United States
Environmental Protection
Agency
Office of the Administrator (1102)
March 2000
EPA-100-R-00-003
&EPA
ADR Accomplishments Report
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EPA
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ADR ACCOMPLISHMENTS REPORT
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TABLE OF CONTENTS
Executive Summary 1
I. Introduction 3
II. Accomplishments in Implementing the Administrative Dispute Resolution Act of 1996
and in Fulfilling the President's Memorandum on ADR (May 1, 1998) 4
Participation in the Interagency Alternative Dispute Resolution Working Group 4
Designation of a Senior Counsel for Alternative Dispute Resolution 5
Establishment of the Conflict Prevention and Resolution Center 5
Expansion of Regional ADR Network 6
Development/Issuance of an Agency-wide ADR Policy 6
New Neutral Services Contract 7
ffl. Accomplishments in New Uses for Alternative Dispute Resolution Techniques at EPA 8
Headquarters Workplace Dispute Mediation Program 8
Use of ADR Techniques to Support EPA's Environmental Justice
and Title VI Programs 9
Use of ADR Techniques in Permitting Programs 10
ADR Use in Brownfields Pilots 11
IV. Accomplishments in Existing ADR Programs 13
Recent Highlights of Existing ADR Programs at EPA 13
Stakeholder Involvement Activities 13
Office of Cooperative Environmental Management ...13
Consensus and Dispute Resolution Program 14
Community Involvement Program 14
Enforcement 15
Regional Activities 16
Prevalent Use of ADR in Superfund 16
Regional ADR Training: The Targeted Approach 17
Development of New ADR Models 17
ALJ Program 19
Contracts and Procurement 20
11
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V. Partnerships with Other Federal Agencies 21
Interagency Agreements with the U.S. Institute for Environmental Conflict Resolution 21
Development of the Environmental ADR Neutrals Roster 21
EJ/TMe VI Stakeholders Training Initiative 21
ADR Specialists Consulting and Convening Training 22
EPA Mentoring Activities 22
EPA Participation in Federal Shared Neutrals Program 22
Conclusion 23
m
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EXECUTIVE SUMMARY
The United States Environmental Protection Agency has a rich history of using alternative
dispute resolution (ADR) techniques ranging from traditional mediation to innovative processes
aimed at enhancing stakeholder involvement in Agency decision making. A recent statute and
Presidential directive provided the impetus for an examination of the Agency's existing ADR
programs and planning how ADR will be used in the future. As a result of this effort, several
organizational and programmatic improvements in the Agency's approach to ADR were
implemented. This report was adapted from a report submitted to the Department of Justice on
November 19, 1999, and examines ADR activities at EPA, with a focus on fiscal year 1999
initiatives and accomplishments. Highlights include:
The Administrative Dispute Resolution Act (ADRA) governs the use of consensus and
agreement-based dispute resolution mechanisms by federal agencies. The ADRA contains
several requirements that relate to the administration of an agency's ADR program. In
fulfillment of these statutory requirements, EPA has: (1) chaired one of the sections of the
Interagency Alternative Dispute Resolution Working Group established by the Attorney
General and participated actively in three other sections; (2) appointed a senior official to
serve as the dispute resolution specialist for the Agency; (3) designed a central office for
ADR program management and development; (4) expanded the network of Regional staff
with ADR responsibilities; and (5) initiated a process to develop a final Agency-wide policy
on the appropriate use of ADR at EPA.
Introduction of New ADR Programs
EPA has focused its ADR program development efforts on issues that also constitute major
priorities for the Agency. A major new ADR initiative is the workplace dispute mediation
program to be launched in January 2000. In addition, several new initiatives support the
Agency's environmental objectives. For example, the Agency has been exploring ways to
use ADR techniques in addressing environmental justice and matters arising under Tide VI
of the Civil Rights Act of 1964. The Agency's emphasis on cleanup and redevelopment of
urban waste sites is supported through the Brownfields facilitation pilot projects. In addition,
EPA is pursuing opportunities to demonstrate the use of ADR techniques in the area of
environmental permitting.
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Improvements in Existing ADR Programs
*,
EPA's existing ADR programs have contributed to the Agency's status as a leader in the use
of ADR in the federal sector. In addition, these programs established the foundation for new
and expanded ADR programs and initiatives. EPA's mature ADR programs are each
different in terms of operations and purpose, but all have embraced the value and utility of
neutral services to advance the Agency's objectives. Existing ADR programs include: (1) a
variety of stakeholder involvement programs that make use of third-party neutrals; (2) an
active enforcement ADR program; (3) innovative Regional approaches towards ADR; and
(4) a high volume mediation program offered by EPA's Administrative Law Judges.
• Establishment of Partnerships with Other Federal Agencies
EPA has been privileged to partner with several other federal agencies in joint efforts to
enhance the utility and effectiveness of ADR throughout the federal sector. The Agency has
both served as a mentor and received the benefit of expertise from other agencies as all
federal agencies look at ways to develop their ADR programs. EPA has also entered into
interagency agreements with the U.S. Institute for Environmental Conflict Resolution
(Institute) in order to: (1) broaden access to ADR practitioners for environmental disputes;
and (2) take advantage of the Institute's expertise in designing specialized trainings for
targeted groups.
The activities and programs documented in this report are a credit to EPA's willingness to
use innovative tools such as ADR to achieve the Agency's broader programmatic and organizational
objectives. These innovations provide a foundation for a more complete assessment of how use of
third-party neutrals may improve Agency decision making and prevent and resolve conflicts.
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I.
Introduction
Alternative Dispute Resolution (ADR) includes a wide variety of processes in which third-
party neutrals assist parties in the prevention and resolution of disputes. As practiced at the United
States Environmental Protection Agency (EPA), ADR is more than simply an alternative to
traditional litigation. It is a tool for better negotiation as well as a means of enhancing the quality of
Agency decision making. Applications of ADR at EPA reflect the breadth of the alternative dispute
resolution field, both in terms of the variety of ADR techniques utilized and the types of disputes or
potential disputes that are addressed. ADR work is occurring across programs and Regions and
includes techniques such as mediation, facilitation, convening, early neutral evaluation, consensus
processes, cooperative problem solving, interest-based negotiation, and use of ombudsmen. (These
techniques are described in the glossary of terms in the side boxes). ADR is being used to advance
EPA's programmatic and administrative objectives, with applications in areas such as administrative
adjudications, enforcement, formal and
informal complaint procedures, policy
development, stakeholder involvement,
public participation, and workplace
disputes.
This report examines ADR
activities that have been used at EPA,
with a focus on recent initiatives and
accomplishments. Section II discusses
the Agency's implementation of the
Administrative Dispute Resolution
Act, the principal statutory authority on
federal sector use of ADR. That
section also discusses activities
undertaken at EPA in response to a
Presidential directive on ADR issued
in May 1998. Section HI of this report
highlights new ADR programs or
activities that have been initiated at
EPA over the past year. Section IV
outlines the Agency's more mature
ADR programs and provides examples
of how those programs continue to
develop and advance EPA's
environmental objectives. Section V
presents a series of exciting and
relatively new partnerships between
EPA and other federal agencies
designed to enhance the utility and
effectiveness of ADR throughout the
federal sector.
Glossary of Selected ADR Terms
The ADR techniques listed here are those (hat are
most frequently used at EPA and referred to in this report.
The list is not intended to be exhaustive of all possible ADR
applications.
•Mediation: Mediation is a confidential, informal process in
which the disputing parties use a neutral third party to assist
them in trying to work out a mutually acceptable solution to
a problem.
