Report to Congressional Requesters

United States Government Accountability Office

GAO 

SUPERFUND 

Greater EPA 

Enforcement and 

Reporting Are Needed 

to Enhance Cleanup at 

DOD Sites 

March 2009 

GAO-09-278 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

March 2009

SUPERFUND

Greater EPA Enforcement and Reporting Are Needed 

to Enhance Cleanup at DOD Sites

Highlights of GAO-09-278, a report to 

congressional requesters 

Prior to the 1980s and the passage 

of environmental legislation—

particularly the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA) governing 

environmental cleanup––

Department of Defense (DOD) 

activities contaminated millions of 

acres of soil and water on and near 

DOD sites. The Environmental 

Protection Agency (EPA), which 

enforces CERCLA, places the most 

contaminated sites on its National 

Priorities List (NPL) and requires 

that they be cleaned up in 

accordance with CERCLA. EPA has 

placed 140 DOD sites on the NPL. 

Disputes have recently arisen 

between EPA and DOD on 

agreements to clean up some of 

these sites. In addition, most sites 

were placed on the NPL before 1991; 

since fiscal year 2000, EPA has added 

five DOD sites. In this context, we 

agreed to determine (1) the extent of 

EPA’s oversight during assessment 

and cleanup at DOD sites and (2) 

why EPA has proposed fewer DOD 

sites for the NPL since the early 

1990s. GAO interviewed officials at 

EPA and DOD and reviewed site file 

documentation at four EPA regions. 

What GAO Recommends

GAO suggests that Congress 

consider amending CERCLA to 

expand EPA’s enforcement 

authority. EPA agreed that such 

authority would help assure timely 

and protective cleanup. DOD 

disagreed, stating that EPA has 

sufficient involvement. We 

continue to assert that EPA needs 

additional authority to ensure that 

cleanups are being done properly. 

EPA evaluates DOD’s preliminary assessments of contaminated DOD sites but 

has little to no oversight of the cleanup of the majority of these sites because 

most are not on the NPL. Of the 985 DOD sites requiring cleanup of hazardous 

substances, EPA has oversight authority of the 140 on the NPL; the remaining 

845 non-NPL sites are overseen by other cleanup authorities—usually the 

states. Our review of 389 non-NPL DOD sites showed that EPA decided not to 

list 56 percent because it determined the condition of the sites did not satisfy 

the criteria for listing or because it deferred the sites to other programs, most 

often the Resource Conservation and Recovery Act––another federal statute 

that governs activities involving hazardous waste. However, EPA regional 

officials were unable to provide a rationale for not listing the remaining 44 

percent because site files documenting EPA’s decisions were missing or 

inconclusive. In addition, EPA has agreements with DOD for cleaning up 129 

of the 140 NPL sites and is generally satisfied with the cleanup of these sites. 

However, DOD does not have agreements for the remaining 11 sites, even 

though they are required under CERCLA. It was not until more than 10 years 

after these sites were placed on the NPL that EPA, in 2007, pursued 

enforcement action against DOD by issuing administrative orders at 4 of the 

11 sites. 

Since the mid-1990s, EPA has placed fewer DOD sites on the NPL than in 

previous years for three key reasons. First, EPA does not generally list DOD 

sites that are being addressed under other federal or state programs to avoid 

duplication. Second, DOD and EPA officials told us that, because DOD has 

been identifying and cleaning up hazardous releases for more than two 

decades, and improved its management of waste generated during its ongoing 

operations, DOD has discovered fewer hazardous substance releases in recent 

years, making fewer sites available for listing. Third, in a few instances, state 

officials or others have objected to EPA’s proposal to list contaminated DOD 

sites, and EPA has usually declined to proceed further. For example, in five 

instances EPA proposed contaminated DOD sites for the NPL that were not 

ultimately placed on the list. At four of these sites, the states’ governors did 

not support listing, citing the perceived stigma of inclusion on the NPL and 

potential adverse economic effect. EPA did not list the fifth site because, 

according to EPA regional officials, DOD objected and appealed to the Office 

of Management and Budget, which recommended deferring this listing for 6 

months to give DOD time to address personnel and contractor changes and 

demonstrate remediation progress. EPA officials recently told us that cleanup 

has taken place at these sites and that it was unlikely or unclear whether they 

would qualify for placement on the NPL based on their current condition. 

To view the full product, including the scope 

and methodology, click on GAO-09-278.

For more information, contact John 

Stephenson at (202) 512-3841 or 

stephensonj@gao.gov. 
Contents 

Letter 1

Results in Brief 5

Background 8 

EPA Evaluates All Potentially Contaminated DOD Sites for Listing, 

but Does Not Oversee Cleanup at Most Hazardous Waste DOD 

Sites 17 

EPA Proposes Few Contaminated DOD Sites Based on EPA Policy 

and DOD’s Maturing Inventory of Hazardous Waste Sites 26 

Conclusions 32 

Matter for Congressional Consideration 33 

Recommendations for Executive Action 33 

Agency Comments and Our Evaluation 34 

Appendix I Objectives, Scope, and Methodology 37 

Appendix II Other Cleanup Programs 39 

Appendix III Comments from the Environmental Protection 

Agency 41 

Appendix IV Comments from the Department of Defense 43 

Appendix V GAO Contact and Staff Acknowledgments 45 

Table 

Table 1: Chronology of Events to Negotiate IAGs for DOD NPL 

Sites 20 

Figures 

Figure 1: Annual Number of DOD Sites Placed on the NPL Has 

Declined Since the 1990s, Fiscal Years 1980–2008 4 

Page i GAO-09-278 Defense Superfund Sites 
Figure 2: Private, Federal, and DOD Sites on the NPL 9 

Figure 3: Key Stages of the CERCLA Process to Address and Clean 

Up Hazardous Waste at Federal Facilities 13 

Figure 4: Findings from GAO’s Review of 389 DOD Sites 32 

Abbreviations 

CERCLA Comprehensive Environmental Response, Compensation, 

 and Liability Act 

DOD Department of Defense 

DOJ Department of Justice 

EPA Environmental Protection Agency 

HRS Hazard Ranking System 

IAG interagency agreement 

NCP National Oil and Hazardous Substances Pollution 

 Contingency Plan (National Contingency Plan) 

NPL National Priorities List 

OMB Office of Management and Budget 

PCB polychlorinated biphenyl 

RCRA Resource Conservation and Recovery Act 

SARA Superfund Amendments and Reauthorization Act 

TCE trichloroethylene 

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Page ii GAO-09-278 Defense Superfund Sites 
United States Government Accountability Office

Washington, DC 20548 

 

March 13, 2009 

The Honorable Edward J. Markey 

Chairman 

Subcommittee on Energy and Environment 

Committee on Energy and Commerce 

House of Representatives 

The Honorable John D. Dingell 

The Honorable Gene Green 

House of Representatives 

Prior to the 1980s and the passage of environmental legislation regulating 

the generation, storage, and disposal of hazardous waste, Department of 

Defense (DOD) activities and industrial facilities contaminated millions of 

acres of soil and water on and near DOD sites in the United States and its 

territories. DOD installations generate hazardous wastes primarily through 

industrial operations to repair and maintain military equipment. 

Manufacturing and testing weapons at Army ammunition plants and 

proving grounds have caused some serious contamination problems as 

well. To address the cleanup of hazardous substance releases nationwide, 

in 1980, Congress passed the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), better known as “Superfund.” 

Prior to the 1980s and the passage of environmental legislation regulating 

the generation, storage, and disposal of hazardous waste, Department of 

Defense (DOD) activities and industrial facilities contaminated millions of 

acres of soil and water on and near DOD sites in the United States and its 

territories. DOD installations generate hazardous wastes primarily through 

industrial operations to repair and maintain military equipment. 

Manufacturing and testing weapons at Army ammunition plants and 

proving grounds have caused some serious contamination problems as 

well. To address the cleanup of hazardous substance releases nationwide, 

in 1980, Congress passed the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), better known as “Superfund.” 

In 1986, CERCLA was amended by the Superfund Amendments and 

Reauthorization Act (SARA). SARA reflected concern with the adequacy 

and timeliness of DOD and other federal agency cleanups, which was 

compounded by the Environmental Protection Agency’s (EPA) 

unwillingness or inability to carry out enforcement actions against other 

federal agencies. SARA addresses this problem by (1) requiring DOD and 

other federal agencies to comply with CERCLA; (2) providing EPA with 

the authority to select remedies at federal facility National Priorities List 

(NPL) sites if agreement cannot be reached on the remedy to be selected; 

and (3) requiring federal agencies to enter into interagency agreements 

(IAG) with EPA at NPL sites. SARA also added a citizen suit provision to 

CERCLA specifically authorizing nonfederal parties such as states and 

citizens’ groups to sue DOD and other federal agencies to enforce the 

terms of IAGs, among other things; and established a Defense 

Environmental Restoration Program along with separate Department of 

the Treasury accounts specifically for DOD environmental cleanup 

activities—to better ensure cleanup funding availability—and requiring 

DOD to carry out those activities in accordance with CERCLA. 

In 1986, CERCLA was amended by the Superfund Amendments and 

Reauthorization Act (SARA). SARA reflected concern with the adequacy 

and timeliness of DOD and other federal agency cleanups, which was 

compounded by the Environmental Protection Agency’s (EPA) 

unwillingness or inability to carry out enforcement actions against other 

federal agencies. SARA addresses this problem by (1) requiring DOD and 

other federal agencies to comply with CERCLA; (2) providing EPA with 

the authority to select remedies at federal facility National Priorities List 

(NPL) sites if agreement cannot be reached on the remedy to be selected; 

and (3) requiring federal agencies to enter into interagency agreements 

(IAG) with EPA at NPL sites. SARA also added a citizen suit provision to 

CERCLA specifically authorizing nonfederal parties such as states and 

citizens’ groups to sue DOD and other federal agencies to enforce the 

terms of IAGs, among other things; and established a Defense 

Environmental Restoration Program along with separate Department of 

the Treasury accounts specifically for DOD environmental cleanup 

activities—to better ensure cleanup funding availability—and requiring 

DOD to carry out those activities in accordance with CERCLA. 

Page 1 GAO-09-278 Defense Superfund Sites nse Superfund Sites 
 

Section 120 of CERCLA, as amended, requires federal agencies to comply 

with CERCLA and submit information to EPA on certain potentially 

hazardous releases. EPA maintains this information in a Federal Agency 

Hazardous Waste Compliance Docket which includes a history of federal 

facilities that generate, transport, store, or dispose of hazardous waste or 

that have had some type of hazardous substance release or spill. 

For each site on the docket, CERCLA Section 120 requires EPA to take 

steps to ensure that a preliminary site assessment is conducted by the 

responsible federal agency.1

 The preliminary assessment, which is 

generally based on site records and other information regarding hazardous 

substances stored or disposed of at the facility, forms the basis for EPA to 

evaluate the site for listing on the NPL. EPA reviews preliminary site 

assessments to determine whether a site poses little or no threat to human 

health and the environment or requires further investigation or assessment 

for possible cleanup. Based on this assessment, EPA may then score and 

rank the site based on whether the contamination presents a potential 

threat to human health and the environment.2

 If a site scores at or above a 

minimum threshold for cleanup under CERCLA, EPA may place the site on 

the NPL or defer it to another regulatory authority, such as a state agency, 

for cleanup under other statutory authorities or programs, such as the 

Resource Conservation and Recovery Act (RCRA). As of November 2008, 

the NPL included 1,587 sites.3

 Of these, according to EPA officials, 140 

were federal DOD sites, representing almost 9 percent of the NPL.4

Section 120 of CERCLA also establishes specific procedures for cleaning 

up federal facilities on the NPL. As part of its oversight responsibility, EPA 

works with DOD to evaluate the nature and extent of contamination at a 

 

1

Executive Order 12580 directs the responsible federal agency to carry out the preliminary 

assessment. This executive order also delegates certain CERCLA authorities to the 

Department of Defense. 

2

The Hazard Ranking System (HRS) is the principal mechanism EPA uses to place sites on 

the NPL. The HRS serves as a screening device to evaluate the potential for releases of 

uncontrolled hazardous substances to cause human health or environmental damage. The 

HRS provides a measure of relative rather than absolute risk. It is designed so that it can be 

consistently applied to a wide variety of sites. [40 C.F.R. Pt. 300, App. A, § 1.0] 

3

The NPL is composed of 157 final and 15 deleted federal sites and 1,100 final and 315 

deleted private sites. 

