Interim Statement of Policy on Alternative Dispute Resolution

AGENCY:

Environmental Protection Agency.

ACTION:

Notice.

SUMMARY:

This document publishes the interim statement of policy of the United States Environmental Protection Agency regarding the use of alternative dispute resolution (“ADR”). In addition to publishing the interim statement of policy, this document describes a process for developing and issuing a final EPA policy on ADR. We are also requesting public comment on issues that the Agency should take into consideration in preparing a final ADR policy and comments on how EPA can best encourage the acceptance and use of ADR techniques in appropriate circumstances.

This document is published in the Federal Register to affirm the commitment of the U.S. Environmental Protection Agency to the use of alternative dispute resolution (ADR) in Agency activities. Nothing in this document creates any right or benefit by a party against the United States.

DATES:

Comments must be submitted on or before May 12, 2000.

ADDRESSES:

Please address comments to W. Robert Ward, Dispute Resolution Specialist, by mail at U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW (MC 2310A), Washington, D.C. 20460, or by e-mail at ward.robert@epa.gov.

FOR FURTHER INFORMATION CONTACT:

­ W. Robert Ward, Dispute Resolution Specialist, U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW (MC 2310A), Washington, D.C., 20460; (202) 564-2922; ward.robert@epa.gov.

SUPPLEMENTARY INFORMATION:

This interim statement of policy is consistent with the Administrative Dispute Resolution Act of 1996 (Public Law 104-320, Oct. 19, 1996, 5 U.S.C. 571-583), which requires, in part, that each federal agency adopt a policy that addresses the use of ADR. It is also consistent with provisions of the Civil Justice Reform Act (Public Law 101-650, Dec. 1, 1990, 28 U.S.C. 471-482), Executive Order 12988, “Civil Justice Reform,” February 5, 1996; the Regulatory Negotiation Act of 1996 (Public Law 104-320, Oct. 19, 1996, 5 U.S.C. 561-570); the Federal Acquisition Streamlining Act (Public Law 103-355, Oct. 13, 1994, 41 U.S.C. 405); the Contracts Disputes Act (41 U.S.C. 601-613); the Federal Acquisition Regulation (48 CFR 33.204); Executive Order 12979, “Agency Procurement Protests,” October 25, 1995; Equal Employment Opportunity Commission regulations (29 CFR part 1614); Presidential Memorandum, “Designation of Interagency Committees to Facilitate and Encourage Use of Alternative Means of Dispute Resolution and Negotiated Rulemaking,” May 1, 1998, and the Report of the National Performance Review, “Creating a Government that Works Better and Costs Less,” September 7, 1993.

Interim Statement of Policy on Alternative Dispute Resolution

It is the policy of the Environmental Protection Agency to consider, under guidelines to be established by the Agency for this purpose, the use of ADR techniques in the conduct of Agency activities and to use ADR whenever it is appropriate. For purposes of this interim statement of policy, ADR has the definition given to it by the Administrative Dispute Resolution Act, namely, “any procedure that is used to resolve issues in controversy, including but not limited to, conciliation, facilitation, mediation, fact finding, minitrials, arbitration, and use of ombuds, or any combination thereof.” 5 U.S.C. 571. In addition, it is the policy of the Environmental Protection Agency to work to prevent disputes and to use ADR techniques where appropriate to engage stakeholders as a part of the dispute prevention effort. It is furthermore the policy of the Environmental Protection Agency to develop new programs that employ alternative means of dispute prevention and resolution; to provide information and training in alternative dispute resolution methods for Agency staff and managers who may have occasion to use ADR in their work; to enhance its program for providing the services of third-party neutrals on an expedited basis; and to track and report on the use of ADR throughout the Agency.

