HAZARDOUS WASTE 

CLEANUP

Observations on States’ 

Role, Liabilities at DOD and 

Hardrock Mining Sites, and 

Litigation Issues

Statement of David Trimble, Director 

Natural Resources and Environment

Testimony 

Before the Subcommittee on 

Environment and the Economy, 

Committee on Energy and Commerce, 

House of Representatives

For Release on Delivery 

Expected at 10:15 a.m. EDT 

Wednesday, May 22, 2013

GAO-13-633T

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-13-633T, a testimony 

before the Subcommittee on Environment and 

the Economy, Committee on Energy and 

Commerce, House of Representatives

May 2013

HAZARDOUS WASTE CLEANUP 

Observations on States’ Role, Liabilities at DOD and 

Hardrock Mining Sites, and Litigation Issues

Why GAO Did This Study

According to EPA, the agency that 

manages the nation’s principal 

hazardous waste cleanup program, 

one in four Americans lives within 3 

miles of a hazardous waste site. Many 

such sites pose health and other risks, 

and their cleanup can be lengthy and 

expensive. EPA’s Superfund program, 

established under CERCLA, provides a 

process to address contaminated sites. 

Under CERCLA, parties that 

contributed to the contamination of a 

site are generally liable for cleanup and 

related costs. These parties may 

include federal agencies, such as 

DOD, and companies. Based on the 

risk a site poses, EPA may place the 

site on the NPL, a list that includes 

some of the nation’s most seriously 

contaminated sites. As of April 2013, 

the NPL included about 1,300 sites, 

and states and federal agencies may 

address additional contaminated sites 

outside of EPA’s Superfund program. 

GAO’s prior work has identified 

challenges cleaning up DOD’s NPL 

sites and abandoned mining sites and 

has assessed litigation related to the 

Superfund program. 

In this testimony, GAO summarizes its 

work from March 2008 to April 2013 on 

(1) the role of states in cleaning up 

hazardous waste sites, (2) DOD’s 

management of its sites on the NPL, 

(3) federal liabilities from contaminated 

hardrock mining sites, and (4) litigation 

under CERCLA and other statutes. 

GAO is not making new 

recommendations but has made 

numerous recommendations to DOD, 

EPA, and Interior to better address 

hazardous waste sites. As described in 

this statement, the responses to these 

recommendations have varied.

What GAO Found

States, in consultation with the Environmental Protection Agency (EPA), 

participate in the cleanup of hazardous waste sites in several ways. Under the 

Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) of 1980, sites that meet certain risk thresholds are eligible for 

placement on the National Priorities List (NPL)—a list that includes some of the 

nation’s most contaminated sites. In this context, states may notify EPA of 

potential hazardous waste sites, evaluate the health and environmental risks at 

sites being considered for the NPL, or oversee cleanups of NPL sites. In some 

cases, EPA may elect to defer sites that are eligible for the NPL to other federal 

or state cleanup programs. As GAO reported in April 2013, EPA had deferred to 

states the oversight of the cleanup of 47 percent of sites eligible for the NPL. 

GAO recommended that EPA provide guidance on the most common type of 

deferral to states, and EPA agreed with GAO’s recommendation. In addition, 47 

states have their own versions of the Superfund program.

As of April 2013, the Department of Defense (DOD) is responsible for cleanup at 

129 NPL sites (over 80 percent of federal facilities on the NPL). In addition to its 

NPL sites, GAO reported in 2010 that DOD had over 50,000 areas that required

cleanup and that the agency had spent almost $30 billion on cleanup from 1986 

to 2008. In July 2010, GAO found that CERCLA requires federal agencies to 

enter into an interagency agreement with EPA to guide cleanup within a certain 

period but, as of February 2009, 11 DOD installations had not signed such 

agreements after 10 or more years on the NPL. DOD has made progress on this 

issue by decreasing the number of such installations from 11 to 2, but both sites 

still pose significant risks. GAO recommended that EPA pursue changes to a key 

executive order that would increase its authority to hasten cleanup at these sites. 

EPA agreed but has not taken action to have the executive order amended.

GAO’s work has identified challenges and liabilities for the federal government 

stemming from hardrock mining operations, primarily at abandoned mines on

federal land. In many cases, mine operators abandoned mines and did not have 

adequate financial assurance to pay for cleanup. As a result, the government 

may have to cover these costs. In 2011, GAO found that 57 hardrock mines on 

federal land managed by the Bureau of Land Management (BLM) had 

inadequate financial assurance to cover estimated reclamation costs and 

recommended that BLM improve its ability to evaluate the adequacy of financial 

assurances. In 2012, BLM reported implementing GAO’s recommendation.

CERCLA and other major environmental statutes involve litigation among 

numerous parties. In addition to cases brought by EPA to enforce laws, litigation 

includes citizen suits to compel EPA to take action when it does not meet 

deadlines, and to question regulations and permitting decisions. In addition, 

potentially responsible parties at hazardous waste sites often file lawsuits against 

each other or EPA. In 2011, GAO found that about 5 percent of lawsuits against 

EPA for fiscal years 1995 to 2010 involved CERCLA and that, across 10 

environmental statutes, trade associations and private companies comprised 48 

percent of the litigants, followed by environmental groups (30 percent), 

nonfederal governments (12 percent), and other parties (10 percent). 

