United States Office Of Site Remediation EPA-330-R-00-001
Environmental Protection Enforcement December 1999
Agency
EPA Status Report on the Use of
Alternative Dispute Resolution in
Environmental Protection Agency
Enforcement and Site-Related
Actions
(Through Fiscal Years 1997 & 1998)
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Contents
EXECUTIVE SUMMARY 1
OVERVIEW OF ERA'S ENFORCEMENT ADR PROGRAM 3
DEVELOPMENTS IN ADR 5
FEDERAL LAW AND POLICY 5
1. Administrative Dispute Resolution Act 5
2. Alternative Dispute Resolution Act 5
3. Civil Justice Reform Act 5
4. The Executive Order on Civil Justice Reform 6
5. Department of Justice Guidance on the Use of ADR 6
6. National Performance Review 6
7. Guidance on the Use of Alternative Dispute Resolution in EPA Enforcement Cases 6
ADR PROGRAM INITIATIVES 6
1. Background: The History of Enforcement ADR Program Initiatives 6
2. Use of ADR in Superfund Remedy Disputes 7
3. Allocations Pilot 7
4. Brownfields Facilitation Pilots 7
OFFICE OF ADMINISTRATIVE LAW JUDGES'ADR INITIATIVE 8
FINANCIAL SUPPORT FOR USE OF ADR 9
ADR TRAINING 9
ADR SPECIALISTS 11
ADR SPECIALISTS ROSTER 13
SUMMARY OF ADR USE IN ENFORCEMENT PROGRAMS 15
CASE DESCRIPTIONS: ADR Cases Active During FY 97 or FY 98 21
Region 1 21
Region 2 32
Regions 34
Region 4 42
Region 5 48
Region 6 54
Region 7 55
Region 8 56
Region 9 63
Region 10 66
CONSENT DECREES THAT INCLUDE ADR PROVISIONS 67
SAMPLE CONSENT DECREES THAT INCLUDE ADR PROVISIONS 71
EXPLANATION OF TERMS 77
ADR PROCESS 77
KEY TO ABBREVIATIONS 78
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EXECUTIVE SUMMARY
Both the Administrative Dispute Resolution Act
(ADRA) and enforcement alternative dispute
resolution (ADR) guidance issued by the
Environmental Protection Agency (EPA) encourage
the use of ADR mechanisms where a prompt and
fair resolution of a site-specific dispute might result.
During the F Y 97/98 reporting period, Congress
passed two laws aimed at promoting further use
of ADR. The Administrative Dispute Resolution
Act of 1996 amended the ADRA and provided
for the creation in September 1998 of the
Interagency ADR Working Group (IADRWG),
which is tasked with encouraging the use of
ADR by federal agencies. Congress also passed
the Alternative Dispute Resolution Act of 1998,
which requires each United States district court
to adopt local rules authorizing the use of ADR
in civil actions and to make qualified neutrals
available to the parties to those actions.
The use of ADR in enforcement cases reached
new highs during the FY 97/98 period, extending
a period of consistent growth in ADR use that
began in the early 1990s. ADR use was initiated
in 72 cases in FY 97 and in 116 cases in FY 98
Over the history of the program, approximately
43 percent of all ADR use has been in cases
involving the Comprehensive Environmental
Response, Compensation, and Liability Act
(CERCLA, the Superfund law), with less
frequent use in cases involving other statutes,
including the Clean Water Act, Clean Air Act,
and Resource Conservation and Recovery Act.
In recent years, however, an emphasis on
increasing the awareness and use of ADR
outside the Superfund arena and the creation of
the Office of Administrative Law Judges' ADR
initiative for administrative penalty cases have led to
an increase in the number of non-CERCLA ADR
cases. In FY 97, non-CERCLA cases constituted a
maj ority of new cases initiated for the first time.
More than 70 percent of all enforcement ADR cases
have involved the use of mediation. Other
commonly used ADR processes are convening
(13 percent) and facilitation (11 percent). The
issues to which these ADR processes have been
applied have historically related primarily to
Superfund allocation, cost recovery, and RD/RA
negotiations, but as the program has diversified,
other issues have become more common. The
issue with the most notable growth in the
FY 97/98 reporting period is penally disputes,
which are increasingly being addressed using
ADR as the Office of Administrative Law
Judges' initiative grows.
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OVERVIEW OF ERA'S ENFORCEMENT ADR PROGRAM
The Environmental Protection Agency (EPA, or the Agency) utilizes alternative dispute resolution
(ADR) to facilitate the settlement of conflicts related to environmental enforcement actions and site-
related disputes. It is the policy of the Agency to consider the use of ADR in every dispute and to
use ADR whenever it may result in a more efficient or equitable resolution ("Final Guidance on Use
of Alternative Dispute Resolution Techniques in Enforcement Actions," August 1987).
The Agency has utilized ADR to facilitate 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), Clean Water Act (CWA), and Clean Air Act (CAA).
Early ADR efforts primarily involved CERCLA cases, but recently the use of ADR in non-CERCLA cases
has become equally common. Civil actions have been assisted primarily through convening and mediation
neutrals, though other ADR processes have been used. Finally, EPA has included ADR processes in the
dispute resolution provisions of administrative and judicial settlement documents.
Responsibility for the Enforcement ADR Program was delegated to the Assi stant Admini strator for
Enforcement (now the Office of Enforcement and Compliance Assurance) in June 1990. In
November 1990, the Office of Enforcement adopted an Agency-wide ADR program that made the
routine consideration and appropriate use of mediation, arbitration, and other ADR processes
standard operating procedure for resolving civil actions.
The Office of Enforcement and Compliance Assurance (OECA), through the Agency's Enforcement
ADR Program, provides assistance to EPA headquarters and regional offices, the Department of
Justice (DOJ), state and local governments, and private parties for the use of ADR in environmental
enforcement actions and site-related disputes. This assistance includes provision of neutral services,
training in the use of ADR, technical assistance in the review of potential cases and preparation of
required procurement documents, identification of qualified ADR practitioners, payment of
government expenses related to the use of ADR for environmental enforcement cases, and
publication of a periodic status report on Agency-wide ADR activities.
For information about the EPA Enforcement ADR program, contact David C. Batson,
Senior ADR Specialist, (202) 564-5103; Lee Scharf, ADR Specialist and Program
Coordinator, (202) 564-5143; or any Regional ADR Specialist.
Seepage 13 for the ADR Regional Specialists Roster.
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DEVELOPMENTS IN ADR
FEDERAL LAW AND POLICY
1. Administrative Dispute Resolution
Act
The 1990 Administrative Dispute Resolution Act
(ADRA), Pub. L. No. 101-552 (codified as 5
USC § 571 et seq.) encourages each federal
agency and department to use ADR techniques,
including mediation, conciliation, and
arbitration, to resolve public conflicts over which
it has jurisdiction. The statute requires that each
federal agency and department designate a
"Dispute Resolution Specialist" to implement
ADRA provisions within that agency or
department, and provide dispute resolution
training for its staff. The statute also provides
guidelines for procuring dispute resolution
assistance, authorizes and sets parameters for the
use of arbitration, and provides for the
confidentiality of ADR procedures. The
Assistant Administrator for Enforcement and
Compliance Assurance is EPAs designated
Dispute Resolution Specialist.
The ADRA was significantly amended by the
Administrative Dispute Resolution Act of 1996,
Pub. L. No. 104-320. Perhaps the most
significant of these amendments provides for the
creation of an interagency committee to
encourage and facilitate the use of ADR by
federal agencies and to develop procedures that
permit those agencies to obtain the services of
neutrals on an expedited basis. In response to
the 1996 amendments, President Clinton, in a
presidential memorandum dated May 1, 1998,
directed Attorney General Reno to convene the
Interagency Alternative Dispute Resolution
Working Group (IADRWG), which has begun
working to fulfill its statutory mandate. The
Enforcement ADR Program has played an
important role in supporting the work of the
lADRWG's Civil Enforcement Section,
providing examples of successful ADR use and
information on how to develop an ADR
program, and consulting with personnel from
agencies designing new ADR programs. Further
information about the IADRWG is available on
the Internet at http://www.fmancenet.gov/
iadrwg.htm. The amendments also included a
provision explicitly exempting communications
falling within the confidentiality provisions of
the ADRA from disclosure in response to
requests submitted under the Freedom of
Information Act when those communications
pass through the hands of a neutral.
2. Alternative Dispute Resolution Act
The Alternative Dispute Resolution Act of 1998,
Pub. L. No. 105-315 (codified at 28 USC § 651
et seq.) requires each United States district court
to adopt local rules authorizing the use of
alternative dispute resolution processes in civil
actions and to make qualified and trained
neutrals available for use by the parties. Each
court must make available to litigants in all civil
cases at least one ADR process, and the local
rules must require litigants to consider the use of
an ADR process at an appropriate stage in the
litigation (although a court may exempt cases or
categories of cases from this requirement when
the use of ADR would not be appropriate). In
addition, a court may elect to order the use of
mediation or early neutral evaluation, and may
order arbitration with the consent of the parties.
3. Civil Justice Reform Act
The Civil Justice Reform Act of 1990 (Pub. L. No
101-650) establishes as federal policy the use of
ADR to facilitate civil actions and other disputes
involving the United States. Among other
initiatives, the Act established pilot programs in
the use of ADR in 15 district courts and
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authorized federal judges to require the use of ADR
processes in case management procedures.
4. The Executive Order on Civil Justice
Reform
The Executive Order on Civil Justice Reform
(Executive Order No. 12988, 1996) dictates, in
part, that attorneys representing the federal
government utilize ADR to promote the prompt
and proper settlement of public disputes.
Specifically, the Executive Order requires that
counsel for the United States attempt settlement,
including advising opposing counsel of the
potential for ADR use in appropriate matters prior
to the initiation of litigation. When reviewing,
promulgating, or developing proposals for new
legislation, government agencies should, among
other requirements, specify whether dispute
resolution techniques are appropriate in
enforcement provisions. Executive Order No.
12988 superseded Executive Order No. 12778
(1991), which also addressed the use of ADR in
civil justice reform.
5. Department of Justice Guidance on
the Use of ADR
To implement the 1991 Executive Order on Civil
Justice Reform (Executive Order No. 12778), the
Department of Justice issued "Guidance on the
Use of Alternative Dispute Resolution for
Litigation in the Federal Courts"
in August 1992. This guidance document
specifies that government attorneys should use
ADR whenever the use of ADR is likely to
contribute to a prompt, fair, and efficient
resolution of a civil action. The guidance
document also discusses ADR processes, the
characteristics of cases suitable for ADR, and
procedures for the selection of neutral parties for
dispute resolution. To make clear the Department
of Justice's commitment to greater use of
alternative dispute resolution, case identification
criteria for ADR were published in the Federal
Register on June 17, 1996.
6. National Performance Review
The National Performance Review (NPR),
conducted for the Office of the President during
1993-94, strongly emphasizes the use of ADR by
federal agencies as a tool to increase the
efficiency of government practice. In particular,
the NPR recommends that federal agencies
establish policies to use ADR in all appropriate
federal disputes and train all personnel in the
effective use of ADR.
7. Guidance on the Use of Alternative
Dispute Resolution in EPA
Enforcement Cases
It is the stated policy of the Environmental
Protection Agency to utilize alternative dispute
resolution mechanisms in all Agency
enforcement actions where a more prompt and
fair resolution of a dispute could potentially
result ("Final Guidance on the Use of Alternative
Dispute Resolution in EPA Enforcement Cases,"
August 1987). This ADR enforcement guidance
establishes that it is EPA policy to utilize ADR
in the resolution of appropriate civil enforcement
cases, describes some applicable types of ADR
and the characteristics of cases that might call for
the use of ADR, and formulates case selection
and neutral selection procedures, as well as
neutral qualifications and procedures for the
management of cases in which some or all issues
are submitted for alternative dispute resolution.
ADR PROGRAM INITIATIVES
1. Background: The History of
Enforcement ADR Program Initiatives
To test the use of mediation in civil actions under
the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), the
Office of Regional Counsel (ORC) in Region 5
successfully completed a pilot program in FY
1991. The pilot included cost recovery and
remedial design/remedial action cases. The
mediations were funded by all parties in the
disputes, including EPA. Settlement agreements
were reached in five of the six cases. Region 5
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ORC concluded that with proper evaluation, the use
of mediation could and should be expanded in
Superfund cases and also applied to Resource
Conservation and Recovery Act (RCRA) cases at
both the state and federal level.
Beginning in FY 1993 and 1994, EPA conducted
the first of three rounds of Superfund Reforms to
explore options for making administrative
improvements to the Superfund program. One of
the main objectives of the reforms was to pilot
programs that would increase the fairness of
enforcement activities and reduce the transaction
costs of the Superfund program. As part of the
initiative, the Agency conducted a pilot using
professional neutrals to assist private parties in
resolving site cost allocation disputes. Allocation
efforts at over 20 Superfund sites were supported
by this effort, which included consultation on the
use of ADR and funding for neutral services.
2. Use of ADR in Superfund Remedy
Disputes
During FY 1994, the Agency initiated a pilot to
explore the use of ADR in facilitating public
participation in Superfund site remedy selection
and implementation efforts. The Boston
Regional Office, with ADR assistance from the
Office of Enforcement and Compliance
Assurance (OECA) and the State of
Massachusetts, established a facilitation program
to assist discussions with the public and the
regulated community. Facilitation was used at
two Superfund sites to develop a scope of work
for remedial design efforts and a remedy
implementation plan. For more information,
contact Ellie Tonkin, Region 1 ADR Specialist,
at (617) 918-1726.
3. Allocations Pilot
During FY 1994, the Agency undertook a major
legislative effort to revise CERCLA. The
proposed legislation (FIR 3916) established a
comprehensive system for allocating
responsibility for site costs among private and
public parties at Superfund sites, which would
establish the basis for settlement efforts with the
United States. Though the proposed legislation was
not enacted, much of the second round of Superfund
Reforms explored options for incorporating aspects
of the proposed legislation into Agency practice.
One of these initiatives was a pilot of the allocation
system contained in FIR 3 916 to evaluate the
fairness of the system and its effectiveness in
reducing transaction costs. Under the pilot, PRPs at
nine sites were given the opportunity to nominate
other parties, then selected a neutral allocator to
conduct a non-binding, out-of-court process
resulting in an allocation report. The report assigned
shares of responsibility to PRPs based on a number
of equitable factors. Parties were then offered an
opportunity to settle with EPA based on the shares
allocated to them by the neutral allocator. Under the
pilot's allocation process, EPA is responsible for
100% of the orphan share, which includes the shares
of defunct or insolvent parties. Participating parties
generally believed that the use of neutrals was
beneficial to the process, and the neutrals often
served not only as allocators, but also as mediators
encouraging settlement.
4 Brownfields Facilitation Pilots
On May 13, 1997, Vice President Al Gore
announced the Administration's Brownfields
National Partnership Action Agenda. Included
in the Agenda is the use of ADR to expedite the
cleanup and sustainable reuse of brownfield
properties. A brownfield is a site, or portion
thereof, that has actual or perceived
contamination and an active potential for
redevelopment or reuse. The ADR tool of
facilitation has already been successfully used at
a number of EPA's brownfield pilot sites. For
example, in Dallas, Texas, residents used a
facilitator to develop and coordinate a multi-
level outreach and communications strategy,
ensuring the involvement and input of business,
industry, federal, state, and local governments,
communities, regulators, and developers in the
brownfield pilot work. Another brownfield
facilitation took place in New Orleans,
Louisiana, where 65 percent of the city's population
is African-American, most living within a "Chemical
Corridor" through which hazardous waste is
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transported. Here a facilitator was used to identify
stakeholders and ensure that all were fairly
represented during pilot activity discussions. The
Agency has begun to build upon these successes by
selecting nine brownfield pilot sites to use facilitation
in FY 99. For more information contact Lee Sharf,
Office of Site Remediation Enforcement, at (202)
564-5143.
OFFICE OF ADMINISTRATIVE
LAW JUDGES' ADR INITIATIVE
In F Y97, the Office of Administrative Law Judges
(OALJ) tried ADR on about 50 cases to test its
value as a method for concluding administrative
enforcement cases pending before OALJ. The test
proved successful. Consequently, OALJ has
expanded its use of ADR, and OALJ ADR has now
become the ADR process EPA enforcement
personnel participate in most frequently.
The form of ADR that OALJ utilizes is mediation.
One of the office's 10 judges serves as the neutral.
If the ADR process does not produce a settlement,
the case is transferred to another OALJ judge who
presides over litigation leading to a decision that
resolves the case. There is no communication about
the case between the judge who mediates and the
judge who presides over the litigation; the mediation
proceedings are held in confidence by the neutral
judge.
OALJ offers ADR in cases under all the
environmental statues that come before it. These
statues include the Clean Air Act, Clean Water
Act, Resource Conservation and Recovery Act,
Toxic Substances Control Act, Federal
Insecticide, Fungicide, and Rodenticide Act, and
the Emergency Planning and Community Right-
to-Know Act. Most of the cases coming before
the office are governed by EPA's procedural
regulations at 40 CFR Part 22. Section 18 of this
part was recently amended to facilitate the use of
ADR (40 Fed. Reg. 40,176,40,182(1999)).
OALJ hoped that the use of ADR would speed the
office's processing of cases, since 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, mediation — encouraging the
parties to exchange views informally and develop a
compromise resolution that answers some of the basic
interests of both parties—is generally much faster
and easier.
As OALJ has continued to use mediation, a second
benefit has appeared: concluding a case partly
through an environmentally beneficial project
undertaken by the respondent. In a case that is
litigated, usually the only sanction the judge can
impose on the respondent is a civil penalty. In
mediation, however, the parties can agree that the civil
penalty ordinarily payable will be reduced if the
respondent implements a proj ect that benefits the
environment and that is beyond what is required by
environmental law. Such a proj ect is known officially
as a supplemental environmental project (SEP).
