Report to Congressional Requesters

United States General Accounting Office 

GAO 

March 2003 ENVIRONMENTAL 

CONTAMINATION 

DOD Has Taken Steps 

to Improve Cleanup 

Coordination at 

Former Defense Sites 

but Clearer Guidance 

Is Needed to Ensure 

Consistency 

GAO-03-146 
Federal law requires DOD and the Corps of Engineers to consult with state 

regulatory agencies and EPA during the process of cleaning up formerly 

used defense sites (FUDS). However, the law only provides specifics for the 

cleanup phase for hazardous substances. DOD’s Management Guidance and 

the FUDS Program Manual do not provide clear direction or specific steps 

for involving regulators in the FUDS program. In addition, both the law and 

the guidance are silent on the subject of consultation or coordination with 

regulators during the preliminary assessment phase, when the Corps makes 

decisions on whether a former defense site is eligible for DOD cleanup and 

whether further investigation and/or cleanup are needed. DOD and Corps 

officials told GAO that they would revise their guidance to include specific, 

but as yet undetermined, instructions for coordination with regulators 

during such decisions. 

DOD and the Corps have recently taken several steps to improve 

coordination. For example, they are working with the regulatory community 

to develop specific steps that Corps districts can take, such as providing 

states with updated lists of current and future FUDS program activities in 

their states and initiating a new pilot program in nine states that has the 

Corps working side by side with regulators in the cleanup of former defense 

sites. In addition, several Corps districts have independently taken steps to 

improve coordination with state regulators. DOD and the Corps will need to 

assess the effectiveness of these various initiatives to determine which are 

successful and should be included in program guidance to all districts. 

Despite the improvements in coordination, regulators still raised two major 

issues about Corps coordination on the FUDS program. First, some states 

believe that they lack the information necessary to properly oversee cleanup 

work at former defense sites and to judge the validity of Corps decisions. 

For example, 15 of the 27 states GAO contacted believe they need to be 

involved in knowing what the Corps is doing during the preliminary 

assessment phase. Also, 9 of the 27 states believe they need to be involved 

in project closeouts, so that they can ensure that the Corps has met state 

cleanup standards. Second, EPA believes it should have a larger role in the 

cleanup of former defense sites. Although states are the primary regulator at 

the majority of former defense sites and EPA is the primary regulator for 

only the 21 former defense sites that are on the list of the nation’s worst 

hazardous sites, EPA believes that its role even on the unlisted sites should 

be greater. The agency believes that this would improve the effectiveness of 

the cleanups and increase public confidence overall. The Corps disagrees, 

and the two agencies have been unable to establish an effective working 

relationship on the cleanup for former defense sites. 

Commenting on a draft of this report, DOD stated that it generally agreed 

with the recommendations and was taking or planned to take steps that 

should, when completed, substantially correct the problems GAO cited. 

The U.S. Army Corps of Engineers 

(Corps) is in charge of addressing 

cleanup at the more than 9,000 U.S. 

properties that were formerly 

owned or controlled by the 

Department of Defense (DOD) and 

have been identified as potentially 

eligible for environmental cleanup. 

The Corps has determined that 

more than 4,000 of these properties 

have no hazards that require 

further Corps study or cleanup 

action. However, in recent years, 

hazards have surfaced at some of 

these properties, leading state and 

federal regulators to question 

whether the Corps has properly 

assessed and cleaned up these 

properties. In this context, 

Congress asked us to (1) analyze 

federal coordination requirements 

that apply to the cleanup of these 

properties, (2) assess recent DOD 

and Corps efforts to improve 

coordination, and (3) identify any 

issues regulators may have about 

coordination with the Corps. 

DOD and the Corps should (1) 

develop clear and specific 

coordination guidance that should 

explicitly include, among other 

things, preliminary assessment of 

eligibility and ordnance and 

explosive waste; (2) assess recent 

efforts to improve coordination at 

the national as well as district level 

and promote wider distribution of 

best practices; and (3) work with 

EPA to clarify their respective roles 

in the cleanup of former defense 

sites that are not on the list of the 

nation’s worst hazardous sites. 

www.gao.gov/cgi-bin/getrpt?GAO-03-146.

To view the full report, including the scope 

and methodology, click on the link above. 

For more information, contact (Ms.) Anu Mittal 

or Ed Zadjura on (202) 512-3841. 

Highlights of GAO-03-146, a report to 

Congressman John D. Dingell, Ranking 

Minority Member, U.S. House of 

Representatives 

March 2003 

ENVIRONMENTAL CONTAMINATION 

DOD Has Taken Steps to Improve 

Cleanup Coordination at Former Defense 

Sites but Clearer Guidance Is Needed to 

Ensure Consistency 
Page i GAO-03-146 Corps Coordination with Regulators 

Letter 1

Results in Brief 3

Background 5

Additional Guidance Would Help Ensure Coordination with 

Regulators 7

DOD and the Corps Have Taken Some Steps to Improve 

Coordination with Regulators, but Assessment of These Efforts 

and Clearer Guidance Is Needed 12

Views of Regulators about FUDS Coordination Activities 16

Conclusions 22

Recommendations for Executive Action 24

Agency Comments and Our Evaluation 24

Appendix I Additional Details on Our Scope and Methodology 27 

Appendix II State and Corps Project Managers’ Responses to 

Our Survey Regarding Coordination at FUDS 30 

Appendix III Comments from the Department of Defense 34 

Appendix IV Comments from the Environmental Protection 

Agency 40 

Appendix V GAO Contacts and Staff Acknowledgments 41 

Tables 

Table 1: Extent to Which State and Corps Project Managers Believe 

the Corps Coordinated with States during Cleanups in Our 

Sample, by Project Type 10

Table 2: Extent to Which State and Corps Project Managers Believe 

the Corps Coordinated with States during Preliminary 

Assessments of Eligibility in Our Sample 11

Table 3: Number of FUDS Properties and Projects in Our Sample 28

Contents 
Page ii GAO-03-146 Corps Coordination with Regulators 

Table 4: State Project Managers’ Responses Regarding Corps 

Coordination with States during Preliminary Assessments 

of Eligibility in Our Sample 30

Table 5: Corps Project Managers’ Responses Regarding Corps 

Coordination with States during Preliminary Assessments 

of Eligibility in Our Sample 30

Table 6: State Project Managers’ Responses Regarding Corps 

Coordination with States during Cleanup of Hazardous 

Waste Projects in Our Sample 31

Table 7: Corps Project Managers’ Responses Regarding Corps 

Coordination With States during Cleanup of Hazardous 

Waste Projects in Our Sample 31

Table 8: State Project Managers’ Responses Regarding Corps 

Coordination with States during Cleanup of Containerized 

Waste Projects in Our Sample 32

Table 9: Corps Project Managers’ Responses Regarding Corps 

Coordination with States during Cleanup of Containerized 

Waste Projects in Our Sample 32

Table 10: State Project Managers’ Responses Regarding Corps 

Coordination with States during Cleanup of Ordnance and 

Explosive Waste Projects in Our Sample 33

Table 11: Corps Project Managers’ Responses Regarding Corps 

Coordination with States during Cleanup of Ordnance and 

Explosive Waste Projects in Our Sample 33

Abbreviations 

CERCLA Comprehensive Environmental Response, Compensation, 

 and Liability Act of 1980 

DOD Department of Defense 

EPA Environmental Protection Agency 

FUDS formerly used defense sites 

NDAI no DOD action indicated 

SARA Superfund Amendments and Reauthorization Act of 1986 

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Page 1 GAO-03-146 Corps Coordination with Regulators 

March 28, 2003 

The Honorable John D. Dingell 

Ranking Minority Member 

Committee on Energy and Commerce 

House of Representatives 

Dear Mr. Dingell: 

More than 9,000 properties throughout the United States that were 

formerly owned or controlled by the Department of Defense (DOD) are 

potentially eligible for environmental cleanup. These formerly used 

defense sites (FUDS) are now owned by states, local governments, and 

individuals and are used for parks, schools, farms, and homes. Hazards at 

these FUDS may include hazardous, toxic, and radioactive wastes in soil, 

water, or containers, such as underground storage tanks; ordnance and 

explosive wastes; and unsafe buildings. According to DOD, identifying, 

investigating, and cleaning up hazards caused by DOD at FUDS will cost 

$15 billion to $20 billion and take more than 70 years. 

The FUDS program, which is run by the U.S. Army Corps of Engineers 

(Corps), is part of the Defense Environmental Restoration Program. The 

Superfund Amendments and Reauthorization Act of 1986 (SARA) 

established this program.1

 Depending on the types of hazards involved and 

their severity, either state environmental regulatory agencies or the 

Environmental Protection Agency (EPA) may be responsible for ensuring 

that the Corps meets applicable requirements and standards when 

cleaning up FUDS. In general, EPA is the primary regulator for the 21 

FUDS properties on EPA’s list of the most dangerous hazardous waste 

sites in the country—the National Priorities List. States are typically the 

primary regulators for FUDS properties that have hazardous and other 

wastes but have not been placed on the National Priorities List. Since 

1984, the Corps has generally determined without regulator input that 

more than 4,000 properties eligible for the FUDS cleanup program have no 

 1

 The Defense Environmental Restoration Program was established by section 211 of SARA 

and is codified at 10 U.S.C. 2701 et. seq. SARA amended the Comprehensive Environmental 

Response, Compensation, and Liability Act of 1980 (CERCLA). CERCLA, as amended by 

SARA, governs the cleanup of the nation’s most severely contaminated federal and 

nonfederal hazardous waste sites. 

