RAB RULE COMMENTS--ARC ECOLOGY

[arc@igc.org]

From: <arc@igc.org>

Arc Ecology
Peace, The Environment, The Economy, and Society

November 4, 1996

Ms. Marcia Read
Office of the Assistant Secretary of Defense (Environmental Cleanup)
3400 Defense Pentagon
Washington, DC 20310-3400

Subject: Comments on proposed RAB rulemaking, 32 CFR, Chapter 1, 
 Subchapter M, Part 202 

Dear Ms Read:

Enclosed please find Arc Ecology's comments on the DoDs proposed rulemaking 
regarding RABs. Arc Ecology thanks the Defense Department for the 
opportunity to review and comment on new rules in this critical area. 
Should you wish to contact us regarding these comments you can reach us 
at 415.495.1786. Thank you for your time and attention.

1. General Observations

The proposed rule causes us concern. Traditionally when a public agency 
establishes an advisory committee as a vehicle for citizen participation, 
control over the committees decisions does not lie with the agency but 
with the outside advisors. The agency is usually not represented on the 
committee, although its staff attends and participates in the meetings. 
The committee structure should encourage the advisors to speak from their 
own perspective and speak with an informed but independent voice.

TRCs and RABs are different. When originally establishing RABs as expanded 
Technical Review Committees or TRCs, DoD decided that it did not want to 
use the traditional advisory committee model as described under the Federal 
Advisory Committee Act know as FACA. Although RABs were created by an 
executive order that sought, in part, to increase the influence of community 
stakeholders over the cleanup process, RABs are co-chaired by the DoD, the 
agency receiving the advice. As a result, the DoD needs to take particular 
care in crafting a rule to ensure that community perspectives are not 
overwhelmed. In Arc Ecologys' opinion the proposed rule vests within 
DoD all of the power to determine who is giving advice, the information 
the advisory committee has access to and how that advice is incorporated 
into the cleanup process. It may also undermine the success of currently 
well functioning RABs.

 The purpose of a RAB is unclear in the actual proposed rule

For example, the proposed rule states: The purpose of a RAB is to provide an 
expanded opportunity for stakeholder input into the environmental restoration 
process occurring at operating and closing installations and at formerly 
utilized defense sites (ss202.1 (c)). What does expanded stakeholder input 
into the environmental restoration process actually mean? Section IV A.1.a. 
of the preamble is helpful in listing a number of important items that it 
states DoD considers within the scope of a RAB, and we are pleased to see 
the statement in Section IV A.1.a that By establishing a RAB, DoD hopes to 
ensure that interested stakeholders have a voice and can actively participate
in a timely and thorough manner in the planning and implementation of the 
environmental restoration. A RAB will serve as a forum for the expression and 

careful consideration of diverse points of view. However, without 
describing how the input will be incorporated into the environmental 
restoration process thus language does not clearly express the role the 
RAB should play. In practice there is a great deal of confusion. At the 
Hunters Point Naval Shipyard and Alameda Naval Air Station RABs, the base 
environmental coordinators have stated that the purpose of the RAB is to 
explain the militarys cleanup plans to the community. At the Oakland Army 
Base RAB, the Base Environmental Coordinator has indicated that it is not 
his intention to provide the community members with copies for comment of 
the Preliminary Assessment now underway (Preliminary Assessments are the 
cornerstone document, upon which all subsequent environmental investigation
and remediation is based.). So from Arc Ecologys' perspective, while 
Section IV A.1.a. articulates good objectives, it needs to go further to 
promote their implementation.

Arc Ecology would like the DoD to be very specific about the role and 
responsibilities of RABs within the actual rule. This would eliminate the 
potential for dispute arising out of interpretations of the purpose of 
RABs. DoD should consider taking the language of Section IV A.1.a. of the 
preamble and placing it in the actual text of the rule. Arc Ecology also 
recommends that the following language be inserted to further clarify the 
role of a RAB: The purpose of a RAB is to provide stakeholders with an 
expanded opportunity to provide input into the installation restoration 
and environmental regulatory compliance program. Stakeholder input should
include review and comment on all primary and secondary Installation 
Restoration and environmental regulatory compliance documents as described 
under current law, an opportunity to participate in the remedial project 
managers and other regulatory meetings dealing with the specifics of 
how base cleanup is to proceed, and to advise DoD on the formulation and 
prioritization of budget requests, budget reports and progress reports 
formulated through the IR and compliance programs. All RAB comments are 
to be integrated into the administrative records of the IR and relevant 
compliance processes.

