Transcript Mediation Techniques - Cleveland State University

Mediation Techniques
The Brayton Point Coal
Conversion
Introduction
• This chapter considers what the mediator brings
to the bargaining table that the parties cannot
provide on their own.
• Mediators are sometimes called interveners,
neutrals, or third parties.
• Mediators may be neutral, but also may have
some degree of interest with an issue.
• Mediators should not be confused with
arbitrators.
Mediation
• Relatively informal
• Intervention between conflicting parties or
viewpoints to promote reconciliation,
settlement, compromise, or understanding.
• Mechanism for facilitating agreement in a
negotiation process.
Mediators
• Assist parties by being creative and innovative in
finding areas of agreement and compromise to
reach a final resolution of the impasse.
• They have procedural flexibility not available to
judges or decision makers who function in a
quasi-judicial capacity.
• They may adopt procedures or methods to meet
the needs of each situation or alter those
procedures if the need arises.
• They attempt to guide the parties to an outcome
all can accept.
Case Study Introduction
• Following the OPEC oil embargo in 1973,
American public policy was torn between energy
independence and environmental protection.
• Two major sources of energy were coal and oil.
• Coal was cheaper but yielded higher
environmental costs, such as more mines, more
air and water pollution, and disposal problems.
• Congress passed the ESECA- The Energy
Supply and Environmental Coordination Act of
1974.
ESECA
• Gave the Federal Energy Administration
(now the Department of Energy) the
authority to prohibit the use of oil or natural
gas in facilities capable of burning coal.
• Also required that conversions comply with
existing air pollution regulations.
• Demanded cooperation between the FEA
and the EPA and state air pollution control
agencies.
Goals of the Agencies
• FEA wanted to decrease consumption of
foreign oil through rapid conversion.
• EPA and state environmental protection
agencies were concerned about the
environmental effects of such conversion
and wanted a slower approach to be
taken.
• After the ESECA was passed, the FEA began to
compile a list of power plants currently burning
oil or natural gas but capable of burning coal as
a primary energy source.
• June, 1975: thirty-two power plants (74
separate units) were issued prohibition orders
requiring conversion to coal.
• Brayton Point Generating Station in Somerset,
Massachusetts, was among the recipients.
Brayton Point
• New England’s largest fossil-fueled power
plant.
• Four separate generating units capable of
a total output of 1600 megawatts.
• Three of the boilers, units 1, 2, and 3, are
capable of burning either oil or coal.
• Unit 4, the newest of the boilers is capable
of only oil combustion.
Brayton Point
• Owned and operated by the New England
Power Company, which is a wholly owned
subsidiary of the New England Electric System.
• Supplies electricity to over one million customers
in MA., RI., and NH.
• Participates in integrated dispatching system
called the New England Power Pool, in which
utilities in the pool purchase power from the
utility that can produce it at the lowest cost.
Brayton Point
• Fuel cost is a large fraction of operating cost,
and therefore is a critical factor in determining
both the output of the facility and the revenues of
its owners.
• Brayton Point is very efficient.
• NEPCo. Management very concerned that the
plant’s cost efficiency be maintained after
conversion.
• Efficiency determines its output, which
determines the amount of revenues the plant
generates for its owners.
Brayton Point
• NEPCo. is opposed to any added
expenses in either capital equipment that
would decrease the relative cost efficiency
of the plant.
• The company did not want to be forced to
convert by the FEA if the EPA was intent
on imposing stern environmental controls.
Combustion Process
• Both fuels are delivered by water; oil, by tankers;
coal, by sea-going colliers or barges.
• Max storage capacity is 600,000 tons, an 88 day
supply.
• Coal is ground by pulverizers, pumped in to the
boilers, and ignited.
• The heat generated creates high pressure
steam, which passes through turbines to
generate electricity.
Combustion Process
• Some solid mater remains after coal is
burned.
• Bottom ash falls in to bins below.
• Fly ash travels with the exhaust gases.
• Most is collected by electrostatic
precipitators.
• Particles in the exhaust are negatively
charged and are attracted to the positively
charged precipitator plates.
Process Cont.