4

For the purposes of this review, both NPL and non-NPL DOD sites are federal facilities 

where DOD is the agency responsible for the cleanup of hazardous waste resulting from 

past practices. 

Page 2 GAO-09-278 Defense Superfund Sites 
 

site, select a remedy, track cleanup and monitor the remedy’s 

effectiveness in protecting human health and the environment. Under 

Section 120 of CERCLA, DOD and EPA are required to enter into an IAG 

within 180 days of the completion of EPA’s review of the remedial 

investigation and feasibility study at a site. According to EPA officials, 

shortly after Section 120 was enacted, EPA and DOD acknowledged that 

regulatory oversight during the investigation phase was required if EPA 

was to meet its statutory obligation regarding remedy selection at NPL 

sites. Beginning in 1988, EPA and DOD agreed to model language for IAGs 

which included a provision to enter into IAGs earlier than mandated by 

statute—prior to the remedial investigation stage—to establish the roles 

and responsibilities of EPA and DOD to investigate and clean up sites. 

IAGs are required to include, at a minimum, a review of the alternative 

remedies considered and the selected remedy, a schedule for cleanup, and 

plans for long-term operations and maintenance. The Federal Facility 

Compliance Act, among other things, authorized EPA to order the cleanup 

of contaminated sites by initiating administrative enforcement actions 

against a federal agency under RCRA, on the same basis as they would be 

applied to private parties. 

Disputes have recently arisen between EPA and DOD regarding the terms 

of IAGs governing cleanup and whether EPA had a sufficient basis for 

administrative enforcement actions at several DOD sites. In addition, in 

recent years, EPA has added fewer sites to the NPL. According to EPA’s 

2007 annual report on Superfund, more than 75 percent of all sites listed 

on the NPL—both federal and nonfederal—were listed before 1991. Since 

fiscal year 2000, EPA added five DOD sites to the NPL (see fig. 1). 

Page 3 GAO-09-278 Defense Superfund Sites 
 

Figure 1: Annual Number of DOD Sites Placed on the NPL Has Declined Since the 1990s, Fiscal Years 1980–2008 

Number of sites

Source: EPA data.

Fiscal year

0

5

10

15

20

25

30

35

40

45

50

55

60

2008

199

1999

2000

2001

2002

2003

2004

2005

2006

2007

8

19

1990

1991

1992

1993

1994

1995

1996

1997

89

1988

1987

1986

1985

1984

1983

1982

1981

1980

In this context, we agreed to determine (1) the extent of EPA’s oversight 

during assessment and cleanup at DOD NPL and non-NPL sites and (2) 

why EPA has proposed fewer DOD sites for the NPL since the early 1990s. 

To determine the extent of EPA’s oversight during assessment and cleanup 

at NPL and non-NPL DOD sites, we reviewed EPA policies and 

documentation on oversight processes, and interviewed officials at EPA 

headquarters and four regional offices to determine the extent to which 

the agency helps to ensure that the most contaminated DOD sites are 

expeditiously assessed and cleaned up. We also reviewed documentation 

and interviewed DOD officials on the agency’s environmental restoration 

program and efforts to clean up contaminated DOD sites. To determine 

why EPA has proposed fewer DOD sites for the NPL since the early 1990s, 

we reviewed EPA’s file documentation on contaminated DOD sites and 

interviewed officials at EPA headquarters and selected EPA regions. We 

excluded from our review sites under DOD’s military munitions response 

program due to the ongoing uncertainty associated with defining 

unexploded ordnance as hazardous substances and the fact that GAO has 

ongoing work in this area. 

Page 4 GAO-09-278 Defense Superfund Sites 
 

We conducted work at four EPA regions—Atlanta, Chicago, Dallas, and 

San Francisco—which, taken together, are responsible for about half of all 

DOD sites in EPA’s database of contaminated federal facilities. We 

selected the Atlanta and Chicago regions because they are responsible for 

five DOD sites that EPA proposed for the NPL but which were not listed. 

We selected the San Francisco region because it has the largest number of 

contaminated DOD sites. We selected the Dallas region to pretest our 

review methodology because it was geographically convenient. We 

conducted this performance audit in accordance with generally accepted 

government auditing standards between January 2008 and March 2009. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. More detail on the scope and 

methodology of our review is presented in appendix I. 

While EPA evaluates DOD’s preliminary assessments of all DOD sites on 

the Hazardous Waste Compliance Docket, according to EPA officials, the 

agency has little to no enforceable oversight authority under Section 120 

of the cleanup of the majority of these sites because most are not on the 

NPL. Of the 985 current hazardous release DOD sites, EPA has oversight 

authority of the 140 DOD sites on the NPL; 11 of these NPL sites do not 

have IAGs in place that CERCLA Section 120 requires to guide cleanup 

activity, DOD choosing instead to conduct cleanup with minimal, if any, 

EPA oversight. The remaining 845 DOD sites are overseen by other 

cleanup authorities—primarily the states—or required no further action 

under CERCLA following assessment. Therefore, state agencies or another 

regulatory authority, rather than EPA, oversee the cleanup of hazardous 

substance releases at most contaminated DOD sites. Most states have their 

own cleanup programs to address hazardous waste sites and RCRA 

corrective action authority to clean up RCRA sites. While EPA regions 

have some oversight of states’ RCRA programs by reviewing site files and 

providing technical advice to states, EPA defers oversight authority to 

states for the cleanup of individual RCRA sites. Our review of 389 non-NPL 

DOD sites at four EPA regions showed that for more than one-half of these 

sites, EPA generally did not propose to list these sites because it 

determined that the condition of the sites did not satisfy the criteria to 

score a high Hazard Ranking System (HRS) score—that is, little to no 

hazardous release or the potential for a hazardous release was found—or 

because it deferred the sites to another cleanup program, most often 

RCRA. EPA regional officials were unable to provide documentation for 

Results in Brief 

Page 5 GAO-09-278 Defense Superfund Sites 
 

the agency’s decision not to list the remaining sites we reviewed, however, 

because original site file records were missing or inconclusive. EPA has 

IAGs with DOD in place for most of its NPL sites—129 of the 140 DOD 

sites on the NPL. According to an EPA headquarters official, EPA is 

generally satisfied with the cleanup of DOD NPL sites where there is an 

IAG. However, the remaining 11 sites do not have IAGs because DOD has 

disagreed with the terms of the provisions contained in the agreements, 

stating the terms conflict with or go beyond CERCLA or its regulatory 

requirements. Despite the CERCLA requirement for IAGs at all NPL 

federal facility sites, CERCLA Section 120 imposes no specific sanctions if 

a federal agency refuses to enter into an IAG. Although EPA may initiate 

administrative enforcement actions, in appropriate circumstances, under 

other laws, such as RCRA and the Safe Drinking Water Act, to compel 

DOD to clean up contaminated sites, EPA chose not to pursue 

enforcement actions until 2007, more than 10 years after these sites were 

listed on the NPL. In its most recent report to Congress in 2007, EPA noted 

the number of NPL sites with IAGs but did not explain the basis for the 11 

DOD sites without IAGs. Later that year, the agency issued administrative 

enforcement orders under RCRA and the Safe Drinking Water Act against 

four of these sites. Each order stated that contamination at the respective 

sites may present an imminent and substantial endangerment to health or 

the environment and directed DOD to carry out certain cleanup and 

related actions. In May 2008, DOD sent a memorandum to the Department 

of Justice (DOJ) asking DOJ to resolve a dispute over EPA’s authority to 

issue the orders. In December 2008, DOJ issued a letter upholding EPA’s 

authority to issue administrative cleanup orders at DOD NPL sites in 

appropriate circumstances, and to include in IAGs certain provisions other 

than those specifically enumerated in CERCLA.5

Since the mid-1990s, EPA has listed fewer DOD sites on the NPL than in 

previous years for three key reasons. First, EPA does not generally list 

DOD sites that are being addressed under other federal or state programs 

to avoid duplication of remedial actions. Second, DOD and EPA officials 

 

5

The letter stated that “because an interagency ‘agreement’ denotes a consensual 

undertaking, we do not think that DOD necessarily is required to agree to all extrastatutory terms demanded by EPA. We think that EPA nonetheless may require DOD to 

agree in the IAG to follow, ‘in the same manner and to the same extent’ as they apply to 

private parties, any ‘guidelines, rules, regulations, and criteria’ established by EPA and 

made applicable to non-federal facilities under CERCLA.” The letter also noted that 

whether the facts identified in each order present a sufficient basis to support EPA’s 

finding of an imminent and substantial endangerment is a factual issue that DOJ was 

unable to address. 

Page 6 GAO-09-278 Defense Superfund Sites 
 

told us that over the years, DOD has discovered fewer hazardous 

substance releases, making fewer sites available for listing. Fewer sites 

have been discovered, in part because DOD has been identifying and 

cleaning up hazardous releases for more than two decades, and because 

DOD has improved its management of waste generated during its ongoing 

operations. Finally, in rare instances, EPA did not list some contaminated 

defense sites due to the objections of other interested parties. For 

example, although EPA proposed listing five DOD sites between 1994 and 

2000, the agency ultimately chose not to complete the listing process for 

them. At four sites, the states’ governors did not support placement of 

these sites on the NPL. The governors for three of these sites cited the 

perceived stigma of NPL listing and potential adverse economic effect as 

the reasons why the state did not support listing. The governor did not 

support listing the fourth site after it was closed under the Base 

Realignment and Closure program and DOD began to clean up the site. 

Although EPA may list sites over the objections of a governor, EPA 

officials told us they generally do not list federal sites without a governor’s 

concurrence. According to EPA regional officials, EPA did not list the fifth 

DOD site because DOD objected, and the Office of Management and 

Budget (OMB) recommended against listing. OMB officials encouraged 

EPA to defer listing for 6 months to provide DOD with more time to 

address personnel and contractor changes and demonstrate remediation 

progress. If after that time, progress was not forthcoming, then listing was 

to be pursued, but in fact, never was. EPA officials said that cleanup has 

taken place at all five sites and that it was either unlikely or unclear that 

the sites would qualify for listing on the NPL based on the current 

conditions at the sites. 

We provided a draft of this report to EPA and DOD for review and 

comment. In general, EPA agreed with the findings and conclusions of our 

report and supported our suggestion that Congress consider amending 

CERCLA to expand the agency’s enforcement authority. While EPA stated 

that such authority would help assure timely and protective cleanup, DOD 

disagreed stating that EPA has sufficient involvement at NPL sites 

regardless of whether IAGs are in place and should strive to more 

effectively implement its authority under existing law. Despite DOD’s 

position that EPA is sufficiently involved at DOD NPL sites without IAGs, 

EPA disagrees. Statutory requirements provide for independent EPA 

oversight, not a mere opportunity for EPA review and comment. 

Therefore, we assert that expanding EPA’s enforcement authority is 

appropriate to ensure that cleanups are being done properly at federal 

facility NPL sites. 

Page 7 GAO-09-278 Defense Superfund Sites 
 

Various environmental statutes, including CERCLA and RCRA, govern the 

reporting and cleanup of hazardous substances and hazardous waste at 

DOD sites. Specific provisions in these laws establish requirements for 

addressing hazardous waste cleanup or management. Key aspects of these 

requirements for federal facilities are described below: 

Background 

Comprehensive Environmental Response, Compensation, and Liability 

Act. The Comprehensive Environmental Response, Compensation, and 

Liability Act (CERCLA) of 1980 was passed to give the federal government 

the authority to respond to actual and threatened releases of hazardous 

substances, pollutants, and contaminants that may endanger public health 

and the environment. The EPA program under CERCLA is better known as 

“Superfund” because Congress established a large trust fund that is used 

to pay for, among other things, remedial actions at nonfederal sites on the 

NPL.6

 Federal agencies are prohibited from using the Superfund trust fund 

to finance their cleanups and must, instead, use their own or other 

appropriations.7

Figure 2 depicts the number of NPL sites listed by EPA as of November 

2008, which totals 1,587 sites. Of these, 140 were DOD NPL sites, 

representing the majority of federal facility sites on the NPL. According to 

EPA’s 2007 annual report on Superfund, more than 75 percent of all sites 

on the NPL—both federal and private—were listed before 1991. Since 

fiscal year 2000, EPA has added five DOD sites to the NPL. 

