The Public's Role in Natural Resource Damage Assessment

[Lenny Siegel <lsiegel@cpeo.org>]

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[The following is a slightly modified written version of a presentation
that I made at the Cooperative Assessment Workshop in San Diego earlier
this week. - LS]

The Public's Role in Cooperative Natural Resource Damage Assessment
Lenny Siegel
Executive Director, Center for Public Environmental Oversight
June, 2004

At major cleanup sites across the United States, such as National
Priorities List sites and federal facilities, there is a great deal of
public awareness and involvement in the remedy selection process,
through public meetings, advisory boards, and direct community
organizing. At most of these sites, even where natural resource
contamination is an issue, community members and environmental
organizations are unaware of the Natural Resource Damage (NRD)
assessment and restoration process. However, a properly structured
public participation program, built around community advisory groups,
can strengthen NRD programs, serving not only the public, but the
trustees and responsible parties.

The Obstacles

Cooperative Assessment provides a significant opportunity to involve
these publics in the NRD process, but there are significant obstacles to overcome.

First and foremost, the public-and surprisingly enough, many
representatives of government agencies-are unaware of the NRD process,
particularly at hazardous waste sites. This is largely because the NRD
"train" is just picking up steam. Nationally, relatively few cleanup
sites have been addressed under NRD authorities, compared to the vast
universe of properties undergoing cleanup under state and federal statutes.

Moreover, the agencies that usually brief the public about the cleanup
process, U.S. EPA and its state counterparts, do not have direct NRD
jurisdiction. It shouldn't be surprising that they focus on those
aspects of the cleanup laws over which they have jurisdiction.
Furthermore, at federal facilities, where public participation programs
are generally most developed, federal trustees are unlikely to step
forward because, under the unitary theory of the Executive branch, they
are unable to follow up with litigation.

Second, when natural resource trustees appear, even to review the
potential for an NRD assessment, the public is already confused by the
multiplicity of government agencies present at the table. I remember one
recent public meeting in my county, about the discovery of perchlorate
in local drinking water, where there were representatives from the Water
Board, the Water District, U.S. EPA, Cal-EPA, the Health Department, and
the Agency for Toxic Substances and Disease Registry. People off the
street have enough trouble learning the acronyms, let alone the roles
and responsibilities of each agency. NRD introduces a whole new suite of
agencies, and even the most experienced activist is likely to have
trouble sorting out their roles.

Third, even if community members figure out who the players are, they
are unlikely to understand the rules of the game. They rarely even know
what NRD means. They surely don't know the protocols for assessing the
health of bird eggs, let alone the meaning of "benthic organism." But
officials who feel pressure to deliver results quickly usually don't
want to step back and initiate a major program of public education.

Fourth, at many sites, agencies do not know how to approach the
"community" because it appears to be fragmented. Some stakeholders are
most concerned about public health. Others are concerned about
ecological damage. Yet others are worried about the impact that
publicity has on their property values, while some seem to focus on
reuse, not health issues. Why seek public advice, officials may reason,
when communities cannot agree among themselves.

Finally, few community members have the time, energy, and interest both
to educate themselves and participate in what may be an extended series
of meetings and events, let alone reading through binders of material.
Unless they have a direct personal economic interest-like fishers after
an oil spill-the oversight of cleanup has trouble competing with the
PTA, soccer practice, union meetings, etc.

The Opportunity

The dismal state of public participation in both NRD assessment and
restoration planning is unfortunate, because (1) NRD, particularly
cooperative NRD Assessment, is a tool that may offer results beyond what
remedial action alone provides and (2) trustees and responsible parties
may benefit from constructive public participation.

At many cleanup sites where natural resources are a major concern,
community members have suggested that cleanup dollars be spent not only
to remove or treat contamination, but to enhance the ecological value of
resources. Particularly at federal facilities, we've been told: Cleanup
money can't be spent on ecological restoration. The NRD process,
however, provides additional flexibility, because it introduces the
"damages" mechanism. This may allow money to be spent to compensate for
the impact of pollution, not just to clean it up. Thus an informed
public can use the NRD process to achieve important goals that the
remedial action framework makes it difficult to address.

Historically, however, many agencies and responsible parties have feared
public involvement. They have seen it as a nuisance at best and a threat
to their personal safety at worst. They fear that a public NRD process
would provide hostile activists with a chance to pile on, to add insult
to injury. To be sure, there are troublemakers in our communities. In
fact, many of them are in my data base. And finally, they are nervous
that expanding the NRD process will delay action and cost money that is
needed urgently elsewhere.

Yet other officials and companies have recognized that involving the
public in such a process, early and often, usually brings more benefits
than risks. They first accepted institutionalized public participation
as a way to avoid litigation or civil disobedience, but a growing number
of decision-makers understand that good public participation actually
improves decision-making. Community members have local knowledge that
responsible parties, regulators, and trustees may lack. Particularly
when they speak with a unified voice, they may offer a restoration
vision superior to those put forward by external authorities.