•Facilitation: Facilitation is a voluntary, informal, and
flexible process of communication guided by a third-party
neutral. Facilitation can be used for meeting management
purposes, or as a technique to engage parties in a productive
discussion about a problem or challenge. By itself,
facilitation may or may not result hi resolution of any issues
in controversy.
•Convening: Convening is a process used to identify issues,
interests, and sometimes parties to a dispute or potential
dispute. The goal of a convening is to assess the potential
for use of ADR techniques in seeking resolution of a
problem and to recommend a process mat would best help
address the issues at hand.
•Early Neutral Evaluation: Early neutral evaluation allows
the parties to a dispute to receive an informal neutral
evaluation of the strength of each party's position in a
matter in controversy. The evaluation is nonbinding, but
may be useful in promoting settlement.
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Glossary (cont'd)
• Consensus Processes: A consensus process is any method
by which all affected parties (stakeholders) are brought
together at an early stage for the purpose of developing a
solution to a present or anticipated problem. Consensus
processes that qualify as ADR involve a third-party neutral in
a facilitation or mediation role. The term "consensus
process" as used at EPA typically refers to a mechanism for
policy or regulatory development.
•Cooperative Problem Solving: Cooperative problem
solving involves a decision by parties facing a disagreement
or potential disagreement to collaborate on a solution rather
than insist on competition and compromise. Cooperative
problem solving assisted by neutrals from within or outside
of the Agency has been useful in addressing internal
problems and challenges.
•Interest-based Process: An interest-based process seeks to
generate creative solutions to problems between parties in an
ongoing relationship. It makes extensive use of
brainstorming and identification of creative solutions to
address the interests of the participants.
•Ombudsmen or Ombuds: An ombudsman (or ombud) is an
Agency official whois authorized to accept complaints and
look into whether something can be done to address a
particular concern. Ombuds do not have authority to change
decisions, but they try to facilitate responsive solutions to
problems raised in complaints. There are currently ombud
functions in three programs at EPA (pesticides, hazardous
waste, and small business).
II. Accomplishments in
Implementing the Administrative
Dispute Resolution Act of 1996 and in
Fulfilling the President's
Memorandum on ADR (May 1,1998)
The Administrative Dispute
Resolution Act (ADRA), 5 U.S.C. § 571 -
584, governs the use of consensus and
agreement-based dispute resolution
mechanisms by federal agencies. The
Administrative Dispute Resolution Act of
1996 permanently reauthorized the
ADRA, thereby confirming that
alternative dispute resolution (ADR)
techniques are legitimate processes that
should be used by federal agencies in
appropriate circumstances.
The ADRA contains several
requirements that relate to the
administration of an agency's ADR
program, including appointment of a
senior official to serve as the agency's
dispute resolution specialist and
development of a policy to address the
use of ADR within an agency. In
addition, the ADRA authorizes the
President to establish an interagency
committee to facilitate ADR use within
the executive branch.
By Presidential Memorandum issued May 1, 1998, President Clinton established an
interagency committee as contemplated by the ADRA. In the course of establishing this committee,
the President also instructed agencies to take steps to "(1) promote greater use of mediation,
arbitration, early neutral evaluation, agency ombuds, and other alternative dispute resolution
techniques, and (2) promote greater use of negotiated rulemaking."
The following subsections describe the specific actions that EPA has taken to fulfill the
requirements of the ADRA and the Presidential Memorandum.
A. Participation in the Interagency Alternative Dispute Resolution Working Group
The President's Memorandum of May 1, 1998, established an Interagency Alternative
Dispute Resolution Working Group (IADRWG) to be convened by the Attorney General and
consisting of representatives of the heads of federal departments and agencies. The mission of the
working group is to coordinate, promote, and facilitate the effective use of dispute resolution
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processes within Federal agencies. The IADRWG is organized into five subject matter sections that
address the use of dispute resolution processes in: (1) civil enforcement; (2) claims against the
government; (3) contracts/procurement; (4) workplace disputes; and (5) small agencies. The
substantive work of the IADRWG has occurred through the section activities, in which participating
agencies have shared expertise and worked to expand the capacity of the federal sector to either
initiate or enhance specific types of ADR programs.
EPA has taken a leadership role in the IADRWG. The Agency's Senior Counsel for ADR
chairs the Civil Enforcement Section, which includes 24 federal agencies that are either initiating or
enhancing ADR programs to support their enforcement activities. EPA's ADR staff within the
Office of Enforcement and Compliance Assurance have taken the lead in designing a year's worth of
programs for the Civil Enforcement Section, covering topics such as dispute systems design,
training, funding issues, evaluation, ethics, and confidentiality. EPA staff are also engaged in
mentoring activities for other agencies that are initiating ADR programs in the civil enforcement
context. More information about EPA's mentoring role is described in section V.B. of this report.
In addition to leading the Civil Enforcement Section, EPA has been active in the claims, conn-acts,
and workplace sections of the IADRWG. Through this participation, EPA has benefitted from the
expertise of other agencies with mature ADR programs in those areas.
As the IADRWG enters its second year of existence, the Attorney General has announced the
creation of an ADR Advisory Council, to be comprised of senior government officials responsible
for ADR programs at their agencies. The Attorney General extended an invitation to EPA to serve
on the Council. The Council will address policy issues that may arise during the implementation of
federal ADR programs. The Attorney General's invitation recognizes EPA's status as a major
contributor to the advancement of ADR in the federal sector.
B. Designation of a Senior Counsel for Alternative Dispute Resolution
In October 1998, Administrator Browner appointed a Senior Counsel for Alternative Dispute
Resolution. This appointment fulfills the ADRA requirement to designate a senior official as the
Agency's Dispute Resolution Specialist. In addition, Administrator Browner used the occasion to
reiterate the Agency's commitment to the use of ADR in resolving existing disputes and preventing
future conflict. The Administrator noted that the use of ADR within the Agency is consistent with
and supportive of the Agency's reinvention goals.
C. Establishment of the Conflict Prevention and Resolution Center
Another significant step forward in the evolution of EPA's ADR program will occur with the
establishment of a new Conflict Prevention and Resolution Center (CPRC). Based upon numerous
interviews with officials throughout EPA, there is enthusiastic support for the formation of such a
Center. The Center will be located within the Office of General Counsel. Establishment of the
CPRC will provide oversight and compliance with the ADRA and encourage greater integration of
dispute resolution techniques into EPA activities.
The CPRC's specific mission will be to fulfill obligations under the Administrative Dispute
Resolution Act of 1996, the Alternative Dispute Resolution Act of 1998 and other relevant laws and
policy directives aimed at ensuring effective use of ADR in and by the Federal government. To this
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end, the main functions of the CPRC will be to assist Agency offices in identifying "appropriate"
uses of neutral third parties; make neutral services more readily available; design ADR processes;
and provide ADR awareness training. Consistent with the ADRA, the Center's functions also will
include: coordinating the development and implementation of Agency policy, guidance and
regulations addressing the use of ADR; assisting in the development and effective coordination
among ADR programs in offices throughout the Agency; consulting on ADR case selection and
management; supporting outreach on ADR; recordkeeping to ascertain the benefits of ADR; and
coordinating EPA participation in ADR activities outside of the Agency. The consolidation of these
functions has benefits for the Agency, such as the availability of a team of professionals dedicated to
this specialized area and more efficient tracking of EPA's use of ADR techniques.
