Suggestions for Using the Internet to Build Capacity to Participate in Environmental Protection Agency Activities ©

Introduction

Information Renaissance has studied how the Environmental Protection Agency (EPA) can better use the Internet to build local stakeholder capacity for participating in the agency's activities. Our analysis focuses on four areas: (1) using the Web's interactivity to transform public participation in agency rulemaking; (2) using the web to improve public input into environmental permitting; (3) improving the educational features on federal and state sites; and creating new online tools for citizens to find the types of information that they want more easily.

EPA's present web site already is an excellent resource for the American public but the complexities of environmental law and policy make this a truly challenging area for citizens interested in learning about and participating in the agency's activities. We hope our suggestions will be useful to both the Agency and its stakeholders.

Information Renaissance began working on these issues in 1996 when we designed and implemented the nation's first comprehensive online rulemaking effort [1] before the Federal Communications Commission (FCC).[2] In 1999 we began working with the Environmental Law Institute (ELI) on how to use the Internet to build stakeholder capacity. EPA had asked ELI to study how to enable local communities to participate more effectively in EPA's decision-making activities. ELI prepared a Research Report entitled "Building Capacity to Participate in Environmental Protection Agency Activities: A Needs Assessment and Analysis." This excellent resource, which is posted in the briefing book at our site, provides some background for our analysis but the emphasis of this commentary is different. We are focusing on how agencies can increase public participation by building more interactive web resources.

We think the Internet can transform public participation in the decisions of state and federal environmental agencies. Measures like online rulemaking, which we describe below, should open up participation to groups and interests beyond the Beltway by providing the average citizen with more educational materials and more opportunities to offer their views at key junctures in the decision-making process.

Public libraries will play two key roles in this process. First, they will continue to serve their traditional role as a depository of educational materials for the public. Secondly the public will often use their local library as an interactive gateway to the Internet. In this regard state and federal agencies must build sites that make it easy for both librarians and the public to learn how to participate effectively as online citizens.

Finally and most importantly we want your input. The diversity of environmental law and policy calls provides us with the opportunity to incorporate the best features of the many different state and federal programs. We should work to build an open "architecture" that makes it easy for many more Americans to have their say in the environmental decisions that effect their lives.

Online Rulemaking

At the outset, we want to highlight two innovative ways to build capacity - electronic docket rooms and online policy dialogues. EPA's adoption of such measures would enable groups and individuals located outside the Beltway to participate more effectively in rulemakings and advisory committee meetings.

The mechanics of the informal rulemaking process are simple. The agency publishes a notice of proposed rulemaking in the Federal Register that contains both the text of a proposed rule and a discussion that explains the basis and purpose of the regulatory action under consideration. The notice asks the public to submit comments on the proposal, normally within a 60-day time period. In the final stage, the agency analyzes the submissions and promulgates a final rule that addresses all the material comments on the proposal. Since the heyday of informal rulemaking in the nineteen seventies,[3] opponents and supporters of regulation have warred over the analytical procedures to be used in assessing the costs and burdens of a particular rule.[4] Additional requirements have been imposed, but the notice and comment feature described above remains as the key mechanism for public participation.

Two defects in the present system are noteworthy. First, much of the supporting analysis for a particular rule is only publicly available in the paper docket room at agency headquarters in Washington. Similarly, a paper docket system precludes those living outside the Beltway from viewing the commentary filed on each proposal.[5]

To date, most federal agencies have taken rudimentary steps to utilize the Internet during rulemaking. All proposed and final rules are published simultaneously online and in the Federal Register. In addition, many agencies invite the public to submit comments via email[6] or Web page[7] during a fixed time period that normally runs for thirty or sixty days.[8] But these are circumscribed efforts that preserve the antiquated features of the existing notice and comment process and fail to capitalize on the Web's interactivity.

Our three Internet-based innovations, electronic docket rooms, rebuttal comment periods and online policy dialogues, will transform how the public participates in rulemaking. First, electronic docket rooms make the process far more transparent by allowing participants to view all the commentary on a proposal as it is submitted. As currently conducted, only Washington-based groups are able to monitor the comment submission process in paper docket rooms at agency headquarters.[9] This prevents the public from engaging in a dialogue either with the agency or with other parties to the proceeding. No interchanges can develop that allow views to evolve and thoughts to be refined. Indeed, the process seems to be "carried out ... as much for the sake of appearance" as for the substance.[10]

In contrast, an electronic docket room allows for an interactive discussion to develop. The public can raise questions about the regulatory policies that undergird a particular proposal, and this in turn will enable the agency to explain why it is charting a particular course. But the more significant feature of the electronic docket room is its potential to promote an informed dialogue. Now an interested member of the public will not have to visit Washington to learn what positions other parties are advocating. She can review these materials online upon their submission and exchange views with others. As a result, more nuanced comments will be developed and overall the quality of submissions should improve.[11]

The second aspect of our Web-based reform would incorporate moderated, online policy dialogues into those rulemakings that interest large audiences. This would be an asynchronous format where the participants could engage in a deliberative discourse in contrast to an online chat room.

