ADR at EPA: New Agency Policy Sparks Increased Use of Alternative Dispute Resolution in Agency Programs

Prepared by U.S. Environmental Protection Agency, Conflict Prevention and Resolution Center

On December 18, 2000, the U.S. Environmental Protection Agency (EPA) issued its final policy on Alternative Dispute Resolution (ADR). The final ADR policy reflects EPA's strong support for the use of ADR in a wide variety of internal and external Agency disputes. It discusses the types of situations in which ADR should be considered, how EPA is organized to support ADR, confidentiality of information in ADR processes, efforts to promote a commitment to and awareness of ADR within the Agency, and how the success of ADR will be measured. The policy was issued in accordance with the Administrative Dispute Resolution Act of 1996, which requires that each federal agency adopt a policy that addresses the use of ADR.

The policy is intended to achieve the following objectives:

• Promote understanding of ADR techniques;
• Encourage routine consideration of ADR approaches to anticipate, prevent, and resolve disputes;
• Increase the use of ADR in EPA business;
• Highlight the importance of addressing confidentiality in ADR processes;
• Promote systematic evaluation and reporting on ADR at EPA; and
• Further the Agency's overall mission through ADR program development.
  

The final ADR Policy was developed by an Agency-wide working group led by EPA's Conflict Prevention and Resolution Center (CPRC), established in late 1999 to provide comprehensive ADR services throughout the Agency. The CPRC staff, in cooperation with ADR experts in other headquarters offices and EPA's ten Regional offices, provides EPA's internal and external clients with assistance in process design and implementation, access to neutral third parties, policy and guidance development, evaluation, workplace mediation services, and training. The CPRC will also take the lead in developing guidance addressing important aspects of the final ADR policy in greater detail, including the confidentiality of ADR processes.

EPA has historically had success with ADR efforts in negotiating complex regulations (regulatory negotiation) and in the settlement of Superfund cases. With the finalization of the new ADR policy, EPA expects to see increasing interest in application of ADR techniques to air, water, toxics and solid waste cases Agency-wide.

The following case studies illustrate the range of ADR processes and applications currently being used at the Agency:

General Electric-Pittsfield

The GE-Pittsfield case, which involved a highly-controversial PCB-contaminated site in western Massachusetts, perhaps provides a unique example of how different ADR approaches can be tailored within a single case to achieve different objectives and to reach and involve different audiences.

First, a team of mediators assisted GE, EPA and eight other agencies in reaching a settlement which addresses GE's liability and provides for remediation of the site.

Second, a team of neutral facilitators managed a public dialogue, known as the Citizens' Coordinating Council, in which neighbors, business interests, environmental groups, and other interested parties have an opportunity to raise concerns to GE and the regulatory agencies regarding the site cleanup. The Citizens' Coordinating Council's work is on-going.

Third, pursuant to the settlement agreement, panels of neutral experts managed by an overall neutral third party will conduct peer reviews of scientific and technical issues relating to future remedial decisions. One peer review panel was conducted in May 2000, with several more planned for the next year or two.

Finally, the consent decree which embodies the settlement contains an ADR provision whereby mediation may be used to resolve disputes arising during the implementation of the settlement.

In each of these four ADR applications, the parties consensually tailored the process to meet their specific needs.

Rule Making and Policy Development

EPA has been a leader in using ADR to resolve or prevent disputes in the development of rules and policies Agency-wide. Since 1983, EPA has conducted more than 20 negotiated rulemakings and an equal number of policy dialogues. These mediated processes have resulted in rules and policies with a high degree of satisfaction among outside parties. One case, the Microbial and Disinfection By-Products Rule illustrates the use of neutral third parties to conduct a number of different types of ADR processes.

In a 1994 negotiated rulemaking mediated by the mediation firm RESOLVE, EPA and outside parties reached agreement on three proposed rules regarding the microbial and chemical disinfectant byproducts in drinking water: an Information Collection Rule, a Disinfectants and Disinfection By-Products Rule (D/DBP) and an Enhanced Surface Water Treatment Rule (ESWT). Changing circumstances since 1994, particularly the delay in implementation of the Information Collection Rule, generated new issues concerning how to implement Stage I of the D/DBP Rule without increasing microbial threats to drinking water supplies. Starting in 1997, EPA used a neutral third party to facilitate a series of information exchanges and a federal advisory committee to develop a framework agreement for a Notice of Data Availability prior to finalizing the Stage I D/DBP Rule and an interim ESWT Rule. In addition, the mediators conducted a convening, or conflict assessment, to identify key parties and issues of concern in preparation for the Stage 2 rulemaking process.