Normally the respondent spends significantly more
money on the SEP than the reduction it receives in the
civil penalty. Thus the environment is improved more
than it would be even if the entire civil penalty that the
respondent would otherwise pay were applied to
environmental purposes. In fact, most civil penalties
go into the federal treasury without any earmarking
for environmental purposes, so an additional
advantage of SEPs is that they target some of the
benefits of the remedy agreed to in a settlement to the
area that was affected by the violation. Respondents
often agree to SEPs because all the dollars spent go
to improving some aspect of the respondent's own
physical environment.
A recent case illustrates several recurrent themes in
OALJ ADR cases. This case involved a
governmental respondent. EPA and local inspections
of the respondent's facilities led EPA to issue several
complaints alleging numerous RCRA violations, and
demanding civil penalties approaching $1 million and
the implementation of extensive corrective measures.
The RCRA violations concerned Subtitle C
hazardous waste management and Subtitle I
underground storage tank provisions, including record
keeping, reporting, corrosion protection, closure,
corrective action, and training requirements.
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The judge serving as the neutral worked entirely
through teleconferences. When the ADR began,
the positions of the parties seemed unbridgeable,
and shared little common ground. The neutral
judge 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, the neutral judge
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,
once imbued with 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 neutral
judge 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 $100,000, but the
respondent also agreed to implement corrective
measures that would improve significantly its
hazardous waste handling and storage practices.
The 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 a result that
each side saw as answering its basic concerns.
FINANCIAL SUPPORT FOR USE OF
ADR
Since fiscal year 1990, the Office of
Enforcement and Compliance Assurance and its
predecessors have dedicated funds to provide
ADR training for EPA staff, to support regional
offices considering the use of ADR, and to pay
for the government's share of ADR professional
services in Superfund cases. The ADR Fund is
accessible through the ADR specialists at EPA
headquarters and the regions. Beginning in FY
1996, funding for retaining the services of ADR
professionals in Superfund cases and ADR staff
resources was included in the budget of EPA
regional offices. Funds for the use of ADR
professionals in enforcement actions under other
statutory authorities are available on a case-by-
case basis. For additional information, contact
the EPA Senior ADR Specialist, David Batson,
at (202) 564-5103, or the appropriate regional
ADR specialist.
ADR TRAINING
Both introductory and advanced training
programs in the use of ADR in environmental
enforcement matters and site-related disputes are
provided annually to EPA regional and
headquarters offices.
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ADR SPECIALISTS
The Environmental Protection Agency ADRProgram is staffed by a dedicated group of ADR professionals
at headquarters in Washington, D.C. and each regional office who are trained to support the use of ADR in
Agency actions. A wide range of consultation and support services is available from the ADR program
staff, including provision of neutral services, training in the use of ADR, technical assistance in the review of
potential cases and preparation of required procurement documents, payment of government expenses
related to the use of ADR for environmental enforcement cases, and publication of a periodic status report
on Agency-wide ADR activities.
David C. Batson
Mr. Batson serves as the Senior ADR Specialist for enforcement and site-related matters. Mr. Batson
coordinates ADR Program implementation within the Agency and serves as a neutral consultant and
convener regarding the use of ADR. Mr. Batson also serves as a mediator and allocation specialist in
appropriate matters and as a facilitator in public policy dialogues and intra-agency disputes. He has
extensive training and experience as an ADR professional with public and organizational disputes. Mr.
Batson is available for consultation on the use of ADR generally and in specific cases. He can be
reached at (202) 564-5103, by fax at (202) 564-0093, or by electronic mail at batson.david@epa.gov
(EPA headquarters/mail code 2273 A).
V. Lee Scharf
Ms. Scharf serves as the ADR Program Coordinator for enforcement and site-related matters. As
Program Coordinator she consults with Regional ADR Specialists on general ADR issues as well
as ADR implementation. She manages a pilot designed to use facilitation at brownfield sites. Ms.
Scharf serves as a neutral consultant and convener regarding the use of ADR and is a trained
community mediator and facilitator. Ms. Scharf also serves as a resource for ADR contracts
issues, ADR policy evaluation, and case-specific conflict analysis. She can be reached at (202)
564-5143, by fax at (202) 564-0091, or by electronic mail at scharf.lee@epa.gov (EPA
headquarters/ mail code 2273A).
Regional ADR Specialists
Regional ADR Specialists are located in each regional EPA office to provide consultation and
support on the use of ADR in regional enforcement and site-related actions. Regional ADR
Specialists are available for consultation on the use of ADR generally and in specific cases, and
for service as ADR neutrals in appropriate cases. A list of ADR Specialists is included at the end
of this report. The ADR Specialists meet monthly, by telephone, to discuss the use of ADR in
Agency enforcement actions. EPA staff working on enforcement cases are welcome to join in the
monthly telephone sessions. Please contact your local ADR Specialist for further information.
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ADR SPECIALISTS ROSTER
OFFICE
Region 1
Region 2
Region 3
Region 4
Region 5
Region 6
Region 7
Region 8
Region 9
NAME
Ellie Tonkin
Marcia Lamel
Doug Thompson
Dan Winograd
Tom Lieber
Janet Feldstein
Pat Hilsinger
Kathy Hodgkiss
Lisa Ellis
John Tielsch
Doug Ballotti
Jeffrey Clay
Jim Dahl
Carl Bolden
Arnie Ondarza
Cheryle Micinski
Phil Page
Maureen O'Reilly
Karen Kellen
Kim Muratore
Marie Rongone
Allyn Stern
Region 10 Ted Yackulic
HQ Enforcement ADR Team
ADR Specialist David Batson
ADR Coordinator Lee Scharf
PO, Resolve Contract Debbie Dalton
PHONE #
6177 918-1726
918-1778
918-1543
918-1885
2127 637-3158
637-4417
2157 814-2642
814-3151
4047 562-9541
3127 353-7447
886-4752
353-6261
2147 665-2151
665-6713
665-6790
9137 551-7274
551-7580
3037 312-6402
312-6518
4157 744-2373
744-1313
744-1372
2067 553-1218
2027 564-5103
564-5143
260-5495
FAX#
918-1809
918-1809
918-1505
918-1809
637-3115
637-4429
814-2601
814-3001
562-9486
886-7160
353-9306
353-9306
665-2182
665-6660
665-6660
551-7925
551-7925
312-6409
312-6953
744-1917
744-1041
744-1041
553-0163
564-0093
564-0091
260-5478
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SUMMARY OF ADR USE IN ENFORCEMENT PROGRAMS
The use of ADR in EPA enforcement cases
increased significantly during the F Y 97/98 period,
extending a period of consistent growth in ADR use
that began in the early 1990s. This growth is
attributable to an increase in the capacity of the
ADR program as ADR specialists were recruited to
regional ADR teams and trained during the 1990s,
an increase in awareness among EPA enforcement
personnel of the availability and effectiveness of
ADR techniques, and the rapid growth of the Office
of Administrative Law Judges' ADR initiative for
administrative penalty cases. Figure 1 shows the
number of cases in which ADR use was initiated for
the fiscal years 1987-1998. In FY 97, ADR use
was initiated in 72 cases, while 116 ADR cases
were initiated in FY 98. Case descriptions for each
of the 113 non-ALJ enforcement ADR cases that
were active during the F Y 97/98 period are included
in the next section of this report. Case descriptions
for ALJ administrative penalty mediations are not
included in this report.
Until the last few years, the enforcement ADR
program centered predominantly on the use of ADR
Success Story
GE-Pittsfield : Complex
Environmental Dispute Resolved
A recent case from Region 1 illustrates the tremendous potential
of ADR in the management of complex environmental disputes.
The case concerned the contamination of the Housatonic River
and numerous sites in Pittsfield, Massachusetts with
polychlorinated biphenyls (PCBs) from a General Electric Co.
(GE) facility. Neutral third parties were used for four distinct
purposes, making the case a virtual showcase of ADR
techniques available to prevent or resolve environmental
conflict:
• A team of mediators assisted GE, EPA, and eight other
government agencies in confidential settlement negotiations
that resulted in a consent decree.
• A neutral facilitator manages the Citizens' Coordinating
Council, an ongoing public forum aimed at providing
meaningful public input into matters relating to the cleanup.
• A panel of neutral experts will comment on specified
technical issues as part of a peer review process included in
the consent decree.
• A mediation provision designed to help the parties resolve,
at the earliest possible stage, disputes arising during
performance of the cleanup is included in the consent decree
GE agreed under the consent decree to clean up portions of the
Housatonic River, GE's 250-acre property in Pittsfield, filled
oxbow areas, Silver Lake, Unkamet Brook, Allendale School,
and flood plain properties along the Housatonic. GE will also
fund a natural resource damage package and clean up and
revitalize the 250-acre Pittsfield property in one of the largest
brownfields investments in the country. The total cost of GE's
commitments under the settlement is expected to be greater
than $200 million.
Figure 1: ADR Cases Initiated, 1987-1998
120
110
100
90
80
70
60
50
40
30
20
10
0
±
87 88 89 90 91
92 93 94
Fiscal Year
95
96
97
98
15
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Figure 2: ADR Cases by Statute, 1987-1998
1*
55
CERCLA
CAA
CWA
EPCRA
FIFRA
RCRA
SDWA
TSCA
Other
10
15
20
25
30
35
40
45
50
Percentage
Total exceeds 100% because some cases concern more than one statute.
in Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) cases.
Figure 2, which shows the percentage of ADR cases
involving each environmental statute, reflects this
historical fact, showing that CERCLA cases
constitute about 43 percent of all cases in which
ADR has been used. The most common ADR
cases with non-CERCLA subj ect matter have been
Clean Water Act (12 percent), Clean Air Act
(12 percent),
and Resource Conservation and Recovery Act
(11 percent) cases. Use of ADR in cases
concerning the Emergency Planning and
Community Right-to-Know Act, the Toxic
Substances Control Act, and the Federal
Insecticide, Fungicide, andRodenticide Act each
make up between five and 10 percent of the
historical total, and the Safe Drinking Water Act
makes up two percent. In addition, there have
been single ADR cases concerning several other
statutes (these are included in the "Other"
category in Figure 2): the Freedom of
Information Act, the National Environmental
Policy Act, and the Oil Pollution Act.
Over the last several years, an effort has been
Success Story
Helen Kramer Landfill: Carrot and
Stick Approach Gets Results
The Helen Kramer Landfill, located in Mantua, New Jersey,
accepted both industrial and municipal wastes until 1981, when
it was closed by court order. Subsequent studies revealed that
the landfill was contaminating local groundwater with both
heavy metals and volatile organic compounds. EPA remediated
the site, building a multi-layer cap, a slurry wall around the
landfill, and a leachate collection and treatment system, then
sought to recover its cleanup costs from the parties responsible
for the contamination.
After six years of complex litigation involving EPA Region 2,
the State of New Jersey, and more than 300 potentially
responsible parties (PRPs), including large industrial
generators, de minimis generators, municipalities, and
transporters, the PRPs were still so divided that they could not
begin to participate in meaningful settlement discussions. The
litigation was further complicated by PRP claims against their
insurers and a large "orphan share" of liability attributed to
defunct or insolvent PRPs. At this point, an EPA convener
helped a large group of PRPs to organize and agree to hire two
experienced mediators, who were instrumental in bringing
various factions into the settlement process.
Instead of putting the litigation on hold while participating in
mediation, EPA chose to continue to litigate aggressively during
the mediation process. This strategy proved successful, as a
global settlement was concluded in a relatively short time. The
settling PRPs agreed to pay EPA $96 million of the $ 123 million
it spent on the remediation process, to pay New Jersey almost
$10 million of its response costs, and to pay future operation
and maintenance costs for the landfill. In addition, the settling
parties agreed to purchase and conserve 151 acres of wetlands
and pay New Jersey $900,000 in compensation for damage to
natural resources.
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Success Story
Murray Smelter: ADR Clears Way
for Redevelopment
The Murray Smelter Working Group, with the help of
facilitators, successfully integrated site redevelopment plans
with the Superfund remedy selection process for the Murray
Smelter Brownfield site. This former Asarco lead smelter site,
located across the street from Murray City Hall, was
contaminated with lead and arsenic from smelter operations.
The smelter ceased operations in 1949, and the site became
the home of several businesses and two trailer parks.
The working group, which consisted of representatives of EPA
Region 8, the Utah Department of Environmental Quality
(UDEQ), Asarco, owners of properties and businesses on the
site, and Murray City, engaged in a collaborative decision-
making process designed to benefit both the redevelopment
and cleanup efforts. Facilitators Bernie Mayer and Louise
Smart were deeply involved, speaking with individual parties,
helping the group define its purpose and procedures, designing
meeting agendas, facilitating meetings, and writing meeting
summaries. One measure of the success of the resulting process
is that each member of the working group agreed to contribute
something of value to a plan that would benefit them all.
The final plan calls for redevelopment of the site for commercial
and retail uses, including movie theaters, restaurants, and a
hospital administration complex. Early determination of the
site's future use allowed EPA and Asarco to tailor the cleanup
to the planned use, and the parties agreed to work together to
build a new road through the site. Asarco will construct the
road's base, using it as an on-site repository for contaminated
soils, the property owners will contribute the land and pay for
curbs, gutters, and sidewalks, and the city will pave the road
and construct a utility and storm drain system. The cleanup
and road will enhance both property values and the city's tax
base. The property owners will sell their land to a developer,
who will receive from EPA the protection from future Superfund
liability offered by a prospective purchaser agreement.
made to increase awareness of ADR as an option
among both the regulated community and
regulatory enforcement personnel, and to help
them identify cases as candidates for ADR. The
result has been an increasing diversity of subject
matter among ADR cases. Figure 3 divides all
ADR cases into two categories, CERCLA cases
and all other cases. The number of non-
CERCLA ADR cases increased steadily in the
mid-1990s, slowly approaching the level of
CERCLA cases. In FY 97 and FY 98, as EPA
enforcement personnel began to participate in
large numbers of administrative penalty case
mediations in the Office of Administrative Law
Judges' ADR program, the number of non-
CERCLA ADR cases grew to more than twice that
of CERCLA ADR cases.
Figure 3: ADR Cases Initiated, 1987-1998
CERCLA vs. Other Statutes
100-
90-
•= 80-
tfl
O
O
K
O
O
.a
E
3
70-
60-
50-
40-
30-
20-
10-
±
±
/
CERCLA
Others
87
88
89
90
91
92 93 94
Fiscal Year
95
96
97
98
17
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Figure 4: ADR Process Used, 1987-1998
Allocation
Arbitration
Consensus Building
Convening
Early Neutral Evaluation
Facilitated Partnering
Facilitation
Mediation / ALJ
Mediation / Non - ALJ
Mini-Trial
Settlement Judge
Other
Percentage
Total exceeds 100% because some cases concern more than one process.
Mediation is by far the most commonly used ADR
process in EPA enforcement cases. Figure 4, which
shows the percentage of ADR cases that has used
each kind of ADR process, shows that 71 percent
of all enforcement ADR cases have been
mediations. Mediations of administrative penalty
cases by ALJs constitute 41 percent of all cases,
and non-ALJ mediations constitute an additional 30
percent. ALJ mediation, which is offered to the
parties in all administrative penalty cases, is typically
faster and less labor intensive than non-ALJ
mediation, which often addresses larger, complex
cases such as Superfund allocations. Over the
history of the enforcement program, 77 percent of
non-ALJ mediations have resulted in settlements.
For the FY 97/98 reporting period, 79 percent of
non-ALJ mediations resulted in settlements.
Convening (13 percent) and facilitation (11 percent)
are also commonly used, while all other processes
are much less commonly used. For the F Y 97/98
Success Story
Del Amo Site/Waste Pits: Mediation
Leads to Relocation
The Del Amo site, located in Los Angeles, California, was for
many years the site of a synthetic rubber facility. Wastes from
the facility, including styrene and benzene, were disposed of
in a series of waste pits, causing both soil and groundwater
contamination. During the CERCLA remedy selection process,
community members living near the waste pits demanded that
they be permanently relocated. EPA criteria for selecting
relocation as part of a remedy were not met, so EPA Region 9
suggested that the residents and PRPs address the relocation
demands in a private ADR process. Both sides agreed, and the
community hired a professional as their representative.
Mediation by retired judge Jack Trotter led to a June 1997
agreement in principle under which the PRPs agreed to purchase
63 properties and relocate the residents. Relocation costs paid
by the PRPs included moving expenses and cash payments to
renters that could be used for down payments on replacement
housing. The PRPs also funded a community development
loan program to recompense residents who lived somewhat
farther from the waste pits and were not relocated. The closings
for the last house sales took place in 1998. The PRPs then
demolished the homes and began working with an advisory
panel of community representatives to draft an appropriate
redevelopment plan. Vice President Al Gore sent the
participants a letter praising both the community process and
the result, which could not have been mandated as part of the
remedy for the site, as good examples of "reinventing
government."
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reporting period, the most significant variation from
this historical pattern was an increase in the use of
facilitation (22 times) to a level approaching the use
of non-ALJ mediation in the same period (24 times).
A significant number of ADR cases combines the
use of two or more ADR procedures. For example,
convening is commonly used to bring parties
together to consider, with the assistance of a neutral,
whether and how they might resolve their dispute
through ADR. Convening often results in an
agreement to enter into another ADR process, such
as mediation, whose goal is the achievement of an
agreement that will resolve the dispute. In such
cases, both ADR processes are counted in Figure 4.
Some of the allocation cases shown in Figure 4 were
part of the Allocation Pilots Superfund Reform
discussed above, while others represent attempts to
achieve Superfund allocations through other ADR
processes, most typically mediation.
