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Environmental Collaboration and

Conflict Resolution

Twelfth Annual

Report

March 2018

DRAFT

U.S. Department of Energy

Draft Report FY 2017_ March 30, 2018

EXECUTIVE SUMMARY

The September 7, 2012 Memorandum on Environmental Collaboration and Conflict Resolution

(ECCR Memorandum) issued by the Office of Management and Budget (OMB) and the Council

on Environmental Quality (CEQ) supersedes an OMB/CEQ joint memorandum issued in

November 28, 2005, on Environmental Conflict Resolution and broadens the efforts called for

under the 2005 memorandum by explicitly encouraging appropriate and effective upfront

environmental collaboration to minimize or prevent conflict. The ECCR Memorandum defines

ECCR as “third-party assisted collaborative problem solving and conflict resolution in the

context of environmental, public lands, or natural resources issues or conflicts.”

Recognizing the role of collaboration in conflict resolution and its history of collaborative

approaches, both with and without third-party neutrals, to prevent or resolve environmental

conflicts, the Department of Energy (Department or DOE) defines ECCR more expansively than

the ECCR Memorandum. The Department defines ECCR as the use of any collaborative process

to prevent or resolve environmental conflicts, whether or not the process involves the use of

third-party neutrals. This definition is consistent with the spirit of the ECCR Memorandum

which stated the following.

The challenge of implementing Federal policies and programs can often be met with

collaborative, constructive, and timely approaches to identify and address affected

interests, consider alternatives, and reach solutions before different positions or

opinions result in conflict. Collaborative efforts involving the public and policy and

program coordination within and across multiple levels of government are important for

addressing these challenges.

Thus, this annual report, prepared pursuant to section 4(g) of the ECCR Memorandum, presents

information on the Department’s use of third parties and other collaborative problem solving

approaches in the reporting year.

In Fiscal Year 2017, a total of 28 DOE sites and program offices completed the ECCR survey

template. A total of 20 ECCR cases were reported. Five of the 20 reported ECCR cases

involved third-party assistance and three are in progress. A total of 15 cases did not involve

third parties. One was reported as completed.

Draft Report FY 2017_ March 30, 2018

I. INTRODUCTION

A. Background

On September 7, 2012, the Chairman of the Council on Environmental Quality (CEQ) and the

Director of the Office of Management and Budget (OMB) issued the Memorandum on

Environmental Collaboration and Conflict Resolution (ECCR Memorandum). Section 2 of the

ECCR Memorandum defines ECCR as “third-party assisted collaborative problem solving and

conflict resolution in the context of environmental, public lands, or natural resources issues or

conflicts.”

Due to its long history of using a variety of collaborative problem solving methods the

Department of Energy (Department or DOE) defines ECCR more broadly as the use of any

collaborative process to prevent or resolve environmental conflicts, including, but not limited to,

those processes involving the use of third-party neutrals.

However, to assure comparability of its data with the CEQ/OMB definition of ECCR, the

Department tracks those ECCR cases in which third-party assistance was used and those in

which third-party assistance was not used. This report, required by section 4(g) of the ECCR

Memorandum, presents ECCR case data in both categories and describes third-party and non-

third-party dispute resolution processes used by the Department in Fiscal Year 2017 (FY 2017).

B. Report Methodology

To provide guidance to Federal agencies implementing the ECCR Memorandum, a staff-level

interagency ECCR Steering Committee consisting of representatives from various agencies was

formed. This committee, with assistance from the U.S. Institute for Environmental Conflict

Resolution, developed a survey template for agency use for this annual report. The Department

modified the template to accommodate gathering the data necessary to report separately those

DOE cases that used third-party assistance and those that did not. The DOE-modified template

is provided as Attachment A.

The DOE template was distributed to points of contact from various programs and site offices

throughout the DOE complex. This report contains the information supplied by 17 respondents.

II. ECCR CAPACITY BUILDING PROGRESS MADE IN FY 2017

The DOE sites and program offices maintain and enhance their awareness of ECCR methods and

opportunities through monthly environmental attorneys' conference calls and the annual joint

DOE/DOE contractor environmental attorneys’ training. On average, 15 participants join the

monthly calls. A total of 118 site and program office representatives participated in the annual

training conducted on May 3, 2017.