 

6

This trust fund was financed primarily by taxes on crude oil and certain chemicals, as well 

as an environmental tax assessed on corporations based upon their taxable income. 

Although the authority for these taxes expired in 1995, the trust fund continued to receive 

revenue from various other sources, including appropriations from the general fund. EPA 

receives annual appropriations from the trust fund for program activities; since 1981, 

Superfund appropriations have totaled over $32 billion in nominal dollars, or about $1.2 

billion annually. 

7

GAO, Superfund: Funding and Reported Costs of Enforcement and Administration 

Activities, GAO-08-841R (Washington, D.C.: July 18, 2008). 

Page 8 GAO-09-278 Defense Superfund Sites 
 

Figure 2: Private, Federal, and DOD Sites on the NPL 

9%

2%

Other federal sites (32)

Defense sites (140)

Private sites (1,415)

89%

Source: EPA’s CERCLA database.

Note: As of November 2008, the total number of federal facilities and private sites on the NPL was 

1,587. The 32 other federal NPL sites included 21 Department of Energy sites, 2 Department of 

Agriculture sites, 1 Federal Aviation Administration site, 1 Coast Guard site, 2 National Aeronautics 

and Space Administration sites, 1 Small Business Administration site, 2 Department of the Interior 

sites, 1 Department of Transportation site, and 1 EPA site. 

CERCLA does not establish regulatory standards for the cleanup of 

specific substances, but requires that long-term cleanups comply with 

applicable or relevant, and appropriate requirements. These may include a 

host of federal and state standards that generally regulate exposure to 

contaminants. The National Oil and Hazardous Substances Pollution 

Contingency Plan (NCP) outlines procedures and standards for 

implementing the Superfund program. The NCP designates DOD as the 

lead agency at defense sites, though as described below, it must carry out 

its responsibilities consistent with EPA’s oversight role under Section 120 

Page 9 GAO-09-278 Defense Superfund Sites 
 

of CERCLA, including EPA’s final authority to select a remedial action if it 

disagrees with DOD regarding the remedy to be selected.8

In 1986, the Superfund Amendments and Reauthorization Act (SARA) 

added provisions to CERCLA specifically governing the cleanup of federal 

facilities. Under Section 120 of CERCLA, as amended, EPA must take steps 

that assure completion of a preliminary site assessment by the responsible 

agency for each site in the Federal Agency Hazardous Waste Compliance 

Docket.9

 This preliminary assessment is reviewed by EPA, together with 

additional information, to determine whether the site poses little or no 

threat to human health and the environment or requires further 

investigation or assessment for potential proposal to the NPL. SARA also 

added Section 211 of CERCLA, which established DOD’s Defense 

Environmental Restoration Program providing legal authority governing 

cleanup activities at DOD installations and properties. 

CERCLA Section 120 also establishes specific requirements governing 

IAGs between EPA and federal agencies. The contents of the IAGs must 

include at least the following three items: (1) a review of the alternative 

remedies considered and the selection of the remedy, known as a remedial 

action; (2) the schedule for completing the remedial action; and (3) 

arrangements for long-term operations and maintenance at the site. DOD 

and EPA are required to enter into an IAG within 180 days of the 

completion of EPA’s review of the remedial investigation and feasibility 

study at a site. 

SARA’s legislative history explains that, while the law already established 

that federal agencies are subject to and must comply with CERCLA, the 

addition of Section 120 provides the public, states, and EPA increased 

 

8

Under the NCP, DOD maintains its lead agency responsibilities whether the remedy is 

selected by DOD for non-NPL sites or by EPA and the federal agency or by EPA alone for 

NPL sites under CERCLA Section 120. Executive Order 12580, Superfund Implementation 

(Jan. 23, 1987) as amended delegates certain presidential authorities under CERCLA to the 

Secretary of Defense. Specifically, the executive order provides that CERCLA response 

authorities “are delegated to the Secretaries of Defense and Energy, with respect to 

releases or threatened releases where either the release is on or the sole source of the 

release is from any facility or vessel under the jurisdiction, custody or control of their 

departments, respectively, including vessels bare-boat chartered and operated. These 

functions must be exercised consistent with the requirements of Section 120 of the Act.” 

9

Executive Order 12580 delegates to DOD the authority for carrying out preliminary 

assessments and site inspections at DOD sites. CERCLA imposes no deadlines for 

completing preliminary assessments. 

Page 10 GAO-09-278 Defense Superfund Sites 
 

authority and a greater role in assuring the problems of hazardous 

substance releases at federal facilities are dealt with by expeditious and 

appropriate response actions.10 The relevant congressional conference 

committee report establishes that IAGs provide a mechanism for (1) EPA 

to independently evaluate the other federal agency’s selected cleanup 

remedy, and (2) states and citizens to enforce federal agency cleanup 

obligations, memorialized in IAGs, in court. 11 Specifically, the report states 

that while EPA and the other federal agency share remedy selection 

responsibilities, EPA has the additional responsibility to make an 

independent determination that the selected remedial action is consistent 

with the NCP and is the most appropriate remedial action for the affected 

facility. The report also observes that IAGs are enforceable documents just 

as administrative orders under RCRA and, as such, are subject to SARA’s 

citizen suit and penalties provisions. Thus, penalties can be assessed 

against federal agencies for violating terms of agreements with EPA.12

However, at sites without IAGs, EPA has only a limited number of 

enforcement tools to use in compelling compliance by a recalcitrant 

agency; similarly, states and citizens also lack a mechanism to enforce 

CERCLA. 

Resource Conservation and Recovery Act. In 1976, Congress passed the 

Resource Conservation and Recovery Act (RCRA) giving EPA the 

authority to regulate the generation, transportation, treatment, storage, 

and disposal of hazardous waste. Under RCRA, EPA may authorize states 

to carry out many of the functions of the statute in lieu of EPA under a 

 

10H.R. Rep. No. 99-253, pt. 1 at 95 (1985). 

11H.R. Conf. Rep. No. 99-962 at 242 (1986). 

12In technical comments on our report, DOD asserted that sufficient EPA oversight can 

occur without an IAG, so long as a signed record of decision exists for a given site. This 

view is inconsistent with the language in CERCLA Section 120 and the legislative history. 

First, Section 120 uses the term “interagency agreement,” not the term “record of decision” 

which appears elsewhere in SARA; a reference in Section 120 to IAGs instead of records of 

decision is far more than a semantic accident. Second, as indicated above, the IAG serves 

to provide a basis for enhanced EPA cleanup oversight as well as enforcement by states 

and citizens. DOD failed to explain how a record of decision would serve a similar purpose, 

and in particular failed to address the IAG’s role in enhancing state and citizen enforcement 

activities. While the conference committee report states that a record of decision signed by 

both EPA and the other federal agency can serve as an IAG, H.R. Conf. Rep. No. 99-962 at 

242, we read this to mean that the terms of the record of decision may also be used as the 

terms of the IAG if both parties agree and are otherwise consistent with CERCLA. To the 

extent the conference report can be read to suggest that an IAG is not required at a DOD 

NPL site with a co-signed record of decision, this reading is inconsistent with the language 

of the statute, which provides for no such exception. 

Page 11 GAO-09-278 Defense Superfund Sites 
 

state’s hazardous waste programs and laws. Almost all states are 

authorized to implement some portion of the RCRA program. Forty-eight 

states are currently authorized to implement the RCRA base program to 

manage hazardous waste treatment, storage, and disposal. (Only Alaska 

and Iowa are not authorized to implement the RCRA base program.) Fortythree states are authorized to implement the RCRA corrective action 

program which expands a state’s RCRA authority to include managing the 

cleanup of releases of hazardous waste and hazardous constituents. 

EPA has a policy to defer sites, which are being managed under RCRA, 

from placement on the NPL, known as the RCRA deferral policy. Where 

this policy is applied, cleanup proceeds under RCRA, generally through an 

authorized state corrective action program, rather than CERCLA. EPA 

regions may defer a federal facility site to RCRA even if the site is eligible 

for the NPL. In 1996, Congress amended CERCLA to authorize EPA to 

consider non-CERCLA cleanup authorities when making a listing 

determination for federal facility sites if the site is already subject to an 

approved federal or state cleanup plan. According to EPA policy, the 

criteria to defer a federal facility site from the NPL to RCRA are: (1) the 

CERCLA site is currently being addressed by RCRA Subtitle C corrective 

action authorities under an existing enforceable order or permit 

containing corrective action provisions; (2) the response under RCRA is 

progressing adequately; and (3) the state and community support deferral 

of NPL listing. According to EPA, deferral from one program to another is 

often the most efficient and desirable way to address overlapping 

requirements, and deferrals to RCRA may free CERCLA oversight 

resources for use in situations where another authority is unavailable. In 

these instances, state agencies or another regulatory authority, rather than 

EPA, oversee the cleanup of hazardous substance releases. 

Other non-CERCLA cleanup authorities EPA considers in deciding 

whether to list a site include state cleanup programs (often referred to as 

voluntary cleanup programs) and DOD’s environmental response program. 

See appendix II for a summary of these cleanup programs. 

The NCP provides the methods and criteria for carrying out site discovery, 

assessment, and cleanup activities under CERCLA. Figure 3 depicts the 

process by which EPA and federal agencies assess a site for inclusion on 

the NPL and address contamination at federal NPL sites. 

The CERCLA cleanup process is made up of a series of steps, during 

which specific activities take place or decisions are made. The key steps in 

this process are included in figure 3. 

Page 12 GAO-09-278 Defense Superfund Sites 
 

Figure 3: Key Stages of the CERCLA Process to Address and Clean Up Hazardous Waste at Federal Facilities 

Federal agency

discovers hazardous

release site

EPA places site in

federal docket

Preliminary

Assessment

(performed

for every site

in docket)

Is the

preliminary HRS

score greater

than 28.5?

Is the

preliminary HRS

score greater

than 28.5?

No further

remedial action

planned (defer site)

Site Inspection

Are there

other cleanup

alternatives?

• Pursue non-NPL cleanup

alternatives

• Provide information to

states and other regulatory

programs

• Seek governor concurrence

• Complete HRS package

• Propose site for listing

National

Priorities List

(NPL)

Remedial Investigation/

Feasibility Study (conducted

within 6 months of listing on NPL)

Interagency Agreement

(signed within

6 months of RI/FS)

Record of Decision Remedial

Design/Remedial

Action

Are there

contaminants

left in place?

Long-term

monitoring

continues

5-year reviews

must take place

Yes Yes

Yes

Yes

No

No

No

No

Source: EPA.

Long-term monitoring

(if contamination

left in place)

Site

Assessment

Remediation

Monitoring

Page 13 GAO-09-278 Defense Superfund Sites 
 

Site discovery. When a federal agency identifies an actual or suspected 

release or threatened release to the environment on a federal site, it 

notifies EPA, which then lists the site on its Federal Agency Hazardous 

Waste Compliance Docket. The docket is a listing of all federal facilities 

that have reported hazardous waste activities under three provisions of 

RCRA or one provision of CERCLA. RCRA and CERCLA require federal 

agencies to submit to EPA information on their facilities that generate, 

transport, store, or dispose of hazardous waste or that have had some type 

of hazardous substance release or spill. EPA updates the docket 

periodically. 

Preliminary assessment. The lead agency (DOD, in this case) conducts a 

preliminary assessment of the site by reviewing existing information, such 

as facility records, to determine whether hazardous substance 

contamination is present and poses a potential threat to public health or 

the environment. EPA regions review preliminary assessments to 

determine whether the information is sufficient to assess the likelihood of 

a hazardous substance release, a contamination pathway, and potential 

receptors. EPA regions are encouraged to complete their review of 

preliminary assessments of federal facility sites listed in EPA’s CERCLA 

database within 18 months of the date the site was listed on the federal 

docket. EPA may determine the site does not pose a significant threat to 

human health or the environment and no further action is required. If the 

preliminary assessment indicates that a long-term response may be 

needed, EPA may request that DOD perform a site inspection to gather 

more detailed information. 

