U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

 Evaluation Report 

EPA Should Improve Its 

Oversight of Federal Agency 

Superfund Reviews 

 Report No. 10-P-0133 

 June 2, 2010 
 

 

 

 

Report Contributors: Carolyn Copper 

 Steve Hanna

 Tapati Bhattacharyya

 Anne Emory 

 Chad Kincheloe

 Kate Kimmel

 Brooke Shull 

Abbreviations 

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act 

CERCLIS Comprehensive Environmental Response, Compensation, and Liability 

Information System 

DOD U.S. Department of Defense 

DOE U.S. Department of Energy 

EPA U.S. Environmental Protection Agency 

FFA Federal facility agreement 

FFRRO Federal Facilities Restoration and Reuse Office 

GAO U.S. Government Accountability Office 

NPL National Priority List 

OECA Office of Enforcement and Compliance Assurance 

OIG Office of Inspector General 

OSWER Office of Solid Waste and Emergency Response 

OU Operating unit 

RPM Remedial Project Manager 

SMP Site management plan 

TCE Trichloroethene 
 

U.S. Environmental Protection Agency 10-P-0133 

June 2, 2010 Office of Inspector General 

At a Glance 

Catalyst for Improving the Environment 

Why We Did This Review 

Prior studies have identified 

weaknesses in the Superfund 

5-year review process. We 

evaluated how the U.S. 

Environmental Protection 

Agency (EPA) identifies and 

monitors issues and 

recommendations in Reviews 

conducted at federal facility 

Superfund sites. We also 

examined how EPA achieves 

compliance with unimplemented 

recommendations and 

nonconcurrence issues. 

Background 

EPA’s Superfund 5-year review 

is a required process that 

examines the clean-up remedies 

at Superfund sites where 

hazardous substances remain at 

levels that may pose unacceptable 

risks. The Reviews are required 

every 5 years. They determine 

whether remedies adequately 

protect human health and the 

environment. Federal facility 

Superfund sites (e.g., military 

sites) complete their own 

Reviews and submit them to 

EPA. EPA is required to report 

to Congress on these Reviews. 

For further information, contact 

our Office of Congressional, 

Public Affairs and Management at 

(202) 566-2391. 

To view the full report, 

click on the following link: 

www.epa.gov/oig/reports/2010/ 

20100602-10-P-0133.pdf. 

EPA Should Improve Its Oversight of 

Federal Agency Superfund Reviews

 What We Found 

EPA does not have effective management controls to monitor the completion of 

Review recommendations at federal government Superfund sites. For Reviews 

signed since 2006, 84 percent of Review recommendations were overdue as of 

April 28, 2009. EPA regional staff do not consistently follow Superfund 5-year 

review process guidance and policies for updating the status of Review issues 

and recommendations in the Comprehensive Environmental Response, 

Compensation, and Liability Information System (CERCLIS). Overdue or 

unimplemented recommendations to improve underperforming or 

nonperforming clean-up remedies may increase the risk to human health and 

the environment. 

Federal facilities are responsible for their own Reviews, and EPA states in a 

letter its concurrence or nonconcurrence with these Reviews. However, EPA’s 

management of the concurrence process has resulted in some Reviews being 

conducted more than 5 years apart and some issues not being addressed. EPA 

has no management controls or policy for communicating, following up on, or 

resolving issues it does not agree with or it believes need improvement. 

Enforcement options are not clearly documented in EPA guidance or policy 

statements, and are not consistently understood or followed by staff. 

We also identified data quality problems. Discrepancies in the presentation of 

issues and recommendations exist between the Reviews and CERCLIS, some 

data in CERCLIS are logically inconsistent, and recommendations from prior 

Reviews are not always closed out. 

What We Recommend 

We recommend that EPA implement improved management controls to 

monitor the completion of federal facility Review recommendations, ensure 

Reviews are submitted every 5 years, improve the management of the 

nonconcurrence process, clarify and describe enforcement options to achieve 

completion of recommendations, and improve data quality. EPA initially 

agreed with all recommendations, except for recommendation 3-1. After 

additional discussions, EPA agreed with all recommendations and proposed 

actions to address them. All recommendations are open with agreed-to actions 

pending. In its final response to this report, EPA should provide estimated or 

actual completion dates for all recommendations. 
 

 

 

 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL 

June 2, 2010 

MEMORANDUM 

SUBJECT: EPA Should Improve Its Oversight of 

Federal Agency Superfund Reviews 

 Report No. 10-P-0133 

FROM: Wade T. Najjum 

Assistant Inspector General 

 Office of Program Evaluation 

TO: Cynthia Giles 

 Assistant Administrator 

Office of Enforcement and Compliance Assurance 

Mathy Stanislaus 

 Assistant Administrator 

Office of Solid Waste and Emergency Response 

This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) 

of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe 

the problems the OIG has identified and corrective actions the OIG recommends. This report 

represents the opinion of the OIG and does not necessarily represent the final EPA position. 

Final determinations on matters in this report will be made by EPA managers in accordance with 

established resolution procedures. 

The estimated cost of this report – calculated by multiplying the project’s staff days by the 

applicable daily full cost billing rates in effect at the time – is $971,193. 

Action Required 

In accordance with EPA Manual 2750, you are required to provide a written response to this 

report within 90 calendar days. Your response should include a corrective action plan for 
agreed-upon actions, including actual or estimated milestone completion dates. We have no 

objections to the further release of this report to the public. 

If you or your staff have any questions regarding this report, please contact Carolyn Copper, 

Director for Program Evaluation, Hazardous Waste Issues, at (202) 566-0829 or 

copper.carolyn@epa.gov; or Chad Kincheloe, Project Manager, at (312) 886-6530 or 

kincheloe.chad@epa.gov. 
 