View GAO-13-633T. For more information, 

contact David Trimble at (202) 512-3841or 

trimbled@gao.gov.
Page 1 GAO-13-633T

441 G St. N.W.

Washington, DC 20548

Chairman Shimkus, Ranking Member Tonko, and Members of the 

Subcommittee:

Thank you for inviting me to discuss our work on the federal government’s 

liability for environmental cleanup. The Environmental Protection Agency 

(EPA) manages the Superfund program—the federal government’s 

principal program to clean up hazardous waste sites—and estimates that 

one in four Americans lives within 3 miles of a hazardous waste site. 

Many hazardous waste sites pose serious risks to human health and the 

environment, and their cleanup can require substantial time and expense. 

EPA’s budget for the Superfund program is approximately $1.2 billion in 

fiscal year 2013, about 13 percent of the agency’s overall budget. Under 

the Superfund program, EPA can place sites with contamination that is 

sufficiently severe on the National Priorities List (NPL), which includes 

sites among the nation’s most seriously contaminated.1 As of April 2013, 

the NPL included 1,311 sites. Where EPA decides not to address sites 

eligible for the NPL under the Superfund program, EPA may defer their 

oversight to other federal and state cleanup programs. Outside of EPA’s 

Superfund program, tens of thousands of contaminated sites are 

addressed by other federal agencies and states.

For sites on the NPL, EPA oversees the cleanup, which may be 

performed by potentially responsible parties (PRP) or by EPA itself. 

These parties generally include current or former owners and operators of 

a site or the generators or transporters of the hazardous substances. 

PRPs may include federal agencies, such as the Department of Defense 

(DOD), which have responsibility and authority for some or all cleanups at 

their facilities. In fact, as of April 2013, 156 sites on the NPL were federal 

facilities. While this amounts to about 12 percent of sites on the NPL, 

some of these sites can be costly to clean up. Federal liabilities for 

environmental cleanup extend beyond federal sites listed on the NPL. For 

example, tens of thousands of contaminated hardrock mining sites, only a 

 

1

There is no legal requirement that EPA clean up a site on the NPL or that it do so under a 

particular time frame. As we reported in May 2010, EPA’s future costs to conduct remedial 

construction at nonfederal NPL sites will likely exceed recent funding levels. The limited 

funding, coupled with increasing costs of cleanup, has forced EPA to choose between 

cleaning up a greater number of sites in less time and a cost-efficient manner or cleaning 

up fewer sites more efficiently. See GAO, Superfund: EPA’s Estimated Costs to 

Remediate Existing Sites Exceed Current Funding Levels, and More Sites Are Expected 

to Be Added to the National Priorities List, GAO-10-380 (Washington, D.C.: May 6, 2010).

 
 

Page 2 GAO-13-633T

small number of which are listed on the NPL, can present major 

environmental cleanup challenges and expenses for the federal 

government. These challenges include abandoned mines on public land 

that may require federally funded cleanup and cases where mining 

operations abandoned a site and did not have sufficient financial 

assurance to clean up the site. In addition, EPA faces the prospect of 

litigation over its regulations and other actions, including lawsuits EPA 

initiates to enforce provisions of the law which, among other things, 

governs the Superfund program—the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA) of 1980.2

My testimony today is based on reports we issued from March 2008 to 

April 2013 and addresses (1) the role of states in the cleanup of 

hazardous waste sites eligible for the NPL; (2) DOD’s management of its 

sites on the NPL; (3) the financial liabilities to the federal government 

related to environmental cleanup presented by hardrock mining; and (4) 

the amount, type, and trends of litigation related to CERCLA and other 

environmental statutes. This statement includes citations for our relevant 

reports. We conducted this work in accordance with generally accepted 

government auditing standards. Our issued reports have detailed 

information about our scope and methodology.

CERCLA gives EPA the authority to respond to actual and threatened 

releases of hazardous substances to the environment, and of pollutants 

and contaminants that may pose an imminent and substantial danger to 

public health or the environment. CERCLA authorizes EPA to compel 

PRPs to clean up the sites; allows EPA to pay for cleanups and seek 

reimbursement from PRPs; and establishes a Hazardous Substance 

Superfund (trust fund) to help EPA pay for cleanups and related program 

activities. EPA’s 10 regional offices implement Superfund within several 

states and, in some cases, territories. In addition, the law establishes a 

process for federal agencies to identify their sites with hazardous 

releases and for the sites to be cleaned up with funding from federal 

agency appropriations. When EPA decides not to list a site on the NPL or 

otherwise retain oversight, it may defer oversight of the site’s cleanup to 

other federal and state cleanup programs.

 

2

CERCLA, Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. 

§§ 9601-9675 (2013)). Hereinafter, references to CERCLA sections are as amended.

Background 
 

Page 3 GAO-13-633T

Under CERCLA, PRPs must conduct or pay for the cleanup of hazardous 

substances. In some cases, however, EPA cannot identify the PRPs, or 

these parties may be unwilling or financially unable to perform the 

cleanup. CERCLA authorizes EPA to pay for remedial cleanups at sites 

on the NPL and seek reimbursement from the PRPs. Historically, the trust 

fund was financed primarily by taxes on crude oil and certain chemicals, 

as well as by an environmental tax on corporations based on their taxable 

income. However, the authority for these taxes expired in 1995 and, 

shortly thereafter, the balance in the trust fund started diminishing. By the 

start of fiscal year 2009, the balance of the trust fund had decreased in 

value from its peak of $5.0 billion in 1997 to $137 million. Since the taxes 

expired, congressional appropriations have been the largest source of 

funding for the trust fund. For context, appropriations have averaged 

about $1.2 billion annually since 1981. Other sources of revenue include 

interest on the balance of the trust fund, fines and penalties collected for 

violations of cleanup requirements, and recovery of cleanup costs from 

PRPs.