An example of continuing to build ECCR capacity is the approach that the Richland Operations

Office (RL) uses to administer the Hanford Federal Facility Agreement and Consent Order, more

commonly referred to as the Tri-Party Agreement (TPA). The TPA is an agreement among the

Draft Report FY 2017_ March 30, 2018

DOE, the U.S. Environmental Protection Agency (EPA), and the State of Washington

Department of Ecology for achieving compliance with the Comprehensive Environmental

Response Compensation and Liability Act (CERCLA) remedial action provisions and with the

Resource Conservation and Recovery Act (RCRA) treatment, storage, and disposal unit

regulations and corrective action provisions at the Hanford Site. When disputes arise under the

TPA, RL project managers develop negotiation strategies that incorporate ECCR principles. RL

Senior Management and environmental legal counsel strongly encourage projects to use

collaborative negotiations for environmental conflict resolutions. Most issues are resolved

informally and never rise to the dispute level. The issues are resolved collaboratively through

monthly Project Manager meetings, quarterly milestone review meetings, and other meeting as

necessary to address issues. Over the course of a year, hundreds of such meetings are held. In

FY 2017, RL was involved with two official environmental disputes under the TPA. It is the

intent of RL to continue to use the informal collaborative approach to resolve issues before it

becomes necessary to enter into formal, third-party supported environmental conflict resolution.

Similarly, Brookhaven National Laboratory (BNL) is part of an Interagency Agreement Group,

which is comprised of the EPA, the New York State Department of Environmental Conservation

(DEC), and the DOE. Additional participants include Suffolk County. This group is an

outgrowth of the original Interagency Agreement (IAG) that was signed by EPA, DEC, and DOE

to govern the cleanup of BNL after it was listed as a Superfund Site. This group is given, and

provides comments to, any document or study that is required by the IAG. In addition, the group

is kept apprised of all future operations at BNL that may affect the environment.

Other offices find value in using a third-party neutral service to build ECCR capacities. The

West Valley Demonstration Project (WVDP) and the New York State Energy Research and

Development Authority (NYSERDA) entered into a tripartite agreement with a third-party

neutral to retain the services of all necessary subject matter experts (SMEs), an Independent

Scientific Panel (ISP), and a professional facilitator to coordinate the process of reaching

interagency consensus on a final decision regarding the decommissioning and/or remediation of

all remaining facilities at the Western New York Nuclear Service Center (Center). In addition,

WVDP and NYSERDA jointly hosted multiple public meetings as part of the Phase 1 Study

Process with a professional facilitator always present and the third-party neutral available when

appropriate. These ECCR efforts are proving to be extremely useful conflict avoidance and

conflict resolution tools.

The Environmental Management – Los Alamos Field Office (EM-LA) utilized the services of an

outside facilitator in a critical and long-term conflict resolution process. Specifically, DOE

participates in monthly meetings of the Los Alamos National Laboratory (LANL) Natural

Resource Damages Assessment (NRDA) Trustee Council, which consists of the representatives

from the State of New Mexico, several nearby Pueblos, and the Forest Service. DOE is one of

the two co-lead Trustees (along with the State of New Mexico), and in that role contracts for a

facilitator to assist in the important discussions amongst Trustees during the monthly meetings.

Draft Report FY 2017_ March 30, 2018

III. INVESTMENTS IN AND BENEFITS OF ECCR

The benefits of integrating ECCR into DOE site and program office projects include expanded

and clearer communication that leads to smoother relationships with the regulators and the

public.

At the WVDP, the use of a third-party neutral as part of the Phase 1 Study process enabled

WVDP and NYSERDA to utilize the talents of SMEs and an ISP to focus on the areas of

technical disagreement between the parties and, thereby, facilitate reaching an interagency

consensus on the future Phase 2 decisions (anticipated in 2022). A significant benefit of

applying ECCR techniques is that they enable the WVDP to better anticipate, evaluate, and

resolve environmental issues and potential disputes before they become a larger problem. The

ECCR-driven process of negotiating and agreeing upon supporting documents also serves to

memorialize progress made in achieving interagency consensus and reduce any backsliding by

the parties.

The third-party neutral attends Quarterly Public Meetings that update stakeholders on all Phase 1

Studies, when appropriate, and serves as a conduit between stakeholders and the SMEs and ISP

members. A professional facilitator leads the monthly Citizens Task Force meetings which are

hosted by WVDP and NYSERDA in order to inform the local interest group of all ongoing

activities and respond to any concerns. Finally, WVDP and NYSERDA executed a Consultation

and Coordination Plan that guides the routine communications between the parties involving

ongoing activities enabling more effective and consistent communication, aimed to resolve

conflict as soon as possible.

