER Funds
The Committee believes that the major consideration in establishing and implementing a system for setting
priorities in the event of any type of funding shortfall is to adhere to the fair share concept that is
described below and, whenever possible, to the scope and schedule of existing legally binding obligations
(e.g., FFAs, permits, administrative and court orders, etc.) and the milestones they establish. Such
obligations, aside from being legally binding, are the currently recognized and agreed upon clean-up
priorities for a particular site and have often been established at great effort. These obligations often
reflect consensus agreements among regulated agencies, regulators, tribes, and other affected stakeholders
on the most appropriate approach to clean-up at that site. These agreements are often renegotiated based
on current site conditions and are considered a reflection of all of the affected stakeholders' best
professional judgement. As such, these obligations should be honored to the fullest extent possible.
The Committee recognizes, however, that it may not always be possible to adhere to established
obligations and milestones and has developed a flexible system for distributing funding shortfalls based
on a set of fair share principles, outlined in detail below. This system relies on the judgments of the
regulated and regulating agencies and affected tribes, and the input of other affected stakeholders.
As described in Section 1.4.3., in the case of tribes, legally binding FFER obligations may derive from
treaty and statutory rights, including fishing, hunting, gathering, and subsistence rights. In some
instances, such rights will have a bearing upon FFER related activities and may result in binding agency
or obligations to protect those rights. It is in these circumstances that this section of the Committee's
report uses the term "affected tribe" to indicate that tribes should participate on an equal basis with
regulators in any negotiations which involve potential changes to binding obligations to tribes. It is
understood that this role does not grant tribes any rights or justiciable claims that they heretofore have
not had, but simply recognizes existing rights.
The Committee believes that: 1) existing data and science are currently inadequate to determine objective
consensus clean-up priorities; 2) factors other than environmental and human health risk deserve
consideration in allocating clean-up resources; 3) broadly acceptable and objective methods for evaluating
some of the criteria relevant to the allocation of clean-up priorities do not currently exist, and, in some
cases, may never exist and may even be inappropriate; and 4) regardless of any party's opinion about the
quality of available data and science, it is appropriate in a democracy to allow a variety of affected
interests to provide input on decisions that affect them.
In order to help guide the collective decision-making of the various participants, the Committee believes
that certain factors, in addition to the need to adhere, to the fullest extent possible, to established
obligations and milestones, should be considered by all participants in tue implementation of the flexible,
fair share allocation system described below. These factors include:
• protection of human health, including occupational health considerations as well as the
health of the general population;
• risk reduction;
• cultural and socioeconomic factors, including environmental equity considerations;
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• protection of and trustee/stewardship responsibilities related to significant natural
resources;19
• the degree to which past management practices and/or new requirements imposed by state
and federal regulators affect the ability to meet established milestones;
• the availability of new or innovative technologies or technological constraints that affect
the ability to meet established milestones; and
• other factors that may be unique to a particular site or articulated at the site level by
affected stakeholders.
4.6.3. Fair Share Allocation Process to Address Insufficient Appropriations for Sites That Are
Subject to Outside Supervision
Recommendations
The Committee recommends that:
a) If Congress appropriates less than what an agency requested for its FFER program, then
representatives from that agency, regulators, affected tribes, and other affected
stakeholders should make every effort to ensure that all sites that are subject to outside
supervision within that program share equally in the amount of the funding shortfall. For
example, if Congress only appropriates 90% of what was requested, then all sites subject
to outside supervision would be expected to receive 90% of what was requested for that
site. This is designated the fair share allocation.
b) Within the constraints of the fair share allocation, and upon consultation of regulators,
affected tribes, and other affected stakeholders, if national or field-level program
managers develop an intra-site allocation scheme that does not affect the scope or
schedule of established, legally binding obligations, they are free to implement such a
decision without further consultation.
c) If, in considering the application of the fair share allocation, national or field-level
program managers believe it is not possible to develop an intra-site allocation scheme
without affecting the scope and schedule of a legally binding obligation, a process of
negotiation with state and federal regulators and affected tribes, and consultation with
other affected stakeholders, must ensue. In these circumstances, the Committee strongly
recommends that state and federal regulators and affected tribes should renegotiate
obligations and milestones, rather than undertake punitive enforcement actions, so long
as:
19 "Significant natural resources" are resources of special concern such as wetlands and fish and
wildlife habitat, especially for threatened and endangered species, wilderness areas, park land resources,
cultural resources, and other biological resources.
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a federal agency implements the recommendations contained in this report in a
responsible and good faith manner; and
the funding requested for that agency's FFER budget represented the Executive
Branch's best estimate at the time of submission of the amount of funding
necessary to meet that agency's legally binding clean-up obligations.
As long as these conditions are met and the agency adheres to the fair share allocation,
negotiations with regulators and/or affected tribes for a particular site should be limited
to the question of which obligations or milestones should be renegotiated, if necessary
(i.e., how to absorb the fair share cut), rather than the more basic question of whether
any obligations or milestones should be renegotiated.
d) If national or field-level program managers, in considering the decision-making factors
described above in 4.6.2., believe that it would not be good public policy to rely strictly
on a fair share allocation for a particular site, they can suggest an alternative allocation
scheme that deviates from the fair share allocation. However, in this circumstance, state
and federal regulators and affected tribes would be free to question whether that site
should accept more than its fair share cut, as well as how such a cut might be absorbed
in relation to established obligations and milestones. In the event a consensual agreement
cannot be reached on an acceptable reallocation scheme, existing dispute resolution
processes (e.g., those specified in FFAs) would be honored. Where FFAs do not exist
or are not relevant, a similar process of appeal to progressively higher levels of authority
to resolve disputes should be used.
Discussion
The system recommended by the Committee for addressing funding shortfalls caused by insufficient
appropriations at sites that are subject to outside supervision is intended to recognize and balance the
legitimate rights, responsibilities, and decision-making authorities of state and federal regulators, affected
tribes, and FFER national program managers, as well as the legitimate consultative role of other affected
stakeholders. The system is intended to be an equitable and efficient system for reallocating funds in the
event of an insufficient appropriation. It is also intended to be a system that has sufficient flexibility to
account for the variety of factors that all key players must consider while making, or participating in the
making of, what are sure to be very difficult decisions.