Docket Reporting Categories

The categories for listing a facility on the 

docket provide an initial basis for assessing 

hazardous waste contamination. The four 

reporting categories are:

• RCRA Section 3005: facilities for which 

agencies have applied for an EPA permit 

for hazardous waste treatment, storage, or 

disposal.

• RCRA Section 3010: facilities where 

hazardous materials are generated, 

transported, treated, stored, or disposed.

• RCRA Section 3016: facilities with 

hazardous waste activities that federal 

agencies have reported in their inventories. 

• CERCLA Section 103: facilities for which 

agencies have reported any releases or 

spills of a hazardous substance.

Every 6 months, EPA is also required to 

publish in the Federal Register a list of the 

federal facilities that were added to the 

docket during the preceding 6-month 

period and notify regions of any actual or 

threatened hazardous substance release. 

At about the same time, EPA also lists

these sites in its computerized CERCLA 

information database, an inventory of 

actual and potential hazardous releases at 

federal and private sites. As of October 

2008, EPA’s CERCLA information 

database listed 12,621 federal and private 

sites. 

Site inspection. The lead agency (DOD, in this case) samples soil, 

groundwater, surface water, and sediment, as appropriate, and analyzes 

the results to prepare a report that describes the contaminants at the site, 

past waste handling practices, migration pathways for contaminants, and 

receptors at or near the site. EPA reviews the site inspection report and, if 

it determines the release poses no significant threat, EPA may eliminate it 

from further consideration. If EPA determines that hazardous substances, 

pollutants, or contaminants have been released at the site, EPA will use 

the information collected during the preliminary assessment and site 

inspection to calculate a preliminary HRS score. 

HRS scoring. If EPA determines that a significant hazardous substance 

release has occurred, the EPA region prepares an HRS scoring package. 

EPA’s HRS assesses the potential of a release to threaten human health or 

the environment by assigning a value to factors related to the release such 

as (1) the likelihood that a hazardous release has occurred; (2) the 

Page 14 GAO-09-278 Defense Superfund Sites 
 

characteristics of the waste, such as toxicity and the amount; and (3) 

people or sensitive environments affected by the release. 

National Priorities List. If the release scores an HRS score of 28.50 or 

higher, EPA determines whether to propose the site for placement on the 

NPL. CERCLA requires EPA to update the NPL at least once a year. 

Governor’s concurrence. Before placing a site on the NPL, the EPA 

Regional Administrator sends a written inquiry to the governor seeking a 

written response from the state addressing whether it will support a listing 

decision. According to EPA regional officials, EPA usually contacts the 

governor before calculating the HRS score due to the high cost and length 

of time required to prepare a scoring package. If EPA calculates an HRS 

score of 28.50 or higher and the governor agrees with EPA to list the site, 

the site is eligible for inclusion on the NPL. However, where the governor 

does not support listing, but the EPA region firmly believes listing is 

necessary, a process, involving OMB for federal facilities, is followed 

before a listing decision is made. 

Following the decision to place a site on the NPL, several steps lead to the 

selection of a cleanup remedy and its long-term operation and 

maintenance. These steps are described below: 

Remedial investigation and feasibility study. Within 6 months after EPA 

places a site on the NPL, the lead agency (DOD, in this case) is required to 

begin a remedial investigation and feasibility study to assess the nature 

and extent of the contamination. The remedial investigation and feasibility 

study process includes the collection of data on site conditions, waste 

characteristics, and risks to human health and the environment; the 

development of remedial alternatives; and testing and analysis of 

alternative cleanup methods to evaluate their potential effectiveness and 

relative cost. EPA, and frequently the state, provide oversight during the 

remedial investigation and feasibility study and the development of a 

proposed plan, which outlines a preferred cleanup alternative. After a 

public comment period on the proposed plan, EPA and the federal facility 

sign a record of decision that documents the selected remedial action 

cleanup objectives, the technologies to be used during cleanup, and the 

analysis supporting the remedy selection. 

Interagency agreement. Within 6 months of EPA’s review of DOD’s 

remedial investigation and feasibility study, CERCLA, as amended, 

requires that DOD enter into an IAG with EPA for the expeditious 

completion of all remedial action at the facility. (EPA’s policy however, is 

Page 15 GAO-09-278 Defense Superfund Sites 
 

for federal facilities to enter into an IAG after EPA places the site on the 

NPL.) The IAG is an enforceable document that must contain, at a 

minimum, three provisions: (1) a review of remedial alternatives and the 

selection of the remedy by DOD and EPA, or remedy selection by EPA if 

agreement is not reached; (2) schedules for completion of each remedy; 

and (3) arrangements for the long-term operation and maintenance of the 

facility. 

Remedial design and remedial action. During the remedial design and 

remedial action process, the lead agency (DOD, in this case) develops and 

implements a permanent remedy on the site as outlined in the record of 

decision and IAG. 

Monitoring. Long-term monitoring occurs at every site following 

construction of the remedial action. This includes the collection and 

analysis of data related to chemical, physical, and biological 

characteristics at the site to determine whether the selected remedy meets 

CERCLA objectives to protect human health and the environment. For 

NPL or non-NPL sites where hazardous substances, pollutants, or 

contaminants were left in place above levels that do not allow for 

unlimited use and unrestricted exposure, every 5 years following the 

initiation of the remedy, the lead agency (DOD, in this case) must review 

its sites. The purpose of a 5-year review, similar to long-term monitoring, is 

to assure that the remedy continues to meet the requirements contained in 

the record of decision and is protective of human health and the 

environment. 

Federal Facility Compliance Act. The Federal Facility Compliance Act of 

1992, which amended RCRA, authorizes EPA to order the cleanup of 

contaminated sites by initiating administrative enforcement actions 

against a federal agency under RCRA, including the imposition of fines and 

penalties. The act authorizes EPA to initiate administrative enforcement 

actions against federal agencies in the same manner and under the same 

circumstances as actions would be initiated against a person. 

Enforcement. Several factors hinder the enforcement of cleanup 

requirements at federal facilities. DOJ has taken the position that EPA may 

not sue another federal agency to enforce cleanup requirements. EPA may 

not issue cleanup orders under CERCLA to other federal agencies without 

DOJ’s concurrence. EPA may issue cleanup orders to other federal 

agencies under RCRA and the Safe Drinking Water Act, but not all RCRA 

orders can provide for administrative penalties. IAGs also generally 

contain administrative penalty provisions. Third parties, such as states and 

Page 16 GAO-09-278 Defense Superfund Sites 
 

citizens groups, may sue to enforce IAGs and administrative orders under 

the “citizen suit” and other public participation provisions of CERCLA, 

RCRA, and Safe Drinking Water Act, but such litigation can be time 

consuming.13

While EPA oversees and evaluates DOD’s preliminary assessments of all 

DOD sites suspected of having a hazardous release, the agency has little to 

no oversight of the cleanup of most of these sites because most are not on 

the NPL. EPA reviews DOD sites to determine whether to propose 

placement on the NPL. However, only 140 of the 985 current DOD sites 

with hazardous waste appear on the NPL. EPA and DOD have not finalized 

IAGs for the remaining 11 sites, which impedes EPA’s ability to enforce 

cleanup, such as approving detailed cleanup schedules and applying 

administrative penalties. EPA only recently began using enforcement 

action at DOD NPL sites where an IAG is not in place. State agencies, 

rather than EPA, oversee the cleanup of hazardous waste at most DOD 

sites. 

DOD performs preliminary assessments of all federal DOD sites on the 

Federal Agency Hazardous Waste Compliance Docket. EPA regions review 

the assessments to determine whether releases pose a threat to human 

health and the environment and if so, whether hazardous substances are 

being released into the environment. DOD’s preliminary assessments are 

based on readily available and historical data of suspected releases on 

DOD sites. DOD reports the results of preliminary assessments to EPA, 

which often requests additional information such as data on site 

geography, prior activities at the site, and the source and destination of the 

hazardous release. According to EPA guidance, EPA regions should 

complete their review of preliminary assessments within 18 months of 

when the site was listed on the federal docket; however, EPA officials 

from two regions told us that DOD may take 2 to 3 years to complete a 

preliminary assessment because EPA does not have an independent 

authority under CERCLA to enforce a time line for completion of the 

preliminary assessment. Based on their review of the preliminary 

assessment, EPA regional officials may determine that no further action is 

EPA Evaluates All 

Potentially 

Contaminated DOD 

Sites for Listing, but 

Does Not Oversee 

Cleanup at Most 

Hazardous Waste 

DOD Sites 

EPA Reviews DOD Sites to 

Determine whether to 

Propose NPL Listing 

 

13DOD recently asserted that a state’s decision to sue to enforce compliance with a cleanup 

order could result in the state losing certain DOD grant funds. Recently, an organization of 

state waste management officials criticized DOD’s position as being inconsistent with 

statutes, such as RCRA, that authorize states to bring such enforcement actions. 

Page 17 GAO-09-278 Defense Superfund Sites 
 

needed at the site or request that DOD perform a more comprehensive site 

inspection by sampling groundwater and other media on site. Following 

DOD’s investigation, EPA regional officials may: determine that no further 

action is needed at the site; defer the site to another regulatory authority, 

such as a state agency, for cleanup; or begin the process to propose the 

site for placement on the NPL. 

Of the 985 DOD sites contaminated with hazardous substances, EPA 

placed 140 sites—about 15 percent—on the NPL; the remaining 845 sites 

are generally overseen by a cleanup authority other than EPA. Sites on the 

NPL are considered among the most dangerous of all hazardous substance 

sites, based on the evaluation criteria used by EPA. EPA may propose to 

list sites that (1) have an HRS score of 28.50 or higher; (2) a state 

designates as its top priority, regardless of the HRS score; or (3) are 

subject to a health advisory issued by the Agency for Toxic Substances 

and Disease Registry and meet certain other criteria.14 In practice, 

however, few sites meet these criteria. Further, even if a site is eligible for 

placement on the NPL based on the HRS score, EPA may choose to defer 

the site to RCRA. As we discuss later in this report, our review of non-NPL 

DOD sites in four EPA regions demonstrated that available data 

supporting these decisions is limited. EPA regional officials were unable to 

provide a rationale for EPA’s decision to not list almost one-half of the 389 

sites that we reviewed because site file documentation was inconclusive 

or missing. For the remaining sites, EPA did not propose listing because 

officials determined the sites did not satisfy the criteria to score a high 

HRS score or deferred them to another regulatory authority. 

Although EPA has IAGs in place with DOD for 129 of the 140 DOD sites on 

the NPL, IAGs have not been finalized at the remaining 11 sites remaining. 

According to an EPA headquarters official, EPA is generally satisfied with 

the cleanup of DOD NPL sites where DOD has signed IAGs. EPA has 

encountered few problems at these sites, the EPA official said, because 

DOD is held accountable for compliance with the provisions of the IAGs 

and if differences arise, the agreements provide EPA with an enforceable 

Few Hazardous Waste 

DOD Sites Considered for 

Listing Are Ultimately 

Placed on the NPL 

More than a Decade after 

Listing, 11 DOD NPL Sites 

Do Not Have IAGs, 

Impeding EPA’s Ability to 

Enforce Cleanup Actions 

at Those Sites 

 

14The Agency for Toxic Substances and Disease Registry, part of the Department of Health 

and Human Services, performs specific functions concerning the effect on public health of 

hazardous substances in the environment such as public health assessments of waste sites, 

response to emergency releases of hazardous substances, and education and training 

concerning hazardous substances. 