The Southeastern Power Administration is a small Federal agency with the authority to market

hydroelectric power and energy in the states of Alabama, Florida, Georgia, Illinois, Kentucky,

Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia, from

reservoir projects operated by the U.S. Army Corps of Engineers. Southeastern increased its

strategic planning efforts to promote collaborations and negotiations with all stakeholders and

business partners. These efforts have enabled Southeastern and its stakeholders to develop

solutions in accordance with congressional intent and current conditions in the management of

federal water resources projects. Frequent negotiations and continued participation in these

stakeholder meetings are deemed positive and represent steps forward by Southeastern in its

strategy to seek amiable conflict resolution.

Staff of the EM-LA believe that the monthly LANL NRDA Trustee Council meetings are

essential in gathering necessary information for future discussion and decision-making as well as

building a useful working relationship amongst the Trustees. The facilitator assists the Trustees

by encouraging them to engage in candid discussions on the sensitive issue of potential damages

to local natural resources in order to reach timely resolution on important issues and relevant

studies. The work of the LANL NRDA Trustee Council is a multi-year process and is ongoing.

Draft Report FY 2017_ March 30, 2018

IV. ECCR CASES IN FY 2017

Respondents reported 5 ECCR cases in which third parties were involved and 15 ECCR cases in

which they were not. Three cases involving third parties are in progress and include non-federal

participants. Of the 15 cases not involving a third party 1 has been completed and the rest are in

progress and include non-federal participants. Attachment B contains tables depicting the ECCR

survey results.

V. ECCR CASE EXAMPLES USING A THIRD-PARTY

Conceptually, WVDP and NYSERDA agreed that retaining the services of a third-party neutral

in order to facilitate reaching interagency consensus on several complex technical issues and

controversial facilities held the greatest potential for a mutual and timely decision on Phase 2 of

the decommissioning of the remaining facilities at the Center. Integral to the process was the

agreement between WVDP and NYSERDA to split all associated costs 50/50 including the cost

of a third-party neutral.

As designed, the third-party neutral retained and utilized the services of both SMEs and an ISP to

assist with the overall goal toward facilitating interagency consensus. This process has thus far

generated multiple technical reports that have been shared with Federal and state agencies as

well as WVDP stakeholders. Additionally, the third-party neutral used the services of a

professional facilitator to moderate all public meetings as part of the associated comprehensive

public participation plan to ensure transparency with stakeholders.

With the benefit of a substantial number of jointly-financed technical reports on areas of

historical disagreement between the parties and consistent public input throughout the process,

the agencies aim to reach consensus on the Phase 2 decision in 2022. The anticipated outcome

would avoid lengthy and expensive litigation between DOE and the State of New York on the

final disposition of the remaining facilities.

Effective use of a third-party neutral has allowed WVDP and the State to keep the entire

decision-making process on track, avoid work stoppages due to interagency disagreements, and

overcome 30 years of entrenched disagreement and conflict. As a consequence, the project is on

course to reach mutual and final decisions on the ultimate disposition of the Site in 2022.

At Hanford, on behalf of the Hanford Natural Resource Damages Trustee Council, DOE

contracted a facilitator to assist planning and decision-making among trustees. The facilitator

enabled consensus building among the trustees and lessened the possibility of litigation.

The Department of Justice (DOJ) engaged a mediator with assistance from DOE and the Forest

Service in a CERCLA matter at the San Mateo Mine site in New Mexico (SM). The mediator

acted as a neutral facilitator of collaborative discussions to enable the parties to reach a Consent

Decree. The mining companies involved wanted reimbursement of some of their costs under an

EPA Unilateral Administrative Order and contribution protection against any claims the United

States may have against them, including protection from further litigation. The overall goal of

this agreement is to prevent further time consuming and costly litigation.

DOJ also utilized a mediator at the 94 mines formerly operated by two affiliated subsidiaries

of Freeport McMoRan, Inc. (FP) in a CERCLA matter in which DOE participated. The

United States and the Navajo Nation reached a settlement with these mining

Draft Report FY 2017_ March 30, 2018

companies in sites in Arizona, New Mexico, and Utah by engaging in ECCR through mediation.

The mining companies agreed to perform the cleanup of the uranium mine sites. The companies

agreed to do this without admitting liability for the claims listed in EPA’s original complaint.

The settling mining companies will hire and pay contractors to perform the cleanup work, but the

work is subject to review by EPA and the Navajo Nation before moving forward. This will

continue ongoing productive communication that allowed for a Consent Decree to be executed

by the parties. As a result of the mediation, costly and time consuming litigation has been and

will continue to be avoided.