In implementing this system, the Committee recommends that national program managers who are faced
with a funding shortfall caused by insufficient appropriations should immediately notify field-level
managers, who, in turn, should immediately initiate a process of consultation with regulating agencies,
affected tribes, and other affected stakeholders about what can be done to absorb that site's fair share
portion of the shortfall. If this process of consultation reveals that it is possible to absorb the fair share
cut without adversely affecting the scope or schedule of any established, legally binding obligations, then
such a decision should be implemented without further consultation or negotiation.
If federal agency representatives, in consultation with regulators, affected tribes, and other affected
stakeholders, determine that the fair share cut cannot be absorbed without affecting their ability to meet
established clean-up obligations, negotiations with state and federal regulators and affected tribes will be
necessary. An important feature of the recommended system is that as long as the agency adheres to the
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fair share allocation, such negotiations would be limited to resolving questions of how to absorb this cut,
rather than whether the presumed fair share cut should be absorbed at that site.
The Committee believes that all who are involved in such negotiations over which projects/activities
should be changed should make every effort to avoid missing established obligations and milestones,
taking into consideration the balancing factors and considerations identified in 4.6.2 above. However,
in the event that it is clear that missing obligations and milestones cannot be avoided, the Committee
strongly recommends that state and federal regulators renegotiate milestones, rather than undertake
punitive enforcement actions. In the case of affected tribes, such "punitive enforcement action" would
generally be oriented toward protection of treaty and statutory rights, such as those described above, and
would find its application through the courts rather than through administrative orders.
This recommendation for "relief" from punitive enforcement actions is contingent upon federal facility
managers: 1) adhering to the fair share principle; 2) showing that they have attempted to implement the
recommendations contained in this report in a good faith and responsible manner; and 3) snowing that
the funding requested for their agency's FFER budget represented the Executive Branch's best estimate
as of the time of the budget submission of the amount of funding necessary to meet that agency's legally
binding clean-up obligations for that site.
If federal program managers, after consideration of the factors suggested above and consultation with
regulators, affected tribes, and other affected stakeholders, suggest an inter-site allocation scheme that
requires a site to absorb more than the presumed fair share cut, negotiations with state and federal
regulators, and consultations with other affected stakeholders, could include whether such a higher cut
should be absorbed by that site, as well as how to absorb such a cut on an intra-site basis. As noted
above, existing dispute resolution processes would be utilized if such negotiations do not yield agreements
as to how to proceed with restoration activities at that site.
4.6.4. Fair Share Allocation Process to Address Insufficient Appropriations for Sites That Are Not
Subject to Outside Supervision
Recommendations
In the event of a funding shortfall caused by insufficient appropriations for sites that are not subject to
external supervision (i.e., where the federal agency does not have any legally binding obligations), the
Committee recommends that:
a) The funding shortfall for all such sites, taken as a whole, should reflect the fair share cut.
b) Using the factors outlined above in Section 4.6.2, national program managers should
have discretion to determine how to allocate the overall cut for all such sites on an inter-
site basis.
c) Federal agency representatives should consult with affected stakeholders about how to
absorb the assigned cut at a particular site or group of sites.
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Discussion
The Committee believes that sites that are not subject to external supervision are not likely to have the
same level of concern and interest on the part of regulators or large numbers of affected stakeholders,
as will sites that are subject to external supervision. However, the Committee also recognizes that many
such sites may have affected stakeholders, even if they are few in number, who are vitally concerned
about what happens at these sites. Thus, the Committee recommends that the fair share principle be
applied to the combined request for all such sites. Furthermore, the Committee recommends that the
actual site specific (inter-site) distribution would be at the discretion of the national program manager,
using the above referenced decision-making criteria to help guide his/her decisions. Finally, the manner
in which each facility's (intra-site) funding would be utilized after the inter-site allocation has been
determined should be developed in consultation with all affected stakeholders.
4.6.5. Allocation Process to Address Funding Shortfalls Caused by Unanticipated Program Growth
Recommendations
As is noted above, the Committee recognizes that funding shortfalls can result from unanticipated
program growth that takes place between the time field-level submissions initiate the budget cycle and
appropriations are finalized, typically a two-year process. In contrast to shortfalls caused by insufficient
appropriations, the Committee is not recommending any sort of "enforcement protection" when a federal
agency is unable to meet its legally binding obligations due to unanticipated program growth. However,
the Committee did develop recommendations which it believes will reduce the impact of such funding
shortfalls.
To address funding shortfalls caused by unanticipated program growth, the Committee recommends:
a) Federal agency representatives should inform affected stakeholders as soon as it is known
that a funding shortfall has been caused by an unanticipated event, new circumstances,
new information, or an underestimation of the costs of scheduled FFER
activities/projects.
b) Program growth funding shortfalls should, to the greatest extent possible, be absorbed
at the site where the shortfall exists. This preference is based on the view that such
shortfalls arise at the facility level, so they should be resolved there.
c) Federal agency representatives should consult with regulators, affected tribes, and other
affected stakeholders to determine how to absorb the shortfall considering the importance
of legal obligations and milestones and the other decision-making factors outlined above.
Because of the preference for intra-site reallocation, federal agency representatives,
regulators, affected tribes, and other affected stakeholders should give serious
consideration to modifying the scope of clean-up activities/projects or establishing new
priorities among clean-up activities/ projects in order to absorb the program growth
shortfall within the site.