Page 18 GAO-09-278 Defense Superfund Sites 
 

process to address the issue. EPA and DOD have not finalized IAGs for the 

remaining 11 DOD NPL sites, however. As a result, DOD has been cleaning 

up 11 sites without IAGs, inhibiting EPA’s ability to seek enforcement 

actions that compel attention to schedules and milestones. Under 

CERCLA, as amended, EPA and DOD must enter into negotiated IAGs for 

the expeditious completion of all necessary remedial action at each DOD 

site on the NPL. IAGs must include, at a minimum, the alternative 

remedies and the selected remedy, a schedule for completing the remedial 

action, and arrangements for long-term operation and maintenance of the 

facility. According to EPA, the schedule is enforceable and often found in 

a site management plan that documents and provides for re-evaluation of 

schedules and priorities for cleanup. In addition, EPA officials indicated 

that IAGs generally also include consultative provisions that document 

time frames for review and comment on documents by each agency as 

well as administrative penalties for DOD’s failure to comply with the 

agreed-upon cleanup tasks and milestones. The IAG therefore documents 

EPA’s expectations of DOD, and provides for administrative penalties 

against the department when it does not comply with the activities agreed 

to in the document. Without the IAG, EPA does not have the needed 

criteria, or a foundation upon which an enforcement action may be taken, 

and has limited ability to sanction DOD without going to court, which DOJ 

does not allow it to do. The 11 DOD NPL sites—2 Army, 2 Navy, and 7 Air 

Force facilities—were placed on the NPL at least a decade ago, between 

1994 and 1999, except for 1 of the Air Force sites, which was listed in 

1983.15 As of early March 2009, however, DOD has not finalized IAGs for 

 

15The 11 DOD NPL sites without IAGs include (1) Air Force Plant 44, Arizona; (2) Andrews 

Air Force Base, Maryland; (3) Brandywine Defense Reutilization and Marketing Office 

Salvage Yard, Maryland; (4) Fort Meade, Maryland; (5) Hanscom Field, Massachusetts; (6) 

Langley Air Force Base, Virginia; (7) McGuire Air Force Base, New Jersey; (8) Naval Air 

Station Whiting Field, Florida; (9) Naval Computer Telecommunication Area 

Administrative Master Station, Hawaii; (10) Redstone Arsenal, Alabama; and (11) Tyndall 

Air Force Base, Florida. A twelfth NPL site, Middlesex Sampling Plant, New Jersey, also 

does not have an IAG. Middlesex is listed in EPA’s CERLCA information database as a 

Department of Energy site even though the Fiscal Year 1998 Energy and Water 

Appropriations Bill transferred management of the site to the Army Corps of Engineers. 

While EPA officials said that the agency considers Middlesex to be a DOD NPL site for the 

purposes of enforcement and negotiation of IAGs, we excluded it from our list of DOD sites 

without IAGs. 

Page 19 GAO-09-278 Defense Superfund Sites 
 

any of these sites. 16 In its most recent report to Congress for fiscal year 

2007, EPA indicated the number of NPL sites with IAGs and facilities 

where EPA had issued enforcement orders. However, EPA’s report did not 

clearly indicate that there were 11 DOD NPL sites without IAGs and the 

reasons why. 

There is a long history of EPA and DOD efforts to negotiate IAGs, 

beginning in 1988. Key actions taken by these agencies are listed in table 1. 

Table 1: Chronology of Events to Negotiate IAGs for DOD NPL Sites 

Date Event 

1987–1988 Following the passage of SARA in 1986, DOD finalized IAGs with 

EPA at 4 NPL sites. 

June 1988 To facilitate negotiation of additional IAGs, EPA and DOD approved a 

model agreement that included: 

• Standard language for 11 provisions—such as dispute resolution, 

enforcement, and stipulated penalties—to address fines for 

failure to submit certain documents or comply with the terms and 

conditions of the agreement. 

• A list of 27 other provisions—such as remedial action, site 

access, and transfer of property—where the specific terms were 

left to be negotiated for each site. 

1989–1998 One hundred-three DOD NPL sites finalized IAGs with EPA. 

February 1999 EPA and DOD agreed to modify the model agreement in light of 

changes to DOD’s budget and increasing costs of operations to 

include: 

• Modified provisions for deadlines (near-term milestones) and 

funding. 

• New provisions for a site management plan, budget 

development, and scheduling. 

1999–2003 Twelve DOD NPL sites finalized IAGs with EPA. 

 

16On Mar. 4, 2009, the Navy began the process for finalizing IAGs at two of its sites. The 

Navy signed IAGs for the Naval Air Station Whiting Field in Florida and the Naval 

Computer Telecommunication Area Administrative Master Station in Hawaii. Since EPA 

has also signed the IAGs, the next steps will be to obtain the states’ signatures followed by 

a public comment period and EPA final review. At the conclusion of this process, the IAGs 

will be considered effective. 

Page 20 GAO-09-278 Defense Superfund Sites 
 

Date Event 

October 2003 EPA and DOD agreed to the following: 

• Modified the model agreement to add provisions for institutional 

and engineering controls to ensure that contaminants do not 

pose an unacceptable risk to human health or the environment at 

sites where contamination is left in place. 

• Established a “dual-track” approach whereby EPA and DOD 

allow the military services to negotiate land use control 

provisions for sites with EPA following one of two approachesa

 

2004–2008 Ten DOD NPL sites finalized IAGs with EPA. 

July–November 

2007 

EPA issued administrative cleanup orders to four DOD NPL sites that 

did not have IAGs. 

December 2007 While the military services were allowed to continue to negotiate IAGs 

with EPA, the Office of the Secretary of Defense directed that they 

must follow the model agreement, and any additional provisions 

added to the IAG must first be approved by OSD and the other 

services. Further, any changes to the provisions of the model IAG 

would be allowed only through negotiations between OSD and EPA. 

May 2008 DOD asked DOJ and OMB to resolve a dispute between DOD and 

EPA over the terms of the IAGs and the circumstances under which 

EPA may issue administrative orders. 

December 2008 DOJ issued a letter upholding EPA’s authority to issue administrative 

cleanup orders at DOD NPL sites in appropriate circumstances, and 

to include in IAGs certain provisions other than those specifically 

enumerated in CERCLA. 

January 2009 Eleven DOD NPL sites do not have IAGs. 

February 2009 The Deputy Under Secretary of Defense notifies EPA that DOD is 

willing to accept the latest IAG for Fort Eustis in Virginia as the new 

model for the remaining DOD NPL sites without IAGs and instructs 

the military services to begin negotiations with EPA. 

March 2009 On March 4, the Navy signed IAGs for the Naval Air Station Whiting 

Field in Florida and the Naval Computer Telecommunication Area 

Administrative Master Station in Hawaii. Since EPA also signed these 

IAGs, the next steps required before the agreements are effective 

include acquiring the states’ signatures and completing a public 

comment period and EPA review. 

Source: DOD and GAO’s analysis of relevant documents and interviews with agency personnel. 

a

The dual-track approach is a set of two principles for negotiating land use control provisions. Based 

on Navy and Air Force principles, the Navy’s approach was to negotiate terms beyond the model 

agreement while the Air Force’s approach was to add language to a record of decision without 

changing the language of the provision in the agreement. 

Although CERCLA requires that federal agencies enter into IAGs with EPA 

to govern the cleanup of NPL sites within 180 days of EPA’s review of the 

remedial investigation and feasibility study, DOD officials told us they 

have not finalized IAGs for 11 NPL sites because DOD disagreed with 

some of the terms of the provisions contained in the agreements. DOD 

also indicated they feel that EPA has adequate authority through its 

Page 21 GAO-09-278 Defense Superfund Sites 
 

remedy selection process and that the IAG serves primarily as an 

administrative roadmap.17 Although the Defense Environmental 

Restoration Program statute requires DOD to take actions that provide 

EPA with adequate opportunity to review and comment at key phases of 

cleanup, there are no formal ramifications when DOD does not comply. 

Without an IAG, EPA lacks a documentation roadmap that demonstrates 

review and comment on key decisions. An IAG would identify areas of 

concern at a site and the process being used to address them. At DOD NPL 

sites without IAGs, such as at Langley Air Force Base in Maryland, DOD 

did not obtain EPA concurrence before signing a unilateral record of 

decision that identifies the remedial action. As a result, according to EPA, 

the agency cannot confirm whether all areas of contamination have been 

identified or whether they are being addressed properly. In 1988 and 

supplemented in 1999 and 2003, DOD and EPA developed model language 

for specific provisions representing the most contentious issues 

encountered in earlier negotiations. Although DOD agreed to the model 

language, it has disagreed with some of the specific terms contained in the 

provisions of agreements based on these models, such as those that, in 

DOD’s opinion, conflict with or go beyond CERCLA or its regulatory 

requirements. DOD officials also stated that EPA has been unwilling to 

negotiate the terms of these provisions with DOD. 

Although EPA has some oversight of the cleanup of NPL sites where DOD 

has not entered into an IAG, EPA officials told us the agency has only 

limited ability to carry out cleanup enforcement actions at federal 

facilities. For example, at sites where DOD has entered into an IAG, EPA 

has the authority to approve and modify a sites’ sampling plan. In contrast, 

at NPL sites without an IAG, although DOD may send copies of draft plans 

and reports to EPA, it is often without regard to schedule or a process for 

vetting issues back and forth as defined in IAG provisions. Therefore, 

EPA’s role is limited to reviewing many plans after they are finalized 

without the opportunity to provide input to the cleanup process. 

According to EPA headquarters officials, EPA is not seeking excessive 

enforcement authority at DOD NPL sites but intends to hold DOD to the 

same enforceable oversight it has at private sites. In fact, federal agencies 

are more often subject to much less stringent enforcement provisions. 

DOJ has taken the position that EPA may not sue another federal agency 

 

17As discussed in the background section of this report, SARA’s legislative history suggests 

that IAGs serve primarily as a tool for EPA oversight and as the primary cleanup 

enforcement mechanism at DOD NPL sites. 

Page 22 GAO-09-278 Defense Superfund Sites 
 

to enforce cleanup requirements, which effectively restricts EPA’s ability 

to compel compliance through civil judicial litigation. According to EPA, 

enforcement provisions contained in the agreements, such as stipulated 

penalties, are generally less onerous for federal facilities than they are for 

private parties. The terms of the provisions, regardless of whether they are 

based on model language agreed upon between DOD and EPA, are 

necessary for EPA to carry out its role to enforce the cleanup process, 

EPA officials said. The IAG is not simply an administrative document but 

an essential tool, without which EPA and the states cannot assure the 

public that DOD is properly identifying and addressing hazardous waste at 

contaminated DOD sites.18

EPA Only Recently Used 

Enforcement Action at 

DOD NPL Sites Without 

IAGs 

Although EPA may initiate enforcement actions to compel the cleanup of 

contaminated sites, EPA only recently began to use this authority at DOD 

NPL sites without IAGs. In 2007, EPA issued four administrative cleanup 

orders—three under RCRA and one under the Safe Drinking Water Act19—

to four DOD NPL sites––Tyndall Air Force Base in Florida, McGuire Air 

Force Base in New Jersey, Air Force Plant 44 in Arizona, and Fort Meade 

in Maryland—that do not have IAGs. The orders stated that an imminent 

and substantial endangerment from contamination may be present on the 

sites and required DOD to notify EPA of its intent to comply with the 

orders and clean up. The Air Force did not agree with EPA’s assertion that 

an imminent and substantial endangerment existed at Air Force Plant 44, 

but agreed to perform the work required by the order. At the remaining 

two Air Force sites and one Army site, the services disagreed with EPA’s 

assertion that an imminent and substantial endangerment existed and 

indicated that the failure to enter into an IAG at the site was an 

inappropriate basis for issuing an order. The Air Force also argued that 

compliance with the orders would not accelerate study and cleanup but, 

rather, that the additional paperwork required for compliance would delay 

implementation of ongoing investigation and cleanup. The Air Force and 

Army did not notify EPA of their intent to comply with the orders within 

the time frame required and stated they would continue to clean up these 

sites under their CERCLA removal and lead agency authority. According to 

 

18This view is consistent with the portions of SARA’s legislative history that discuss the IAG 

provision. 

19The Safe Drinking Water Act and its amendments established standards and treatment 

requirements for the nation’s drinking water supply and delegated primary implementation 

and enforcement authority to the states. 

Page 23 GAO-09-278 Defense Superfund Sites 
 

DOD, some of these sites are nearly cleaned up. For example, as of July 

2008, DOD estimated that three of the four sites had cleaned up about twothirds or more of the contamination on site. According to EPA 

headquarters officials, DOD’s estimation of the cleanup at these sites is 

inconsistent with EPA’s assessment and there is still much work to be 

performed at each of these sites. For example, according to EPA 

headquarters officials, Tyndall Air Force Base has not completed a single 

record of decision for work to be performed and McGuire Air Force Base 

has not completed a single investigation. 

