[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Notices]
[Pages 59837-59840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25749]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6882-8]


Policy on Alternative Dispute Resolution

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: This document publishes the draft final policy of the United 
States Environmental Protection Agency (EPA) regarding the use of 
alternative dispute resolution (``ADR''). The Agency is requesting 
public comment on this draft document. This document replaces the 
Interim Statement of Policy on Alternative Dispute Resolution (65 FR 
13383) which was issued on March 13, 2000.
    The draft final policy is published in the Federal Register to 
affirm EPA's commitment to the use of ADR in Agency activities. The 
draft final policy discusses the types of situations in which ADR 
should be considered, how EPA is organized to support ADR, 
confidentiality of information in ADR processes, efforts to promote a 
commitment to and awareness of ADR within the Agency, and how the 
success of ADR will be measured. Nothing in this document creates any 
right or benefit by a party against the United States.

DATES: Comments must be submitted on or before December 5, 2000.

ADDRESSES: Please address comments to W. Robert Ward, Dispute 
Resolution Specialist, by mail at Conflict Prevention and Resolution 
Center, U.S. EPA, Ariel Rios Building, 1200

[[Page 59838]]

Pennsylvania Avenue, NW., (MC 2310A), Washington, DC 20460. Comments 
sent by overnight delivery services or by courier should be addressed 
to W. Robert Ward, Conflict Prevention and Resolution Center, U.S. EPA, 
Ariel Rios Building, Room 6330F, 1200 Pennsylvania Avenue, N.W. 20004. 
Comments may also be submitted by fax at (202) 501-1715, or by e-mail 
at <a href="/cdn-cgi/l/email-protection#bccbddced892ced3ded9cec8fcd9ccdd92dbd3ca"><span class="__cf_email__" data-cfemail="fb8c9a899fd58994999e898fbb9e8b9ad59c948d">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: W. Robert Ward, Dispute Resolution 
Specialist, U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, 
NW., (MC 2310A), Washington, DC 20460; (202) 564-2922; 
<a href="/cdn-cgi/l/email-protection#9deafceff9b3eff2fff8efe9ddf8edfcb3faf2eb"><span class="__cf_email__" data-cfemail="6710061503491508050215132702170649000811">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This draft final policy is consistent with 
the Administrative Dispute Resolution Act of 1996 (Pub. L. 104-320, 
Oct. 19, 1996, 5 U.S.C. 571-583), which requires, in part, that each 
federal agency adopt a policy that addresses the use of ADR. It is also 
consistent with provisions of the Civil Justice Reform Act (Pub. L. 
101-650, Dec. 1, 1990, 28 U.S.C. 471-482), the Alternative Dispute 
Resolution Act of 1998 (Pub. L. 105-315, Oct. 30, 1998, 28 U.S.C. 651-
658), the Regulatory Negotiation Act of 1996 (Pub. L. 104-320, Oct. 19, 
1996, 5 U.S.C. 561-570); the Federal Acquisition Streamlining Act (Pub. 
L. 103-355, Oct. 13, 1994, 41 U.S.C. 405); the Contracts Disputes Act 
(41 U.S.C. 601-613); Executive Order 12988, ``Civil Justice Reform,'' 
February 5, 1996; Executive Order 12979, ``Agency Procurement 
Protests,'' October 25, 1995; the Federal Acquisition Regulation (48 
CFR 33.204); Equal Employment Opportunity Commission regulations (29 
CFR part 1614); Presidential Memorandum, ``Designation of Interagency 
Committees to Facilitate and Encourage Use of Alternative Means of 
Dispute Resolution and Negotiated Rulemaking,'' May 1, 1998; and the 
Report of the National Performance Review, ``Creating a Government that 
Works Better and Costs Less,'' September 7, 1993.
    On March 13, 2000, EPA published an Interim Statement of Policy on 
Alternative Dispute Resolution in the Federal Register. The document 
published today supercedes and replaces the Interim Statement of 
Policy. EPA requested public comment on the Interim Statement of Policy 
as input for the development of this draft final policy. The Agency 
received one comment in response to the Interim Statement of Policy. 
The comment was generally supportive of the application of ADR in the 
environmental arena. It included suggestions regarding the 
qualifications for neutral third parties selected to assist in 
resolving complex environmental disputes. It also supported the concept 
of flexible ADR techniques, including the use of minitrials in 
appropriate circumstances. The draft final policy does not address 
neutral third party qualification criteria explicitly, although the 
Agency recognizes that the success of an ADR proceeding often depends 
upon the selection of a neutral third party with the correct 
combination of background, skills, and experience for the particular 
matter. The Agency chose not to establish neutral third party 
qualification criteria in the context of the draft final policy because 
this policy is intended to apply to a wide range of ADR activities. The 
Agency believes that desirable qualification criteria may differ based 
on the type of dispute, the participating parties, and the type of ADR 
technique being used. With regard to the use of minitrials and other 
flexible ADR techniques, the draft final policy explicitly authorizes 
the use of minitrials among a variety of ADR techniques.

