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

Presented to the Institute for Defense Analysis
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, 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 when strong community 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. The major question is how to go about public participation. 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. 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.

I. Background

With recent efforts to privatize the cleanup of closing military facilities under BRAC, DOD's Office of Environmental Security and Office of Active Installations charged the Institute for Defense Analysis (IDA), a not-for-profit, federally funded research and development center (FFRDC) to gather information and feedback about privatization issues and other transfer alternatives to BRAC. On Feb 2nd, 2000, IDA convened a meeting of diverse stakeholders (i.e., NGOs, private sector consultants and developers, community groups, local governments, etc.). The group shared their experiences and insights concerning existing BRAC efforts and possible strategies and impacts regarding privatization. After the meeting, IDA selected a few participants to chair different working groups. Each group was charged with delivering a report to IDA on a different aspect of the issue. CPEO and ICMA agreed to provide IDA with preliminary feedback on how privatization may affect communities and public participation. IDA will incorporate segments of these reports into a final document and deliver that final document to DOD.

Over the past six weeks, ICMA and CPEO have worked together to develop an issues paper on privatization and community involvement and stakeholder participation. The goal of this paper is to define the issues and impacts on the public participation process and to offer examples, input and recommendations to help address these issues.

II. Research Method

In undertaking this project, ICMA and CPEO used various sources and methods to research and gain input on the subject. Using experiences from within the BRAC process and from other areas (such as Brownfields), we looked for best practices that could be applied to DOD's existing public participation efforts. In order to gain wider input on this subject, ICMA and CPEO solicited the input of various parties in the BRAC process and the general public. An announcement soliciting comments was distributed by ICMA to persons involved in their Base Reuse Consortium as well as other interested parties (including other IDA working group members). Additionally, the announcement was posted on the CPEO listserve to elicit valuable public commentary. The following three question were posed in the announcement.

· Best practices in BRAC community involvement and stakeholder involvement: What has worked well, what has not? What are the obstacles? Please provide examples of any innovative strategies.

· Beyond BRAC: Are there best practices in community involvement and stakeholder participation that can be borrowed from similar cleanup and redevelopment areas, such as Brownfields?

· Possible privatization impacts: What are your thoughts regarding the possible impacts and issues privatization may pose for community involvement and stakeholder participation? For example: Will the transfer of the cleanup from DOD improve or hinder community involvement? How can meaningful stakeholder participation be ensured? Should reuse planning (generally under the LRA) and cleanup decisions (usually made by the BCT with input from the RAB) be better coordinated? What are the advantages and impacts for community involvement? How could this be done? Are the current mechanisms for community involvement and stakeholder participation in the early transfer process working? How could they be enhanced?

Responses were received from over 25 different individuals, organizations and agencies representing a diverse range of interested parties. To assure that feedback was comprehensive and honest we notified respondents that their names would be kept confidential. Passages from their responses are integrated in the report with a generic reference to who made the comment. This was done to give context to the comments and add perspective, while continuing to protect the respondent's confidentiality. The breakdown of respondents was as follows:
· 4 Local government officials
· 7 LRA members
· 9 Community members (RAB members and others)
· 3 State regulators
· 2 Federal agency and military officials
· 1 Non governmental organization

III. Background of Current Public Participation Process for BRAC

A. Overview

Without going in too much depth, the BRAC experience with public participation is a mixture of both good and bad. Restoration Advisory Boards (RABs) form the foundation of the current BRAC system. A RAB is a group of local community members and government representatives who provide recommendations to the BRAC Cleanup Team (BCT) about environmental issues on closing bases. The RAB acts as the focal point for the military's communication with the community. In the ideal scenario the RAB works "in partnership with the BCT on cleanup issues and related matters." The RAB is essentially the primary vehicle for involving the community in the cleanup decisions. While this process seems fairly straightforward on an organizational chart, questions have arisen in a number of communities about whether it leads to meaningful public participation in practice. Before embarking on new variations of public participation for its privatization projects, it might benefit DOD to reexamine the fundamental principles that underlie any successful public participation effort by asking the following questions:

