PERFORMANCE-BASED SYSTEM

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

A PERFORMANCE-BASED SYSTEM
At the series of meetings that I have been attending recently, I have 
heard a variety of people advocate performance-based tools for 
improving cleanup and facilitating the use of new environmental 
technologies. I support this approach, but I think the ideas are new 
enough that they require clarification. Though these tools may apply in 
numerous areas of environmental protection, I am focusing here on 
military cleanup.
1. Performance-Based Regulatory Agreements
Most regulatory agreements pertaining to cleanup, such as Federal 
Facility Agreements, contain a series of milestones. Virtually all 
those milestones refer to the delivery of documents. In a 
performance-based agreement, at least some of the milestones would 
refer to real-world activity, such as the start of remedial 
construction, the beginning of remedial operations, and the completion 
of a remedy or removal action. I have argued, in earlier papers, that 
the focus on documentary milestones in the cleanup process encourages 
the production of documents over the completion of cleanup. 
Performance-based agreements would not eliminate the need for 
documents, but the emphasis would be upon results.
2. Performance-Based Records of Decision
Developers of innovative technology, among others, complain that 
records of decisions (RODs) usually freeze the selection of a cleanup 
technology. If, in the period between the decision and implementation, 
a better (cheaper, faster, safer) technology emerges, no one wants to 
consider using it because it would require the cumbersome reopening of 
the ROD. A performance-based ROD would allow responsible parties to 
substitute the new technology, assuming it met pre-determined goals, 
without re-opening the entire cleanup decision-making process.
3. Performance-Based Contracting
In many situations, cleanup contractors don't have much of an incentive 
to do things faster or more cheaply, because that could cut into their 
revenues and profits. Performance-based contracting means using 
contracting tools, such as cost-plus-award-fee contracts, to provide 
incentives for better results. This approach is generally successul in 
other areas of military contracting.
All three performance tools - milestones, remedies, and contracts - 
shift the emphasis of the program to results, but there is a risk. Who 
sets the goals? Who determines if they've been met? In the absence of 
carefully circumscribed rules and specifications, what prevents abuse 
of the system.
The answer is familiar: All decisions must be made by partnerships 
among responsible parties and federal, tribal, and state regulatory 
agencies, with early, often communications and consultation with the 
affected public. Every constituency has to keep up with project 
activities if it's to remain satisfied with the results.
At the White House Regional Environmental Conference in Sacramento, one 
state regulator expressed skepticism about the performance-based 
approach, particularly as it applied to remedy selection. His analogy, 
however, represented something different than the performance approach, 
as I understand it. He said (to paraphrase), "If our performance 
standard is to prevent kids from getting hit by cars in school zones, 
we would abandon the 25 mph speed limit and reward (or fail to punish) 
drivers that don't run over schoolchildren." Unfortunately, this 
wouldn't provide an adequate safety level. Someone going 50 mph in the 
school zone would get in trouble only if he hit someone.
A more apt analogy is to consider safety the goal and 25 mph a 
risk-based safety standard. Once that standard is established, school, 
police, and traffic officials may draw upon a variety of remedies to 
reach that goal. Some of those remedies might provide additional 
protection; some might provide other benefits.
At my son's school, the old remedies were stationing a motorcycle cop 
at the school once a month or occasionally parking a radar-based speed 
display trailer out on the street. The most effective remedy, however, 
was to install a landscaped median narrowing the traffic lanes, slowing 
traffic at all times.
It took continued public (parent) involvement to get to that point, and 
it clearly required a new perspective. The results augmented, but never 
challenged the standard.
Some stakeholder group might perceive the performance-based system as a 
way to reduce environmental protection. Poorly implemented, it might. 
But done properly, it could actually provide better results.