 While the lack of specificity in the proposed rule has the potential 
to enhance community empowerment: it is equally likely that the situation 
will increase the problems at currently dysfunctional RABs, create problems 
at successful ones and undermine the success of new ones. 

Arc is uncomfortable with the lack of specificity in the proposed rule. 
Throughout the preamble the DoD repeatedly states that it intends to leave 
the development of procedures mostly to RABs. Unfortunately, the lack of 
specificity can also lead to abuse. For example, over the past three years 
the military components of the Fort Ord Base Cleanup and Transition Team 
with the support of the base command has engineered the removal of the 
duly elected community co-chair on the pretense of a lapse in membership 
status, refused to distribute meeting minutes in a timely basis to RAB 
members, attempted to censor minutes of RAB meetings, visited the 
workplaces of at least two RAB community members sharing the comments of 
one with their employer, and a DoD contractor prevented a community member 
of the RAB from accessing the public documents repository to evaluate 
its completeness. 

In the real world of disputes and difficult negotiations, the lack of 
specificity actually leaves the decisions almost entirely to the local 
base command, because the local command must agree to the procedures for 
its RAB to be able to implement them. So long as DoD is providing a 
credible forum for discussion of their issues and concerns 
(Section IV A.4.c. Community representation) there is nothing in the 
current proposed rule that would prevent the Fort Ord RAB from continuing 
on in this fashion. Arcs' concern is also triggered by Section 4.B.3 
of the preamble wherein DoD states: While DoD will allow each RAB to 
customize or tailor its operating procedures as it sees fit, DoD proposes 
that each RAB develop operating procedures on...Methods of dispute resolution. 

Allowing each RAB to customize operating procedures including dispute 
resolution, leaves very important issues such as developing an equitable 
process for dispute resolution open to abuse. The question one has to 
ask oneself when looking at the lack of specificity is: Will the very 
broad flexibility the proposed rule allows in developing RAB procedures 
work in practice. A hypothetical worst case question to consider is: 
Would the Fort Ord command, if left to its own devices, agree to a set 
of operating procedures that would enable the RAB to disagree or 
challenge command decisions? Or convey messages that the command would 
rather not hear? From my observations, the observations of members of 
the San Francisco and Monterey Bay Area RAB Community Member Caucus and 
the experience of some community representatives on the Fort Ord RAB 
the answer is a categorical no.

Unfortunately, while Fort Ord is an extreme example, it is not unique. 
While the Office of the Undersecretary of Defense for Environmental 
Security may like to promote the perspective that DoD is committed to 
protecting the environment and the public involvement process that goes 
along with it, many base commands remain uncomfortable with public 
participation, look at RABs as an intrusion and seek to avoid meaningfully 
involving the public in the base cleanup process. The Hunters Point RAB 
is consistently months late with meeting minutes, which makes it 
extremely difficult for community members to determine whether 
recommendations developed at the meetings are being carried out. At Naval 
Shipyard Mare Island and Naval Air Station Alameda, members of the RAB 
have been prevented from attending Remedial Project Manager meetings. 
Nothing in the proposed rule prevents autocratic DoD and regulatory reps 
from ignoring community concerns and developing procedures that are 
inconsistent with public empowerment. 

Simply put, the proposed rule leaves the local base command, without 
any standards for integrating citizen participation into the cleanup 
process and so it is difficult to see how the rule will fulfill the 
mandate of President Cliton's executive order on base cleanup and 
conversion. 

 The clause sustained community interest... in ss 202.2 (a) is problematic. 

How is sustained interest to be evaluated? Although Section IV A.2. 
has more detail than the proposed rule, it is still unclear how sustained 
interest will be judged. Could this clause be used as a criteria for 
the disestablishment of a RAB? For example, Arc Ecologys experience with 
RABs in California indicates that attendance at meetings vary widely. 
In a number of cases RAB attendance has fallen off of as direct result 
of poor management by the DoD and/or the BEC and does not reflect a lack 
of community interest. Could attendance become a factor in determining 
sustained community interest? Who would make the determination that there 
is no longer sustained community interest? The proposed rule could be 
interpreted to mean that a fall off in RAB participation is a reflection 
of a lack of community interest and therefore a reason to disband a RAB.