• Emissions are also produced in the gas
and oil combustion process, giving off
sulfur dioxide which reacts chemically in
the atmosphere to produce sulfates and
sulfuric acid, as well as acid rain, which
can cause damage to water quality, plants
and property.
Combustion Process
• Sulfur emissions can be controlled by
using low sulfur fuel.
• Low sulfur fuel can be more expensive
than high sulfur fuel.
• Scrubbering is the most common
technology used for removing sulfur
dioxide from exhaust gases, but it is very
expensive.
Air Pollution Regulation
• Brayton Point regulations derived from the
Federal Clean Air Act of 1970.
• Amendments require the EPA to establish
national ambient air quality standards (NAAQS).
• States are required to adopt state
implementation plans (SIPs) that specify the
manner in which the NAAQS will be achieved
and maintained.
• This gave the states room to choose the means
to federally establish ends.
Air Pollution Control
• After the 1970 Clean Air Act amendments but
before the 1973 Oil Embargo, the environmental
health division of the Massachusetts Department
of Public Health submitted its SIP, which was
approved by the EPA.
• The SIP specified an allowable fuel sulfur
content of .55lb of sulfur per million BTUs
(.55lb/Mbtu) and a total suspended particulate
emissions limit of .12lb/Mbtu for point sources in
southeastern MA., including Brayton Point.
Control
• All SIP’s were subject to review by the
EPA, who would not allow any changes
that it felt might cause violations of
NAAQS.
• It would not allow any air quality
deteriorations in areas designated to be
non-attainment areas following the 1977
Clean Air Act.
Brayton Point
• Prior to the Oil Embargo, NEPCo. could easily
attain fuel oil for Brayton Point.
• Oil Embargo forces NEPCo. to search for
cheaper coal sources in the United States in
anticipation of rising oil costs.
• Was allowed a variance for Unit 3 from May to
December of 1974.
• April, 1974: NEPCo. applies for a five year
variance for Units 1 and 2, and is denied,
because the EPA believed standards violations
had been committed.
Oil Embargo
• Congress adopts the Energy Supply and
Environmental Coordination Act of 1974
(ESECA).
• Intended to cut the nation’s dependence
on imported oil.
• Also gave the Federal Energy
Administration authority to prohibit any
power plant capable of conversion from
burning natural gas or petroleum products.
Oil Embargo
• FEA made a list of all oil consumers
capable of burning coal.
• Brayton Point was the largest of the five
New England power plants on the list.
• Under ESECA, there were three steps for
mandated conversion : notice of intent,
prohibition order, and a notice of
effectiveness.
FEA
• The FEA must issue a notice of
effectiveness before prohibition can be
enforced.
• Must prepare an environmental impact
statement.
• Must attain approval form the EPA
administrator.
• Must get approval from the state governor.
• In August, 1974, two months after ESECA
was passed, and one month after MA. had
denied NEPCo.’s latest variance request,
the company applied to the EPA for an
ESECA mandated temporary suspension
of all fuel and emissions limitations in the
MA. SIP.
• The suspension also required an establishment
of ambient air quality stations in the Fall River
area.
• The Brayton Point suspension ended in June
1975, with about 9 million dollars worth of coal in
their storage area.
• The Massachusetts legislature also passed
chapter 494 of MA. general laws, which required
that state regulations including SIP’s be revised
periodically.
• In response to chapter 494, the DEQE
proposed a two year revision of the SIP,
which was approved by the EPA but
delayed for more difficult cases, such as
Brayton Point.
Sulfur Dioxide Problems
• Air quality monitors needed to be put in
place.
• NEPCo. contracted with Environmental
Research and Technology Inc. to operate
six monitors and the state DEQE to
operate two of its own.
• They would remain in operation following
the conversion back to oil.
Sulfur Dioxide Problems
• EPA notifies DEQE of the violations in
March, 1977.
• Southeastern MA. Air Pollution Control
Region had been designated as a nonattainment region for particulates.
• The DEQE was to evaluate their SIP for
the TSP in order to attain federal
standards.
Modeling
• Data indicated a switch to high sulfur
(either oil or coal) may cause a violation of
the federal ambient sulfur dioxide
standards.
• Air pollution models are imprecise.
• Computer run mathematical simulations.