Over the entire course of the EPA enforcement
ADR program, the most common issues addressed
have been penalties (49 percent), Superfund cost
recovery (15 percent), Superfund allocation (10
percent), Superfund remedial design/remedial action
negotiations (7 percent), and community
involvement (5 percent). Other ADR cases have
addressed numerous other types of dispute,
including disputes relating to fraudulent conveyances,
federal-state program relations, site access, grant
reimbursement, citizens' grievances, andRCRA site
closure issues.
Success Story
Summitville Mine: ADR Raises
Watershed Awareness
A facilitated series of meetings between community and
government representatives, including EPA Region 8, about
the health of the Alamosa River watershed improved
communication and established working relationships that
continue to benefit the watershed. The Summitville Mine
Superfund site, a gold mine that operated near the top of the
watershed from 1984 to 1992, sends acid- and metal-laden
runoff downstream, degrading water quality in the Alamosa
River. Although the meetings originally focused on Colorado's
recommendation that water quality standards be downgraded
for certain segments of the Alamosa, they were soon expanded
to encompass a vision of a healthier and more functional
watershed.
Perhaps the greatest challenge facing the participants and
facilitator Lucy Moore was bridging the gap between their views
of the watershed restoration process. The community viewed
the agencies' technical processes for setting standards as an
impenetrable bureaucratic process over which they had no
power, and the agencies were frustrated by the community's
failure to appreciate the regulatory constraints they faced. Early
meetings resulted in an agreement to circulate drafts of articles
before publishing them, which signaled the end of personal
attacks in the press. Although there were setbacks triggered
by various disputes, personal relations slowly improved and
some trust was established, in particular after community
members hosted a field trip to the mine and down through the
watershed. The agencies also held workshops about the water
quality standard process, during which community members
provided anecdotal evidence that models of where fish had
lived before the mine began operating were inaccurate. The
agencies eventually modified their proposed water quality
standards in response to this evidence.
The facilitation process not only improved working
relationships, but also increased the public and political profile
of the Alamosa watershed, which contributed to the governor's
creation of the Alamosa River Watershed Restoration Task
Force, whose mission is very similar to the facilitation group.
The work of the group is also being carried on in roundtable
discussions between the community and the agencies about
remediation and other watershed issues.
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20
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CASE DESCRIPTIONS
ADR Cases Active During FY 97 or FY 98
Region 1
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Providers:
01
American Heritage River Facilitation
Bob Mendoza
American Heritage Rivers Executive Order
Community Involvement
08/98
Ongoing
Facilitation
Ellie Tonkin, Doug Thompson
The Region 1 ADR team was asked to assist the Blackstone/Woonasquatucket American Heritage River
(AHR) contacts in organizing their constituencies to participate in the AHR program. The purpose of
the AHR program is to support community-led efforts to spur economic revitalization, protect the
environment, and preserve historic and cultural heritage along the designated rivers. A partnership
among approximately 100 participants and federal agencies was put in place to assist in securing a "River
Navigator" in order to achieve their obj ectives in the program. The ADR process consisted of several
facilitated public meetings, small group meetings, and numerous joint and individual phone calls. A
partnership agreement was reached and a Navigator was selected. One of the facilitators' primary roles
has been to work with the community contacts to plan and facilitate three public meetings to engage the
community in the AHR program.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Providers:
01
Asphalt Plant Testing
Bob McConnell, Regional Contact Lead
CAA-303
Air Emissions Testing, Community Involvement
04/98
Ongoing
Consensus Building, Facilitation, Mediation
DanWinograd, Doug Thompson, Ellie Tonkin, Andrea
Simpson
About 40 parties were involved in contentious, unfocused conference calls over emission testing
procedures for asphalt plants. A facilitator was brought in to allow for more constructive dialogue with
concerned citizens. A series of facilitated conference calls, followed by three days of in-person
meetings, and subsequent mediated interactions resulted in various agreements relating to citizen
involvement protocols to be used by EPA. The neutrals entered the case as facilitators, but were
subsequently called upon by the group to mediate specific issues as they arose. A "tag team" of four
neutrals was used to allow for better coverage on short notice.
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Region: 01
Case Name: Auburn Road Landfill
EPA Contact: Marcia Lamel and Rona Gregory, Case Attorneys
Statute/Section: CERCLA-106, CERCLA-107
Issue: Remedial Design/Remedial Action
ADR Use Commenced: 03/94
ADR Use Completed: Ongoing
ADR Process: Mediation
ADR Provider: Carmin Reiss
Contentious talks led the case attorney to suggest ADR. With assistance of a mediator, the 34 parties
reached an agreement in principle and are now working with the mediator to negotiate the final terms of a
consent decree incorporating the agreement in principle.
Region: 01
Case Name: Beacon Heights
EPA Contact: John McNeil, Case Attorney
Statute/Section: CERCLA-106
Issue: Payment of Stipulated Penalty
ADR Use Commenced: 05/96
ADR Use Completed: FY 97
ADR Process: Convening, Mini-trial
ADR Providers: Robert Fisher, Ellie Tonkin
The government and the potentially responsible parties (PRPs) began to jointly design a mini-trial
process to break a long-standing impasse in negotiations over the amount of stipulated penalties to
be paid pursuant to a Superfund consent decree. EPA indicated to the PRPs that, before the mini-
trial began, its outstanding settlement offer would be withdrawn. The case settled during the
convening process. This case is a good example of the parties' strategic use of convening to advance
settlement without the need for a subsequent ADR process.
Region: 01
Case Name: Beede Waste Oil
EPA Contact: Cynthia Lewis, Case Attorney
Statute/Section: CERCLA
Issue: Information Gathering
ADR Use Commenced: 10/97
ADR Use Completed: Ongoing
ADR Process: Facilitation
ADR Provider: Susan Podziba, KateWhitcomb
This was an innovative use of neutral services to assist the Agency in communicating with thousands of
parties during the information-gathering stages of a large Superfund case. Many of the parties are small
companies or individuals unfamiliar with Superfund and/or frustrated or intimidated by the process. The
results have been very encouraging. The neutral allayed many of the parties' fears and kept the case moving
forward.
22
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Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
01
Bennington
Hugh Martinez, Case Attorney
CERCLA
Allocation
05/95
06/97
Allocation
Jim Kohanek
With the assistance of EPA, the potentially responsible parties (PRPs) used their own outside neutral to
assist with an internal allocation and settlement proposal. The PRPs acted on their own because they felt a
fuller discussion among the PRPs would develop without the presence of EPA representatives. The PRPs'
ability to agree on an allocation facilitated settlement with EPA and a consent decree was signed in March
1998.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
01
Cedar Swamp
Valerie Ferry
CWA-404
Wetlands Permit
10/97
09/98
Facilitation
Doug Luckerman
Three parties engaged in gravel mining filled in a wetland without obtaining a permit. The
government implemented a restoration plan, which placed some burden on the private parties.
Communications broke down when the private parties attempted to dispute the plan. ADR was used
to facilitate these discussions, which included tribal representatives. The mediator met individually
with the parties to develop an alternate solution that satisfied each party's concerns.
Region:
Case Name:
Contact:
Statute/Section:
Issues:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
01
Connecticut Tire Pond
Mark Kindell, Connecticut DEP Attorney
RCRA
Solid Waste Disposal and Site Closure Regulations
08/97
02/98
Mediation
Ellie Tonkin, Doug Thompson
In this enforcement case, the Connecticut Department of Environmental Protection (DEP) and the
defendant were at an impasse. The parties had a long and frustrating history of unproductive
negotiations. The process consisted of several all-day joint sessions, private caucuses, and
conference and individual telephone calls. The parties crafted an agreement involving creative
incentives for environmentally beneficial conduct. Direct involvement of technical experts was
critical to the success of the process.
23
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Region: 01
Case Name: Eglin/Lead Abatement
EPA Contact: Linda Murphy
Statute/Section: N/A
Issue: Standards
ADR Use Commenced: 01/98
ADR Use Completed: 07/98
ADR Process: Convening
ADR Provider: Ellie Tonkin
A child suffered lead poisoning in a rented apartment contaminated with lead based paint. The child's
parent was having frequent and unproductive contact with agency staff about the cost of moving and other
frustrations associated with the lead paint issue. The convener conducted numerous conference calls and
individual phone calls to clarify the issues and determine whether, how, and with whom a constructive
dialogue might occur. Based on the circumstances at the time, no further process resulted.
Region: 01
Case Name: Fort Devens
EPA Contact: Jim Murphy, Community Involvement Coordinator
Statute/Section: CERCLA
Issue: Community Involvement in Base Closure
ADR Use Commenced: 08/94
ADR Use Completed: Ongoing
ADR Process: Consensus Building, Facilitation
ADR Provider: Gregory Sobel
Completion of base closure was delayed due to communication problems between EPA, the Army,
and the Army Corps of Engineers. A facilitator was brought in to help the parties discuss the issues
involved and to communicate more effectively. The parties have agreed on a process for working
together on site cleanup issues and are continuing to make use of the facilitator.
Region: 01
Case Name: GE-Pittsfield
EPA Contact: Marcia Lamel and Tim Conway, Case Attorneys
Statute/Section: CERCLA, RCRA
Issues: Liability, Remedy Selection
ADR Use Commenced: 07/97
ADR Use Completed: Ongoing
ADR Process: Mediation
ADR Providers: Howard Bellman, Gregory Sobel
This mediation addressed the cleanup of poly chlorinated biphenyl (PCB) contamination at numerous
locations surrounding General Electric's Pittsfield facility, including a portion of the Housatonic
River. When settlement negotiations were at an impasse, the government team proposed mediation.
Eleven parties, including representatives of Massachusetts, Connecticut, Pittsfield, and several
federal agencies, participated in numerous in-person joint sessions, private caucuses, and individual/
joint conference calls. A comprehensive agreement in principle was reached in September 1998 and
has since been finalized in a consent decree. The parties were initially very skeptical about the
likelihood of settlement, and high-level EPA and Department of Justice managers were directly
involved. The settlement involves an estimated $200 million cleanup.
24
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Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
01
Laurel Park, Inc.
Dan Winograd, Case Attorney
CERCLA
Allocation
03/98
04/98
Mediation
John Bickerman
In a trial involving EPA, the State of Connecticut, and the potentially responsible parties (PRPs), four to five
parties desired negotiation assistance to resolve allocation issues on the eve of trial. Two days of intensive,
in-person mediation sessions resulted in an agreement in principle. Within a month, the parties reached an
agreement on the final terms of settlement.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
01
Massachusetts Military Reservation/Otis Air Force Base
Tim Conway, Case Attorney
CERCLA
Remedy Selection
03/96
Ongoing
Consensus Building, Mediation
Greg Sobel, Patrick Fields
The Air Force engaged a third-party neutral to facilitate improved communication among the
agencies and the community at this controversial Superfund site. The process has involved
facilitation of public meetings and other joint and individual conferences.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issues:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Providers:
01
McKin
Marcia Lamel, Case Attorney
CERCLA
Community Involvement, Remedy Selection
03/97
Ongoing
Convening, Consensus Building, Facilitation, Mediation
Susan Podziba, Michael Lewis, Linda Singer
More than 40 parties used ADR to avert costly litigation and promote community involvement in deciding
the future of remedy at the McKin site. A public mediated process was set up which closely followed the
recommendations set forth in the convening report resulting from the neutral conflict assessment. Interim
agreements have been reached and productive discussions and problem solving sessions are underway.
During the ADR process some unexpected new data were obtained, that needed to be addressed by the
parties, which extended the length of the ADR process.
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Region: 01
Case Name: Nature Conservancy Facilitation
EPA Contact: N/A
Statute/Section: N/A
Issue: Land Use
ADR Use Commenced: 09/98
ADR Use Completed: 10/98
ADR Process: Facilitation
ADR Providers: Ellie Tonkin, Dan Winograd
The New Hampshire chapter of The Nature Conservancy contacted the region. Two conference calls
preceded a one-day facilitation with approximately 20 parties. The purpose of the facilitation was to
assist the participants in identifying priorities and strategies for achieving their land preservation
objectives.
Region: 01
Case Name: New Bedford Harbor
EPA Contact: John McNeil, Case Attorney
Statute/Section: CERCLA
Issue: Remedy Selection
ADR Use Commenced: 12/93
ADR Use Completed: Ongoing
ADR Process: Facilitation, Mediation
ADR Providers: Michael Keating, Jane Wells
The City of New Bedford, Massachusetts, challenged the remedy selected by EPA by passing a local
ordinance to prohibit transporting an incinerator onto the site to incinerate PCB-contaminated
sediments. The parties ended up in federal court where it appeared that EPA would prevail, but
citizen activists were vehemently opposed to the incineration remedy. EPA agreed to sit down with
the community in what became known as the New Bedford Forum. The forum met regularly to
address issues related to the cleanup of New Bedford Harbor, focusing particularly on the use of
incineration and safety concerns associated with dredging operations. Between the forum's regular
monthly meetings, subcommittees met to address specific issues. A consensus was reached to
landfill instead of incinerate the most highly contaminated sediments. This was one of the first mediated
public consensus processes to select a Superfund remedy.
Region: 01
Case Name: Nyanza Chemical Waste Dump
EPA Contact: Joanna Jerison
Statute/Section: CERCLA-107
Issue: Cost Recovery
ADR Use Commenced: 02/93
ADR Use Completed: 09/98
ADR Process: Mediation
ADR Provider: Linda Singer
Negotiations concerning the potentially responsible parties' (PRPs) payment amount and ability to
pay for this Superfund cleanup were at an impasse, so the government proposed mediation to help
resolve the issues between the four parties. Numerous in-person joint sessions and private caucuses
along with numerous individual and joint conference calls were used throughout the process. The
mediation was successful and resulted in the signing of a consent decree.
26~
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Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Providers:
01
Office of Groundwater and Drinking Water - Environmental
Justice Meeting
N/A
SDWA-1431
Stakeholder Input Process
03/98
03/98
Facilitation
Ellie Tonkin, Doug Thompson
Headquarters Office of Groundwater and Drinking Water set up a stakeholder input process to explore the
types of studies and other information that might be included in support of future Safe Drinking Water Act
(SDWA) regulatory processes. Approximately 12 parties participated in video conferences with other
regions, followed by local facilitated dialogue. This was not an agreement - seeking process.
Region:
Case Name:
EPA Contacts:
Statute/Section:
Issues:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Providers:
01
Old Southington Landfill
Marcia Lamel, Case Attorney
CERCLA
Allocation, Cost Recovery
08/94
09/98
Allocation, Convening, Mediation
Linda Singer, Michael Lewis, Carl Helmstetter, James Price
At EPAs suggestion, approximately 200 parties agreed to pursue ADR in anticipation of an especially
complex Superfund allocation negotiation. Subsequently the parties opted to participate in the National
Allocation Pilot. A team of mediators and a team of allocators worked on parallel tracks. The mediators
ultimately facilitated settlement through many in-person sessions and conference calls. This was one of the
most complex ADR processes ever used by Region 1. In addition to being one of the first allocation pilots,
the parallel mediation included numerous sub-mediations relating to a de minimis settlement, the relocation
of certain parties, future settlements, and corporate successor issues.
27
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Region: 01
Case Name: Pfizer, Inc.
EPA Contact: Andrea Simpson, Case Attorney
Statute/Section: RCRA, CWA
Issue: Penalty
ADR Use Commenced: 05/96
ADR Use Completed: 11/98
ADR Process: Convening
ADR Providers: Michael Young, Kathleen Roberts
EPA and Pfizer averted litigation of a maj or multimedia penalty claim with the assistance of ADR. After the
negotiations had continued for over a year without producing a settlement, the case was referred to the
Department of Justice for litigation. The respondent suggested non-binding arbitration as an ADR process.
The Agency believed that mediation would be necessary to ensure the success of the ADR process. With
the assistance of a convener, the parties agreed to a mediation process with an evaluative component. The
neutral evaluation and subsequent mediated sessions led to resolution of all issues except penalty amounts,
which were agreed upon in follow-up conference calls. The resulting settlement in principle was ultimately
formalized in a consent decree.
Region: 01
Case Name: Picillo Farm Technical Subcommitee Facilitation
EPA Contact: Anna Krasko, Remedial Project Manager
Statute/Section: CERCLA
Issue: Remedial Construction Project
ADR Use Commenced: 09/98
ADR Use Completed: Ongoing
ADR Process: Facilitation
ADR Providers: Ellie Tonkin, Doug Thompson, Matt Schweisberg,
Andrea Simpson
The EPA project manager approached the Region 1 ADR team for help with unproductive monthly
meetings. EPA Region 1 provided trained, in-house facilitators to run the meetings and to document
points of agreement on technical issues involving implementation of the selected remedy. The ADR
process involved 20-25 participants. With the assistance of the facilitation, the parties routinely agreed on
many issues raised at each meeting.
Region: 01
Case Name: Pine Street Canal
EPA Contact: Margery Adams, Case Attorney
Statute/Section: CERCLA
Issue: Remedy Selection
ADR Use Commenced: 09/93
ADR Use Completed: 09/98
ADR Process: Consensus Building, Mediation
ADR Provider: Phil Harter
EPA met with 12 parties, including citizen groups, potentially responsible parties, the state, and an
environmental organization, in a mediated forum to develop a consensus on the scope of additional
studies to be performed at the site, as well as a proposal for the cleanup. With the assistance of
various technical experts, participants performed the studies necessary at the site and agreed to a site
remedy.