Under the Superfund program, EPA assesses hazardous release sites to 

determine if their contamination makes them eligible for the NPL. While 

over 40,000 potential hazardous release sites have been reported to the 

Superfund program over the past 30 years, EPA has only determined a 

few thousand of these sites pose a sufficient threat to human health and 

the environment to be eligible for the NPL. CERCLA and its implementing 

regulations establish a process of specific steps to evaluate and to clean 

up sites. The basic steps apply to both federal facilities and nonfederal 

sites. One difference is that CERCLA imposes additional requirements on 

federal agencies; for example, the law requires that, for federal facilities 

listed on the NPL, federal agencies must enter into an interagency 

agreement with EPA that includes schedules for completion of each 

remedy at the site. The key steps in this process for federal facilities are 

included in figure 1.
 

Page 4 GAO-13-633T

Figure 1: Key Stages of the CERCLA Process to Address and Clean Up Hazardous Waste at Federal Facilities

Note: “HRS” stands for Hazard Ranking System, a measure of a site’s relative threat to human health 

and the environment. “RI/FS” stands for remedial investigation and feasibility study, a two-part study 

of the NPL site after it is listed designed to characterize site conditions and evaluate options to 

address identified problems, among other things.
 

Page 5 GAO-13-633T

During the initial phases of EPA’s assessment of sites reported to its 

Superfund program—known as preliminary assessment and site 

inspection—EPA regional officials or their state and tribal counterparts 

evaluate the potential need for additional investigation or action. 

Specifically, the preliminary assessment phase involves an evaluation of 

readily available information about a site and its surrounding area to 

determine if the release or potential release of hazardous substances 

poses a sufficient threat to human health and the environment to merit 

further investigation. If further investigation is needed, a site inspection 

follows the preliminary assessment. During this phase, investigators 

typically collect samples to identify the hazardous substances. 

Information from the preliminary assessment and site inspection is used 

to calculate and document a site’s preliminary Hazard Ranking System 

(HRS) score, which indicates a site’s relative threat to human health and 

the environment based on potential pathways of contamination. Sites with 

a HRS score of 28.50 or greater become eligible for listing on the NPL. 

The HRS calculation is not, however, intended to determine the extent of 

contamination or the appropriate cleanup approach. This occurs later 

when EPA, based on available information, selects an appropriate 

cleanup approach for those sites it decides to add to the NPL. In some 

cases, EPA may conduct a short-term cleanup known as a removal action 

or otherwise delay selection of a long-term cleanup approach.

As we reported in April 2013, as of December 2012, EPA had identified 

over 3,400 sites—both federal facilities and nonfederal sites—that were 

reported to the Superfund program and have contamination that makes 

them eligible for listing on the NPL.3 Of these, 1,311 sites were on the 

NPL as of April 2013. EPA deferred most of the rest to cleanup 

approaches outside the Superfund program.4 As we reported in May 

2010, according to EPA headquarters officials, the number of sites 

proposed for listing on the NPL had decreased over time as a result of the 

expanded use of other cleanup programs, including state programs.5

 

3

GAO, Superfund: EPA Should Take Steps to Improve Its Management of Alternatives to 

Placing Sites on the National Priorities List, GAO-13-252 (Washington, D.C.: Apr. 9, 

2013).

4

The number of NPL sites does not include sites proposed to or deleted from the NPL. 

Sites that have been proposed for listing on the NPL, are currently on the NPL, have been 

deleted from the NPL, or have been removed from proposal can always be identified as 

such in the Superfund program’s database.

5

GAO-10-380. 
 

Page 6 GAO-13-633T

However, we also reported at that time that EPA regional officials 

estimated that an average of 20 to 25 sites per year—higher than the 

average of 16 over the previous 5 years—would be added to the NPL 

over the following 5 years. Most of the regional officials noted that 

economic conditions—which can limit states’ abilities to clean up sites 

under their own programs and PRPs’ abilities to pay for cleanup—were a 

contributing factor to the expected increase in sites listed on the NPL. So 

far, these estimations have been borne out—according to EPA’s website, 

the agency added an average of 23 sites each year to the NPL in fiscal 

years 2010 through 2012.

As we reported in April 2013, states, in consultation with EPA, participate 

in the identification and cleanup of hazardous waste sites eligible for the 

NPL in many ways.6 Examples of this participation include the following:

• States may notify EPA of potential hazardous waste sites for listing in 

the Superfund program database;

• States may act under cooperative agreements with EPA to evaluate 

the relative potential for sites being considered for the NPL to pose a 

threat to human health and the environment;

• As a matter of policy, EPA seeks concurrence from state governors or 

environmental agency heads before proposing a site for listing on the 

NPL;

• States may assume the lead oversight role at NPL sites under 

cooperative agreements with EPA; and

• EPA may only pay for a remedial action at a site if the relevant state 

agrees, among other things, to pay a portion of the cleanup expenses, 

as well as all operations and maintenance costs after construction of 

the cleanup remedy is completed.

In addition to overseeing cleanup at some sites on the NPL, states may 

oversee cleanup at sites that are eligible for listing on the NPL but that 

were not reported to EPA for listing in the Superfund program database. 