• They model a worst case scenario.
Coal Committee’s Conversion Plan
• Federal Regional Council (FRC) created in
1972 to facilitate coordination of federal
activities in New England.
• Composed of ten principle federal
agencies.
• Focused on the problem of converting
New England power plants to coal.
The Committee
• Included personnel from FEA, EPA,
Bureau of Mines, DEQE, MA. Energy
Office, NEPCo., and a non-profit research
organization called The Center for Energy
Policy.
• Issued a report in 1976 stating coal
conversion was desirable but
environmentally and economically costly.
They suggested more testing.
John Kaslow
• Vice President of NEPCo.
• Offered to use Brayton Point’s units 1 or 2
for the test.
• He anticipated significant fuel cost savings
if allowed to burn coal instead of oil, and
felt that additional pollution control
equipment should not be required until
proven necessary.
EPA
• Objects to test proposals on three grounds.
• Did not want NEPCo. to burn the existing high
ash coal without controlling particulate
emissions.
• Believed that a test had already been done and
that the data would not differ.
• EPA suspected Brayton Point simply wanted to
burn the existing coal in their stock pile.
EPA
• Notified the DEQE that the southeastern
MA. Air Pollution Control District had failed
to meet NAAQS for particulates in 1976.
• They would not issue a variance to an SIP
that would cause increases in any
pollutant in an area where the standards
were not being met.
John McGlennon
• Regional administrator for the EPA.
• Sent a letter to Robert Mitchell from the
EPA confirming there would be no test
approval at Brayton Point.
• NEPCo. would have to comply with the
existing SIP limits.
David O’Connor
• Believed that the letter was not to be
interpreted as an end for all prospects of
conversion.
• He would later act as a mediator.
• Considered the letter an invitation to
negotiation.
• Suggested all parties meet for negotiation.
Parties’ Incentives
• NEPCo. profit margin was dependent
upon its cost efficiency.
• Wanted permission to burn the cheapest
available fuel, coal, and did not want to
convert to expensive pollution control
equipment.
Federal Energy Administration
• Their participation in the mediation would
increase the likelihood of conversion at
Brayton Point.
• Wanted to remain loyal to the ESECA
mandate.
EPA
• First incentive was political, the national
energy policy stressed the development of
alternatives to continued importation of
foreign oil.
• Participation in mediation could promote
good citizen image.
EPA
• Second incentive was the association of
two key individuals: John McGlennon and
Robert Mitchell of the EPA.
• Mitchell made clear his intentions to fulfill
the EPA’s mandates to protect air quality
and ensure compliance with primary and
secondary ambient air quality standards.
MA. Dept. of Environmental Quality
Engineering
• Under statutory obligation chapter 494 to
implement sulfur standards in an
economically efficient manner.
• Concerned with the issues involved in coal
conversion at Brayton Point and wanted to
partake in decision making process.
• Feared that the conditions established
might be unresponsive to the
environmental needs of MA.
Mediation Begins
• Began in April 1977.
• Committee formed was the New England
Energy Task Forces Coal Committee.
• Organized under the Federal Regional
Council.
David O’Connor
• Center for Energy Policy.
• Assumed an active role in the committee
as a mediator.
• Urged all involved to convene in April to
discuss the issues.
• Recently completed an American
Arbitration Association Mediator Training
Program.
Meetings
• They agreed to meet 15 times over 5
months.
• Mediation effort would cost 20 thousand
dollars and would be divided equally
among the four parties: the FEA, EPA,
NEPCo., and the U.S. Bureau of Mines.
ESECA Process
• FEA issues NEPCo. a notice of intent to pursue the
mandatory ESECA process for the Brayton Point plant.
• NEPCo. files a lawsuit to restrain FEA from holding the
prohibition hearings.
• Charged that the agency had not followed its own
guidelines in developing its conversion plans.
• The complaint stated no site-specific environmental
impact statement had been prepared.
• The suit was postponed pending progress of the
negotiations.
The Meetings
• May, 1977: all parties acknowledge
participation to the press but that no
communication of a substantive nature
would be made without prior approval of
the group.
• Agreed O’Connor would convene the
meetings, take notes, set agendas.