The preference for intra-site reallocation of priorities is especially strong if the program
growth funding shortfall has been caused by new regulatory requirements that are being
imposed at the site in question and/or past management practices that may have
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contributed to the program growth shortfall. As noted above, however, the Committee
is not recommending any sort of "enforcement protection" when a federal agency is
unable to meet its legally binding obligations due to unanticipated program growth,
especially if the unanticipated program growth funding shortfall is perceived to have been
caused by past management practices.
d) If it is determined that the program growth shortfall cannot be absorbed at the site
without causing undue hardship, federal agency representatives should attempt to shift
discretionary funds from other sites to help absorb the program growth shortfall.
e) If shifting discretionary funds from other sites to the site where the program growth
shortfall exists does not rectify the shortfall, federal agency representatives should
consider the following options (which are listed in no particular order of preference):
(i) Shift non-discretionary funds (i.e., funds that are necessary to meet legally
binding obligations and milestones) from another site or sites to the site where
the program growth shortfall exists. This option will require renegotiation of
legally binding obligations with all sites that are asked to share the burden of
shifting non-discretionary funds.
(ii) Petition Congress to reprogram appropriated funds to cover the cost of the
unanticipated program growth.
(iii) Petition Congress for a supplemental budget request to cover the cost of the
unanticipated program growth.
Discussion
Although the Committee hopes that implementation of the recommendations contained throughout this
report will lead to an enhanced process of consultation and communication with affected stakeholders that
will minimize the possibility of funding shortfalls caused by unanticipated program growth, such shortfalls
may continue to affect FFER programs.
The Committee also recognizes that, in any given year, FFER funding shortfalls are likely to be caused
by a combination of factors, such as insufficient appropriations and unanticipated program growth. While
the Committee recognizes that it may be difficult to distinguish between the various types of funding
shortfalls, such distinctions are of vital importance if the Committee's recommendations for a fair share
allocation process are to be implemented. As such, the recommendations contained in this subsection
should be seen as creating the additional parts of a total system for setting priorities in the event of FFER
funding shortfalls of any type.
The Committee has an especially strong preference for absorbing program growth funding shortfalls
caused by underestimating costs on an intra-site basis. If the preference for absorbing cuts on an intra-
site basis places an undue burden on the site or sites where the shortfall exists, federal program managers
should, in consultation with affected stakeholders, first attempt to shift funds from discretionary FFER
activities/projects from other sites to the site or sites that caused the shortfall.
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If relying on intra-site allocations or shifting discretionary funds from other sites proves to be infeasible,
federal program managers would then have the option of petitioning Congress either to "reprogram"
appropriated funds or to approve a supplemental budget request to cover the costs associated with the
unanticipated program growth. Another option would be to attempt to shift funds from non-discretionary
FFER activities/projects at various sites to the site or sites that caused the shortfall. This option would,
however, require negotiations with state and federal regulators and consultations with other affected
stakeholders. The Committee recommends that federal program managers, in consultation with affected
stakeholders, should attempt to share the burden of covering the costs of a program growth shortfall on
a "fair share" basis similar to that described above. Regulators and affected stakeholders will be more
willing to consider this option if it can be shown that the program growth shortfall is truly caused by
unanticipated events and new information rather than underestimated costs without technical justification.
Building on the example posed in the previous section, if Congress and the President only appropriate
90% of the funds requested for a particular FFER program, the agreed upon fair share distribution would
be 10%. If, on top of this there was an additional shortfall caused by unanticipated program growth that
could not be fully absorbed by the site that caused the shortfall, national and field-level program managers
could suggest that the remaining funding shortfall be distributed amongst all sites on a fair share basis.
However, state and federal regulators and other affected stakeholders would be free to question whether
they should willingly absorb such an additional "fair share" cut on top of the agreed upon fair share of
the shortfall caused by an insufficient appropriation. Once again, if it can be shown that the program
growth shortfall is truly caused by unanticipated events and new information rather than unjustified
underestimating of costs, for example, regulators and citizens will be more likely to agree to such an
inter-site reallocation of appropriated resources.
The Committee acknowledges that, in many ways, the recommendations in this subsection do not differ
greatly from the existing approach that federal agencies take to reallocating appropriated resources in the
event of a funding shortfall caused by unanticipated program growth. The one exception might be the
use of the fair share concept as a way to open up more dialogue and equitable considerations related to
the shifting of program resources at an inter-site level without incurring tremendous transaction costs.
4.6.6. Recommendation Against Congressional Earmarking
The allocation system recommended by the Committee is designed only for those allocation and/or
reallocation decisions that are within the purview of national program managers. The Committee
recognizes that in certain cases an appropriation bill may specify or "earmark" precise funding levels for
particular sites. The Committee strongly recommends that Congress refrain from such site-specific
earmarking as it will detract from the principles of fairness that are built into the process described
herein, as well as diminish the value of stakeholder involvement in FFER programs. If an appropriation
bill does include a specific funding level for an individual site and an aggregate funding level for all other
sites, the Committee recommends that any shortfall be distributed, as described above, among sites for
which there is no site-specific appropriation.
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5.0. CONCLUSION
Much has been learned over the past decade or so regarding methods for involving the public and other
stakeholders in the decision-making process of environmental restoration activities. In part because of
the size and type of sites, DOE and DOD in particular have been at the forefront of these activities. The
recommendations above are intended to institutionalize the effective methods learned at agencies, to advise
agencies that are just initiating clean-up programs, and to forewarn and prepare agencies that have not
yet realized the extent of their environmental restoration obligations.
These recommendations will require time and resources to implement. In addition, they may not be easy
to implement and will demand trust among all parties. Through implementation of these
recommendations, the Committee hopes that federal agency representatives will come to trust that the
public and special interest groups will treat draft reports and preliminary data appropriately and not
misrepresent the information shared with them. The Committee further hopes that, for their part, public
interest groups will come to trust that the agencies will share information willingly, not because they have
to but because they genuinely want the public's input into their decisions.
Over the long run, the Committee believes that the recommendations set forth in this document will
reduce the time and money spent developing remediation strategies and will promote efficiency and safety
at sites. The Committee recognizes that some recommendations may require high-level policy changes,
acts of Congress, or time to implement effectively. The Committee's final recommendation is that each
agency and party to this Dialogue Committee commit to outlining its indentions for acting upon the above
recommendations as a first step in developing the spirit of cooperation that we all seek.