Alternative dispute resolution techniques are increasingly being used by Federal agencies, private citizens and organizations to prevent and resolve disputes and manage cases. The Environmental Protection Agency already has a long history of encouraging and supporting the use of ADR in Agency practice. In 1981, EPA issued a policy designed to provide guidance and direction on reasonable and effective means of involving the public in program decisions under all of the major environmental statutes. 46 FR 5736, Jan. 19, 1981. In 1983, EPA established the Regulatory Negotiation Project to explore and demonstrate the value of negotiation and other consensus-building techniques for developing regulations. In 1987, the Project expanded its activities to the use of consensus-building in policy dialogues and the development of research strategies.

In 1985, EPA's Office of Enforcement piloted the use of ADR to assist in the resolution of enforcement actions. In 1987, EPA issued a “Guidance on the Use of Alternate Dispute Resolution in EPA Enforcement Cases” establishing the review of all enforcement actions for the potential use of ADR processes and the use of ADR whenever such use may lead to a prompt, fair, and efficient resolution of disputes.

In 1996, the Office of Solid Waste and Emergency Response initiated a program to use ADR professionals to facilitate the resolution of hazardous waste site disputes. Also in 1996, the Office of Civil Rights piloted the use of ADR processes to support the resolution of Equal Employment Opportunity complaints.

In October 1998, as partial fulfillment of the requirements of the ADR Act and in response to the Presidential Memorandum on ADR of May 1, 1998, EPA appointed a Dispute Resolution Specialist. In November of 1999, the establishment of a Conflict Prevention and Resolution Center was announced. The Center will be part of the Agency's ADR Law Office that will serve as EPA's national ADR policy and coordination office. In addition, the Agency has established ombuds programs in several Regional and headquarter offices and is currently developing programs for the use of ADR in contract and claims disputes, and in programs that invite public participation.

The Agency's capacity for accessing outside professional facilitation and mediation support has significantly increased through a series of contracts managed by the Agency. In 1988, EPA issued a contract authorizing up to $1,000,000 in neutral services over three years. The most recent contract, issued in 1999, has a ceiling of more than $41,000,000. The growth in demand for outside dispute resolution services reflects the breadth of ADR activities that have been supported by the Agency.

Additional Steps

An internal Agency workgroup is preparing a final Agency ADR policy and is determining the need for practice-specific guidances on the use of ADR in certain EPA programs. The final policy and/or guidelines will address Agency activities and issues cited in the Administrative Dispute Resolution Act (“ADRA”) as well as other issues deemed important to the appropriate practice of ADR at EPA. Activities that will be considered during EPA's policy development process include:

(1) Formal and informal adjudications;

(2) Issuance of rules and regulations;

(3) Development of policy and guidance;

(4) Enforcement and compliance actions;

(5) Issuing and revoking licenses and permits;

(6) Grants administration and Memoranda of Understanding;

(7) Contract placement and administration;

(8) Interactions with the public and regulated community;

(9) Legal actions brought by or against the Agency;

(10) Employment related actions.

In addition, the policy and/or guidances will address salient issues such as confidentiality, the use of binding arbitration, and guidelines for providing appropriate ADR training. In developing the final policy, the Agency will take into account any comments received on the interim statement of policy published in this document. The Agency also plans to issue a draft of the final ADR policy for public review and will seek comment at that time.

Coordination With Public Participation Policy Review

On November 30 of last year, EPA's Regulatory Steering Committee published a document in the Federal Register seeking public comment on the Agency's 1981 Policy on Public Participation, including the question of how the Agency can best engage the public in an effort to revise that policy (and other related EPA policies and regulations). (See 64 FR 66906, Nov. 30, 1999) Because interaction with the public and regulated community is one of the areas to be addressed in the final ADR policy, the Agency will be using the feedback received in response to that document to inform the final ADR policy as well.

Request for Public Comment

The Environmental Protection Agency invites public comment on issues that the internal Agency workgroup should consider in developing a final ADR policy. In particular, the Agency would like to hear the views of stakeholders regarding how EPA can best encourage the acceptance and use of ADR techniques in appropriate circumstances. Comments should be received by May 12, 2000.