Moreover, establishment of the CPRC will serve a number of internal and external customers
in the provision of additional opportunities to consider the application of ADR techniques to achieve
EPA objectives. For example, the CPRC may provide mediation services for conflicts within the
Agency's workplace. (See Section HI.A. of this report for more detail on the workplace ADR
program). In addition, a set of pilot projects is being developed to test the use of ADR in meeting
EPA's environmental justice and civil rights objectives. (See Section HI. B. of this report). Other
objectives for expanded use of ADR include facilitated consultations with stakeholders and third
parties, early intervention hi conflicts involving the regulated community, contractors, and others
seeking to do business with EPA.
D. Expansion of Regional ADR Network
In addition to organizational developments in the ADR program at Headquarters, EPA is
finding that an expansion of the Regional ADR staff is having a dramatic impact on the Agency's
overall capacity to manage ADR programs and deliver ADR services. What started in 1990 as a
network of Regional enforcement staff has become a working body of Regional ADR Specialists.
Further, many Regions have expanded the number of staff with ADR responsibilities within and
beyond the enforcement program. In Regions 1, 8,9, and 10, mere are designated individuals who
have been authorized to devote 50-100% of their tune to ADR-related activities. Two individuals
work in Regional enforcement programs, and three others are providing facilitation services in
support of other Agency activities. Additional staff in all ten Regions have ADR responsibilities on
a collateral duty basis. Among the roles they serve are: consulting with case teams and outside
parties about the appropriateness of ADR in particular circumstances; assisting in ADR process
design; facilitating selection of acceptable mediators; and providing direct convening, mediation and
facilitation services. Increasingly, this network of in-house ADR consultants collaborates across the
Regions to broaden the influence of ADR successes and to assist each other in convening new cases.
There appears to be a direct correlation between the availability of ADR-skilled staff to perform
these functions and the level of ADR activity within a given Region.
E. Development/Issuance of an Agencv-wide ADR Policy
Work has begun to develop a policy addressing the use of ADR at EPA, development of new
ADR programs, enhancement of existing ADR programs, and ADR training for Agency staff and
managers. This effort will satisfy the requirement of the ADRA that all federal agencies adopt a
policy that "addresses the use of alternative means of dispute resolution and case management." The
ADRA requires, as part of the process of drafting an ADR policy, that agencies examine the use of
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ADR in connection with: (1) formal and informal adjudications; (2) rulemakings; (3) enforcement
actions; (4) issuance and revocation of licenses or permits; (5) contract administration; (6) litigation
brought by or against the agency; and (7 )"other agency actions." While EPA has existing policies
that address components of these subject areas (e.g., enforcement, procurement), the Agency still has
a need for a more comprehensive policy that will address the use of ADR across the Agency's
programs and Regions.
EPA has initiated a two-step process to meet the Agency's policy needs: (1) issuance of a
cross-program interim policy that highlights EPA's ADR experience and expresses a strong
commitment to ADR; and (2) formation of a work group to draft and issue a final Agency-wide
policy for appropriate use of ADR within the Agency. It is also anticipated that program-specific
guidances will be developed that are consistent with the final Agency-wide policy.
It is anticipated that the interim policy will be completed and published in the Federal
Register in the next few months. The more comprehensive policy, incorporating several component
parts, is expected to be complete by the end of the year 2000.
F. New Neutral Services Contract
In February 1999, the Agency awarded a new neutral services contract to Marasco Newton
Group, Ltd. The neutral services contract is a vehicle for Agency program offices and Regions to
access neutral services for dispute resolution activities such as: convening, conflict or issues
assessment, facilitation, mediation, and other services to assist EPA stakeholder involvement
activities. Dispute resolution services under the contract may be helpful to Agency personnel
engaged in: regulation and policy development, permit issuance, compliance and enforcement
actions, EPA workplace and labor disputes, contracts and grants disputes, and voluntary programs
such as Project XL and Community-Based Environmental Protection (CBEP). The current projects
on the contract are evidence of the broad range of available neutral services. Ongoing projects
include use of ADR professionals for policy dialogues, enforcement cases, training design and
delivery, and facilitation of public meetings. In an innovative approach, the contract includes "just-
in-time" delivery orders which make neutral services for a particular category of disputes available
on an expedited basis. Many of the specific ADR activities highlighted throughout this report
involved the use of neutrals accessed through the Agency's neutral services contract vehicle.
The Marasco-Newton contract is a five-year task order contract with a total ceiling of
$ 41,000,000. Although the Marasco Newton contract has been in effect for less than one year, 44
projects with a value of $4.4 million have already been initiated. A previous neutral services
contract averaged approximately 40 new projects each year at a value of $3-4 million. Projects
under the neutral services contract have been funded on an ad hoc basis from program technical
support budgets across the Agency. Dependency on program dollars for neutral services ensures that
EPA's program offices are vested in a particular project, although this type of funding mechanism
also gives rise to "orphan" projects, i.e., potential projects with merit but no readily available source
of funding. The various ADR programs at the Agency continue to look for creative ways to
overcome this funding gap.
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III. Accomplishments in New Uses for Alternative Dispute Resolution Techniques at EPA
In kicking off the IADRWG in September 1998, the Attorney General urged all federal
agencies to put in place at least one new ADR program within a year. EPA has risen to this
challenge and within the last year, has introduced ADR techniques in several new areas of Agency
practice and administration. The following subsections highlight new ADR initiatives.
A. Headquarters Workplace Dispute Mediation Program
In January 2000, EPA will begin offering mediation as one way to resolve workplace
grievances and discrimination complaints at Headquarters. Mediation is a confidential, informal
process for bringing disputing parties together with a neutral third party to see if they can work out
their own mutually acceptable solution to a problem. The experience of other federal agencies with
workplace mediation programs demonstrates that 60% to 70% of discrimination complaints and
workplace grievances that are mediated are resolved. This not only saves valuable human and
financial resources, but also leads to better employee working relationships and morale. Employees
give up no rights by trying mediation. If an acceptable agreement is not reached, the employee still
is able to file a formal complaint or grievance. Employees are able to have union, legal, or other
representation of their choice during mediation.
The mediation program was designed in 1999 by a team composed of employees and union
representatives from Headquarters. This team used the workplace mediation program experience of
six federal agencies as a benchmark, and incorporated those agencies' successes in program
organization and implementation into the proposed EPA mediation program. EPA expects staff
and managers to use the program with confidence.
The first year of implementation will be a pilot period, during which mediation will be
offered only for issues that are the subject of discrimination complaints or subject to either the
Agency's negotiated grievance or administrative grievance procedures. Expansion of the program
to cover additional kinds of disputes will depend on what is learned during the pilot phase. Initially,
the mediators will come from the Federal Shared Neutrals Program, which provides, at no direct cost
to EPA, federal mediators from other agencies. The team also recommended that EPA develop its
own internal corps of collateral duty mediators. This recommendation is based on the finding of
other agencies that employees trained in conflict resolution naturally transfer their skills to then-
regular job situations, thereby producing an incidental positive benefit for the workplace.
During the first year, ADR staff is expected to: (1) conduct considerable promotion outreach
to Headquarters staff; (2) train a corps of EPA mediators, union representatives and conflict
resolution coordinators; and (3) oversee 30 to 40 mediations. While the pilot program focuses on
disputes at Headquarters, all EPA Regions are preparing to offer mediation for discrimination
complaints beginning in January 2000, in accordance with recently revised Equal Employment
Opportunity Commission regulations. Headquarters staff will work with the Office of Civil Rights
to support the Regions' mediation efforts and to share lessons from Headquarters experiences.