United States General Accounting Office

Washington, DC 20548 
Page 2 GAO-03-146 Corps Coordination with Regulators 

hazards that require further Corps study or cleanup action.2 However, 

since the late 1990s, hazards have surfaced at some of these FUDS, leading 

state and federal environmental regulators to question whether the Corps 

has properly assessed and cleaned up these and other FUDS. 

There are many and varied opportunities for the Corps to coordinate with 

regulators during the FUDS cleanup program. After a potential FUDS 

property is identified, the Corps conducts a preliminary assessment of 

eligibility to determine if the property was ever under DOD’s control prior 

to October 17, 1986, and therefore eligible for the program. Upon 

conclusion of the preliminary assessment of eligibility, the Corps conducts 

additional studies, tests, and investigations at all properties eligible for 

inclusion in the FUDS program where hazards are suspected to determine 

if the hazards found were the result of DOD ownership or control, the 

extent of any DOD-caused hazards, and the amount of DOD cleanup that 

might be warranted. Eventually, for some properties, the Corps designs, 

constructs, and operates a cleanup remedy such as treating contaminated 

groundwater or removing contaminated soils. At each phase in the 

program, the Corps has the opportunity to inform regulators of what it is 

doing or proposing, obtain regulator input on its efforts, or provide 

regulators with its results in the form of studies or reports. 

In this context, you asked us to (1) analyze federal requirements for DOD 

and the Corps to coordinate with state and federal regulators during the 

FUDS cleanup program, (2) assess recent steps that DOD and the Corps 

have taken to better coordinate, and (3) identify any issues regulators may 

have about coordination with the Corps. As part of our review, we 

surveyed state and Corps managers about cleanup projects at 519 

randomly selected FUDS properties. We also interviewed state FUDS 

program officials from the 27 states that account for 80 percent of FUDS 

properties. Appendix I contains additional details on our scope and 

methodology. 

 2

 According to DOD, because it recognized the importance of regulator involvement in the 

program, in the early 1990s it established the Defense and State Memorandum of 

Agreement Program to facilitate coordination with regulators during the cleanup process. 

However, this program does not apply to preliminary assessments of eligibility, the phase 

during which the Corps determined that more than 4,000 eligible properties required no 

further Corps study or cleanup action. 
Page 3 GAO-03-146 Corps Coordination with Regulators 

Federal law requires DOD and the Corps of Engineers to consult with state 

regulatory agencies and EPA during the FUDS cleanup program. However, 

the only instance for which federal law provides specifics is the cleanup 

phase for hazardous substances.3 Guidance to carry out federal law is 

contained in DOD’s Management Guidance and the Corps’ FUDS Program 

Manual. While both documents emphasize the need for coordination with 

regulators, neither contains clear direction or specific steps for involving 

regulators in the FUDS program. Further, the law and DOD’s Management 

Guidance and the FUDS Program Manual are silent on the subject of 

consultation or coordination with regulators (1) for hazards such as 

ordnance and explosive waste, which can pose serious human safety risks, 

and (2) during the preliminary assessment of eligibility phase, which is the 

first meaningful opportunity during the FUDS program for coordination 

with regulators. DOD and Corps officials told us that the FUDS Program 

Manual is presently being revised to include specific instructions for 

coordination with regulators, including during the preliminary assessment 

phase. 

Since the late 1990s, DOD and the Corps have taken several steps to 

increase coordination with regulators during the various phases of the 

FUDS cleanup program, and officials in 20 of the 27 states we contacted 

noted an overall improvement in the Corps’ coordination with them during 

the past few years. For example, DOD, together with the regulatory 

community, formed the FUDS Improvement Working Group to improve 

coordination. In April 2001, as a result of this group’s work, Army 

headquarters sent a memo to Corps divisions and districts responsible for 

FUDS work requiring them to follow specific steps when dealing with 

regulators, such as providing states with updated lists of all ongoing and 

future FUDS activities and informing states of any Corps deviation from 

planned work. Other parts of the memo are more general, such as a 

requirement to involve states in setting priorities for FUDS work. 

However, this memo has not yet been made a part of DOD’s Management 

Guidance or the FUDS Program Manual. Another result of the working 

group’s efforts was a pilot program that DOD and the Corps have 

established for states and EPA to produce Management Action Plans. To 

develop these plans, regulators would work jointly with the Corps to 

identify FUDS in the state, designate key stakeholders and their roles, set 

priorities for FUDS cleanup, and develop work plans for cleanup. Four 

states have completed action plans, and nine more are developing them. 

 3

 See 10 U.S.C. 2701 and 2705. 

Results in Brief 
Page 4 GAO-03-146 Corps Coordination with Regulators 

Overall, 19 of the 27 state officials we talked to believe that this initiative 

would improve Corps coordination with them in the future. Individual 

Corps districts have also taken actions to improve coordination, such as 

holding quarterly meetings with regulators and establishing a process to 

jointly agree on closeouts. DOD and the Corps will need to assess the 

success of its pilot program and the efforts of individual districts to 

determine which lessons learned from these activities should be included 

in program guidance to enhance future coordination efforts for all 

districts. 

Despite the improvements in coordination with the Corps that they noted 

in the last few years, regulators still raised two major issues about 

coordination on the FUDS program. First, some states believe they still do 

not receive all of the information necessary to properly carry out their 

regulatory responsibilities regarding the FUDS cleanup program or to 

judge the validity of Corps decisions through different program stages. For 

example, although not required, 15 of the 27 states we contacted believe 

they need to be involved in knowing what the Corps is doing during the 

preliminary assessment of eligibility phase. Further, 9 of the 27 believe 

they need to be involved in project closeouts, when cleanup work has 

been completed, so that they can be assured that the Corps’ actions have 

met state cleanup requirements. According to DOD, the Corps recognizes 

that states need to be involved in preliminary assessments of eligibility and 

project closeouts and has included specific instructions for such 

involvement in its revisions to the draft engineering regulation that revises 

the FUDS Program Manual. Second, EPA and DOD disagree on EPA’s role 

in the FUDS program. Although EPA is the primary regulator for the FUDS 

that are on the list of the nation’s worst hazardous waste sites, the states 

are typically the primary regulators for all other FUDS. EPA told us that its 

role at some of these unlisted FUDS should be greater because it believes 

it can help improve the effectiveness of the cleanups and increase public 

confidence in the program. DOD and some states disagree with this 

position because they do not believe there is a need for additional EPA 

oversight of its work at unlisted FUDS properties where the state is the 

lead regulator. DOD disagreed with a March 2002 internal EPA policy that 

proposed consultation expectations between the Corps and EPA under the 

Defense Environmental Restoration Program. Without an agreement on 

roles and responsibilities, the agencies have been unable to establish an 

effective working relationship on FUDS. 

We are making recommendations to DOD aimed at increasing and 

improving Corps coordination with regulators on all phases of the FUDS 

cleanup program. In addition, in view of the disagreement over regulatory 
Page 5 GAO-03-146 Corps Coordination with Regulators 

roles and responsibilities, DOD and EPA should work together to clarify 

their respective roles in the FUDS cleanup program. 

In commenting on a draft of this report, DOD generally agreed with GAO’s 

findings and, particularly, with GAO’s assessment that the Corps has 

improved overall coordination with regulatory agencies. In addition, DOD 

agreed with GAO’s recommendations and indicated that it is currently in 

the process of implementing changes that will improve the Corps’ 

coordination with regulators. For example, DOD noted that the Corps is 

currently in the process of revising its guidance to include step-by-step 

procedures for regulatory coordination at each phase of FUDS cleanup, 

including the preliminary assessment of eligibility phase, and to include 

unexploded ordnance projects; is proposing to include best practices that 

stem from its experience with Management Action Plans; and will review 

individual District coordination efforts to identify other potential best 

practices. EPA also reviewed a draft of this report and agreed with our 

findings and conclusions. 

The FUDS program is carried out by 22 Corps districts located throughout 

the nation. DOD carries out its roles and responsibilities in cleaning up 

FUDS primarily under the Defense Environmental Restoration Program, 

which was established by section 211 of the Superfund Amendments and 

Reauthorization Act of 1986. Under the environmental restoration 

program, DOD is authorized to identify, investigate, and clean up 

environmental contamination at FUDS. The U.S. Army, through the Corps, 

is responsible for these activities and is carrying out the physical cleanup. 

DOD is required, under the Defense Environmental Restoration Program, 

to consult with the Environmental Protection Agency (EPA), which has its 

own authority to act at properties with hazardous substances. In general, 

EPA is the primary regulator for the 21 FUDS properties on EPA’s list of 

the most dangerous hazardous waste sites in the country—the National 

Priorities List. States are typically the primary regulators for FUDS 

properties that have hazardous and other wastes but have not been placed 

on the National Priorities List. 

