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FY 2009 ECR Policy Report to OMB-CEQ (Morris K Udall Foundation)

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1
FY 2009 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 fourth year of reporting in accordance with this
memo for activities in FY 2009.
The report deadline is January 15, 2010.
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 2009 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 2009 ECR reports. You may be contacted for the purpose of clarifying
information in your report. For your reference, copies of prior year synthesis reports are
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: _________________________
U. S. N.R.C.
Joan Olmstead, Attorney
Office of General Counsel
(301) 415-2849, joan.olmstead@nrc.gov
1/20/10
3
Section 1: Capacity and Progress
1. Describe steps taken by your department/agency to build programmatic/institutional
capacity for ECR in 2009, including progress made since 2008. 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.]
While NRC currently does not use neutral facilitators or Alternative Dispute
Resolution processes to resolve environmental conflicts, the Commission uses
NRC employees to facilitate at NRC public meetings. NRC decided to use NRC
employees to act facilitators because of the technical nature of NRC’s regulatory
program. The NRC facilitators staff public meetings and workshops involving
NRC licensing, policy development and rulemaking activities.
The NRC recently began a training program for new facilitators at the NRC.
Currently 14 staff members are in the training program which uses outside
contractors to teach general public meeting and facilitation skills. The objective
of the training program is to develop a skilled cadre of facilitators throughout the
NRC to assist in NRC public outreach programs, including the convening and
facilitation of environmental conflict resolution processes and public meetings.
In FY ’07 NRC established a training course on NEPA for environmental project
managers and attorneys. The training course is offered several times a year at
the NRC training center and includes classes on various subject areas. This
year the course included a class on tribal Consultation which included discussion
of outreach, consultation and coordination with tribal governments. Trainers are
from the Nicholas School of the Environment at Duke University and NRC. The
course syllabus was developed by the Nicholas trainers and NRC staff.
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
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 2009 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.]
Cases or
projects in
progress
1
Completed
Cases or
projects
2
Total
FY 2009
ECR Cases
3
Decision making forum that was addressing
the issues when ECR was initiated:
Of the total FY 2009 ECR
cases indicate how many
your agency/department
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 2009 ECR Cases)
(the sum of the Decision Making Forums
should equal Total FY 2009 ECR Cases)
(the sum should equal
Total FY 2009 ECR Cases)
1
A “case in progress” is an ECR case in which neutral third party involvement began prior to or during FY 2009 and did not end during FY 2009.
2
A “completed case” means that neutral third party involvement in a particular matter ended during FY 2009. 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 FY2009 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
1
1
1
1
0
0
0
1
0
1
1
0
0
0
1
0
0
6
4. Is your department/agency using ECR in any of the substantive priority areas you
listed in your prior year ECR Reports? Indicate if use has increased in these areas
since they were first identified in your ECR report. Please also list any additional
priority areas identified by your department/agency during FY 2009, and indicate if
ECR is being used in any of these areas. Note: An overview of substantive
program areas identified by departments/agencies in FY 2008 can be found in the
FY 2008 synthesis report.
List of priority areas identified in your
department/agency prior year ECR Reports
Check if
using ECR
Check if use
has increased in
these areas
List of additional priority areas identified by
your department/agency in FY 2009
Check if
using ECR
Please use an additional sheet if needed.
Proposed depleted uranium rulemaking
✔
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]
NRC does not have a formal tracking method for the use and outcomes of
ECR.
8
6. Describe other significant efforts your agency has taken in FY 2009 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.
As noted in the NRC 2008 report, the NRC staff continues to use an
expanded public outreach program in the areas of new reactor licensing and
the renewal of existing reactor licenses, to accomplish many of the objectives
of ECR. The NRC's experience is that disputes over the licensing of energy
facilities, such as commercial nuclear reactors, emerge because of the lack
of clear information on the NRC licensing process and the technical issues of
concern, distrust of the agency motivations, the belief that the public is being
excluded from the licensing process, as well as differing values and interest of
key stakeholders. The NRC's expanded public outreach program attempts to
deal with these "conflict engagement" issues through early and continuing
interaction with the stakeholders concerned about a particular facility. These
stakeholders include local, state, and tribal governments; advocacy groups,
both national and grassroots; community organizations, such as Chambers of
Commerce; the licensee or license applicant; nuclear industry organizations;
and other federal agencies. We use a variety of public outreach techniques,
guided by a third party facilitator or NRC staff, including small group meetings
with individual stakeholder interests.
While NRC does not routinely use cooperating agency agreements, NRC
currently has 16 environmental impact statements in process that involve
cooperating agencies. During the FY09 reporting period, 15 of the
environmental impact statements involved the Memorandum of Understanding
(MOUs) with the Army Corp. of Engineers that allows each Army Corps of
Engineer District Office to determine if it wishes to enter into a cooperating
agency relationship with the NRC. In December 2009, NRC also signed a
similar MOU with the Bureau of Land Management (BLM) for coordination of
environmental reviews for uranium recovery facilities located on BLM lands or
mineral estates. In other cases, NRC routinely consults with other Federal,
State, Tribal and local entities during development of environmental impact
statements and environmental assessments. We believe these informal
efforts to seek other agencies’ input achieve the spirit of more formal
cooperating agency relationships.
The NRC staff evaluated other federal agencies Indian Policies and tribal
outreach strategies this fiscal year and is currently developing a tribal protocol
manual to assist NRC employees’ consultation and coordination with tribal
governments.
A private contractor completed a comprehensive evaluation of the NEPA
compliance policies and practices of the major NRC offices responsible for
material licensing. A final briefing and closeout of the contract was done May
21, 2009 entitled “Review of FSME/NMSS NEPA program: Briefing on
Findings and Recommendations,” May 21, 2009. The review found: the
offices have a strong NEPA compliance program, including the NEPA
guidance document and training. The NEPA documents also demonstrate
overall compliance with NEPA and applicable regulations and guidance. NRC
is currently implementing some of the contractor’s additional
recommendations to improve the program.
9
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.
Commencement of NRC facilitation training identified in Section 1.
.
Initiation of the expanded public outreach program for license applications for
several new commercial reactors and in situ leachate uranium recovery
matters.
The NRC has also entered into a Memorandum of Understanding (MOU) to
establish cooperating agency relationships with Army Corp of Engineers.
Bureau of Land Management, and the Prairie Island Indian Community to
assist in the preparation of NEPA environmental review documents for various
licensing applications.
Continued use of collaborative workshops in several rulemaking areas.
10
8. ECR Case Example
a. Using the template below, provide a description of an ECR case (preferably completed
in FY 2009). 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
NRC did not use a third party neutral to resolve an ECR case during FY2009
11
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 all
that apply
Check if
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, 2010.
Submit report electronically to: ECRReports@omb.eop.gov
We continue to appreciate having a question that allows reporting of other types
of significant efforts to “anticipate, prevent, better manage, or resolve
environmental issues and conflicts” that do not fit squarely under the definition of
“ECR.”
✔
✔
✔
✔
✔
✔
12
Attached A. Basic Principles for Agency Engagement in Environmental Conflict Resolution
and Collaborative Problem Solving
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