We conducted just such a discussion when the Federal Communications Commission (FCC) proposed its Universal Service rule under the landmark 1996 Telecommunications Act. Here, the FCC laid out a plan to adopt a cross-subsidy, the e-rate, to finance Internet connections for the nation's schools and libraries. We thought it vital that key beneficiaries of this rulemaking, educators and librarians, learn about the proposal, share their views with one another and most importantly offer their comments to the FCC. Thus we built an electronic docket room and conducted an online seminar during the rulemaking.[12] The discussion was moderated to avoid the rare occasion where an overly heated exchange developed and summarized weekly so those new participants could easily catch up and join in. During this online effort we brought together more than 500 individuals from all 50 states and Puerto Rico.

During the seminar we educated our participants about the policy making process by more fully explicating the regulatory materials. This was an important step, which agencies routinely neglect. Almost invariably, the text of a proposed rule is encumbered with dense layers of statutory and regulatory language that the lay reader has to struggle to master. This "enshrouding" in "technocratic complexities" often makes a rule "inaccessible to public control."[13] An open-ended forum, like our online seminar, allows those interested in the regulatory issues to peel away the layers and gain a greater understanding of the policy problems. Such a process creates a more enlightened public and generates more informed comments for the agency.

Our efforts certainly benefited the FCC, which had to formulate a new program in an area where it had little background. Experienced teachers and librarians, whose voices had not previously been heard, explained how they currently used information technology and offered their thoughts on how this new program should operate. The FCC staff found this input most useful in crafting the final rule.[14]

At present, seven permanent electronic docket rooms have been constructed in scattered corners of the federal bureaucracy. Two independent agencies, the FCC[15] and the Nuclear Regulatory Commission (NRC),[16] have installed good first generation efforts that scan both electronic and postal submissions into a unified docket, as do the Department of Transportation (DOT)[17] and the Food and Drug Administration (FDA).[18,19]

More limited efforts have been made elsewhere in the federal bureaucracy.[20] As the GAO recently noted, partial docketing efforts should be viewed as penny-wise but pound-foolish because the agency cannot achieve the administrative savings from fully using information technology.[21]

Our third reform would institute a two-stage comment submission process to foster a better dialogue between the parties. If rebuttal periods are routinely authorized, the participants can comment on all the submissions made by the other parties and one side will not gain a tactical advantage by submitting its views on the final day, a common practice.[22] As the former Research Director for the Administrative Conference of the United States[23] observes, "[p]ublic comments are much more likely to be focused and useful if the commenters have access to the comments of others. More ample comments benefit the agency, the public, and ultimately the reviewing courts."[24]

Other steps should be taken to improve all these docket rooms.[25] Citizen friendly interfaces must be designed like the web-based system that HHS used during its medical privacy rulemaking. Electronic methods like listserves or Web postings should be used to supplement the passive notification system embodied in the Federal Register.[26]

Better educational resources should be provided. Both the Forest Service and EPA have provided valuable educational resources online at the time they propose a rule. The Forest Service has posted a wealth of materials during its rulemaking on roadless areas.[27] EPA's water office posted an excellent page during the Total Maximum Daily Load Rulemaking that explained the background issues to both the neophyte and the more experienced observer.[28,29] However, EPA does not maintain a docket page that announces which rules are open for comment and no common approach exists on rulemaking so that a citizen has to master a new approach for each media program and for each regional office.

Online Dialogues as Supplements to Advanced Notices of Proposed Rulemaking, Negotiated Rulemakings, and FACA proceedings.

Structured online dialogues can also be used as an adjunct to either an advanced notice of proposed rulemaking or to a negotiated rulemaking. The Federal Election Commission recently asked for public comment on whether it should amend its regulations to govern Internet campaign activity. Many groups have fleshed out positions on this question, and their position papers could serve as a framework for a public discussion of the pros and cons of regulation. Similarly, EPA could create an online dialogue on how to regulate MTBE.

