Re: [CPEO-MEF] RAB Rule proposed

[Lenny Siegel <lsiegel@cpeo.org>]

When finalized, the Department of Defense's (DoD's) proposed rule on
Restoration Advisory Boards (RABs), published in the January 28, 2005
Federal Register (pp. 4061-4074), will at long last cement the RAB
process in federal regulation. The proposal is out for public comment
until March 29. I am offering the following observations in the hope of
stimulating comments from RAB members as well as refining my own views
before submitting my own comments.

For those who don't know the history, I was a member of the Federal
Facilities Environmental Restoration Dialogue Committee that originally
recommended the formation of site-specific advisory boards in 1993, and
I have been an advocate of the RAB system ever since. I consider the
network of nearly 300 RABs now in existence one of the greatest examples
of public oversight of environmental programs, anywhere, anytime, and I
view the RAB experience as a significant experiment in direct, or
participatory democracy.

Still, many RAB members view the boards as ineffective. Meetings are
often a series of PowerPoint briefings. The Defense component - and at
times other agencies - sometimes roll over community objections to
proposed plans or ignore public concerns. I understand, and sometimes
share, the frustration.

However, I don't think the solution to RAB weakness lies in the proposed
rule or other bureaucratic imperatives. I don't expect the federal
government to hand over a blank check - that is the ability to make
decisions requiring federal expenditures - to bodies that are
essentially voluntary. Agencies are required to listen, and when they
don't heed public advice, they should explain why. As I've been telling
people at workshops for years, "Advisory" is our middle name.

RABs are successful when their community members use the RAB to develop
common objectives and then organize to achieve those objectives, using
the knowledge and exposure they have gained as RAB members to build
support in their communities. This is what we have done repeatedly at
Moffett Field. For example, in 1999 we identified the technical basis -
a cleanup standard for PCBs in sediment - that would have led to an
incomplete cleanup of the Moffett wetlands. We researched both the
technical and policy issues, and we organized support among our
neighbors, environmental organizations, and elected officials. We
blocked a series of proposed plans - backed by regulators as well as the
Navy and NASA - before winning agreement, in December 2004, to our
vision of a clean, restored pond. No rule required the agencies to adopt
the community consensus, but the process gave us the opportunity to
organize effectively to achieve it.

Some view my Moffett experience cynically, arguing that the community
here in Silicon Valley is more empowered and educated than most. This
may be true, but the same formula has worked elsewhere. I remember
meeting, about ten years ago, with the community members of the RAB at
Castle Air Force Base, another closing base, in California's Central
Valley. The Castle RAB was a "main street" RAB, consisting of
businessmen, farmers, and local officials, with no "environmentalists."
Still, they shared the frustration of a number of Bay Area RABs. They
told us (CPEO): The Air Force doesn't listen. We responded: When the Air
Force doesn't listen to your advice, do those political things you would
have done had the RAB not been in place. When we next saw some of those
RAB members, they said that they had followed CPEO's advice, and that
things were turning around.

So, in evaluating the proposed RAB rule, I am looking for tools that
will make it possible for community members to identify problems,
develop their own solutions, and promote those solutions both inside and
beyond the RAB process.

***

The proposed RAB rule essentially writes into regulation existing
policy, much of which we first written down in joint Defense
Department-EPA guidelines in 1994. There is a new section on RAB
dissolution, which establishes a formal process by which the Defense
Department can dissolve boards that it believes - and can show - are not
fulfilling their intended purposes. It is based upon a philosophy that
one size does NOT fit all, that RAB procedures should be developed and
implemented locally.

* My biggest concern is the provision that a RAB may be adjourned - that
is, closed down permanently - if the "installation has been transferred
out of DoD control and DoD is no longer responsible for making
restoration response decisions." A number of communities are concerned
that Defense components are promoting privatization, fixed-price
contracts, and early transfer BECAUSE it will reduce the opportunities
for community involvement. On that basis alone, they are prepared to
oppose any form of transfer of responsibility. I consider that concern
valid, because most states don't have statutory provisions for
regulator-managed community advisory groups. However, I think this fear
can be addressed by requiring that any such privatization mechanism
contain contractual requirements for continuing public involvement.
Though Mare Island still has a Navy-run RAB, private transferees
conducting cleanup not only participate, but they provide additional
support. As I understand it, they agreed to such support largely because
RAB members made that a condition of their support for early transfer.