Meetings
• No one knew exactly what form the
resolution would take nor how discussions
would proceed.
• Had no preconceived notions about the
order in which the issues would be
tackled.
• Summaries of the meetings were reviewed
together and revisions would be approved
by the group.
First Major Breakthrough
• The EPA initiates a study of the primary
particulate standard violations around
Brayton Point.
• This was a major concession because the
EPA does not usually check air quality
violations to determine their source.
• The EPA tries to contain all the polluters in
a non-attainment area.
Study by the EPA
• EPA found that the particulate issue was most
likely caused by road dust
• NEPCO offered to buy street sweepers rather
than electrostatic precipitators
• Arguments finally irritated the EPA which made
them decide to resolve the particulate dispute
• EPA found that the particulates were mostly
street sanding and road dust reentrainment not
Brayton Point emissions
Impact Of Report
• The chapter 494 variants proposed by the
DEQE to allow the use of high sulfur fuel
oil at Brayton Point had been upheld by
the EPA
• The report showed only a small positive
correlation between ambient particulate
and sulfur levels
• EPA approves revision of the SIP
Interest Group and Public
Participation
• All interested parties were included
• Neither the Fall River Community nor
environmental groups were involved
• After meetings discussion was opened to Fall
River citizens to overlook the DEQE’s study of
state wide particulate problems.
• Citizens seemed uninterested as did local
environmental groups
• Reasons for lack of involvement included having
no time or money to invest in the issue
Particulate Emissions Debate
• NEPCO agreed to study the costs of meeting
tighter particulate emissions standards but
wanted some assurance from the DEQE and the
EPA that emissions standards would not change
dramatically over the life of the plant.
• The EPA indicated it could approve long term
emission limit revisions if the DEQE could
produce the requisite technical support for such
proposals.
Final Negotiations
• By January 1978 four major issues
remained
• How NEPCO would comply with new
higher sulfur limits
• What the new particulate limit would be
• How long the new limits would stay in
effect
• What mechanisms would be used to
formalize the agreement
• The group as a whole authorized the DEQE and
NEPCo to settle them bilaterally with O’Conner
• Bilateral negotiation would require only the time
and energy of the two parties rather than six
• Uninvolved parties would be informed of any
progress and the agreements would be subject
to review by the group as a whole
• Because sulfur content varies greatly in coal
NEPCo requested that they be allowed to
average the sulfur content over a 90 day period
as long as the content never exceed 3% by
weight.
• DEQE wanted a much shorter than the
companies proposed 90 days the two came to
an agreement to test for 30 days
• These limits were within NAAQS but lenient
enough conversion to coal economically feasible
Terms of the Agreement
• A revision of the SIP that the DEQE would
submit to the EPA with definitions of
compliance
• NEPCo wanted regulation changes to be
effective for the remaining lifetime of the
plant because it wished to protect its
investments in new equipment and longterm coal supply
Terms Continued
• NEPCo and the DEQE disagreed over the form
of the SIP agreement the company wanted the
SIP to be specific to Brayton Point so that any
future regulatory change would also have to take
the form of SIP revision
• This would require the DEQE to hold hearings
and obtain EPA approval before making any
changes that may threaten the companies
investment
Terms
• The mechanism for change was a variance from
the existing SIP which would be effective for a
predetermined period of time
• The choice between a variance and a new
regulation also determined whether NEPCO or
the DEQE would be responsible for providing
documentation for action to the EPA
• A new regulation proposed by DEQE requiring
DEQE to do the technical work
• By contrast a variance would be applied for
directly by the company
Compromise
• The compromise addressed the needs of
both parties and would be put into the form
of a new regulation that would be specific
to Brayton Point and only effective until
November 1, 1988
The Approval Process
• Final negotiations had been completed by
NEPCO and the DEQE alone
• Their agreements had to now be approved
by the entire work group, EPA, the
governor of MA, and the DOE
• The work group reviewed the agreement
over the next few months and made no
changes
Public Involvement
• May 25, 1978 the DEQE sponsored a
public information meeting in Fall River
• About 40 residents attended and raised
questions about environmental impacts,
truck traffic generated by ash disposal, job
creation, health affects, and the impact of
the conversion on electric bills.