To determine if a property is eligible for cleanup under the FUDS program, 

the Corps conducts a preliminary assessment of eligibility. This 

assessment determines if the property was ever owned or controlled by 

DOD and if hazards caused by DOD’s use may be present. If the Corps 

Background 
Page 6 GAO-03-146 Corps Coordination with Regulators 

determines that the property was at one time owned or controlled by DOD 

but does not find evidence of any hazards caused by DOD, it designates 

the property as “no DOD action indicated” (NDAI).4

 If, however, the Corps 

determines that a DOD-caused hazard that could require further study may 

exist on a former DOD-controlled property, the Corps begins a project to 

further study and/or clean up the hazard. 

FUDS cleanup projects fall into one of four categories, depending on the 

type of hazard to be addressed.5

• Hazardous waste projects address hazardous, toxic, and radioactive 

substances, such as paints, solvents, and fuels. 

• Containerized waste projects address containerized hazardous, 

toxic, and radioactive waste associated with underground and 

aboveground storage tanks, transformers, hydraulic systems, and 

abandoned or inactive monitoring wells. 

• Ordnance and explosive waste projects involve munitions, chemical 

warfare agents, and related products. 

• Unsafe buildings and debris projects involve demolition and removal 

of unsafe buildings and other structures. 

The type and extent of the work that the Corps may need to perform at a 

project depend on the project category. Hazardous waste and ordnance 

and explosive waste projects involve a site inspection to confirm the 

presence, extent, and source of hazards; a study of cleanup alternatives; 

the design and implementation of the actual cleanup; and long-term 

monitoring to ensure the success of the cleanup. Containerized waste and 

unsafe buildings and debris projects, on the other hand, may involve only 

the design and implementation of the cleanup. 

 4

 Before fiscal year 2001, the Corps used the term “no further action.” 

5

 The FUDS program has a fifth project category, potentially responsible party, which is 

used when DOD shares responsibility for a hazard with another entity. Because this 

category accounts for only about 4 percent of all FUDS projects, we did not address it in 

this report. 
Page 7 GAO-03-146 Corps Coordination with Regulators 

While federal law requires DOD and the Corps to consult with regulators, 

including states and EPA, during the FUDS cleanup program, it does not 

define consultation. Similarly, the two primary DOD and Corps guidance 

documents for implementing the FUDS program emphasize the need for 

Corps coordination with regulators but do not provide clear direction or 

specific steps for involving regulators in the FUDS program. Our survey 

results show a lack of consistent coordination between the Corps and 

regulators throughout the history of the program that could be caused by 

the lack of specific requirements that state explicitly what the Corps needs 

to do to involve regulators. According to DOD, ongoing development of 

regulations that will revise the Corps’ FUDS Program Manual will provide 

clear direction and specific steps for involving regulators in the FUDS 

program. 

Federal law requires DOD and the Corps to consult with regulatory 

entities in carrying out the FUDS program. Under 10 U.S.C. 2701, the 

Corps must carry out the FUDS program “in consultation with” EPA. 

However, this section does not define consultation, mention the state 

regulators, or prescribe specific steps for the Corps to follow. More 

specific language regarding consultation as it relates to the cleanup of 

hazardous substances is provided in 10 U.S.C. 2705. At projects involving 

hazardous substances, the Corps must notify EPA and appropriate state 

officials and provide them an opportunity to review and comment on 

activities associated with (1) discovering releases or threatened releases 

of hazardous substances at FUDS, (2) determining the extent of the threat 

to public health and the environment that may be associated with such 

releases, (3) evaluating proposed cleanup actions, and (4) initiating each 

distinct phase of cleanup.6

 In addition, CERCLA has specific consultation 

requirements for properties on the National Priorities List, including the 21 

FUDS on the list for which EPA is the primary regulator.7

 For many of 

these FUDS, EPA and DOD have signed a cleanup agreement stating that 

the two agencies agree on the nature of the cleanup action and the 

schedule for its completion. 

 6

 The requirement to consult on response actions does not apply if the action is an 

emergency removal taken because of imminent and substantial endangerment to human 

health or the environment and consultation would be impractical. 

7

 We used the term “coordination” to describe the Corps’ consultation actions. In addition, 

the FUDS Manual, which is the official guidance for the program, uses the term 

“coordination.” 

Additional Guidance 

Would Help Ensure 

Coordination with 

Regulators 

Federal Law and DOD and 

Corps Guidance Generally 

Require Coordination with 

Regulators but Do Not 

Contain Specific 

Requirements 
Page 8 GAO-03-146 Corps Coordination with Regulators 

DOD and the Corps have two major guidance documents for implementing 

the FUDS program: the DOD Management Guidance for the Defense 

Environmental Restoration Program and the FUDS Program Manual. The 

DOD Management Guidance pertains to all DOD environmental cleanup 

activities, including FUDS cleanup. It contains general guidance for the 

Corps’ coordination activities. According to the guidance, DOD is fully 

committed to the substantive involvement of state regulators and EPA 

throughout the FUDS cleanup program and encourages cooperative 

working relationships. The latest version of the guidance, published in 

September 2001, emphasizes a greater need for coordination with 

regulators. For example, the guidance states that the Corps shall 

• establish communication channels with regulatory agencies; 

• provide regulators access to information, including draft documents; 

• establish procedures for obtaining pertinent information from 

regulators in a timely manner; and 

• involve regulatory agencies in risk determination, project planning, 

completion of cleanup activities, and other tasks. 

Although the updated DOD Management Guidance articulates general 

steps that, if taken, would improve coordination between the Corps and 

regulatory agencies, the guidance does not specify procedures on how to 

take these steps. Further, some of the language is ambiguous and open to 

broad interpretation. For example, “establish communication channels” 

could mean anything from a telephone call once a year to weekly 

meetings. 

The second guidance document, the FUDS Program Manual, constitutes 

the Corps’ primary guidance for the program. Regarding coordination, the 

manual suggests, and sometimes requires, among other things, that the 

Corps 

• notify states and EPA of discovery and cleanup activities related to 

hazardous substances; 

• ensure that states and EPA have adequate opportunity to participate in 

selecting and planning cleanup actions and in defining cleanup 

standards for FUDS projects; 
Page 9 GAO-03-146 Corps Coordination with Regulators 

• coordinate all cleanup activities with appropriate state regulatory and 

EPA officials; 

• conduct cleanups of hazardous waste projects consistent with section 

120 of CERCLA, which addresses cleanups of federal facilities; and 

• try to meet state and EPA standards, requirements, and criteria for 

environmental cleanup where they are consistent with CERCLA. 

Beyond generally restating statutory requirements, however, the FUDS 

Program Manual provides no clear, specific guidance to its program 

managers on how to implement those steps and coordinate consistently 

with regulators. For example, “coordinate all cleanup activities” needs to 

be defined and how to carry out and maintain such coordination on a dayto-day basis should be described more clearly. According to DOD and 

Corps officials, the draft Engineer Regulation that is being developed to 

revise the FUDS Program Manual includes specific instructions for review 

of draft preliminary assessments of eligibility by regulators. Officials 

added that they are open to further suggestions to improve coordination 

and consultation with regulators. 

Although coordination is required during the cleanup phase for hazardous 

and containerized wastes, responses to our survey of FUDS properties 

covering FUDS work that took place during the period from 1986 through 

2001 indicate that state project managers believe the Corps coordinated 

with them, on average, 34 percent of the time during cleanup, while the 

Corps believes it coordinated with states an average of 55 percent of the 

time during cleanup. Moreover, state and Corps respondents agree that 

coordination was better for projects in our sample that addressed 

hazardous substances than for projects that did not. For example, 

according to state respondents to our survey, coordination for hazardous 

waste projects was more than 25 percent higher than for ordnance and 

explosive waste projects. (See table 1.) For additional survey results, such 

as the percent of cases where respondents felt there wasn’t any 

coordination or gave “don’t know” responses, see appendix II. 

Despite Requirements, 

Corps Officials Often Did 

Not Coordinate during the 

Cleanup Phase 
Page 10 GAO-03-146 Corps Coordination with Regulators 

Table 1: Extent to Which State and Corps Project Managers Believe the Corps 

Coordinated with States during Cleanups in Our Sample, by Project Type 

Project Type 

Hazardous waste 

(percentage) 

Containerized 

waste 

(percentage) 

Ordnance and 

explosive waste 

(percentage) 

Examples of 

coordination during 

project activities State Corps State Corps State Corps 

Corps informed states 

of upcoming work 

53 72 40 57 18 42 

Corps asked for states’ 

input and participation 

50 67 25 51 18 39 

Corps informed states 

of interim results 

49 73 25 51 13 24 

Corps provided states 

with draft reports 

46 59 27 49 23 25 

Corps provided states 

with final reports 

44 57 36 63 44 33 

Weighted average 48 66 30 54 23 34 

Source: GAO. 

Note: States’ and Corps’ responses to GAO’s FUDS survey. 