 

 

 

 

 

 

 

 

 

EPA Should Improve Its Oversight of 10-P-0133 

Federal Agency Superfund Reviews 

Table of Contents 

Chapters 

1 Introduction ........................................................................................................... 1 

Purpose .......................................................................................................... 1 

Background .................................................................................................... 1 

Noteworthy Achievements.............................................................................. 2 

Scope and Methodology................................................................................. 3 

Limitations ...................................................................................................... 4 

Prior Evaluation Coverage ............................................................................. 5 

2 EPA Needs a Management Control for Monitoring the Completion of Review
 

Recommendations ................................................................................................ 6
 

Entry of Review Data in CERCLIS is Required .............................................. 6 

Recommendations Are Not Monitored for Completion................................... 7 

Conclusions.................................................................................................... 9 

 Recommendations ......................................................................................... 9 

Agency Comments and OIG Evaluation......................................................... 10 

3 EPA Needs Additional Oversight and Enforcement Guidance for Reviews.... 11
 

Lack of Controls and Guidance Impedes Compliance with Legal 

 Requirements and Affects the Quality of Reviews .................................. 11 

Guidance on Enforcement of Review Recommendations Needed ................ 13 

Conclusions.................................................................................................... 15 

 Recommendations ......................................................................................... 15 

Agency Comments and OIG Evaluation......................................................... 16 

4 CERCLIS Data Quality Problems Impede Accurate Documentation of 

Issues and Recommendations............................................................................. 17
 

Discrepancies Exist Between Information in Published Reviews 

 and in CERCLIS ...................................................................................... 17 

CERCLIS Data Quality Issues Affect EPA’s Ability to Monitor Reviews......... 18 

Conclusions.................................................................................................... 19 

 Recommendations ......................................................................................... 19 

Agency Comments and OIG Evaluation......................................................... 19 

Status of Recommendations and Potential Monetary Benefits................................. 21 
EPA Should Improve Its Oversight of 10-P-0133 

Federal Agency Superfund Reviews 

Appendices 

A OSWER Response to OIG Draft Report and OIG Response ............................. 23 

B Distribution ............................................................................................................ 32
 
 10-P-0133 

Chapter 1

Introduction 

Purpose 

The purpose of this project was to evaluate the U.S. Environmental Protection 

Agency’s (EPA’s) oversight of 5-year reviews conducted at Superfund National 

Priority List (NPL) sites that are also federal facility sites. These Reviews assess 

the performance of clean-up remedies to ensure the remedies adequately protect 

human health and the environment. We addressed the following questions: 

1.	 How does EPA (Headquarters and regions) ensure that all federal facility 

issues and recommendations are identified and tracked? 

2.	 Are EPA’s actions to address unimplemented federal facility Review 

recommendations and nonconcurrence issues achieving federal facility 

compliance? 

Background 

The Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA, or Superfund) requires a review every 5 years at Superfund sites in 

which contaminants remain above levels that could pose unacceptable risks to 

human health and the environment. These reviews assess the performance of 

clean-up remedies to ensure the remedies protect human health and the 

environment. Reviews identify issues that affect current or future remedy 

protectiveness and may include recommendations to address issues for each 

operating unit (OU) at a site. Based on the issues identified, the protectiveness of 

each OU is characterized by one of five categories defined by EPA, listed in 

decreasing order of protectiveness: 

•	 Protective: Protective of human health and the environment. 

•	 Will be protective: Will be protective once the remedy is completed. 

•	 Protective in the short term: Protective in the short term; however, for 

the remedy to be protective in the long term, follow-up actions need to be 

taken. 

•	 Protectiveness deferred: Protectiveness cannot be determined until 

further information is obtained. 

•	 Not protective: Not protective unless specified actions are taken. 

EPA is required to report to Congress on the status of nonfederal and federal NPL 

site Reviews. In these reports, EPA defines the protectiveness of the site as not 

more protective than the least protective OU. 

1 
 

 

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Federal facilities are defined as the “buildings, installations, structures, land, 

public works, equipment, aircraft, vessels, and other vehicles and property, owned 

by, or constructed or manufactured for the purpose of leasing to, the Federal 

government.” Federal facilities have the lead role and responsibility in the cleanup of their Superfund sites. In addition, federal facilities conduct their Superfund 

Reviews, prepare the Review reports, and submit their reports to the appropriate 

regional EPA office for review and comment. The federal facility is also 

responsible for ensuring that recommendations and follow-up actions identified 

during Reviews are completed. Federal agencies or departments fund Reviews at 

federal facilities. 

One of EPA’s primary roles in federal facility Reviews is providing oversight to 

determine whether federal facility decisions protect human health and the 

environment. Through a concurrence process, EPA regions determine whether 

Review decisions are adequately supported. In this process, EPA regions 

examine federal facility Reviews and prepare a letter that either indicates 

concurrence with the Review or provides independent findings. EPA regions 

should enter the issues and recommendations identified by the Review into the 

Comprehensive Environmental Response, Compensation, and Liability 

Information System (CERCLIS). 

As of April 2009, there were 172 federal 

Federal 

Agency 

NPL Sites Percent 

DOD 140 81.4 

DOE 21 12.2 

Other 11 6.4 

Total 172 100 

Table 1-1: Federal Facility NPL Sites facility NPL sites (Table 1-1). The U.S. 

Department of Energy (DOE) and U.S. 

Department of Defense (DOD) are the 

two largest owners of federal facility
 

Superfund sites, which include nuclear 

weapons plants, military bases, and fuel Source: EPA. distribution stations. Examples of these 

sites are the DOE Hanford Nuclear Reservation and the DOD Rocky Mountain 

Arsenal. Federal facility Superfund sites may contain hazardous waste, 

unexploded ordnance, radioactive waste, or other toxic substances. According to 

EPA, federal facilities account for approximately one-half of the liability for 

Superfund clean-ups across the United States, including the largest single sites 

and sites with the widest varieties of contamination. Federal facility sites pose 

significant clean-up challenges. According to an EPA document, it may take up 

to 75 years and $400 billion to clean up federal facility Superfund sites. 

Noteworthy Achievements 

In 2006: 

•	 EPA implemented CERCLIS modifications to facilitate the input and 

monitoring of Review data. 

•	 The Federal Facilities Restoration and Reuse Office (FFRRO) of the 

Office of Solid Waste and Emergency Response (OSWER) issued a 

memorandum to the Regional Superfund National Policy Managers. This 

2 
 

 

 

 

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memorandum emphasized completion of the Reviews and follow-up of 

recommendations as an office priority. 