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B. Use of ADR Techniques to Support EPA's Environmental Justirp. and Title VI
Programs
The Senior Counsel for Alternative Dispute Resolution, the Office of Civil Rights (OCR),
and the Office of Environmental Justice (OEJ) have been working together to explore ways to use
ADR techniques in addressing environmental justice and matters arising under Title VI of the Civil
Rights Act of 1964. The goal of this collaboration is to design and test the effectiveness of ADR
techniques in responding to and resolving conflicts that arise between the Agency and outside
stakeholders or amongst outside stakeholders (e.g., state authorities and communities) on matters
relating to environmental justice.
OCR receives formal administrative complaints alleging discrimination by a recipient of
EPA's financial assistance. A regulatory program administered by OCR governs the processing of
such complaints. OEJ frequently receives informal complaints or allegations of environmental
injustice relating to EPA's direct programs and activities. OEJ does not currently offer a process for
addressing informal environmental justice complaints. Despite differences in the procedural
approaches at OCR and OEJ, there are similarities in the disputes that underlie the complaints
received by these two offices. Thus, recent work has focused on designing pilot programs that can
be used to test the use of ADR in these types of disputes generally. An example of a recent
accomplishment in the Title VI area is described below.
Resolution of Title VI Complaints: Pilot Program
Title VI of the Civil Rights Act of 1964, as amended, prohibits discrimination based on race,
color, or national origin under the programs or activities of recipients of federal financial assistance.
Individuals or organizations who believe that an EPA financial assistance recipient has acted in a
discriminatory fashion may file a Title VI complaint with EPA. If the complaint meets the criteria for
accepting a complaint for investigation provided in EPA's Title VI implementing regulations, EPA's
Office of Civil Rights (OCR) must conduct an investigation and make a determination of whether the
recipient is in compliance with EPA's Title VI regulations. This can take months or years to complete.
Consequently, the Agency is now faced with a growing backlog of Title VI administrative
complaints. Currently, OCR has over 40 complaints either accepted for investigation or pending an
acceptance decision. EPA's regulations state that OCR shall attempt to resolve Title VI complaints
informally whenever possible, and for at least some of these cases, ADR may be appropriate. EPA wants
to encourage informal, non-adversarial approaches to dealing with Title VI problems wherever possible.
(cont'd next page)
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Title VI Pilot Program (cont'd)
Two examples from this past year illustrate the application of ADR techniques to pending Title
VI complaints. In one case, a community organization in Connecticut charged the Connecticut
Department of Environmental Protection with improperly siting and permitting a landfill. EPA Region 1
provided a mediator who assisted the community organization, the State, and the developer of an urban
renewal project to reach an agreement that the negotiating parties felt was a fair way to proceed. In the
second case, EPA Region 9 hired a neutral third party to do an initial objective assessment of a complaint
made by a community association in California against the California Department of Toxic Substance
Control. The third party was also asked to determine the willingness of the parties to participate in an
initial meeting to discuss the possibility of using a mediated process for resolving the controversy. The
neutral's report provided the Region and the involved parties with a better understanding of the situation
and each others' concerns and interests. Even though there was no agreement to attempt to resolve the
complaint through mediation or any other facilitated problem-solving process, the Region found the effort
worthwhile.
OCR is actively working with the Regions to identify additional opportunities to use ADR for
Tide VI complaint resolution. The Office has established and funded a task order under the Agency's
Neutral Services Contract that will provide resources to support the use of ADR in approximately three
more Title VI complaints over the coming year.
C. Use of ADR Techniques in Permitting Programs
One of the areas that EPA has targeted as a potential new forum for application of ADR
techniques is permitting. The ADRA specifically requires that an agency examine alternative means
of resolving disputes in connection with issuing and revoking permits. In addition, EPA is
committed to continued development and use of meaningful public participation processes during
environmental permitting. The use of collaborative processes to enhance public participation
opportunities during permitting activities may assist the Agency in meeting some of its objectives for
the next generation of environmental permitting. Work in this area to date has focused on the role of
public participation, and in particular, examining ways to improve participation by communities
during the permit process. An example of this work in the context of a rulemaking that will trigger
air permitting activities is highlighted below.
Tier 2 Permitting Implementation Project
The Office of Air and Radiation (OAR) and ADR staff are cooperating on a project that employs
an ADR technique in preparing for future permitting activities associated with the Tier 2 Motor Vehicle
Emission Standards and Gasoline Sulfur Control Requirements rule (Tier 2). Tier 2 is a major regulatory
program designed to reduce significantly emissions from cars and trucks nationwide. One component of
mis regulatory program is new standards for the sulfur content of gasoline. Many refineries will need to
make operational changes or capital investments in new technology in order to meet the new gasoline
sulfur standards. Consequently, such changes may trigger permitting obligations for the refineries under
the Glean Air Act.
(cont'd next page)
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Tier 2 Permitting Implementation Project (cont'd)
EPA engaged dispute resolution professionals to conduct a convening in an effort to engage a
broad spectrum of stakeholders as the Agency considers what policies will govern refinery permitting
under Tier 2. The dispute resolution professionals have been tasked to conduct interviews with
stakeholders to explore with them their perceptions and views of issues associated with Tier 2 permitting.
During Phase I of the project, completed in September 1999, the contractors contacted representatives
from selected EPA offices, states, industry, environmental groups, and environmental justice
organizations. Phase II of the project will consist of more focused interviews to assess the potential for a
collaborative process among stakeholders and to identify what services community groups in particular
need to effectively participate in a potential future permit process.
The goal of this project is to assist EPA in understanding and ultimately meeting the challenges
of implementing the portion of the Tier 2 rule that applies to refineries. EPA is anticipating the potential
for a concentrated period of permitting activities at refineries nationwide and wants to ensure that these
activities will be a success, such that the health and environmental benefits associated with low-sulfur
gasoline can be realized in a timely fashion. The Agency hopes that stakeholder involvement in the
development of Tier 2 permitting policy and planning for future permitting activities will yield better
results for the refineries, die permitting authorities and surrounding communities.
D.
ADR Use in Brownfields Pilots
A program of the Office of Site Remediation Enforcement (OSRE) within the Office of
Enforcement and Compliance Assurance (OECA) has employed an ADR technique called
facilitation at several Brownfields sites as part of a pilot project over the past year. Brownfields are
abandoned, idled, or under-used industrial or
commercial properties where expansion or
redevelopment is complicated by real or
perceived environmental contamination. The
purpose of the facilitation pilot is to increase
and enhance community involvement in the
decision making process for Brownfield site
assessment projects.
Facilitation is a voluntary, informal, and
flexible process of communication guided by a
professional neutral. Facilitators can identify
stakeholders and issues, clarify roles and
responsibilities, draft procedural guidelines and
agendas, and document decisions. The Agency
has found that using neutrals in a facilitation
role has provided a better understanding of
stakeholder needs and concerns and opened up
a forum for proposing solutions.
Region 8 Brownfields Pilot Project
At the initiation of a Regional project
manager, key stakeholders engaged in a series of
facilitated collaborative problem solving
meetings in order to discuss alternative clean-up
strategies and potential future land uses at a
Brownfields site in Region 8. The Region
employed a team of facilitators to identify the
stakeholders and facilitate the meetings.