 Part (b) of ss 202.2 further complicates the question of when a RAB 
is to be established

There are two components to the section identifying the criteria for 
establishing a RAB. ss202.2 (a), except for the clause sustained 
community interest is fairly straight forward and determinative. 
However ss202.2 (b) is subjective and once again there is no guidance 
within the rule or the preamble as to how to evaluate the four items listed. 

 Contrary to statements within the preamble, the proposed rule may 
disrupt current RAB activities and undermine the potential for success 
of new RABs

The regulations in this part apply to all RABs regardless of when the 
board was established, (Part 202, Subpart A, Subsection 202.1 (b)).

While the preamble indicates that the rulemaking should not change 
management practices at existing RABs because the regulations simply 
codify current guidance, the statement is not entirely accurate. The 
proposed rule does have the capacity to disrupt active and undermine 
future RABs precisely because it appears to significantly weaken the 
standards presented in the September 1994 Restoration Advisory Board 
Implementation Guidelines developed jointly by the Department of Defense 
and the United States Environmental Protection Agency. Legally, when 
a proposed rule and its preamble disagree, the rule prevails. In this 
sense the rule does and will create conflict at existing RABs. For 
example, in a recently released Army guidance RABs were allowed input 
into the base cleanup budgeting process. However that prerogative is 
not reflected in either the proposed rule or its preamble. As a result, 
does that mean that RABs at Army bases will no longer be allowed input 
into the budget process?

Areas where the joint 1994 DoD/EPA guidelines are weakened by the 
proposed rule include: 
^ Methodology for soliciting community members, 
^ Scope of RAB activities,
^ Opportunities for team building,
^ Distribution of minutes, and promotion of public participation. 

Furthermore there are no requirement in the new regulations to:
^ Provide RAB members with written or electronic copies of cleanup 
 documentation;
^ Copies of minutes of RAB meetings;
^ Provide the general public with an opportunity to address the RAB;
^ Encourage local base commands to work cooperatively with RAB 
 community co-chairs or community members

In a well functioning RAB, meeting this minimum standard may be 
standard operating procedure. The reality for many other community 
members of RABs is that they cannot get access to these very basic 
tools of true participation. As a result we are concerned that the 
new rule offers base commands the opportunity to revisit existing 
agreements with operating RABs as well as restricting the operations 
of new ones.

 DoD should provide a series of specific requirements for RAB 
operating procedures within the rule that will serve as a minimum 
standard. There are a number of sections in the preamble where 
this occurs but only one in the actual rule. That situation needs 
to be corrected.

There are a number of areas where the DoD should provide some minimal 
but very specific requirements for RAB management. They include:
^ Bylaws defining RAB procedures including Roles of Co-chairs/ Defining 
 the relationship between the Co-chairs
^ Dispute resolution/ a prohibition against harassing RAB community members
^ How new members are to be selected once a RAB is in place (for example 
 DoD could simply state in the rule that: New RAB community members will 
 be selected by a committee of RAB community members)
^ A process for removing RAB members for lack of attendance, conflict of 
 interest (this point might most appropriately appear within the preamble) 
^ Access to information
^ the distribution of minutes; 
^ input into the administrative record of the IR process; 
^ input into compliance, RAB decision-making;
^ promoting a team approach to cleanup design and decisionmaking; 
^ respect for diverse opinions and RAB community members; and 
^ dispute resolution; 

Simply stating that there should be a process for adding and removing 
members does not ensure that the process will be a fair one. Again 
Fort Ord is an example, the RAB bylaws stated that community members 
would serve a term of two years and could reapply. The bylaws also 
said that the Community co-chair would be elected by the community 
members and serve a term of one year. Six months into the term of 
the community co-chair, his term as community member lapsed. The 
Fort Ord environmental directorate, who had a well publicized 
dispute with the Community Co-Chair used this situation as an 
opportunity to strip him of his position and engineered his removal 
from the RAB. The situation occurred because many of the Fort Ord 
RAB members were unfamiliar with how to write bylaws and were not 
careful consumers of the language when first presented. In another 
example from that same RAB bylaws, Community members were forbidden 
to speak to the media without the permission of the RAB. While the 
RAB can prohibit a RAB member from representing the RAB to the media 
without permission, it is a violation of a RAB members first amendment 
rights to attempt to prevent them from speaking to the media on 
matters having to do with the RAB. Greater specificity in form will 
ensure a uniform positive result and would help resolve the difference 
of interest that currently undermines the effectiveness of RABs as a 
vehicle for real community input at base closure sites. 

