[CPEO-MEF] Impacts of Privatization - Intro to paper

[Lenny Siegel <lsiegel@cpeo.org>]

In late February, 2000, CPEO and the International City/County
Management Association (ICMA) sent out a query about the potential
impacts of the privatization of the cleanup of closing military bases,
particularly as it affects community involvement and stakeholder
participation. We received numerous thoughtful responses, as well as
requests for our paper. We presented our findings at a March 24 meeting
at the Institute for Defense Analysis (IDA). We plan to make our full
paper available once IDA submits its report to the Defense Department.
For now, we are releasing the introductory sections, including the five
recommendations made by CPEO and ICMA.

Lenny Siegel


Working Group on the Impacts of Privatization
on the BRAC Public Participation Process

Presented to the Institute for Defense Analysis
By ICMA & CPEO
March 23rd-24th, 2000


Observations and Recommendations

As part of a larger effort by DOD's Office of Environmental Security,
ICMA and CPEO have spent the past six weeks researching the implications
of privatization upon communities and especially its impacts on public
participation and community involvement.  We solicited input from a
diverse group of private and public sector stakeholders involved in BRAC
and received written and oral comments from over 50 different
individuals, organizations and agencies.  Based upon this feedback, ICMA
and CPEO put together the following observations and recommendations.
These ideas include recommendations on both the macro and micro policy
levels.  We found it hard to separate the larger discussion about the
communities' role in privatization from the narrow issues devoted just
to public participation.  DOD's decisions on privatization will have a
dramatic impact on both.

Section 334 of the Defense Authorization Act of 1997, the Early Transfer
provision, permits the transfer of remediation management responsibility
at closing military bases to non-federal entities. This legislation
presents both opportunities and challenges for communities seeking to
reuse closing and recently closed bases. Some community representatives
see privatization or localization of cleanup management as a way to
promote efficiency and tailor responses to community needs. Others see
these trends as a way for the armed services to walk away from their
full environmental responsibilities. It is premature to evaluate the
effect of early transfers since few have been completed. However, we can
draw lessons learned and make observations from those privatization and
localization efforts completed or still underway.

While existing community involvement policies seem adequate to address
the transfer and cleanup of properties with minor contamination or where
land uses are unlikely to change, they appear to be insufficient to
facilitate the safe and economically responsive reuse of complex,
controversial, or severely contaminated facilities. In fact, even the
best community involvement policies cannot be expected to enable the
privatization and localization of bases with unexploded ordnance
contamination or large plumes of organic solvents.

Based on the results of our preliminary research, ICMA and CPEO found
the following major themes or recommendations:

1. Public stakeholders must be brought into the early transfer approval
process earlier and more proactively.

2. The privatization and localization of cleanup must be based upon
locally developed land use plans.

3. Each early transfer contract should contain provisions requiring the
continuation of public participation activities associated with the
military's installation restoration program.

4. A collaborative community involvement/public participation process
should be designed with the assistance of public participation experts.

5. DOD should engage the stakeholders in the design of policies on
privatization.

In summary, the private or local government management of cleanups at
closing bases may make the cleanup process more efficient, timely, or
less expensive at a number of installations. If the local communities'
role in the entire process is reinforced, not overlooked, transferring
such management along with the early transfer of the property will
likely be appropriate and will likely work best where strong community
involvement takes place.

Background on Community Involvement

Local communities participate in the cleanup and reuse planning of
closing bases in two ways, (1) as cleanup advisors and, (2) as land use
decision-makers and advisors.

First, public stakeholders, including local officials, advise cleanup
decision-makers on strategies, standards, technologies, and priorities
for cleanup. The allocation of decision-making authority varies, and the
decision-makers themselves often argue over their respective roles, but
they include officials from the Department of Defense and federal, state
and, sometimes, tribal environmental regulators.

Various environmental statutes and regulations have long promised this
community role. CERCLA authorizes Technical Assistance Grants and
provides for citizen lawsuits under certain circumstances. The National
Contingency Plan weighs Community Acceptance as one of its criteria.

The Federal Facilities Environmental Restoration Dialogue Committee,
however, determined that these forms of public participation, while
important, were not sufficient to give the public an effective role in
the process. Based upon success stories with Technical Review Committees
at a handful of military bases, it recommended that public stakeholders
be informed and consulted early in the cleanup process, and it suggested
the formation of site-specific advisory boards.

DOD's then new Environmental Security office adopted and modified those
recommendations, incorporating the new form of public involvement into
the President's Five-Point Plan for Revitalizing Base Closure
Communities. As a result, the armed services established Restoration
Advisory Boards (RABs) at most major closing bases, and later expanded
the program to cover more than 300 active, former, and closing
installations.