Although each party to the process came in with
their own interests, they agreed to explore ways
to address the interests of other parties. A key
role of the facilitators was to keep the parties
talking and focused on the potential gains of a
collaborative solution. In the end, a new vision
for redevelopment of the site emerged, along
with agreements for implementation of that
vision. Each party's contribution to the final
solution was critical to the overall success of the
remediation and redevelopment plan.
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Region 3 Brownfields Pilot Project
A Brownfields facilitation pilot project in Region 3 is taking place in a rural setting. The
facilitators have helped a community steering committee undertake a visioning process for the future of a
Brownfields site. This visioning culminated in a proposal developed by the committee that offers a great
deal of promise for the future of the community. The facilitated planning work also paid significant
dividends in terms of overall public participation. The first public meeting regarding this site not only
generated a great deal of local interest but also served as an opportunity for cooperation among local,
state, and federal government entities.
The Brownfields facilitation pilot consists of projects at ten specific Brownfields sites
representing a diverse range of redevelopment projects and communities across the country. A
dispute resolution professional has been engaged to work with the parties and public at each site as a
facilitator. For most projects, the facilitation work is limited to 120 hours. Each project has
approached the facilitation process in a unique way so as to best address the dynamics of the
particular site. While each of the projects are at a different stage, EPA is already finding that lessons
from these pilots may be applicable to the Agency's approach to community involvement in the
Brownfields program generally. Three examples of the Brownfields facilitation pilots are described
in the boxes on these two pages.
Region 9 Brownfields Pilot Project
A facilitation pilot was initiated in
Region 9 when the Brownfields project
manager approached Regional and
Headquarters ADR staff seeking assistance in
the handling of a difficult situation at a
Brownfields project site. One landowner
appeared to be creating an intractable obstacle
to remediation and redevelopment efforts. The
services of a professional facilitator helped
clarify options and reestablished
communications between participants at this
site. Ultimately, me difficulties presented by
me landowner were overcome and a
redevelopment plan was generated in which the
jurisdiction of me Brownfields project was
shifted and doubled in area. After EPA's
funding hours for the facilitator were
consumed, the parties independently agreed to
cover the costs of continued facilitation
services — a true measure of success for this
facilitation pilot.
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IV. Accomplishments in Existing ADR Programs
A. Recent Highlights of Existing ADR Programs at EPA
EPA has a rich history of using ADR techniques for conflict resolution among Headquarters
offices and in all ten Regions. This section of the report contains highlights of EPA's mature ADR
programs, presented in five categories. While each program is different hi terms of its operations
and purpose, all have embraced the value and utility of neutral services to advance EPA's
environmental objectives. First, over fifteen years ago, EPA began experimenting with regulatory
negotiation and other consensus-building techniques for developing better regulations that can be
implemented in a less adversarial setting. That work provided a foundation for several other Agency
programs devoted to stakeholder involvement. Second, an enforcement ADR program has been in
existence for more than ten years to promote and facilitate the consideration and appropriate use of
ADR techniques in all Agency enforcement actions. Third, each of the Regions has supported a
variety of ADR activities, including applications in enforcement, workplace disputes, and public
involvement. Fourth, EPA's Administrative Law Judges (ALJs) recently initiated a program to offer
in-house ADR to parties in cases pending an administrative hearing. Fifth, contracts and
procurement officials have incorporated ADR usage into a standard policy in EPA's acquisition
management program.
The successes of these programs over time have contributed to EPA's status as a leader in the
use of ADR in the federal sector. The existing programs have also established a foundation for new
uses of ADR to achieve the Agency's programmatic and administrative goals. Many Agency
personnel have had exposure to ADR through one or more of these programs. The resulting wealth
of expertise makes the Agency particularly well-positioned to address new challenges.
The following program summaries and highlights focus on ADR practices at the Agency that
have been in existence for longer than one year.
1. Stakeholder Involvement Activities
EPA has taken steps over several years to increase the opportunities for and quality of
stakeholder involvement. Three existing programs are worthy of particular note for incorporating
ADR techniques as tools to enhance stakeholder involvement. The Office of Cooperative
Environmental Management within the Office of the Administrator works with stakeholders through
federal advisory committees. The Consensus and Dispute Resolution Program within the Office of
Policy and Reinvention has used neutral facilitators in regulatory negotiation and policy dialogue
activities. The Community Involvement Program within the Office of Solid Waste and Emergency
Response manages a program that uses ADR professionals to assist public participation hi EPA
decisions regarding remedial activities at Superfund sites. Each of these stakeholder involvement
programs is described below.
a. Office of Cooperative Environmental Management
The mission of the Office of Cooperative Environmental Management (OCEM) is to provide
EPA with expert and timely stakeholder advice as national and international environmental policy is
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developed and implemented. OCEM utilizes ADR techniques such as convening and facilitation in
fulfillment of its mission. One of OCEM's principal functions is the oversight of federal advisory
committees under the Federal Advisory Committee Act (FACA). Through advisory committee work
and other efforts, OCEM supports EPA's efforts to create links among decision makers from diverse
disciplines and to make use of technical and policy experts in addressing key environmental issues.
b- Consensus and Dispute Resolution Program
The Consensus and Dispute Resolution Program provided leadership in the stakeholder
involvement arena by introducing the use of negotiation and other consensus-building techniques in
the rulemaking context. Since 1983,
the Consensus and Dispute Resolution
Program has run seventeen regulatory
negotiations and several policy
dialogues between the Agency and
stakeholders. In addition, the
Consensus and Dispute Resolution
Program provides consultation services
to program offices on the design and
implementation of policy dialogues,
consensus-building meetings, and other
intensive stakeholder involvement
processes. Neutral facilitators have
been employed in several of these
projects. As a result of the efforts of the
Consensus and Dispute Resolution
Program, informal and formal
stakeholder involvement in the
Agency's rulemaking activities is
virtually standard practice throughout
the Agency. Active stakeholder
engagement in the development of
Agency rules and policy has yielded
tangible results such as fewer and more
moderate public comments and speedier
implementation of regulatory
Convening Supports Policy Dialogue
Hie convening of (he Endocrine Disrupter
Screening and Testing Advisory Committee (EDSTAC) is
one recent example of where neutrals were used to
enhance stakeholder involvement in a policy dialogue on
an issue of importance to EPA. Dispute resolution
professionals were hired to conduct a convening
assessment to identify major stakeholder interests and to
assist all of the major stakeholder interests ia sorting
through a number of issues regarding the formation of the
proposed EDSTAC. The dispute resolution professionals
engaged in an extensive consultation with representatives
of affected interests through telephone and in-person
interviews, numerous conference calls, and facilitated
discussions with approximately 100 people. Ultimately,
the professionals made recommendations regarding the
make-up of the EDSTAC and initial goals for the
committee. The result of the convening effort was a
broad-based membership for EDSTAC, consisting of EPA,
othejr federal agencies, state agencies, various sectors of
industry, water providers, worker protection organizations,
national environmental groups, environmental justice
groups, public health groups, and research scientists. The
diverse interests represented on the EDSTAC were part of
an effort to ensure that all major stakeholder groups had
their views and interests balanced against the views and
interests of others as the committee adopted a consensus
approach to policy development.
requirements.
c.
