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FY 2008 ECR Policy Report to OMB-CEQ (Morris K Udall Foundation)

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1
FY 2008 ECR Policy Report to OMB-CEQ
On November 28, 2005, the Director of the Office of Management and Budget (OMB), and the
Chairman of the President's Council on Environmental Quality (CEQ) issued a policy
memorandum on environmental conflict resolution (ECR).
The memorandum requires annual reporting by departments and agencies to OMB and CEQ on
progress made each year. This joint policy statement directs agencies to increase the effective
use and their institutional capacity for ECR and collaborative problem solving.
ECR is defined in Section 2 of the memorandum as:
“third-party assisted conflict resolution and collaborative problem solving in the context of
environmental, public lands, or natural resources issues or conflicts, including matters
related to energy, transportation, and land use. The term “ECR” encompasses a range of
assisted negotiation processes and applications. These processes directly engage
affected interests and agency decision makers in conflict resolution and collaborative
problem solving. 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 administrative adjudicatory disputes, to civil judicial disputes,
policy/rule disputes, intra- and interagency disputes, as well as disputes with non-federal
persons/entities. ECR processes can be applied during a policy development or planning
process, or in the context of rulemaking, administrative decision making, enforcement, or
litigation and can include conflicts between federal, state, local, tribal, public interest
organizations, citizens groups and business and industry where a federal agency has
ultimate responsibility for decision-making.
While ECR refers specifically to collaborative processes aided by third-party neutrals,
there is a broad array of partnerships, cooperative arrangements, and unassisted
negotiations that federal agencies enter into with non-federal entities to manage and
implement agency programs and activities. The Basic Principles for Agency Engagement
in Environmental Conflict Resolution and Collaborative Problem Solving presented in
Attachment A (of the OMB/CEQ ECR Policy Memo) and this policy apply generally to
ECR and collaborative problem solving. This policy recognizes the importance and value
of the appropriate use of all types of ADR and collaborative problem solving.”
The report format below is provided for the third year of reporting in accordance with this memo
for activities in FY 2008.
The report deadline is January 15, 2009.
We understand that collecting this information may be challenging; however, after compiling
previous reports, the departments and agencies can collect this data to the best of their abilities.
The 2008 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 ECR information from the agencies and
other entities within the department. The information in your report will become part of an
analysis of all FY 2008 ECR reports. You may be contacted for the purpose of clarifying
information in your report. For your reference, copies of the analysis of FY 2006 and FY 2007
ECR reports will be available at www.ecr.gov.
2
Name of Department/Agency responding:
________________________
Name and Title/Position of person responding:
________________________
Division/Office of person responding:
________________________
Contact information (phone/email):
________________________
Date this report is being submitted:
________________________
Department of Homeland Security
Megan Gemunder, Attorney-Advisor
Office of the General Counsel
(202) 447-3710
January 5, 2009
3
Section 1: Capacity and Progress
1. Describe steps taken by your department/agency to build programmatic/institutional
capacity for ECR in 2008, including progress made since 2007. If no steps were
taken, please indicate why not.
[Please refer to the mechanisms and strategies presented in Section 5 of the OMB-
CEQ ECR Policy Memo, including but not restricted to any efforts to a) integrate
ECR objectives into agency mission statements, Government Performance and
Results Act goals, and strategic planning; b) assure that your agency’s infrastructure
supports ECR; c) invest in support or programs; and d) focus on accountable
performance and achievement. You are encouraged to attach policy statements,
plans and other relevant documents.]
During 2008, DHS did not take steps to build a programmatic/institutional capacity for ECR. DHS is
not opposed to the use of ECR; however it presently perceives few situations where ECR could be
helpful in resolving issues with the effects of homeland security activities on communities, public
health, and the natural environment. In addition, DHS has no dedicated internal capacity for ECR
(e.g. # dedicated manpower slots, required training, budget for hiring neutrals or supporting
processes).
4
Section 2: Challenges
2. Indicate the extent to which each of the items below present challenges or barriers
that your department/agency has encountered in advancing the appropriate and
effective use of ECR.