· What is "meaningful" community involvement? Having a common definition that is understood by all participants is an extremely important preliminary step. A hypothetical survey of military personnel with some level of BRAC public participation experience would likely result in many different definitions of meaningful public participation. Some equate public participation with public hearings. Others may confuse public participation with public relations. While all three approaches involve the public to a certain degree, each serves very different goals and emphasizes different techniques and strategies. For purposes of this report, our definition is:

Successful community/stakeholder involvement is a collaborative process of shared decision-making with the public, especially with those members of the community, local governments, neighborhoods, and businesses that are affected, either directly or indirectly, by the decision to close, transfer, clean up, and reuse former military facilities.

Of course, there is no single definition that will fit every circumstance, but the concepts enunciated above provide a good starting point.

· Why is community involvement/public participation important? Again, many government officials and private developers as well, view public participation as something they MUST do! They may view public participation as a hindrance, and perhaps a necessary legal requirement that impedes an efficient or streamlined development project. However, a well-conducted, meaningful public participation process can save time, problems and money in the long run. It brings in points of view, raises issues and ideas that might not otherwise be considered and serves to educate all stakeholders about each other's perspectives. Additionally, it can help garner early community buy-in and thereby increase the validity/legitimacy of the final decision. Conducting meaningful public participation can also satisfy the governments' duty to guard and maintain the "public trust."

Public participation is generally not quick and easy. It takes time and patience. But the payoffs in the long term will ultimately result in a faster transfer and reuse of the property. Good public participation also requires consulting with or hiring public participation experts. People who are professionally trained as public policy facilitators and mediators who can help help design and implement collaborative processes. In general, the public participation efforts can and should align the interests of all stakeholders; thereby increasing the likelihood of a successful cleanup and reuse.

B. Issues/Obstacles

At the most basic level, the reuse of a former military base is fundamentally a local land use decision. However, federal and state environmental laws and military transfer statutes and guidance closely govern both the cleanup and reuse of former bases. BRAC presents additional challenges beyond the basic land development transaction. While it varies according to the site and the personnel, the respective stakeholders generally have competing interests and goals. For example, the military often wants to get out of the facility as quickly and cheaply as possible while the LRA's focus is primarily on economic reuse and jobs. The RABs and other community groups may stress public health, environmental concerns, along with general public reuse options. Federal and state environmental regulators must adhere to their duties and legal mandates. Some local governments may try to reconcile the competing interesting of economic development with citizen interests, while others may succumb to the developers promise of more jobs and property taxes. Developers are primarily interested in minimizing their risks so they can maximize the return on their investment.

As a result of these complexities, BRAC transfers can often take longer and such delay generates frustrations for many of stakeholders, including both the local community and the military. Mixing all of these interests together can seem as if it is a recipe for disaster, however, a collaborative public participation plan can help align the interests if done early in the decision making process. What follows is a discussion of particular issues and principles based on existing BRAC public participation experiences.

· Who are the stakeholders, the community, the public? There are numerous parties affected by base closures, including local government officials, state/regional entities, workers and unions, the real estate, banking and local business communities, residents/property owners, environmental groups, the education community, the homeless and others. Identifying the parties who should participate in the decision-making process is a difficult, often contentious issue that is unique for each site. DOD procedures state that the RAB should be comprised of a DOD component, Federal EPA, state representatives, and members of the local community. Further, it provides that RABs be chaired by a DOD component representative and a member of the local community. However, there are many different views on what groups/parties are important to the process, and confusion over who best represents the views of the "community". Each community has its own unique needs. It is important to incorporate the unique cultural and socio-economic aspects of the community as well.

· When should different stakeholders participate? In general, good consensus building practices support the idea that community involvement should start at the very beginning of the process. The earlier the community participates and offers its buy-in, the better for the entire process. However, for reaching consensus and moving the process along, it is important that each stakeholder participate at the point in the process when the issues/concerns of that party will be addressed. It is important that every major view on the issue be represented, whether the stakeholder is primary or secondary.