Despite the greater coordination for projects addressing hazardous 

substances, the Corps is not involving the states consistently. For 

example, for projects addressing hazardous substances, the Corps is 

required by law to inform states before starting each phase of any action 

and to provide states an opportunity to review and comment on proposed 

cleanup actions. However, according to the states, the Corps informed 

them of upcoming work at these hazardous waste projects 53 percent of 

the time and requested states’ input and participation 50 percent of the 

time. As shown in table 1, while the Corps thought it had coordinated at a 

higher rate, it was still less than the required 100 percent. The fact that 

DOD and Corps guidance does not offer specific requirements that 

describe exactly how the Corps should involve regulators could be a factor 

behind the historical lack of consistency in Corps coordination with 

regulators. 
Page 11 GAO-03-146 Corps Coordination with Regulators 

The DOD Management Guidance and FUDS Program Manual are silent on 

regulators’ roles in preliminary assessments of eligibility, during which 

decisions on property eligibility and the need for cleanup are made, in part 

because the law requiring consultation with regulators is broad and does 

not mention consultation with the states, only with EPA. The Corps has 

historically regarded preliminary assessments of eligibility as an internal 

matter that does not require coordination with regulators. However, 

according to DOD, the draft Engineer Regulation, which will revise the 

FUDS Program Manual, will require the Corps to share information with 

the states, EPA, and local authorities during the development of the 

preliminary assessment of eligibility and will solicit their input. According 

to the results of our survey, the state project managers believe the Corps 

coordinated with them about 6 percent of the time, and the Corps project 

managers believe the Corps coordinated with states about 27 percent of 

the time. (See table 2.) As a result, there is no consistent coordination at 

this stage of the FUDS program. For additional survey results, such as the 

percent of cases where respondents felt there wasn’t any coordination or 

gave “don’t know” responses, see appendix II. 

Table 2: Extent to Which State and Corps Project Managers Believe the Corps 

Coordinated with States during Preliminary Assessments of Eligibility in Our 

Sample 

Examples of coordination during the 

preliminary assessment of eligibility 

State project 

managers 

(percentage) 

Corps project 

managers 

(percentage) 

Corps informed states that it was starting 

preliminary assessment of eligibility 

6 24 

Corps asked states for information or input on 

Corps approach 

6 27 

Corps asked for state participation 5 16 

Corps informed states of interim results as work 

progressed 

5 15 

Corps provided states with a draft of the report 

summarizing the results of the preliminary 

assessment of eligibility 

4 7 

Source: GAO. 

Note: States’ and Corps’ responses to GAO’s FUDS survey. 

Also, according to state and Corps respondents to our current survey, the 

Corps provided final reports on its preliminary assessments of eligibility to 

state regulators in 48 and 56 percent of the cases, respectively. In the past, 

states were only notified after the fact about the results of preliminary 

assessments of eligibility; however, the Corps said that although not 

required in its current guidance, its current practice is to coordinate all 

Guidance Does Not Cover 

the Preliminary 

Assessment of Eligibility 

and Very Little 

Coordination Took Place 

During This Phase 
Page 12 GAO-03-146 Corps Coordination with Regulators 

new preliminary assessments of eligibility with states. Subsequently, 

according to FUDS program officials in 12 of the 27 states we contacted, 

there has been some improvement in overall Corps coordination during 

the preliminary assessment of eligibility over the last 3 years. In particular, 

those states told us that while the Corps is still not required to coordinate 

with them during its preliminary assessments of eligibility, it has been 

doing a better job of providing them with draft and final reports on the 

outcomes of preliminary assessments of eligibility. 

Over approximately the last 3 years, states have noted an overall 

improvement in the Corps’ coordination with them. For example, FUDS 

program officials in 20 of the 27 states we contacted reported that, overall, 

Corps coordination with them has improved during this time. The main 

factors state officials cited for the improvement include an increase in the 

number of meetings they were invited to attend with Corps project 

managers on specific project tasks, more information provided by the 

Corps to the states regarding project work, and better coordination in 

setting work priorities. DOD and the Corps started to take steps to address 

the coordination issue in response to the concerns that the states began to 

voice in the late 1990s about their lack of involvement in the FUDS 

program. Initially, DOD’s efforts consisted of steps such as sponsoring 

conferences to encourage greater coordination between the Corps and 

regulators. Individual Corps districts also took steps to improve 

coordination. 

As part of the efforts to improve coordination, the Deputy Assistant 

Secretary of the Army for Environment, Safety and Occupational Health, 

along with members of the regulatory community, formed the FUDS 

Improvement Working Group in October 2000 to address FUDS program 

concerns and to improve communication among the Corps, the regulators, 

and other parties with an interest in FUDS cleanup. The working group, 

which consisted of DOD, Corps, state, EPA, and tribal representatives, 

compiled a list of issues to be addressed through better communication 

and consistent coordination, including the role of regulators in setting 

priorities and planning work at FUDS properties and in the final closeout 

of properties after cleanup.8

 8

 EPA withdrew from the working group in April 2002. 

DOD and the Corps 

Have Taken Some 

Steps to Improve 

Coordination with 

Regulators, but 

Assessment of These 

Efforts and Clearer 

Guidance Is Needed 
Page 13 GAO-03-146 Corps Coordination with Regulators 

Two results of the working group’s efforts to improve coordination are 

new Army guidance and a pilot program. First, in April 2001, Army 

headquarters sent a memorandum to Corps divisions and districts 

responsible for FUDS work requiring them to follow specific steps when 

dealing with regulators during the FUDS cleanup program. For example, 

the memorandum required the Corps to 

• inform states of FUDS that are likely to go through a preliminary 

assessment of eligibility, 

• provide states with updated lists of all ongoing and future activities at 

FUDS, 

• involve states in setting priorities for FUDS work, 

• provide states a final list of FUDS that will undergo some type of work 

in the coming year, 

• inform states of any Corps deviation from planned work and provide 

them with the rationale for any such changes, and 

• involve states in developing the final report of the preliminary 

assessment of eligibility. 

The Corps considers this directive to be a first step in improving the states’ 

somewhat negative perceptions of the FUDS program and overall 

communication between the Corps and the states. The directive addresses 

many state concerns, including lack of 

• information about which FUDS properties the Corps is working on, 

• involvement in and information about preliminary assessments of 

eligibility and their outcomes, and 

• state regulatory involvement in setting priorities for Corps FUDS work. 

However, after almost 2 years, the memo’s conclusions have not been 

incorporated in either DOD’s Management Guidance or the Corps’ FUDS 

Program Manual. According to DOD, the Corps is now in the process of 

revising the FUDS Program Manual as an Engineer Regulation to include 

specific requirements for Corps district coordination with EPA and state 

regulators. 
Page 14 GAO-03-146 Corps Coordination with Regulators 

The second result from the working group is a pilot program developed by 

the Army in March 2001 under which the Corps and regulatory agencies, 

including states and EPA, jointly prepare statewide Management Action 

Plans for FUDS properties. Specifically, for each state participating in the 

pilot, information provided by EPA, state regulators, and other relevant 

parties is consolidated on each FUDS property in the state to prepare a 

statewide Management Action Plan. Each state plan provides a 

coordinated strategy for investigating and cleaning up FUDS that 

• identifies the key participants and their roles at FUDS cleanups, 

• provides an inventory of all FUDS located in the state, 

• sets priorities for cleaning up FUDS properties and projects, and 

• develops statewide work plans. 

Overall state reaction to this pilot has been favorable. FUDS project 

managers in 19 of the 27 states that we contacted believe that this pilot 

will improve future communication between the Corps and the states. 

To date, the four states that participated in the initial phase of the pilot—

Colorado, Kansas, Ohio, and South Dakota—have statewide plans. The 

plans’ approaches vary to address each state’s unique circumstances. For 

example, the Kansas plan was very detailed, covering the status of state 

and federal environmental programs, the status of the FUDS program, and 

providing details about Kansas FUDS properties. Conversely, the South 

Dakota and Colorado plans focused only on regulator and budget issues. 

Corps officials stated that they receive input from state representatives of 

organizations in the working group regarding whether the pilot has been 

successful. Recognizing that the variation in state approaches as to how 

these Management Action Plans are developed might be appropriate, DOD 

says that it plans to work with the FUDS Improvement Working Group to 

evaluate the success of the pilot and determine best practices that could 

be shared with the nine additional states that participated in the second 

round of the pilot during fiscal year 2002: Alaska, Arizona, Massachusetts, 

Missouri, North Carolina, South Carolina, Texas, Virginia, and Wyoming. 

DOD views the pilot as a success and plans to continue the development 

of statewide Management Action Plans for an additional six states during 

fiscal year 2003, including Alabama, Hawaii, Michigan, New Mexico, New 

York, and Washington. As part of this effort, DOD plans to develop a 

format that meets the needs of each particular state. Corps officials stated 

that the Corps will highlight the minimum elements that must be in a 
Page 15 GAO-03-146 Corps Coordination with Regulators 

Statewide Management Action Plan but will not dictate the plan’s exact 

format. 

In addition to the DOD and Corps efforts taken to improve coordination, 

individual Corps districts also took steps to improve coordination with the 

states in which they operate, as follows: 

• The Alaska district began sharing with state regulators backup 

documents related to its preliminary assessments of eligibility and 

inviting regulators to accompany district officials on site visits during 

the preliminary assessments of eligibility. The Alaska district now also 

involves state regulators in developing work plans and is in the process 

of establishing formal procedures to achieve project and property 

closeouts that are jointly agreed upon by the Corps and the state. 

• The Louisville district, in response to state concerns, began to reassess 

its previous NDAI determinations at Nike missile sites. 

• Since 1998, the Kansas City district has been holding quarterly 

meetings with states and EPA to establish lines of communication 

between the Corps and regulators; the district has also entered into 

memorandums of agreement with states and EPA outlining roles and 

responsibilities for each. 