 Language should also be included requiring that copies of all IR 
documents should be made available to RAB members requesting them.

A major point totally unaddressed in the proposed rule has to do with 
the distribution of IR documents such as Preliminary Inspections/ Site 
Assessments; Remedial Investigations/ Feasibility Studies; and RODs/RAPs, 
to RAB community members for review and evaluation. Without consistent 
distribution of these documents to RAB community members that wish them, 
it will be hard to justify calling RABs a vehicle for directing community 
input into the base cleanup process.

 A division of powers between the Co-chairs should be defined.

So long as both Co-chairs share all of the tasks, the local base 
command will ultimately control the RAB, potentially to the detriment 
of community participation. That is because there is little incentive 
built into the process for a local military Co-chair to compromise 
with the Community Co-chair. Areas where the Community Co-chair 
should have primacy include: 
^ Agenda development
^ Committee creation
^ Scheduling of presentations
^ Outreach for new community members
^ Approval of draft minutes for circulation to RAB

 Compliance should be a component of the overall mission of RABs.

Compliance with environmental regulation should be incorporated into 
the mission of RABs set forth in the proposed rule. Much of the 
cleanup program today is a result of the failure to comply in part 
with existing environmental regulations and continuing failures to 
comply with these regulations could exacerbate the current cleanup 
problems. Furthermore, many of the issues commonly held in the 
compliance area such as RCRA and the Clean Water Act have public 
participation components that could be incorporated into RAB work 
for greater efficiency. In actual practice, most RABs wish to be 
involved in compliance related work as well. By incorporating 
compliance into the scope of RABs, DoD would merely be reflecting 
the practical lessons learned in the field.

 RABs should review DoDs documentation and reports of activities and expenses.

Recently, two staff members of the House National Security Committee 
were to be escorted by the Office of the Undersecretary of Defense 
for Environmental Security in a meeting in San Francisco to evaluate 
the costs and effectiveness of RABs. Presumably any review by Congress, 
the DoD or the Administration of RAB effectiveness and costs would be 
based on the reports generated by local commands. As a result it is 
essential that RAB members be given the opportunity to review these 
reports and expense statements to ensure their accuracy. The proposed 
rule is silent on this subject.

 Termination of a RAB.

At some point or another, the RAB process at an installation should 
draw to a close. The lack of criteria for determining when that 
point is reached is a serious failing in the rule and should be 
corrected. A suggestion for such a criteria would be when the lead 
regulatory entity has concurred that the DoD has fully met its 
responsibility for remediation at an installation.

2. Point By Point Analysis

A. ESTABLISHING A RAB

PREAMBLE Section III. A & Section IV. 2. a DoD will require that 
a RAB be established when there is sufficient and sustained community 
interest...:

PROPOSED RULE ss 202.2 (a) A RAB should be established when there is 
sufficient and sustained community interest...

ANALYSIS The language reflecting DoDs commitment to creating RABs 
is weaker in the proposed rule than it is in the preamble. The 
preamble states that creation of a RAB is a requirement when certain 
criteria are met. Whereas the proposed rule does not present the 
formation of a RAB as a requirement. The practical impact of the 
language difference is unclear, however it does appear to enable DoD 
to exercise greater latitude in organizing a RAB then is presented in 
the preamble.

RECOMMENDATION ss 202.2 (a) The word should should be changed to will 
in order for the preamble and proposed rule to agree: A RAB will be 
established... It would be better if DoD established a general 
requirement for maintaining RABs with, if necessary some criteria to 
determine in there is continuing interest. A general requirement 
could read: DoD will require that a RAB be established at all installations 
and facilities participating in the Installation Restoration program, 
or under federal or state environmental enforcement orders and continue 
through the life of the project.

B. DEFINITION OF STAKEHOLDER AND COMMUNITY

PREAMBLE Section III A Stakeholders are defined as all parties that 
are actually or potentially affected by restoration activities at an 
installation...

PROPOSED RULE ss 202.1 (c) Stakeholders are those parties that are 
actually or potentially affected by restoration activities at an 
installation... 