· How should public participation/community involvement take place? How to engage the public and share decision-making power is perhaps the single greatest challenge of the current BRAC process. The goal is to create a collaborative process that aligns competing interests. However, this public engagement process is not the forte or core competency of the military. In fact, one could argue that "sharing" decision-making authority is the antithesis of the military mission.

· The "Trust Gap": A common theme heard from many of the respondents to our survey is the gap in the trust among the players in the BRAC process. There are inherent tensions within the military organizational structure and between agencies and departments at all levels of government. More importantly, there is a real trust issue between the public community and the government/military, and issues involving public information versus security issues. This kind of distrustful atmosphere can make building a good working relationship and communication lines a difficult or even impossible endeavor.

IV. Privatization Impacts

When the cleanup process is privatized and passed to another responsible entity other than the government agency/department, many issues arise which affect the community. These involve the new division of responsibilities, risks and funding, the management expertise of the cleanup entity, impacts on the public participation process, and issues involving public health and the environment.

There was a common concern among respondents about the transfer of responsibilities involving all aspects of cleanup. Therefore, we are covering a variety of concerns, which involve the public/community, while focusing on community involvement/public participation issues.

A. Consequences of transferring cleanup responsibilities

The effects of privatizing cleanup are extremely interconnected. The issues involving responsible parties and the pros and cons of various aspects of privatization, such as economic reuse, and protection of the environment and public health, are intrinsic in examining its effect on the community and the community's role in the process.

· Who is the new lead entity? One key factor is the lack of understanding or consistency over who or what the next lead entity of the cleanup (and reuse) process would be (if DOD relinquishes its control), and how that entity would be connected and accountable to the community. We heard comments (both positive and negative) about LRAs and/or developers and/or local government entities and/or state government taking over cleanup oversight responsibilities and how this would affect community involvement and other areas. However, there is no guidance or uniform understanding of who or what the next lead entity should be. This is key as many of the issues or recommendations will depend upon that entity.

For FISC Oakland where cleanup was privatized, the new entity was the Port of Oakland, a quasi-local government entity. For the Presidio, it was a public corporation or "trust", with no defined accountability to the community. Thus, the entity can vary from site to site. With no overall structure on what the next entity should or will be it is difficult to assess the issues as they vary depending on what the new lead entity is. Discussing these concerns and examining the probable roles of developers, local government entities, and state regulators is essential in addressing privatization.

"Although a city spokesman originally insisted that the City was in charge, it emerged and was not denied that the developer was (actually) in charge"-Citizen

· Will the DOD component remain a responsible party? According to current law, the military service cannot completely shift its lead cleanup responsibility to a "private" entity. Whether transfer occurs before or after the Record of Decision (ROD) the service or federal agency is still legally "on the hook" as a responsible party.

"If the transferee agrees to undertake some or all of the cleanup, it acts as the agent of the federal agency, but the responsibility to accomplish the objectives set forth in the ROD remains with the federal agency."- EPA official

· With privatization, what are the roles of other agencies? Although the DOD component may still be a responsible party, the shifting or attempt to shift some or all of cleanup responsibilities to a new lead entity may suggest the need for an increased role for regulators or other parties who deal with similar issues in private cleanups (such as Brownfields).

"If the objective of privatization is to shift responsibility to the transferee, privatization of cleanup at BRAC bases could be seen as a mandate for a larger role for EPA and/or the State in ensuring meaningful and effective community involvement…. Were DOD to transfer lead responsibility for cleanup to a property recipient, EPA's role in conducting community involvement activities might need to be modified/expanded to be similar to EPA's role at private sites where PRPs are doing the cleanup."- EPA official

· Do local entities have the capacity to handle the issues? One concern of local government officials, LRA members and others is whether the new lead entity (possibly a local government entity) or the community itself has the expertise, knowledge and ability to fully understand and effectively manage the project. Many local governments have neither the funding nor expertise to handle the often large technical and funding issues involved with cleanup.

