Best Practices for Permitting and Policy

[Alan Strasser <astrasser@hazmed.com>]

Good morning?well, at least to some of you! My apologies for this late introduction. I am Alan Strasser, Senior Policy Analyst/Facilitator at HAZMED, Inc. I have advised EPA on the Public Involvement in Environmental Permits: A Reference Guide report and on a forthcoming action plan. These reports were based on extensive consultation (e.g,. over 55 interviews and public meetings in DC and Houston) with some of my fellow panelists or their associations (e.g., Charlie Atherton and American Chemistry Council), including environmental groups(such as NEJAC) state groups (including ECOS), and federal, state, and local permit writers.  My experience also includes having co-facilitated several major negotiated rulemaking processes and several site-specific meetings regarding superfund and brownfields while at The Mediation Institute. Consequently, I speak as a third-party neutral, who has been informed by working with the entire range of environmental interests.

I would like to begin by focusing on best practices in permitting and public policy decisions. Given my experience as a mediator, I will also reflect on some comments made during yesterday's session on collaborative processes. My comments will address more controversial situations since I agree with Marci Kinter of SGIA (7/17) that while public involvement needs to be widely available, given the current availability of agency resources, there does need to be a balance between risk addressed and resources available.  While citizens may perceive that their concerns are considered too late in the process and that they do not have the tools to participate effectively, permittees are often concerned about requirements that must be met even when there may be minimal impact.  The challenge is to create a mechanism where issues that warrant community input are identified early and effectively and are addressed without unduly burdening the rest of the system. Some of this perhaps, can be addressed through tailoring the process to the individual situation (see convening discussion below). Therefore, I will focus on the more controversial issues with high risk, though I appreciate that Charlie Atherton and others may contend that determining how much participation is enough is, indeed, a "slippery slope." 

First, there is a relationship between what the best practices are and the public's capacity to participate in a given process. For example, both Debbie Dalton of EPA (7/16) and David Clarke of ACC (7/17) discuss best practices. I agree with Debbie that an essential best practice is that of a "convening" to determine the interests and major issues at stake, the means for stakeholder involvement, and the process of reaching widely endorsed, final decisions. Congress deemed this a best practice when it passed the Negotiated Rulemaking Act (5 USC. secs. 581-590). Unfortunately, in the last 8 years, EPA has done no negotiated rulemakings and tended to shy away from other processes that explicitly have the goal of resolving issues and making decisions that augment the administrative process. Instead the agency has relied far more on listening sessions and dialogues, including the Common Sense Initiative. Surprisingly, both industry and environmental interests have reported that there are so many such dialogues that there is the problem of determining what venues will lead to important decisions. Others refer to stakeholder "burnout," while others feel the agency has unfairly raised expectations that are not met when issues are not addressed, leading to trust issues. Some industry observers have stated that they seek participation to influence final decisions in order to lower transaction costs; hence, they support a negotiation model in some circumstances. The abundance of dialogues, as opposed to decision-making bodies becomes a more difficult issue for environmental/community groups who have a limited amount of resources and need to know whether their participation in a given process will lead to a decision they can live with. Otherwise, if a collaborative forum does not address their needs, they will want to reserve resources for administrative/legal actions. 

For example, one best practice, acknowledged by David Clarke, is the use of community advisory panels, also known as community advisory groups (CAGs). I believe that many of ACC's members utilize such groups to provide useful input to facilities. Having co-facilitated an innovative consensus-based CAG in Region I, I know these processes can be time intensive, but are incredibly powerful tools in addressing major concerns over data that underlies complex, technical decisions.  Many environmentalists, however, are suspicious of CAGs.  For example, many parties stated that CAGs are often not deemed to be credible decision-making or advisory bodies since too often, they are organized and controlled by industry.  More cynical community activists have stated that these industry-led CAGs were not set up to make decisions but to help industry determine "what activists are thinking."  Moreover, even if the groups are not biased, the community groups are at a distinct disadvantage due to the lack of resources or capacity to participate effectively. Funding shortfalls for TOSC and other technical assistance to enable participation in CAGs, however, has been described by many community members as the "most serious issue facing communities." There is a broad consensus among environmental, industry, and agency representatives that a substantial increase in the use of Technical Outreach Services for Communities (TOSC) and the like would be a constructive step in addressing this concern. Providing impartial experts with community roots can provide educational and technical support to build community capacity to facilitate informed decision-making. 

Another major improvement in current practice, which is broadly supported by all permitting parties is an increase in training for regulators on required public involvement activities and non-required best practices. The agency also received support for holding trainings for the public. For instance, training in Title V permitting issues has been well received by the public. Also, recent RCRA Corrective Action trainings have included interested private sector and public participants. Surely, such trainings, whether single or multi-media in nature, increase opportunities to collaborate on the complex issues raised by permitting and policy decisions.  

I look forward to any comments or questions.


Thanks,
Alan