Better Together: Mediating an End to an Ecological Risk Assessment Dispute at Vandenberg Air Force Base

INTRODUCTION

For more than two years, the U.S. Air Force (USAF) and the California Department of Toxic Substances Control (DTSC) have been deadlocked over the values to be used in ecological risk assessments for Vandenberg Air Force Base (VAFB) in California. Vandenberg is the third largest air base in the United States and the west coast home of the space program. Encompassing 99,400 acres (more than 150 square miles) in Santa Barbara County, it also represents one of the largest undeveloped areas along California’s Central Coast. The base includes 2,900 acres of wetlands, 4,500 acres of Oak woodlands, 10,000 acres of protected Burton Mesa Chaparral, 9,000 acres of undisturbed sand dunes, 23,000 acres of range land, 166 miles of rivers and streams, and 35 miles of coastline. DTSC is the state agency responsible for regulating hazardous waste facilities and overseeing the cleanup of hazardous waste sites in California. The dispute pertained to 27 Installation Restoration Program (IRP) sites at VAFB designated for remediation under state law.

Site remedial assessment efforts at VAFB were initiated in 1991 with the signing by the USAF and the State of California of a Federal Facilities Site Remediation Agreement. By 1998, remedial activities at VAFB had progressed through the Scoping Assessment phase of the ecological risk process, meaning that potential contaminants of concern had been identified, affected plants and animals had been ascertained, and pathways by which these species would interact with these contaminants had been assessed. The contaminants of concern were primarily heavy metals—such as lead, arsenic, mercury, nickel, selenium, and zinc—and organic compounds such as polychlorinated biphenyls (PCBs) and polycyclic aromatic hydrocarbons (PAHs). Potentially exposed species included state and federally protected threatened or endangered species like the Bald Eagle and the Peregrine Falcon and sixteen California State Species of Special Concern including the Yellow Warbler, Merlin, and Townsend’s Western Big-Eared Bat.

It was in the next phase of work—predictive ecological risk assessment—that cooperation between VAFB and DTSC began to break down. The purpose of predictive ecological risk assessment is to quantitatively evaluate the potential for adverse effects to biota resulting from exposure to particular chemical contaminants at or near an IRP site. The process involves comparing measured or predicted concentrations or doses of toxic chemicals at particular sites to contaminant-specific toxicity data (in the form of Toxicity Reference Values, or TRVs). A TRV, which is derived from toxicity studies found in the peer-reviewed literature, is the dose at which a particular contaminant poses a risk (e.g., in terms of mortality, ability to reproduce and develop normally, etc.) to a potentially exposed species. The risk to a species is then defined by the degree to which the measured or predicted concentrations of chemical contaminants found on particular sites exceed the doses associated with particular threats to that species.

An important factor currently undermining ecological risk assessment processes nationwide is the lack of a widely accepted, peer-reviewed set of TRVs covering all species and all toxic substances. Consequently, the predictive ecological risk assessment at VAFB came to a halt in early 1999 when DTSC and VAFB could not agree on the TRVs governing ecological risk assessment for 27 VAFB IRP sites. DTSC insisted upon the use of a set of TRVs that had been drafted by the Environmental Protection Agency Region IX Biological Technical Advisory Group (BTAG), a peer review committee made up of technical experts from eight federal and state environmental regulatory agencies. DTSC had adopted the use of the BTAG TRVs as a means of standardizing its ecological risk assessment oversight work throughout the state. VAFB objected to this requirement for a variety of reasons and instead proposed its own set of TRVs. The base asserted that the use of the draft BTAG TRVs was 1) inconsistent with DTSC guidance and State Codes because the BTAG TRVs were based on toxicity studies that were less relevant to assessment endpoints developed for VAFB than the VAFB selected TRVs; 2) cost ineffective because the overly conservative BTAG TRVs would require additional, unnecessary field studies that would increase costs by over $2 million; and 3) impractical because they would lead to unnecessary destruction of habitat.

Between 1999 and early 2001, VAFB and DTSC made several informal and formal attempts to resolve the dispute, but without success. In their efforts to avoid potentially lengthy and expensive litigation, the parties agreed in the summer of 2001 to attempt a mediated negotiation process. CONCUR, Inc.—a Berkeley-based mediation firm—was retained as a professional neutral to convene and facilitate a mediated negotiation among senior executives from the two parties.

Several features distinguishing this mediation posed challenges for the mediation process. · The parties had relatively little experience with mediation. · The parties had decided beforehand to allot only a day and a half for the actual mediated negotiations. · While each of the parties was to be represented by a senior official serving as a lead negotiator, both parties also assisted these officials with substantial technical and legal support staffs, bringing the total number of participants at the table to twenty-five. · Previous negotiations among some of these same staff people had become very contentious, creating some loss of trust between the parties. · Finally, the two sides appeared to have different understandings of the relationship between the risk assessment and risk management processes.

THE MEDIATION

The convening process

The CONCUR team (Gary Widman and Eric Poncelet) commenced its work by performing background research on the historical, factual, and legal foundations of the dispute. CONCUR followed this by conducting a thorough stakeholder analysis involving interviews with key USAF and DTSC personnel. Interview questions were drawn from a structured survey instrument designed to elicit information regarding stakeholder issues, interests, concerns, and aspirations.

Stakeholder interviews are more than a technique for gaining information from stakeholders. They can also be effective tools for imparting information as well. In the Vandenberg dispute, CONCUR utilized these interviews to float several ‘trial balloons’ representing potential avenues to resolution and to guide stakeholder expectations on how the mediated negotiations would be structured.