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Region:
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01
Pittsfield Citizens Coordinating Council
Angela Bonarrigo
CERCLA, RCRA
Remedy Implementation, Community Involvement
04/98
Ongoing
Consensus Building, Facilitation
Jane Wells
ADR is being used to facilitate communication among community groups, General Electric (GE), and
government agencies regarding cleanup issues at this controversial and complex site. Facilitated monthly
meetings and related sub-meetings and phone calls have been used during the process. GE and government
representatives are available to answer questions at the meetings, and the council also has the option of
asking GE or EPA consultants to attend meetings and make presentations on topics of interest to council
members. This is not an agreement-seeking process. The meetings will continue as the remedy
implementation proceeds.
Region:
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01
QPark
N/A
RCRA
Landfill Closure, RCRA Permitting
02/98
06/98
Convening
Ellie Tonkin
At the request of a Resource Conservation and Recovery Act (RCRA) permit applicant, an EPA in-
house neutral helped the applicant and the state permitting authority explore the possibility of using
mediation to work out the terms of the permit. The ADR process consisted of individual telephone
conferences with the three parties. The state ultimately concluded that mediation was not appropriate
in this case.
Region:
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Issue:
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01
Quonset Point
Tim Timmerman
CWA-404
Permitting
05/98
Ongoing
Facilitation
Michael Keating, Kathy Birt
A stakeholder process was established with 30 participants to hear recommendations on the
development of a port at Quonset Point. A series of joint and individual stakeholder meetings
addressed many of the issues involved, such as guidelines and principles for the future development
of ports. The original development plans were opposed by the stakeholder group. The facilitation
opened the doors of communication among all the parties involved.
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Region: 01
Case Name: Regency Towers
EPA Contact: Hugh Martinez, Case Attorney
Statute/Section: CAA
Issue: Non-Compliance with Cleanup Order
ADR Use Commenced: 08/96
ADR Use Completed: 10/96
ADR Process: Mediation
ADR Providers: Ellie Tonkin, Marcia Lamel
This was the first case in which private parties to a regional enforcement action (three recipients of an
asbestos order) opted to allow members of the Region 1 in-house ADR program to mediate their internal
dispute, which threatened to halt the progress of the cleanup. The regional administrator played a significant
role in encouraging a key party to come to the table by conveying to the case team his clear support for the
process. The imminent work stoppage was averted in a one-day mediation session where an agreement
was reached for the continued funding of the cleanup.
Region: 01
Case Name: Selzer & Rydholm
EPA Contact: Doug Luckerman, Case Attorney
Statute/Section: TSCA
Issue: Penalty
ADR Use Commenced: 11/95
ADR Use Completed: 03/97
ADR Process: Mediation
ADR Provider: Bob DiBiccaro
This case involved a bottling company that had violated the Toxic Substances Control Act (TSCA).
No issue of liability existed, but there was a dispute as to the appropriate amount of the penalty. Mediation
assisted the parties in negotiating a final penally figure, which included a supplemental environmental project
(SEP). The mediator assisted the parties in reaching agreement on the penally amount and the terms of an
acceptable SEP.
Region: 01
Case Name: Shepaug River
EPA Contact: N/A
Statute/Section: State Water Permitting
Issue: Inter-Municipality Water Resource Management
ADR Use Commenced: 05/98
ADR Use Completed: Ongoing
ADR Process: Convening
ADR Provider: Ellie Tonkin
EPA staff in the regional water program identified a difficult situation involving the state and several
municipalities that they believed might benefit from mediation. After one internal meeting and a
series of phone conferences, the convener determined that the case was not ripe for mediation.
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01
South Weymouth
Patty Whittemore, Remedial Project Manager
CERCLA
Community Involvement
11/96
Ongoing
Consensus Building, Facilitation
Jane Wells
ADR was introduced to assist the Restoration Advisory Board that is overseeing the closure of a
Navy base in addressing environmental contamination issues. The meetings were not running
smoothly and needed an outside party to keep them focused and moving forward. The case
proceeded with facilitation of monthly meetings. This was not an agreement-seeking case.
Region:
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Issue:
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01
UConn Landfill
Chuck Frank, Remedial Project Manager, and Alice Kaufman,
Community Involvement Manager
RCRA
Community Involvement
10/97
Ongoing
Facilitation
Marion Cox
EPA proposed neutral conflict assessment in response to numerous citizens' complaints about the
state's enforcement approach. The ADR process, conducted by a neutral, took more than 50 parties
through a conflict assessment involving numerous phone interviews. The stakeholders then reached a
consensus on a public involvement process, which is now in place. Facilitated conference calls and
meetings are continuing among various stakeholders.
Region:
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01
West Site/How's Corner
Michael Parker, Case Attorney
CERCLA
Allocation, Cost Recovery, Remedial Design/Remedial Action
01/98
Ongoing
Facilitation
Susan Podziba
A neutral was brought in to assist EPA in communicating with a large number of potentially
responsible parties during the information-gathering stages of a large Superfund case. Many of the
parties are small companies or individuals unfamiliar with the Superfund process. This was not an
agreement-seeking case.
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Region 2
Region: 02
Case Name: Batavia Landfill
EPA Contact: Beverly Kolenberg, Case Attorney
Statute/Section: CERCLA-106, CERCLA-107
Issues: Allocation, Cost Recovery
ADR Use Commenced: FY 96
ADR Use Completed: 08/98
ADR Process: Allocation, Convening
ADR Providers: Ellie Tonkin, Carl Helmstetter, James Price
This site was part of a national allocation pilot program initiated by EPA to ascertain the feasibility
of an allocation scheme in a piece of proposed legislation to amend CERCLA. The process included
the municipal owner/operators of the landfill, generators, transporters, and EPA. EPA was to fund
some of the orphan shares. A convener was used to get the parties to agree on a protocol and to
assist in the selection of an allocator. An allocator was selected, fact-finding took place, and an
allocation report was issued. A full agreement was not reached, but the parties are trying to negotiate
a settlement based, in part, on the allocation. Many parties were dissatisfied with either their
allocated shares or the shares assigned to others.
Region: 02
Case Name: Helen Kramer Landfill
EPA Contact: Beverly Kolenberg, Case Attorney
Statute/Section: CERCLA-107
Issues: Allocation, Cost Recovery
ADR Use Commenced: 03/96
ADR Use Completed: 08/98
ADR Process: Convening, Mediation
ADR Providers: David Batson, Linda Singer, Michael Lewis
This huge landfill site in New Jersey was first listed on the NPL in 1983 and the remedy was
completed by EPA in 1993. EPA sought recovery of its costs in court. After more than six years of
litigation and after an allocation report was not accepted, the U.S. district judge established a
settlement process for the use of ADR, based on EPAs recommendation. More than 300 parties were
involved in the litigation, including municipalities, de minimis parties, transporters, and large
industrial generators. After being convened by an EPA neutral, the parties selected co-mediators.
After numerous meetings and communications with the mediators, the parties entered into a cost
recovery consent decree reimbursing EPA for $96 million in costs, as well as a separate decree with
the state. Even after the settlement, the mediators continued working with the non-settlers, and many
have since settled. To date, all but a handful of the defendants have settled.
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02
Rosen Brothers Scrap Yard/Dump
Brian Carr, Case Attorney
CERCLA-106, CERCLA-107
Remedial Design/Remedial Action
05/98
10/98
Convening, Mediation
KateWhitby
Initially, letters were sent to the 18 identified potentially responsible parties (PRPs) informing them of
the opportunity to participate in ADR. After a convening meeting and after the parties agreed to the
use of mediation, numerous mediation sessions took place. The case involved a scrap yard with a
defunct owner/operator and several industrial generators who could not agree on how to divide the
prospective costs and EPA's past costs. Numerous intra-PRP mediation sessions were held parallel to
EPA/PRP meetings. This process resulted in a settlement in which EPA agreed to a substantial
compromise of its past costs based on the "orphan share" associated with insolvent or defunct parties,
and the PRPs agreed to undertake the remedial design/remedial action (RD/RA). The settlement also
ultimately lead to the resolution of private contribution actions.
Region:
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02
Sealand
James Doyle, Case Attorney
CERCLA
Cost Recovery, Remedial Design/Remedial Action
11/95
11/97
Allocation, Convening
William Hengemihle
The potentially responsible parties (PRPs) for this site were unable to agree on allocation of liability
among their group in advance of remedial design/remedial action (RD/RA) negotiations with EPA.
In addition, there was a large group of PRPs with shares small enough to be considered de minimis
generators. The convener assisted in achieving a de minimis allocation and settlement and in
preparing the larger parties for use of allocation. A settlement was ultimately also reached for RD/RA
and cost recovery, to which a portion of the proceeds from the de minimis settlement may be applied.
Region:
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02
Tutu Wei (field
Andrew Prashcak, Case Attorney
CERCLA
Cost Recovery, Remedial Design/Remedial Action
01/96
10/96
Convening
Debbie Nudelman
The potentially responsible parties (PRPs) for this site were unable to agree on allocation of liability
among their group in advance of remedial design/remedial action (RD/RA) negotiations. EPA sought
to provide the services of a convener to introduce the use of mediation. After the convening process,
the parties ultimately declined mediation, and EPA is proceeding along other enforcement avenues.
33
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Region 3
Region: 03
Case Name: Allegheny Ballistics Lab
EPA Contact: Bruce Beach
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 07/96
ADR Use Completed: 07/98
ADR Process: Facilitated Partnering
ADR Provider: N/A
The Allegheny Ballistics Lab Partnering Team consists of representatives from the Navy, the State of
West Virginia, EPA, and the on-site contractors that run the facility. The team developed the skills
needed to work effectively together in selecting and implementing environmental response decisions.
Region: 03
Case Name: American Littoral Society & Pennsylvania PIRG v. EPA
EPA Contact: Christopher A. Day, Case Attorney
Statute/Section: CWA-303(d)
Issue: Water Quality Standards
ADR Use Commenced: 08/96
ADR Use Completed: 12/96
ADR Process: Mediation
ADR Provider: Hon. Edwin Naythons
EPA was the defendant in this case regarding its decisions on Pennsylvania's water program under
Section 303(d) of the Clean Water Act. Specifically, EPA decisions on Total Maximum Daily Loads,
Water Quality Limited Segments, and the Continuing Planning Process were challenged. The
Department of Justice (DOJ) nominated this case for ADR in May 1996. DOJ along with EPA
retained the services of former Judge Edwin Naythons. The mediation was successful. While it took
an unusually long time, a consent decree was eventually signed.
Region: 03
Case Name: American Littoral Society & Sierra Club v. EPA
EPA Contact: Christopher A. Day, Case Attorney
Statute/Section: CWA
Issue: Water Quality Standards
ADR Use Commenced: 09/96
ADR Use Completed: 05/97
ADR Process: Facilitation, Mediation
ADR Provider: Judge Edwin Naythons
EPA was the defendant in this case regarding its decisions on Pennsylvania's water program under
section 303(d) of the Clean Water Act. Specifically, EPA decisions on Total Maximum Daily Loads,
Water Quality Limited Segments, and the Continuing Planning Process were challenged. Less ADR
was necessary in this case because many of the relevant issues had been worked out in American
Littoral Society & Pennsylvania PIRG v. EPA. The Department of Justice initiated the use of ADR
and again used former Judge Edwin Naythons, who established schedules, appropriated attorney
fees, and mediated some of the meetings. The mediation resulted in a settlement.
34
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03
Bush Valley Superfund
Sarah Keating, Case Attorney
CERCLA
Remedial Design/Remedial Action
08/96
10/96
Convening
Ellen Kandell
ADR was suggested to the potentially responsible parties (PRPs) of the Bush Valley Landfill
Superfund site in the special notice letter sent by EPA in August 1996. During convening, the PRPs
determined that they would revisit the ADR issue at a later time. EPA did not receive a good faith
offer from the PRPs to perform the remedial design/remedial action (RD/RA) at the site and is
therefore exploring its enforcement options. It is possible, however, that a settlement may still be
reached with the PRPs that would include an ADR private-party allocation process.
Region:
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03
C&R Battery Company
Yvette Hamilton-Taylor, Case Attorney
CERCLA-107
Allocation, Cost Recovery
04/95
09/98
Allocation
James Kohanek
The C&R Battery Site is one of the sites included in the Superfund Cost Allocation Pilot which was
established as part of EPA's Superfund Administrative Reform Initiative. The neutral was brought in
to help identify and nominate all parties with a connection with the site. The allocation process was
used to facilitate a settlement of EPA's past response costs.
Region:
Case Name:
EPA Contact:
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Issue:
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03
Cemetery Lane
Marcia Preston, Case Attorney
CERCLA-107
Cost Recovery
10/95
08/97
Mediation
Debra Nudelman
In July 1994, EPA and Howard County entered into a tolling agreement regarding a cost recovery
action for this CERCLA case. Under the terms of the agreement the parties had until July 13, 1995
to resolve this matter through ADR. The ADR commenced in early 1995. The United States and the
county were the only participants in the mediation. The parties reached an administrative settlement.
35
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Region: 03
Case Name: Dahlgren
EPA Contact: Bruce Beach
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 11/96
ADR Use Completed: 05/98
ADR Process: Facilitated Partnering
ADR Provider: N/A
The Dahlgren Installation Restoration Team (DIRT) was formed in late 1996 and consists of the
Navy, the Commonwealth of Virginia, and EPA. The team worked on skills to communicate better,
develop dispute resolution processes, and become more organized and effective. The team
"graduated" from facilitation in May 1998 and continues to work without the assistance of a neutral.
Region: 03
Case Name: Drake
EPA Contact: Wayne Walters, Case Attorney
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 03/97
ADR Use Completed: 09/97
ADR Process: Facilitated Partnering
ADR Provider: Bill Alsop
EPA, the Pennsylvania Department of Environmental Protection (PDEP), and the Army Corps of
Engineers (ACE) were addressing the Drake site. There was no real dispute to resolve, but there
were questions as to who was responsible for various aspects of the cleanup. EPA brought in Bill
Alsop to do formal partnering training for partnership between EPA, PDEP, ACE, and the main
contractor.
Region: 03
Case Name: Fort Meade
EPA Contact: Nick DiNardo, Case Attorney
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 05/98
ADR Use Completed: Ongoing
ADR Process: Facilitated Partnering
ADR Provider: Gail Waldron
Federal agencies were asked to clean up their sites. A partnering agreement was utilized but there
were many disputes among the parties involved. A facilitator was contracted to hold a series of
meetings with teams from EPA and other federal agencies. The meetings were extremely successful.
Major turnovers in staff have occurred on both sides without any interruption in progress.
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03
Langley Air Force Base
Stacie Morekas-Driscoll, Remedial Project Manager
CERCLA
Partnering Agreement
04/95
06/97
Facilitated Partnering
Wandi Brown
Federal agencies were asked to clean up their sites. The parties involved were having trouble
resolving a number of issues. A facilitator was contracted to hold a series of meetings with teams
from EPA and other federal agencies. The facilitator also taught team building skills and
communication techniques. The result was a solid working relationship that continues even though
the facilitation itself is over.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
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ADR Provider:
03
Letterkenny
Lorie Baker, Remedial Project Manager
CERCLA
Partnering Agreement
01/98
09/98
Facilitated Partnering
Susan Debuque
Federal agencies were asked to clean up their sites. Poor communication between EPA and the
Army was slowing the cleanup process. A facilitator was contracted to hold a series of meetings
with teams from EPA and other federal agencies. The facilitator taught partnering skills and
facilitated discussions. This involvement resulted in a much improved working relationship between
EPA and the Army. The facilitator is no longer involved in the meetings, but they continue to be
held.
Region:
Case Name:
EPA Contact:
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Issue:
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03
Mayor and City of Baltimore v. EPA
Christopher A. Day
CWA
Permitting Grants
07/95
08/98
Mediation
Judge Harry C. Martin (4th Circuit, retired)
The City of Baltimore originally filed a case to resolve its claims as a grantee regarding five
municipal wastewater construction grants awarded by EPA under Title 2 of the Clean Water Act
(CWA). The Fourth Circuit Court of Appeals identified the case as appropriate for mediation. The
settlement agreement resolves the legal and factual issues raised by the litigation of the five grants
and, in addition, resolves disputes regarding 43 CWA construction grants awarded to the city. The
parties reached this agreement only because of the long and patient mediation of Judge Harry C.
Martin. The settlement reaches far beyond the disputes at issue in the litigation to resolve numerous
other issues.
37
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Region: 03
Case Name: Nansemond Ordnance Depot, Tidewater
EPA Contact: Rob Thomson, Remedial Project Manager
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 04/98
ADR Use Completed: Ongoing
ADR Process: Facilitated Partnering
ADR Provider: Sandra Chaloux
A base realignment and closure (BRAC) site made a transition from a non-NPL to NPL site. This
generated problems with defining the Agency roles and the change in working relationships
regarding the cleanup. The Army Corps of Engineers brought in a third party to facilitate and
organize a partnering agreement. These efforts have been very successful at getting the groups
working together and clarifyng whether disputes arise from technical or legal disagreements.
Region: 03
Case Name: Naval Weapons Yorktown
EPA Contact: Robert Stroud, EPA Manager
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 05/97
ADR Use Completed: 11/97
ADR Process: Facilitated Partnering
ADR Provider: Laurel Boucher
Multiple Navy facilities in Virginia were undergoing cleanups. The Navy, EPA, and the
Commonwealth of Virginia were brought together under a Navy initiative to utilize partnering in all
its cleanup cases. A facilitator was contracted to hold a series of meetings with teams from the EPA
and other federal agencies. The partnering did not address the technical aspects of the site, but did
help the various parties work efficiently with each other.