This concern is supported by a recent ICMA survey report on the use of land use controls on BRAC properties which found that local governments were often ill-prepared to handle the recording, funding, enforcement and monitoring responsibilities involved (see the ICMA Base Reuse Consortium Special Report on Land Use Controls on BRAC Bases).

"It may be difficult for local government to take over cleanup responsibilities because many do not have the ability to handle the issues involved."- City official

"The biggest obstacle to community involvement is the highly technical nature of the work and the 'technese' with which the cleanup agents speak."- LRA member

"The biggest obstacle is apathy and a lack of understanding/appreciation of what is going on…It is just too damn hard for people to follow all the bureaucratic activities."- LRA

· Funding of the cleanup is a major concern: Related to the previous concern is the possibility that the private or public entity that takes over the cleanup will not have the financial ability to complete the cleanup task. Or that the cleanup will be postponed while the entity (say a developer) acquires more funds (possibly from activity already underway on the property). Funding of cleanups is a critical issue for which DOD would have to ensure the availability of adequate funds for remediation by providing backup funding or through an insurance program.

"One of our greatest concerns is that DOD is turning over BRAC bases to LRA's through early transfers without providing sufficient funding to carry out cleanup." - Environmental Organization

"A fundamental principle for the city with regard to early transfer, is that we will accept no dirty property, without sufficient funds to remediate the property to a standard that will be fully protective of human health and the environment…"- City official

"…the substantial financial and other resources necessary to cleanup bases and privatize land are really not available in the private sector in most cases, particularly where the base often has negative market value."- LRA member

· Importance of information sharing: The disclosing and sharing of all information pertaining to the cleanup is vital in all cases; but it is even more essential with privatization as responsibilities are passed on and new players are brought into the process.

"If I was engaged in such an activity (early transfer), I don't think I would sleep well…the process could be improved by all parties working toward disclosing all they know about the property and sharing plans for addressing future liability and reuse."- LRA

· Does privatization ensure speed and increased efficiency in all cases, while also protecting human health and the environment? A faster and more efficient process for transferring property through coordination of cleanup and reuse are the goals of this exercise. In pursuit of the goal, allowing local entities to undertake the task could be a positive step. However, privatization is not a panacea and would most likely not be successful in all cases. Also, economic realities and funding (as mentioned above) must be duly considered when looking at privatizing cleanup. While some sites may have suitable land value and an appropriate cleanup scenario for transferring the duty to another entity, many sites may not.

"I believe the private sector is in a better position to make the case for risk based cleanup as opposed to pocketbook based cleanup."- LRA member

"Coordination of reuse and cleanup has been the central focus…for five years. It has worked better in some cases than in others, but there can be no doubt that all parties see it as essential to the success of the program."- EPA official

"Cleanup decisions are generally risk based… DOD and the community would be hard pressed to focus on a remediation effort to facilitate redevelopment when there are real health risks not being addressed."- LRA

…It is the position of the city that they can complete the cleanup more efficiently than the Navy…the city is not subject to the whims of Congress and does not need to adopt such a bureaucratic approach towards cleanup…this (city control) would resolve the debate over which regulatory agency takes precedence (since the city is beholden to the state of California) and the city will then be able to perform cleanup and structure development concurrently, saving money…-- LRA member

"(It won't) work in NY State! … no developer would take the risk except for property that has extremely high reuse value, like downtown Manhattan… in upstate New York, no land is worth the combined cost and risk to bring a private developer into the role of cleanup." - LRA member

(For various liability and unique disposal issues)… I am not convinced that privatization and/or early transfer would overcome the slow pace of transfer at BRAC sites nationally." - Non-profit

…since the military is not in the business of providing property to the general public, they are not very efficient at doing so… the military is mission oriented not code oriented…-- LRA member

"If there is a good economic proposition, the local communities and developers will aggressively develop it - e.g. Bergstrom AFB and Orlando NAS… however, at this time most former military installations still would not be a good bet for assumption of cleanup costs or even some fraction of this cost prior to transfer…" - LRA member

B. Effects on community involvement and the public participation process

The entire community is affected by the above concerns and issues. When the responsibilities change, the rules and nature of the process also change. Thus, it is imperative for all parties to be aware of and understand the privatization process and its impacts on their particular site and on the involvement of the community in the process.