The Internet can also transform the way federal advisory committees operate. These groups provide federal agencies with guidance on general policy matters or regulations and often serve as a "meaningful method for citizen input and interchange."[30] But these committees often run the risk of becoming just "Beltway" phenomena with Washington-oriented memberships and agendas set by Washington-based officials.[31]

The limitations of the current system are well illustrated by EPA's "Drinking Waters Futures Forum." This committee has been charged with studying how to ensure a safe drinking water supply nationwide over the next 25 years and in particular how to provide public water supplies to unconnected small populations. After publishing a notice in the Federal Register in May of 1999, the committee held a one-day public meeting in Washington on this topic.[32] Such an outreach effort is clearly inadequate given the Washington venue and the Register's severe limitations as a notification tool.[33]

Online dialogues could usefully supplement the operations of Federal Advisory Committees. The Food and Drug Administration could easily have folded such an effort into its recent public meetings on the safety of bioengineered foods. With a moderated discussion, the debate could be both civil and deliberative, in contrast to a public hearing full of one-sided diatribes. Online dialogues also moot the criticism that some advisory committees are too dominated by Washington-based groups by reaching a far greater audience outside the Beltway.[34]

In order to make it easy for citizens to participate EPA should establish web pages for each of it FACA committees. There each committee could post all its minutes and its schedule. In addition, the page could contain links to materials submitted by committee members and agency staff to the committee for use during their deliberations. Finally, the page should contain a mechanism for allowing the public to comment on the activities of the committee.

Interactive dialogues can also play a role in other EPA activities. For instance, Region III has been working with the Corps of Engineers, the federal Office of Surface Mining, the Fish and Wildlife Service and the State of West Virginia to develop new policies to control the impact of mountaintop mining. Last year, the United States District Court for Southern West Virginia overturned the state and federal programs authorizing mountaintop removal mining in West Virginia. The Region's web site focused the public on the environmental impact statement that the federal agencies are writing to support new policies in this area. An online dialogue with environmentalists, the coal industry and the state representatives would have usefully supplemented this activity.[35]

Online Permitting

As two leading observers of the agency have noted, permit applications are only accessible if the public travels to a federal, state or local office to examine an application and many groups lack the resources to gather this necessary information.[36] This makes public participation unduly difficult in our new Information age. Posting permit applications online would greatly alleviate this problem.

Posting permit applications online should not impose a burden on the licensor who can easily require the applicant to submit information in HTML, the Web's formatting mechanism. In addition, agencies should use the Internet to improve existing public notification procedures. Instead of just placing legal notices in local publications, an agency can easily use email or bulletin boards to notify existing community organizations of pending applications.[37]

The Net's educational capacity also comes into play here. Agencies can use the Web to make it easier for the public to decipher the complexities in their review and approval functions. By posting guides that explain their regulatory roles in non-technocratic terms, an agency can improve the public's understanding of its mission. This could have a large payoff in the environmental arena where the relevant state or federal agency could amplify and explain the technocratic complexities to a lay audience, thereby remedying a long-term EPA failing.[38]

Next, online databases should be established to help citizens to assess the merits of a particular application. EPA currently maintains a good model; the air program has a clearinghouse that lists technology determinations made in issuing permits under the Clean Air Act.[39]

The Web also can play an additional role. The informational resources on the Net enable citizens to increase the technical sophistication of their comments. As an example, online air quality models are now available that permit groups to contest the technical simulations offered by the applicant. This in turn should promote a more thorough review of the application by the licensor.[40]

Business interests will probably oppose such efforts, but these steps are essential in leveling the playing field. Large law firms and consultants that guide companies in administrative licensing matters routinely maintain these types of materials in their files.[41] The Web can cheaply and efficiently provide the public with similar resources and such archives should be created now.[42]

Similar steps can be taken under Superfund and RCRA; draft remedial plans can be posted online and citizens can be asked to comment on the particular measure.

Process Education

EPA's web site has made great strides in educating its stakeholders, but given the challenges of environmental law and policy this task will continue to be an extremely difficult one for the agency. In the following section we have some additional thoughts on utilizing the Internet as a principal vehicle for educating the agency's local stakeholders. We have inserted page references to the ELI Report for those who wish more background on a particular topic.

Process Education. Educating stakeholders about how to participate in EPA activities should begin on the Agency's web site with an explanation of how citizens can participate in the rulemaking, permitting, and enforcement processes both generically and programmatically. In addition, EPA should develop a web function that explains which programs it administers directly and which programs it has delegated to the states. Pointers to the relevant state sites should be included. EPA has provided similar resources for small businesses but the average citizen can be just as mystified by the complex maze of laws and regulations.