That is, a good public participation process will not only remove
obstacles to sound assessment and restoration. It will help achieve NRD
goals in a way that everyone understands.

The Mechanisms

The first step in promoting enhanced public participation in NRD is to
develop and disseminate information materials that not only explain the
NRD process in the context of the local site, but which also outline the
opportunities for plugging into that process. It shouldn't be hard. Much
of the information has already been prepared.

To me this is a no-brainer, but it won't happen if the responsible
parties and trustees don't believe public participation will be a
positive element. It's easy to publish a legal notice or hold a meeting
in the middle of a business day, and then conclude from the poor turnout
that no one cares. It takes a little more effort to generate a buzz in
the community. I recognize that at some locations there will not be
sufficient interest to create a serious public involvement program.
However, at most cleanup sites with significant natural resource issues,
"if you build it they will come."

There are many tools for successful public participation, ranging from
newsletters and Internet bulletin boards to regular public meetings. In
my experience-primarily at contaminated federal facilities-I find that
community advisory groups are usually, but not always, the most
effective approach. They are established only where there is community
interest. These groups typically consist of volunteers and the
representatives of local agencies, companies, and non-profit
organizations. Community members are not paid to serve on these boards.

Today the Defense Department sponsors about 300 Restoration Advisory
Boards (RABs) to oversee site investigation, remedial decision-making,
and even planning for long-term stewardship. A few such boards have
descended into hostility. A few more have trouble attracting community
members to regular meetings. A number are just rubber stamps. 

But the overwhelming majority of RABs have improved the process.
Communities better understand the cleanup process and what decisions
must be made. They are better able to develop community consensus on
proposed plans. Even when decision-makers are reluctant to listen, they
have the knowledge and credibility to organize to achieve community objectives.

I believe the advisory group model fits the NRD process well. It may
involve adding NRD discussions to the agendas of existing advisory
groups, or it may require the formation of new bodies. In either case,
the principle is the same. Involve representatives of the affected
community early, and often. In short, where a handful of dedicated
people-usually numbering five to twenty-five-are willing to participate,
the obstacles to public involvement disappear.

The chief advantage of the advisory group model, over conventional
public meetings, is that members develop a more thorough understanding
of the process and the rules that govern it, as well as the technical
issues that must be resolved. They have the opportunity, over time, to
personally get to know decision-makers and their consultants.
Particularly if community members have access to independent technical
assistance, they are able to determine which issues are important and
provide continuing, constructive input. Once community activists are
"part of the solution," they make it easier to regulators and the
regulated to approach their challenges as partners, not adversaries.

Advisory groups do not substitute for community meetings, some of which
may be legally mandated. But advisory group members become
intermediaries, reporting to the community at large, interpreting
activities and issues for their less frequently involved neighbors, and
reporting any feedback. At the Moffett Field RAB, of which I am a
member, the community co-chair of the board actually chaired public
meetings while other members spoke in favor of the negotiated preferred alternatives.

NRD advisory groups, like remedial action-oriented advisory boards,
should welcome representatives of a wide range of public constituencies.
In my experience, members with different personal or organizational
agendas learn each other's objective and priorities, and more often than
not they negotiate a consensus, making it easier for decision-makers to
please what originally seemed to be a disjointed or disorganized public.

It's important to recognize, however, that NRD will bring to the table
groups that might not already be involved in cleanup discussions. First,
environmental organizations with a regional scope-based upon watersheds,
airsheds, or bird migration-typically show more interest in natural
resource discussions than the health impact of groundwater or soil
pollution. Second, people or institutions directly affected financially
by pollution, such as fishers or owners of impacted property, may also
become more involved. The latter group, in particular, may have legal
standing which makes them parties, not just advisors, in ensuing discussions.

Expanding existing community involvement programs to support regular
advisory board meetings costs time and money, but rarely is it a
significant fraction of the overall cost of remediation or restoration.
In fact, by solving problems before they become contentious, advisory
groups sometimes even save money for the responsible parties.
Remediation advisory groups are usually funded, directly on indirectly,
by responsible parties. To ensure their independence-that is, so it's
clear that they aren't public relations vehicles for the
polluters-non-federal (e.g., Defense or Energy Departments) advisory
groups are usually sponsored by regulatory agencies, who recover their
costs from the responsible parties. Either existing remediation advisory
groups could broaden their scope to review NRD issues, or new boards
could be created along a similar model. 

Recent history-roughly fifteen years-has shown that agencies and
responsible parties that seek constructive public involvement in cleanup
programs usually get it. It takes a positive attitude, administrative
support, and often, independent technical assistance. Applied to NRD,
the same advisory board model should not only reduce or eliminate public
opposition to constructive NRD solutions, but it is also likely to make
it easier for the other stakeholders to work together to achieve common
or overlapping ("win-win") objectives. More often than not, community
members, as they agree upon natural resource objectives among
themselves, will get what they want.

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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