In May 2008, DOD requested that DOJ and OMB resolve the disagreement 

between DOD and EPA as to the basis upon which EPA may issue 

imminent and substantial endangerment orders under RCRA and the Safe 

Drinking Water Act, and the terms of federal facility agreements regarding 

cleanup at DOD NPL sites. As of November 2008, OMB was noncommittal 

regarding its involvement. On December 1, 2008, DOJ issued a letter 

upholding EPA’s authority to issue administrative cleanup orders at DOD 

NPL sites in appropriate circumstances. Specifically, the letter stated, 

among other things, that 

• EPA may issue imminent and substantial endangerment orders to DOD in 

accordance with RCRA and the Safe Drinking Water Act; 

• EPA may issue such orders at a site even if it would not have done so had 

there been an IAG under CERCLA for the site; and 

• while IAGs are consensual undertakings, and DOD is not necessarily 

required to agree to all IAG terms EPA seeks beyond those enumerated in 

CERCLA, EPA may require DOD to agree in an IAG to follow EPA 

guidelines, rules, and criteria in the same manner, and to the same extent 

as these apply to private parties.20

 

20The letter is available at 

http://www.fedcenter.gov/_kd/go.cfm?destination=ShowItem&Item_ID=11085. DOD has 

also asked OMB to review the terms of the IAGs regarding cleanup at these sites. An 

executive order provision implementing CERCLA Section 120 directs OMB to facilitate 

resolution of disputes between EPA and DOD; Executive Order 12580, § 10(a). As of 

November 2008, OMB has been noncommittal regarding its role with DOD and EPA. 

Page 24 GAO-09-278 Defense Superfund Sites 
 

As of early March 2009, the Air Force and Army did not have IAGs for 

these four sites, including the site being cleaned up under the Safe 

Drinking Water Act order. 21

Because the majority of contaminated DOD sites are not on the NPL, most 

DOD site cleanups are overseen by state agencies rather than EPA, as 

allowed by CERCLA. CERCLA provides that state cleanup and 

enforcement laws apply to federal facilities not included on the NPL. 

Under CERCLA, EPA may choose to defer a federal facility site to another 

cleanup authority, such as RCRA, even though the site is eligible for 

placement on the NPL. Of the 845 DOD sites not on the NPL, EPA 

generally determined that no further action was needed at the sites either 

because (1) the sites did not have hazards that would score high enough 

for NPL listing or (2) EPA deferred oversight of DOD’s response at the 

sites to the states or other regulatory authorities. Most states have their 

own cleanup programs to address hazardous waste sites and RCRA 

corrective action authority to clean up RCRA sites. While EPA regions 

have some oversight of states’ RCRA programs by reviewing site files and 

providing technical advice to the state, EPA defers oversight authority to 

states for the cleanup of non-NPL RCRA sites. EPA does not exercise dayto-day oversight of state cleanup programs but has entered into 

memorandums of understanding or agreement with some states. For 

example, EPA and the state of Ohio entered into a memorandum of 

agreement that defined the roles and responsibilities of EPA and the state 

for non-RCRA cleanups. 

State Agencies Oversee the 

Cleanup of Hazardous 

Waste at Most DOD Sites 

 

21On Dec. 12, 2008—almost 1 year after the effective date of the administrative order—the 

Army submitted to EPA its notice to comply with the order at Fort Meade, Maryland. On 

Dec. 23, 2008, the State of Maryland filed suit against the Army seeking to compel the 

Army’s compliance with EPA’s administrative order at Fort Meade. 

Page 25 GAO-09-278 Defense Superfund Sites 
 

Since the 1990s, EPA has proposed fewer DOD sites for the NPL than in 

previous years for three key reasons. First, EPA defers the majority of 

DOD sites to other statutory authorities for cleanup under state oversight, 

and to avoid duplicating efforts, it does not list these sites. Second, over 

the years, DOD has discovered fewer hazardous substance releases, 

resulting in fewer sites for assessment and potential proposal for the NPL. 

Third, state officials or other federal agencies may, on occasion, object to 

EPA’s proposal to list contaminated DOD sites, and while EPA can still 

propose listing the site, it usually does not. Based on our review of 389 

unlisted DOD sites from four EPA regions, we found EPA did not list 

about half of these sites because EPA determined that little to no 

hazardous release had occurred or it deferred the site to a state for 

oversight, often because a contamination response was already underway. 

In 1996, Congress amended CERCLA to specify that a response under 

another cleanup authority is an appropriate factor to consider when 

making a determination whether to list a federal site.22 Since then, EPA has 

generally not proposed listing contaminated DOD sites that are being 

cleaned up under other federal or state programs. Under EPA’s deferral 

policy, it may choose to defer sites to RCRA, even if sites are eligible for 

the NPL, where (1) the CERCLA site is currently being addressed by RCRA 

Subtitle C corrective action authorities under an existing enforceable 

order or permit containing corrective action provisions, (2) the response is 

progressing adequately, and (3) the state supports deferral of placement 

on the NPL. According to EPA headquarters officials, during the early 

years of CERCLA, the Superfund program was the primary means by 

which EPA assured that contamination at federal facilities was assessed 

and cleaned up. In recent years, however, other cleanup programs such as 

RCRA have evolved and matured so that placement on the NPL is just one 

of several tools available to address contamination. EPA policy allows 

regions to defer a federal facility site to RCRA even though the site is 

eligible for the NPL. Officials from two EPA regions said that almost all of 

the region’s DOD sites were being cleaned up under RCRA at the time they 

were assessed and to avoid adding unnecessary and redundant regulatory 

oversight, the regions chose to leave them under RCRA for cleanup. EPA 

regions also defer sites from the NPL that are being cleaned up under a 

state cleanup program. EPA headquarters officials said that many sites 

proposed for placement on the NPL were referred to EPA by the states but 

EPA Proposes Few 

Contaminated DOD 

Sites Based on EPA 

Policy and DOD’s 

Maturing Inventory of 

Hazardous Waste 

Sites 

EPA Does Not List DOD 

Sites That Are Cleaned Up 

under RCRA or Other 

Programs 

 

22Pub. L. No. 104-201, Div. A, Title III, §§ 330, 110 Stat. 2484 (1996). 

Page 26 GAO-09-278 Defense Superfund Sites 
 

that, over the years, states developed their own cleanup programs and did 

not refer as many sites to EPA. As a result, EPA headquarters officials said 

that EPA is not proposing to list as many sites based on states’ referrals. 

DOD is discovering and reporting fewer new or additional hazardous 

substance releases because, over the years, many potentially contaminated 

waste sites have been identified and cleaned up and waste management 

practices have changed. Discovery of new DOD sites has been infrequent, 

making fewer sites available to EPA for assessment and proposal for 

inclusion on the NPL. According to Army officials, beginning in the early 

1980s, the Army conducted initial assessments to identify potentially 

contaminated sites. As a result, Army officials said, the Army’s installation 

restoration program inventory is mature and, for the most part, complete. 

According to a Navy official, during the 1980s and 1990s, the Navy also 

conducted assessments to identify and catalog the majority of 

contaminated Navy sites. DOD officials also stated that because of 

controls placed on the management of hazardous materials and wastes as 

a result of well-established laws, there are relatively fewer releases or 

threats of release, and operational releases are immediately addressed. 

EPA officials generally agreed that DOD has identified fewer contaminated 

DOD sites in recent years because, EPA officials said, the services have a 

fairly well-inventoried universe of sites, and old or abandoned DOD sites 

are no longer being discovered. Further, EPA headquarters officials said, 

DOD has cleaned up hazardous waste sites over the years, has tremendous 

cleanup efforts underway, and has the budgets to fund them. 

EPA policy recommends states’ governors to be included in the decision 

whether to list sites on the NPL and, in cases where a state does not agree 

that EPA should list a site, EPA’s policy recommends that a region work 

closely with the state to resolve the state’s concerns. If the region is unable 

to resolve the state’s concerns and EPA believes it has sufficient reasons 

to proceed with listing, EPA may list the site on the NPL without the 

state’s concurrence; however, according to EPA headquarters officials, 

EPA will not list a site without agreement from the state.23

DOD Is Identifying Fewer 

Contaminated Sites 

States May Object to EPA’s 

Proposal to List 

Contaminated DOD Sites 

 

23According to EPA officials, in the history of the Superfund program, EPA has not listed 

any site without a state’s concurrence. In 1998, EPA proposed listing Fox River in 

Wisconsin, a private site, without the governor’s consent. However, EPA did not finalize the 

listing because the state and EPA reached an agreement after which cleanup began in 2000. 

Page 27 GAO-09-278 Defense Superfund Sites 
 

On rare occasions, EPA proposed but ultimately did not list some 

contaminated DOD sites. Four sites were not listed because the states’ 

governors did not support listing. EPA did not list a fifth site because OMB 

recommended against listing. Although these five sites were not listed, 

EPA regional officials said that all five sites are being cleaned up, have a 

remedy in place that is protective of human health and the environment, or 

the site has been cleaned up to the point that it no longer meets the 

requirements for placement on the NPL. Specifically: 

Rickenbacker Air National Guard Base. In 1994, DOD closed the 

remaining portions of the Rickenbacker Air National Guard Base in 

Lockbourne, Ohio, which had been in use since 1942 providing aircraft 

refueling operations. Fuel contamination and chemical releases were 

found around underground fuel lines and tanks and near former storage 

areas and buildings. Trichloroethylene (TCE) has been found in soil and 

near groundwater.24 In January 1994, EPA proposed placing the site on the 

NPL but did not do so because the governor did not agree, citing the 

stigma that NPL listing would have on current, planned, and future 

economic development as well as the potential to adversely affect the 

economic development of adjacent sites. The governor also proposed that 

the Ohio EPA oversee investigation and cleanup activities at the site under 

the state’s cleanup program. Today, portions of the site are being cleaned 

up under RCRA while other portions are being cleaned up under CERCLA 

and DOD’s Base Realignment and Closure program, with state oversight. 

According to EPA headquarters officials, EPA and the Air Force agreed 

the site should be cleaned up for commercial-industrial use. The Air Force 

transferred portions of the facility to another state agency for cleanup and 

signed an agreement with the state to clean up the remaining lands, in 

accordance with CERCLA. However, the Air Force has refused to include 

land use restrictions in its selected remedy, as EPA would normally do for 

sites on the NPL. Nonetheless, cleanup at the site is proceeding, EPA 

regional officials said, and the site no longer meets the requirements for 

the NPL. 

Air Force Plant 85. Air Force Plant 85 in Columbus, Ohio, manufactured 

and tested aircraft and missile systems between 1941 and 1994. Wastes 

produced from these operations included acids from metal cleaning and 

 

24TCE is a nonflammable, colorless liquid used mainly as a solvent to remove grease from 

metal but which also is found in adhesives, paint removers, typewriter correction fluids, 

and spot removers. TCE can cause nervous system effects, liver and lung damage, 

abnormal heartbeat, coma, and possibly death. 

Page 28 GAO-09-278 Defense Superfund Sites 
 

electroplating, cyanide wastes, and paint strippers. From 1984 to 1990, the 

Air Force identified multiple sources of potential hazardous waste 

contamination, including two nearby streams and a creek. TCE and other 

chlorinated solvents were found in groundwater; polychlorinated 

biphenyls (PCB),25 solvents, and metals were found in soil; and various 

metals and solvents were found in sediment. In January 1994, EPA 

proposed placing the site on the NPL but did not do so because the 

governor objected, again citing the stigma of listing and its potential 

effects on economic development. The governor also proposed that the 

Ohio EPA oversee investigation and cleanup activities at the site under the 

state’s cleanup program. Air Force Plant 85 is being cleaned up under 

Ohio’s Voluntary Cleanup Program which, according to EPA officials, 

follows the CERCLA process. According to EPA regional and Air Force 

officials, the Air Force has cleaned up or has a remedy in place at 11 of the 

13 sources of hazardous substances releases at the site and is expected to 

have all remedies in place by 2011. 