• The Fort Worth district invited interested parties, including officials 

from another district and state regulators, to its June 2001 meeting to 

set priorities and plan FUDS work for the upcoming year. 

• The Honolulu district and EPA Region 9 cochair meetings semiannually to foster communication on the FUDS program in the Pacific 

area. 

• The Baltimore district provided electronic copies of all preliminary 

assessment of eligibility reports to Delaware, Maryland, Pennsylvania, 

and Washington, D.C., in 1999; similarly, the Norfolk district provided 

most, if not all, such reports to the state of Virginia. 

While these individual district efforts may yield positive results, the Corps 

has not assessed these efforts to determine if any might be candidates for 

Corps-wide implementation. The Corps believes it is a best practice to 

allow individual districts and regulators to work out mutually agreed to 

levels of coordination. However, without adequate guidance, direction, 

and a menu of best practices for districts to choose from, inconsistent and 

inadequate coordination may result. To better promote greater and more 
Page 16 GAO-03-146 Corps Coordination with Regulators 

consistent coordination with regulators, DOD and the Corps will need to 

assess the success of individual district efforts to determine which lessons 

learned from these activities should be included in program guidance. 

Some state regulators, who are responsible for ensuring that applicable 

environmental standards are met at most FUDS properties, believe that 

inadequate Corps coordination has made it more difficult for them to carry 

out their regulatory responsibilities. Also, state regulatory officials told us 

that they have frequently questioned Corps cleanup decisions because 

they have often not been involved in or informed about Corps actions at 

FUDS. Conversely, they told us that when Corps coordination has 

occurred, states have been more likely to agree with Corps decisions. At 

the federal level, EPA and the Corps do not share the same view on EPA’s 

role in the FUDS program. EPA believes that it should play a greater role 

at the 9,000 FUDS that are not on the National Priorities List, while the 

Corps believes that EPA’s role should remain limited to those FUDS that 

are on the National Priorities List. 

Some state regulators we contacted believe that when the Corps does not 

inform them of its FUDS cleanup activities or involve them in the various 

stages of the FUDS program, they do not have the information necessary 

to ensure that applicable cleanup standards have been met and that the 

cleanup actions will protect human health and the environment. They 

were particularly concerned about the preliminary assessment of 

eligibility stage of the program and hazards such as ordnance and 

explosive waste, for which the requirement in law (10 U.S.C. 2701) 

“consultation with EPA” is very broad and without definition. Further, the 

law does not mention consultation or coordination with state regulators. 

Discussions with state regulators raised the issue that coordination 

through all stages of the program was valuable and helped regulators 

develop confidence in Corps decisions. 

With regard to the preliminary assessment of eligibility, FUDS program 

officials in 15 of the 27 states we contacted expressed specific concerns 

regarding their limited involvement during this stage of the program. One 

concern, which was raised by 12 of these officials, was that Corps 

activities are taking place without their knowledge or involvement. Our 

past work has shown the results of this lack of coordination. Our August 

Views of Regulators 

about FUDS 

Coordination 

Activities 

Some State Regulators 

Believe Poor Coordination 

by the Corps Makes It 

Difficult for Them to 

Ensure That 

Environmental Standards 

Are Met 
Page 17 GAO-03-146 Corps Coordination with Regulators 

2002 report9 noted that because the Corps historically did not consult 

states during its preliminary assessment of eligibility, states did not 

discover until after the fact, in some cases years later, that the Corps had 

determined that more than 4,000 properties required no further DOD study 

or cleanup action. Moreover, in several cases in which DOD had made an 

NDAI determination without involving the states, DOD-caused hazards 

were later identified, and the Corps had to reassess the properties and 

conduct cleanup work. At Camp O’Reilly in Puerto Rico, for example, the 

Corps made an NDAI determination after it conducted a preliminary 

assessment of eligibility that did not include a review of state historical 

information on the use of the property. Several years later, the then-owner 

of the property identified DOD-caused hazards at the property. This led to 

a more comprehensive Corps assessment that found serious threats to 

drinking water sources and other hazards that required cleanup under the 

FUDS program. 

Another concern about the preliminary assessment of eligibility voiced by 

officials in 17 of the 27 states we contacted is that the Corps has not 

adequately supported and documented its NDAI decisions, and it has not 

involved states in developing them. Because of their lack of involvement 

and what states perceive as a lack of adequate support for such Corps 

decisions, these states believe they have little assurance that the Corps 

performed adequate work during its preliminary assessments of eligibility 

and that NDAI properties are, in fact, free of DOD-caused hazards. Our 

survey of 519 FUDS properties also showed that, historically, states 

approved of Corps NDAI determinations in only 10 percent of the cases; in 

70 percent of the cases, state respondents could not say whether they 

agreed or disagreed with the determination. 

With regard to ordnance and explosive waste projects, one of the types of 

projects states told us were most important to them, interviews with the 

27 state FUDS program officials indicated that they were satisfied with the 

Corps’ work on such projects in only 11 percent of the cases. This lack of 

satisfaction could be, at least partially, the result of the relatively low 

levels of state involvement in these projects. According to state survey 

respondents, the Corps involved them, on average, in 23 percent of 

ordnance and explosive waste projects. Corps guidance currently focuses 

coordination on hazardous waste and does not specifically address 

 9 Environmental Contamination: Corps Needs to Reassess Its Determinations That Many 

Former Defense Sites Do Not Need Cleanup, GAO-02-658 (Washington D.C.: Aug. 23, 2002). 
Page 18 GAO-03-146 Corps Coordination with Regulators 

coordination of ordnance and explosive waste projects. However, 

according to DOD, the draft Engineer Regulation that revises the FUDS 

Program Manual includes specific requirements for district coordination 

with regulators on such projects. 

States also have various concerns about their limited involvement in the 

FUDS work that occurs after the preliminary assessment of eligibility. For 

example, FUDS program officials in 7 of the 27 states believe that being 

more involved in setting priorities for the Corps’ project work could help 

ensure that riskier sites were addressed in a timely manner. Further, 

officials in 9 of the states we contacted said that when they are not 

involved in project and property closeouts—the points at which the Corps 

concludes that all its cleanup work has been completed—state regulatory 

agencies have no assurance that Corps actions have met state cleanup 

requirements. 

Finally, when the Corps has coordinated with states, states have been less 

likely to doubt the validity of Corps decisions and the adequacy of Corps 

cleanup activities. According to our survey results, for example, when 

states received final reports from the Corps, they agreed with Corps 

decisions regarding the risk posed by a hazard, the characteristics of the 

site, and the cleanup standards selected in 53 percent of the cases and 

disagreed in only 13 percent.10 On the other hand, when states did not 

receive such documentation, they agreed with Corps decisions in only 11 

percent of the cases, disagreed in 15 percent, and did not know enough to 

offer an opinion in 74 percent of the cases. Similarly, according to some 

state FUDS program officials, as Corps coordination with states has 

improved over the past 3 years, states’ acceptance of Corps decisions has 

increased. For example, only one of the 27 state FUDS program officials 

we contacted generally agreed with Corps NDAI decisions that were made 

before the last 3 years. On the other hand, eight of these officials told us 

that they agree with recent NDAI decisions that were made during the last 

3 years. 

 10 Percentages do not total 100 because some respondents answered “neither agree or 

disagree” or “don’t know.” 
Page 19 GAO-03-146 Corps Coordination with Regulators 

EPA has historically had little involvement in the cleanup of the 

approximately 9,000 FUDS that are not on its National Priorities List and 

for which EPA is usually not the primary regulator.11 In the late 1990s, at 

the request of some states, tribes, members of the general public, and 

others, EPA increased its focus on environmental investigations and 

cleanups of privately owned FUDS. In some cases, this has led to 

disagreements between EPA and the Corps and required added efforts on 

the parts of both agencies to reach agreement on how cleanup should be 

conducted. 

As EPA’s knowledge of the FUDS program and how it is carried out by the 

Corps grew, EPA focused its attention on various issues, including the 

following: 

• EPA, the Corps, and state regulators all have differing views of EPA’s 

role at FUDS that are not on the National Priorities List. EPA believes 

that, in certain instances, it should have a greater role at FUDS that are 

not on the National Priorities List. DOD, citing its statutory 

responsibility to carry out the FUDS program and a delegation of 

CERCLA authority under an executive order, maintains that it is the 

sole administrator of the FUDS program. States, which are responsible 

for regulating cleanup at most FUDS, have varying opinions on what 

EPA’s role in FUDS cleanup should be. Several states would like to see 

EPA become more involved in the cleanup process, for example, by 

participating in preliminary assessments of eligibility or providing 

states with funds to review Corps work. Other states believe EPA’s role 

is about right or that EPA has no role in the process unless a state 

invites it to participate. 

• The way the Corps is to administer the FUDS cleanup program has also 

been interpreted differently by the agencies. Specifically, 10 U.S.C. 2701 

requires that the Corps perform work at FUDS projects involving 

hazardous substances “subject to and in a manner consistent with” 

section 120 of CERCLA, which addresses the cleanup of federal 

facilities. Section 2701 also requires the Corps to carry out response 

actions involving hazardous substances in accordance with the 

provisions of the Defense Environmental Restoration Program and 

CERCLA. However, EPA and the Corps disagree on the meaning of 

these requirements. EPA contends that the Corps should follow 

 11 At the 21 FUDS that are on the National Priorities List, Corps coordination is addressed 

by the CERCLA requirement to enter into an interagency agreement with EPA. 

