A Five-Step Plan to Improving Regulatory Relationships
To solve environmental challenges within the current regulatory framework the Department of Defense, environmental regulators, and industry must communicate honestly, understand root conditions and prioritize environmental activities—all sometimes easier said, than done.
By Ken Powell, PG, and Doug Gilkey, M.SAME
Stakeholders must become familiar with all of the regulatory policies that dictate environmental investigation and remediation, and must be willing to compromise as needed to achieve the goals of the project. PHOTOS COURTESY KLEINFELDER
The Environmental Restoration Program within the Department of the Navy has a mission to deliver sustainable, innovative, cost-effective remediation solutions to protect human health and the environment, maintain regulatory compliance, and maximize the reuse of Department of Defense (DOD) assets to support the warfighter. With increasingly difficult sites contaminated by years of military activities, engineers must find innovative technical solutions within an ever-constraining regulatory framework of limited budgets and evolving environmental standards. These all are often beset by poor communication. Consensus building between engineers and regulatory agencies to agree on remediation solutions is often challenging and at times adversarial.
However, there are effective tactics that DOD representatives can deploy when navigating the high-stakes regulatory environment while streamlining the remediation process. In addition to site knowledge and superior technical skills, frequent negotiations, strong and effective leadership, and establishing buy-in and accountability can help mitigate these challenges. Frequent project meetings establish ownership in the project development process and allow for a more productive exchange of ideas than simple written comments, followed by written responses. Project meetings present a forum for stakeholders to openly discuss challenges and develop mutually acceptable solutions.
Engineers using these techniques find themselves in a stronger position to develop streamlined site programs, and are at an advantage when addressing other issues such as litigation, regulatory fines, and other unforeseen risks. Often, the relationships formed through these techniques foster creativity, which can lead to consensus and accountability on the selected remedy.
With increasingly difficult sites contaminated by years of military activities, engineers must find innovative technical solutions within an ever-constraining regulatory framework of limited budgets and evolving environmental standards.
Engineers understand that DOD environmental programs require sustainable, innovative and risk-based solutions. They also understand that success requires profound technical understanding of a site’s historical uses, contaminants of concern and future use scenarios. This understanding is a prerequisite for developing sound remediation strategies. However, regulatory agency requirements for performance standards and closure are not always in sync with the military’s desired solutions. What is often missing is consensus between all parties prior to, and during, the investigation and subsequent document development processes. Data results may dictate one course of action—but will it meet the regulatory requirements of the city, state or region? It makes sense to establish accurate assumptions and points of departure early and continuously by meeting with stakeholders throughout the project lifecycle.
Frequent meetings and negotiations provide opportunities to manage risk for all involved parties. In essence, stakeholder negotiations and shared decision making is a consensus-building process in which DOD representatives work together with local government officials to develop a plan for environmental investigation and remediation efforts that follows sites through the closure process.
Though frequently misunderstood, the relationship between DOD and regulatory agencies is often the most important enactor of change on an installation. Relationships are guided by various laws and policy documents, including:
- Title 40 Code of Federal Regulations (CFR) Part 300
- Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERLCA)
- Superfund Amendments and Reauthorization (SARA)
- Defense Restoration Environmental Restoration Program (DERP)
- National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
- 2002 Military Munitions Response Program (MMRP)
- Various state and local agency policies and guidance documentation
The ability to investigate, remediate and close environmentally impacted sites requires significant coordination between stakeholders, each with their own interests, policies and relationships. Depending on the project, the number of individual stakeholders can vary dramatically.
Take, for example, a high-profile $1 billion cleanup currently underway on the West Coast. Stakeholders include the U.S. Environmental Protection Agency, the regional water quality board, state-specific regulators including the California Department of Toxic Substances Control and California Department of Fish and Wildlife, various public interest and environmental groups, representatives from the city, and various internal DOD groups.
On a high-interest project like this, interested stakeholders can make quite the crowd. While proponents claim that shared decision-making improves quality, reduces transaction costs and increases acceptance, critics contend that the process inhibits agencies to execute its delegated functions. Some have gone so far to argue that consensus-based decision-making of this sort is, for this reason, fundamentally flawed.
Stakeholders must become familiar with all of the regulatory policies that dictate environmental investigation and remediation, and must be willing to compromise as needed to achieve the goals of the project.