Community Involvement Program
The Community Involvement Program within the Office of Solid Waste and Emergency
Response (OSWER) manages the use of dispute resolution professionals to assist the participation of
the affected public in Agency decisions relating to Superfund remedial activities. A variety of
initiatives are currently supported by the Community Involvement Program, including the
availability of facilitation or mediation services on a "just-in-time" basis to address specific site
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problems or general concerns about the Superfund program. In addition, the Program has sponsored
training courses in each Region to enhance the ability of EPA staff to build partnerships and
collaborate constructively with people who live and work near Superfund sites. Finally, a network of
ombudsmen, including the National Hazardous Waste Ombudsman and ten Regional Superfund
Ombudsmen (who serve on a collateral duty basis), has been established to provide timely assistance
to people who are not satisfied with a particular action or activity under the Superfund program. The
ombudsmen do not have authority to change decisions, but they will work with the parties to see if a
mutually acceptable resolution can be reached.
2.
Enforcement
EPA's Office of Enforcement and Compliance Assurance (OECA) manages an enforcement
ADR program that supports and encourages the use of ADR in Agency civil enforcement and
compliance activities. Since 1987, EPA has had a policy on the use of ADR techniques in
enforcement actions. The staff of the OECA ADR program has worked to make the consideration of
ADR standard practice in enforcement cases. The OECA ADR program includes staff at both
Headquarters and in the Regions who provide
dispute resolution services, training,
assistance in evaluating civil actions for
appropriate ADR use, assistance in selecting
ADR professionals, preparation of
procurement documents, and reporting on
OECA ADR activities.
The OECA ADR program uses ADR
techniques to enhance the settlement of civil
actions under a broad range of authorities,
including the Comprehensive Environmental
Response, Compensation, and Liability Act
(CERCLA), Resource Conservation and
Recovery Act (RCRA), Toxic Substances
Control Act (TSCA), the Clean Water Act
(CWA) and the Clean Air Act (CAA). Civil
actions are assisted primarily through the use
of convening and mediation neutrals,
although other ADR processes including
factfinding and arbitration have also been
used. EPA utilizes ADR professionals to
support efforts of private parties to resolve
Superfund site allocation disputes and to
facilitate public participation in site remedy
and policy decisions. In addition, EPA
includes ADR processes in the dispute
resolution provisions of administrative and
judicial settlement documents.
Multimedia Civil Penalty Settlement
One success story of note from the OECA
ADR program involved a mediated settlement of a
multimedia civil penalty case brought against a
large pharmaceutical manufacturing facility located
in Region 1. The case involved alleged regulatory
violations of RCRA, the Clean Water Act, and the
Emergency Planning & Community Right-to-Know
Act. The parties to the case were facing potentially
lengthy litigation when they agreed to consider
ADR. The parties ultimately engaged in a blended
ADR process, including a neutral evaluation phase
and a mediation phase. The parties reached a
settlement, which was ultimately formalized in a
consent decree, under which the respondent
company agreed to pay a substantial penalty in
addition to undertaking two projects to address
chemical waste management at a university and in
high schools. By resolving their dispute in
mediation, both sides saved time and money that
would otherwise have been devoted to litigation. In
addition, the positive experience of working
together to resolve this dispute is likely to improve
the relations of the parties in the future. Finally, the
mediated approach made it easier to deliver a
benefit to the broader community than would have
been possible through a litigated resolution.
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Over the last few years, the OECA ADR program has witnessed a significant increase in the
number of ADR activities initiated. In the early years the program initiated a handful of new ADR
cases each year, but in fiscal year 1997, approximately 30 new cases began. In fiscal year 1998,
approximately 40 cases were initiated. Historically, most enforcement ADR activity was in the
Superfund context,
and this area
continues to be a
focus of the OECA
ADR program.
More recently,
however, the OECA
ADR program has
seen creative uses of
ADR techniques in
settling non-
Superfund disputes.
The potential for
ADR use outside of
the Superfund
program is
tremendous and will
be a growth area for the OECA ADR program in the near future. For example, half of the
enforcement ADR cases initiated in fiscal year 1998 were non-Superfund cases, up from about 20%
non-Superfund in fiscal year 1997.
ADR Yields Settlement in Hotly Contested Penalty Case
Another OECA ADR program success story yielded a settlement of
alkged RCRA violations in a case that appeared to be headed for litigation. A
Region 6 manufacturing facility and EPA became engaged in an intense
disagreement regarding whether a particular treatment and disposal process
constituted a violation of hazardous waste regulations. Further, the parties were
very far apart during preliminary discussions regarding a potential penalty
amount The company proposed that the parties enter into mediation to attempt
to resolve the outstanding issues. After a one day mediation with an outside
professional mediator, it appeared that there would be no settlement of the case.
A day or two later, however, the company called the mediator with a settlement
offer and asked for his assistance in brokering an agreement. Ultimately, the
parties agreed on apenalty amount, a payment schedule, environmental
monitoring, and a change in the company's treatment and disposal practices.
3.
Regional Activities
The Regions are responsible for many innovations in the use of ADR at EPA and
demonstrate that ADR has a broad spectrum of applications. The Regional ADR programs vary
widely in form, however, a few themes emerge as nationally consistent trends. First, ADR use in the
Regions is more established in Superfund than in any other program. Second, ADR awareness is on
the rise as the Regions, with Headquarters support, are finding new and more targeted ways to
educate regional staff about this set of tools. Third, the Regions are developing useful new models
by mixing and matching ADR techniques to meet the needs of particular circumstances. Each of
these points is discussed briefly below.
a. Prevalent Use of ADR in Superfund
The process of integrating the use of ADR into regional practice began in the Superfund
program in the early 90's. With funding and contracting assistance from Headquarters, this
evolution has now progressed to the point where the consideration of ADR is virtually standard
operating procedure in some Regions. In addition to mediated enforcement negotiations, the
Regions are employing neutral facilitators, neutral allocators, ombuds, and partnering consultants to
more effectively involve communities and other stakeholders in remedy decisions.
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Community Facilitation in Superfund Dispute
In a case from Region 1, community dissatisfaction with the traditional Superfund process
prompted EPA to use ADR techniques to create new mechanisms to involve the community and other
voices. These efforts yielded solutions acceptable to all parties. For more than 70 years, a manufactured
gas plant dumped large amounts of waste into adjacent wetlands and a canal, seriously contaminating
groundwater and posing an unacceptable risk to wildlife. EPA's original cleanup plan for the site was met
with strenuous community opposition for being too expensive and intrusive. After months of controversy,
a site Coordinating Council was created as a way to begin a mediated process that would ensure
meaningful involvement of all parties, including companies potentially responsible for the cleanup, state
and federal regulatory agencies, and local interests. Outside dispute resolution professionals were hired to
facilitate Council activities. Ultimately, the Council reached consensus on a recommendation for an
alternative site cleanup plan that met local and regulatory needs — all at a cost of about one-tenth the
original proposal. EPA's final remedy decision adopted the Council's recommendation.
b. Regional ADR Training: The Targeted Approach
The Regions are collaborating with Headquarters, Regional training staff, Federal Executive
Board Neutral Sharing Programs, and professional organizations such as local bar associations and
the Society of Professionals in Dispute Resolution, to provide Regional staff with multi-faceted
ADR training opportunities. Regional staff have been working with outside professionals to develop
training programs with relevance to particular EPA audiences. Examples of recent training
initiatives from some Regions include:
• ADR case presentations/discussions to promote awareness of new applications of ADR in
specific contexts (tribal issues, community controversy, access disputes, regulatory penalty
mediation, etc.)