ANALYSIS A strict interpretation of the stakeholder definition would 
limit those able to participate on a RAB to base residents, future users 
of the property and neighbors living extremely close to base property. 
There is however a much broader community of interest in the base 
cleanup program Examples of these include people who fish near an 
installation that is polluting a body of water, people who live along 
the routes trucks disposing of waste will travel, the taxpayers in 
general who are concerned about how public money is spent, 
nongovernmental organizations dealing with environmental, housing and 
arts issues who may represent residents, community interests or broader 
public interests. The language could be interpreted to exclude 
representatives of environmental, labor and community groups representing 
constituents that are impacted but whos staff are not themselves affected. 
The proposed rule would also potentially prevent DoD from reaping the 
benefits of the professional environmental analysis paid for and provided 
by environmental and other nongovernmental, public interest organizations.

It is also important to remember that restoration is the cure, pollution 
is the problem. Actually or potentially affected by base pollution is the 
most important aspect of the issue to be addressed. Restoration activity 
have impacts all their own, but they may or may not address all of the 
sources of pollution from an installation. Petroleum pollution, Clean 
Water Act and other pollution issues are currently outside the scope of 
this language. 

RECOMMENDATION ss 202.1 (c) The definition of stakeholder should be 
broadened. The definition of stakeholder should be changed to: All 
parties that have a direct or indirect interest in the pollution of 
an installation and its remediation.

C. RAB MEMBERSHIP 

PREAMBLE Section III A DoD proposes that each RAB should consist of 
representatives from DoD, EPA, state and local government, and members 
of the Community... 

PROPOSED RULE ss 202.4 Composition of a RAB is essentially the same 
as the preamble.

ANALYSIS There is a fundamental difference in the relationship between 
governmental representatives, contractors and the public. Governmental 
and contractor representatives have greater input into the process, and 
potentially have political/ institutional/ financial conflicts of interest. 
For example, a representative of a regulatory agency may have particular 
reasons for not wanting a pollution issue to surface. The same is true 
for contractors who may have relationships with DoD at other installations. 
In addition, there are differing agendas between governmental 
representatives. Individuals representing Local Reuse Authorities may 
have entirely different agendas than regulators and for their own 
reasons may not want certain pollution issues to surface. On the other 
hand, the community members of RABs, either because they live close to 
a base or may in some other way be concerned, frequently have an 
interest in ensuring that all pollution issues are vetted. The 
imbalance in power and interest inherent in this process needs to 
be addressed. As a result, it is important that there be a process 
that defines a particular role for RAB community members beyond 
voting for the community co-chair. 

RECOMMENDATION ss 202.4 In a more traditional setting, representatives 
of the military, regulators and contractors would be advisors to the 
advisory committee. RAB community members should be defined as: individuals 
representing themselves and representatives of community-based or public 
interest organizations (e.g. environmental, labor, neighborhood groups) 
and local government. Representatives of federal, state governmental 
entities and contractors working under military contract should not be 
defined as RAB community members. A balance should be struck between 
general community members and those representing Local Reuse Authorities.

D. PROCEDURES

PREAMBLE Section IV 2 c ...DoD feels that this preference to include 
existing TRC members in RABs also should be balanced against the 
preeminent need to form a RAB truly representative of the communitys 
diverse interests.

PROPOSED RULE No equivalent language in the proposed rule 

ANALYSIS TRCs are typically much smaller than RABs. Its difficult to 
see how including two or three community representatives from a TRC 
into a typically 25 person RAB will upset the balance of membership. 
On the other hand, if incorporated into the proposed rule, it could 
be used by local command to prevent controversial community 
representatives to transition over to the RAB.

RECOMMENDATION Section IV 2 c Arc would recommend against the 
incorporation of this or language like it within the rule and 
remains concerned that this section may reflect the Departments 
current thinking in the matter. We would encourage full transition 
of TRC membership into the RAB.

E. CONDUCT OF RAB MEETINGS

PREAMBLE Section III B DoD is not proposing specific requirements 
concerning the conduct of RAB meetings 

PROPOSED RULE ss 202.7 (a) Each RAB should develop a set of operating 
procedures.

ANALYSIS The lack of definition in operating procedures could allow for 
greater flexibility and ostensibly greater community input. Or it could 
allow procedures that preclude real citizen participation. It is far 
more likely that the situation will vary between RABs undermining 
consistency of performance. Given that there is nothing in the proposed 
rule to prevent it, autocratic DoD and regulatory reps will be able to 
ignore community concerns and develop procedures that are inconsistent 
with public empowerment. 