BENFITS OF RELATIONSHIP BUILDING
Despite the wide range of opinions, consensus-based decision making can be extremely beneficial not only to the installation but to the community as a whole. In order to communicate effectively with the regulatory agencies, here are five best practices to help engineers ensure that their regulatory negotiations maximize the strengths and resources of all stakeholders involved:
1. Define your strategy and acceptable outcomes prior to negotiating. Beginning successful negotiations should always start with an internal planning session to define strategy and approach. Finalized documents should be reviewed before all parties come to the table. During this time, it is important to identify all of the issues that could be covered and to prepare a list of desired outcomes. The list should include:
- Understanding and agreement on the long-term goal and mission;
- Cost and value of alternative solutions;
- Long-term plan for the site (redevelopment, selling it to the local municipality, or non-action);
- Acceptance of previous investigative work, sampling procedures, and site conditions; and
- Contractual restrictions that may affect the preferred remedial outcome.
2. Demonstrate strong and effective leadership. DOD must be represented by a strong and effective leader in order to ensure projects remain on course. In the current regulatory environment, the leader must focus on the broader challenges and long-term goals for the site in question. The leader must be able to understand the site’s history, assess and develop a long-term strategy, and prepare for future challenges. The leader must appreciate the view of all of the stakeholders and be able to negotiate an outcome that all parties can agree with given the constraints placed on the project.
A successful leader also must be able to effectively detail and resolve small-picture issues that may or may not have a significant effect on the overall project goal. As an example, an engineer leading a project site must be able to understand how limited contamination in a small portion of the site effects the overall site remedial process. Does this area pose a potential risk to human health or the environment, or are stakeholders focusing too much on a small issue and losing sight of the overall goal for the project? The successful leader must be able to convey this understanding to all of the stakeholders so that agreements can be made to move forward and focus the limited resources wisely.
3. Understand and agree on regulatory requirements. Because stakeholders often measure well into the double digits, it is imperative that all parties understand and prioritize regulatory requirements that may affect the project’s outcome. Without this understanding, regulatory negotiations can quickly dissolve, with each party stubbornly defending their position. This step sounds simplistic, as (legally) federal regulations should take precedence over state and local standards.
This assumption is often misguided. In some cases, the state or even county-regulations may become more important on the negotiation table (for example, when asking for public support). Stakeholders must become familiar with all of the regulatory policies that dictate environmental investigation and remediation, and must be willing to compromise as needed to achieve the goals of the project. Stakeholders need to understand the difference between a technically sound position and a position dictated more by political realities than technical justification. It is often times very difficult to separate what makes technical sense and what needs to happen for more political reasons.
Despite the wide range of opinions, consensus-based decision making can be extremely beneficial not only to the installation but to the community as a whole.
4. Understand your alternatives. The optimal way to evaluate any proposed solution is to weigh it against the best option in the absence of a preferred path forward, or best alternative. The value or cost of this alternative helps determine your outcome. If an agency feels that additional data collection is required prior to selecting a path forward, the engineer must weigh this position against the overall project costs for remobilization, sampling equipment, laboratory costs, the cost of other green and sustainable solutions and how this additional data may or may not affect the outcome. Will more data change what all stakeholders already believe to be the best solution?
5. Assign accountability. It is important that all parties remain accountable for their actions and responsibilities during a negotiation. Often, the greatest challenge is ensuring all parties remain accountable. As an example, an engineer leading a project site must be able to produce high quality reports on time for submittal to outside stakeholders for review. The engineer must then rely on regulatory agency reviews of plans and documents within a specific amount of time. Delays in developing and reviewing documents and negotiating an acceptable solution to concerns can have a trickle-down effect on the overall performance of the project. Delays lead to contracting issues, requirements to update documents based on ever changing regulations, and in some cases, replacement of team members with new people who are not familiar with previous agreements and actions. By maintaining accountability—often through frequent communications and effective delegation—the negotiation will play out positively for all parties involved.
Accountability also must be expected for previous agreements and actions that have taken place at a project site. In most instances, environmental investigation and remediation projects span many years (and sometime decades). It is critical for all stakeholders to understand that wading through these projects and issues takes considerable time. And while procedures and policies change with time, previous agreements must be upheld unless there is a significant reason to believe that by upholding such an agreement would now result in a potential risk to human health or the environment. All stakeholders have to appreciate the current constraints placed on projects now compared to many years ago when budgets where significantly larger. Stakeholders need to understand that projects must utilize available data and resources as necessary to make sound decisions, while not always having all pieces of the puzzle at their fingertips.
COMING TOGETHER FOR SUCCESS
It is critical to understand that regulatory agency negotiations are vital for the successful completion of a project, and that multiple negotiation meetings will be required. It is also important to note that these negotiations are key relationship builders. It remains crucial to conduct them in a positive way, rather than attempting to take undue advantage of an agency.
In the end, all parties should be able to feel good about the negotiations and the future success of the project...and one another.