• training (provided by Regional trainers) on the use of interest-based problem solving as a
technique for organizational success and a method for improving collaborative decision
making;
• intensive mediation and facilitation programs for those who are more directly involved in
regional ADR activities; and
• the inclusion of mediation and collaborative decision-making components in broader
trainings such as the negotiation training offered to Regional wetlands staff which
significantly incorporated ADR principles and role plays.
c. Development of New ADR Models
The Regions have found that one of the most attractive features of ADR in the environmental
context is its adaptability to the infinitely varied requirements of particular circumstances and
parties. In designing appropriate processes on a case-by-case basis, certain templates are emerging
which have relevance to whole categories of situations faced by the Regions.
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An example is what might be called the
"mediative facilitation," that is, the use of a
facilitator who is also a skilled mediator. This
phenomenon has sprang up independently on both
coasts in response to situations where parties are
apprehensive about the idea of mediation, but
anxious to have help managing their meetings. By
providing a facilitator who is also an experienced
mediator, the Regions have maximized the
possibility that the group will receive the fullest
benefit of ADR. Other hybrids involving a mix of
facilitative and evaluative components have also
been devised to advance settlement negotiations in
unusual circumstances.
Using ADR to Consult with Stakeholders
A recent example of Regional
creativity in addressing program needs
through use of ADR techniques occurred in
Region 3, where the contracts office worked
with the Regional ADR specialist and a
representative of the Water Protection
Division to quickly assemble a team of
mediator/facilitators for a Source Water
Protection Program Roundtable conference.
The roundtable brought together many
stakeholders involved in the problem of
protecting drinking water sources. Led by the
professional neutrals, the stakeholders
participated in a consultative process, the
results of which ultimately fed into the
development of policy and guidance on this
subject.
Federal, State, Local Agencies Use ADR to
Reach Agreement on Air Program
One successful application of
mediative facilitation in Region 9 involved the
negotiation of guidelines governing the
development of operating permit conditions
that satisfy the "periodic monitoring"
requirements of Title V of the Clean Air Act
A Region 9 employee, serving as an in-house
neutral, facilitated an agreement between EPA,
the California Air Resources Board, and local
air quality districts. The process began with a
series of interviews to synthesize the interests,
issues, and ideas from each participant.
Following this initial step, the parties held a
series of meetings during which the facilitator
helped representatives of the various
regulatory authorities come to a consensus-
based agreement on the framework and criteria
for a set of guidelines. During the meetings,
the facilitator helped move the parties away
from mere reiteration of their positions and
towards an objective review of the problem
and identification of common interests. The
result was a jointly crafted set of
recommendations that satisfied all of the
participants and will provide a basis for
avoiding future disputes on Title V permit
conditions pertaining to periodic monitoring.
ADR Assists Labor-Management Relations in Region 9
The Regions have also found ways to incorporate ADR use as a means of addressing
organizational challenges. For example, in designing a Labor Management Partnership Council (LMPC)
for Region 9, union and management representatives agreed to use the interest-based process as one of
the methods for addressing issues. They also agreed that the services of a neutral facilitator would be
helpful. The facilitator, who is currently a Region 9 employee, has delivered training to the LMPC on the
use of an interest-based process for conducting Council business and assists members in moving through
a wide variety of issues that are before the LMPC. The interest-based model differs from traditional
party-to-parry negotiation in that it enhances the opportunities for the participants to develop creative
solutions that address all stakeholder interests and does not presume that interests must be compromised
in order to resolve a problem.
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4.
ALT Program
Beginning in fiscal year 1997, the Office of Administrative Law Judges (OALJ) developed an
ADR program as an alternative method for concluding administrative enforcement cases pending
before OALJ. In the initial year of the ADR program, the Judges applied ADR in about 50 test
cases. This test proved so successful that OALJ sharply expanded its use of ADR in fiscal years
1998 and 1999. ADR techniques were used in over 150 cases in each of the last two years. Current
policy is to offer the use of ADR in virtually all of the cases that come under the jurisdiction of
OALJ.
The form of ADR that
OALJ uses is mediation, generally
facilitative, and sometimes
evaluative. One of OALJ's ten
Judges serves as the neutral. If the
ADR process does not produce a
settlement, the case is transferred
to another Judge to preside over
litigation which culminates in a
decision from the Presiding Judge.
There is no communication about
the case between the neutral Judge
and the Judge who presides over
the litigation; the ADR
proceedings are held in confidence
by the neutral Judge.
OALJ offers ADR in cases
under a variety of environmental
statutes, including the Clean Air
Act, the Clean Water Act, the
Resource Conservation and
Recovery Act, the Toxic
Substances Control Act, the
Federal Insecticide, Fungicide and
Rodenticide Act, and the
Emergency Planning and
Community Right-to-Know Act.
Most cases coming before OALJ
are governed by EPA's
Consolidated Rules of Practice hi
40 C.F.R. Part 22. Section 18 of
these regulations were recently
amended to facilitate the use of
ADR.
ADR Use by EPA's Administrative Law Judges
A recent case from the OALJ program illustrates several
recurrent themes. This case involved a governmental
Respondent. EPA and local inspections of Respondent's
facilities led to EPA's issuance of several complaints alleging
numerous violations of the Resource Conservation and Recovery
Act, demanding civil penalties approaching a million dollars, and
the implementation of extensive corrective measures.
Judge Stephen McGuire served as the neutral and
worked entirely through teleconferences. When the ADR began,
the positions of the parties seemed unbridgeably far apart, with
little common ground. Judge McGuire started by focusing the
parties' attention on possible points of agreement that could be
extracted from this limited common ground. To keep the
discussions moving, Judge McGuire scheduled weekly
teleconferences and regularly assigned the parties preparatory
work to be done for the next week's teleconference.
Agreement on minor points arising out of the parties'
limited common ground was eventually achieved. This
achievement created a sense of joint purpose between the parties.
According to the later testimony of the parties themselves,
imbued by this sense of joint purpose they each stopped focusing
on advocating their own position, and started to concentrate on
understanding the goals of the other side and addressing its
concerns. Here the parties were aided by periodic evaluations by
the Judge McGuire of the merits of their respective positions.
After almost half a year of teleconferencing, the parties
agreed to settlements concluding all the enforcement cases. The
civil penalties that were agreed to totaled less than a hundred
thousand dollars, but Respondent agreed to implement corrective
measures that would improve significantly its hazardous waste
handling and storage practices. Respondent came to view
adoption of these corrective measures as representing very much
its own self interest. Thus the ADR process both saved the
parties the time and expense of a litigated hearing, and also
produced an end result that each side saw as answering its basic
concerns.
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OALJ tested the use of ADR in fiscal year 1997 in the hope that it would speed OALJ's
processing of cases. Administrative litigation is usually a lengthy procedure. Each of the normal
steps leading to the Presiding Judge's decision - making motions, filing briefs, convening a hearing,
examining and cross examining witnesses - takes time and effort. By contrast, a mediation process
in which the parties are encouraged to exchange views informally and then try to develop a
compromise resolution that answers some of the basic interests of both parties, is generally much
faster and less resource intensive.
As the OALJ mediation program has gained maturity, a second benefit has appeared, i.e., the
ability to implement creative resolutions, such as those involving environmentally beneficial projects
undertaken by the respondent. In a case that is litigated, usually the only sanction that a Judge can
impose is a civil penalty. Furthermore, that civil penalty goes into the federal treasury and is not
earmarked for environmental purposes. Through mediation, however, the parties might agree to a
reduced civil penalty if the respondent implements a project that benefits the environment and is
beyond what is required by environmental law. Such projects are known officially as Supplemental
Environmental Projects (SEPs). Typically, a respondent spends significantly more money on a SEP
than the reduction it receives in the civil penalty. Thus, the mediation process opens up
opportunities to craft resolutions with tangible environmental benefits.