Committee members firmly believe that the types of improvements in the federal facility environmental
restoration decision-making and priority-setting process that are recommended in this report will have
immediate and direct benefits in relation to the pace, timing, reduction in the overall costs, credibility
and effectiveness of federal facility environmental restoration activities.
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APPENDIX A
LIST OF FFER DIALOGUE COMMITTEE MEMBERS AND ALTERNATES
U.S. Environmental Protection Agency
Thomas L. (Tad) McCall, Jr.
Acting Deputy Assistant Administrator
for Federal Facilities Enforcement
Office of Federal Facility Enforcement
U.S. Environmental Protection Agency (LE-133)
401 M Street, SW
Washington, DC 20460
202-260-4543
Fax 202-260-0500
George C. Hofer
Chief, Federal Facilities Superfund Branch
U.S. Environmental Protection Agency
Region X
1200 6th Avenue HW-124
Seattle, WA 98101
206-553-2803
Fax 206-553-0957
Jon D. Johnston
Chief, Federal Facility Branch
U.S. Environmental Protection Agency
Region IV
345 Courtland Street NE
Atlanta, GA 30365
404-347-3016
Fax 404-347-5205
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EPA Alternates
Gordon M. Davidson
Director
Office of Federal Facilities Enforcement
U.S. Environmental Protection Agency(OE-2261)
401 M Street, S.W.
Washington, DC 20460
202-260-5741
Fax 202-260-9437
Nicholas I. Morgan
Strategic Planning Coordinator
Office of Federal Facilities Enforcement
U.S. Environmental Protection Agency (OE-2261)
401 M Street, S.W.
Washington, DC 20460
202-260-1270
Fax 202-260-9437
Walter Walsh
Environmental Protection Specialist
Waste Analyses Section
Office of Policy Planning and Evaluation
U.S. Environmental Protection Agency (PM-220)
401 M Street, S.W. Room 3003
Washington, DC 20460
202-260-2770
Fax 202-260-0174
Martha Walters
(Formerly) Special Assistant
Office of Federal Facilities Enforcement
U.S. Environmental Protection Agency (LE-133)
401 M Street, S.W.
Washington, DC 20460
202-260-3914
Fax 202-260-0500
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Department of Defense
Thomas Baca
(Formerly) Deputy Assistant Secretary
of Defense (Environment)
Department of Defense
400 Army Navy Drive, Suite 206
Arlington, VA 22202-2884
703-695-7820
Fax 703-697-7548
POD Alternates
Patrick Meehan
Principal Director
Office of Deputy Assistant Secretary
of Defense (Environment)
Department of Defense
400 Army Navy Drive, Suite 206
Arlington, VA 22202-2884
703-695-7820
Fax 703-697-7548
Lucy McCrillis
Environmental Protection Specialist
Office of Deputy Assistant Secretary
of Defense (Environment)
Department of Defense
400 Army Navy Drive, Suite 206
Arlington, VA 22202-2884
703-695-2364
Fax 703-697-7548
Marcia Read
Environmental Protection Specialist
Office of Deputy Assistant Secretary
of Defense (Environment)
Department of Defense
400 Army Navy Drive, Suite 206
Arlington, VA 22202-2884
703-695-8358
Fax 703-697-7548
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Department of Energy
Paul Grimm
Principal Deputy Assistant Secretary
Office of Environmental Restoration &
Waste Management
Department of Energy EM-2
1000 Independence Avenue, SW
Washington, DC 20585
202-586-7709
Fax 202-586-7757
Kitty Taimi
Director
Office of Environmental Compliance (EH-22)
Office of Environmental Safety and Health
Department of Energy
1000 Independence Avenue, S.W.
Washington, DC 20585
202-586-2113
Fax 202-586-0955
R. Pat Whitfield
Deputy Assistant Secretary
for Environmental Restoration
Office of Environmental Restoration
and Waste Management
Department of Energy (EM-40)