In 2007: 

•	 OSWER issued a memorandum that identified Review program priorities, 

including: 

3⁄4 Improving the quality and consistency of Reviews. 

3⁄4 Continuing to improve the timeliness of Reviews. 

3⁄4 Tracking and implementing Review issues and recommendations. 

3⁄4 Ensuring CERCLIS accurately reflects Review planning 

information, conclusions, and current progress on implementing 

recommendations. 

3⁄4 Continuing to improve coordination between EPA Headquarters 

and regions. 

•	 EPA conducted Superfund Program Reviews designed to increase 

understanding of challenges with respect to 5-year reviews. These 

reviews continued into 2008. 

In 2009: 

•	 In September 2009, OSWER issued a document titled Five-Year Reviews, 

Frequently Asked Questions and Answers, to clarify EPA’s 2001 

Comprehensive Five-Year Review Guidance. 

•	 During the course of our evaluation, EPA regions updated CERCLIS 

Review recommendations, reducing overdue recommendations from 84 

percent to 39 percent.1 

Scope and Methodology 

We conducted our work from April 2009 to February 2010 in accordance with 

generally accepted government auditing standards. Those standards require that 

we plan and perform the evaluation to obtain sufficient, appropriate evidence to 

provide a reasonable basis for our findings and conclusions based on our 

objectives. We assessed EPA’s management controls for oversight of the 

completion of Review recommendations for NPL federal facility sites. We 

believe the evidence obtained provides a reasonable basis for our findings and 

conclusions based upon our objectives. 

We obtained and analyzed Review data for federal facility NPL sites from EPA’s 

CERCLIS. Using CERCLIS, we identified the total number of sites and overdue 

recommendations in 2006-2008 Reviews and selected the 5 EPA regions (Regions 

3, 4, 8, 9, and 10) with the most federal facility NPL sites and overdue 

recommendations. 

1 We did not verify the accuracy of this reduction in overdue recommendations. 

3 
 10-P-0133 

To address Question 1, we requested information from and interviewed Remedial 

Project Managers (RPMs) and other staff involved in the Review process in the 

selected regions. We used this information and these interviews to identify the 

process by which recommendations are monitored, the reasons for overdue 

recommendations, and the reasons for discrepancies between Review and 

CERCLIS data. We interviewed regions based on the number of Review 

recommendations reported after 2006, focusing on recommendations that were 

overdue or that affected current or future protectiveness. We also conducted 

interviews with OSWER, FFRRO, and the Office of Enforcement and 

Compliance Assurance (OECA), Federal Facilities Enforcement Office to obtain 

information on EPA’s oversight role. 

We reviewed sites that had determinations of “not protective,” “protectiveness 

deferred,” and “protective in the short term,” to determine why recommendations 

or actions at these sites were overdue. We compared the protectiveness 

statements listed in CERCLIS with those in the published Reviews and in reports 

to Congress. We also reviewed the EPA response letters to federal facility 

Reviews to determine the Agency’s concurrence. This analysis included the most 

recent concurrence letter for all 137 sites that filed a Review. 

To address Question 2, we reviewed EPA management controls for ensuring 

federal facility completion of Reviews and completion of the recommendations. 

Our working definition of a completed recommendation was one with a status of 

“complete,” “addressed in the next review,” or “considered but not implemented” 

in CERCLIS. We defined a recommendation as overdue if it had not been 

completed and the current planned completion date had passed. We requested 

information and interviewed Federal Facilities Enforcement Office to determine 

EPA’s enforcement actions related to Reviews and unimplemented 

recommendations. We interviewed FFRRO to identify any management controls 

for monitoring Review recommendations. We reviewed 15 federal facility 

agreements (FFAs) signed since 2001 to determine whether the Reviews were 

defined as a primary document and therefore subject to dispute resolution and 

stipulated penalties. 

Limitations 

We relied on CERCLIS data for much of our analysis. We identify CERCLIS 

data quality issues germane to the objectives of this evaluation in Chapter 4 of this 

report. We did not independently verify that recommendations EPA regional staff 

designated as complete in CERCLIS were in fact complete. 

4 
 10-P-0133 

Prior Evaluation Coverage 

The following recent EPA Office of Inspector General (OIG) and U.S. 

Government Accountability Office (GAO) reports addressed issues related to the 

scope of our review. 

•	 EPA OIG, EPA Has Improved Five-Year Review Process for Superfund 

Remedies, But Further Steps Needed, Report No. 2007-P-00006, 

December 5, 2006. 

•	 GAO, Greater EPA Enforcement and Reporting Are Needed to Enhance 

Cleanup at DOD Sites, GAO-09-278, March 13, 2009. 

5 
 10-P-0133 

Chapter 2

EPA Needs a Management Control for Monitoring the 

Completion of Review Recommendations 

EPA does not have a management control for monitoring the completion of 

Review recommendations. EPA is not consistently updating the status of, or 

monitoring the completion of, Review recommendations as communicated in 

EPA guidance and emphasized by EPA management. When we began our 

review, CERCLIS data showed that 84 percent of the Review recommendations 

made since 2006 were overdue. Further, regions are not submitting annual status 

reports on Reviews as specified in guidance. Consequently, review 

recommendations may not be implemented in a timely fashion, or at all, and 

underperforming or nonperforming clean-up remedies may not be improved, 

potentially increasing the risk to human health and the environment. 

Entry of Review Data in CERCLIS is Required 

Both EPA policy and management communications require that progress on 

Review recommendations be monitored and entered into CERCLIS. EPA’s 2001 

Review Guidance states, “Regions should track the progress and completion of 

recommendations and/or follow-up actions with documentation in the site file, 

and upon completion update the administrative record in the site information 

repository.” In addition, a 2007 OSWER memorandum states that EPA regions 

should maintain timely and accurate Review data to ensure CERCLIS accurately 

reflects Review planning information, conclusions, and current progress on 

implementing recommendations. 