• The local population would not benefit
directly from the fuel cost savings
Public Involvement
• Environmental interest groups presented no
opposition to the proposal
• Everyone seemed to be in unanimous
agreement of conversion
• O’Conner’s efforts provided an atmosphere that
was conducive to fruitful negotiation.
• He helped the parties to work together to
develop their own agreement, provide discipline,
advice, and encouragement.
Cross - Reference
• Brayton Point case important issue was the
problem of binding parties, as in Chapter 7.
• The company needed assurance that control
devices that they would install would satisfy
current and future EPA regulations.
• NEPCo ultimately had to accept a less than
ironclad guarantee from the government.
Mediation Skills
• A mediator acts as a catalyst, educator,
translator, who may expand the resources
available to the parties, may often become
the bearer of bad news, acts as an agent
of reality, and is sometimes used as a
scapegoat.
Mediation Process – 4 Stages
• Fact-finding
• to assess the dimensions of the problem
• to determine why the parties have not
been able to reach an agreement
• Separate meetings with each party
• To explore the interests they most want to
protect
Stages 3 and 4
• Inventing phase
• A series of separate and joint meetings during
which as many solutions as possible for each
problem are discussed and evaluated
• Offer of Draft Agreements
• Each party reviews and revises
• Revision repeats until an agreement is made
Analogy of International Disputes
• Environmental disputes are very much like
international disputes
• Involve more than two parties with a direct
interest in the outcome
• Delays in decision making can sometimes
work to the advantage of one or more
parties
• A mediator can help clarify complaints and
demands
Gaining Trust
• The mediator must explain why they are
present and what role they will be playing,
while the parties explain the dispute
• This is to reassure the parties that the
mediator is a non-partisan speaker for
either side
Gaining Trust Cont.
• Reduce Defensive Communication
• Description, not evaluation – must avoid value
judgments, and statements like “you’ll never get
that” or “if I were you, Mr. Administrator, I’d never
take that position. etc.
• Problem Evaluation, not control – this can end
discussions between parties quickly if they feel
they are not in control of the discussions.
Guidelines for Smooth Proceedings
•
•
•
•
The mediator should employ the following:
Empathy, not neutrality
Equality, not superiority
Provisionalism, not certainty
Techniques for Settlement Building
• No-risk narrowing of positions – if a party
wants to compromise the mediator can tell
the other side, or not tell the other side
and offer a hypothetical possibility, which
will reduce the effect of rejection of that
possibility
“Collection of Agreements” vs.
“Boulder in the Road”
• Tackle the easy issues first or the harder
issues first?
• The “collection of agreements” approach
creates a momentum, an aura where other
agreements become possible
• On the other hand, the momentum may be
for naught if the “boulder”, the matter of
principle, is so huge that nothing can move
it
Usage of External Pressure
• Federal deadlines
• An angry citizens group
• A mayor under pressure to use police
force
• Media with its well known accuracy willing
to highlight the dispute in the news
Usage of Deadlines and Marathon
Sessions
• Internal deadlines
• Internal labor-management dispute
deadlines
• An upcoming meeting in a community
forum
• All can be used be a mediator to speed up
the negotiation process
Deflating Extreme Positions
• This is not a question of power in this
case, but a question of whether or not the
position is attainable
• If the position is not attainable, the
mediator must make all parties involved
aware of this fact, and make them find
another position that is less extreme to
move the process along
Consequences of “no agreement”
• The mediator must assess the possibility
of not reaching an agreement, what the
consequences may be, and how
everything will balance out in the end if at
all
The Mediator’s Proposals – Uses
and Dangers
• The mediator is often trying to float ideas
or make informal suggestions, but rarely
makes proposals.
• The mediator does not make proposals
because once a proposal is made, he has
just told the parties how he thinks the
dispute should be resolved.
• If the party does not agree with the
proposal, he is no longer useful
Uses and Dangers Cont.
• A mediator doesn’t make proposals
unless…
• He knows they will be accepted, or
• He is at the very end of the line and
believes that such proposals will aid an
ultimate settlement in some other way,
such as public pressure or in the hands of
a mediator who follows him