· Ambiguity of the community's role in privatization: The community involvement portion of the BRAC process can be a contentious issue. While there are good and bad examples of community involvement programs in the current process, there is at least a guarantee that community involvement and public participation cannot be ignored. Will this still be the case if the cleanup and reuse responsibility is privatized? What guidelines will the new lead entity (whatever it may be) have to follow?

"Can someone tell us (whether) Section 334 requires an LRA or other transferee to fully comply with both CERCLA and NCP public participation and cleanup level requirements?"-Citizen

"Under current federal law and policies…DOD has the responsibility for ensuring that there is community involvement in this process. However, there are no current laws or policies that outline how community involvement will occur if responsibility is transferred to the local reuse agency." - State EPA official

"…it is not clear how the public participation provisions of CERCLA and the NCP would apply to situations at non-NPL sites. The statute does not clearly require that a ROD be finalized before the transfer; therefore, the requirement (for public participation) would not come into play until after the transfer, if at all."- State official

"…unless EPA regulated the cleanup (i.e. an NPL site), the CERCLA citizen suit provision would probably not provide a tool either because the developer wouldn't be subject to requirements under CERCLA."- State official

"…if the cleanup were performed pursuant to state law, there would be some public participation, but it would depend on (each) state's laws and practices."- State official

· Early community involvement/public participation can smooth the process: Streamlining the process through privatization and incorporating reuse plans into the cleanup plan has many advantages. However, while the goal is to speed the process, it is important to remember that time must be taken to do things right in order to save time and money later. Community involvement is one such element. Appropriate time must be spent on this component of the process in order to create a smoother track for progress. Additionally, a common theme is that it is critical to get meaningful community involvement early in all aspects of the decision-making process, instead of simply getting public comment after decisions have been made. Although this takes time, it protects against roadblocks later on and creates a more beneficial process for all involved.

"Community cooperation in privatizing the base cleanup process should begin literally 'at the beginning' with the LRA beginning to understand the environmental conditions on the base and working these conditions into the LRA base reuse plan…Cooperation on cleanup should begin very early in the process- with the community participating as a cooperating agency during the military department draft EIS process."- DOD official

"Meaningful stakeholder and community involvement can only occur where these parties are involved in the cleanup process as early as possible."- State EPA official

"…it is critical to involve the community and the regulators and potential 3rd party developers/insurers early in the process. Rather than a bilateral negotiation between the LRA and the Navy with back-end input from other stakeholders, …these negotiations must be multilateral, with the participation of federal and state regulators and key (community) groups and individuals at an early stage…"- City official

"(The environmental studies and actions took a lot of time)…but at least now the new homeowners …can take some comfort in the fact that their properties should be relatively safe."- Citizen

· Opinions vary on privatization effects: There is confusion over whether shifting the responsibility of cleanup would provide more opportunity for community involvement or less. Again, the level of community involvement may vary depending on who the new lead entity is. While some feel that transferring responsibility to a more local entity would increase meaningful community involvement because local entities are more in tune with community needs, others argue that the local entity might have others interests (i.e. financial return, etc.) which may conflict with community concerns.