Each Review issue and its associated recommendation that affects current or 

future protectiveness of remedies should be entered into CERCLIS by regional 

staff. EPA’s Five-Year Review CERCLIS Manual discusses entering the 

following issue and recommendation data: 

•	 Issue and recommendation details. This information includes the 

category of the issue, such as remedy performance or changed site 

conditions, and the recommendation to address the issue. 

•	 Protectiveness indicators. For each issue, CERCLIS captures a separate 

entry indicating whether the issue affects both current and future 

protectiveness. 

6 
 

 

 10-P-0133 

•	 Milestone dates. Each recommendation contains three milestone dates: 

3⁄4 The initial planned completion date, which should not be modified 

after entry. 

3⁄4 The current planned completion date, which reflects any changes 

in the planned date. 

3⁄4 The actual completion date. 

•	 Status. This is an indicator of the completion of the recommendation and 

includes values of “complete,” “considered but not implemented,” 

“ongoing,” “under discussion,” and “blank.” Recommendations are 

considered complete when they are designated as complete, addressed in 

the next Review,2 or considered but not implemented. 

A recommendation is considered overdue if it is past its current planned 

completion date and the status is not complete. EPA staff have developed a 

number of internal CERCLIS reports that allow the data to be extracted and 

displayed in a variety of ways. These reports include the identification of overdue 

recommendations (i.e., recommendations not yet completed, with a past-due 

planned completion date). 

Recommendations Are Not Monitored for Completion 

EPA guidance affirms that Review recommendations should be monitored. 

However, EPA does not have a management control for this. Section 3.8 of 

EPA’s 2001 Comprehensive Five Year Review Guidance states that each EPA 

region should report annually to EPA Headquarters on the progress of the 

Reviews for each of its sites. The guidance states the reports are to include, 

among other things, the following specific information: 

•	 For each completed Review, a summary of the protectiveness 

determination(s), issues that impact protectiveness, follow-up actions, and 

the schedule and entity responsible for implementing such actions; 

•	 Status of protectiveness when Review reports from previous fiscal years 

made a “not protective” determination or “needed further information” 

before making a protectiveness determination, or deferred protectiveness; 

and 

•	 Status of follow-up actions identified in Review reports from previous 

fiscal years. 

EPA Headquarters staff stated these reports have never been submitted. In 

response to a previous OIG report, EPA agreed that the annual reporting 

requirement in Section 3.8 of EPA’s 2001 Review Guidance could be replaced by 

Review data in CERCLIS. EPA agreed in this previous report that regions would 

2 While conducting this review, we used EPA’s definition of a complete recommendation, which includes the status 

of “addressed in the next Review.” This status means the recommendation is carried over and will be addressed 

during the next Review. No “addressed in the next Review” or “considered and not implemented” recommendations 

were found in the April 28, 2009, data. 

7 
 

 

 

 

 

 10-P-0133 

be required to keep CERCLIS up to date with Review data. However, this 

recommendation has not been implemented as agreed. 

As of April 28, 2009, 84 percent of 222 recommendations made in Reviews 

during the 2006-2008 period were overdue and not designated as “complete” in 

CERCLIS. During the course of our review, EPA regional staff updated 

CERCLIS data, reducing the percent of overdue recommendations to 39 percent 

(as of August 26, 2009).3 

According to FFRRO staff, twice each year Headquarters informally distributes to 

EPA regions a CERCLIS Review report that identifies overdue recommendations. 

This report could serve as part of an effective management control to monitor the 

completion of recommendations. However, this report was not distributed to any 

of the regional federal facility branch chiefs. EPA Headquarters staff advised that 

the distribution procedure for the report would be updated to include regional 

federal facility contacts. 

The lack of consistent updates to CERCLIS Review information may also be 

affected by regional variations in monitoring and data input. Methods of regional 

monitoring included status reports received from the federal facility and 

spreadsheets, tables, or action item lists maintained by the RPM. According to 

Region 9 staff, they use an “outstanding recommendation” report that is managed 

at the section chief level. In contrast, an RPM in another region was unaware that 

Review recommendations and issues were monitored, and still another RPM 

stated that monitoring Review recommendations was not a priority because of 

competing demands for resources. However, this RPM did state that regional 

staff meet frequently with the federal facility to discuss recommendations. 

Irrespective of the method used, recommendations were overdue for sites in all 

regions we selected for review. 

The issues identified in Reviews can be significant to human health and the 

environment, underscoring the need to monitor the completion of Review 

recommendations. Specific examples of issues from recent Reviews are: 

•	 Ogden Defense Depot, Utah 

3⁄4 After 11 years of operation, the groundwater clean-up remedy has 

not been effective in reducing vinyl chloride concentrations to 

public safety standards. 

3⁄4 Workers at the Site could be exposed to chemical vapors from 

contaminated groundwater underneath buildings if concrete floors 

are not intact and impervious. 

3 We did not verify the accuracy of this reduction in overdue recommendations. 

8 
 10-P-0133 

•	 Fort Ord, California 

3⁄4 The long-term protectiveness of an area at the site that has a 

history of trespassing has been deferred because all explosives 

have not yet been remediated. 

•	 Eielson Air Force Base, Alaska 

3⁄4 Ingestion of fish with high levels of polychlorinated biphenyls, or 

PCBs, may pose unacceptable health risks. 

3⁄4 The extent of trichloroethene (TCE) groundwater contamination is 

unknown. 

•	 Fairchild Air Force Base, Washington 

3⁄4 TCE has been detected at increasing levels in an offsite 

groundwater monitoring well. This condition may not be related to 

the remedial action, but could indicate another source of TCE 

contamination. This condition has been determined to affect future 

site protectiveness. 

Conclusions 

EPA lacks a management control for monitoring the progress and completion of 

Review recommendations. Regions are not updating CERCLIS information with 

the status of Review recommendations as required. EPA is not using CERCLIS 

consistently to monitor recommendations. Regions are not providing annual 

updates on Reviews as recommended in guidance, and Headquarters is not 

providing oversight to ensure submittal of these updates. Methods used to 

monitor recommendations vary by region and RPM. Improvements are needed to 

ensure that recommendations are completed in a timely fashion to assure remedy 

performance and overall protectiveness of federal facility NPL sites. 