EPA and the Corps Have 

Differing Views about 

Their Respective Roles and 

Management of the FUDS 

Program 
Page 20 GAO-03-146 Corps Coordination with Regulators 

CERCLA regulations (the National Contingency Plan) and the EPA 

guidance used to clean up non-FUDS properties under CERCLA. DOD 

maintains its right to establish and follow its own procedures for 

determining project eligibility under the Defense Environmental 

Restoration Program, as long it performs response actions in a manner 

consistent with its authorities under the Defense Environmental 

Restoration Program and CERCLA. 

• EPA believes that DOD’s preliminary assessments of eligibility should 

be as comprehensive as the preliminary assessments that EPA 

conducts on non-FUDS properties. EPA’s CERCLA-based preliminary 

assessments investigate entire properties for hazards, identifying the 

source and the nature of hazards and the associated risks to human 

health and the environment—information EPA needs to determine 

whether properties qualify for placement on the National Priorities List. 

In contrast, DOD’s preliminary assessments of eligibility focus on 

determining whether the properties are eligible for cleanup under the 

FUDS program and whether DOD-caused hazards may exist. According 

to DOD, it collects information limited to DOD-related hazards in 

accordance with the limits of its authorities under the Defense 

Environmental Restoration Program. The FUDS Program Manual states 

that DOD’s preliminary assessment of eligibility is not intended to be 

equivalent to the CERCLA preliminary assessment. DOD officials said 

that the draft Engineer Regulation, which revises the FUDS Program 

Manual, addresses EPA concerns about coordination during the 

preliminary assessment of eligibility. 

• DOD views preliminary assessments of eligibility as internal agency 

documents for which there is no coordination requirement and has 

generally not coordinated these assessments with EPA. As a result, 

according to EPA officials, EPA often does not have access to the 

information necessary for deciding whether a property should be 

included on the National Priorities List. Consequently, EPA cannot be 

assured that significant hazards to human health and the environment 

that could warrant listing do not exist at a property, and EPA may need 

to conduct its own, more comprehensive, preliminary assessment 

under CERCLA. 

Because of its focus on these issues, EPA re-evaluated its approach to 

addressing privately owned FUDS, and, in March 2002, issued a policy for 

addressing privately owned FUDS that are not on the National Priorities 
Page 21 GAO-03-146 Corps Coordination with Regulators 

List.12 The policy, issued to EPA’s regional offices to clarify the agency’s 

role at these FUDS, outlines a framework for coordinating with the Corps 

and EPA’s expectations for Corps consultation with them under the 

Defense Environmental Restoration Program. For example, EPA would 

like to see the Corps 

• involve it to a greater extent in FUDS work, such as preliminary 

assessments of eligibility; 

• provide EPA, state regulatory agencies, and other interested parties 

reasonable opportunities for meaningful review of and comment on 

major decision documents, as well as documents associated with 

carrying out specific FUDS activities, such as work plans and sampling 

and analysis plans; and 

• respond in writing to comments from EPA, the states, and others and 

show how it has addressed the comments or, if it has not, explain why 

not. 

Overall, EPA believes that a better-coordinated effort among all parties, as 

discussed in its policy, would improve the effectiveness of cleanup at 

FUDS and increase public confidence in the actions taken at these sites. 

EPA’s policy also emphasizes that EPA does not expect its involvement to 

be consistent across all phases of work; rather, it would increase its 

involvement at a site when conditions warranted—for example, if there 

were “imminent and substantial endangerment” or if EPA had concerns 

about the appropriateness of the cleanup. 

DOD disagrees with much of EPA’s new policy. For example, in 

commenting on EPA’s draft policy, DOD requested that EPA delete from it 

numerous references to EPA’s “oversight” and “review.” DOD, citing its 

statutory responsibility to carry out the FUDS program and referring to a 

delegation of CERCLA authority under an executive order, maintains that 

the FUDS program is solely its program to administer. DOD also maintains 

that 10 U.S.C. 2701, which provides for EPA’s consultation role under the 

FUDS program, does not provide authority for EPA concurrence or 

oversight of the program. According to DOD, EPA’s role should be limited 

to FUDS for which EPA is the lead regulator—that is, primarily FUDS that 

are on the National Priorities List. 

 12 U.S. Environmental Protection Agency, EPA Policy Towards Privately-Owned Formerly 

Used Defense Sites (Washington, D.C.: March 2002). 
Page 22 GAO-03-146 Corps Coordination with Regulators 

Without an agreement on roles and responsibilities, DOD and EPA have 

been unable to establish an effective working relationship on FUDS or 

have had to undertake extra efforts to come to an agreement on how a 

cleanup should be conducted. An example of this is the Spring Valley 

FUDS in Washington, D.C., where the U.S. Army operated a research 

facility to test chemical weapons and explosives during World War I. 

Because the site was a formerly used defense site, DOD has responsibility 

for cleaning up the site under the Defense Environmental Restoration 

Program. However, under CERCLA, EPA has its own authority to act at 

the site, including conducting investigations and removal actions. Further, 

under EPA’s FUDS policy, EPA can take a more active role at FUDS if 

conditions warrant. According to EPA officials, if a site is not listed as a 

national priorities site or there is no imminent danger to the public or 

environment, EPA may limit its role. Early in the 1980s, the specific role of 

the two federal agencies at the Spring Valley site led to some confusion 

and disagreement about the cleanup approach and the standards to be 

applied. Over time, the federal agencies and the District of Columbia 

government formed a partnership to reach agreements on cleanup at the 

site. While the partners have not agreed on all cleanup decisions, they 

acknowledged, as of June 2002, that the partnership was operating 

effectively. Further, officials acknowledge that forming the partnership 

has provided a means to foster communication and collaboration. 

While state regulators reported to us that the Corps has improved its 

coordination with them, more can be done in five areas to build on those 

successes. First, our work has shown that many states would like to be 

more involved in the preliminary assessment of eligibility stage of the 

program. The program guidance is silent on regulators’ roles in 

preliminary assessments of eligibility, in part because the law requiring 

consultation with regulators is broad and does not mention consultation 

with the states, only with EPA. The Corps has regarded preliminary 

assessments of eligibility as an internal matter and has done little to 

coordinate with regulators during the assessment. As a result, regulators 

believe their ability to ensure that decisions about FUDS properties and 

projects meet environmental standards and protect the public from 

environmental contamination has been hindered. As we were completing 

our work, DOD and Corps officials told us that they are in the process of 

revising the FUDS Program Manual as an Engineer Regulation that would 

include requirements for coordination during preliminary assessments. 

Following through with this plan is critical to clearly establish that 

coordination is required and lay out what steps need to be taken to ensure 

that it occurs. 

Conclusions 
Page 23 GAO-03-146 Corps Coordination with Regulators 

Second, as it updates its program guidance, incorporating the more 

specific requirements sent out in an April 2001 memorandum would help 

to ensure that coordination requirements are clear. Better clarity could 

also result from a re-examination and clarification of existing DOD and 

Corps FUDS program guidance documents that are general in nature and 

contain ambiguous language. Third, DOD and Corps efforts have been 

directed at improving coordination on hazardous waste projects but could 

be enhanced by also requiring coordination for ordnance and explosive 

wastes cleanup that can pose significant safety and health risks and in 

which many of the states want to be more involved. However, DOD states 

that it addresses coordination requirements at ordnance and explosive 

waste projects in its draft Engineer Regulation, which replaces the FUDS 

Program Manual. 

Fourth, while the Corps has made various agencywide efforts to improve 

coordination with regulators, such as its state management plans pilot 

program, many beneficial coordination efforts have also occurred at Corps 

districts through the initiative of individual Corps personnel. Evaluating 

these district efforts and agencywide initiatives to incorporate successful 

ones into its operating procedures for the FUDS program as a whole 

would establish best practices and result in the entire program benefiting 

from individual efforts. 

Finally, at the federal level, EPA and the Corps disagree about EPA’s role 

in the cleanup of more than 9,000 FUDS that are not on the National 

Priorities List. Reaching agreement on these roles and expectations for 

coordination is essential for establishing an effective working relationship 

on FUDS. The lack of a good working relationship between two federal 

cleanup agencies may hamper efforts to properly assess properties for 

cleanup and may, in some cases, result in some duplication of effort—for 

example, when EPA has to reassess the properties to determine if they 

merit placement on the National Priorities List. In addition, while the 

partnership formed by the two agencies at the Spring Valley FUDS 

demonstrates that the agencies can work together, that is not the norm for 

the FUDS program as evidenced by EPA’s March 2002 FUDS policy and 

DOD’s response to it. Further, even if the agencies were able to negotiate 

partnerships or memoranda of understanding for individual FUDS 

properties, that is neither an efficient nor cost effective approach given 

that there are thousands of FUDS properties needing cleanup. 
Page 24 GAO-03-146 Corps Coordination with Regulators 

To help ensure consistent coordination with regulators during all phases 

of FUDS investigation and cleanup, we recommend that the Secretary of 

the Department of Defense direct the Secretary of the Department of the 

Army to follow through on its plans to develop and incorporate clear and 

specific guidance in the Corps’ FUDS Program Manual as to how, when, 

and to what extent coordination with regulators should take place, 

including during preliminary assessments of eligibility. Moreover, in view 

of the states’ concerns and hazards posed by ordnance and explosive 

waste, the coordination guidance should address these types of projects as 

well, not just those involving hazardous waste. In developing the guidance, 

the Army should work with regulators to develop a consensus on how, 

when, and to what extent coordination should take place. 