Region: 03
Case Name: Norfolk Navy Base
EPA Contact: Harry Harbold, Remedial Project Manager
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 10/96
ADR Use Completed: 09/98
ADR Process: Facilitated Partnering
ADR Provider: Wandi Brown
The Navy decided to use a partnering agreement at this site to resolve certain issues and help identify
priorities for cleanup. Wandi Brown provided training and various partnering techniques while also
facilitating meetings between EPA, the Navy, and Commonwealth of Virginia. The meetings now
are held without a third-party neutral, testifying to the success of Ms. Brown's participation.
38
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Case Name:
EPA Contact:
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Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
03
Patuxent River, MD
Andy Sochanski, Remedial Project Manager
CERCLA
Partnering Agreement
08/98
Ongoing
Facilitated Partnering
Laurel Boucher
Federal agencies were asked to clean up their sites. A facilitator was contracted to hold a series of
meetings with teams from EPA and other federal agencies. The mediator performed partnering
training, facilitated discussions, and consulted on meeting format and agenda issues. Her
participation was quite useful; there were few disagreements and progress was made, including the
acceleration of certain work schedules and reviews.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
03
Quantico Site
Lisa Bradford, Remedial Project Manager
CERCLA
Partnering Agreement
09/98
Ongoing
Facilitated Partnering
N/A
The Navy decided to create partnering teams at all of its bases. At this facility, EPA and the
Commonwealth of Virginia are participating in the partnering process with the Navy. A facilitator
has provided partnering training and continues to facilitate meetings.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
03
Ship Parts Control Center
Paul Leonard
CERCLA
Partnering Agreement
10/96
03/98
Facilitated Partnering
Wandi Brown
This was a partnering agreement between federal agencies. A facilitator was contracted to hold a
series of meetings with teams from EPA and other agencies. Certain personality conflicts at the
working level needed to be resolved and personnel changes were made to fix the problem. While the
neutral is no longer involved, the partnering continues.
39
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Region: 03
Case Name: Strasburg Landfill
EPA Contact: Mary E. Rugala, Case Attorney
Statute/Section: CERCLA-107
Issue: Cost Recovery
ADR Use Commenced: 08/95
ADR Use Completed: 08/97
ADR Process: Facilitation
ADR Providers: Kate Whitby, Robert Fisher
EPA incurred costs in connection with work at three different operable units at this landfill site. The
31 potentially responsible parties (PRPs), including 14 owners and/or operators, six corporate
generators, two transporters, four municipalities or municipal entities, and five industrial generators,
with the assistance of a neutral third party, were invited to attempt to resolve cost recovery issues
with EPA prior to litigation. The ADR provider primarily worked to convene the parties, but also
served to convey information between EPA and those parties, primarily generators, who responded to
the invitation to use ADR. The parties were able to negotiate and settle the case themselves.
Region: 03
Case Name: US v. District of Columbia
EPA Contact: William C. Smith
Statute/Section: CAA
Issue: Power Plant Violation of CAA
ADR Use Commenced: 05/92
ADR Use Completed: 05/98
ADR Process: Mediation
ADR Provider: Daniel Dozier
EPA and DOJ negotiations with a power plant regarding violations of the Clean Air Act were
referred to mediation by the court. Mediation took place sporadically. Parties were close to
settlement when all mediation was stopped. The parties simply refused to agree on a number of
issues. No further action has been taken in this case.
Region: 03
Case Name: US EPA v. Industries Corp. and Harry Zucker
EPA Contact: Douglas J. Snyder, Case Attorney
Statute/Section: SDWA-1423
Issues: Liability, Penalty
ADR Use Commenced: 04/96
ADR Use Completed: 11/96
ADR Process: Mediation
ADR Provider: Jacob Hart
A history of multiple appeals created the need for mediated sessions. A mediator from the US Third
Circuit Court of Appeals selected this case and forced parties involved into mediation. Both sides
were ordered to submit a statement of the case/appeal to the assigned mediator. The case was then
settled during an ordered conference call between the parties, which was run by the mediator. The
result was that the defendant agreed to pay a $1,000 penalty and EPA agreed to withdraw its appeal.
40
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Region:
Case Name:
EPA Contact:
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Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Providers:
03
United States v. Sun Pipe Line Company
Daniel (sales, Case Attorney
CWA 311
Penalty
05/96
03/97
Arbitration
Kathryn Simpson, Craig McKay, Joseph Macerelli
The Sun Pipe Line case is a civil penalty action arising from defendant's discharge of 537 barrels of
gasoline into the navigable waters and adjoining shorelines of the United States. Arbitration was
scheduled for February 1997. The parties selected an arbitrator, but they settled the case prior to
arbitration, signing a consent decree in November 1997.
41
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Region 4
Region: 04
Case Name: APF Industries
EPA Contact: David Engle, Case Attorney
Statute/Section: CERCLA
Issues: Cost Recovery, Ability to Pay
ADR Use Commenced: 05/98
ADR Use Completed: 05/98
ADR Process: Mediation
ADR Provider: Peter Grilli
The potentially responsible party (PRP), who controlled several corporations in the United Kingdom,
had not cooperated with EPA's attempts to negotiate, so a lawsuit was filed in the U.S. District Court
for the Middle District of Florida. The case was automatically sent to mediation under a standing
order of the court. At the first and only mediation session, the PRP began providing answers to
EPA's questions about his claim that he had a limited ability to pay the amount sought from him and
his corporations, some of which were bankrupt. Subsequent negotiations led to a settlement based in
part on the PRP's limited ability to pay.
Region: 04
Case Name: Aberdeen Pesticide Dumps Site
EPA Contact: Chuck Mikalian, Case Attorney
Statute/Section: CERCLA-107
Issue: Allocation
ADR Use Commenced: 09/96
ADR Use Completed: 01/97
ADR Process: Mediation
ADR Provider: Curtis Von Kamm
Several operators of a pesticide plant had dumped pesticide formulation wastes at multiple locations,
some of which had also been used as dump sites by other companies. Complex issues concerning
the allocation of costs among the 10 major potentially responsible parties (PRPs) made negotiations
with the United States difficult. EPA proposed that the PRPs resolve their allocation disputes using
ADR, prepared a draft process agreement, and suggested possible neutrals. After briefing the
mediator, the PRPs participated in two weeks of mediation. At the end of that time, a mediated
allocation was achieved. The PRPs then began Section 107 and remedial design/remedial action
(RD/RA) negotiations with the United States. The result was a consent decree for $65 million in
past costs and future work, which was entered by a federal district court in March 1998.
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Region:
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EPA Contact:
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Issue:
ADR Use Commenced:
ADR Use Completed:
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04
Dupont
Lynda Crum, Case Attorney
CAA-112
Penalty
03/98
Ongoing
Early Neutral Evaluation
Judge James Todd
This case concerned a release of oleum from a Dupont facility. EPA sought penalties for the release
under the hazardous air pollutant provisions of section 112 of the Clean Air Act. The parties were
unable to agree on a discovery order. Because of the difficulty of conducting discovery, and because
section 112 had not previously been litigated, the U.S. proposed early neutral evaluation to identify
potential weaknesses in its case prior to conducting formal discovery. A U.S. magistrate evaluated
both liability issues (e.g., whether Dupont had exercised due care) and penalty issues, and made
findings. The parties are currently attempting to negotiate a settlement in light of the magistrate's
findings.
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04
Florida LEAF
Melissa Heath, Case Attorney
SDWA
Revocation of Delegated State Program
09/96
12/97
Mediation
Steve Kinnard
A citizen group sued EPA to begin proceedings to revoke the delegated Florida underground
injection control (UIC) program. The state, which was not a party to the lawsuit, agreed to join
mediated settlement talks. As a result of the mediation, the parties reached a settlement agreement,
which they filed with the U.S. Court of Appeals for the Eleventh Circuit. The settlement included
relief the court could not have ordered. For example, EPA and the state agreed to issue policy
determinations, and the state agreed to a modification of its program. These reforms could not have
been mandated by the court and were only able to be reached through mediation. Unfortunately, the
state did not fulfill its obligations under the settlement agreement. The case returned to litigation and
EPA eventually prevailed.
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Region: 04
Case Name: Georgia CAFO Regulations
EPA Contact: Ira Linville
Statute/Section: CWA
Issues: Community Involvement, Regulation Development
ADR Use Commenced: 04/98
ADR Use Completed: 10/98
ADR Process: Facilitation
ADR Providers: Greg Bourne, Michael Elliott
The Georgia Environmental Protection Division (EPD) convened a stakeholder process to solicit
comments and advice concerning the development of regulations for concentrated animal feeding
operations (CAFOs). Stakeholders included EPA, environmental groups, agricultural groups, and
food processors. Several work groups were formed to address specific CAFO-related issues, such as
how to define a CAFO for regulatory purposes, alternatives to waste storage lagoons, and the use of
land use buffers around CAFOs. Facilitation was used both for large public meetings at which work
groups reported and the public had an opportunity to comment and for some of the work group
meetings. At the end of the process, the work groups issued reports describing areas of agreement
and disagreement among the stakeholders.
Region: 04
Case Name: Georgia Storm Water General Permit Issuance
EPA Contact: Kevin Smith, Case Attorney
Statute/Section: CWA
Issue: Permit Issuance
ADR Use Commenced: 07/98
ADR Use Completed: Ongoing
ADR Process: Convening, Facilitation
ADR Provider: Carol Baschon
The state had tried unsuccessfully for several years to issue a National Pollutant Discharge
Elimination System (NPDES) storm water general permit. Citizen groups successfully blocked each
permit. At the urging of the Region 4 Waste Management Division director, the state met with the
citizen groups, including the Southern Environmental Law Center and the Chattahoochee
Riverkeeper. Region 4 personnel facilitated the meetings. In a brief series of facilitated meetings,
the state and the citizen groups were able to agree on the terms of a general permit that the citizen
groups would not challenge, and the permit has since been issued (although it has been appealed by
other parties).
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04
ILCO
Andrea Madigan, Case Attorney
CERCLA
Allocation, Ability to Pay
12/97
12/97
Mediation
Floyd Hale
EPA had previously settled with certain de minimis and major potentially responsible parties (PRPs)
at the site. Another company had refused to join the major PRP group, demanding instead to be
treated as a de minimis party. This party claimed to have a limited ability to pay. Using a mediator,
EPA met with the major group and with the other party. A tentative settlement was reached after a
single session, under which EPA and the major group split funds paid by the other party.
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Jones Tire & Battery
Jeff Dehner, Case Attorney
CERCLA-107
Cost Recovery
09/98
09/98
Mediation, Allocation
Abraham Ordover
A federal district court consolidated the United States' cost recovery action with contribution
litigation filed against several dozen generator potentially responsible parties (PRPs) by the PRPs
conducting the cleanup. EPA proposed mediation, arguing that liability was clear, so there was little
point in spending on litigation money that could be included in a settlement. The court ordered the
parties into mediation. A major barrier to settlement was that insurance coverage was the only
source of funds for several defendants. A two-day mediation process created momentum towards
settlement by causing the United States to address issues presented by those defendants and their
insurance companies. Those defendants then made settlement offers that they otherwise would not
have made. The offers made during mediation were collectively sufficient to allow tentative
settlement of the case, and the court later entered a consent decree.
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Miccosukkee Tribe of Indians v. EPA
Craig Higgason, Case Attorney
CWA
Water Quality Standards
07/98
07/98
Mediation
Frank Kreidler
The tribe sued the United States, claiming that the state changed certain water quality standards
without EPA approval. A single, one-day mediation session was held in which no progress was
made, primarily because the dispute concerned a matter of law upon which the parties fundamentally
disagreed. The mediation did, however, have some value, as it clarified the issues in dispute as the
case returned to litigation.
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Region: 04
Case Name: Sapp Battery
EPA Contact: Jeff Dehner, Case Attorney
Statute/Section: CERCLA-107
Issue: Cost Recovery
ADR Use Commenced: 09/98
ADR Use Completed: 10/98
Process: Mediation
ADR Provider: Steve Canard
In federal district court, the United States obtained a judgment against the defendant on liability and
costs. The defendant appealed the ruling and the llth Circuit Mediation Program suggested
mediation. The parties to the mediation were the United States, the defendant, and a group of
potentially responsible parties (PRPs) who had performed work at the site and sought contribution
from the defendant. The only remaining issues were the amount and terms of payment and how the
settlement would be split between EPA and PRPs seeking contribution. A two-day mediation
resulted in an agreement in principle, since finalized in a consent decree, under which the defendant
will pay a total of $2.1 million ($1.3 million to the United States and $800,000 in contribution to the
PRPs conducting the cleanup).
Region: 04
Case Name: Sarasota NPDES
EPA Contact: David Savagea, Case Attorney
Statute/Section: CWA-301(a)
Issue: Penalty
ADR Use Commenced: 06/96
ADR Use Completed: 10/96
ADR Process: Mediation
ADR Provider: Susan Schub
Region 4 brought an administrative action against the City of Sarasota, Florida, seeking a penalty for
an alleged discharge without a National Pollutant Discharge Elimination System permit, in violation
of the Clean Water Act (CWA). The respondent requested mediation by an EPA neutral pursuant to
the Region 4 pilot program. After two conference calls with the neutral, the parties reached a
settlement in principle.
Region: 04
Case Name: Tennessee Voluntary Compliance Program
EPA Contact: Chuck Mikalian, Case Attorney
Statute/Section: CERCLA
Issue: Federal-State Program Relations
ADR Use Commenced: 04/98
ADR Use Completed: 09/98
ADR Process: Convening
ADR Provider: Robert Fischer
The Region 4 Superfund program negotiated with the Tennessee Superfund program to develop a
memorandum addressing the handling of sites in Tennessee's Voluntary Compliance Program. The
parties went through a convening process to examine the possible benefits of mediation. After a
tentative decision to attempt mediation, this effort was terminated due to programmatic issues
beyond the scope of the matter at issue.
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Vulcraft/Nucor, Inc.
Alan Dion, Case Attorney
CAA
Liability
12/97
12/97
Mediation
Frank McFadden
The defendant in this case built and began operating a facility without a permit, triggering a lawsuit
in which the United States alleged violations of the Clean Air Act's prevention of significant
deterioration (PSD) provisions. After denying both sides' motions for summary judgment, the court,
at the suggestion of the defendant, ordered the parties into mediation. After a day-long session in
which the mediator met separately and collectively with the parties, there was no resolution of the
matter. The matter later went to trial, where the defendant won the PSD issue before a jury, but was
assessed a $750,000 penalty by the judge for operating without a permit.
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Whitehouse Waste Oil Pits
Simon Miller, Case Attorney
CERCLA
Allocation, Cost Recovery
07/98
Ongoing
Allocation
David Batson, Thomas Armstrong
This case is one of EPA's Superfund allocation pilot projects. It was chosen as a pilot case because
very little generator documentation exists. Of the 145 identified generators at the site, 50 are taking
part in the allocation process. Issues include a significant owner/operator orphan share. David
Batson mediated the drafting of an allocation process document. The parties then chose Thomas
Armstrong to serve as the allocator. The case involves approximately $3.5 million in past costs and
$8.5 million in future costs.
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Region 5
Region: 05
Case Name: Defense Electronic Supply Center, Dayton (Gentile Station)
EPA Contact: N/A
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 09/98
ADR Use Completed: Ongoing
ADR Process: Facilitated Partnering
ADR Provider: Jerry Arcacro, Paul Reis
To remove 30 steam vaults containing asbestos, the Air Force wanted to demolish the vaults and
landfill the debris. The Regional Air Force Pollution Control Agency (RAPCA), however, insisted
on the abatement of all asbestos within the steam vaults before the vaults were demolished. A
facilitator was brought in to help the parties resolve the issue. The facilitator performed partnering
training and mediated monthly meetings. The partnering meetings involved the City of Kettering,
RAPCA, U.S. EPA, Ohio EPA, and the Air Force. The resulting compromise was that only the nine
vaults situated in areas that would be developed in the reuse plan needed on-site abatement and the
remaining vaults would be demolished as originally planned. This use of partnering helped
minimize project delays. This installation-level (or Tier 1) partnering process grew out of a
managerial-level (or Tier 2) partnering process that included EPA Region 5, the Departments of the
Navy, Army, and Air Force, the Fish and Wildlife Service, and states from the region.
Region: 05
Case Name: Dutch Boy
EPA Contact: Chris Liszewski
Statute/Section: CERCLA
Issue: Cleanup Coordination
ADR Use Commenced: 01/97
ADR Use Completed: Ongoing
ADR Process: Facilitation
ADR Provider: Jerry Smith, Derrik Kembro
The Dutch Boy property was being cleaned up under CERCLA. Jerry Smith (an employee of IBM)
offered his services to help facilitate meetings between federal, state, and local governments, the
community, potentially responsible parties (PRPs), and their contractors. These meetings helped all
parties involved agree to a unified plan on how best to satisfy everyone's needs during the cleanup
process. The PRPs at an adjacent site (International Harvester) had been released by EPA to perform
their cleanup under the state's voluntary cleanup program, but also participated in the facilitated
meetings. After six meetings, Mr. Smith had to leave the project, but Derrik Kembro (an EPA
employee and trained facilitator) volunteered his time to continue the facilitation of these meetings.
48
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05
Glenview Naval Air Station
Gary Schafer, Remedial Project Manager
CERCLA
Partnering Agreement
07/96
Ongoing
Facilitated Partnering
Paul Reis
The Glenview NAS was in the process of being closed and transferred to private ownership when
some pieces of asbestos-containing materials were found in the soil. Completely removing the
topsoil from the site seemed an expensive and possibly unreasonable option considering the small
amount of asbestos found at the site, so further studies were done. It was concluded that there was
not enough asbestos to warrant further action. The facilitator concentrated on having the parties
agree on guidelines for the partnering process and ensuring that all parties continually obeyed those
guidelines. The existing working relationship between the Navy, the State of Illinois, and EPA was
already functioning smoothly, so the use of partnering here neither impeded progress, nor improved
or strengthened relationships noticeably. This installation-level (or Tier 1) partnering process grew
out of a managerial-level (or Tier 2) partnering process that included EPA Region 5, the Departments
of the Navy, Army, and Air Force, the Fish and Wildlife Service, and states from the region.