RECOMMENDATION ss 202.7 (a) Arc Ecology strongly recommends that DoD 
set a minimum standard for operating procedures to prevent abuse. Areas 
where such minimum standards should be articulated include:
^ the timely and targeted distribution of minutes,
^ input into the administrative record of the IR process, 
^ input into compliance, 
^ input into budgeting and prioritization
^ RAB decision-making, a team approach to cleanup design and 
 decisionmaking, and 
^ dispute resolution
^ division of labor between co-chairs
^ selection of new RAB members

PREAMBLE Section IV B.3. While DoD will allow each RAB to customize 
its operating procedures as it sees fit, DoD proposes that each RAB 
develop operating procedures on:
^ Announcing meetings.
^ Attendance of members at meetings.
^ Frequency of meetings.
^ Methods for dispute resolution. Review and responses to public comments.
^ Participation of the public.
^ Keeping the public informed.

PROPOSED RULE ss 202.7 (a) Each RAB Should develop a set of operating 
procedures. Areas that may be addressed in the procedures involve:
1) Announcing meetings;
2) attendance of members at meetings;
3) Frequency of meetings;
4) Addition or removal of members; 
5) Length of service for members and co-chairs;
6) Voting procedures on RAB recommendations for issues such as by-laws 
 or charters;
7) Methods for dispute resolution;
8) Review and responses to public comments;
9) Participation of the public in operations of the RAB;
10) Keeping the public informed about proceedings of the RAB.

ANALYSIS Again, while Arc generally agrees with the principle of 
customizing RAB procedures to individual RABs it is nevertheless 
important to establish minimum standards to prevent abuse. There are 
a number of instances where a standardized approach will serve the 
publics interest better and where existing federal and state regulations 
provide reasonable models for adoption. States and federal regulations 
identify minimum standards for the handling of tasks such as meeting 
announcements, review and response to public comment, participation 
in operations of the RAB, and keeping the public informed about 
proceedings of the RAB. Dispute resolution is another area where 
standardization will improve the overall result. Standardized modes 
for dispute resolution already exist between the federal and 
regulatory community and the DoD. These intergovernmental models 
for dispute resolution can be investigated and adapted to fit the unique 
situation created by RABs. The bottom line is: Standardized methods 
would be preferable to leaving these matters to the percentage of RABs 
where dispute resolution is an issue. 

RECOMMENDATION ss 202.7 (a) Incorporate specific standards for public 
participation, information notices and dispute resolution within the 
rule. Possible language could reflect a requirement that public 
participation follows RABs will follow accepted state and federal 
practices for public notification, public participation and dispute 
resolution.

F. ACCESS TO INFORMATION

PREAMBLE Section IV. B. 3. DoD proposes that the installation prepare 
meeting minutes summarizing the topics discussed at the meeting. This 
is needed to ensure dissemination of the results to community members 
and interested parties. DoD also proposes that, at a minimum, the 
minutes should be distributed to the information repositories 
established under the installations CRP. Although, not required, 
DoD recommends that the installation consider mailing copies of the 
minutes to all community members who attend the meeting, existing TRC 
members and/ or people identified on the installations community 
relations mailing list.

PROPOSED RULE ss 202.6 (b) ss 202.6 (b) The installations and 
community co-chairs should prepare meeting minutes summarizing the 
topics discussed at meetings of the RAB. The installation should make 
the meeting minutes available in information repositories,

The installations and community co-chairs should prepare meeting 
minutes summarizing the topics discussed at meetings of the RAB. 
The installation should make the meeting minutes available in 
information repositories,

ANALYSIS Point 1: Meeting minutes are a primary tool for RAB members 
to review the progress of their work. At installations like Fort Ord 
the public members had to fight to get access to the meeting minutes. 
At the Hunters Point RAB, minutes are invariably months late. As a 
result RAB members have complained that they have difficulty following 
up on decisions made at previous meetings. It is standard practice for 
members of standing committees to receive minutes of their meetings. 
DoD should state clearly within the rule that the minutes of RAB 
meetings are to be distributed to all RAB members and made available 
to interested members of the public. It is fundamentally too burdensome 
to individuals already volunteering to assist the DoD with their base 
cleanup to expect them to fish for the minutes in the public 
documents repositories.

As indicated in the general comments section of this paper, the rule 
is silent regarding the question of the distribution of IR documents 
to RAB members. The rule should make it explicit that all RAB members 
are entitled to full sets of the documentation produced during the IR 
process.