States do not have an obligation to report all potentially eligible sites to 

the federal Superfund program, and several of the environmental officials 

from 13 states we contacted in conducting the work for our April 2013 

report confirmed that they have conducted or overseen cleanups at sites 

 

6

GAO-13-252. 

States Play a Critical 

Role in Characterizing 

and Cleaning Up 

Contaminated Sites
 

Page 7 GAO-13-633T

not listed in the Superfund program database that may have been eligible 

for the NPL.

Alternatively, EPA may choose not to list sites that have been reported 

and that are eligible for listing on the NPL and instead defer oversight of 

these sites to programs outside of the Superfund program—typically to 

states. In fact, as we reported in April 2013, this approach is the most 

common for cleanup of sites that are eligible for listing on the NPL. As of 

December 2012, of the 3,402 sites EPA identified as eligible for the NPL, 

EPA regions had deferred oversight of 1,984 sites to cleanup approaches 

outside the Superfund program, including 1,606 deferrals to states (47 

percent of all eligible sites). EPA officials in all 10 regions indicated that 

states’ preferences influence EPA’s selection of the cleanup program at 

sites eligible for the NPL.

Most of these deferrals to states were made as Other Cleanup Activity 

(OCA) deferrals. OCA deferral to a state places a site under that 

particular state’s environmental regulations, rather than CERCLA 

authorities. As we reported in April 2013, EPA has not issued guidance 

for these deferrals as it has for other cleanup approaches. Moreover, 

EPA’s program guidance does not clearly define types of OCA deferrals 

or specify in detail the documentation EPA regions should have to 

support their decisions on OCA deferrals. OCA deferral to a state involves 

no formal EPA oversight other than periodic discussions between EPA 

regional officials and state officials. For OCA deferrals to states, EPA 

regions’ tracking activities range from checking state websites to meeting 

with states to receive status updates every 3 months, according to 

regional officials.

In addition, according to EPA regional officials, the amount and type of 

documentation regions collect to support OCA deferrals covers a broad 

range, including no written documentation, an e-mail from a state official, 

letters from state officials attesting to the cleanup, or a copy of the legal 

order or agreement between the state and PRP. Without clearer guidance 

on OCA deferrals, EPA does not have reasonable assurance that its 

regions consistently track these sites or that their documentation will be 

appropriate or sufficient to verify that these sites have been deferred or 

have completed cleanup. In April of this year, we recommended that EPA 

provide guidance to its regions that defines each type of OCA deferral 

and what constitutes adequate documentation for OCA deferral and 

completion of cleanup. The agency agreed with this recommendation, 

acknowledging the need for more guidance.
 

Page 8 GAO-13-633T

State cleanup programs vary in their capacity and resources to manage 

the cleanup of hazardous waste sites, according to EPA and state 

officials. According to officials in the EPA region with the most OCA 

deferrals to states, states in the region have mature environmental 

programs willing and capable of overseeing many sites, which makes the 

OCA deferral to states well-suited to that region. In contrast, officials we 

spoke with in some regions noted that they needed to consider states’ 

capacity to oversee a site before using the OCA deferral to states. Nine 

states have no OCA deferrals, and other states oversee hundreds of 

these sites, with the most in Massachusetts (247 sites), New Jersey 

(221), and California (180). Several of the environmental officials from 13 

states we contacted confirmed that states’ use of and experience with 

OCA deferrals can differ substantially. One state official noted that these 

differences are likely related to how industrialized a state may be and the 

extent of cleanup programs in a given state. According to officials in one 

region, EPA has access to more resources than states and typically 

addresses sites that require greater or more specialized resources 

through the NPL approach. For example, regional officials noted, states 

face different limitations that can prevent them from pursuing cleanup 

under their programs, including: technical capacity, legal resources, and 

financial resources. In addition, EPA officials in four regions noted 

examples where a state environmental program requested that the 

Superfund program pursue NPL listing because the state was having 

trouble getting a PRP to cooperate or the PRP went bankrupt.

Finally, states have oversight of many sites that do not pose sufficient 

health or environmental risks to be eligible for listing on the NPL. Fortyseven states address such sites under their own versions of the 

Superfund program.
 

Page 9 GAO-13-633T

DOD is responsible for the majority of federal facilities on the NPL. 

Specifically, federal facilities comprise 156 (12 percent) of the 1,311 sites 

listed on the NPL, with DOD responsible for 129 of these sites (83 

percent of federal facilities on the NPL).7 Legal responsibility for cleanup 

of federal facilities stems from a variety of sources, including Section 120 

of CERCLA and a key executive order.8 Among other things, section 120 

stipulates that each federal agency shall be subject to and must comply 

with the act as would a private party, including with regard to liability. 

Section 120 also establishes key responsibilities of federal agencies for 

their sites, such as notification of discovered contamination to a central 

docket and a requirement to enter into interagency agreements with EPA 

to govern the cleanup for NPL-listed sites. Importantly, under the 

executive order, DOD and the Department of Energy have authority to 

clean up all of their NPL and other contaminated sites, while EPA has 

authority for managing cleanup of other agencies’ NPL sites.9

When federal agencies clean up an NPL site under the Superfund 

process, they must meet the same standards as any other responsible 

party. Thus, EPA establishes or approves standards for remedial actions 

on a site-specific basis by identifying “applicable or relevant and 

appropriate requirements” (ARAR). These requirements include 

standards under any federal law and standards under certain state laws 

or regulations that are more stringent than corresponding federal law and 

are communicated in a timely manner to the entity leading a cleanup. For 

example, some states where all groundwater is protected as a potential 

source of drinking water may have drinking water standards that are more 

stringent than federal ones, or they may address contaminants that are 

not federally regulated. If contamination at a federal facility in such a state 

threatens groundwater, the state standard may be identified as an ARAR. 