* Second, the requirement that the installation respond to community
advice should be made clearer. It's in the preamble: "Installations will
listen, carefully consider, and provide specific responses to the
recommendations provided by the individual RAB members." Yet in the rule
itself, the language states: "Installations shall give careful
consideration to the comments provided by the RAB members." It wouldn't
take much to harmonize that language with the preamble.

* Next, it should be clear that community members of the RAB must play a
key role in establishing the agendas for their meetings. This may seem
minor, but such a simple step usually goes a long way in establishing trust.

* I realize it's bureaucratically challenging for installation managers
to combine activities funded from diverse programs, but I think the rule
should include language authorizing (but not requiring) installation
commanders to invite RABs to discuss other base environmental issues
provided funding and staffing for that expanded activity comes from
budgets other than environmental restoration or munitions response. From
the community's point of view, it's often confusing that there are
multiple forums for dealing with local military facilities. The
community generally doesn't understand the difference between cleanup
and other environmental programs. There may indeed be situations,
therefore, when it is useful to DoD for RABs to discuss issues beyond
their primary mission. For example, the Air Force expanded the
Vandenberg AFB RAB, making it a "Community Advisory Board" authorized to
discuss pollution prevention issues and the ENVVEST program. Where
appropriate, that model should be encouraged.

* At a small number of facilities, there are responsible parties, from
other federal agencies or the private sector, who participate in the
RAB. For example, representatives of both NASA and the "MEW" Companies
play a constructive role in the Moffett Field RAB. This practice should
be encouraged, but as responsible parties they should not be authorized
to vote for community co-chair or in other community-based votes.

* While most RAB members live or work in the affected communities, I
think it should be clear that RABs may also include representatives of
organizations and agencies with members who are from the affected areas.
While most RABs are flexible on this issue, I recall a case, at Fallon
Naval Air Station, where the staff member from a regional environmental
organization was denied membership. Regional representation may be
particularly important where natural resource issues are involved. For
example, when the Moffett Field RAB took up wetlands cleanup, we
welcomed a representative of the Bay Area-wide agency responsible for
planning the San Francisco Bay Trail.

* The preamble mentions the possibility of RAB advisory votes: "While
voting or polling the members may facilitate RAB discussions, such votes
are advisory only and not binding on agency decision makers." Because
past guidance has discouraged such votes, the rule itself should also
make clear than such voting is allowable. I am not asserting that votes
are necessary, but I've found that many RAB members feel most
comfortable when they are able to propose and debate formal
recommendations. 

* I am pleased that the proposed rule specifies actions that may be
taken to facilitate long-term community involvement, such as oversight
of monitoring or five-year reviews. This is a function that no one
really thought much about when we started forming RABs more than a
decade ago.


Lenny


Lenny Siegel wrote:
> 
> Today, January 28, 2005, the Defense Department published its proposed
> rule on Restoration Advisory Boards in the Federal Register, pp. 4061-4074
> 
> DEPARTMENT OF DEFENSE
> 
> 32 CFR Part 202
> 
> Restoration Advisory Boards (RABs)
> 
> AGENCY: Department of Defense, Office of the Deputy Under Secretary of
> Defense (Installations and Environment), DoD.
> 
> ACTION: Proposed rule.
> 
> -----------------------------------------------------------------------
> 
> SUMMARY: The Department of Defense (DoD) requests public comment on
> these proposed regulations regarding the scope, characteristics,
> composition, funding, establishment, operation, adjournment, and
> dissolution of Restoration Advisory Boards (RABs). DoD has proposed
> these regulations in response to 10 U.S.C. 2705(d)(2)(A), which requires
> the Secretary of Defense to prescribe regulations regarding RABs.
> 
> The propose of the RAB is to facilitate public participation in DoD
> environmental restoration activities and active and closing DoD
> installations and formerly used defense sites where local communities
> express interest in such activities. The proposed regulations are based
> on DoD's current policies for reestablishing and operating RABs, as well
> as DoD's experience over the past ten years in using RABs.
> 
> DATES: Comments on this proposed rule must be submitted on or before
> March 29, 2005.
> 
> The Federal Register notice may be downloaded either as HTML or as a PDF file.
> 
> http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-1550.htm
> http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-1550.pdf
> 

-- 


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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