EPA Policy on Alternative Dispute Resolution

Purpose

    The U.S. Environmental Protection Agency (EPA or the Agency) 
strongly supports the use of alternative dispute resolution (ADR) to 
deal with disputes and potential conflicts. ADR refers to voluntary 
techniques for preventing and resolving conflict with the help of 
neutral third parties. Experience within this Agency and elsewhere 
shows that ADR techniques for preventing and resolving conflicts can 
have many benefits including:
    <bullet> Faster resolution of issues;
    <bullet> More creative, satisfying and enduring solutions;
    <bullet> Reduced transaction costs;
    <bullet> Fostering a culture of respect and trust among EPA, its 
stakeholders, and its employees;
    <bullet> Improved working relationships;
    <bullet> Increased likelihood of compliance with environmental laws 
and regulation;
    <bullet> Broader stakeholder support for agency programs; and
    <bullet> Better environmental outcomes.
    ADR techniques can be effective in both internal Agency 
disagreements and external conflicts. ADR allows the Agency to have a 
more productive work environment and to work better with State, Tribal, 
and local governments, the regulated community, environmental and 
public health organizations, and the public. This policy is intended to 
be flexible enough to respond to the full range of disputes EPA faces, 
and to achieve these objectives:
    <bullet> Promote understanding of ADR techniques;
    <bullet> Encourage routine consideration of ADR approaches to 
anticipate, prevent, and resolve disputes;
    <bullet> Increase the use of ADR in EPA business;
    <bullet> Highlight the importance of addressing confidentiality 
concerns in ADR processes;
    <bullet> Promote systematic evaluation and reporting on ADR at EPA; 
and
    <bullet> Further the Agency's overall mission through ADR program 
development.

What Does EPA Mean by the Term ``ADR''?

    EPA adopts the definition of ADR in the Administrative Dispute 
Resolution Act of 1996 (ADRA): ``Any procedure that is used to resolve 
issues in controversy, including but not limited to, conciliation, 
facilitation, mediation, fact finding, minitrials, arbitration, and use 
of ombuds, or any combination thereof.'' 5 USC 571(3). All these 
techniques involve a neutral third party. Depending on the 
circumstances of a particular dispute, neutrals may be Agency employees 
or may come from outside EPA. Typically, all aspects of ADR are 
voluntary, including the decision to participate, the type of process 
used, and the content of any final agreement.

In What Types of Situations Does EPA Encourage the Use of ADR?

    EPA encourages the use of ADR techniques to prevent and resolve 
disputes with external parties in many contexts, including 
adjudications, rulemaking, policy development, administrative and civil 
judicial enforcement actions, permit issuance, protests of contract 
awards, administration of contracts and grants, stakeholder 
involvement, negotiations, and litigation. In addition, EPA encourages 
the use of ADR techniques to prevent and resolve internal disputes such 
as workplace grievances and equal employment opportunity complaints, 
and to improve labor-management partnerships.
    While ADR may be appropriate in any of these contexts, the decision 
to use an ADR technique in a particular matter must reflect an 
assessment of the specific parties, issues, and other factors. 
Considerations relevant to the appropriateness of ADR for any 
particular matter include, at a minimum, the guidelines in section 572 
of the ADRA and any applicable Agency

[[Page 59839]]

guidance on particular ADR techniques or ADR use in specific types of 
disputes. ADR program staff at EPA headquarters and in the Regions can 
help the parties assess whether and which form of ADR should be used in 
a particular matter.