Selection of ARARs is site-specific based on the circumstances of the 

site.

Past DOD activities and industrial facilities contaminated millions of acres

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

 

7

Data on the number of NPL sites were current as of April 2013 and exclude sites 

proposed to or deleted from the NPL. 

8

CERCLA § 120 is codified at 42 U.S.C. § 9620 (2013). Executive Order 12580, 

Superfund Implementation, 52 Fed. Reg. 2923 (Jan. 23, 1987). 

9

These other agencies retain financial responsibility for cleanup. 

DOD Is Responsible 

for Many 

Contaminated Sites, 

Including Over 80 

Percent of Federal 

Facilities on the NPL
 

Page 10 GAO-13-633T

territories. Environmental contaminants found at military installations 

include solvents and corrosives; fuel; paint strippers and thinners; metals, 

such as lead, cadmium, and chromium; nerve agents; and unexploded 

ordnance. The law requires DOD to conduct environmental restoration 

activities at areas located on former and active defense properties that 

were contaminated while under its jurisdiction. We reported in March 

2010 that DOD has identified over 31,600 areas that are eligible for 

cleanup, including about 4,700 areas on formerly used defense sites that 

were closed before October 2006; 21,500 areas on active installations; 

and 5,400 areas identified by several Base Realignment and Closure 

commissions.10 As we noted in July 2010, across all environmental 

cleanup and restoration activities at its installations, including NPL and 

non-NPL sites, DOD spent almost $30 billion from 1986 to 2008.11

Our prior work has identified challenges stemming from the fact that DOD 

has not always adhered to the CERCLA requirement to enter into 

interagency agreements with EPA at NPL sites. Specifically, in July 

2010,12 we reported that although CERCLA requires federal agencies to 

enter into an interagency agreement with EPA to guide cleanup within a 

certain period,13 as of February 2009, 11 DOD installations had not 

signed such agreements after 10 or more years on the NPL. DOD has 

made progress on this issue by decreasing the number of such 

installations from 11 to 2, but both sites still pose significant risks. For 

example, Tyndall Air Force Base in Panama City, Florida, one of two 

DOD installations that have yet to sign interagency agreements with EPA, 

has been in noncompliance with CERCLA for more than a decade. EPA 

added the 29,000-acre site to the NPL in 1997 due to extensive 

 

10GAO, Environmental Contamination: Information on the Funding and Cleanup Status of 

Defense Sites, GAO-10-547T (Washington, D.C.: Mar. 17, 2010). For purposes of listing 

on the NPL, an entire installation typically counts as a single site even in cases where that 

installation may have multiple sources of contamination. Conversely, DOD considers an 

area of contamination to be a “site” such that a single installation may have dozens of 

sites. For purposes of this report, we use the term “area” to refer to a DOD site, e.g., an 

area of contamination. 

11GAO, Superfund: Interagency Agreements and Improved Project Management Needed 

to Achieve Cleanup Progress at Key Defense Installations, GAO-10-348 (Washington, 

D.C.: July 15, 2010). 

12GAO-10-348. 

13EPA and the federal agency must enter into the interagency agreement within 6 months 

of the conclusion of the remedial investigation and feasibility study, according to CERCLA.
 

Page 11 GAO-13-633T

contamination and high concentrations of probable human carcinogens 

and other contaminants, including DDT, which is present at 

concentrations some 200 times greater than EPA’s risk-based standards 

for people and the environment. According to EPA, the Air Force has 

taken the position that it can unilaterally decide if and when to investigate, 

characterize, and clean up contamination and what work is appropriate 

and protective. As EPA stated in a January 2013 letter to the Air Force 

and DOD, the Air Force is neglecting EPA’s experience in hazardous 

waste cleanups, and it is failing to meet its legal obligations under 

CERCLA.

At installations that have interagency agreements, site management 

plans include detailed schedules and become part of the interagency 

agreement, establishing a legal basis for timely completion of the work. 

DOD also faces consequences and penalties if it does not adhere to the 

agreement. At installations without interagency agreements, however, 

EPA has limited ability to compel an agency to comply with CERCLA.14

Not having interagency agreements has contributed to a variety of 

obstacles and delayed cleanup progress at DOD installations. For 

example, in the absence of interagency agreements, DOD may fund work 

at other sites ahead of NPL sites. In July 2010, we recommended that 

EPA take steps to modify the long-standing Superfund executive order to 

gain the authority to issue certain unilateral administrative orders to 

executive agencies, among other things. EPA agreed with the 

recommendation but has not yet take action to modify the executive 

order; further, until the administration amends the executive order, EPA’s 

authority remains limited. We also suggested that Congress should 

consider amending CERCLA to authorize EPA—after an appropriate 

notification period—to impose penalties to enforce cleanup requirements 

at federal facilities. At this time, Congress has not taken action on this 

suggestion.

Another critical issue at contaminated DOD sites relates to the 

department’s response to recommendations made by the Agency for 

Toxic Substances and Disease Registry (ATSDR) within the Department 

 

14The lack of an interagency agreement can also limit the ability of citizens and other 

parties to compel action. 
 