1000 Independence Avenue, S.W.
Washington, DC 20585
202-586-6331
Fax 202-586-6523
DOE Alternates
Don Beck
Program Manager
Division of Technology Integration
Office of Technology Integration &
Environmental Education Development
Department of Energy
EM-521, Trevionll
Washington, DC 20585
301-903-7955
Fax 301-903-7238
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Tom Elsasser
Director
Office of Policy and Program Information
Department of Energy 7A-049, EM-4
1000 Independence Avenue, S.W.
Washington, DC 20585
202-586-2979
Fax: 202-586-7757
Remi Langum
Environmental Protection Specialist
Office of Program Support for
Environmental Restoration
Department of Energy
EM 43 Trevion II
Washington, DC 20585-0002
301-903-8110
Fax 301-903-8135
Gale P. Turi
Program Integration Branch
Office of Environmental Restoration
Department of Energy
EM433 Trevion II
Washington, DC 20585-0002
301-903-8118
Fax: 301-903-8134
William Wisenbaker
Director
Office of Program Support for
Environmental Restoration
Department of Energy
EM 43 Trevion II
Washington, DC 20585-0002
301-903-8105
Fax 301-903-8135
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Other Federal Agencies
Mark M. Bashor
Associate Administrator
Agency for Toxic Substances
and Disease Registry
1600 Clifton Rd., N.E., Mail Stop F 48
Atlanta, GA 30333
404-639-0730
Fax 404-639-0759
Alternate for M. Bashor:
Joe Hughart
Deputy Director
Office of Federal Programs
Agency for Toxic Substances
and Disease Registry
1600 Clifton Rd., N.E., Mail Stop F 48
Atlanta, GA 30333
404-639-0730
Fax 404-639-0759
Dr. Jonathan P. Deason
Director
Office of Environmental Affairs
Department of the Interior
1849 C Street, NW Room 2340
Washington, DC 20240
202-208-3891
Fax 202-208-6970
Alternates for J. Deason:
John Craynon
Environmental Protection Specialist
Office of Environmental Affairs
Department of Interior
1849 C Street, N.W. (MS 2340)
Washington, DC 20240
202-208-7555
Fax 202-208-6970
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Sam Higuchi
Environmental Compliance and Safety Officer
U.S. Department of Commerce/NOAA
1325 East West Highway
Silver Spring, MD 20910
301-713-0845
Fax: 301-713-0806
Alternate to S.Higuchi:
Sharon Lundin
Chief, Facilities and Logistics Division
U.S. Department of Commerce/NOAA WC4
7600 Sand Point Road, NE
Seattle, WA 98115-0070
206-526-6191
Fax: 206-526-6675
Joyce Jatko
Chief, Environmental Management Branch
NASA Headquarters Code JXG
300 E Street, SW
Washington, DC 20546
202-358-0115
Fax 202-358-3866
Bill Opfer
Hazardous Waste Management Coordinator
U.S. Department of Agriculture
14th & Independence Ave, SW
Washington, DC 20250
202-205-0906
Fax 202-205-0861
Alternate to B. Opfer:
Karen Solari
Environmental Engineer
USDA - Forest Service
Engineering Division
14th and Independence Avenue, SW
Washington, DC 20090
202-205-0898
Fax: 202-205-0861
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Environmental and Citizen Organizations
Tim Connor
Analyst
Energy Research Foundation
South 1016 Buena Vista Drive
Spokane, WA 99204
509-838-4580
Fax: 509-624-9188
Ralph DeGennaro
Senior Appropriations Analysts
Friends of the Earth
218 D Street, SE
Washington, DC 20003
202-544-2600
Fax: 202-543-4710
Alternate to R. DeGennaro:
Cathy Hinds (NTCF)
Military Toxics Project
National Toxics Campaign
RR 1 Box 2020
Litchfield, ME 04350
207-268-4071
Fax 207-268-9258
Bonnie L. Exner-Rader
President
Citizens Intelligence Network
12600 West Colfax C-310
Lakewood, CO 80215
303-233-1248
Fax 303-233-7634
Ralph Hutchison
Coordinator
Oak Ridge Environmental
Peace Alliance
P.O. Box 1101
1817 White Avenue
Knoxville, TN 37901
615-426-9096 (n) or 615-524-4771 (o)
Fax 615-524-4479
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Melinda Kassen
Environmental Defense Fund
1405 Arapahoe Avenue
Boulder, CO 80302
303-440-4901
Fax: 303-440-8052
Lenny Siegel
Director
Pacific Studies Center
222B View Street
Mountain View, CA 94041
415-961-8918 or 415-969-1545
Fax 415-968-1126
J. Ross Vincent
Sierra Club Representative
P.O. Box 4375
Pueblo, Colorado 81003
719-561-3117
Fax: Same as telephone
James Werner
Senior Environmental Engineer
Natural Resources Defense Council
1350 New York Avenue, N.W., Suite 300
Washington, DC 20005
202-783-7800
Fax 202-783-5917
Alternate to J. Werner:
Dan Reicher
Senior Attorney
Natural Resources Defense Council
1350 New York Avenue, Suite 300
Washington, DC 20005
202-783-7800
Fax 202-783-5917
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Labor Organizations
Richard Miller
Policy Analyst
Oil Chemical Atomic Workers Union (OCAW)
2090 Northhampton Street
Holyoke, MA 01040
413-536-3858
Fax: 413-536-9616
Alternate to R. Miller:
Charles Barrett
Industrial Hygienist
Oil Chemical Atomic Workers Union (OCAW)
2722 Merrilee Drive
Fairfax, VA 22031
703-876-9300
Fax: 703-876-8952
John B. Moran
Director, Safety and Health
Laborers' Health and Safety Fund of
North America
905 16th Street, NW
Washington, DC 20006-1765
202-628-5465
Fax: 202-628-2613
Alternate to J. Moran:
Donald Elisburg
Attorney at Law
Laborers' Health and Safety Fund
11713 Rosalinda Drive
Potomac, MD 20854-3531
301-299-2950
Fax: 301-299-8752
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Native American Organizations and Tribal Representatives
William H. Burke
Board of Trustees
Confederate Tribes of the
Umatilla Reservation
Old Mission Highway
P.O. Box 638
Pendleton, OR 97801
503-276-3165
Fax 503-276-3095
Alternate to W. Burke:
J.R. Wilkinson
Environmental Restoration Projects Leader
Confederate Tribes of the
Umatilla Reservation
P.O. Box 638
Pendleton, OR 97801
503-276-3165
Fax 503-276-3095
Russell Jim
Manager, Environmental Restoration and
Waste Management Program
Yakima Indian Nation
622 West 1st Street
Watato, WA 98951
P.O. Box 151
Toppenish, WA 98948
509-865-5121 ext. 618 or 877-4151
Fax 509-877-4101
Alternates to R. Jim:
F. Robert Cook
Technical Analysts
Yakima Indian Nation
1933 Jadwin Avenue, Suite 110
Richland, WA 99352
509-946-0101
Fax 509-943-8555
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Stanley Paytiamo
Tribal Planner
Pueblo of Acoma - Governor's Office
1-40 Exit 102, South
P.O. Box 309
Acomita, NM 87034
505-552-6604
Fax 505-552-6600
Merv Tano
General Counsel
Council of Energy Resource Tribes
1999 Broadway, Suite 2600
Denver, CO 80202
303-297-2378
Fax 303-296-5690
Gayle Townley
Grants Program Coordinator
Cherokee Nation of Oklahoma
Junction of Hwy 62 and 82
P.O. Box 948
Tahlequah, OK 74465
918-458-5498
Fax 918-458-5499
Alternate to G. Townley:
Curtis Canard
Program Manager
Office of Environmental Services (OES)
Cherokee Nation of Oklahoma
Junction of Hwy 62 and 82
P.O. Box 948
Tahlequah, OK 74465
918-458-5498
Fax 918-458-5499
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State Government Representatives