VI. ECCR CASE EXAMPLES WITHOUT A THIRD-PARTY

Many ECCR cases are handled without the use of a third-party and instead use collaborative

discussions to provide information to the public, elected officials, and regulatory bodies through

formal and informal presentations. It also gives DOE the opportunity to brief those bodies,

receive their comments and concerns, and address those comments and concerns throughout the

decision-making process.

At the Savannah River Site Field Office (SRS), DOE participated in ECCR through the use of

collaborative discussions with the South Carolina Department of Health and Environmental

Control. Due to delays in the start date of the Salt Waste Processing Facility, both parties

recognized that there would be challenges in making certain Federal Facility Agreement (FFA)

milestones. Through the use of productive discussions a "Suspension Agreement" was executed

and the FFA was modified to extend the milestones. Extending the milestones will allow work

to continue as usual and without the disruption of expensive and time consuming litigation.

The Idaho Operations Office (DOE Idaho) entered into collaborative discussions with the State

of Idaho regarding challenges in meeting an enforceable milestone for liquid tank waste

treatment and shipment of treated transuranic waste from Idaho. A good working relationship

between DOE and the State has enabled both Parties to reach acceptable interim solutions.

DOE Idaho also held collaborative discussions and problem solving with the Shoshone Bannock

Tribes regarding a proposed project on the Idaho Site. The external project proponent, DOE, and

the Tribes had several discussions to better understand each other’s positions and work toward

solutions.

The Office of Energy Efficiency and Renewable Energy/Golden Field Office applied ECCR

principles to DOE’s proposal to fund an offshore wind demonstration project off the mainland of

Maine in state waters. To prevent potential environmental conflict with Indian Tribes, the office

conducted a webinar for the five federally recognized Indian Tribes located in Maine and

followed up with in-person meetings to discuss the proposed project details, studies to be

conducted including archaeological studies, the National Historic Preservation Act, and the

Draft Report FY 2017_ March 30, 2018

National Environmental Policy Act process. The in-person meetings were successful in building

relationships and improving communication between DOE and the tribal points of contact.

VII. PRIORITY USES OF ECCR

The Department’s sites and program offices used third-party and non-third-party ECCR

collaboration with regulators and stakeholders in the following areas in FY 2017:

- Site remediation, decontamination, and decommissioning under CERCLA and RCRA;

- Site permits;

- Collaborative discussion with stakeholders (both federal and non-federal)

- Cultural resource protection;

- Natural resource protection;

- Multi-issue and Multi-party Environmental Disputes; and

- Environmental siting (wind demonstration project)

VIII. COMMENTS AND SUGGESTIONS REGARDING REPORTING

No comments or suggestions were submitted regarding the ECCR reporting process. However, in

terms of ECCR capacity buildings, one office was concerned with budgetary constraints

restricting advanced training in ECCR methods.

Draft Report FY 2017_ March 30, 2018

The memorandum requires annual reporting by departments and agencies to OMB and CEQ on progress made each year in

implementing the ECCR policy direction to increase the effective use and institutional capacity for ECCR.

ECCR is dened in Section 2 of the 2012 memorandum as:

. . third-party assisted collaborative problem solving and conflict resolution in the context of environmental, public lands, or

natural resources issues or conflicts, including matters related to energy, transportation, and water and land management.

The term Environmental Collaboration and Conflict Resolution encompasses a range of assisted collaboration, negotiation, and

facilitated dialogue processes and applications. These processes directly engage affected interests and Federal department and

agency decision makers in collaborative problem solving and conflict resolution.

Multi-issue, multi-party environmental disputes or controversies often take place in high conflict and low trust settings, where the

assistance of impartial facilitators or mediators can be instrumental to reaching agreement and resolution. Such disputes range

broadly from policy and regulatory disputes to administrative adjudicatory disputes, civil judicial disputes, intra- and interagency

disputes, and disputes with non-Federal persons and entities.

Environmental Collaboration and Conflict Resolution can be applied during policy development or planning in the context of a

rulemaking, administrative decision making, enforcement, or litigation with appropriate attention to the particular requirements

of those processes. These contexts typically involve situations where a Federal department or agency has ultimate responsibility

for decision making and there may be disagreement or conflict among Federal, Tribal, State and local governments and agencies,

public interest organizations, citizens groups, and business and industry groups.

Although Environmental Collaboration and Conflict Resolution refers specifically to collaborative and conflict resolution

processes aided by third-party neutrals, there is a broad array of partnerships, cooperative arrangements, and unassisted

negotiations that Federal agencies may pursue with non-Federal entities to plan, manage, and implement department and agency

programs and activities. The Basic Principles for Agency Engagement in Environmental Conflict Resolution and Collaborative

Problem Solving are presented immediately following this survey. The Basic Principles provide guidance that applies to both

Environmental Collaboration and Conflict Resolution and unassisted collaborative problem solving and conflict resolution. This

policy recognizes the importance and value of the appropriate use of all forms collaborative problem solving and conflict

resolution.”