How Is EPA Organized To Support ADR?

    EPA's Conflict Prevention and Resolution Center (CPRC) in the 
Office of General Counsel (OGC) provides ADR services to the entire 
Agency. The Agency's Dispute Resolution Specialist, designated under 
the ADRA, is the head of the CPRC. Because the Dispute Resolution 
Specialist's responsibilities include development and implementation of 
all Agency ADR policy, Headquarters Offices and Regions are expected to 
coordinate with the CPRC from the earliest stages in developing any 
program-specific ADR guidance and in addressing issues during ADR 
policy implementation. The CPRC also will administer Agency-wide ADR 
programs, coordinate case management and evaluation, and provide 
support to program-specific ADR activities. Building on existing ADR 
efforts at EPA, the CPRC assists other Agency offices in developing 
effective ways to anticipate, prevent, and resolve disputes, and makes 
neutral third parties more readily available for those purposes.
    Other EPA offices, including the Office of Enforcement and 
Compliance Assurance, and the Office of Administrative Law Judges, are 
using ADR to resolve conflicts between the Agency and regulated 
entities. The Office of Policy, Economics and Innovation and the Office 
of Cooperative Environmental Management, in partnership with many EPA 
program offices, use ADR to provide opportunities for stakeholders to 
contribute to the design of Agency actions that affect them.
    EPA Regions have ADR programs that meet their particular needs. For 
example, in some cases, EPA Regions have identified staff experts to 
coordinate workplace, enforcement, and other ADR activities. EPA 
Regions have also used internal and external neutral third parties to 
foster stakeholder involvement, resolve workplace disputes, help in 
organizational problem-solving, and mediate enforcement cases. The CPRC 
will continue to provide support to existing Regional ADR programs and 
is available to help in developing new ADR efforts.
    Anyone interested in exploring the possibility of ADR in an EPA 
matter can contact the CPRC, a Regional ADR program, or a program 
office with an established ADR function for information and assistance 
regarding mechanics, process design, or advice on what to expect from 
an ADR process.

How Should Confidentiality Be Handled in ADR Processes?

    A thorough discussion of confidentiality is often critical to 
success in ADR. It is EPA's policy to maintain confidentiality in ADR 
processes consistent with the ADRA and other applicable law. Section 
574 of the ADRA reflects a balancing of the need for confidentiality in 
ADR with the dual goals of open government and effective law 
enforcement. Other federal laws may impact the confidentiality of 
information in specific cases, potentially compelling disclosure or 
enhancing protection against disclosure (e.g., Inspector General Act, 
Freedom of Information Act, Privacy Act). The CPRC can provide further 
information on authorities that may impact confidentiality in a federal 
ADR process.
    The confidentiality needs and concerns of the parties must be 
discussed early in every ADR process. EPA staff, the parties, and the 
neutral third party should be aware of how confidentiality operates in 
the context of federal ADR. Within this context, the parties and the 
neutral third party should work together to establish a common 
understanding of how confidentiality protections apply in a specific 
process. In most cases, this understanding should be recorded in a 
written confidentiality agreement. This initial work will benefit all 
parties by clarifying expectations regarding confidentiality before 
full initiation of the ADR process.

How Will EPA Promote Commitment to and Awareness of ADR Within the 
Agency?