RECOMMENDATION ss 202.6 (b) At a minimum, DoDs regs should reaffirm 
that all RAB members get copies of RAB minute meetings at least one 
week before the next meeting. Minutes should also placed in the 
public information repository and also be made available to members 
of the general public that request copies.

All RAB members requesting them should be provided with full sets of 
all IR documentation.

G. SCOPE OF RAB ACTIVITIES 

PREAMBLE Section IV A. 1. a DoD considers the following types of 
activities within the scope of a RAB:
 Providing advice to the installation, EPA, state regulatory agency, 
 and other government agencies on restoration activities and community 
 involvement;
 Addressing important issues related to restoration, such as the scope 
 of studies, cleanup levels, waste management and remedial actions;
 Reviewing and evaluating documents associated with restoration 
 activities, such as plans and technical reports,
 Identifying restoration projects to be accomplished in the next fiscal 
 year and beyond;
 Recommending priorities among sites or projects;
 Conducting regular meetings that are open to the public and scheduled 
 at convenient times and locations;
 Interacting with the LRA or other land use planning bodies to discuss 
 future land use issues relevant to environmental restoration decisionmaking.

PROPOSED RULE No equivalent language in the proposed rule

ANALYSIS Point 1: While we generally speaking agree with the preambles
list of responsibilities, there is one serious omission: Input into 
installation environmental compliance activities important because it 
is the failure to comply with environmental regulations that creates the 
need for cleanup in the first place. Compliance failures at or near 
cleanup sites can complicate remediation and make the job of reaching 
agreement over cleanup strategy more difficult. Worse, it could 
render the cleanup activities moot by recreating the problem that 
cleanup had just solved. While this issues is considerably more 
important for active installations, it is also relevant to BRAC sites.

Point 2: We would appreciate a rule that echoes the language on scope 
that is in the preamble. Each of the topics mentioned in the preamble 
have been in contention at at least one RAB in the San Francisco and 
Monterey Bay Areas.

RECOMMENDATION Providing a listing of activities in the rule as well 
as in the preamble would bring important clarifications to a number of 
RABs and enable the dialogue to move forward. Incorporate the 
providing of community input into environmental regulatory compliance 
as a function of a RAB.

H. PRIVATE FUNDS

PREAMBLE Section III C Section 324 (c) of Pub. L. 104-106 revised 
section 2705 (e), title 10 US Code, enables community members of a RAB 
or TRC to request DoD to obtain from the private sector technical 
assistance for interpreting scientific and engineering issues with regard 
to the nature of environmental hazards at the installation and the 
restoration activities conducted, or proposed to be conducted at the 
installation.

PROPOSED RULE ss 202.9 Community members of a RAB or TRC may request 
technical assistance for interpreting scientific and engineering issues 
with regard to the nature of environmental hazards at the installation 
and restoration activities conducted, or proposed to be conduct at the 
installation.

ANALYSIS Community members of RABs have always been free to seek 
independent funds to hire technical experts to review cleanup documents 
and evaluate environmental hazards. What is new here is that DoD is 
offering to provide assistance in the pursuit of such funding. Such 
assistance could include administering the funds through the local base 
command. However it is important to recognize that DoD is stating that 
it will not use its own funds for these purposes and so RABs will be 
competing with thousands of nongovernmental nonprofit organizations 
across the country for technical support funding.

It is important for any RAB going this route to consider drafting 
specific agreements with the local command regarding the management 
of the funds. The agreement should maximize flexibility, RAB leadership 
in determining use of funds, and the speed with which the RAB can access 
funds raised.

RECOMMENDATION Arc supports DoDs interest in assisting RABs with 
obtaining funding for technical advice.

I. CONFLICTS OF INTEREST

PREAMBLE Section IV 4 c DoD will not limit the ability of community 
RAB members who have business interests to compete for DoD contracts, 
if proper and appropriate assurances to avoid potential conflicts of 
interest are issued.