Finally, the Stage 2 M/DBP advisory committee negotiations began in March 1999. In addition to mediation of the advisory committee's deliberations, neutral third parties were also used to facilitate public stakeholder information exchange meetings, and three technical workshops. The federal advisory committee was charged with developing recommendations for the Stage 2 DBP and long-term Enhanced Surface Water Treatment Rules. The Stage 2 negotiations successfully concluded with a consensus agreement in September 2000.

Applications of ADR in Administrative Enforcement Cases

Many of EPA's enforcement cases are handled and decided by Administrative Law Judges. EPA's ALJs have an active mediation program for cases coming before them. The ALJ program consists entirely of mediation, either by teleconference or face-to-face, with ALJ's acting as mediator.

Mediation was instrumental in breaking a deadlock in negotiations between the Agency and the U.S. Navy over alleged violations of the Resource Conservation and Recovery Act (RCRA) at the Washington Navy Yard and Anacostia Naval Station in Washington, D.C. In 1998, an EPA ALJ acting as mediator conducted a series of teleconferences over a period of approximately five months. With the benefit of mediation the parties finalized consent agreements and consent orders (CACOs) that resolved outstanding hazardous waste management and underground storage tank issues, established workable training and corrective action processes and reached agreement on civil penalties in the hazardous waste management cases.

Alternative Dispute Resolution Techniques

The ADR techniques listed here are those that are most frequently used at EPA. The list is not intended to be exhaustive of all possible ADR applications.

• Convening: Convening (also called conflict assessment) involves the use of a neutral third party to help assess the causes of the conflict, to identify the persons or entities that would be affected by the outcome of the conflict, and to help these parties consider the best way (for example, mediation, consensus-building, or a lawsuit) for them to deal with the conflict. The convener may also help get the parties ready for participation in a dispute resolution process by providing education to the parties on what the selected process will be like.
  
  
• Mediation: Mediation is a process in which a neutral third party (the mediator) assists disputants in reaching a mutually satisfying settlement of their differences. Mediation is voluntary, informal, and confidential. The mediator helps the disputants to communicate clearly, to listen carefully, and to consider creative ways for reaching resolution. The mediator makes no judgments about the people or the conflict, and issues no decision. Any agreement that is reached must satisfy all the disputants.
  
  
• Facilitation: Facilitation is a process used to help a group of people or parties have constructive discussions about complex, or potentially controversial issues. The facilitator provides assistance by helping the parties set ground rules for these discussions, promoting effective communication, eliciting creative options, and keeping the group focused and on track. Facilitation can be used even where parties have not yet agreed to attempt to resolve a conflict.
  
  
• Early Neutral Evaluation: Early neutral evaluation allows the parties to a dispute to receive an informal neutral evaluation of the strength of each party's position in a matter in controversy. The evaluation is nonbinding, but may be useful in promoting settlement.
  
  
• Consensus Building: Consensus Building is a process in which people agree to work together to resolve common problems in a relatively informal, cooperative manner. It is a technique that can be used to bring together representatives from different stakeholder groups early in a decision making process. A neutral third party helps the people design and implement their own strategy for developing group solutions to the problems.
  
  
• Ombudsmen or Ombuds: An ombudsman (or ombuds) is an Agency official who is authorized to accept complaints and look into whether something can be done to address a particular concern. Ombuds do not have authority to change decisions, but they try to facilitate responsive solutions to problems raised in complaints. There are currently ombuds functions in four programs at EPA (pesticides, hazardous waste, asbestos, and small business).
  

EPA Publications and Contacts

The Policy and several useful publications including: Resource Guide: Resolving Environmental Conflicts in Communities and the ADR Accomplishments Report, March 2000 can be viewed on-line at www.epa.gov/adr/. They can obtained in hard copy by calling 202/564-2922 or by writing: Conflict Prevention and Resolution Center, Mail Code 2310A, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460. CPRC staff are also available for consultation to parties interested in exploring use of ADR in resolving cases with EPA.