The ready availability of ADR through the efforts and procedures of OALJ enhances the
visibility of ADR both within EPA and the regulated community. In addition, OALJ's ADR
program contributes to the efficiency of EPA's administrative enforcement practice and provides an
incentive for seeking enhanced environmental benefit in administrative enforcement cases.
5. Contracts and Procurement
EPA's efforts to pursue the use of alternative dispute resolution techniques in the contracts
and procurement operations of the Agency are led by the Office of Acquisition Management (OAM),
in coordination with the Office of General Counsel. OAM has issued a formal written policy
governing the use of ADR techniques in connection with Agency-level protests, protests filed with
the General Accounting Office, and disputes filed in accordance with the Contract Disputes Act.
OAM has further pledged to advance the use of ADR techniques in all areas of EPA's contracting
nationwide. During 1999, OAM staff, along with attorneys from the Office of General Counsel
developed an alternative dispute resolution awareness training course to be incorporated into the
contracting officer course curriculum. OAM has an objective to begin delivery of the course to all
Agency contracting officers during fiscal year 2000.
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V. Partnerships with Other Federal Agencies
A. Interagency Agreements with the U.S. Institute for Environmental Conflict Resolution
The U.S. Institute for Environmental Conflict Resolution (Institute) is a newly-created federal
agency that operates under the Morris K. Udall Foundation located in Tucson, Arizona. The
Institute's role is to assist in the resolution of environmental conflicts that involve a federal agency
or interest. The Institute has specialized expertise with ADR techniques used in the environmental
arena and maintains a network of programs and dispute resolution practitioners nationwide that can
be employed for conflict resolution projects. EPA supports the Institute's role and plans to work
closely with the Institute as a federal sector partner. Currently, the Agency is engaged in three
initiatives with the Institute through interagency agreements. These initiatives are described in the
sections that follow.
1. Development of the Environmental ADR Neutrals Roster
Over the past few years, EPA has been exploring mechanisms to broaden access to ADR
practitioners for environmental disputes. The Agency is especially interested in increasing its
capacity to utilize well-qualified practitioners in localized disputes. Through an interagency
agreement, the Agency has engaged the Institute to help develop a roster of Environmental Dispute
Resolution and Consensus Building Professionals. The roster will include practitioners with
experience as neutrals on environmental issues. It will serve as a resource for the Institute in making
referrals and sub-contracting with practitioners on federal projects and as a resource for federal
agencies when seeking to contract with a practitioner.
The Institute developed criteria for inclusion on the roster and designed the function of the
roster database with input from a workgroup including EPA personnel. The Institute will administer
the roster, including the review of applications from professionals who desire to be included in the
roster. The initial application period for inclusion on the roster ran through the fall of 1999. EPA
should be able to gain access to the roster early in calendar year 2000.
2. EJ/Title VI Stakeholders Training Initiative
Controversies involving environmental justice (EJ) and discrimination complaints under Title
VI of the Civil Rights Act of 1964 (Title VI) can arise at any stage of a federal action. Experience
has shown that the use of collaborative problem solving as early as possible is effective in resolving
other kinds of disputes. ADR is an important, but as yet largely unexplored, tool for bringing about
constructive resolution of EJ and Title VI matters. As discussed above in Section III.B. of this
report, application of ADR in Title VI and EJ contexts is a priority for the Agency's ADR program
and initial efforts are underway to address this need. In order to build capacity for ADR use in these
disputes, the Senior Counsel for ADR in cooperation with EPA's Office of Environmental Justice,
Office of Civil Rights, and representatives from selected EPA Regions will work with the Institute to
develop a training module to introduce a broad spectrum of stakeholders to ADR techniques and
their potential use in the EJ/Titie VI context.
This project has been funded through an interagency agreement with the Institute, and will
include delivery of a culturally sensitive training course for a diverse group of stakeholders. After
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delivery of the training, the Institute and EPA will jointly review the findings, the lessons learned
and will evaluate the training to measure the increased awareness of the participants of the
application of ADR techniques to EJ and Title VI disputes. The Institute and EPA will jointly
develop and contribute to a presentation of this information to EPA staff with responsibility for EJ
and Title VI issues.
3. ADR Specialists Consulting and Convening Training
EPA's regulatory responsibilities require that staff level enforcement personnel negotiate
with regulated industry in an effort to resolve civil enforcement actions where appropriate to avoid
the delay and expense of litigation. A negotiation resource of increasing importance to EPA
enforcement and compliance negotiations is the use of ADR techniques. While EPA often makes
use of third-party neutrals to serve as mediators and/or facilitators, complex negotiations involving
large numbers of parties, highly technical issues, and/or intergovernmental disputes require in-house
expertise to help initiate and sustain an ADR process. EPA's Enforcement ADR Specialists provide
consultation to EPA negotiators regarding the nature of an ADR process. In addition, the Specialists
may need to engage external parties. The Institute is developing an advanced training program for
EPA Enforcement ADR Specialists that will focus on consulting and convening skills that can be
applied both within EPA and with external parties.
B. EPA Mentoring Activities
Through the activities of the Interagency Alternative Dispute Resolution Working Group
(IADRWG), EPA has had several opportunities to serve as a mentor to and receive mentoring from
other federal agencies. The Civil Enforcement Section of the IADRWG established consultation
teams that served as consultants to federal agencies working on establishing and developing civil
enforcement ADR programs. The multi-agency teams were led by EPA and provided services to
several individual agencies. EPA was also the recipient of advice regarding the development of
ADR programs in areas other than civil enforcement. Specifically, EPA has benefitted from the
expertise of other agencies with mature workplace ADR programs. The mentoring relationships that
EPA has been involved in have strengthened EPA's relationships with other ADR practitioners in
the federal sector, and have enriched the Agency's own ADR work.
C. EPA Participation in Federal Shared Neutrals Program
The Federal Shared Neutrals program is a service through which federal agencies can obtain
low cost, high quality mediators from other participating agencies. The mediators in the program
provide mediation services throughout the federal government on a collateral duty basis. EPA
participates in this program by both supplying EPA employees who serve as mediators and by using
the services of mediators from other agencies to resolve disputes at EPA. The Federal Shared
Neutrals Program exists not just in Washington, D.C., but in localities across the country where there
is a federal presence. Region 10 participates in a federal shared neutrals program in the Seattle area
that was honored earlier this year by the Office of Personnel Management.
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VI. Conclusion
EPA's ADR program has achieved significant successes both recently and over the course of
its history. The call to action by the President and the Attorney General in 1998 provided a special
impetus for organizational and programmatic improvements in the Agency's approach to ADR.
During the last year and one half in particular, several new or expanded ADR programs have been
launched. These programs will bring ADR techniques to some of EPA's priority areas, such as
resolution of workplace complaints and grievances, problem-solving in the areas of Title VI and
environmental justice, and new methods of ensuring meaningful public participation in permitting
and site redevelopment processes. Meanwhile, EPA's more established ADR programs continue to
demonstrate success through the use of collaborative processes in a variety of contexts. Finally, EPA
has begun to take advantage of partnerships with other federal agencies as an efficient means of
expanding capacity for ADR applications throughout the federal sector. All of these activities are a
credit to the Agency's willingness to use innovative tools such as ADR to achieve the Agency's
broader programmatic and organizational objectives. The lessons learned thus far in EPA's ADR
experience provide a foundation for a more complete assessment of how use of third party neutrals
may improve Agency decision making and prevent and resolve conflict.
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