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05
Marvin Prochnow Cedarburg Landfill
Gaylene Vasturo, Case Attorney
CERCLA
Liability, Allocation
05/97
08/98
Mediation
William Hartering
This Superfund case concerned cost recovery for a removal in Cedarburg, Wisconsin. EPA sued
various potentially responsible parties (PRPs). PRPs suggested ADR for liability assessment and
EPA agreed, so the court stayed discovery and directed the parties to participate in mediation.
Various third-party neutrals were interviewed and William Hartering was chosen. Hartering
negotiated procedures for the ADR and the parties filed briefs and responses, and met for three days
in Milwaukee. The mediation resulted in a settlement, formalized in a consent decree under which
the PRPs agreed to pay $550,000.
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Region: 05
Case Name: Michigan Disposal Service (Cork St. Landfill)
EPA Contact: Richard Murawski, Case Attorney
Statute/Section: CERCLA-106, CERCLA-107
Issue: Allocation
ADR Use Commenced: 09/94
ADR Use Completed: 10/96
ADR Process: Arbitration, Convening, Mediation
ADR Provider: Michael Young
In this Superfund case, the primary issue was which party (Michigan Disposal or Kalamazoo) would
be responsible for the costs of a landfill cap if costs exceeded current estimates. The ADR was
separated into two parts. Phase one included convening the parties and assisting in negotiation of the
agreement to mediate. Major decisions in this phase were process design and neutral selection.
Phase two was a non-binding arbitration, which resulted in an agreement between Michigan Disposal
and Kalamazoo on the allocation of potential additional costs.
Region: 05
Case Name: Naval Industrial Reserve Ordnance Plant (NIROP)
EPA Contact: Tom Bloom, Remedial Project Manager
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 12/95
ADR Use Completed: Ongoing
ADR Process: Facilitated Partnering
ADR Providers: Donna Kopeski, Paul Reis
Two major problems plagued this site cleanup. In regard to Operable Unit 1, there was a
disagreement between the Navy and the regulators (the Minnesota Pollution Control Agency and
EPA) as to whether containment of a trichlorethylene groundwater plume had been achieved. The
result was an exchange of letters arguing the point. In regard to Operable Unit 3, the Navy drafted
work products and then sent them to the regulators for review. This process became extremely
inefficient and resulted in multiple delays. The NIROP partnering team was created to address these
problems. With the help of a facilitator, the participants were able to discuss solutions in a more
open-minded atmosphere and were able to reach a consensus on solutions to all the problems at
hand. The new approaches have been extremely successful and efficient, allowing parties to
concentrate on fixing the site instead of laying blame. This installation-level (or Tier 1) partnering
process grew out of a managerial-level (or Tier 2) partnering process that included EPA Region 5,
the Departments of the Navy, Army, and Air Force, the Fish and Wildlife Service, and states from the
region.
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Naval AirWarfare Center (NAWC)
Denise Boone, Remedial Project Manager
CERLCA
Partnering Agreement
01/96
Ongoing
Facilitated Partnering
Pete Paznokas
Prior to this process, the Navy and its contractors would complete entire work plans and reports
concerning cleanups without regulatory input, then the regulatory agencies would all individually
review the documents. Partnering brought together all relevant parties to discuss document
development as it was happening in a cooperative and professional manner. The result was not just
the quicker authorization of better documents, but also the forging of better working relationships
with regard to other aspects of the site. This installation-level (or Tier 1) partnering process grew out
of a managerial-level (or Tier 2) partnering process that included EPA Region 5, the Departments of
the Navy, Army, and Air Force, the Fish and Wildlife Service, and states from the region.
Region:
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05
NL/Taracorp (Granite City)
Noemi Emeric
CERCLA
Community Involvement
04/97
10/97
Convening
Marci Depraw
A neutral was enlisted to assist in evaluating the possibility of establishing a community forum to
facilitate communication between the community, EPA, and the potentially responsible parties
regarding site cleanup. She made recommendations for the parties to consider. The parties were not
receptive to the neutral's approach and the community forum was never created.
51
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Region: 05
Case Name: Rickenbacker Air National Guard Base
EPA Case Attorney: Laura Ripley, Remedial Project Manager
Statute/Section: CERCLA
Issue: Partnering Agreement
ADR Use Commenced: 11/95
ADR Use Completed: Ongoing
ADR Process: Facilitated Partnering
ADR Providers: Jerry Arcace
The BRAC Cleanup Team (BCT), comprised of one member each from the Department of Energy,
U.S. EPA, and Ohio EPA, was working in an inefficient, adversarial, and highly legalistic
environment. Communication among support staff was poor and the site cleanup process was
moving slowly. A third-party facilitator was brought in to conduct a two-day partnering workshop
with staff from each of the three organizations. After that, certain meetings of the BCT were
facilitated, keeping the members focused and helping to resolve disputes that arose. Since this
facilitation began, the lines of communication between the parties have been open and work has
progressed more quickly. This installation-level (or Tier 1) partnering process grew out of a
managerial-level (or Tier 2) partnering process that included EPA Region 5, the Departments of the
Navy, Army, and Air Force, the Fish and Wildlife Service, and states from the region.
Region: 05
Case Name: Skinner Landfill
EPA Contact: Sherry Estes, Case Attorney
Statute/Section: CERCLA
Issues: Remedial Design/Remedial Action, Allocation
ADR Use Commenced: 03/97
ADR Use Completed: 12/97
ADR Process: Mediation
ADR Provider: Dan Dozier
Difficulties early in the allocation process made the use of a third-party neutral seem like the best
alternative to resolve issues quickly and effectively. The mediator was helpful in securing an
agreement among the potentially responsible parties (PRPs) regarding allocation, and the parties
decided to continue to use the mediator for remedial design/remedial action (RD/RA) negotiations
through December 1997. The parties, now negotiating on their own, are very close to completing a
consent decree.
52
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Spickler
Jim Morris, Case Attorney
CERCLA
Cost Recovery
05/95
08/97
Allocation, Convening
Dan Dozier
A third-party neutral first met with the potentially responsible parties (PRPs) to gather information
and create a PRP group. After the PRP list was completed, the parties drafted a procedure for
obtaining additional information about waste shipments to the site, established an allocation
procedure, drafted a participation agreement, and selected a neutral to issue the allocation
recommendation. Once a final allocation recommendation was issued, the parties were able to
negotiate a settlement.
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Westinghouse Electric Corporation
Jeff Cahn, Case Attorney
CERCLA
Remedial Investigation
04/97
11/98
Facilitation, Mediation
Nancy Newkirk
The parties disagreed about different aspects of the remedial investigation, and this dissension often
slowed the investigation process considerably. The neutral facilitated discussions and negotiations
between the parties. The services of the neutral were terminated upon the judge's ruling that a
federal magistrate was to be used for future disputes. A settlement is currently in the works that will
cover all six sites involved in the case.
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Region 6
Region: 06
Case Name: Shintech
EPA Contact: Larry Starfield, Case Attorney
Statute/Section: CAA (Title V), RCRA
Issues: Community Involvement, Environmental Justice
ADR Use Commenced: 10/97
ADR Use Completed: 02/98
ADR Process: Facilitation
ADR Providers: Greg Bourne, David Hooker
The dispute concerned the siting of a polyvinyl chloride (PVC) production facility in St. James
Parish, Louisiana. There was significant community opposition, as well as some support, for
building the facility. The proposed permit met existing regulatory guidelines and did not exceed air
quality standards. Region 6 and the Louisiana Department of Environmental Quality (LDEQ) agreed
to hire facilitators. The facilitators first interviewed a number of stakeholders, then facilitated three
meetings in which the LDEQ and EPA met separately with Shintech, parties opposed to the facility,
and parties supporting the facility. Facility opponents refused to participate in negotiations about the
siting of the facility, so the ADR process came to an end. Shintech ultimately decided to build its
facility elsewhere.
Region: 06
Case Name: South 8th Street
EPA Contact: Anne Foster, Case Attorney
Statute/Section: CERCLA-104
Issue: Remedial Design/Remedial Action
ADR Use Commenced: 06/96
ADR Use Completed: 12/98
ADR Process: Convening
ADR Provider: Dan Dozier
This Superfund case involved several potentially responsible parties (PRPs) at the South 8th Street
Landfill site and went through complex settlement activities. Pre-mediation services for the
enforcement negotiations regarding the site were provided. The PRPs in this case wished to settle
through a pre-mediation process with a convener, and ended up settling before the planned allocation
began. The costs of convening activities were shared by EPA and the private parties, with the private
parties making independent arrangements for payment of the selected neutral.
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Region 7
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07
Hastings Ground Water Site
Audrey Asher, Case Attorney
CERCLA-106
Allocation
10/96
02/97
Allocation Pilot
David Batson, Eric Van Loon
The potentially responsible parties (PRPs) for a 30-year-old landfill that contained industrial and
municipal solid wastes participated in an allocation process concerning the costs associated with
cleanup of the site. EPA reached a global settlement with both federal and private PRPs before the
allocator issued a report. Under the settlement, the PRPs agreed to pay most of the past and future
costs, while EPA picked up the "orphan share" associated with insolvent or defunct PRPs.
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Pools Prairie Site, Neosho, Missouri
Daniel J. Shiel, Case Attorney
CERCLA
Allocation
06/98
Ongoing
Convening
Robert Fisher
Communication problems among the five potentially responsible parties (PRPs) included difficulties
resolving issues relating to the sharing of information. The parties are still in the convening stage, and
this ADR process is expected to continue into FY 00. The goal of the convening is to help the PRPs
create an allocation process. Since the PRPs began to work together in the convening process, EPA
has not been directly involved.
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West Lake Landfill
David Hoefer, Case Attorney
CERCLA
Allocation
01/97
02/98
Convening
Bill Hartgering
The Department of Energy, one of the potentially responsible parties for the landfill, sought an
allocation of costs so it could work out its budget. The convening/allocation attempt was prompted by
statements made by Deputy Secretary Grumbley (DOE) and the regional administrator for Region 7
urging that allocation be attempted. These statements were made at a public meeting of the St. Louis
Formerly Utilized Sites Remedial Action Program (FUSRAP) task force. Allocation was not achieved
because the process fell apart after the convening. The convening occurred prior to the completion
of the record of decision (ROD). Parties are now awaiting issuance of the ROD and its cost estimate.
Getting the parties together to discuss allocation issues was useful, but because the cost of the __
cleanup had not been determined, the discussion failed to move the case forward. 55
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Region 8
Region: 08
Case Name: Bingham Creek Mini-Trial
EPA Contact: Karen Kellen, Case Attorney
Statute/Section: CERCLA-107
Issue: Cost Recovery
ADR Use Commenced: 03/96
ADR Use Completed: 12/97
ADR Process: Mini-Trial
ADR Provider: Dick Dana
This was a CERCLA cost recovery case involving a successor in interest to historic mining
operations in Bingham Canyon, Utah. Both EPA and the PRP were willing to try a mini-trial ADR
process. The mini-trial allowed both sides to prepare arguments and modify negotiation and trial
strategy. Although an agreement was not reached, the mini-trial was a good preparatory exercise for
both parties. The Department of Justice was satisfied because it felt that the strengths and
weaknesses in EPAs case were clarified.
Region: 08
Case Name: Blackfeet/UIC ADR
EPA Contact: DanielaThigpen, UIC Program Contact
Statute/Section: SDWA
Issues: Community Involvement, Secondary Oil Recovery Operations
Standards
ADR Use Commenced: 09/96
ADR Use Completed: 04/98
ADR Process: Mediation
ADR Provider: Nancy Moore-Hope
Federal agencies and the Blackfeet tribe were at an impasse regarding the application of underground
injection control (UIC) regulations to "stripping" or secondary oil recovery operations on the
Blackfeet reservation. They also were sufficiently interdependent to make mediation appropriate and
effective. The mediation process broke the impasse and left all parties very satisfied. The
stakeholders have re-established open lines of communication and have improved the way issues
regarding secondary recovery of oil are addressed within the Blackfeet Nation. The parties drafted a
memorandum of understanding to outline the agreement between them.
56
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Clark Fork
Bob Fox, Montana Superfund Operations Director
CERCLA
Community Involvement, Remedy Selection
01/98
Ongoing
Convening
Debra Nudelman
The community felt it was being prevented from having effective involvement in this large-scale
remedial action located along the Clark Fork in Montana. ADR was suggested by the regional
contact to explore ways to enhance public involvement. The most important interest of the non-EPA
stakeholders was the improvement of communication and trust between all the stakeholders in the
matter. After a convening was conducted, the neutral made recommendations to the Montana EPA
Operations office regarding ways in which it could improve its public involvement processes. No
further ADR activity was recommended, and the community and stakeholders agreed with the
neutral's assessment of the situation. It was determined that ADR beyond the initial convening was
not warranted, but that ADR possibly would be beneficial in the future. The community needed to
feel that EPA's remedial project manager was listening to them and could be trusted. In this case,
convening alone was enough to address community concerns and move the process forward.
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French Gulch/Wellington-Oro
Andy Lensink, Case Attorney
CERCLA
Community Involvement, Land Use, Remedy Selection
06/95
10/98
Facilitation
Kristie Parker
EPA selected the Wellington-Oro mine site in Summit County, Colorado as a pilot for the use of the
new community-based approach to remedy selection and implementation. EPA hired a neutral to
facilitate issue identification, brain storming, and problem solving among 28 local, state, and federal
stakeholders. The public was also involved in this process, although members of the public had
previously expressed little interest in this cleanup or issues relating to it. The stakeholders came to
numerous interim agreements regarding how to address this very complex mine site cleanup. The
site is still under investigation, and the stakeholders continue to participate in the cleanup process
without facilitation.
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Region: 08
Case Name: Hansen Container
EPA Contact: Suzanne Bohan, Case Attorney
Statute/Section: CERCLA
Issues: Allocation, Cost Recovery
ADR Use Commenced: 09/97
ADR Use Completed: 01/98
ADR Process: Mediation
ADR Provider: Jamie Harrison
After a removal action was complete, the potentially responsible parties (PRPs) did not organize or
respond promptly to each other or EPA. It was suggested that a mediator might convene the PRPs,
provide focus, set and help the parties meet deadlines, and move the parties toward settlement. The
mediation was effective, with concerns being voiced freely by all involved. An order was signed
providing for repayment of EPA's costs. The PRPs expressed thanks to EPA for taking their interests
and needs into consideration. These included an "orphan share" associated with insolvent or defunct
parties and equitable issues that affected cost recovery.
Region: 08
Case Name: Muddy Creek
EPA Contact: Joni Teter, Case Attorney
Statute/Section: CWA-404
Issues: Wetlands Permit, Inter-Agency Issues
ADR Use Commenced: 02/98
ADR Use Completed: 11/98
ADR Process: Facilitation
ADR Providers: Amy Jenkins, John Talbott, Grant Stumbough
This matter, which concerned actions taken without required wetlands permits and violations of
wetlands permits, involved local, state, and federal agencies in addition to facility operators, for a
total of eight parties. EPA suggested to the parties that a facilitator might ease strained
communications among them. One neutral convened the parties and facilitated one meeting, after
which the State of Wyoming hired a different neutral to facilitate. This neutral was later succeeded
by a Wyoming state employee who facilitated communication among the parties during negotiations.
The negotiations resulted in an agreement that was eventually formalized in an administrative order
on consent (AOC). The AOC not only settled past violations, but also addressed roles and
responsibilities for future planning and provided for assistance to the Little Snake River
Conservation District from the Bureau of Land Management and the Natural Resources
Conservation Service.
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Region:
Case Name:
EPA Contact:
Statute/Section:
Issues:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Providers:
08
Murray Smelter
Bonnie Lavelle, Remedial Project Manager
CERCLA
Community Involvement, Remedy Selection
10/96
04/98
Facilitation
Louise Smart, Bernie Mayer
This matter involved local, state, and federal agencies as well as members of the community and a
potentially responsible party (PRP). The six parties held strong positions concerning a proposed
prospective purchaser agreement and implementation of the remedy at this Superfund site. EPA
suggested the use of a neutral third party to facilitate communication among key stakeholders and to
ensure that the community understood and approved of the way EPA and the PRP agreed to
implement the remedy. Communication was improved, and all parties were able to move forward in
agreement on how to integrate future site development plans with the cleanup process at this site.
The EPA remedial project manager (RPM) remarked that the neutral was able to draw out of the
group new and unique options for remedy implementation that would not have occurred to the RPM
herself.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
08
National Lead Workgroup
Bill Murray, Director of Program Support
CERCLA
Cleanup Standards
06/97
07/97
Facilitation
Alana Nastor
Region 8 and EPA headquarters had significant differences concerning the setting of cleanup levels
and risk determination regarding lead contamination. Region 8 suggested that a facilitator be used to
improve communication and lower the level of conflict among the 10 regions and EPA headquarters.
There was little effort made by headquarters or the regions to work with the facilitator to change
communication patterns between them. Consequently, the facilitation process provided only
moderately satisfactory results, and there was minimal improvement in communication between the
parties.
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Region: 08
Case Name: Ramp Industries
EPA Contact: Joni Teter, Case Attorney
Statute/Section: CERCLA
Issues: Allocation, Cost Recovery
ADR Use Commenced: 04/97
ADR Use Completed: 03/98
ADR Process: Mediation
ADR Provider: Mike Harty
This case involved 800 de minimis potentially responsible parties (PRPs), and coordination of these
de minimis parties was very difficult. ADR was suggested as a response to this situation and the
other problems involving settlement negotiations with major PRPs. Although the issues were not
complex, the parties were hard to organize. Mediation enabled all parties to improve
communication, and an equitable agreement was reached quickly. The parties were very satisfied
and enthusiastic about the mediation process. The PRPs were particularly satisfied with the use of
ADR in this matter as they felt it allowed them really to be heard by EPA and to have their interests
addressed in the settlement process.