Arnold Engineering Development Center. The Arnold Engineering 

Development Center near Tullahoma and Manchester, Tennessee, is an Air 

Force test and research organization that simulates flight conditions in 

ground-test facilities. The site contains contaminated landfills, leaching 

pits, and testing areas. Jet and rocket fuels, solvents, and other shop 

wastes have been detected in the main testing area. PCBs also have been 

detected in soil samples collected in the main testing area and in 

wastewater and surface water runoff in a retention reservoir. In August 

1994, EPA proposed placing the site on the NPL but did not do so because 

the governor did not concur. EPA regional officials said that state officials 

told them Tennessee preferred to clean up the site under a state cleanup 

program and speculated that many states may prefer this arrangement 

because of the perception of a stigma associated the NPL. Further, the 

Arnold Engineering Development Center was competing with a DOD 

facility in another state to install a wind tunnel and the Tennessee 

governor’s office was concerned that NPL listing would hurt the site’s 

chances. The Air Force is cleaning up the Arnold Engineering 

Development Center under RCRA with EPA and state oversight. EPA 

regional officials said that Air Force actions to date on the site are 

 

25PCBs are a family of chemicals that were used in hundreds of industrial and commercial 

applications such as electric and hydraulic equipment; as plasticizers in paints, plastics, 

and rubber products; and in pigments and dyes. PCBs were banned in 1979 and have been 

demonstrated to cause cancer and effect human immune, reproductive, and nervous 

systems. 

Page 29 GAO-09-278 Defense Superfund Sites 
 

protective of human health and control the migration of contaminated 

groundwater. While Air Force officials said they expect all remedies to be 

in place by the end of fiscal year 2011, EPA regional officials indicated the 

goal for final construction of the remedy is 2020.26

Wurtsmith Air Force Base. Wurtsmith Air Force Base, a 5,000-acre site 

near Oscoda, Michigan, has performed various air support missions since 

it was established in the early 1920s, such as aircraft and vehicle 

maintenance and air refueling. In 1977, the Air Force sampled drinking 

water and monitoring wells on the site and found solvents, including TCE. 

The U.S. Geological Survey also sampled and found TCE in the 

groundwater. The base closed in June 1993 and in January 1994, EPA 

proposed placing the site on the NPL. However, EPA did not list the site 

because the state did not support listing after DOD placed the site in the 

Base Realignment and Closure program and progressed with cleanup 

under state oversight. Although TCE is still present in groundwater 

plumes, EPA regional officials said the site has been cleaned up to the 

point that it would no longer meet the requirements for the NPL. 

Chanute Air Force Base. Chanute Air Force Base in Rantoul, Illinois, 

provided military and technical training for Air Force and civilian 

personnel on the operation and maintenance of military aircraft and 

ground support equipment until DOD closed the base in 1990. The primary 

sources of hazardous waste on the site include various landfills, fire 

training areas and buildings that contained oil-water separators, 

underground storage tanks, and sludge pits. The primary concern was the 

potential for this contamination to migrate into a nearby creek. In April 

2000, the governor wrote to the EPA region to express his support for 

placing Chanute Air Force Base on the NPL, citing the state’s concern 

about past operation and disposal practices at the site and because the 

state was unable to reach an agreement with the Air Force on how the site 

should be cleaned up. In December 2000, EPA proposed placing the site on 

the NPL but the Air Force objected, citing a perception that listing was a 

stigma and argued it could clean up the site by 2005 and on schedule if it 

 

26DOD and EPA use different terminology to track cleanup status. DOD tracks the status of 

cleanup in terms of a “remedy in place” (where the selected remedy is in place and 

operating) followed by “response complete” (where the required remedial action or 

operations have been completed.) EPA tracks final construction, or “construction 

complete,” which considers when all physical construction at a site is complete, all 

immediate threats have been addressed, and all long-term threats are under control. While 

long-term cleanup actions may still be operating, the site is often ready for another use. 

Page 30 GAO-09-278 Defense Superfund Sites 
 

did not have to suspend cleanup to negotiate the provisions of an IAG. The 

Air Force asked OMB to mediate the dispute. EPA presented its case for 

listing the site to OMB, pointing out that the site’s HRS score supported a 

proposal for listing, the governor of the state concurred, and listing would 

help to assure that DOD would enter into an IAG with EPA to clean up. In 

2003, OMB determined that EPA should not proceed with listing. OMB 

encouraged EPA to defer listing the site for 6 months to provide DOD with 

time to address personnel and contractor changes and demonstrate 

remediation progress. If, after that time, progress was not forthcoming, 

then listing was to be pursued, but in fact, never was. Although EPA 

officials told us that cleanup at Chanute has progressed slowly, milestones 

were met and EPA did not list the site. The Air Force estimates that it will 

have all remedies in place by the end of fiscal year 2012 and all property 

transferred from Air Force control by the end of fiscal year 2014. Although 

cleanup is behind schedule, according to EPA regional officials, the site 

has been cleaned up to the point that it is unclear whether the site would 

score for the NPL if the listing process was started today. For example, 

three of the four landfills have been capped and are no longer active. 

Remedial investigation reports of the creek do not show the levels of 

contamination detected when EPA proposed listing the site. Despite the 

slow progress to clean up, EPA regional officials said they believe that 

proposing the site for listing ultimately helped to start the cleanup process. 

As part of our review, we asked officials from four EPA regions to provide 

the primary basis for their decision to not propose placing 389 DOD sites 

under their jurisdiction on the NPL. (See fig. 4.) Based on a review of site 

records and interviews with EPA regional officials, we found EPA did not 

propose listing almost one-third of these sites (121 of 389, or 31 percent) 

because site assessments found little to no contamination or hazardous 

release on the site or no contamination exposure pathway or receptor. In 

instances where EPA scored these sites, the HRS score was below the 

minimum hazard ranking threshold for the NPL. One-quarter of these sites 

(96 of 389, or 25 percent) were not proposed for the NPL because EPA 

deferred them to another authority, such as a state agency under its RCRA 

authority. We were unable to determine the rationale for EPA’s decision to 

not list less than half of these sites (172 of 389, or 44 percent) because site 

file records were missing, inconclusive, or not up to date. For example, 

some site files showed that EPA had not yet determined whether to 

propose listing, even though the site assessment was conducted decades 

ago. According to EPA region officials, record-keeping practices have 

varied over the years so that, in some cases, site files and the basis for 

EPA’s decisions were not well documented or maintained. 

Four EPA Regions Did not 

List Sites Due to a Lack of 

Contamination or 

Hazardous Release or 

Because Sites Were 

Deferred to Another 

Cleanup Authority 

Page 31 GAO-09-278 Defense Superfund Sites 
 

Figure 4: Findings from GAO’s Review of 389 DOD Sites 

While the number of DOD sites considered for placement on the NPL has 

declined over the past decade, DOD sites still account for 9 percent of all 

NPL sites. Despite years of negotiations, DOD and EPA have not finalized 

IAGs to clean up 11 of the 140 DOD NPL sites. Most are more than a 

decade overdue, yet EPA has made few efforts to use its enforcement 

authority under CERCLA to compel parties to enter into IAGs, and to 

select remedies at sites without agreements. While the Federal Facility 

Compliance Act authorizes EPA to apply the same RCRA enforcement 

policies to federal facilities as it does to nonfederal facilities, EPA has not 

taken enforcement action at most federal sites. In light of prolonged 

disagreements between DOD and EPA over the terms of the IAGs, and the 

absence of any statutory consequences for failing to enter into an IAG, 

now may be the time to reconsider the provisions required by CERCLA for 

effective EPA oversight. While the law offers accountability through 

citizen suits, transparency through public participation provisions, legal 

recourse through enforceable schedules, and mechanisms for addressing 

conflicts through dispute resolution provisions, at sites without IAGs EPA 

lacks the leverage needed to provide strong environmental stewardship. 

Bringing the parties together for further discussions with relevant 

oversight committees may facilitate resolution at the sites without IAGs. 

While the pattern of delays in DOD’s preliminary assessment process 

appeared to go unchallenged by EPA, we believe EPA’s failure to enforce a 

time line for completion further exacerbated this process. These 

25%

31%

EPA deferred the site to another cleanup

authority (96 sites)

EPA determined there was no hazardous

release or little to no contamination found

on site (121 sites)

Site file documentation was missing, 

inconclusive or not up-to-date (172 sites)

44%

Source: GAO analysis.

Conclusions 

Page 32 GAO-09-278 Defense Superfund Sites 
 

conditions suggest a need for stronger enforcement and reporting as well 

as a serious commitment to address ongoing challenges. 

We believe Congress should be kept apprised of the situations where 

agreements are lacking. However, EPA has not used its annual report to 

Congress to provide this information.27 Moreover, because EPA was unable 

to make available documentation of the basis for its decisions whether to 

list or not list DOD sites, it is impossible for EPA to provide a justification 

for its decisions for many of the sites placed on or left off of the NPL. 

Given the critical nature of Superfund cleanup for protecting public health, 

and the long-term commitment necessary to maintain strong 

environmental stewardship at federal facilities, we encourage Congress to 

ensure accountability by DOD and EPA by raising concerns about the 

impasse between these federal agencies, if IAGS are not finalized within 60 

days following issuance of this report. Specifically, Congress should 

consider amending CERCLA Section 120 to authorize EPA to impose 

administrative penalties at federal facilities placed on the NPL that lack 

IAGs within the CERCLA-imposed deadline of 6 months after completion 

of the remedial investigation and feasibility study. This leverage could help 

EPA better satisfy its statutory responsibilities with agencies that are 

unwilling to enter into agreements where required under CERCLA Section 

120. In addition, Congress may wish to consider amending Section 120 to 

authorize EPA to require agencies to complete preliminary assessments 

within specified time frames. 

To facilitate congressional oversight of the Superfund program and 

provide greater transparency to the public on the cleanup of DOD sites, we 

recommend that the Administrator of EPA improve its record keeping in 

the following manner. Consistent with good management practices 

defined in EPA’s Superfund program implementation manual and to 

ensure that meaningful data are available for the agency’s reports to 

Congress, EPA should establish a record-keeping system, consistent 

across all regions, to accurately document EPA decisions regarding the 

Matter for 

Congressional 

Consideration 

Recommendations for 

Executive Action 

 

27Although a CERCLA requirement for reporting IAG status information was repealed in 

2002, DOD reports on the status of NPL sites without IAGs in its annual report to Congress 

on the Defense Environmental Restoration Program. DOD’s report provides a list of the 

DOD sites without IAGs; it does not provide information on the reasons why IAGs have not 

been finalized. 

Page 33 GAO-09-278 Defense Superfund Sites 
 

proposal of DOD sites for inclusion or exclusion on the NPL and the basis 

for each decision. 

We provided a draft of this report to EPA and DOD for review and 

comment. In its letter, EPA agreed with our recommendation that 

Congress should provide greater enforcement authority under CERCLA to 

impose administrative penalties at federal facilities placed on the NPL, 

stating that greater authority would help to assure timely and protective 

cleanup of NPL sites. EPA did not comment specifically on our 

recommendation that EPA improve its record keeping but acknowledged 

that some file data supporting EPA’s decisions regarding the proposal of 

DOD sites for NPL listing are missing or otherwise insufficient. In general, 

EPA agreed with the findings and conclusions of our report. EPA also 

provided general comments related to the declining number of DOD sites 

proposed for listing; specifically, whether state objections and the 

declining number of newly discovered hazardous substance releases in 

recent years has caused a reduction in the number of DOD sites proposed. 

In addition, while EPA agrees with GAO that typical sources of 

contamination on DOD sites have been fairly well characterized, it adds 

that other areas have not been evaluated, and there may still be sites with 

undiscovered sources of contamination, such as military munitions sites. 

GAO has made changes to the report to respond to these comments. We 

also addressed EPA’s technical changes, throughout the report, as 

appropriate. See appendix III for EPA’s letter. 

In its letter commenting on the findings and conclusions of our report, 

DOD disagreed with our assertion that additional EPA oversight or 

enforcement authority was needed and, if provided, would help assure 

that NPL sites are cleaned up. According to DOD, EPA is actively involved 

in reviewing response actions at DOD NPL sites, regardless of whether an 

IAG is in place. Further, DOD stated that GAO’s report provides no 

evidence that the lack of an IAG at any DOD NPL site has delayed, 

diminished, or reduced the timeliness or quality of DOD’s response and 

that EPA does not need additional oversight enforcement authority but, 

rather, should strive to more effectively implement its authority under 

existing law. 