RABs and their associated community relations programs have greatly
improved communications, not only between the military and the public,
but - in conjunction with the formation of BRAC Cleanup teams (BCTs) -
among the statutory cleanup decision-makers. Not all RABs are alike.
Some work better than others and even the best communications cannot
always resolve strong differences of opinion among the cleanup parties.

Second, local governments have statutory land use planning authority
over properties within their jurisdictions - with the general exception
of lands expected to remain in the custody of federal and site agencies.
The laws covering the disposition of property through the Base
Realignment and Closure (BRAC) program clarified that local governments
exert that power as a Local Reuse Authority (LRA); they enable the LRA
to receive property; and they provide financial and technical support to
local communities.

Local Reuse Authorities usually have their own public participation
programs, ranging from traditional zoning-type hearings to regular
meetings of advisory boards. These advisory groups may resemble RABs,
but the actual LRA boards - City Council, Port Authority, Joint Powers
Board - have decision-making authority over the land use decisions.

The Early Transfer Process

RECOMMENDATION #1: Public stakeholders must be brought into the early
transfer approval process earlier and more proactively.

Where the LRA is the proposed transferee at a closing base, its
representatives are inherently engaged, from the start, in negotiations
over the potential transfer of cleanup responsibility. However since
these discussions are typically conducted by attorneys for the military
and LRA, they are usually conducted in private. Even if the transfer is
likely to impact other local government bodies, those bodies are not
necessarily informed of the private negotiations.
 
Yet, before the Governor and the Administrator of U.S. EPA - if the
facility is on the National Priorities List - can approve the Early
Transfer, Section 334 requires that the proposal be brought before the
public for comment. The statute is vague, however, about how the public
comment fits into the approval process. Still, both the EPA guidance for
property on the NPL and the Defense Department policy for other
properties require that the Defense Department component respond to
comments before approval.

These procedures are often insufficient to meet the statute's goal of
protecting human health and the environment. For example, the Army's
draft Finding of Suitability for Early Transfer (FOSET) at the Sunflower
Army Ammunition Plant, a proposed non-BRAC Early Transfer, contains
asterisks on each environmental issue. It refers to a Consent Order,
still unsigned and unavailable to the public, that is supposed to govern
the cleanup. Thus, members of the public were asked to comment on a
proposal that they couldn't see because it was incomplete. At the very
least, the Defense Department should clarify that all FOSET documents
should be based upon public documents proposing environmental responses.
Furthermore, to ensure meaningful public review of the proposal, the DOD
component should apprise the RAB of the status of the negotiations long
before submitting the draft FOSET. The LRA should inform its
constituents as well. It should be possible to address the outlines of
the proposed privatization or localization strategy without compromising
confidential negotiating positions.

In the spirit of partnership for which RABs were formed, early
discussion of Early Transfer will permit members of the community to
offer constructive ideas. If they are brought into the process only when
Section 334 says they must, all they can do is endorse or oppose the
proposal. Approval under these conditions will make it difficult for the
local governments and their private transferees or contractors to
complete projects.

Local Land Use Planning

RECOMMENDATION #2: The privatization and localization of cleanup must be
based upon locally developed land use plans.

Under federal policy, cleanup standards and strategies are to be based
upon the reasonably anticipated future land use. While advisory groups,
such as RABs, may expect the consideration of even more stringent forms
of cleanup based upon long-term anticipated land use, at the very least
the military is obligated, where practicable, to clean up to the
standards required to meet the land use objectives developed in good
faith by the LRA. 

We have heard reports that at times DOD components have sought to weaken
that promise. They want to clean up to less stringent levels based upon
immediate construction plans, rather than land use categories, and to
use institutional controls to prevent additional demands for cleanup
should new construction be considered later. Where privatization or
localization is proposed, the military reportedly has used this argument
to reduce its proposed financial settlement.

While it is reasonable for LRAs to consider advice from the military on
its land use planning, there is no reason for local government to give
up its legal authority just to expedite property transfer. The funding
of cleanup should meet community-developed future land use plans. The
cleanup of federal property is more than a discretionary expense. As
with privately held land, it is an obligation that was incurred when the
military released hazardous substances into the environment.


Continued Community Relations

RECOMMENDATION #3: Each early transfer contract should contain
provisions requiring the continuation of public participation activities
associated with the military's installation restoration program.

The formation of Restoration Advisory Boards beginning in 1993 put the
Defense Department in the leadership of public policy with regard to
public participation in the oversight of cleanup. Many legislative
proposals, across the political spectrum, for improving hazardous waste
laws have incorporated advisory groups similar to RABs. California's
1999 site mitigation law, for example, makes provision for community
advisory groups.

Yet the Defense Department's current procedures for privatization or
localization establish no guidelines for continuing RABs or any other
community relations activity. While this might seem like a minor issue
at small sites with little contamination or controversy - such as
Oakland's Fleet Industrial Supply Center - it can easily undermine the
goals of the Department's existing community relations policies.