"Having local communities take the lead provides more opportunities for public involvement and discussion as the LRA progresses in cleanup and development of the property through required public hearings and workshops."- City Official

"My observation is that the privatization process impacts community involvement negatively… the bottom line stakes are raised for (those) parties which stand to gain development fees and/or other community benefits. This multi-reinforced money incentive has its advantages, but those advantages do not go to public participation or cautious procedure."- Citizen

"To think that an LRA will provide meaningful community input is suspect. At (our) meetings, the public is allowed three minutes to speak at the beginning of the meeting, never comment during the substantive discussions."- Citizen

"I firmly believe that local/state governments are by nature more responsive to community concerns."- State official

"I don't believe the community will go the lengths DOD does in regard to community involvement. However, this may stem from the representative nature of local government and a greater degree of trust, responsibility and accountability from local governments." - LRA member

"Since the LRA's main focus is redevelopment of the site as quickly as possible, they may feel that addressing community concerns may delay the cleanup of the site. They also may not want to be as open with presenting information that could (negatively) affect redevelopment interests." - State EPA official

"You mention being more efficient. That scares me…being more efficient is often the excuse for cutting out the public."- Citizen

· Ensuring the continuity of the community's role: As DOD is still the responsible party in the process, procedures could be enforced in privatization scenarios to ensure the public participation component is entrenched in any transfer.

"My only suggestion is to transfer the public participation process with the transfer in lead agent and have a standard, like FFERDC (the Federal Facilities Environmental Restoration Dialogue Committee), that the recipient must comply with."- DOD official

"My recommendation would be that a public participation plan be part of the application for transfer, and that (the application itself) be subject to public comment. However, only DOD (might) be able to enforce, so the utility of this procedure may be quite limited."- State official

V. Best Practices

Part of our inquiry was to seek examples or best practices either from existing BRAC public participation experiences or from similar areas, such as brownfields and Superfund. Here are a few examples and ideas to consider.

A. BRAC Best Practices:

Openness and inclusion of parties in the decision-making process seem to be themes to many BRAC-related Best Practices.

"Reuse planning and cleanup need to be closely coordinated. It is important that the BCT works with the LRA so the final cleanup levels are protective of planned future uses of the base." - State EPA official

"At a number of bases…RAB community members (have been allowed) to attend BCT meetings to participate in the discussions leading to key cleanup decisions. This proved to be a more effective form of participation than being informed of decisions after they were made."- Environmental group

"Informal meetings between community members and regulators were helpful in building shared understanding of public needs, constraints, etc…"- Environmental group

"The LRA's redevelopment planning process provided for public hearings at each of three phases of the plan preparation, which were well publicized (and attended). Four working committees…provided additional opportunity for input. The RAB …has been effective in educating the public on environmental issues. The BCT has been responsive to the LRA's redevelopment schedule and priorities."- Citizen

…(our) reuse committee preceded the DOD LRA model and seems to be more far-reaching and diverse…the Environmental Cleanup Subcommittee was chaired by the president of the town's "watchdog" environmental organization (helping establish instant credibility with local citizens)…and the city also worked closely with federal and state regulatory agencies…-- Reuse committee (LRA) member

B. Brownfields and Superfund Experiences

As part of our effort, ICMA & CPEO briefly looked at public participation experiences in the cleanup and reuse of primarily brownfield sites. Given the short amount of time, our research is not comprehensive, but it does offer some ideas for DOD to consider as it approaches privatization and its impacts on public participation.

Brownfields redevelopment involves many of the same stakeholders, such as the local government, community groups, property owner and/or developer, lender and environmental regulators. The primary difference is no military parties and no institutional creatures of BRAC (the LRA, BCT, BTC, etc.). The federal government's primary role is providing financial resources and technical assistance through EPA's National Brownfields Partnership Action Agenda. State voluntary cleanup programs form the legal and regulatory framework that public and private developers must operate within. Local governments, on the other hand, play a large role in coordinating and facilitating the stakeholders and the resources. They are also the principal recipients of EPA's array of Brownfields and Showcase Community Pilot Grant programs (along with Revolving Loan and Job Training Pilots).

