Policy on Alternative Dispute Resolution

AGENCY:

Environmental Protection Agency.

ACTION:

Notice.

SUMMARY:

This document publishes the draft final policy of the United States Environmental Protection Agency (EPA) regarding the use of alternative dispute resolution (“ADR”). The Agency is requesting public comment on this draft document. This document replaces the Interim Statement of Policy on Alternative Dispute Resolution (65 FR 13383) which was issued on March 13, 2000.

The draft final policy is published in the Federal Register to affirm EPA's commitment to the use of ADR in Agency activities. The draft final policy 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. Nothing in this document creates any right or benefit by a party against the United States.

DATES:

Comments must be submitted on or before December 5, 2000.

ADDRESSES:

Please address comments to W. Robert Ward, Dispute Resolution Specialist, by mail at Conflict Prevention and Resolution Center, U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., (MC 2310A), Washington, DC 20460. Comments sent by overnight delivery services or by courier should be addressed to W. Robert Ward, Conflict Prevention and Resolution Center, U.S. EPA, Ariel Rios Building, Room 6330F, 1200 Pennsylvania Avenue, N.W. 20004. Comments may also be submitted by fax at (202) 501-1715, 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, DC 20460; (202) 564-2922; ward.robert@epa.gov.

SUPPLEMENTARY INFORMATION:

This draft final policy is consistent with the Administrative Dispute Resolution Act of 1996 (Pub. L. 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 (Pub. L. 101-650, Dec. 1, 1990, 28 U.S.C. 471-482), the Alternative Dispute Resolution Act of 1998 (Pub. L. 105-315, Oct. 30, 1998, 28 U.S.C. 651-658), the Regulatory Negotiation Act of 1996 (Pub. L. 104-320, Oct. 19, 1996, 5 U.S.C. 561-570); the Federal Acquisition Streamlining Act (Pub. L. 103-355, Oct. 13, 1994, 41 U.S.C. 405); the Contracts Disputes Act (41 U.S.C. 601-613); Executive Order 12988, “Civil Justice Reform,” February 5, 1996; Executive Order 12979, “Agency Procurement Protests,” October 25, 1995; the Federal Acquisition Regulation (48 CFR 33.204); 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.

On March 13, 2000, EPA published an Interim Statement of Policy on Alternative Dispute Resolution in the Federal Register. The document published today supercedes and replaces the Interim Statement of Policy. EPA requested public comment on the Interim Statement of Policy as input for the development of this draft final policy. The Agency received one comment in response to the Interim Statement of Policy. The comment was generally supportive of the application of ADR in the environmental arena. It included suggestions regarding the qualifications for neutral third parties selected to assist in resolving complex environmental disputes. It also supported the concept of flexible ADR techniques, including the use of minitrials in appropriate circumstances. The draft final policy does not address neutral third party qualification criteria explicitly, although the Agency recognizes that the success of an ADR proceeding often depends upon the selection of a neutral third party with the correct combination of background, skills, and experience for the particular matter. The Agency chose not to establish neutral third party qualification criteria in the context of the draft final policy because this policy is intended to apply to a wide range of ADR activities. The Agency believes that desirable qualification criteria may differ based on the type of dispute, the participating parties, and the type of ADR technique being used. With regard to the use of minitrials and other flexible ADR techniques, the draft final policy explicitly authorizes the use of minitrials among a variety of ADR techniques.

EPA Policy on Alternative Dispute Resolution

Purpose

The U.S. Environmental Protection Agency (EPA or the Agency) strongly supports the use of alternative dispute resolution (ADR) to deal with disputes and potential conflicts. ADR refers to voluntary techniques for preventing and resolving conflict with the help of neutral third parties. Experience within this Agency and elsewhere shows that ADR techniques for preventing and resolving conflicts can have many benefits including:

• Faster resolution of issues;
• More creative, satisfying and enduring solutions;
• Reduced transaction costs;
• Fostering a culture of respect and trust among EPA, its stakeholders, and its employees;
• Improved working relationships;
• Increased likelihood of compliance with environmental laws and regulation;
• Broader stakeholder support for agency programs; and
• Better environmental outcomes.