Fortunately, the problem of continuity in advisory board activity and
other community relations programs can easily be resolved. In
negotiations between the Defense Component and the LRA or private
transferee, the parties should contractually agree to continue or
enhance the military's community relations plan, assign responsibility
for that program, and provide sufficient funding for its support,
including any technical assistance to which the RAB was entitled.

RECOMMENDATION #4: A collaborative community involvement/public
participation process should be designed with the assistance of public
participation experts.

Everyone seems to concur that input from all relevant stakeholders must
happen early in the decision-making process, whether the decisions focus
on cleanup remedies, reuse options, or even discussions about if and how
to privatize the cleanup. Making decisions and then simply having public
meetings for comment is the old way of engaging the public, but it often
further polarizes the parties.  Meaningful public participation empowers
the community and allows them to have a sense of sharing in the
decision-making.  Such collaborative processes by design create a
greater degree of ownership through joint problem solving and ultimately
a more long lasting resolution. Early involvement and collaborative
processes are merely guiding principles for successful/meaningful public
participation.  

Perhaps DoD's greatest challenge under the BRAC process is how to engage
the public, share decision-making power, and align competing interests. 
At many former bases the interests of the community, the LRA, and the
military are more closely aligned from the very beginning. Under these
circumstances, the existing BRAC decision-making process works fine. 
However, in some cases the existing system seems too cumbersome to align
those interests on such complex topics as integrating cleanup levels and
reuse plans. Turnover of key personnel and a long history of mistrust
may even make the process more difficult.  

When faced with these difficult sites, perhaps the stakeholders (DoD,
the community, LRA, local government, etc.) should seek the assistance
of conflict management experts to help facilitate the negotiations. 
Professionally trained environmental and land use facilitators and
mediators could provide a variety of services.  They can assess
stakeholders (stakeholder "due diligence") to determine the key parties
within a community who must directly participate in the negotiations. 
They can meet with the parties individually to help them understand the
underlying interests of their group as well as the other stakeholders. 
Meeting with the groups can help clarify roles and responsibilities and
guide the parties to a common understanding that can help build bridges
among diverse interests. They can also design more collaborative
processes that engage the public in a meaningful dialogue about the
issues while respecting the ultimate decision-making authority of the
military, LRAs, and local government.  There is a spectrum of
collaborative strategies (mediation, facilitation, consensus building,
etc.) that conflict management experts can employ depending on the
dynamics of the situation (See attached article and diagram about the
continuum of environmental dispute resolution).  This is not to say that
every place needs outside assistance, but given the trust gap that
exists at many of these sites, it might be a wise approach to carefully
consider.

In response to our request for input, many of the stakeholders offered
their suggestions on how DOD can make its BRAC cleanup and reuse
decision-making more effective and successful:

* Ensure that the decision-making process is all-inclusive so that it
provides for multiple levels of input by all parties affected by the
cleanup and reuse plans.
* Enhance the coordination between those undertaking the cleanup (the
BCT), those planning the reuse (the LRA) and the community (possibly
through participation in BRAC team meetings).
* Encourage more informal contact between the parties (BCT, LRA,
Community, Local Government, etc.).
* Enlist the services of public participation experts: Since public
participation is not a core competency of the Department of Defense, as
part of any privatization initiative DOD should consult with public
policy facilitators, mediators, and others with expertise in consensus
building, public participation and BRAC.  
* Provide funding to LRAs, local governments, and/or community groups
(similar to EPA's Brownfields ADR Pilots) for the services of a neutral
facilitator to design and implement a collaborative public participation
process.

RECOMMENDATION #5: DOD should engage the stakeholders in the design of
policies on privatization. 

Another theme evident from the feedback sent to ICMA/CPEO is that before
DOD further develops and refines its privatization initiative, it should
engage all of the relevant stakeholders to discuss and review possible
plans and draft policies.  The BRAC process is already complex and
contentious.  Moving forward without the input and ownership of the key
stakeholders might further exacerbate existing tensions and
frustrations.  The IDA effort is a good beginning, but more outreach is
necessary. Perhaps DOD should hold a series of regional policy dialogues
to gain further input as many questions still remain. 

* Who is going to be the new responsible agency/entity with private
cleanups?  What are its roles and responsibilities?  How will it be held
accountable to the public?
* Will the federal government (DOD) continue its oversight
responsibility?  If so, how will it ensure meaningful community
involvement/participation as part of the privatization process?
* What about the role of EPA and state environmental regulators in the
privatization of cleanups?
* When and where should DOD attempt privatization?  Privatization of the
cleanup is not going to work at every site.  DOD, working
collaboratively with key stakeholders, should develop general criteria
to help decide whether a site is suitable for privatization. One of the
major factors to consider is preliminary community support and a written
plan for involving the community should DOD and the transferee proceed
with privatization.


-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org
http://www.cpeo.org


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