Against this backdrop, public participation in brownfields redevelopment happens with little regulatory guidance or statutory requirements (unlike BRAC). For example, according to the General Accounting Office, many of those state voluntary cleanup programs have weak or no statutory public participation requirements. EPA, however, does require a public participation plan for the local governments who receive Brownfields Pilot and Showcase Community grant funds (note that if the city is not a brownfields pilot, there is no formal public participation requirement). These plans do provide a framework or strategy on how local governments intend to involve the community in their brownfields pilot activities. Some of the plans also address environmental justice concerns. Last year representatives of both ICMA and CPEO helped the American Society of Testing Materials (ASTM) create its "Standard Guide to the Process of Sustainable Brownfields Redevelopment." The ASTM Brownfields Guide is a consensus document that gives both public and private stakeholders a framework for thinking about brownfields redevelopment. While it is somewhat generic, the ASTM guide rightfully places early community involvement as the linchpin of its process.

For the many cities that have successfully created brownfields programs and/or development projects, they have used a variety of public participation and community involvement strategies. Some of these strategies have been effective, while others have not. While brownfields seems to have a more positive image than BRAC, it too is a complex endeavor that requires an alignment of competing interests and ideas about cleanup and especially reuse. Through their brownfields research, ICMA and CPEO continue to evaluate the issues surrounding community participation and local government involvement and share results so that others can learn from these experiences. What follows are a few thoughts and examples about public participation and community involvement in brownfields redevelopment.

· Dallas Brownfields Forum: The City of Dallas convened a diverse group of primarily private sector stakeholders to help identify possible brownfields projects for redevelopment through the Texas Voluntary Cleanup Program. The group continues to meet regularly on a whole host of brownfields project and policy issues.
· Chicago Brownfields Forum: The City of Chicago is recognized as one of the pioneers in brownfields redevelopment. They now act as both facilitator of private projects and also as their own brownfields developer. As a way to create the initial vision for their program, Chicago (with the facilitation help of the Delta Institute, a non-profit brownfields corporation) convened a citywide collaborative stakeholder process with over 350 people to help identify issues and opportunities.
· Clearwater, Florida: ICMA and CPEO have been working with the city to create a model environmental justice strategic plan for brownfields redevelopment. The city organized a special brownfields task force and convened several community meetings to gather input about brownfields reuse to make it more sensitive to environmental justice concerns. The model plan is now out for comment.
· Isles of Trenton, New Jersey: Isles is a community development organization that involved in brownfields redevelopment. Isles also provides neighborhood level training that educate community stakeholders about brownfields development. The goal is to empower neighborhoods with knowledge about brownfields cleanup and reuse so they can more fully participate in the brownfields projects within their community.

Given the complexity of these multi-party negotiations, some communities seek the help of professional environmental and land use mediators and facilitators. EPA reserves a small amount of its ADR Program Budget for brownfields redevelopment. Currently EPA has 10 ADR pilots (approx. $15,000 per pilot) in progress. Here are two examples of the EPA ADR Pilots:

· New Bedford, Mass: the city hired Susan Podziba (a nationally recognized land use facilitator from MIT) to design and facilitate a city-wide task force and help them prioritize brownfields sites and select two-three sites for environmental assessment and cleanup.
· Shenandoah, VA: the Institute of Environmental Negotiations at the University of Virginia is working with the town on a visioning process to determine the redevelopment plan of a former iron furnace site. They created the Big Gem Advisory Board to engage citizens and the private sector in this large-scale reuse planning effort.

Even in the context of the more complex and contentious reuse of Superfund sites, the use of environmental mediators and facilitators may help.

· Burlington, VT: Independent environmental mediators helped the PRPs, regulators, community, and the local government resolve a long standing dispute over the cleanup and reuse of the former Pine St. Superfund site.
· EPA's Superfund Redevelopment Initiative: As part of the agency's effort to adapt the lessons learned from its successful Brownfields Pilot program, EPA is now soliciting applications from local governments for grants (max. of $100,000) to help spearhead local Superfund redevelopment project. Facilitation is an eligible service under these new grants.