Region: 08
Case Name: Rocky Mountain Arsenal
EPA Contact: Laura Williams, Remedial Project Manager
Statute/Section: CERCLA
Issues: Community Involvement, Remedy Selection
ADR Use Commenced: 10/97
ADR Use Completed: 06/98
ADR Process: Convening, Early Neutral Evaluation
ADR Providers: Kristie Parker, Lisa Prudy
Teams at this federal facility have experienced long periods of conflict with key stakeholders and
members of the community. After the community repeatedly expressed widespread dissatisfaction
with the way the cleanup was being implemented, Region 8 brought in a neutral third party to try to
convene the 25 community and other stakeholders. The most vocal of the community members did
not want to work directly with Region 8 on their issues of concern. Instead, they contacted the
Superfund National Ombudsman, who met with community activists several times in a process
separate from the neutral's. All stakeholders and community members were willing to participate in
the convening and early neutral evaluation. The neutral interviewed the stakeholders about their
views of the cleanup process and prepared a summary report of issues and recommendations. This
report was distributed to all involved, and many recommendations were implemented. Although the
stakeholders did not want to go beyond convening and early neutral evaluation, EPA benefited from
the information gathered in these processes. In addition, the community and other stakeholders
gained a more balanced perspective of the cleanup process.
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Region:
Case Name:
EPA Contact:
Statute/Section:
Issues:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
08
Sand Creek Industrial Site
Richard Sisk, Case Attorney
CERCLA
Allocation, Cost Recovery
10/96
08/98
Mediation
KateWhitby
There was a significant time lapse between the cleanup and cost recovery measures at this Superfund
site, so ADR was suggested to facilitate communication among the potentially responsible parties
(PRPs) and to allocate liability. The PRPs never formed a PRP committee and had not worked with
each other or EPA to resolve liability prior to initiation of the convening. After convening, the
parties communicated well with EPA, and the mediator was used on a situation-by-situation basis to
deal with specific issues that became stumbling blocks to settlement. Settlement was reached with all
but one party, against whom a complaint was filed, and then settlement was achieved.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issues:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
08
Sandy Smelter
Bonnie Lavelle, Remedial Project Manager
CERCLA
Community Involvement, Land Use, Remedy Selection
05/97
11/97
Mediation
Louise Smart
EPA and the Utah Department of Environmental Quality were working to establish cleanup levels
and help the community achieve redevelopment objectives for this Superfund site. With the help of
a third-party neutral, the cleanup was achieved and redevelopment plans were implemented. In
addition, communication between EPA and six stakeholders was improved. The EPA remedial
project manager (RPM) is adept at ADR and handled the ADR aspects of this case from the outset
without much assistance. Bringing in a neutral was very timely, as the RPM needed to be "at the
table" representing EPA more than she had been when using her own skills as a consensus builder. It
was useful to have the neutral ensure that local and state stakeholders were empowered and felt that
they were heard during the ADR process.
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Region: 08
Case Name: Sioux Falls Brownfields
EPA Contact: Kathleen Atenico, Brownfields Coordinator
Statute/Section: Brownfields
Issue: Land Use
ADR Use Commenced: 10/97
ADR Use Completed: Ongoing
ADR Process: Mediation
ADR Provider: Tammara Trussell
This dispute concerns relocation of a salvage yard situated in the center of a brownfields
redevelopment property in Sioux Falls, South Dakota. A neutral was brought in because the city and
the salvage yard could not agree on the sale price or other terms, such as whether the city would pay
for relocation of the business, and other stakeholders had concerns about both the cleanup and
redevelopment plans. In addition, not every stakeholder was being included in the process. The
mediation is ongoing.
Region: 08
Case Name: Summitville Mine
EPA Contact: Jim Hanley, Remedial Project Manager
Statute/Section: CERCLA, CWA
Issues: Remedy Selection, Watershed Issues
ADR Use Commenced: 09/96
ADR Use Completed: Ongoing
ADR Process: Convening, Facilitation
ADR Provider: Lucy Moore
This Superfund site, a former gold mine, presented many issues regarding remedy selection and the
future of the Alamosa River watershed, which was being damaged by acid and metal-laden runoff from
the mine. The state especially was having difficulty communicating effectively with the community. A
neutral was brought in to convene the stakeholders, then the stakeholders collectively selected a
facilitator. The facilitation, in which parties addressed a broad range of issues affecting the watershed,
lowered the level of conflict and improved communication between all involved. The work of the
facilitation participants not only forged a working relationship that has continued, but also contributed
to the establishment by the governor of Colorado of the Alamosa River Watershed Task Force.
Region: 08
Case Name: Zabel Battery
EPA Contact: Rick Baird, Case Attorney
Statute/Section: CERCLA-107
Issue: Allocation, Cost Recovery
ADR Use Commenced: 08/97
ADR Use Completed: 06/98
ADR Process: Convening
ADR Provider: Jamie Harrison
The two PRPs were being uncommunicative about cost recovery, and EPA felt it was being forced to
litigate. A neutral was hired to convene the potentially responsible parties (PRPs) in this matter. The
ADR process ended after the convening, as one PRP agreed to enter into settlement discussions with
EPA without further assistance from the neutral, while the other PRP refused ADR. The first PRP
successfully negotiated a cost recovery settlement with the region, and the other PRP settled after EPA
filed a complaint for cost recovery.
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Region 9
Region:
Case Name:
EPA Contact:
Statute/Section:
Issues:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Providers:
09
Borden Ranch
Hugh Barroll, Case Attorney
CWA-404
Standards, Land Use
03/98
10/98
Mediation, Fact-finding, Mini-Trial
EPA and U.S. Army Corps of Engineers
Three private parties entered into an administrative order on consent with the government, agreeing
to preserve certain wetlands to mitigate the effects of land preparation activities they had conducted
on other wetlands. The private parties agreed to set the land aside, but contended that the mitigation
demands were excessive and insisted on impact studies to reconsider the mitigation requirements.
The ADR process, culminating in a mini-trial, provided a vehicle for reconsideration of the
mitigation requirements, leading to the upholding of the original position on the mitigation.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
09
Consultative Process for Ports/Ships
John Ungvarsky, Case Attorney
CAA
Air Pollution Reduction Strategies
10/96
10/97
Facilitation
Alana Knaster
This case involves stakeholder-based negotiations over strategies to reduce air pollution from marine
vessels and ports in the Los Angeles, California area. EPA brought in a third-party neutral to
facilitate the negotiations. Three work groups were created as a result. One group developed a
memorandum of agreement and helped jointly fund some research. The other two groups involved
more information sharing and issues education. Use of facilitator ended in October 1997, but there
are still items being worked on without the facilitator's services.
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Region: 09
Case Name: Continental Fixture Company
EPA Contact: Carol Bussey, Case Attorney
Statute/Section: CAA
Issue: Penalty
ADR Use Commenced: 10/97
ADR Use Completed: 02/98
ADR Process: Mediation
ADR Provider: Magistrate Dale Drozd
The Unites States filed a lawsuit against a party that had constructed a facility without obtaining
Clean Air Act permits or using the best available control technology (BACT) required for its
emissions of reactive organic compounds. The defendant had also failed to respond in a timely
fashion to an information request. Shortly after the lawsuit was filed, the parties agreed to attempt
mediation, and the court appointed a federal magistrate as mediator. By the time the mediation took
place, the defendant had obtained the required permits, under which it agreed to keep emissions to a
level that would not trigger BACT requirements, so only penalty issues remained. After two
meetings with the mediator, the parties agreed to a settlement under which the defendant would pay
$100,000 in penalties over 12 months.
Region: 09
Case Name: Del Amo Site Waste Pits
Case Contact: John Lyons, Case Attorney
Statute/Section: CERCLA
Issue: Community Relocation
ADR Use Commenced: 01/96
ADR Use Completed: 06/97
ADR Process: Mediation
ADR Provider: Justice Jack Trotter (ret.)
The Del Amo site, located in Los Angeles, California, was for many years the site of a synthetic
rubber manufacturing facility. Wastes from the facility, including styrene and benzene, were
disposed of in a series of waste pits. During the CERCLA remedy selection process, residents living
near the waste pits demanded that they be permanently relocated. EPA criteria for selecting
relocation as part of a remedy were not met, so EPA suggested that the residents and potentially
responsible parties (PRPs) address the relocation demands in a private ADR process. Both sides
agreed, and the resulting mediation led to a settlement in which the PRPs agreed to purchase 63
properties, pay moving expenses, and fund a community development loan program for the area
surrounding the properties that were purchased.
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Region:
Case Name:
EPA Contact:
Statute/Section:
Issues:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
09
Del Norte Pesticide Storage
Shauna Woods, Case Attorney
CERCLA-107, CERCLA-122h
Allocation, Cost Recovery
02/94
09/98
Mediation
Sandra Rennie
EPA and the California Department of Toxic Substances Control (DTSC) entered into mediation
with seven generator potentially responsible parties (PRPs) regarding recovery of cleanup costs for
the Del Norte County Pesticide Storage Area Superfund site. This extremely long ADR involved
mediation and negotiation between the parties and resulted in a settlement and administrative order
on consent.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
09
Iron Mountain Mine
Rick Sugarek, RPM
CERCLA
Cost Recovery
10/96
Ongoing
Mediation
Jay Lawerence Irving
This Superfund case involving cost recovery against one major potentially responsible party (PRP)
was held up in litigation for about 10 years. Cost recovery litigation has been going on since 1991
and site costs are expected to exceed $200 million. The parties had previously tried unsuccessfully to
settle without the assistance of a mediator. The court ordered the parties to engage in settlement
negotiations, and they found a mutually acceptable mediator. Cost recovery mediation commenced
in October 1996 and is ongoing.
Region:
Case Name:
EPA Contact:
Statute/Section:
Issue:
ADR Use Commenced:
ADR Use Completed:
ADR Process:
ADR Provider:
09
Purity Oil Sales, Inc.
Matt Strassberg, Case Attorney
CERCLA-122
Allocation
06/95
03/97
Allocation, Mediation
Judge Layn Phillips (ret.)
This case concerned cleanup of lead in soils and volatile organic compounds in groundwater at a
former used oil recycling facility. EPA and the potentially responsible party (PRP) conducting the
cleanup were both seeking cost recovery/contribution from 150 other PRPs. The PRPs, with the
close involvement of EPA, entered into a private allocation process. EPA approved the ADR
guidelines and participated in informal mini-trials before the allocator. The allocated percentages of
responsibility were never disclosed, but were used as the basis of a subsequent settlement with EPA.
A consent decree formalizing the settlement was lodged in November 1998.
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Region 10
Region: 10
Case Name: Pacific Hide and Fur Site
EPA Contact: Jim Oesterle, Case Attorney
Statute/Section: CERCLA-106, CERCLA-107
Issues: Allocation, Cost Recovery
ADR Use Commenced: 03/97
ADR Use Completed: 07/98
ADR Process: Mediation
ADR Provider: Judge Richard Dana
This case concerned the cleanup of a former recycling facility contaminated with poly chlorinated
biphenyls and lead. Mediation was court mandated. The mediation addressed three separate sets of
claims: 1) EPA claims against private parties; 2) private party claims against private parties; and 3)
private party claims against insurers. After an initial meeting attended by all the parties, the mediator
met separately with the owners/operators, the generators, and the insurers. The mediator also
brokered a deal in which a recalcitrant owner/operator who had not been participating in the
mediation sold his property to another owner/operator contingent upon the settlement. A global
settlement resolving all the claims was eventually achieved.
Region: 10
Case Name: Tulalip Landfill
EPA Contact: Elizabeth McKenna, Case Attorney
Statute/Section: CERCLA-106, CERCLA-107
Issues: Allocation, Cost Recovery
ADR Use Commenced: 01/95
ADR Use Completed: 11/97
ADR Process: Allocation
ADR Provider: Dan Dozier
Region 10 initiated settlement negotiations pursuant to CERCLA with several potentially responsible
parties (PRPs) at the Tulalip Landfill Superfund site in FY 1995, seeking costs of response activities
previously undertaken by EPA and performance of future response actions at the site. The cleanup
was necessary because leachate from the landfill, containing pesticides, heavy metals, and other
contaminants, was draining into ecologically sensitive wetlands. The parties entered EPA's
allocation pilot program, then decided to attempt to accelerate that process by entering mediation. A
three-day mediation, including a session that stretched into the early morning hours, failed to achieve
a settlement. The mediation did, however, result in an important concession by a major party on
which the eventual settlement was based. The parties returned to the allocation process for a short
period, then all but two parties settled just before substantive briefs were to be filed. The two
remaining parties continued in the allocation process for more than a year, then entered into a
settlement based on the final allocation report.
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CONSENT DECREES THAT INCLUDE ADR PROVISIONS
EPA's model consent decrees typically include a
dispute resolution process consisting of an
informal negotiation period (typically 20 or 30
days) followed, if necessary, by a formal dispute
resolution process where the settling defendants
and EPA exchange written statements of position
on the issue in dispute. EPA then makes an
administrative decision resolving the dispute.
The defendants may seek judicial review of
EPA's decision under the continuing jurisdiction
of the court that originally approved the consent
decree.
The model consent decree dispute resolution
provisions may be supplemented with provisions
for alternative dispute resolution. Such ADR
provisions typically provide for nonbinding
mediation either during the informal negotiation
period or between informal negotiations and the
initiation of formal dispute resolution. Most
ADR provisions require the mutual consent of
the parties at the time mediation is proposed. In
some cases, however, the parties agree in the
consent decree to enter into mediation whenever
one of the parties requests it. If mediation does
not result in an agreement, the parties may
proceed to formal dispute resolution and/or
judicial review, as provided in the consent
decree. Two examples of dispute resolution
provisions in CERCLA consent decrees that
have been supplemented with ADR provisions
are included at the end of this section.
The following table lists selected consent decrees
that include ADR processes as part of their
dispute resolution procedures. The nature of the
ADR provision is briefly described in the "ADR
Process" column.
Consent Decrees with ADR Provisions
Region Name Type of Case
1 Old Southington Landfill CERCLA
1
Norwood PCB Site
CERCLA
Central Landfill
CERCLA
South Municipal Water
Supply Well
CERCLA
ADR Process Year
Informal, including 1998
Mediation, then Formal.
None for property law 1997
issues; otherwise Informal,
including Mediation, then
Formal.
Informal (initial meeting 1996
with mediator on request
of any party), including
Mediation, then Formal.
Informal, including 1997
Mediation, then Formal.
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Region Name
2 Barceloneta Landfill
Type of Case
CERCLA
Saltville Waste Disposal Pond CERCLA
Fike Chemical
Blue Plains Wastewater
Treatment Plant
Lindane Dump
Wingate Road Municipal
Incinerator and Landfill
FCX-Statesville Site
GE/Shepherd Farm
Beaunit Circular
Knit & Dyeing
Interstate Lead Company
TH Agriculture and
Nutrition Co.
CERCLA
CWA
CERCLA
CERCLA
CERCLA
CERCLA
CERCLA
CERCLA
CERCLA
ADR Process Year
Informal, then Mediation 1997
(direct to judicial review if
the parties do not agree to
mediate).
Informal, then optional 1997
Mediation, then Formal.
Informal, then optional 1996
Mediation, then Formal.
If the defendant rejects 1995
certain consultant
recommendations, the U.S.
may invoke compulsory,
nonbinding Mediation.
Informal, then optional 1993
Mediation for certain
disputes or Formal.
Informal, including 1998
Mediation, then Formal.
Informal, including 1997
Mediation, then Formal.
Informal, including 1996
Mediation, then Formal.
Informal, including 1996
Mediation, then Formal.
Informal, including 1995
Mediation if it will not
delay cleanup, then Formal.
Informal, including 1997
Mediation, then Formal.
South Point Plant
Prestolite Battery
CERCLA
CERCLA
Informal, including
Mediation, then Formal.
Informal, then Formal,
then Mediation for
disputes involving
accounting error or costs
inconsistent with NCP
1998
1997
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Region
5
5
5
6
6
7
Name
SE Rockford Groundwater
Contamination
Sherwin-Williams Co.
Midco 1 and II
Borden Chemicals &
Plastics, Geismar
Turtle Bayou
Sunbeam Products,
Type of Case
CERCLA
RCRA, CWA
EPCRA, CAA
CERCLA
RCRA, CERCLA,
CAA
CERCLA
CAA
ADR Process
Informal, including
Mediation, then Formal.
Informal, then optional
Mediation, then Formal.
Informal, including
Mediation, then Formal.
Informal, then
Mediation, then Formal.
Informal, then
Mediation, then Formal.
Informal, then Mediation
Year
1997
1993
1992
1998
1998
1997
10
10
10
Neosho Plants
Doepke-Holliday
Fresno Sanitary Landfill
Blackbird Mine
Tulalip Landfill
City of Tacoma
CERCLA
CERCLA
CERCLA
CERCLA, CWA
CERCLA
if the U.S. consents
(direct to judicial
review if it does not).
EPA Mediation for certain 1996
cost reimbursement
disputes that arise among
parties during the cleanup.
Informal, including 1997
Mediation, then Formal.
Informal including 1995
"appropriate ADR
mechanisms,"then Formal.
Mediation for certain 1998
enumerated disputes and
Informal for all other
disputes, then Formal.
Informal, then Formal, 1997
including mandatory
Mediation.