Extent of challenge/barrier
Major Minor
Not a
challenge/
barrier
N/A
Check only one
a) Lack of staff expertise to participate in ECR
b) Lack of staff availability to engage in ECR
c) Lack of party capacity to engage in ECR
d) Limited or no funds for facilitators and mediators
e) Lack of travel costs for your own or other federal agency staff
f) Lack of travel costs for non-federal parties
g) Reluctance of federal decision makers to support or participate
h) Reluctance of other federal agencies to participate
i) Reluctance of other non-federal parties to participate
j) Contracting barriers/inefficiencies
k) Lack of resources for staff capacity building
l) Lack of personnel incentives
m) Lack of budget incentives
n) Lack of access to qualified mediators and facilitators
o) Perception of time and resource intensive nature of ECR
p) Uncertainty about whether to engage in ECR
q) Uncertainty about the net benefits of ECR
r) Other(s) (please specify): __________________________
s) No barriers (please explain): __________________________
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
5
Section 3: ECR Use
3. Describe the level of ECR use within your department/agency in FY 2008 by completing the table below. [Please refer to
the definition of ECR from the OMB-CEQ memo as presented on page one of this template. An ECR “case or project” is an
instance of neutral third party involvement to assist parties in reaching agreement or resolving a dispute for a particular matter. In
order not to double count processes, please select one category per case for decision making forums and for ECR applications.]
Decision making forum that was addressing
the issues when ECR was initiated:
Of the total FY 2008 ECR
cases indicate how many
your agency/department
Cases or
projects in
progress
1
Completed
Cases or
projects
2
Total
FY 2008
ECR Cases
3
Federal
agency
decision
Administrative
proceedings
/appeals
Judicial
proceedings
Other (specify)
Sponsored
4
Participated
in but did not
sponsor
5
Context for ECR Applications:
Policy development
_____ _____ _____ _____ _____ _____ _____ _____ _____
Planning
_____ _____ _____ _____ _____ _____ _____ _____ _____
Siting and construction
_____ _____ _____ _____ _____ _____ _____ _____ _____
Rulemaking
_____ _____ _____ _____ _____ _____ _____ _____ _____
License and permit issuance
_____ _____ _____ _____ _____ _____ _____ _____ _____
Compliance and enforcement action
_____ _____ _____ _____ _____ _____ _____ _____ _____
Implementation/monitoring agreements
_____ _____ _____ _____ _____ _____ _____ _____ _____
Other (specify): __________________
_____ _____ _____ _____ _____ _____ _____ _____ _____
_____ _____ _____ _____ _____ _____ _____ _____
TOTAL
(the sum should equal
Total FY 2008 ECR Cases)
_____
(the sum of the Decision Making Forums
should equal Total FY 2008 ECR Cases)
(the sum should equal
Total FY 2008 ECR Cases)
1
A “case in progress” is an ECR case in which neutral third party involvement began prior to or during FY 2008 and did not end during FY 2008.
2
A “completed case” means that neutral third party involvement in a particular matter ended during FY 2008. The end of neutral third party involvement does not necessarily mean
that the parties have concluded their collaboration/negotiation/dispute resolution process, that all issues are resolved, or that agreement has been reached.
3
“Cases in progress” and “completed cases” add up to “Total FY2008 ECR Cases”.
4
Sponsored - to be a sponsor of an ECR case means that an agency is contributing financial or in-kind resources (e.g., a staff mediator's time) to provide the neutral third
party's services for that case. More than one sponsor is possible for a given ECR case.
5
Participated, but did not sponsor - an agency did not provide resources for the neutral third party's services for a given ECR case, but was either a party to the case or
participated in some other significant way (e.g., as a technical expert advising the parties).
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
6
4. Is your department/agency using ECR in any of the substantive priority areas (i.e,
NEPA, Superfund, land use, etc.) you listed in your FY 2007 ECR Report? Please
also list any additional priority areas identified by your department/agency during
FY 2008, and indicate if ECR is being used in any of these areas.