The annual report format below is provided in accordance with the memorandum for activities in FY 2017.

We understand that collecting this information may be challenging; however, the departments and agencies are requested to collect this

data to the best of their abilities. The 2017 report, along with previous reports, will establish a useful baseline for your department or

agency, and collect some information that can be aggregated across agencies. Departments should submit a single report that includes

ECCR information from the agencies and other entities within the department. The information in your report will become part of

an analysis of all FY 2017 ECCR reports. You may be contacted for the purpose of clarifying information in your report. For your

reference, prior year synthesis reports are available at http://www.ecr.gov/Resources/FederalECRPolicy/AnnualECRReport.aspx.

Site/Program name:

Name and title/position of person responding:

Ofﬁce of person responding:

E-mail address:

Phone number:

Date report is being submitted:

The term ‘ECCR’ includes third-party neutral assistance in environmental collaboration and environmental conict resolution

Attachment A

Modified Department of Energy ECCR Survey

FY 2017 Environmental Collaboration

and Conflict Resolution (ECCR)

Policy Report to OMB-CEQ

On September 7, 2012, the Director of the Office of Management and Budget (OMB), and the Chairman of the

President’s Council on Environmental Quality (CEQ) issued a revised policy memorandum on environmental

collaboration and conflict resolution (ECCR). This joint memo builds on, reinforces, and replaces the memo on

ECR issued in 2005.

Draft Report FY 2017_ March 30, 2018

1: ECCR Capacity Building Progress:

1. Describe steps taken by your site/program to build programmatic and institutional capacity for environmental collaboration and

conﬂict resolution in FY 2017, including progress made since FY 2016. Include any efforts to establish routine procedures for

considering ECCR in speciﬁc situations or categories of cases. To the extent your organization wishes to report on any efforts to

provide institutional support for non-assisted collaboration efforts include it here. If no steps were taken, please indicate why not.

[[Please refer to the mechanisms and strategies presented in Section 5 and attachment C of the OMB-CEQ ECCR Policy Memo,

including but not restricted to any efforts to a) integrate ECCR objectives into agency mission statements, Government Performance

and Results Act goals, and strategic planning; b) assure that your agency’s infrastructure supports ECCR; c) invest in support,

programs, or trainings; and d) focus on accountable performance and achievement. You are encouraged to attach policy statements,

plans and other relevant documents.] ECCR matters not involving a third-party neutral should be reported under question 8.

Please type your response in the box below.

Draft Report FY 2017_ March 30, 2018

2: ECCR Investments and Beneﬁts

a. Please describe any methods your site/program uses to identify the (a) investments made in ECCR, and (b) beneﬁts realized

when using ECCR.

Examples of investments may include ECCR programmatic FTEs, dedicated ECCR budgets, funds spent on contracts to support

ECCR cases and programs, etc.

Examples of beneﬁts may include cost savings, environmental and natural resource results, furtherance of agency mission,

improved working relationship with stakeholders, litigation avoided, timely project progression, etc. ECCR matters not involving a

third-party neutral should be reported under question 8.

Please report any (a) quantitative or qualitative investments your site/program captured during FY 2017; and (b) quantitative

or qualitative results (beneﬁts) you have captured during FY 2017. ECCR matters not involving a third-party neutral should be

reported under question 8.

What difﬁculties have you encountered in generating cost and beneﬁt information and how do you plan to address them?

ECCR matters not involving a third-party neutral should be reported under question 8.

Draft Report FY 2017_ March 30, 2018

3: ECCR Use

3A. Describe the level of ECCR use within your site/program in FY 2017 by completing the table below. [Please refer to the deﬁnition

of ECCR from the OMB-CEQ memo as presented on page one of this template. An ECCR “case or project” is an instance of

neutral third-party involvement to assist parties in a collaborative or conﬂict resolution process. In order not to double count

processes, please select one category per case for decision making forums and for ECCR applications.

Context for

ECCR Applications

TOTAL FY 2017 ECR CASES

Decision making forum that

was addressing the issues

when ECCR was initiated:

ECCR Cases or

Projects

Interagency

ECCR Cases

and Projects

Federal agency decision

Administrative

proceedings/appeals

Judicial proceedings

Other (specify)

Completed

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