Recommendations 

We recommend the Assistant Administrator for Solid Waste and Emergency 

Response: 

2-1 Develop and implement a management control for monitoring completion 

of federal facility Review recommendations. 

2-2 Implement policies and procedures to address Section 3.8 of EPA’s 2001 

Review Guidance, including (1) a summary for each Review completed 

during the year, (2) an update of the status of OUs from sites designated as 

“not protective” or “protectiveness deferred” in Reviews from prior years, 

and (3) the status of follow-up actions identified in Reviews from prior 

years. To the extent that this can be accomplished through the use of 

CERCLIS, specific reports should be implemented and monitored. 

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 10-P-0133 

Agency Comments and OIG Evaluation 

OSWER agreed with Recommendations 2-1 and 2-2 and it proposed acceptable 

corrective action plans to address them. Recommendations 2-1 and 2-2 are open 

with agreed-to actions pending. In its final response to this report, OSWER 

should provide estimated or actual completion dates for these recommendations. 

Although our review was limited to NPL federal facility sites, in its response 

OSWER said it would work to ensure that its other offices are aware of the 

recommendations and, if needed, will implement processes to improve on 

monitoring, tracking, and completing recommendations listed in all Reviews. 

Appendix A provides the complete Agency comments, including follow-up 

responses, and the OIG response. 

10 
 

 

 

 10-P-0133 

Chapter 3

EPA Needs Additional Oversight and 

Enforcement Guidance for Reviews 

EPA’s management of the concurrence process has resulted in some Reviews 

being conducted more than 5 years apart and issues potentially not being 

addressed. EPA uses its concurrence date as the Review completion date instead 

of the date that the federal facility submits its Review. This practice can cause 

delays in identifying potential problems with site clean-ups. EPA has no 

management controls or policy for communicating, following up on, or resolving 

issues it does not agree with or it believes need improvement. Enforcement 

options are not clearly documented in EPA guidance or policy statements and are 

not consistently understood or followed by staff. These conditions can impede 

the effectiveness of the Review process to protect human health and the 

environment, demonstrating the need for guidance on enforcement and oversight. 

Lack of Controls and Guidance Impedes Compliance with Legal 

Requirements and Affects the Quality of Reviews 

CERCLA requires Reviews every 5 years. However, current EPA guidance 

establishes the due date for federal facility Reviews as 5 years from the date of 

EPA’s concurrence letter for the preceding Review. Because EPA has not 

implemented any controls over the concurrence process, EPA regions may issue 

concurrence letters several months, or years, after a Review is submitted. This 

delay in the issuance of concurrence letters results in some Reviews being issued 

beyond the 5-year legal requirement. 

Late Reviews Occur Because of Delays in EPA Concurrence 

Twenty-nine percent of the Reviews completed4

 since 2006 were late by more 

than 6 months, measured from the date of the prior review (Figure 3-1). Seven of 

the Reviews (13 percent) were more than 1 year overdue, and one Review was 

overdue by almost 3 years. Reviews were more than 1 year overdue in part 

because of EPA delays in signing the concurrence letter for the Review. 

According to EPA Regional staff, signed concurrence letters were delayed 

because Reviews were submitted late, Reviews were incomplete or in draft form 

and had to be resubmitted, or EPA disagreed with the Reviews and time was 

needed to resolve disagreements. 

4

 A Review is “completed” as of the Review date entered into CERCLIS, which is the date EPA signs its 

concurrence letter. 

11 
 

 

 10-P-0133 

EPA has no policy or Figure 3-1: Timeliness of 5-Year Reviews Signed After 2006 

guidance to define when On time federal facility Reviews (19 sites, 35%) 

should be submitted to 

EPA to allow for timely 

concurrence review 

within the 5-year 

timeframe. 

The site management 

plan (SMP) could 

potentially be used to months 

minimize delays in EPA (16 sites, 29%) 

concurrence with the Source: OIG analysis of CERCLIS data. Review. An SMP 

provides a list of steps and a summary of CERCLA response actions and 

associated work products required at each federal facility. The SMP provides 

milestones that reflect the schedule of completing CERCLA response actions that 

have been agreed to by the lead agency and the regulatory agencies. The SMP 

could include a date for submittal of a draft Review by the federal facility, which 

allows EPA time to review the document and resolve disagreements prior to the 

Review’s statutory deadline. While the target date could serve as guidance, EPA 

could not enforce the SMP’s date. However, EPA could enforce the statutory 

deadline if the federal agency failed to submit the Review within 5 years of 

initiation of the remedial action. 

EPA’s Concurrence Process Lacks Other Management Controls 

Agency guidance states that EPA has final authority over whether Reviews 

adequately address the protectiveness of remedies. Agency guidance also states 

that EPA will concur with federal agency Reviews or EPA may provide 

independent findings. The concurrence process provides a control for monitoring 

the quality of the Reviews and associated recommendations to ensure overall 

remedy protectiveness. However, EPA lacks policy and procedures for its 

concurrence process. Specific issues are: 

•	 No guidance on timeframes and process for concurrence review. EPA 

has no guidance on when federal agencies should submit their Reviews to 

EPA regions, how long EPA’s review should take, or what the process for 

review is and whether and what internal EPA coordination is needed. 

Lack of clear policies in this matter may compromise the validity of the 

reviews. According to EPA’s Superfund Program Reviews 2007-2008 

Cycle, some regions stated they will only provide feedback on a federal 

facility Review if they receive it with enough time to do so before the final 

due date. 

Late more than 6 Late within 6 

months
 

(20 sites, 36%)
 

12 
 

 

 

 10-P-0133 

•	 Lack of standards for concurrence letters. 

3⁄4 Inconsistent content: Letters take various forms. Letters for 12 

Reviews consisted only of EPA signatures with no statement of 

concurrence. 

3⁄4 Unclear nonconcurrence: Some letters did not include EPA 

statements that the Agency agreed or disagreed with the federal 

facility’s protectiveness statement. EPA did not concur with 14 of 

137 federal facility Reviews. However, EPA stated its 

nonconcurrence in only 3 letters. The other 11 letters included an 

EPA revised protectiveness statement, but not an EPA 

nonconcurrence statement. 