ADR techniques can be effective in both internal Agency disagreements and external conflicts. ADR allows the Agency to have a more productive work environment and to work better with State, Tribal, and local governments, the regulated community, environmental and public health organizations, and the public. This policy is intended to be flexible enough to respond to the full range of disputes EPA faces, and to achieve these 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 concerns in ADR processes;
• Promote systematic evaluation and reporting on ADR at EPA; and
• Further the Agency's overall mission through ADR program development.

What Does EPA Mean by the Term “ADR”?

EPA adopts the definition of ADR in the Administrative Dispute Resolution Act of 1996 (ADRA): “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 USC 571(3). All these techniques involve a neutral third party. Depending on the circumstances of a particular dispute, neutrals may be Agency employees or may come from outside EPA. Typically, all aspects of ADR are voluntary, including the decision to participate, the type of process used, and the content of any final agreement.

In What Types of Situations Does EPA Encourage the Use of ADR?

EPA encourages the use of ADR techniques to prevent and resolve disputes with external parties in many contexts, including adjudications, rulemaking, policy development, administrative and civil judicial enforcement actions, permit issuance, protests of contract awards, administration of contracts and grants, stakeholder involvement, negotiations, and litigation. In addition, EPA encourages the use of ADR techniques to prevent and resolve internal disputes such as workplace grievances and equal employment opportunity complaints, and to improve labor-management partnerships.

While ADR may be appropriate in any of these contexts, the decision to use an ADR technique in a particular matter must reflect an assessment of the specific parties, issues, and other factors. Considerations relevant to the appropriateness of ADR for any particular matter include, at a minimum, the guidelines in section 572 of the ADRA and any applicable Agency guidance on particular ADR techniques or ADR use in specific types of disputes. ADR program staff at EPA headquarters and in the Regions can help the parties assess whether and which form of ADR should be used in a particular matter.

How Is EPA Organized To Support ADR?

EPA's Conflict Prevention and Resolution Center (CPRC) in the Office of General Counsel (OGC) provides ADR services to the entire Agency. The Agency's Dispute Resolution Specialist, designated under the ADRA, is the head of the CPRC. Because the Dispute Resolution Specialist's responsibilities include development and implementation of all Agency ADR policy, Headquarters Offices and Regions are expected to coordinate with the CPRC from the earliest stages in developing any program-specific ADR guidance and in addressing issues during ADR policy implementation. The CPRC also will administer Agency-wide ADR programs, coordinate case management and evaluation, and provide support to program-specific ADR activities. Building on existing ADR efforts at EPA, the CPRC assists other Agency offices in developing effective ways to anticipate, prevent, and resolve disputes, and makes neutral third parties more readily available for those purposes.

Other EPA offices, including the Office of Enforcement and Compliance Assurance, and the Office of Administrative Law Judges, are using ADR to resolve conflicts between the Agency and regulated entities. The Office of Policy, Economics and Innovation and the Office of Cooperative Environmental Management, in partnership with many EPA program offices, use ADR to provide opportunities for stakeholders to contribute to the design of Agency actions that affect them.

EPA Regions have ADR programs that meet their particular needs. For example, in some cases, EPA Regions have identified staff experts to coordinate workplace, enforcement, and other ADR activities. EPA Regions have also used internal and external neutral third parties to foster stakeholder involvement, resolve workplace disputes, help in organizational problem-solving, and mediate enforcement cases. The CPRC will continue to provide support to existing Regional ADR programs and is available to help in developing new ADR efforts.

Anyone interested in exploring the possibility of ADR in an EPA matter can contact the CPRC, a Regional ADR program, or a program office with an established ADR function for information and assistance regarding mechanics, process design, or advice on what to expect from an ADR process.

How Should Confidentiality Be Handled in ADR Processes?

A thorough discussion of confidentiality is often critical to success in ADR. It is EPA's policy to maintain confidentiality in ADR processes consistent with the ADRA and other applicable law. Section 574 of the ADRA reflects a balancing of the need for confidentiality in ADR with the dual goals of open government and effective law enforcement. Other federal laws may impact the confidentiality of information in specific cases, potentially compelling disclosure or enhancing protection against disclosure (e.g., Inspector General Act, Freedom of Information Act, Privacy Act). The CPRC can provide further information on authorities that may impact confidentiality in a federal ADR process.