Jeff Breckel
Washington\Oregon Interstate Liaison
Washington Department of Ecology
Nuclear and Mixed Waste Program
P.O. Box 47600
Olympia, WA 98504-7600
719 Sleater-Kinney Road, SE
Suite 200
Lacey, WA 98503
206-438-7613
Fax 206-459-6859
Thomas Curtis
Director
Natural Resources Group
National Governors Association
444 North Capitol Street, Suite 250
Washington, DC 20001
202-624-5389
Fax 202-624-5313
Sam Goodhope
Special Assistant/Attorney General
Office of the Attorney General
Administration
Price Building, 8th Floor
14th and Colorado
Austin, TX 78711-2548
512-463-2191
Fax 512-463-2063
Thomas Kennedy
Executive Director
Association of State and Territorial Solid
Waste Management Officials
444 N. Capitol Street, N.W., Suite 388
Washington, DC 20001
202-624-5828
Fax 202-624-7875
Robert W. King
Assistant Deputy Commissioner
South Carolina Department of Health and
Environmental Quality Control
2600 Bull Street
Columbia, SC 29201
803-734-5360
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\lternate to R.W. King:
Lewis R. Bedenbaugh
Director, Site Engineering & Screening Division
South Carolina Department of Health and
Environmental Quality Control
2600 Bull Street
Columbia, SC 29201
803-734-5211
Fax 803-734-5199
Dan Miller
First Assistant Attorney General
Office of the Attorney General
Natural Resources Section
1525 Sherman Street, 5th Floor
Denver, CO 80203
303-866-5110
Fax 303-866-3558
Lynne M. Ross
Deputy Director and Legislative Director
National Association of Attorneys General
444 N. Capitol Street, Ste. 339
Washington, DC 20001
202-434-8054
Fax 202-434-8056
Alternate to L. Ross:
Brian Zwit
Environment Counsel
National Association of Attorneys General
444 N. Capitol Street, Ste. 339
Washington, DC 20001
202-434-8041
Fax 202-434-8056
David Shelton
Director
Hazardous Material and Waste Management Division
Colorado Department of Health, HMWMD-ADM-B2
4300 Cherry Creek Drive South
Denver, CO 80222-1530
303-692-3313
Fax 303-759-5355
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Jack Allen Van Kley
Assistant Attorney General
Ohio Attorney General
Environmental Enforcement Section
30 East Broad Street, 25th Floor
Columbus, OH 43266-0410
614-466-2766
Fax 614-466-8898
Designated Federal Official
Nicholas I. Morgan
Strategic Planning Coordinator
Office of Federal Facilities Enforcement
U.S. Environmental Protection Agency (OE-2261)
401 M Street, S.W.
Washington, DC 20460
202-260-1270
Fax 202-260-9437
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THE KEYSTONE CENTER STAFF
Timothy J. Mealey - Project Director
Associate Director
The Keystone Center
P.O. Box 8606
Keystone, CO 80435
303-468-5822
Fax 303-262-0152
Kristi L. Parker
Associate
The Keystone Center
P.O. Box 8606
Keystone, CO 80435
303-468-5822
Fax 303-262-0152
John R. Ehrmann
Senior Vice President
The Keystone Center
P.O. Box 8606
Keystone, CO 80435
303-468-5822
Fax 303-262-0152
Denise A. Siebert
Administrative Assistant
The Keystone Center
P.O. Box 8606
Keystone, CO 80435
303-468-5822
Fax 303-262-0152
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APPENDIX B
FFER DIALOGUE COMMITTEE CHARTER AND GROUND RULES
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ADVISORY COMMITTEE CHARTER
FEDERAL FACILITIES ENVIRONMENTAL RESTORATION DIALOGUE COMMITTEE
1- PURPOSE. This charter establishes the Federal Facilities Environmental Restoration Dialogue
Commitee, in accordance with the provisions of the Federal Advisory Committee (FACA), 5
U.S.C. App. II § 9(c).
2. AUTHORITY. It is determined that establishment of this Cormiittee is in the public interest and
supports EPA in performing its duties and responsibilities under Section 120 of the
Comprehensive Environmental Response Compensation and Liability Act (CERCLA), Section
6001 of the Resource Conservation and Recovery Act (RCRA), and other authorities pertaining
to the environmental restoration of Federal facilities.
3. OBJECTIVE AND SCOPE OF ACTIVITY. The Committee will provide a forum to refine and
further develop issues related to environmental restoration activities at Federal facilities. The
forum will facilitate the exchange of ideas and information among interested parties. It is hoped
that consensus may be possible on these issues, but at a minimum, EPA would like to ensure that
issues are thoroughly refined and that differing positions, as well as the reasons for those
differences, are identified. A final report describing the results of the dialogue will be prepared.
4. FUNCTIONS. As indicated above, the Committee's function is to assist directly in the
development of EPA and Federal agency efforts to address Federal facility environmental
restoration programs. With the participation of knowledgeable, affected parties, EPA expects to
develop a practical approach to Federal agency environmental restoration efforts which will best
protect human health and the environment within guidelines and principles that have broad public
support and national applicability.
5. COMPOSITION. The Committee will consist of not more than forty (40) members, appointed
by the EPA Deputy Administrator, plus a facilitator who wih serve as Chair. Members will
represent the following interests in an appropriate mix and balance:
Categories of Members:
Public interest/environmental groups
Tribal Government and Native American representatives
State Government representatives
Federal Agency representatives
Other Interested and Affected Parties
Appropriate members shall be selected and appointed for the duration of the Committee's charter.
A full-time salaried official or regular employee of the Agency will serve as the Designated
Federal Officer and will be present at all meetings. The Designated Federal Officer is authorized
to adjourn any meeting whenever it is determined to be in the public interest to do so. The
Committee is authorized to form work groups for any purpose consistent with this Charter. Such
work groups shall report back to the full Commitee. Work groups have no authority to make
decisions on behalf of the full Committee not can they report directly to the Agency.
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Under the Federal Advisory Committee Act, EPA may pay travel and per diem expenses when
necessary and appropriate. The Committee's estimated annual operating cost is approximately
$200,000, which includes .5 work years of staff support. EPA's Office of Enforcement will
provide administrative and process support to the Committee.
6. MEETINGS. Meetings shall be held as necessary, at the call of the Chair, with an agenda for
each meeting approved in advance by the Designated Federal Officer. Committee meetings will
be called, announced, and held in accordance with the EPA Committee Management Manual.