•	 No follow-up and resolution of nonconcurrence issues. EPA has no 

controls to prioritize and monitor the resolution of issues included in 

nonconcurrence letters. The lack of controls over the concurrence process 

can result in inconsistency in how disagreements are communicated and 

resolved, or whether disagreements and concerns are disclosed by EPA. 

•	 Some letters missing from the online record. EPA provides access to 

Reviews through the Internet. However, EPA’s concurrence letter is not 

always included in the online federal facility Review record. As a result, 

EPA staff and the general public may not be able to ascertain the 

Agency’s concurrence or nonconcurrence. 

Guidance on Enforcement of Review Recommendations Needed 

Guidance can support EPA’s ability to enforce the completion of 

recommendations at federal facilities, which may be necessary to maintain site 

protectiveness. According to EPA, its enforcement authority over federal facility 

NPL sites is limited by CERCLA. EPA’s ability to take CERCLA enforcement 

actions at a federal facility is determined by the wording of the FFA.5 FFAs are 

negotiated agreements developed separately for each federal facility. FFAs vary 

in the wording that provides EPA the ability to enforce the submittal of a Review 

or the completion of recommendations. 

EPA Regions Have Differing Views of Their Enforcement Options 

Implementation of Review recommendations can be necessary to ensure site 

protectiveness. However, EPA regions have differing views on their ability to 

enforce Review recommendations at federal facilities. In addition, EPA 

Headquarters is uncertain of the enforceability of the recommendation milestones. 

Two of the five regions interviewed stated they can use the Superfund Record of 

5 An exception is EPA’s authority related to imminent and substantial endangerment, which is a worst-case scenario. 

U.S. Department of Justice concurrence is necessary for EPA to issue a CERCLA order to another federal agency in 

cases of imminent and substantial endangerment. 

13 
 

 

 

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Decision to enforce the completion of Review recommendations that affect site 

protectiveness. However, two other regions reported they have little enforcement 

authority because the federal facility is the lead agency. 

Staff in some regions are not aware of the tools they can use to enforce the 

completion of recommendations. For instance, staff in one region believed that 

they could enforce Review recommendations through the FFA as long as the issue 

related to protectiveness. Staff in another region believed that Review dates could 

not be enforced unless they were listed as primary documents in the FFA. Staff in 

two of the five regions interviewed believed that EPA could not enforce the 

implementation of Review recommendations because EPA is not the lead agency. 

These differing opinions among regions may be due to a lack of enforcement 

guidance – EPA has not clearly identified the set of enforcement tools available to 

the regions to assist in the timely completion of Review recommendations. 

Reviews Should Be but Are Not Consistently Enforceable under 

Existing Federal Agreements 

A component of EPA’s Review enforcement capability is based on the definition 

of the Review as a “primary document” in the FFA. Inclusion as a primary 

document is dependent upon the consent of the federal agency, as EPA lacks the 

authority to compel DOD to include language in a consensual agreement. 

However, Reviews are not consistently listed as primary documents in FFAs. 

Designation as a primary document in the FFA generally provides authority for 

formal dispute resolution as well as the assessment of stipulated penalties. 

Enforcement options vary by site, and the specifics of the process are defined in 

each site’s FFA. If an issue is not resolved informally, then the formal process is 

decided by the EPA Administrator. 

According to OECA staff, completion of Reviews may be enforced by EPA under 

at least one of three conditions: 

1.	 Reviews are defined as primary documents in FFAs. EPA’s 2001 

Review Guidance states, “For Federal facilities only, EPA considers 

Review reports to be stand-alone primary documents or part of another 

related primary document that should have an enforceable schedule within 

the framework of the FFA.” 

2.	 Reviews are defined as a “periodic assessment” in DOD FFAs. DOD 

began referring to a Review as a “periodic assessment” in the FFA in 2003 

and does not classify these as primary documents. However, OECA stated 

that periodic assessments should be enforceable as a term or condition of 

the FFA. 

3.	 FFAs should act in accord with CERCLA. In the FFA, the federal 

facility commits to implementing a remedy in accordance with CERCLA. 

14 
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Since the Review is required under CERCLA, failure to complete the 

Review is a violation of the FFA. 

Because of the importance that OECA staff placed on the wording of FFAs, we 

examined the 15 FFAs signed since 2001. Both of the non-DOD FFAs identified 

the Review as a primary document consistent with EPA’s guidance. Of the 13 

DOD FFAs, almost all (12) identified the Review as a periodic assessment. 

Therefore, all of the FFAs with the Review identified as a periodic assessment 

should be enforceable. 

Conclusions 

EPA lacks a management control to ensure EPA’s concurrence letters are timely, 

consistent, and transparent. EPA’s policy of basing future Reviews on the date of 

the concurrence letter has resulted in submissions that violate the statutory 

requirement for a Review every 5 years. EPA’s ability to enforce the submission 

of Reviews and the completion of recommendations is unclear. EPA lacks 

guidance on Review enforcement tools. Improvement in EPA’s ability to enforce 

Review submission and the completion of recommendations would enhance the 

effectiveness of the Review process, leading to improved remedy performance 

and protection of human health and the environment. 

Recommendations 

We recommend the Assistant Administrator for Solid Waste and Emergency 

Response: 

3-1 Establish a policy to set the due date for Reviews every 5 years, consistent 

with law. Current guidance sets the due date as 5 years from EPA’s 

concurrence date for the prior review. 

3-2 Develop and consistently implement a transparent and public mechanism 

to identify, monitor, and resolve EPA nonconcurrence with federal facility 

Reviews. This should include policies and procedures for conducting 

concurrence reviews, addressing the lead time needed for EPA regional 

review prior to the due date, and defining a standard format for 

concurrence letters. 

3-3 Develop a management control to monitor overdue Reviews. 