Stakeholder Assessments of EPA's Web Site. Local stakeholders should be asked to assess EPA's current efforts in providing explanatory information online. "Concerned Citizens Web Resources" exist for Regions 1,2,6 and 8 and for the Water, Pesticides, Solid Waste, Superfund and Enforcement programs. http://www.epa.gov/epahome/citizen.htm. While much of the information on these Web pages may not meet the stakeholders' needs, some of it surely does and their evaluation of what is useful should be very helpful in developing useful templates for disseminating material.

Templates and Online Guides. At page 10 of the ELI Report l there is a request for fact sheets or "one-pagers" written in layperson's language explaining national rules. This is a perfect web function. Such templates should be developed on a variety of issues and could be modified by the Regional offices where appropriate. It would be useful to have an assessment of EPA's current efforts by asking local stakeholders to evaluate the materials that the Agency released when it proposed its new Total Maximum Daily Load rules this past summer. These materials not only attempted to explain the proposed rule but also sought to educate the public about the water quality planning process in each state.

Online Workshops and Streaming Video. EPA should develop two types of resources in this area. First EPA should develop step-by-step mechanisms for teaching stakeholders how to learn statutory and regulatory basics on the web. EPA should also begin to develop an online library of lectures as broadband access expands. Some existing training materials for inspectors and new employees should be made available to local citizens that want to learn more about environmental programs and processes. EPA could also use videotaped lectures to spoon feed the necessary background material. These could be made available through Regional offices and state and local environmental agencies

Online Guides. EPA should develop an analog to the small business sector notebooks for local stakeholders. Just as it disseminates materials for gas station owners on their generic environmental problems, EPA should develop guidebooks that address the common concerns of local stakeholders. The Agency could ask existing local groups to write, "how we learned the basics" pamphlets; these could cover topics on how to participate in permitting activities under the Clean Air and Water Acts or how to comment meaningfully on a Superfund ROD. This would allow the more sophisticated groups to convince the neophytes that they must master the substance if they want to be a player. Like the small business sector notebooks these materials should be posted on the Web.

Improved Online Tools

New Online Tools. Admittedly, EPA's Web site can overwhelm a neophyte with data. The big problem is creating the tools for citizens to learn about features of the particular regulatory program that they are interested in. Creating the appropriate tools for stakeholders to comprehend the statutory and regulatory universe more easily should be the principal focus of any capacity building project. This will not only level the playing field for activists squaring off against the regulated, but over time it should increase the value and effectiveness of citizen input to EPA and the states.

Drop-down Dictionaries. A simple improvement would be creating an online dictionary on a pull-down menu that would mimic the Thesaurus feature on Microsoft Word. This would easily allow the reader to understand the technical terms embedded in the document or the data; it could also decode the multitude of acronyms. While the present site does have a dictionary feature, it has two drawbacks. It is not easy to find and sometimes it is missing an acronym.

Frequently Asked Questions. More FAQ features could be installed to explain programs to a lay audience. As we suggest in item 2, we think stakeholders should be asked to assess EPA's current online outreach efforts and their input could suggest where improvements like this should be made.

New Search Engines. A redesigned set of search engines should be provided to work better for less sophisticated audiences. Thought should be given to whether a design like Google would provide more useful data for local stakeholders using the site.

Hotlines. ELI suggested a new generic citizen hotline in its Report. [pages 21-24] One of us has been a satisfied customer of the RCRA Hotline but we have trouble envisioning this as a successful model for citizens. A neophyte can't be successfully educated about an environmental problem on a hotline. We have an alternative suggestion. Rather than provide a new generalized hotline, we would suggest that EPA provide an information hotline for citizens groups where the staff could help the citizens obtain useful data online. For instance if local citizens were concerned about a company plans to build a new coke plant, they could call the hotline and the staff could suggest that they read the iron and steel sector notebook which would serve as an excellent introduction to the industry and its environmental problems. By having a trained staff perform a search for materials on the EPA site, the agency could maximize the dissemination of information to groups that are less sophisticated.

Online Models. The Internet allows citizens to easily use online models to review or challenge a particular complex environmental analysis. For instance the Web allows a local group to challenge a power plant's air quality models by doing alternative runs very cheaply. This is an important tool whereby more sophisticated stakeholders can use the Web to level the playing field.