Page 12 GAO-13-633T

of Health and Human Services.15 Specifically, ATSDR conducts a health 

assessment of each site proposed for the NPL that may result in 

recommendations to the responsible agency and include actions for 

reducing the public health risk, among other things. A health assessment 

involves examining the relationship between actual exposures to 

contaminants and subsequent signs of disease and illness. In May 2012, 

we reported on the database used to track ATSDR public health 

assessment recommendations and DOD’s implementation of those 

recommendations.16 Such recommendations might include eliminating or 

reducing harmful exposures, or obtaining critical missing data to assist 

the health assessment. We found that DOD officials responsible for 

overseeing implementation of these recommendations did not know what 

actions, if any, installations had taken on about 80 percent of the 

approximately 1,200 recommendations ATSDR had made since 1986. In 

addition, we found that guidance for the Defense Environmental 

Restoration Program—under which DOD conducts cleanup activities at its 

installations—was silent regarding actions DOD should take in response 

to these recommendations.

Furthermore, we reported that the guidance did not address if, or when, 

DOD should voluntarily seek a public health assessment at NPL sites 

beyond the initial assessment completed by ATSDR. This is important 

because additional contaminants or sources of potential harm to human 

health may be found after the initial ATSDR health assessment that could 

render the original ATSDR health assessment obsolete. According to 

federal internal control standards,17 management should assess the risks 

faced from external (and internal) sources and decide what actions to 

take to mitigate them. While DOD officials said that DOD relies on the 

judgment of environmental professionals at installations, without a 

standard set of guidelines on when to request a public health assessment 

other than an initial assessment for a site on the NPL, DOD does not 

 

15CERCLA authorized the establishment of ATSDR to assess the presence and nature of 

health hazards to communities affected by Superfund sites, to identify actions to prevent 

or reduce harmful exposures, and to expand the knowledge base about the health effects 

that result from exposure to hazardous substances.

16GAO, Defense Infrastructure: DOD Can Improve Its Response to Environmental 

Exposures on Military Installations, GAO-12-412 (Washington, D.C.: May 1, 2012).

17GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1 

(Washington, D.C.: November 1999).
 

Page 13 GAO-13-633T

have assurance that it is consistently identifying and addressing possible 

health risks from exposures at some NPL sites and non-NPL sites. We 

therefore recommended that DOD establish procedures to 

comprehensively track and document the status and nature of DOD 

responses to ATSDR recommendations and findings of significant risk to 

ensure that DOD and its components monitor these recommendations 

and findings of significant risk and take timely response actions. We also 

recommended that DOD establish a policy that identifies when 

installations should consider requesting public health assessments in 

addition to the initial assessments at NPL sites. DOD partially concurred 

with the first recommendation and said that it would review its procedures 

for tracking ATSDR recommendations and make the appropriate changes 

if necessary. We continue to believe that DOD should improve its 

procedures to adequately address vital public health issues. DOD did not 

concur with the second recommendation, and said that the appropriate 

policies were already in place. Our findings demonstrated that this was 

not the case, and we continue to believe that DOD should implement the 

recommendation. DOD has not implemented either recommendation.
 

Page 14 GAO-13-633T

Our previous work has found that hardrock mine sites present liabilities to 

the federal government when they are abandoned or have inadequate 

financial assurance.18 As we reported in July 2011, the General Mining 

Act of 1872 encouraged the development of the West by allowing 

individuals to stake claims and obtain exclusive rights to the gold, silver, 

copper, and other valuable hardrock mineral deposits on land belonging 

to the United States.19 Since then, thousands of operators have extracted 

billions of dollars worth of hardrock minerals from federal land managed 

by the Department of the Interior’s Bureau of Land Management (BLM) 

and the Department of Agriculture’s Forest Service—the two principal 

agencies responsible for federal lands open for hardrock mining. BLM 

issued regulations in 1981 requiring all operators of these mines to 

reclaim the land when their operations cease, but some did not and 

abandoned these mines. As a result, thousands of acres of federal land 

previously used for mining and related operations now pose serious 

environmental and physical safety hazards. These hazards include toxic 

or acidic water that contaminates soil and groundwater and physical 

safety hazards such as concealed shafts, unstable mine structures, or 

explosives. Our previous work had shown that there were no definitive 

estimates of the number of abandoned hardrock mines on federal and 

other lands. Thus, in 2008, we developed a standard definition for 

abandoned hardrock mining sites and used this definition to identify at 

least 161,000 abandoned hardrock mine sites in the 12 western states 

and Alaska, where most hardrock mining occurs. At least 33,000 of these 

sites had environmental degradation such as contaminated water and 

arsenic-contaminated tailings piles.

Cleanup costs for these abandoned mines vary by type and size of the 

operation. For example, the cost of plugging holes is usually small, but 

reclamation costs for large mining operations can reach tens of millions of 

dollars. As we reported in March 2008, from 1997 to 2008, four federal 

agencies—BLM, the Forest Service, EPA, and the Department of the 

Interior’s Office of Surface Mining Reclamation and Enforcement—funded 

the cleanup and reclamation of some of these abandoned hardrock mine 

 

18See, for example, GAO, Abandoned Mines: Information on the Number of Hardrock 

Mines, Cost of Cleanup, and Value of Financial Assurances, GAO-11-834T (Washington, 

D.C.: July 14, 2011); and GAO, Hardrock Mining: BLM Needs to Revise Its Systems for 

Assessing the Adequacy of Financial Assurances, GAO-12-189R (Washington, D.C.: Dec. 

12, 2011).

19GAO-11-834T. 