We continue to assert that an expansion in EPA’s enforcement authority is 

warranted. According to recent discussions with EPA officials, the agency 

cannot confirm whether all areas of contamination have been identified or 

whether they are being addressed properly at NPL sites without IAGs, 

particularly where DOD signed unilateral records of decision without EPA 

Agency Comments 

and Our Evaluation 

Page 34 GAO-09-278 Defense Superfund Sites 
 

concurrence, such as at Langley Air Force Base in Maryland. Further, we 

believe our report demonstrates that EPA has experienced considerable 

difficulty employing its existing enforcement authorities, and that DOD 

has resisted EPA’s decision to use its existing authority to require that 

DOD enter into IAGs at NPL sites. DOD’s comments notwithstanding, the 

issue is DOD’s refusal for more than a decade to enter into IAGs required 

by CERCLA Section 120 to clean up DOD NPL sites. As EPA officials have 

noted, without an IAG, the agency does not have the enforcement 

authority to assure that DOD cleans up according to an agreed-upon 

remedy. Further, the question is not whether DOD believes that EPA is 

sufficiently involved at DOD NPL sites, but whether the statutory 

requirements for EPA’s involvement have been satisfied. CERCLA Section 

120 provides for independent EPA oversight, not mere opportunity for 

EPA review and comment. The procedures in Section 120 may not be 

disregarded simply because some cleanup progress is occurring. As 

mentioned in our report, Maryland’s December 2008 suit against the Army 

seeking to compel compliance with EPA’s administrative order at Fort 

Meade is evidence that at least one state disagrees with DOD’s assertion 

that the progress of cleanup is unaffected by the lack of an IAG. Therefore, 

we continue to believe that additional EPA enforcement authority is 

needed to ensure that cleanup is being pursued properly at federal facility 

NPL sites. 

DOD’s letter also provided some technical comments which we 

incorporated throughout the report along with DOD’s technical changes, 

as appropriate. See appendix IV for DOD’s letter. 

As agreed with your offices, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to the Administrator of EPA, 

the Secretary of DOD, and interested congressional committees. The 

report will also be available at no charge on the GAO Web site at 

http://www.gao.gov. 

Page 35 GAO-09-278 Defense Superfund Sites 
 

If you or your staffs have any questions about this report, please contact 

me at (202) 512-3841 or stephensonj@gao.gov. Contact points for our 

offices of Congressional Relations and Public Affairs may be found on the 

last page of this report. GAO staff who made major contributions to this 

John B. Stephenson 

report are listed in appendix V. 

Director, Natural Resources 

 and Environment 

Page 36 GAO-09-278 Defense Superfund Sites 
Appendix I: Objectives, Scope, and 

Methodology 

Page 37 GAO-09-278 

Appendix I: Objectives, Scope, and 

Methodology 

We were asked to determine (1) the extent of the Environmental 

Protection Agency’s (EPA) oversight during assessment and cleanup at 

Department of Defense (DOD) National Priority List (NPL) and non-NPL 

sites and (2) why EPA has proposed fewer DOD sites for inclusion on the 

NPL since the early 1990s. 

To examine the extent of EPA’s oversight during assessment and cleanup 

of DOD NPL and non-NPL sites, we reviewed the Comprehensive 

Environmental Response, Compensation, and Liability Act (CERCLA) and 

other legislation governing the cleanup of federal hazardous waste sites, as 

well as EPA Superfund program policy and guidance, to determine the 

roles and responsibilities of EPA and federal agencies, such as DOD, to 

implement the CERCLA process and assess and clean up hazardous waste. 

We reviewed EPA and DOD reports to the Congress on the Superfund and 

Defense Environmental programs, respectively. We reviewed EPA and 

DOD policy and guidance on interagency agreements (IAG), including the 

model agreements, and correspondence relating to the negotiation of IAGs 

for selected DOD sites. We conducted several interviews with EPA and 

DOD headquarters officials on issues related to IAGs and enforcement. At 

GAO’s request, EPA provided data from its computerized CERCLA 

information database of actual and potential hazardous releases at federal 

and private sites. Based on these data, we worked with EPA to identify the 

universe of DOD sites and obtain certain information on these sites, such 

as NPL status. To determine the reliability of the CERCLA information 

database, an EPA headquarters official contacted each EPA region and 

asked them to verify selected information, such as the number of DOD 

sites and their NPL status. During site visits to selected EPA regions, we 

also confirmed certain information in the CERCLA information database 

by reviewing site file documentation, where available, and interviewing 

EPA region officials. Based on this work, we determined that these data 

were sufficiently reliable for the purposes of this report. We interviewed 

EPA headquarters officials on the agency’s policies and processes under 

the Superfund program to ensure that contaminated federal DOD sites, 

both NPL and non-NPL, are assessed and cleaned up. We interviewed DOD 

headquarters officials on DOD’s role and responsibilities to identify, 

report, assess, and clean up, as necessary, hazardous releases at NPL and 

non-NPL DOD sites. We also interviewed officials at four EPA regions on 

their oversight of contaminated federal DOD sites, both NPL and non-NPL, 

to assure that sites are assessed and cleaned up. We conducted our work 

at four EPA regions—Atlanta, Chicago, Dallas, and San Francisco—which, 

taken together, were responsible for about half of the 845 non-NPL DOD 

sites. We selected the Atlanta and Chicago regions because they were 

responsible for five DOD sites that EPA proposed for NPL inclusion but 

 Defense Superfund Sites 
Appendix I: Objectives, Scope, and 

Methodology 

which were not listed. We selected the San Francisco region because it 

had the largest number of non-NPL DOD sites. We selected the Dallas 

region to pretest our review methodology because it was geographically 

convenient. 

To determine why EPA has proposed fewer DOD sites for NPL inclusion 

since the early 1990s, we reviewed EPA policy and guidance on proposing 

sites for the NPL and interviewed EPA headquarters and regional officials 

on the reasons why EPA has proposed fewer sites. We interviewed DOD 

headquarters officials on its progress to identify and assess potentially 

contaminated DOD sites and the reasons why fewer hazardous releases 

have been identified. We interviewed EPA and DOD officials on 

contaminated DOD sites that EPA proposed for the NPL, why some were 

not listed, and the status of cleanup at these sites. Finally, for selected 

DOD sites, we evaluated the basis for EPA’s decision to not propose listing 

certain contaminated DOD sites by reviewing site file documentation and 

interviewing EPA regional officials regarding all non-NPL DOD sites at 

four EPA regions. We excluded from our review sites under DOD’s military 

munitions response program because of the ongoing uncertainty 

concerning the degree to which spent military munitions are subject to 

RCRA and CERCLA, and the fact that GAO has ongoing work in this area. 

Based on our review of contaminated DOD sites at four EPA regions, we 

attempted to determine the primary basis for EPA’s decision to not 

propose to list the site. However, we were unable to confirm the basis for 

EPA’s decision to not propose listing less than one-half of the sites 

surveyed (172 of 389, or 44 percent) because site file documentation, such 

as records of EPA’s decisions and recommendations concerning sites, was 

missing or inconclusive. For example, officials at one EPA region told us 

they could not determine how many sites required no further action after 

either a preliminary assessment or site inspection because, prior to 1990, 

the region did not document the basis for determining that no further 

action was required. 

Page 38 GAO-09-278 Defense Superfund Sites 
Appendix II: Other Cleanup Programs Appendix II: Other Cleanup Programs 

In addition to the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), there are a number of other 

cleanup authorities EPA considers in deciding whether to list a site 

include state cleanup programs (often referred to as voluntary cleanup 

programs) and the Defense Environmental Restoration program. 

Specifically: 

State Cleanup Programs. Over the years, most states have developed their 

own cleanup programs, often referred to as voluntary state cleanup 

programs. Some state cleanup programs address hazardous waste sites 

independent of a state’s Resource Conservation and Recovery Act (RCRA) 

program. Often, state cleanup projects begin with a preliminary site 

assessment and if contamination is suspected, an on-site investigation is 

conducted. EPA does not have oversight of state cleanup programs but 

has entered into memoranda of agreement or understanding with some 

states, recognizing the use of the state’s cleanup program to address 

hazardous waste sites under a state’s non-RCRA authority. 

Defense Environmental Restoration Program. In 1986, Congress amended 

CERCLA and required that DOD establish an environmental restoration 

program under which all response actions at hazardous waste 

contaminated sites—such as site identification, investigation, and 

cleanup—must be conducted consistent with Section 120 of CERCLA.1

More than 15 years later, the National Defense Authorization Act for Fiscal 

Year 2002 required that DOD also develop an inventory of all DOD sites 

known or suspected to contain unexploded ordnance, military munitions, 

or munitions constituents throughout the United States and develop a 

methodology for prioritizing response actions at these sites. Today, DOD’s 

environmental response program includes an installation restoration 

program, which in 1985 began addressing hazardous releases resulting 

from past practices, and a military munitions response program, 

established as a separate program in 2001, to address safety and 

environmental hazards from unexploded ordnance and munitions on 

other-than-operational ranges (ranges that are closed, transferred or 

transferring). As of fiscal year 2007, DOD reported there were 27,950 

installation restoration program sites on DOD facilities and former defense 

sites, of which 23,980, or 86 percent, had achieved “remedy in place” or 

 

1

10 U.S.C. § 2700 et seq. The program is known as the Defense Environmental Restoration 

Program. 

Page 39 GAO-09-278 Defense Superfund Sites 
Appendix II: Other Cleanup Programs 

“response complete” status2. At 3,537 munitions response sites at current 

DOD facilities and former defense sites, a total of 940, or 27 percent, had 

achieved “remedy in place” or “response complete” status. DOD completed 

an initial inventory of munitions response sites in fiscal year 2002. Since 

then, DOD has been working to reconcile its inventory which includes 

conducting site assessments (preliminary assessments and, if needed, site 

inspections) of all sites. DOD estimates it will complete site assessments 

for all munitions response sites by the end of fiscal year 2010 except for 

sites on former defense sites. Former defense sites represent the majority 

of sites with suspected munitions response sites and, according to DOD, 

site assessments for munitions sites on former defense sites will not be 

completed until about 2013. 

Under the Defense Environmental Restoration Program, DOD cleans up 

environmental hazards and contamination on active installations, 

installations being closed under DOD’s Base Realignment and Closure 

program, and at formerly used defense sites. DOD is required to carry out 

response cleanup actions under the program, subject to, and in a manner 

consistent with, Section 120 of CERCLA. DOD is required to report 

annually to Congress on its environmental restoration programs. As of 

fiscal year 2007, DOD reported that its goal was to clean up all known 

releases (or achieve a “remedy in place” status) on active installations by 

the end of fiscal year 2014 and all sites on formerly used defense sites by 

the end of fiscal year 2020. 

 

2

 DOD and EPA use different terminology to track cleanup status. DOD tracks the status of 

cleanup in terms of a “remedy in place” (where the selected remedy is in place and 

operating) followed by “response complete” (where the required remedial action or 

operations have been completed.) “Response complete” may also indicate a site was 

administratively closed; that is, the site did not meet the eligibility criteria for funding 

under the program, no information was found suggesting that contamination was present, 

or the property was transferred or is being cleaned up as part of another site. EPA tracks 

final construction, or “construction complete,” which considers when all physical 

construction at a site is complete, all immediate threats have been addressed, and all longterm threats are under control. While long-term cleanup actions may still be operating, the 

site is often ready for another use. 

Page 40 GAO-09-278 Defense Superfund Sites 
Appendix III: Comments from the Appendix III: Comments from the Environmental Protection Agency 

Environmental Protection Agency 

Page 41 GAO-09-278 Defense Superfund Sites 
Appendix III: Comments from the 

Environmental Protection Agency 

Page 42 GAO-09-278 Defense Superfund Sites 
Appendix IV: Comments from the Department Appendix IV: Comments from the of Defense 

Department of Defense 

Page 43 GAO-09-278 Defense Superfund Sites 
Appendix IV: Comments from the Department 

of Defense 

Page 44 GAO-09-278 Defense Superfund Sites 
Appendix V: 

A

GAO Contact and Staff 

cknowledgments 

Page 45 GAO-09-278 

Appendix V: GAO Contact and Staff 

Acknowledgments 

John B. Stephenson, (202) 512-3841, or stephensonj@gao.gov

In addition to the contact named above, Diane B. Raynes, Assistant 

Director; Elizabeth Beardsley; Christine D. Frye; Richard Johnson; and 

Alison O’Neill made major contributions to this report. Amy Ward-Meier 

also made key contributions. 

 Defense Superfund Sites 

GAO Contact 

Staff 

Acknowledgments 

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