List of priority areas identified in your
department/agency FY 2007 ECR Report
Check if
using ECR
Check if use
has increased
since FY 2007
______________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
List of additional priority areas identified by
your department/agency in FY 2008
Check if
using ECR
_____________________________
_____________________________
_____________________________
_____________________________
Please use an additional sheet if needed.
N/A
National Environmental Policy Act
Environmental Management
National Historic Preservation Act
Endangered Species Act
7
5. It is important to develop ways to demonstrate that ECR is effective and in order
for ECR to propagate through the government, we need to be able to point to
concrete benefits; consequently, we ask what other methods and measures are
you developing in your department/agency to track the use and outcomes
(performance and cost savings) of ECR as directed in Section 4 (b) of the ECR
memo, which states: Given possible savings in improved outcomes and reduced
costs of administrative appeals and litigation, agency leadership should recognize
and support needed upfront investments in collaborative processes and conflict
resolution and demonstrate those savings and in performance and accountability
measures to maintain a budget neutral environment and Section 4 (g) which
states: Federal agencies should report at least every year to the Director of OMB
and the Chairman of CEQ on their progress in the use of ECR and other
collaborative problem solving approaches and on their progress in tracking cost
savings and performance outcomes. Agencies are encouraged to work toward
systematic collection of relevant information that can be useful in on-going
information exchange across departments? [You are encouraged to attach
examples or additional data]
6. Describe other significant efforts your agency has taken in FY 2008 to anticipate, prevent,
better manage, or resolve environmental issues and conflicts that do not fit within the Policy
Memo’s definition of ECR as presented on the first page of this template.
N/A
Several Components of DHS made significant efforts to anticipate, prevent, better manage, or
resolve environmental issues and conflicts that do not fit within ECR. Here are several
examples:
United States Coast Guard (USCG):
The USCG often uses Federal oversight agencies such as the Council for Environmental
Quality, the Advisory Council on Historic Preservation, or the Environmental Protection Agency
to mediate more minor environmental/historic disputes that may arise between the USCG and
others including other Federal, State, or private regulatory agencies and the public. It gives
appropriate public notice and invites cooperating agencies to be part of its National
Environmental Policy Act process and interested/consulting parties to participate in USCG's
National Historic Preservation Act Section 106 processes. This ensures that affected parties can
voice their opinions and concerns while a USCG proposal or action is being developed and prior
to it being implemented. This often works to ensure that disputes over environmental issues do
not escalate to a level where the USCG has no recourse but to seek ECR.
The Federal Emergency Management Agency (FEMA):
The FEMA Occupational Safety, Health and Environment Office's (OSHE) Environmental
Management Program provides Agency and facility-level environmental compliance support.
These efforts have included negotiation with Federal, State and local regulatory agencies
concerning agency environmental compliance concerns, consultation with other federal agencies
concerning environmental plans and actions for joint operations, development and
implementation of interagency agreements for use of FEMA property and assets and
negotiations with property owners where FEMA may be operating as a tenant or lessee. In
some circumstances, these interactions may be interpreted as a type of environmental conflict
resolution. Examples of such activities in Fiscal Year 2008 included:
• Negotiations with the State of California Air Pollution Control Board concerning the waiver of
permitting requirements for 130 portable emergency-use generators staged at the FEMA
Distribution Center (DC) leased from the NASA Ames Research Center in Moffett Field,
California.
• Work with the State of Maryland, Department of Environment (MDE) and the current landowner
at the Frostburg, Maryland Temporary Housing Storage Area to reconcile responsibilities for,
and actions to address sediment control and stormwater permitting requirements for the facility.
• Corrective action planning with the MDE to address the improper disturbance of wetlands
associated with the rerouting of a wastewater treatment plant line without authorization at the
Olney Federal Support Center, Maryland.
• Negotiations with the US Environmental Protection Agency concerning process and timeline for
completion of a comprehensive request for information on regulated underground storage tanks
(USTs) in the Agency and follow-up tank management actions to demonstrate compliance.
• Interactions with the State of New Jersey Department of Environmental Protection to address
an administrative order and notice of civil penalty for noncompliant USTs at a FEMA
Point-of-Entry Program (PEP) radio station in Lodi, New Jersey.