15 
 

 

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We recommend the Assistant Administrator for Enforcement and Compliance 

Assurance: 

3-4 Develop enforcement policy that describes EPA enforcement tools, 

processes, and authorities to achieve completion of Review 

recommendations, as well as the timely submittal of complete Reviews. 

As appropriate, the guidance should include the desired wording in the 

FFA and SMP to support this enforcement. 

Agency Comments and OIG Evaluation 

The OIG made changes to the report based on the Agency’s comments where 

appropriate. OSWER provided the official Agency response, which incorporated 

OECA’s comments. 

OSWER agreed with recommendations 3-1, 3-2, and 3-3. However, in its official 

response to the draft report, OSWER disagreed with recommendation 3-1. 

OSWER stated that it believed its current policy can achieve the intent of this 

recommendation, and proposed a joint memorandum to the regions to emphasize 

the policy. The OIG did not agree with this proposed corrective action and met 

with OSWER to discuss the recommendation and alternatives. OSWER 

subsequently agreed with recommendation 3-1 and provided an acceptable 

corrective action plan. In its final response to this report, OSWER should provide 

estimated or actual completion dates for recommendations 3-1, 3-2, and 3-3. 

These recommendations are open with agreed-to actions pending. 

OECA agreed with Recommendation 3-4. However, the draft report response did 

not provide a clear corrective action plan to address the recommendation. After 

follow-up discussion, OECA provided an updated response to recommendation 

3-4 that presented an acceptable corrective action plan. 

Appendix A provides the full text of the Agency comments, including follow-up 

responses, and the OIG’s response. 

16 
 

 

 

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Chapter 4

CERCLIS Data Quality Problems Impede Accurate 

Documentation of Issues and Recommendations 

EPA lacks management controls to ensure that CERCLIS information accurately 

reflects the issues and recommendations reported in Reviews, which can impact 

EPA’s efforts to monitor progress. Discrepancies exist between the Review 

issues and recommendations and those entered in CERCLIS. In addition, other 

inconsistencies are introduced into CERCLIS Review data after initial entry. 

CERCLIS lacks a method to confirm that recommendations from prior Reviews 

have been addressed. EPA should have controls for accurate entry of issues and 

recommendations into CERCLIS, and controls for timely updates to Review 

information to ensure that issues and recommendations are accurately recorded, 

documented, and understood by EPA staff that rely on CERCLIS data. 

Discrepancies Exist Between Information in Published Reviews and in 

CERCLIS 

In the regions where we conducted interviews, the RPMs or other designated 

regional staff enter data on issues, recommendations, and protectiveness 

determinations from the Review into CERCLIS. Recommendation data, such as 

completion status, Figure 4-1: Comparison of Recommendations in Reviews 

milestone dates, and and CERCLIS 

comments, can be updated 

to reflect changes. In a 

sample of 36 Reviews 

completed after 2006 that 

we selected, we identified a 

total of 495 

recommendations that 

appeared in the Reviews, in 

CERCLIS, or in both 

(Figure 4-1). Only 238 5-Year Rev

recommendations were Recommendat

present in both CERCLIS Source: OIG analysis of CERCLIS Reviews after 2006. 

and the Reviews. We 

could not find in CERCLIS 136 (36 percent) of the 374 recommendations that 

appeared in our sample of Reviews. In addition, we could not identify in our 

sample of Reviews 121 (34 percent) of the 359 recommendations in CERCLIS. 

For 14 of the 36 Reviews (39 percent) we selected, all recommendations that were 

in the published Reviews were also in CERCLIS. 

CERCLIS 

Recommendations 

iew 

ions 

136 238 121 

17 
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In some cases, the descriptions of the recommendations in CERCLIS were so 

different from the descriptions in the Review that it was difficult to determine 

whether all recommendations were entered in CERCLIS. This analysis was 

further complicated for some sites by the use of different OU naming conventions 

in the Review and CERCLIS. 

CERCLIS Data Quality Issues Affect EPA’s Ability to Monitor Reviews 

We encountered multiple data quality problems that can affect EPA’s ability to 

use CERCLIS to monitor the completion of Review recommendations. These 

include: 

•	 Review data modified after entry. A May 2007 memorandum on FiveYear Review Program Priorities states OSWER’s intent to ensure that 

CERCLIS accurately reflects Review planning information, report 

conclusions, and current progress on implementing recommendations. 

The memorandum further states that CERCLIS should reflect the original 

planned completion date, while allowing the update of the 

recommendation status, current planned date, and comments if the planned 

date changes. We observed that changes were made to the original 

planned completion date and other Review data to reflect changes in the 

recommendation status, rather than to the status, current planned date, and 

comments. This misunderstanding of how Review data in CERCLIS 

should be maintained should be corrected. 

•	 Some CERCLIS data logically inconsistent. We observed several types 

of logical inconsistencies regarding the entry of Review data into 

CERCLIS. These issues include: 

3⁄4 Protectiveness designation inconsistent with other data. Each 

Review issue includes a Yes/No (Y or N in CERCLIS) 

determination as to whether the issue affects current or future 

protectiveness. Of the 48 sites filing Reviews after 2006, 11 are 

designated in CERCLIS as “protective” but have issues that affect 

current and/or future protectiveness. Conversely, 7 sites have OUs 

listed in CERCLIS as “less than protective” but have no issues 

listed that affect either current or future protectiveness. The 2001 

EPA guidance does not address the use of current and future 

protectiveness in determining OU protectiveness. 

3⁄4 Sitewide protectiveness defined incorrectly. Sites with more than 

one OU that have completed construction of the remedy are 

required to identify the sitewide protectiveness in CERCLIS. 

According to EPA’s 2001 guidance, a site is considered protective 

if the remedies at all OUs are protective, but if at least one OU is 

not protective, the site is not protective. We found seven federal 

18 
 

 

 

 

 10-P-0133 

facility sites with a sitewide protectiveness that is inconsistent with 

the protectiveness of the OUs.6 

•	 Data from prior years not always closed out. Although the 2001 EPA 

guidance states that the Review should address the status of 

recommendations from the prior Review, regional staff we interviewed did 

not understand how these recommendations should be closed out in 

CERCLIS. 