PROPOSED RULE No equivalent language in the proposed rule 

ANALYSIS Because RABs are not subject to Federal Advisory Committee 
standards, RAB members have been free to compete for DoD contracts in 
the past. The questions raised by the statement in the preamble are: 
1) Does allowing members of a RAB to compete for DoD contracts regarding 
the installation undermine oversight by creating a conflict between the 
interests of the cleanup and individual members seeking business 
opportunities; and 2) We question whether it is appropriate for a 
community representative of a RAB to continue in that capacity when 
he/she has a financial tie to the DoD. The state of California has clear 
conflict of interest laws which consider it illegal and improper to derive 
personal financial benefit from public positions. Clearly if it is DoDs 
intention to enable RAB community members to compete for contracts, 
it should revisit the FACA status issue.

RECOMMENDATION Arc has serious reservations about this section of the 
Preamble. We recommend strongly that the DoD revisit this issue and 
review the body of California conflict of interest legislation to 
ensure that while RAB members seeking contracts may not be violating 
federal law, that they are also not violating state law. 

SUMMARY

While DoD may prefer to perceive RABs as a happy partnership between 
the military, the regulators, local governments and the public, the 
realpolitik of the situation is much different. The fact of the matter 
is that RABs vary widely in quality and local commands vary widely in 
sincerity. If DoD wishes to construct a fair forum for resolving 
disputes and forging new partnership and policies around cleanup, then 
the agency must take responsibility for developing a rule that will 
balance the competing interests. The construction of the proposed 
rule, vests within DoD an actual, if not overtly stated, veto over 
virtually every aspect of RAB activity. Arc Ecology believes that this 
is not within the interests of the DoD, the nation or the communities 
in which base cleanup is taking place. We strongly encourage the DoD 
to consider these comments in light of existing guidance and applicable 
state and federal regulations. We support the RAB process, commend 
DoD for initiating it and are submitting these comments in that light.

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A BRIEF GUIDE TO COMMENTING ON A FEDERAL RULEMAKING

Some background on the federal rule making process

When the Federal government intends to produce a new or change an 
existing regulation, it is required to solicit the input of the general 
citizenry. The Fiscal Year 1996 Defense Authorization Act required 
the Defense Department to develop regulations regarding RABs. 
The announcement of the proposed RAB rule/ regulation appeared in 
the August 6th edition of the Federal Register. As part of the rule 
making process, the DoD must provide a public comment period. The 
public comment period began with the publication of the announcement 
last August and ends November 4, 1996. The purpose of the public 
comment period is to provide interested citizens with the opportunity 
to review and comment on the proposal. Once the public comment period has 
concluded, the DoD must evaluate citizen input and decide which -- 
if any -- comments it wants to incorporate into the final rule. DoD 
must reply to all the public comments it received (e.g. why a particular 
comment was not incorporated into the final regs) and publish the 
response along with the final publication of the rule in the Federal 
Register. A final rule becomes effective when it is published in the 
Federal Register, unless otherwise stipulated.

How to read the Federal Register notice

The Federal Register is the government publication used to announce all 
of the proposed and final changes to federal law, releases of public 
review documents and proposed actions of the federal government. You can 
usually get copies of the Federal Register at you local librarys main 
branch. You can also access it on-line. 

All proposed rules are published twice in the Federal Register. First 
as a draft proposal and later as a final rule. Federal Register notices 
have two parts: 1) the preamble and 2) the proposed or final rule. In 
this case the preamble appears on pages 40764 - 40771 of the Federal 
Register notice. The actual proposed rule appears on pages 40771-40772. 
The preamble summarizes the proposal, presents a point by point analysis, 
and provides a view into how the authors envision its implementation. 
The rule is the actual regulation as proposed. When conflict occurs 
over the meaning of a proposed rule, the preamble is used to help 
interpret the intent of the regulations writer. When the rule is clear, 
the preamble does not come into the picture. When the rule and the 
preamble disagree, the rule rules. 

Some pointers on preparing comments

A good rule of thumb as you read a newly proposed regulation is to 
imagine the worst case abuse of the rule. The reason for this is once 
a regulation is on the books, it takes on a life of its own, including 
new interpretations of its meaning which may or may not comport with 
the original intent of the authors. Keep in mind that new regulations 
rarely appear when existing practices are working smoothly. Regulations 
appear when there is the perception or the reality that a problem needs 
to be addressed. Therefore applying a worst case analysis isnt being 
negative; it actually may help to prevent a worst case from occurring.

While there is a tendency to prefer terse, general language in 
regulations, the authors also needs to be specific enough to ensure that 
the reasons for creating a rule in the first place are addressed. The more 
clearly written the text of a regulation is regarding its goals, objectives, 
and process, the more likely it is that it will serve its purpose.