As a starting point, we recommend that the Secretary of the Department of 

Defense direct the Secretary of the Department of Army to 

• assess the impact of the Corps’ recent efforts to improve coordination 

through actions such as directives and the Management Action Plan 

pilot program and incorporate the successful components as 

requirements into its FUDS Program Manual, and 

• assess practices individual Corps districts have used to coordinate with 

regulators and develop a list of best practices for dissemination 

throughout the Corps that districts might use to improve their 

coordination. 

In addition, in view of the need for federal agencies to ensure that cleanup 

efforts are done properly and that scarce resources are best utilized, DOD 

and EPA should work together to clarify their respective roles in the FUDS 

cleanup program for properties that are not listed on the National 

Priorities List. The agencies should agree on a time frame to establish a 

memorandum of understanding that will lay out an overall framework for 

how they will work together, including their roles and responsibilities, 

during the assessment and cleanup of FUDS properties. 

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

comment. DOD and EPA agreed with our findings and conclusions. In 

addition, DOD agreed with two of the report’s recommendations and 

partially agreed with the third, and indicated that it had begun or was 

planning on taking actions to address all of them. 

Recommendations for 

Executive Action 

Agency Comments 

and Our Evaluation 
Page 25 GAO-03-146 Corps Coordination with Regulators 

In response to our recommendation that DOD follow through on its plans 

to develop and incorporate clear and specific guidance in the FUDS 

Program Manual as to how, when, and to what extent coordination with 

regulators should take place, including during the preliminary assessment 

of eligibility phase and for ordnance and explosive waste projects, DOD 

indicated that it is in the process of addressing this issue. Specifically, the 

Corps is revising the FUDS Program Manual as an engineering regulation 

that will include step-by-step procedures for regulatory coordination at 

each phase of FUDS cleanup, including the preliminary assessment of 

eligibility process, and for unexploded ordnance projects. 

DOD also indicated that it is taking actions that should address our 

recommendations that DOD assess the impact of recent Corps’ efforts to 

improve coordination through actions such as the Management Action 

Plan pilot program and incorporate the successful components as 

requirements into its FUDS guidance. DOD is also assessing practices that 

individual Corps districts have used to coordinate with regulators and 

developing a list of best practices for dissemination and use throughout 

the Corps. DOD stated that it is proposing to include best practices from 

the Management Action Plan pilot in its engineering regulation and will 

review individual District efforts aimed at improving coordination with 

regulators to see if additional best practices should be developed. 

In response to our recommendation that DOD and EPA work together to 

clarify their respective roles in the FUDS cleanup program by establishing 

a memorandum of understanding that will lay out an overall framework, 

DOD is proposing to incorporate coordination and consultation 

requirements in the appropriate procedural sections of the upcoming 

engineering regulation, rather than using a memorandum of 

understanding. 

Overall, the steps being taken or planned by DOD to improve coordination 

with regulators could, when completed, constitute a significant 

improvement over current processes and should go a long way toward 

addressing the problems identified in this report that were the subject of 

our recommendations. 

EPA did not comment specifically on the individual recommendations in 

the report but did state that report did an excellent job of presenting 

substantive information relative to DOD’s efforts to consult with 

regulatory agencies. 
Page 26 GAO-03-146 Corps Coordination with Regulators 

In addition to their written comments, DOD and EPA also provided a 

number of technical comments and clarifications, which we incorporated 

as appropriate. DOD’s comments appear in appendix III and EPA’s 

comments appear in appendix IV. 

We conducted our review from March 2001 to September 2002 in 

accordance with generally accepted government auditing standards. 

As arranged with your offices, unless you publicly announce the contents 

of this report earlier, we plan no further distribution of it until 30 days 

from the date of this letter. We will then send copies to the Secretary of 

Defense; the Director, Office of Management and Budget; appropriate 

congressional committees; and other interested parties. We will also 

provide copies to others upon request. In addition, the report will be 

available, at no charge, on the GAO Web site at http://www.gao.gov/. 

If you or your staff have any questions, please call me or Edward Zadjura 

at (202) 512-3841. Contributors to this report are listed in appendix V. 

Sincerely yours, 

(Ms.) Anu K. Mittal 

Acting Director, Natural Resources and Environment 
Appendix I: Additional Details on Our Scope 

and Methodology 

Page 27 GAO-03-146 Corps Coordination with Regulators 

The objectives of our review were to (1) identify federal requirements for 

DOD and the Corps to coordinate with state and federal regulators during 

the FUDS cleanup program, (2) determine the extent to which the Corps 

has coordinated with state regulators since the start of the FUDS program 

and assess the recent steps it has taken to better coordinate, and (3) 

identify any concerns regulators may have about coordination with the 

Corps. 

To identify federal requirements that DOD and the Corps must meet in 

coordinating with regulators, we obtained and reviewed the Superfund 

Amendments and Reauthorization Act of 1986. To identify related DOD 

and Corps guidance, we interviewed FUDS program officials and Corps 

officials in various Corps districts and divisions. We then obtained and 

reviewed the guidance documents, including the Defense Management 

Guidance for the Defense Environmental Restoration Program, the Corps 

FUDS Program Manual, and other related documents. 

To determine how the Corps coordinates with state regulators during the 

assessment and cleanup of FUDS, we conducted a survey. First, we drew a 

stratified, random sample of 519 FUDS properties from the Corps’ FUDS 

database, as of February 2001. The survey results cover FUDS program 

activities that took place from 1986 through 2001. The sample consisted of 

150 properties that did not have any projects associated with them and an 

additional 369 properties that had at least one project with at least one 

specific work phase completed. The following table summarizes our 

sample in terms of the number of properties represented, as well as the 

number and types of projects. 

Appendix I: Additional Details on Our Scope 

and Methodology 
Appendix I: Additional Details on Our Scope 

and Methodology 

Page 28 GAO-03-146 Corps Coordination with Regulators 

Table 3: Number of FUDS Properties and Projects in Our Sample 

 Population Sample

FUDS Properties 

Properties without projects 4,002 150

Properties with projects 2,762 369

Total FUDS properties 6,764 519

FUDS Projects

 Project Category 

• Hazardous waste 1,009 96

• Containerized waste 1,274 106

• Ordnance and explosive waste 1,629 144

• Unsafe buildings and debris 470 32

• Potentially responsible party1 201 21

• Other 2 0

Total FUDS projects 4,585 399a 

Source: GAO. 

a

Some properties with projects had multiple projects. 

We obtained information from the Corps’ FUDS database to customize the 

surveys depending on their cleanup phase as well as the types of projects, 

if any, that were in the survey. At the property level, questions varied 

depending upon whether 1) the Corps had determined that no DOD action 

was indicated, 2) the database showed no projects associated with the 

property and DOD had not made a determination that no DOD action was 

indicated, and 3) the Corps had proceeded with at least some type of 

project work. Project level questions varied depending on 1) the type of 

project—for example, hazardous waste projects received a more complex 

questionnaire than unsafe buildings and debris projects because 

hazardous waste projects must go through more investigation and cleanup 

phases and 2) how many of the investigation and cleanup phases the 

Corps had completed at a project—as indicated by the Corps FUDS 

database.2

 For example, not all hazardous waste projects in our sample 

 1

 We did not solicit information on potentially responsible party projects because they 

account for only 4 percent of all FUDS projects and we did not address them in this report. 

2

 Specifically, a hazardous waste project can go through several investigation and cleanup 

phases, including a site inspection to confirm the presence, extent, and source(s) of the 

hazards; a study to evaluate the risk associated with the hazard, determine whether 

cleanup is needed, and if so, select alternative cleanup approaches; and design, 

construction, operation, and long-term monitoring of the selected cleanup, if necessary. 

Ordnance and explosive waste projects can go through similar phases, with the exception 

of the “operation” of the cleanup phase. Containerized waste and unsafe buildings and 

debris projects may only go through design and construction of the cleanup. 
Appendix I: Additional Details on Our Scope 

and Methodology 

Page 29 GAO-03-146 Corps Coordination with Regulators 

have gone through all applicable phases. Based on information that the 

Corps provided to us, we determined which phases were completed in 

such projects and only asked questions related to the completed phases. 

We then sent similar questionnaires to the current Corps and state project 

managers of the properties in our sample to obtain the views of both 

regarding coordination. 

To obtain information on DOD efforts to improve coordination with 

regulators and address their concerns, we interviewed DOD and Corps 

headquarters officials and reviewed documents that they provided. In 

addition, we contacted FUDS program officials at several Corps divisions 

and districts, including the Great Lakes and Ohio River, North Atlantic, 

South Atlantic, and Southwestern divisions, and the Alaska, Louisville, 

Norfolk, Seattle, and Tulsa districts. 