The CONCUR team used the results of its stakeholder analysis to generate proposed ground rules for establishing stakeholder responsibilities and directing stakeholder participation and interaction during the mediation sessions. These ground rules were designed to avoid some of the pitfalls that had hampered past DTSC-VAFB dispute resolution efforts. For instance, the draft ground rules asked the parties to treat the mediated negotiation as a joint problem solving process requiring mutual education rather than as an adjudicative proceeding to be won or lost. Moreover, the ground rules invited participants to focus on satisfying fundamental organizational interests and goals rather than sticking to pre-defined positions.

The results of the stakeholder analysis were summarized in an Issue Audit Memorandum, and the ground rules were organized into an official Ground Rules document. Both of these documents were submitted to the parties prior to the meeting for review. Both were also discussed, revised, and ratified as one of the first orders of business at the meeting itself.

The Negotiation Process

Problem definition

One of the first tasks in the mediated negotiation was to jointly frame the problem to be solved. CONCUR asked the parties to prepare presentations that described their understandings of the factual bases for the dispute, their revealed their underlying interests, that demonstrated their commitments to the mediation process, and that contributed toward mutual education regarding the issues at stake. Following these presentations and the discussion that ensued, the CONCUR team helped the parties articulate their major interests in the dispute. DTSC listed protecting species at risk and reestablishing a trusting working relationship with the USAF as among their chief interests. The USAF concurred with these and added the need for cost-effectiveness and public legitimacy. Both sides expressed the desire that the solution to the ecological risk assessment dispute be both scientifically valid and defensible. Achieving all of these interests became the goal that both parties agreed to pursue in the negotiation.

Attending to differences in perception

During these discussions, it became apparent that the two parties held somewhat different perceptions of the ecological risk assessment process at VAFB. The DTSC representatives drew a clear distinction between risk assessment, in which the risks posed by certain toxic substances to certain species are determined, and risk management, in which remediation decisions are actually taken to address these risks. Their point was that risk assessment constitutes but one factor influencing the determination of risk management decisions. Other factors include the level of the risk, the chemicals at issue, the habitat at issue, the life history of the species of concern, the magnitude of uncertainty factors, adverse affects of remediation, and current and future land use plans. VAFB representatives, on the other hand, tended to conflate the risk assessment and management processes to a greater degree, drawing a much stronger relation between the findings of the risk assessment process and the options available for risk management. As such, they were much more concerned about how the TRVs selected would affect site cleanup. Recognizing this difference in interpretation allowed the parties to confine the negotiations to the risk assessment phase and to divorce it somewhat from risk management decisions at VAFB.

Structure of the negotiation

In response to the short time frame allotted for the negotiation, the CONCUR team structured the meetings to make most efficient use of the senior officials as lead negotiators. CONCUR restricted the negotiations for producing the initial joint proposal to these individuals, although they had the opportunity to consult with their technical and legal staff people. This caucusing allowed both delegations to participate broadly in the negotiating process while at the same time limiting potentially destructive interaction among formerly antagonistic staffers.

Use of single-text negotiation technique to produce signed agreements

To capture the many agreements crafted on the way to resolving the principal issues in dispute, the parties used a single-text approach to synthesize the on-going results of the negotiation. This culminated, after a half-dozen drafts, in the production of a Cooperative Agreement that was ratified and signed by the parties. In this document, the USAF and DTSC agreed to jointly establish a panel of third party neutral experts that would, in cases of disagreement over TRVs, be responsible for determining the most scientifically valid, defensible, and appropriate TRVs for Vandenberg Air Force Base. The parties also used a single-text approach to produce and ratify a Next Steps document. This agreement laid out the steps, with deadlines, by which the parties committed to implement the Cooperative Agreement.

OUTCOMES AND CONTRIBUTING FACTORS

The parties expressed great satisfaction and not a little surprise in the agreements they had achieved in this accelerated mediation process. In CONCUR’s experience, however, environmental disputes of this technical complexity can not always be resolved in such a short period of time. Certain limitations may stem from this level of brevity:

· Restricting mediation processes to one-time events limits the relationship and trust building that often result from these experiences. This can be very important in situations like the USAF-DTSC dispute, as these two organizations will likely continue to work closely together in the future. While the Cooperative Agreement reached by the parties went a long way toward re-establishing strong relations that had been eroded by the TRV dispute, these relationships, without more opportunities for growth, remain rather fragile. · The decision by the CONCUR mediators to focus the negotiations on the DTSC and VAFB delegation leaders had the unwanted effect of limiting the amount of time that the vast majority of participants—the technical and legal experts also in attendance—got to spend working out the dispute with their counterparts at the table. This strategy was pursued for the purpose of saving time, but it restricted the potential for learning and personal transformation.

Despite these limitations, the concentrated mediation process also provided certain benefits. Focusing the negotiations on the delegation leaders most certainly helped to streamline the discussion and avoid a return to the antagonistic practices and hard-line positions of previous dispute resolution attempts. Moreover, the time constraints meant that many of the participants were willing to work harder to find agreement than they might have had the mediation process been on-going. This was particularly true of the delegation leaders. As one USAF representative noted, it was “the highly motivated senior [officials] who were committed to resolving the issue [at the meeting]” who really made the outcome possible.

As a result of this mediation process, the USAF and DTSC have regained the confidence to resume ecological risk assessment activities at VAFB that had been on hold for years. The agreement has also provided both a tool and a template for addressing potential site remediation disagreements in the future.

Biography

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