Information Sources
    The CPRC, in consultation with Agency program offices and Regions, 
will compile existing information and develop additional information on 
ADR practice at EPA and will make this information available to EPA 
personnel through a website and through the CPRC. Information may 
include model agreements to mediate, case selection criteria, 
descriptions of ADR processes, mechanisms for accessing external 
neutral third parties, case studies, guidance on confidentiality and 
evaluating ADR processes, directories of EPA ADR contacts, 
bibliographies, and links to external sources of information.
Training
    The Agency strongly encourages all EPA personnel to learn about 
ADR. Training is crucial not only for those selected to serve as in-
house neutrals, but also for negotiators and others who need to 
understand how ADR can enhance negotiation and agency decision making. 
The Dispute Resolution Specialist will identify and recommend relevant 
ADR training. Training sources may include existing EPA training 
programs, training sponsored by other agencies, newly developed 
courses, and commercially available training.
    This policy affirms a goal of EPA's Labor/Management Partnership 
Strategic Plan (Spring 2000) to train line managers, first line 
supervisors, Federal union representatives and other employees in 
consensual methods of dispute resolution such as ADR and interest-based 
negotiation. Finally, the Agency will add skills in negotiation and 
alternative dispute resolution to its inventory of desirable management 
characteristics used to prepare and select managers for the Senior 
Executive Service.
Mentoring
    The Agency encourages those with ADR experience to share their 
expertise with other Agency personnel. Mentoring and apprenticing can 
strengthen EPA's ADR program by expanding the number of staff with ADR 
skills, increasing opportunities to practice ADR techniques, and 
providing for exchange between more and less experienced ADR 
professionals.
Funding
    Costs associated with ADR processes, including fees for external 
neutral third parties, are typically paid in whole or in part by the 
sponsoring EPA office. Depending on the circumstances, other parties or 
offices also contribute. The Agency expects each program office at 
Headquarters and each Region to demonstrate a commitment to ADR by 
making funds available for ADR processes.

How Will EPA Measure the Success of Its ADR Programs?

    Many federal agencies have shown significant time and money savings 
from the use of ADR and have received intangible benefits such as 
improved relationships and broader stakeholder support for their 
programs. Evaluation is an important way to identify these savings and 
benefits and is key to systematic improvement of ADR programs. Through 
evaluation, EPA is committed to measuring the success of

[[Page 59840]]

its ADR programs and continually improving them to better meet the 
needs of EPA offices, Regions, and external stakeholders.
    Several EPA offices and Regions have already evaluated their ADR 
efforts. To build on these evaluations and to strengthen the evaluation 
component of ADR practice across the Agency, the CPRC, consulting with 
internal and external stakeholders, will develop an evaluation system 
for ADR at EPA. The evaluation system will include goals and both 
qualitative and quantitative measures of success.

Where Can I Get Additional Information or Help With ADR at EPA?

    Additional information on ADR contacts within EPA, topics covered 
in this policy, and others, may be obtained from the CPRC at (202) 564-
2922.

What Is the Legal Authority for this Policy?

    This policy satisfies the requirement of the Administrative Dispute 
Resolution Act of 1996, 5 U.S.C. 571-583, that each federal agency 
adopt a policy that addresses the use of ADR. The policy is also 
consistent with the following federal statutes, regulations, and 
orders:
    <bullet> Regulatory Negotiation Act of 1996, 5 U.S.C. 561-570
    <bullet> Civil Justice Reform Act, 28 U.S.C. 471-482
    <bullet> Alternative Dispute Resolution Act of 1998, 28 U.S.C. 651-
658
    <bullet> Federal Acquisition Streamlining Act, 41 U.S.C. 405
    <bullet> Contracts Disputes Act, 41 U.S.C. 601-613
    <bullet> Federal Acquisition Regulation, 48 CFR 33.103 & 33.204
    <bullet> Federal Sector Equal Employment Opportunity Regulations, 
29 CFR part 1614
    <bullet> Civil Justice Reform, Executive Order 12988, 61 FR 4729 
(Feb. 5, 1996)
    <bullet> Agency Procurement Protests, Executive Order 12979, 60 FR 
55171 (Oct. 27, 1995)
    <bullet> Presidential Memorandum, ``Designation of Interagency 
Committees to Facilitate and Encourage Use of Alternative Means of 
Dispute Resolution and Negotiated Rulemaking,'' May 1, 1998

Request for Public Comment

    The Environmental Protection Agency invites public comment on this 
draft document. Comments should be received by December 5, 2000.

    Dated: September 29, 2000.
Carol Browner,
Administrator.
[FR Doc. 00-25749 Filed 10-5-00; 8:45 am]
BILLING CODE 6560-50-P


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