This manual contains the Agency's policies and procedures for implementing FACA. Among
other things, FACA requires open meetings and an opportunity for interested persons to file
comments before or after meetings, or to make statements to the extent that time permits.
7. DURATION. The Committee will terminate by June 30, 1993, unless the Deputy Administrator
determines that the Committee will finish its work within 30 days of the original termination date.
If the Deputy Administrator makes such a determination, he may extend the termination date by
30 days without further consultation with GSA. In the event more time is needed, EPA may seek
an extension under Section 14 of FACA.
March 13. 1992 F. Henry Habicht II
Agency Approval Date Deputy Administrator
April 29. 1992
GSA Consultation Date
April 29. 1992
Date Filed with Congress
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GROUND RULES
FEDERAL FACILITIES ENVIRONMENTAL RESTORATION
DIALOGUE COMMITTEE
I. Objective of the FFER Dialogue Committee
As stated in its charter, the FFER Dialogue Committee will provide a forum to refine and further develop
issues related to environmental restoration activities at Federal facilities. The forum will facilitate the
exchange of ideas and information among interested parties. The goal of the FFER Dialogue Committee
is to develop consensus policy recommendations aimed at improving the process by which federal facility
environmental restoration decisions are made such that federal facility cleanups better reflect the priorities
and concerns of all stakeholders.
It is hoped that consensus may be possible on how to address these issues, but at a minimum, EPA would
like to ensure that issues are thoroughly refined and that differing positions, as well as the reasons for
those differences, are identified. A final report describing the results of the dialogue will be prepared.
The output of the FFER Dialogue Committee will be made available to various decision-makers who are
concerned with federal facility environmental restoration issues.
II. Membership in the FFER Dialogue Committee
Membership on the FFER Dialogue Committee will be limited to:
• three each from the U.S. Environmental Protection Agency, the Department of Defense
and the Department of Energy;
• one each from the Department of Interior, Department of Agriculture, National
Aeronautics and Space Administration and the Agency for Toxic Substances Disease
Registry;
• ten state government and/or state government association representatives;
• six Native American/Tribal government representatives; and
• ten environmental/citizen/labor representatives.
Committee members may identify alternates who may participate in Committee meetings in their absence
or in work groups that are established by the full Committee. To the degree possible Committee
membership should not change once it has been announced. A representative of the Office of
Management and Budget will participate as an ex-officio member of the Committee.
III. Decision-making
The Committee will operate by consensus with regard to any recommendations that are made by the
Committee on substantive policy issues. However, if consensus on specific substantive proposals is not
possible, the Committee will make every effort to articulate in writing in its final report both the areas
of agreement and disagreement and the reasons why there continues to be differences. The term
consensus means that a proposal can be considered to have achieved consensus if there is no dissent by
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any member of the Committee. Major procedural issues, including but not limited to whether to add new
members to the Committee and whether to issue a final report, will also be made by consensus. For
routine procedural matters, the Committee's facilitator will make every effort to find a consensus
solution.
IV. Meetings of the FFER Dialogue Committee
The FFER Dialogue Committee will operate as a federal advisory committee under the provisions of the
Federal Advisory Committee Act. Accordingly, all meetings of the FFER Dialogue Committee will be
open to the public, subject to the exemptions granted in the Government in the Sunshine Act. Adequate
notice of the time and location of future PDC meetings will be published in the Federal Register and
meeting summaries will be kept and made available to the public. At the very least, at each Committee
meeting, a half-hour at the end of the meeting and, if possible, at the end of each meeting day, will be
reserved to provide an opportunity for members of the public to comment on the deliberations of the
Committee.
V. Use of Work Groups. Subcommittees and Caucuses
The FFER Committee will generally operate as a committee of the whole. When necessary and
appropriate, the Committee may create work groups and subcommittees to pursue certain topics.
Decisions on the creation of work groups and subcommittees will be made by consensus. Every effort
will be made to ensure that all work groups that are officially formed by the Committee reflect roughly
the same balance that has been achieved in the Committee as a whole. When necessary and appropriate,
Committee members may request a break in the deliberations in the Committee to meet for a reasonable
period of time in a private caucus with other Committee members.
VI. Issuance of a Final Report
Subject to final consideration by the FFER Committee, it is envisioned that the Committee will issue a
report separate from the individual meeting summaries that will be prepared to summarize the outcome
of the Committee's deliberations at each full Committee meeting. This report will include any consensus
agreements that are reached by the group and their associated recommendations, as well as any remaining
areas of disagreement and the substantive reasons for these disagreements. This report will be prepared
by the facilitator with assistance from Committee members and will be issued in draft form to the
Committee, with ample time for comments and revisions, prior to being issued as a final report. As
noted above, the decision of the Committee as to whether to issue a final report will be made by
consensus.
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APPENDIX C
HISTORY AND DESCRIPTION OF THE FEDERAL FACILITIES
ENVIRONMENTAL RESTORATION DIALOGUE PROCESS
In February, 1989, the House Armed Services Committee's Subcommittee on Procurement and Military
Nuclear Systems conducted a hearing on the process used by DOE to set priorities for conducting
environmental restoration activities at its nuclear weapons facilities. The hearing, which included
testimony by DOE, the General Accounting Office (GAO), and the Natural Resources Defense Council,
addressed many aspects of DOE's priority setting methodologies.
In April 1989, the Governors often states sent the Secretary of Energy a letter calling for decisive federal
action on the establishment of a comprehensive national program for the clean-up of all DOE defense and
research facilities. The proposal put forth by the Governors contained a discussion of several key
elements for a national program. One element was the need to develop a national priority system for
ensuring that appropriate priorities for DOE clean-ups were established.
Shortly thereafter, the Administrator of the U.S. Environmental Protection Agency (EPA), sent to the
Director of the Office of Management and Budget (OMB) a letter summarizing the concerns of several
federal departments regarding the need to establish national environmental and funding priorities for the
clean-up of federal facilities. In this letter, the Administrator proposed that EPA convene a conference
with representatives of other federal and state agencies to begin discussing the issue. Subsequently, EPA
proposed convening a formal dialogue on the issues related to the establishment of federal facility clean-
up priorities. Further support for a national dialogue on priority-setting for federal facility clean-ups
came in July, 1989 when 49 Attorneys General sent an open letter to the U.S. House of Representatives.