The Federal 

Government Faces 

Liabilities from 

Abandoned Hardrock 

Mine Sites and 

Ensuring Adequate 

Financial Assurance 

for Liabilities from 

Current Mining 

Operations 
 

Page 15 GAO-13-633T

sites, spending at least $2.6 billion to reclaim abandoned hardrock mines 

on federal, state, private, and American Indian lands.20 Of this amount, 

EPA spent $2.2 billion. EPA’s funding under the Superfund program, 

among other things, focuses on the cleanup and long-term health effects 

of air, ground, or water pollution caused by abandoned hardrock mine 

sites—primarily those on nonfederal land. As we reported in July 2009, 

from fiscal years 1983 through 2007, EPA added 33 nonfederal mining 

sites to the NPL.21 One-third of these sites, the highest proportion of any 

other nonfederal site type, were megasites where actual or expected 

cleanup costs were expected to reach $50 million or more.

In December 2011 we identified inadequacies with financial assurance 

mechanisms, such as bonds intended to ensure that mine operators have 

the ability to pay for any cleanup stemming from their operations.22 Such 

financial assurances are a critical tool in shifting potential cleanup 

liabilities from the government to those responsible for any contamination. 

Beginning in 2001, BLM required all mining operators to provide bonds or 

other financial assurances before beginning exploration or mining 

operations on BLM land. These financial assurances must cover, among 

other things, the reclamation costs for BLM land disturbed by hardrock 

operations.

In addition, we have repeatedly reported that operators of hardrock mines 

on BLM lands have not provided financial assurances sufficient to cover 

estimated reclamation costs. In December 2011, for example, we found 

that BLM’s financial assurances for some hardrock operations continued 

to be inadequate.23 At that time, we found that mine operators had 

 

20GAO, Hardrock Mining: Information on Abandoned Mines and Value and Coverage of 

Financial Assurances on BLM Land, GAO-08-574T (Washington, D.C.: Mar. 12, 2008).

21GAO, Superfund: Litigation Has Decreased and EPA Needs Better Information on Site 

Cleanup and Cost Issues to Estimate Future Program Funding Requirements, 

GAO-09-656 (Washington, D.C.: July 15, 2009). 

22GAO-12-189R. For additional GAO reports related to the adequacy of financial 

assurances, see GAO, Environmental Liabilities: Hardrock Mining Cleanup Obligations, 

GAO-06-884T (Washington, D.C.: June 14, 2006), GAO, Phosphate Mining: Oversight 

Has Strengthened, but Financial Assurances and Coordination Still Need Improvement, 

GAO-12-505 (Washington, D.C.: May 4, 2012), and GAO, Uranium Mining: Opportunities 

Exist to Improve Oversight of Financial Assurances, GAO-12-544 (Washington, D.C.: May 

17, 2012). 

23GAO-12-189R. 
 

Page 16 GAO-13-633T

provided financial assurances valued at approximately $1.5 billion to 

guarantee reclamation costs for 1,365 hardrock operations on federal 

land managed by BLM. Of these, we found that 57 hardrock operations 

had inadequate financial assurances—about $24 million less than needed 

to cover estimated reclamation costs. We therefore recommended that 

BLM revise its financial assurance data and reporting systems to 

calculate and report the value of inadequate hardrock financial 

assurances for each mining operation to more accurately represent the 

adequacy of its financial assurances. The Department of the Interior 

concurred with our recommendation and, in 2012, BLM reported to us 

that it had implemented our recommendation.

As the primary federal agency charged with implementing many of the 

nation’s environmental laws, EPA often faces the prospect of litigation 

over its regulations and other actions. Generally, the federal government 

has immunity from lawsuits, but federal laws authorize three types of suits 

related to EPA’s implementation of many major environmental laws, 

including CERCLA, the Clean Air Act, and the Clean Water Act, among 

others. First, most of the major environmental statutes include “citizen 

suit” provisions authorizing citizens—including individuals, associations, 

businesses, and state and local governments—to sue EPA when the 

agency fails to perform an action mandated by law. These suits are often 

referred to as “agency-forcing” or “deadline” suits. Second, the major 

environmental statutes typically include judicial review provisions 

authorizing citizens to challenge certain EPA actions, such as 

promulgating regulations or issuing permits. Third, the Administrative 

Procedure Act authorizes challenges to certain “final” actions, such as 

rulemakings and decisions on permit applications. As a result, even if a 

particular environmental statute does not authorize a challenge against 

EPA for a final decision or regulation, the Administrative Procedure Act 

may do so. EPA’s CERCLA actions such as cleanup remedies (after they 

are implemented) and promulgation of regulations may be subject to 

challenge in court.

In August 2011, we reported on environmental litigation and cases 

against EPA across 10 environmental statutes filed for fiscal years 1995 

to 2010.24 Of the approximately 2,500 cases we reviewed, about 5 

 

24GAO, Environmental Litigation: Cases against EPA and Associated Costs over Time, 

GAO-11-650 (Washington, D.C.: Aug. 1, 2011). 

CERCLA and Other 

Environmental 

Statutes Involve 

Litigation among 

Numerous Parties
 

Page 17 GAO-13-633T

percent of cases against EPA involved CERCLA. As shown in figure 2, 

the majority of the cases were brought under the Clean Air Act (59 

percent of cases) and the Clean Water Act (20 percent of cases).

Figure 2: Environmental Cases Filed against EPA by Statute, Fiscal Year 1995 through Fiscal Year 2010

Note: Nine cases did not have information on statute.

