BOARD MEETING DATE: January 10, 2003
AGENDA NO. 12

Amend Contract for Facilitation Services for a Negotiated Rulemaking Pilot Program for Metal Finishing Rules

SYNOPSIS: 

A negotiated rulemaking pilot program for metal finishing rules has been initiated as part of Strategic Alliance Initiative Number 8. This process has included various stakeholder groups, including industry representatives and environmental groups, agency staff, and a facilitator in an effort to develop consensus-based rules to reduce toxic risk from electroplating facilities. Staff recommends that the Board authorize the Executive Officer to amend an existing contract for facilitation services with California State University, Sacramento, California Center for Public Dispute Resolution for an additional amount of $33,438. Total funding for this contract shall not exceed $73,765 from the FY 2002-03 Budget.

COMMITTEE: 

Administrative, December 13, 2002, Recommended for Approval

RECOMMENDED ACTION:

Authorize the Executive Officer to amend the existing contract with California State University, Sacramento, California Center for Public Dispute Resolution for facilitation services for an additional amount not to exceed $33,438 from the FY 2002-03 Budget, bringing total funding to $73,765.

Barry R. Wallerstein, D.Env.
Executive Officer

Background

On February 1, 2002, the Board adopted a work plan to implement eight strategic alliance initiatives to strengthen and create new partnerships at the local, state, and federal level. These initiatives are intended to add momentum to AQMD’s quest for clean air and also show that AQMD values and needs the assistance and contribution of others. Initiative #8, Negotiated Rulemaking Pilot Program, specifies that on a trial basis, a negotiated rulemaking process will be carried out to arrive at a proposed rule which will also undergo the traditional public comment process and subsequent Board consideration.

Negotiated rulemaking is a voluntary process for drafting rules or regulations by bringing together stakeholders (parties who would be affected by a rule) to reach consensus on some or all of its aspects before the rule is formally issued as a rule proposal. An impartial facilitator is contracted to guide discussions among the participants, who together operate as a committee open to public observation and comment following agreed-upon protocols. The intent of negotiated rulemaking is to promote consensus-based rules that require fewer resources to enforce, promote high rates of compliance, and result in fewer litigation actions. When successful, negotiated rulemaking can provide the public with air quality benefits and improve draft regulations. Metal plating rules were selected for this pilot program.

Proposal

California State University, Sacramento, California Center for Public Dispute Resolution currently is under contract with AQMD in the amount of $40,327 for facilitation services for the metal finishing negotiated rulemaking.

At this point, negotiations have taken longer than originally anticipated due to the complexity of technical issues and divergent interests of participants. It is now envisioned that the negotiated rulemaking process will conclude in mid-2003. Staff recommends that the Board authorize the Executive Officer to amend the existing contract for facilitation services with California State University, Sacramento, California Center for Public Dispute Resolution at a total additional amount not to exceed $33,438 to be funded from the FY 2002-03 Budget.

The proposed level of effort contract amendments will enable continued negotiations towards completion of the pilot negotiated rulemaking for metal finishing.

Sole Source Justification

Section VIII.B.2. of the Procurement Policy and Procedure identifies four major provisions under which a sole-source award may be justified. This request for sole-source bid is made under provision (d)(4) – Level of Effort Expert Consultation Services. Mr. R. Gregory Bourne, who is currently serving as the facilitator, was selected based on his unique combination of experience in the areas of environmental regulation, including toxics, negotiated rulemaking, facilitation, negotiating, and experience with the metal plating industry. Mr. Bourne has expertise and extensive prior experience with facilitation and negotiated rulemaking for federal agencies including the U.S. EPA, U.S. Department of Education, U.S. Department of Justice, U.S. Army, and U.S. National Park Service, as well as state and local agencies in Arizona, Florida, Georgia, and Louisiana. He has served as lead or co-facilitator for over 25 separate projects since 1988, mostly dealing with environmental issues, and has both taught and written extensively on facilitation, conflict resolution, and dispute resolution.

Resource Impacts

With the additional $33,438 funding amendment, total contract funds shall not exceed $73,765. Sufficient funds are available in the FY 2002-03 Budget for this effort.

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