Improved Access to Agency Databases. At present, the general public has to register and pay a fee to obtain access to EPA's enforcement database, IDEA. Because much enforcement data is "FOIABLE" this restrictive approach does not seem defensible as a roadblock to citizen access to a facility's enforcement history. In assessing the Agency's site, it appears some programs have gone further than others in providing access to their databases. In particular, the Air program has done an excellent job in providing access to its TTN and AIRS networks. We think the national NGOs should be surveyed to determine what gaps need to be filled.

Improved Listing of Databases and Compliance with E-FOIA. EPA should maintain a list of its private databases that the public can view. In addition the agency should take the necessary steps to comply with the "frequently requested document" provisions of E-FOIA,

Increasing Data Availability and Improving Networks [pages 34-38]. First, we would note that EPA has built an excellent Web site in terms of providing the public with a wealth of environmental information and data. With this as a base, it will be much easier to build a site that will enable local stakeholders to participate more effectively in Agency activities. Secondly, we strongly agree with those stakeholders that viewed the Internet as "the most powerful of capacity building tools" and we agree that EPA should support the development of networks for sharing and disseminating information.

At a regional level EPA should encourage the development of networks linking universities, the NGOs and local stakeholders on a statewide and regional basis. The emphasis here should be broader than capacity building and should include a focus on maximizing the interpretation of environmental data by universities and planning bodies. Better access to this type of interpretive data will help build the capacity of local stakeholders by providing more approaches to data analysis.

Grants to Community Groups and NGO Networks. EPA should consider providing computers to local groups and connecting such groups on a statewide or a Region wide basis. This would certainly improve group leaders' access to documents. Additional consideration should be given to whether or not EPA should fund a network designed to disseminate information between Washington environmental groups and the grassroots.

The Digital Divide. The wiring of schools and libraries offers the cheapest and best way to provide the maximum amount of information and educational resources for low-income and minority communities. In addition, access problems can be partially addressed by EPA and the states focusing their activities on ensuring Web access in inventive ways. States can provide citizens with Web access at local offices. EPA could require PRPs to provide Web access at a Superfund site. In addition EPA and the states can run classes locally for stakeholders on how to use their Web sites to gain information. Finally it may be productive to explore some of the ideas at ACCESS AMERICA at http://gits.gov/.

Improving Access to State and Federal Documents. The Internet is an ideal tool for assuring document availability to a wide audience and EPA has used the Web well as a distributional tool. At 41, ELI raises the concern that many documents may need to be written in non-technical language but more templates, better search engines, more FAQs and dictionaries should partially ameliorate this problem. In contrast to the federal model where a citizen can find the relevant federal laws, regulations and policies on the EPA site, many states have not replicated this function on their Web sites. EPA should require all states administering federally approved environmental programs to post their laws, regulations, policies, guidelines and handbooks on their Web sites. In addition, the environmental monitoring data that states collect can easily be posted. EPA could also require states to provide routine categories of information on their web pages as a condition for receipt of a program grant. EPA could also consider programmatic rule changes in provisions like 40 CFR Part 51 if they choose not to condition grants. Lastly, most of this material would already be available on the states' Intranets or in computerized files.

E-mail and Listserves

E-mail should receive greater emphasis. Regional Offices and EPA headquarters should routinely use email to notify citizen groups about matters of interest to them. This could be done as a listserve function. EPA should have a standard solicitation questionnaire that would allow a group to select what types of information it wishes to receive. EPA should also explore what makes some lists active and successful. For instance, any subscriber to the nonpoint source list has to be impressed by the scope and variety of comments.

Local Stakeholders and Email. Acceptance of email notification should be growing amongst local stakeholders. This past September the New York Times reported that a leading community activist in Philadelphia found that participants notified by email were more likely to attend mass meetings than those reached through print even where the print notification reached a broader audience than the email. See http://www.nytimes.com/library/tech/99/09/circuits/articles/02libe-comm.html.

Timing of Public Hearings and the Perceived Futility of Public Participation. EPA should consider modifying its permitting regulations that routinely mandate that the public hearing be held when the draft permit is ready to issue. Public hearings should occur earlier in the permitting process before the Agency becomes invested in a particular approach to a problem. Citizens know when they look at a draft permit that they no longer have a great opportunity to influence the process. The public hearing should be held once the application is deemed complete, if not earlier. Unfortunately EPA's permitting regulations impose a uniform approach to this issue and preclude states from holding early hearings that would provide the public with more opportunity to influence outcomes.

NOTES

August 2000

rdc@info-ren.org
bhb@info-ren.org

 

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