This letter expressed support for a dialogue on federal facility clean-up issues as a means of strengthening
state-federal relationships.
Based on these public indications of support for a dialogue, EPA asked The Keystone Center (TKC), a
non-profit environmental conflict management group located in Keystone, Colorado, in late 1990 to
convene a national policy dialogue on federal facility environmental restoration priority-setting. As is
typically done in such circumstances, Keystone Center staff conducted a series of interviews and
discussions with key stakeholders to confirm support for the idea of a national policy dialogue and to
determine what specific policy issues should be the focus of the proposed dialogue and who should
participate.
These convening assessment activities led to the formation of a small ad hoc panning group that consisted
of representatives of several federal agencies, state agencies and state governmental associations, national
environmental groups, and others. This ad hoc planning group, which met in January 1991, was
designed to give The Keystone Center advice as to whether and, if so, how to proceed with the proposed
dialogue. At the time that The Keystone Center was asked to convene a dialogue to address federal
facility priority-setting, an important issue was congressional debate over the proposed Federal Facility
Compliance Act. This Act would authorize states to impose fines and penalties on federal agencies for
violations under the Resource Conservation and Recovery Act. Federal agencies were concerned that
they would now be subject to fines for failure to meet schedules in enforcement agreements for clean-up
where insufficient funds were appropriated. Federal agency representatives believed that there was a need
for a "system" that would establish how to set priorities in the event insufficient funds are appropriated
to meet all federal clean-up obligations.
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After addressing concerns about any links that might be created between the proposed dialogue and
pending federal facility environmental compliance legislation, the diverse interests attending the January
1991 meeting agreed that a dialogue on federal facility environmental restoration decision-making and
priority-setting issues would be worthwhile. They agreed that the proposed dialogue should not be linked
to pending legislation or be used by any dialogue participant as a reason to delay congressional debate
on pending federal facility legislation.
The assembled advisory/planning group agreed that the dialogue should, at the outset, have as its
objective the exchange of information and perspectives on federal facility environmental management and
priority-setting issues rather than the development of consensus agreements on these issues. Furthermore,
the group agreed that the initial focus of the dialogue should be issues related to the need to set priorities
for the clean-up of federal facilities, with the possibility of addressing other critical federal facility
environmental management issues in the future.
The first meeting of the National Policy Dialogue on Federal Facility Environmental Management
occurred on June 12-13, 1991 in Washington, D.C. This meeting included representatives of tribal
governments and Native American organizations and local citizen groups, as well as the interests that
were represented at the January, 1991 planning meeting. The June 1991 meeting included presentations
from DOD, DOE and EPA officials on a variety of environmental remediation related priority-setting
mechanisms, models, systems, and processes that are currently being used by these agencies. The group
then had a general discussion of federal facility priority-setting issues and identified some topics to
address at its next meeting.
In October, 1991 the Dialogue Group met again to discuss the role of health assessments and the
consideration of risk in setting priorities for federal facility clean-up; how Native American cultural issues
should be factored into the priority-setting process; and the role that various governmental and non-
governmental entities should play in setting priorities for federal facility clean-ups. At its October 1991
meeting the Dialogue Group agreed that if they were to continue meeting they should not simply exchange
information and perspectives but adopt an objective of developing consensus policy recommendations on
how to improve upon the federal facility environmental restoration decision-making process.
The Dialogue Group, met again in December, 1991 and February, 1992 operating with its new consensus
objective. At these meetings, the group identified several distinct phases in the federal facility
environmental restoration decision-making process that could be used as specific references to help focus
their discussions. Based on these distinctions, work groups were formed to developed recommendations
for consideration by the larger plenary group.
During the course of its discussions, the Dialogue Group noted that: 1) existing data and science are
currently inadequate to determine objective consensus clean-up priorities; 2) factors other than
environmental and human health risk deserve consideration in allocating clean-up resources; 3) broadly
acceptable and objective methods for evaluating some of the criteria relevant to the allocation of clean-up
priorities do not currently exist, and, in some cases, may never exist and may even be inappropriate; and
4) regardless of any party's opinion about the quality of available dat? and science, it is appropriate in
a democracy to allow a variety of affected interests to provide input on decisions that affect them.
At the February 1992 meeting of the Federal Facility Environmental Management Policy Dialogue Group,
representatives of EPA, the lead federal agency for the project, suggested that the entire effort should be
chartered as an advisory committee under the auspices of the Federal Advisory Committee Act (FACA).
The dialogue group agreed and EPA began taking steps towards this end.
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APPENDIX D
STATUTORY PROVISIONS FOR TECHNICAL REVIEW COMMITTEES
DOD is required by law to establish site-specific advisory boards. The Defense Environmental
Restoration Program (DERP), which has been in existence since the late 1970s, was codified by the
Superfund Amendments and Reauthorization Act of 1986 (SARA). SARA Section 211 amended Title
10 of the United States Code by creating a new Chapter 160. These amendments contain Section 2705
(c) which reads, in its entirety:
Technical Review Committees - Whenever possible and practical, The Secretary shall
establish a technical review committee to review and comment on DOD actions and
proposed actions with respect to releases or threatened releases of hazardous substances
at installations. Members of any such committee shall include at lease one representative
of the Secretary, the Administrator, and appropriate state and local authorities and shall
include a public representative of the community involved.
While the law only requires that other federal agencies meet the community relations requirements that
are spelled out in the National Contingency Plan (NCP) and EPA guidance (i.e., preparation of
Community Relations Plans, public comment periods on proposed plans, and availability of TAGs), DOD
must additionally meet the requirements of SARA Section 211. This section provides for DOD to
establish TRCs at both NPL and non-NPL sites. At this time, there does not appear to be any national
guidance by DOD or EPA on the establishment of TRCs.
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