Transportation Security Administration (TSA):
There are several examples of TSA efforts undertaken by the TSA Office of Occupational Safety,
Health, and Environment (OSHE), Environment and Energy Branch, in FY 2008:
-TSA held regional TSA/EPA Regulatory Compliance Workshops with EPA and state regulators
in the following EPA Regional Headquarters cities:
•Atlanta, Georgia (EPA Region 4)
•Philadelphia, Pennsylvania (EPA Regions 2 and 3)
•Chicago, Illinois (EPA Region 5)
•Dallas, Texas (EPA Region 6)
•San Francisco, California (EPA Region 9)
These workshops allowed TSA to increase EPA and State regulatory inspector understanding of
TSA’s regulatory approach; provide training to the Environmental Management Coordinators
(EMCs); and provide an opportunity for participants to interact and develop a positive rapport
with the EPA and state regulatory inspectors. These workshops educated both the regulators
and the airport staff on TSA HAZMAT policies and procedures and served to address potential
problems and conflicts with operational inspections.
- TSA expanded the Environmental Planning Program through outreach with the TSA Office of
Security Technology (OST) and the TSA Office of Transportation Sector Network Management
(TSNM) resulting in OSHE reviewing a greater number of projects that have potential
environmental impacts.
-OSHE met with points of contact (POC) from the TSA passenger and baggage screening
programs and POCs from the TSA offices that specialize in the various modes of transportation.
This led to greater awareness of the Environmental Planning Program from the Program Offices
and prevented potential issues and conflicts between TSA and environmental stakeholders.
- TSA developed an online Environmental Planning Course and assigned it to appropriate TSA
employees. The training was designed to increase awareness of the Environmental Planning
Program among TSA staff and prevented potential problems occurring from TSA employees who
would not otherwise be aware of environmental planning laws and regulations.
-TSA completed reviews of all available TSA program acquisition plans to identify environmental
planning requirements early in the acquisition life cycle, which helped prevent issues and
problems from occurring later on.
8
Section 4: Demonstration of ECR Use and Value
7 Briefly describe your departments’/agency’s most notable achievements or advances in
using ECR in this past year.
N/A
9
8. ECR Case Example
a. Using the template below, provide a description of an ECR case (preferably completed
in FY 2008). Please limit the length to no more than 2 pages.
Name/Identification of Problem/Conflict
Overview of problem/conflict and timeline, including reference to the nature and timing of the third-
party assistance
Summary of how the problem or conflict was addressed using ECR, including details of how the
principles for engagement in ECR were used (See Appendix A of the Policy Memo, attached)
Identify the key beneficial outcomes of this case, including references to likely alternative decision
making forums and how the outcomes differed as a result of ECR
Reflections on the lessons learned from the use of ECR
N/A
N/A
N/A
N/A
10
b. Section I of the ECR Policy identifies key governance challenges faced by
departments/agencies while working to accomplish national environmental protection
and management goals. Consider your departments’/agency’s ECR case, and
indicate if it represents an example of where ECR was or is being used to avoid or
minimize the occurrence of the following:
Check if
Check all
that apply
Not
Applicable
Don’t
Know
Protracted and costly environmental litigation;
Unnecessarily lengthy project and resource planning
processes;
Costly delays in implementing needed environmental
protection measures;
Foregone public and private investments when
decisions are not timely or are appealed;
Lower quality outcomes and lost opportunities when
environmental plans and decisions are not informed
by all available information and perspectives; and
Deep-seated antagonism and hostility repeatedly
reinforced between stakeholders by unattended
conflicts.
9. Please comment on any difficulties you encountered in collecting these data and if
and how you overcame them. Please provide suggestions for improving these
questions in the future.
Please attach any additional information as warranted.
Report due January 15, 2009.
Submit report electronically to: ECRReports@omb.eop.gov
We did not encounter any difficulties in collecting this data.
✔
✔
✔
✔
✔
✔
11
Attached A. Basic Principles for Agency Engagement in Environmental Conflict Resolution
and Collaborative Problem Solving
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