The confidentiality needs and concerns of the parties must be discussed early in every ADR process. EPA staff, the parties, and the neutral third party should be aware of how confidentiality operates in the context of federal ADR. Within this context, the parties and the neutral third party should work together to establish a common understanding of how confidentiality protections apply in a specific process. In most cases, this understanding should be recorded in a written confidentiality agreement. This initial work will benefit all parties by clarifying expectations regarding confidentiality before full initiation of the ADR process.

How Will EPA Promote Commitment to and Awareness of ADR Within the Agency?

Information Sources

The CPRC, in consultation with Agency program offices and Regions, will compile existing information and develop additional information on ADR practice at EPA and will make this information available to EPA personnel through a website and through the CPRC. Information may include model agreements to mediate, case selection criteria, descriptions of ADR processes, mechanisms for accessing external neutral third parties, case studies, guidance on confidentiality and evaluating ADR processes, directories of EPA ADR contacts, bibliographies, and links to external sources of information.

Training

The Agency strongly encourages all EPA personnel to learn about ADR. Training is crucial not only for those selected to serve as in-house neutrals, but also for negotiators and others who need to understand how ADR can enhance negotiation and agency decision making. The Dispute Resolution Specialist will identify and recommend relevant ADR training. Training sources may include existing EPA training programs, training sponsored by other agencies, newly developed courses, and commercially available training.

This policy affirms a goal of EPA's Labor/Management Partnership Strategic Plan (Spring 2000) to train line managers, first line supervisors, Federal union representatives and other employees in consensual methods of dispute resolution such as ADR and interest-based negotiation. Finally, the Agency will add skills in negotiation and alternative dispute resolution to its inventory of desirable management characteristics used to prepare and select managers for the Senior Executive Service.

Mentoring

The Agency encourages those with ADR experience to share their expertise with other Agency personnel. Mentoring and apprenticing can strengthen EPA's ADR program by expanding the number of staff with ADR skills, increasing opportunities to practice ADR techniques, and providing for exchange between more and less experienced ADR professionals.

Funding

Costs associated with ADR processes, including fees for external neutral third parties, are typically paid in whole or in part by the sponsoring EPA office. Depending on the circumstances, other parties or offices also contribute. The Agency expects each program office at Headquarters and each Region to demonstrate a commitment to ADR by making funds available for ADR processes.

How Will EPA Measure the Success of Its ADR Programs?

Many federal agencies have shown significant time and money savings from the use of ADR and have received intangible benefits such as improved relationships and broader stakeholder support for their programs. Evaluation is an important way to identify these savings and benefits and is key to systematic improvement of ADR programs. Through evaluation, EPA is committed to measuring the success of its ADR programs and continually improving them to better meet the needs of EPA offices, Regions, and external stakeholders.

Several EPA offices and Regions have already evaluated their ADR efforts. To build on these evaluations and to strengthen the evaluation component of ADR practice across the Agency, the CPRC, consulting with internal and external stakeholders, will develop an evaluation system for ADR at EPA. The evaluation system will include goals and both qualitative and quantitative measures of success.

Where Can I Get Additional Information or Help With ADR at EPA?

Additional information on ADR contacts within EPA, topics covered in this policy, and others, may be obtained from the CPRC at (202) 564-2922.

What Is the Legal Authority for this Policy?

This policy satisfies the requirement of the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571-583, that each federal agency adopt a policy that addresses the use of ADR. The policy is also consistent with the following federal statutes, regulations, and orders:

• Regulatory Negotiation Act of 1996, 5 U.S.C. 561-570
• Civil Justice Reform Act, 28 U.S.C. 471-482
• Alternative Dispute Resolution Act of 1998, 28 U.S.C. 651-658
• Federal Acquisition Streamlining Act, 41 U.S.C. 405
• Contracts Disputes Act, 41 U.S.C. 601-613
• Federal Acquisition Regulation, 48 CFR 33.103 & 33.204
• Federal Sector Equal Employment Opportunity Regulations, 29 CFR part 1614
• Civil Justice Reform, Executive Order 12988, 61 FR 4729 (Feb. 5, 1996)
• Agency Procurement Protests, Executive Order 12979, 60 FR 55171 (Oct. 27, 1995)
• Presidential Memorandum, “Designation of Interagency Committees to Facilitate and Encourage Use of Alternative Means of Dispute Resolution and Negotiated Rulemaking,” May 1, 1998

Request for Public Comment

The Environmental Protection Agency invites public comment on this draft document. Comments should be received by December 5, 2000.