10
10
Teledyne Wah Chang
Gould
CERCLA
CERCLA
Informal, then Formal, 1997
with "ADR Albany Site
procedures," including but
not limited to Mediation
at any time agreed to by
the parties.
Informal, including 1998
Mediation, then Formal.
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SAMPLE CONSENT DECREES THAT INCLUDE ADR PROVISIONS
SOUTH POINT PLANT SUPERFUND SITE, LAWRENCE COUNTY, OHIO
RD/RA CONSENT DECREE (1998)
XIX. DISPUTE RESOLUTION
63. a. Informal Dispute Resolution Period. The Parties to this Consent Decree shall attempt to
resolve expeditiously any disagreements concerning the meaning, application or implementation of
this Consent Decree. Any party seeking dispute resolution first shall provide the other parties with an
"Informal Notice of Dispute" in writing and request an informal dispute resolution period, which
shall not exceed thirty (30) days.
b. Employment of Neutral Mediator. Within ten (10) days of the filing of an Informal Notice
of Dispute (or in the event of an alleged "force majeure" event within ten (10) days of EPAs
notification of disagreement pursuant to paragraph 61), either the United States or the Settling
Defendants may, by providing notice in writing, request the employment of a neutral mediator to be
selected in accordance with subparagraph 63(c). The United States and the Settling Defendants agree
to such employment, if timely requested. Any mediation shall not last longer than forty-five (45)
days from the filing of the informal notice of dispute (expiration of the informal dispute resolution
period notwithstanding) or, in the event of an alleged "force majeure" event, forty-five (45) days
from EPAs notification of disagreement pursuant to paragraph 61, unless extended by written
agreement of the United States and Settling Defendants. Any report, findings, recommendations,
written records, or notes prepared by the mediator shall not be binding on any party and shall not be
part of the administrative record or admissible in dispute resolution proceedings or any other legal
proceeding. The Director, Superfund Division, Region V, and management for each Settling
Defendant shall review any report, findings, or recommendations of the mediator, but the Director
may not consider or rely solely on such report, findings, or recommendations in issuing a final
decision on dispute resolution pursuant to subparagraph 65d.
c. Selection of Neutral Mediator Roster. Within forty-five (45) days after entry of this
Consent Decree, Settling Defendants and the United States (after consultation with the State) shall
submit to each other a list of at least three suggested mediators, who shall each have the
qualifications of (a) demonstrated experience, (b) independence, (c) subject matter experience, and
(d) lack of actual or apparent bias in general accordance with EPA guidance on the use of Alternative
Dispute Resolution in Enforcement Cases. A description of the qualifications of a proposed mediator
shall accompany the submittal. Settling Defendants and the United States shall, within twenty-one
(21) days after receipt of a list of mediators, strike those names to which they will not agree. If
necessary, additional names shall be submitted and considered, until a roster of at least two available
mediators is agreed upon. If for any reason, at any time, a previously agreed upon mediator is
unavailable, then the selection process shall be promptly reinstated so as to have at least two
mediators readily available.
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d. Appointment of Neutral Mediator. Upon the timely request of the United States or Settling
Defendants for the employment of a neutral mediator in accordance with subparagraph 63b, a
mediator shall be selected at random (e.g., by names being drawn blindly) from the available roster.
The United States and Settling Defendants shall expeditiously enter into a written contract with the
mediator for the provision of required services, including salary, terms of payments, each party's
share of costs, and a confidentiality agreement. The contract shall include the following provision on
confidentiality:
"In order to promote frank and productive discussion, the mediation process will be
confidential. The parties, their representatives, and the mediator may not disclose
information regarding the negotiations, including settlement terms, proposals, offers, or other
statements made during the mediation process or negotiations, to third parties, unless the
United States and Settling Defendants otherwise agree in writing. The mediation process and
negotiations shall be treated as compromise negotiations under Rule 408 of the Federal Rules
of Evidence or other applicable rules of evidence. The mediator will be disqualified as and
shall not appear as a witness, consultant or expert in any pending or future action relating to
the subject matter or mediation including actions between persons not parties to the
mediation."
64. If the dispute is not resolved within the informal discussion period under subparagraph
63a, any party may initiate formal dispute resolution by giving a written "Formal Notice of Dispute"
to the other parties no later than the 15th day following the conclusion of the thirty-day informal
dispute resolution period under subparagraph 63a. A party shall seek formal dispute resolution prior
to the expiration of the informal discussion period under subparagraph 63a where the circumstances
require prompt resolution.
65. Formal dispute resolution for disputes pertaining to the selection or adequacy of remedial
design or remedial action (including the selection and adequacy of any plans which are required to be
submitted for government approval under this Decree and the adequacy of
Work performed) shall be conducted according to the following procedures:
a. Within ten (10) days of the service of the Formal Notice of Dispute pursuant to the
preceding paragraph, or such other time as may be agreed to by the parties, the party who gave the
notice shall serve on the other parties to this Decree a written statement of the issues in
dispute, the relevant facts upon which the dispute is based, and factual data, analysis, or opinion
supporting its position (hereinafter the "Statement of Position"), and shall provide copies of all
supporting documentation on which such party relies.
b. Opposing parties shall serve their Statements of Position and copies of supporting
documentation within twenty (20) days after receipt of the complaining party's Statement of Position
or such other time as may be agreed to by the parties.
c. EPA shall maintain an administrative record of any dispute governed by this paragraph.
The record shall include the Formal Notice of Dispute, the Statements of Position, all supporting
documentation submitted by the parties, and any other material on which the EPA decision maker
relies for the administrative decision provided for below. The record shall be available for inspection
and copying by all parties. The record shall be closed no less than ten (10) days before the
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administrative decision is made, and EPA shall give all parties prior notice of the date on which the
record will close.
d. The Director, Superfund Division, EPA Region V, will issue a final administrative decision
resolving the dispute based on the administrative record described in subparagraph 65c. This
decision shall be binding upon the Settling Defendants, subject to the right to seek judicial review
pursuant to subparagraph 65e.
e. Any decision and order of EPA pursuant to subparagraph d shall be reviewable by this
Court, provided that a Notice of Judicial Appeal is filed within 10 days of receipt of EPA's decision
and order. Judicial review will be conducted on EPA's administrative record and EPA's decision shall
be upheld unless it is demonstrated to be arbitrary and capricious or in violation of law.
66. Judicial dispute resolution for any issues not governed by the preceding paragraph may be
initiated by the petition to the Court and shall be governed by the Federal Rules of Civil Procedure.
Except as specifically provided in other provisions of this Decree, e.g., Section XIII, this Decree
does not establish procedures or burdens of proof for such dispute resolution proceedings.
67. The invocation of the procedures stated in this Section shall not extend or postpone
Settling Defendants' obligations under this Consent Decree with respect to the dispute issue unless
and until EPA agrees otherwise. EPA's position on an issue in dispute shall control until such time as
the Court orders otherwise in accordance with the provisions of this Section.
68. Any applicable Stipulated Penalties continue to accrue during dispute resolution, as
provided in Section XX hereof. Settling Defendants may seek forgiveness of stipulated penalties that
accrue during dispute resolution by petition to EPA and/or the Court pursuant to paragraph 70 below.
69. Upon the conclusion of any formal or informal dispute resolution under this Section
which has the effect of nullifying or altering any provision of the RD/RA Project Plan or any other
plan or document submitted and approved pursuant to this Decree, Settling Defendants shall submit
an amended plan, in accordance with the decision, to EPA and the State within fifteen (15) days of
receipt of the final order or decision. Amendments of the SOW as a result of dispute resolution
proceedings are governed by Section VI above. Amendments of a plan or other document as a result
of dispute resolution shall not alter any dates for performance unless such dates have been
specifically changed by the order or decision. Extension of one or more dates of performance in the
order or decision does not extend subsequent dates of performance for related or unrelated items of
Work unless the order or decision expressly so provides or the parties so agree.
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TURTLE BAYOU SUPERFUND SITE, LIBERTY COUNTY, TEXAS
RD/RA CONSENT DECREE (1998)
XIX. DISPUTE RESOLUTION
61. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution
procedures of this Section shall be the exclusive mechanism to resolve disputes arising under or with
respect to this Consent Decree. However, the procedures set forth in this Section shall
not apply to actions by the United States to enforce obligations of the Settling Defendants that have
not been disputed in accordance with this Section.
62. a. Any dispute which arises under or with respect to this Consent Decree shall in the first
instance be the subject of good-faith informal negotiations between the parties to the dispute. The
period for good-faith informal negotiations shall not exceed 30 days from the time the dispute arises,
unless it is modified by written agreement of the parties to the dispute. The dispute shall be
considered to have arisen when one party receives a written Notice of Dispute.
62. b. In the event that the parties cannot resolve a dispute by informal negotiations under
Paragraph 62.a., the non-binding mediation provisions of this Paragraph and Paragraph 62. c. may be
invoked by mutual agreement of the parties before invocation of the formal dispute resolution
procedures of this Section.
62. c. Upon agreement to invoke the non-binding mediation procedures, all disputes among
the parties may be presented to a mutually agreed-upon entity or individual for non-binding
mediation. The period for such non-binding mediation shall not exceed 20 days from the conclusion
of the informal negotiation period, unless this period is modified by written agreement of the parties
to the dispute. The costs of the non-binding mediation services shall be paid on an equal basis
between the parties involved in the dispute, unless another allocation for these services is mutually
agreed upon by the parties.
63. a. In the event that the parties cannot resolve a dispute by informal negotiations or non-
binding mediation under the preceding Paragraph, then the position advanced by EPA shall be
considered binding unless, within 20 days after the conclusion of the informal negotiation
or non-binding mediation period, Settling Defendants invoke the formal dispute resolution
procedures of this Section by serving on the United States pursuant to the notice provisions herein a
written Statement of Position on the matter in dispute, including, but not limited to, any factual data,
analysis or opinion supporting that position and any supporting documentation relied upon by the
Settling Defendants. The Statement of Position shall specify the Settling Defendants' position as to
whether formal dispute resolution should proceed under paragraph 64 or 65.
b. Within fourteen (14) days after receipt of Settling Defendants' Statement of Position, EPA
will serve on Settling Defendants its Statement of Position, including, but not limited to, any factual
data, analysis, or opinion supporting that position and all supporting documentation relied upon by
EPA. EPA's Statement of Position shall specify the EPA's position as to whether formal dispute
resolution should proceed under paragraph 64 or 65. Within 14 days after receipt of EPA's Statement
of Position, Settling Defendants may submit a Reply.
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c. If there is disagreement between EPA and the Settling Defendants as to whether dispute
resolution should proceed under Paragraph 64 or 65, the parties to the dispute shall follow the
procedures set forth in the paragraph determined by EPA to be applicable. However, if the Settling
Defendants ultimately appeal to the Court to resolve the dispute, the Court shall determine which
paragraph is applicable in accordance with the standards of applicability set
forth in Paragraphs 64 and 65.
64. Formal dispute resolution for disputes pertaining to the selection or adequacy of any
response action and all other disputes that are accorded review on the administrative record under
applicable principles of administrative law shall be conducted pursuant to the procedures set forth in
this Paragraph. For purposes of this Paragraph, the adequacy of any response action includes,
without limitation: (1) the adequacy or appropriateness of plans, procedures to implement plans,
or any other items requiring approval by EPA under this Consent Decree; and (2) the adequacy of the
performance of response actions taken pursuant to this Consent Decree. Nothing in this Consent
Decree shall be construed to allow any dispute by Settling Defendants regarding the
validity of the ROD's provisions.
a. An administrative record of the dispute shall be maintained by EPA and shall contain all
statements of position, including supporting documentation, submitted pursuant to this Section.
Where appropriate EPA may allow submission of supplemental statements of position by the parties
to the dispute.
b. The Director of the Superfund Division, EPA Region 6, or his/her delegate, will issue a
final administrative decision resolving the dispute based on the administrative record described in
Paragraph 64. a. This decision shall be binding upon the Settling Defendants, subject only to the
right to seek judicial review pursuant to Paragraph 64. c. and d.
c. Any administrative decision made by EPA pursuant to Paragraph 64. b. shall be reviewable
by this Court, provided that a motion for judicial review of the decision is filed by the Settling
Defendants with the Court and served on all Parties within 20 days of receipt of EPA's decision. The
motion shall include a description of the matter in dispute, the efforts made by the parties to resolve
it, the relief requested, and the schedule, if any, within which the dispute must be resolved to ensure
orderly implementation of this Consent Decree. The United States may file a response to Settling
Defendants' motion.
d. In proceedings on any dispute governed by this Paragraph, Settling Defendants shall have
the burden of demonstrating that the decision of the Superfund Division Director, or his/her delegate,
is arbitrary and capricious or otherwise not in accordance with law. Judicial review of EPA's
decision shall be on the administrative record compiled pursuant to Paragraph 64.a.
65. Formal dispute resolution for disputes that neither pertain to the selection or adequacy of
any response action nor are otherwise accorded review on the administrative record under applicable
principles of administrative law, shall be governed by this Paragraph.
a. Following receipt of Settling Defendants' Statement of Position submitted pursuant to
Paragraph 63, the Director of the Superfund Division, EPA Region 6, or his/her delegate, will issue a
final decision resolving the dispute. The Superfund Division Director's or his/her delegate's decision
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shall be binding on the Settling Defendants unless, within 20 days of receipt of the EPA's final
decision, the Settling Defendants file with the Court and serve on the parties a motion for judicial
review of the decision setting forth the matter in dispute, the efforts made by the parties to resolve it,
the relief requested, and the schedule, if any, within which the dispute must be resolved to ensure
orderly implementation of the Consent Decree. The United States may file a response to Settling
Defendants' motion.
b. Notwithstanding Paragraph M of Section I (Background) of this Consent Decree, judicial
review of any dispute governed by this Paragraph shall be governed by applicable principles of law.
66. The invocation of formal dispute resolution procedures under this Section shall not
extend, postpone or affect in any way any obligation of the Settling Defendants under this Consent
Decree not directly in dispute, unless EPA or the Court agrees otherwise. Stipulated penalties with
respect to the disputed matter shall continue to accrue but payment shall be stayed pending resolution
of the dispute as provided in Paragraph 74. Notwithstanding the stay of payment, stipulated penalties
shall accrue from the first day of noncompliance with any applicable provision of this Consent
Decree. In the event that the Settling Defendants do not prevail on the disputed issue, stipulated
penalties shall be assessed and paid as provided in Section XX (Stipulated Penalties).
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EXPLANATION OF TERMS
ADR PROCESS
Arbitration:
A process in which a neutral party considers
the facts and arguments presented by parties in
a dispute and renders a binding or non-binding
decision using applicable law and procedures.
Convening:
The first step in a dispute resolution process,
in which a neutral party explores with the
parties whether they are interested in using
ADR, makes a recommendation about the
most appropriate way to proceed, and assists
the parties in selecting a neutral.
Facilitation:
A process in which parties with divergent
views use a neutral facilitator to improve
communication and work toward agreement
on a goal or the solution to a problem. The
facilitator runs the process, helping the parties
set ground rules, design meeting agendas, and
communicate more effectively.
Fact Finding:
The investigation of issues by a neutral party
who gathers information and prepares a
summary of key issues. (Fact finding is often
used as part of a negotiation process.)
Mediation:
A voluntary and informal process in which the
disputing parties select a neutral third party to
assist them in reaching a negotiated
settlement. Since mediators have no power to
impose a solution on the parties, they help
disputants shape solutions to meet the interests
and needs of all parties.
Mini-Trial:
A process in which the decision-makers for
each side of a dispute hear a summary of the
best case presented by the attorneys for each
side. Following the presentations, the
principals engage in negotiations, often with
the assistance of the neutral party.
Neutral Evaluation:
An evaluation conducted by a neutral party
who provides the disputants with an
assessment of the strengths and weaknesses of
each party's case and a prediction about the
potential outcome of the case.
Partnering:
A collaborative process in which the
participants commit to work cooperatively to
improve communications and avoid disputes
in order to achieve a common goal. Typically,
a neutral helps the participants create a
partnering agreement that defines how they
will interact and what goals they seek to
achieve.
Settlement Judge:
A judge appointed to assist the parties
negotiating a settlement of a case. The
settlement judge may provide a prediction
about the potential outcome of the case, but
does not try the case.
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KEY TO ABBREVIATIONS
ACE
Army Corps of Engineers
ADR
Alternative Dispute Resolution
ALJ
Administrative Law Judge
AOC
Administrative Order on Consent
BRAC
Base Realignment and Closure
CAA
Clean Air Act
EPCRA
Emergency Planning and Community Right-to-
Know Act
FIFRA
Federal Insecticide, Fungicide, andRodenticide
Act
FOIA
Freedom of Information Act
IADRWG
Inter-Agency Alternative Dispute Resolution
Working Group
NEPA
National Environmental Policy Act
CAFO
Concentrated Animal Feeding Operations
CERCLA
Comprehensive Environmental Response,
Compensation, and Liability Act
CWA
Clean Water Act
POD
Department of Defense
DOE
Department of Energy
DOJ
Department of Justice
NPDES
National Pollutant Discharge Elimination
System
NPL
National Priorities List
OALJ
Office of Administrative Law Judges
OECA
Office of Enforcement and Compliance
Assurance
OPA
Oil Pollution Act
ORC
Office of Regional Counsel
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OSRE
Office of Site Remediation Enforcement
PRP
Potentially Responsible Party
PSD
Prevention of Significant Deterioration
RCRA
Resource Conservation and Recovery Act
ROD
Record of Decision
RPM
Remedial Proj ect Manager
SEP
Supplemental Environmental Proj ect
SDWA
Safe Drinking Water Act
TSCA
Toxic Substances Control Act
UIC
Underground Inj ection Control
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