The lead plaintiffs filing cases against EPA across all of these statutes 

during the 16-year period fit into several categories. The largest category 

comprised trade associations (25 percent), followed by private companies 

(23 percent), local environmental groups and citizens’ groups (16 

percent), and national environmental groups (14 percent). Individuals, 

states and territories, municipal and regional government entities, unions 

and workers’ groups, tribes, universities, and a small number of others we 

could not identify made up the remaining plaintiffs (see table 1).
 

Page 18 GAO-13-633T

Table 1: Share of Cases by Lead Plaintiff Type: Fiscal Year 1995 through Fiscal Year 2010

Type of groupa Number of cases Percentage

Trade associations 622 25

Private companies 566 23

Local environmental and citizens’ groups 388 16

National environmental groups 338 14

States, territories, municipalities, and regional government entities 297 12

Individuals 185 7 

Unions, workers’ groups, universities, and tribes 46 2 

Other 33 1 

Unknown 7 1

Total 

b

2,482 100

Source: GAO.

a

For more information on each of these groups, see appendix I of GAO-11-650. 

b

Less than 1 percent.

According to the stakeholders we interviewed for our August 2011 

report,25 a number of factors—including EPA’s failure to meet statutory 

deadlines—affect plaintiffs’ decisions to bring litigation against EPA.26 For 

example, if EPA does not meet its statutory deadlines, organizations or 

individuals might sue to enforce the deadline. In such suits, interested 

parties seek a court order or a settlement requiring EPA to implement its 

statutory responsibilities.

EPA may also initiate litigation against PRPs under CERCLA seeking to 

compel these parties to clean up contaminated sites or to seek 

reimbursement for cleanup EPA has conducted. In July 2009, we 

reported that EPA’s approach for enforcing CERCLA was criticized in the 

past as leading to lengthy negotiations and protracted litigation, resulting 

 

25To get stakeholders’ views on any environmental litigation trends and the factors that 

underlie them, we interviewed officials from EPA and the Department of Justice; 

representatives of six environmental groups, six industry associations, and the National 

Association of Attorneys General; representatives of six state attorneys general or state 

environmental offices; and a university law professor who is expert in data on citizen suits. 

The findings from our interviews with stakeholders cannot be generalized to those with 

whom we did not speak.

26GAO-11-650. 
 

Page 19 GAO-13-633T

in high costs for the government, as well as the PRPs.27 While the federal 

government files many CERCLA cases, states, private parties, and others 

may also initiate litigation under the act for a variety of reasons, including 

compelling others to contribute toward site cleanup costs. We also found 

that Superfund litigation—measured by the number, duration, and 

complexity of cases—decreased from fiscal years 1994 through 2007, the 

most recent available data at the time. According to our analysis, the 

number of CERCLA cases filed decreased by 48 percent, from 214 cases 

filed in fiscal year 1994 to 111 cases filed in fiscal year 2007. We reported 

that, while the number of cases filed by the federal and state 

governments remained relatively constant, the drop-off stemmed primarily 

from a decrease in litigation filed by other types of plaintiffs, such as 

businesses or private individuals. According to agency officials and 

attorneys we interviewed, CERCLA-related litigation has also decreased 

because (1) the number of new sites added to the NPL declined; (2) 

fewer sites required cleanup, and parties had less reason to go to court 

as cleanups progressed; (3) EPA promoted settlements, rather than court 

cases, with PRPs; and (4) the courts clarified several legal uncertainties.

In July 2009, we found that, while CERCLA litigation could impose 

substantial costs for the government and PRPs, several important trends 

were likely decreasing the overall amount of litigation and associated 

costs.28 Attorneys with two firms noted that, because PRPs were 

increasingly likely to settle out of court, a decline in the number of cases 

filed by these parties had contributed to the decrease in the number of 

new CERCLA cases and potentially to lower overall CERCLA litigation 

costs. Further, the decreasing duration of cases as a result of previously 

negotiated settlements had probably contributed to a decrease in costs. 

The time spent in out-of-court negotiations, either among PRPs or with 

EPA, typically costs less than the time spent in court, according to 

attorneys with whom we spoke. For example, EPA and Department of 

Justice officials and private attorneys said that the costs of the discovery 

phase of litigation—when parties to a lawsuit may request and obtain 

information from each other, such as evidence that supports their claims 

or defenses—were particularly high. Finally, the decreasing complexity of 

CERCLA cases—in particular, the decreasing number of parties 

involved—has likely contributed to a decrease in total litigation costs. 

 

27GAO-09-656. 

28GAO-09-656. 
 

Page 20 GAO-13-633T

EPA’s expenditures for litigation, which decreased by half, from more 

than $50 million in fiscal year 1999 to $25 million in fiscal year 2007, 

provide further evidence of this trend.

Chairman Shimkus, Ranking Member Tonko, and Members of the 

Subcommittee, this concludes my prepared statement. I would be 

pleased to answer any questions you have at this time.

If you or your staff members have any questions about this testimony, 

please contact me at (202) 512-3841 or trimbled@gao.gov. Contact 

points for our Offices of Congressional Relations and Public Affairs may 

be found on the last page of this statement. Michael Hix, Susan Iott, and 

Diane Raynes, Assistant Directors; and Liz Beardsley; Anne Hobson; 

Rich Johnson; Nico Sloss; and Emily Suarez-Harris made key 

contributions to this testimony. 

GAO Contact and 

Staff 

Acknowledgments 

(361492)
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