To obtain information on state regulators’ concerns regarding Corps 

coordination with them regarding the FUDS program, we conducted 

structured interviews with FUDS program managers in the 27 states that 

account for most of the FUDS work. To determine which states to call, we 

used the Corps FUDS database to identify the 20 states that had the 

greatest number of FUDS properties. Because properties vary in terms of 

the amount of work they involve—for example, the number of projects at 

FUDS properties ranged between 1 and 43—-we also identified the 20 

states that had the most FUDS projects. There were 27 states that fell into 

at least one of these two categories, and they accounted for approximately 

80 percent of all FUDS properties and all FUDS projects. To document 

consistently the information we obtained from the FUDS managers in the 

27 states, we developed a data collection instrument to guide our 

interviews. 

To obtain information on the Corps’ coordination with EPA and its 

concerns regarding its role in the program, we interviewed officials at EPA 

headquarters, including those from the Office of Solid Waste and 

Emergency Response responsible for developing EPA’s guidance for 

FUDS, and we reviewed documentation they provided. In addition, we 

developed a data collection instrument to conduct structured interviews 

with federal facilities officials who deal with FUDS issues at all 10 EPA 

regions. 
Appendix II: State and Corps Project 

Managers’ Responses to Our Survey 

Regarding Coordination at FUDS 

Page 30 GAO-03-146 Corps Coordination with Regulators 

Table 4: State Project Managers’ Responses Regarding Corps Coordination with States during Preliminary Assessments of 

Eligibility in Our Sample 

Yes 

(percentage) 

No 

(percentage) 

Don’t know 

(percentage) 

Total 

responses 

Did the Corps inform states that it was starting preliminary 

assessment of eligibility? 

6 81 13 444 

Did the Corps ask states for information or input on its approach? 6 80 14 886a

Did the Corps ask for state participation? 5 84 11 441 

Did the Corps inform states of interim results as work progressed? 5 83 12 441 

Did the Corps provide states with a draft of the report summarizing 

the results of the preliminary assessment of eligibility? 

4 84 12 441 

Did the Corps provide states with the final report on the preliminary 

assessment of eligibility? 

48 43 9 442 

Source: GAO. 

a

Combined total responses for two questions. 

Note: States’ responses to FUDS survey. 

Table 5: Corps Project Managers’ Responses Regarding Corps Coordination with States during Preliminary Assessments of 

Eligibility in Our Sample 

Yes 

(percentage) 

No 

(percentage) 

Don’t know 

(percentage) 

Total 

responses 

Did the Corps inform states that it was starting preliminary 

assessment of eligibility? 

24 58 18 481 

Did the Corps ask states for information or input on its approach? 27 53 20 965 

Did the Corps ask for state participation? 16 64 20 481 

Did the Corps inform states of interim results as work progressed? 15 65 20 478 

Did the Corps provide states with a draft of the report summarizing 

the results of the preliminary assessment of eligibility? 

7 79 14 481 

Did the Corps provide states with the final report on the preliminary 

assessment of eligibility? 

56 30 14 477 

Source: GAO. 

a

Combined total responses for two questions. 

Note: Corps’ responses to FUDS survey. 

Appendix II: State and Corps Project 

Managers’ Responses to Our Survey 

Regarding Coordination at FUDS 
Appendix II: State and Corps Project 

Managers’ Responses to Our Survey 

Regarding Coordination at FUDS 

Page 31 GAO-03-146 Corps Coordination with Regulators 

Table 6: State Project Managers’ Responses Regarding Corps Coordination with States during Cleanup of Hazardous Waste 

Projects in Our Sample 

Yes 

(percentage) 

No 

(percentage) 

Don’t know 

(percentage) 

Total 

responses 

Did the Corps inform states of upcoming work? 53 31 16 86 

Did the Corps ask for states’ input and participation? 50 33 17 169a

Did the Corps inform states of interim results? 49 35 16 84 

Did the Corps provide states with draft reports? 46 43 11 98 

Did the Corps provide states with final reports? 44 41 15 91 

Source: GAO. 

a

Combined total responses for two questions. 

Note: States’ responses to FUDS survey. 

Table 7: Corps Project Managers’ Responses Regarding Corps Coordination with States during Cleanup of Hazardous Waste 

Projects in Our Sample 

Yes 

(percentage) 

No 

(percentage) 

Don’t know 

(percentage) 

Total 

Responses 

Did the Corps inform states of upcoming work? 72 12 16 99 

Did the Corps ask for states’ input and participation? 67 14 19 195a

Did the Corps inform states of interim results? 73 11 16 95 

Did the Corps provide states with draft reports? 59 25 16 108 

Did the Corps provide states with final reports? 57 21 22 101 

Source: GAO. 

a

Combined total responses for two questions. 

Note: Corps’ responses to FUDS survey. 
Appendix II: State and Corps Project 

Managers’ Responses to Our Survey 

Regarding Coordination at FUDS 

Page 32 GAO-03-146 Corps Coordination with Regulators 

Table 8: State Project Managers’ Responses Regarding Corps Coordination with States during Cleanup of Containerized 

Waste Projects in Our Sample 

Yes 

(percentage) 

No 

(percentage) 

Don’t know 

(percentage) 

Total 

Responses 

Did the Corps inform states of upcoming work? 40 48 12 86 

Did the Corps ask for states’ input and participation? 25 60 15 168a

Did the Corps inform states of interim results? 25 53 22 80 

Did the Corps provide states with draft reports? 27 61 12 83 

Did the Corps provide states with final reports? 36 50 14 84 

Source: GAO. 

a

Combined total responses for two questions. 

Note: States’ responses to its FUDS survey. 

Table 9: Corps Project Managers’ Responses Regarding Corps Coordination with States during Cleanup of Containerized 

Waste Projects in Our Sample 

Yes 

(percentage) 

No 

(percentage) 

Don’t know 

(percentage) 

Total 

Responses 

Did the Corps inform states of upcoming work? 57 20 23 109 

Did the Corps ask for states’ input and participation? 51 21 28 216 

Did the Corps inform states of interim results? 51 24 25 108 

Did the Corps provide states with draft reports? 49 28 23 105 

Did the Corps provide states with final reports? 63 19 18 106 

Source: GAO. 

a

Combined total responses for two questions. 

Note: Corps’ responses to FUDS survey. 
Appendix II: State and Corps Project 

Managers’ Responses to Our Survey 

Regarding Coordination at FUDS 

Page 33 GAO-03-146 Corps Coordination with Regulators 

Table 10: State Project Managers’ Responses Regarding Corps Coordination with States during Cleanup of Ordnance and 

Explosive Waste Projects in Our Sample 

Yes 

(percentage) 

No 

(percentage) 

Don’t know 

(percentage) 

Total 

Responses 

Did the Corps inform states of upcoming work? 18 67 15 39 

Did the Corps ask for states’ input and participation? 18 71 11 78a

Did the Corps inform states of interim results? 13 76 11 38 

Did the Corps provide states with draft reports? 23 70 7 47 

Did the Corps provide states with final reports? 44 53 3 45 

Source: GAO. 

a

Combined total responses for two questions. 

Note: States’ responses to FUDS survey. 

Table 11: Corps Project Managers’ Responses Regarding Corps Coordination with States during Cleanup of Ordnance and 

Explosive Waste Projects in Our Sample 

Yes 

(percentage) 

No 

(percentage) 

Don’t know 

(percentage) 

Total 

Responses 

Did the Corps inform states of upcoming work? 42 21 37 33 

Did the Corps ask for states’ input and participation? 39 23 38 66a 

Did the Corps inform states of interim results? 24 27 49 33 

Did the Corps provide states with draft reports? 25 33 42 36 

Did the Corps provide states with final reports? 33 50 17 36 

Source: GAO. 

a

Combined total responses for two questions. 

Note: Corps’ responses to FUDS survey. 
Appendix III: Comments from the Department 

of Defense 

Page 34 GAO-03-146 Corps Coordination with Regulators 

Appendix III: Comments from the 

Department of Defense 
Appendix III: Comments from the Department 

of Defense 

Page 35 GAO-03-146 Corps Coordination with Regulators 
Appendix III: Comments from the Department 

of Defense 

Page 36 GAO-03-146 Corps Coordination with Regulators 
Appendix III: Comments from the Department 

of Defense 

Page 37 GAO-03-146 Corps Coordination with Regulators 
Appendix III: Comments from the Department 

of Defense 

Page 38 GAO-03-146 Corps Coordination with Regulators 
Appendix III: Comments from the Department 

of Defense 

Page 39 GAO-03-146 Corps Coordination with Regulators 
Appendix IV: Comments from the 

Environmental Protection Agency 

Page 40 GAO-03-146 Corps Coordination with Regulators 

Appendix IV: Comments from the 

Environmental Protection Agency 
Appendix V: GAO Contacts and Staff 

Acknowledgments 

Page 41 GAO-03-146 Corps Coordination with Regulators 

Ms. Anu K. Mittal, (202) 512-9846 

Edward Zadjura, (202) 512-9914 

In addition to those named above, Gary L. Jones, Glenn C. Fischer, James 

Musial, and Pauline Seretakis made key contributions to this report. Also 

contributing to this report were Doreen S. Feldman, Art James, Nancy 

Crothers, and Laura Shumway. 

GAO Contacts 

Appendix V: GAO Contacts and Staff 

Acknowledgments 

Acknowledgments 

(360046) 
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