Conclusions 

Significant inconsistencies between issues and recommendations in the Review 

submitted by the federal facility and data entered in CERCLIS affect the ability of 

EPA to effectively monitor the completion of recommendations that address site 

protectiveness. CERCLIS data quality problems compromise its potential as a 

tool for monitoring Reviews. 

Recommendations 

We recommend the Assistant Administrator for Solid Waste and Emergency 

Response: 

4-1 Develop a management control to ensure consistency between the Review 

and CERCLIS. At a minimum, this control should ensure that all Review 

recommendations that affect current or future protectiveness are entered into 

CERCLIS for monitoring, consistent with EPA’s 2001 guidance. 

4-2 Develop guidance and/or CERCLIS controls to address data quality issues, 

including the modification of data after entry, logical inconsistencies 

between CERCLIS data elements, and the close-out of recommendations 

from prior reviews. 

Agency Comments and OIG Evaluation 

OSWER agreed with Recommendations 4-1 and 4-2. However, for 

Recommendation 4-1, the OIG requested additional information from OSWER on 

its proposed corrective plan, which was provided. OSWER’s proposed corrective 

actions for recommendations 4-1 and 4-2 are acceptable. These recommendations 

are open with agreed-to actions pending. In its final response to this report, EPA 

should provide estimated or actual completion dates for these recommendations. 

6

 The seven sites and their Review year are Aberdeen Proving Ground (Michaelsville Landfill) 2003; Aberdeen 

Proving Ground (Michaelsville Landfill) 2009; Castle Air Force Base 2004; Fort Richardson 2008; Joliet Army 

Ammunition Plant (Load Assembly Area) 2004; Naval Air Station, Whidbey Island (Ault Field) 2004; Naval Air 

Station, Whidbey Island (Seaplane Base) 2004. 

19 
 10-P-0133 

Appendix A provides the complete Agency comments, including follow-up 

responses, and the OIG response. 

20 
 

 

 

 

 

 

 

 

 

 

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Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Rec. 

No. 

Page 

No. Subject Status1 Action Official 

Planned 

Completion 

Date 

Claimed 

Amount 

Agreed To 

Amount 

2-1 

2-2 

3-1 

3-2 

9 

9 

15 

15 

Develop and implement a management control for 

monitoring completion of federal facility Review 

recommendations. 

Implement policies and procedures to address 

Section 3.8 of EPA’s 2001 Review Guidance, 

including (1) a summary for each Review 

completed during the year, (2) an update of the 

status of OUs from sites designated as “not 

protective” or “protectiveness deferred” in Reviews 

from prior years, and (3) the status of follow-up 

actions identified in Reviews from prior years. To 

the extent that this can be accomplished through 

the use of CERCLIS, specific reports should be 

implemented and monitored. 

Establish a policy to set the due date for Reviews 

every 5 years, consistent with law. Current 

guidance sets the due date as 5 years from EPA’s 

concurrence date for the prior review. 

Develop and consistently implement a transparent 

and public mechanism to identify, monitor, and 

resolve EPA nonconcurrence with federal facility 

Reviews. This should include policies and 

procedures for conducting concurrence reviews, 

addressing the lead time needed for EPA regional 

review prior to the due date, and defining a 

standard format for concurrence letters. 

O 

O 

O 

O 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

3-3 

3-4 

4-1 

15 

16 

19 

Develop a management control to monitor overdue 

Reviews. 

Develop enforcement policy that describes EPA 

enforcement tools, processes, and authorities to 

achieve completion of Review recommendations, 

as well as the timely submittal of complete 

Reviews. As appropriate, the guidance should 

include the desired wording in the FFA and SMP to 

support this enforcement. 

Develop a management control to ensure 

consistency between the Review and CERCLIS. 

At a minimum, this control should ensure that all 

Review recommendations that affect current or 

future protectiveness are entered into CERCLIS for 

monitoring, consistent with EPA’s 2001 guidance. 

O 

O 

O 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

Assistant Administrator for 

Enforcement and 

Compliance Assurance 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

21 
 

 

Rec. 

No. 

4-2 

Page 

No.

19 

RECOMMENDATIONS 

 Subject Status1 

Develop guidance and/or CERCLIS controls to 

address data quality issues, including the 

modification of data after entry, logical 

inconsistencies between CERCLIS data elements, 

and the close-out of recommendations from prior 

reviews. 

O 

Action Official 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

Planned 

Completion 

Date 

 10-P-0133 

POTENTIAL MONETARY 

BENEFITS (in $000s) 

Claimed 

Amount 

Agreed To 

Amount 

1 O = recommendation is open with agreed-to corrective actions pending 

C = recommendation is closed with all agreed-to actions completed 

U = recommendation is undecided with resolution efforts in progress 

22 
 

 

 

 

 

 

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Appendix A 

OSWER Response to OIG Draft Report and 

OIG Response 

OIG Note: Page numbers referenced in the Agency response refer to the Draft Report. Page 

numbers may not be the same in this final report. 

April 29, 20107 

MEMORANDUM 

SUBJECT: OSWER’s Response to the Office of the Inspector General Draft report, 

“EPA should Improve Its Oversight of Federal Agency Superfund Reviews” 

FROM: Mathy Stanislaus/s/ 

 Assistant Administrator 

TO: Carolyn Copper 

 Director for Program Evaluation 

 Hazardous Waste Issues 

Thank you for the opportunity to review and respond to the Office of the Inspector 

General’s (OIG) Draft Evaluation Report entitled “EPA Should Improve Its Oversight of Federal 

Agency Superfund Reviews.” We also appreciate the meetings with your staff to discuss your 

findings prior to issuance of the draft report. Our response incorporates the Office of 

Enforcement and Compliance Assurance (OECA) and Regional comments. 

An important part of the context for this work is the Executive Order and applicable 

appropriations. Under the Executive Order, most federal departments have served as lead 

agency for Superfund remediation at their own facilities, and appropriations are structured 

accordingly. Thus, EPA's role is oversight of work led by the responsible federal department. 

We agree that EPA needs to implement improved management controls to monitor the 

completion of federal facility five-year review (Review) recommendations. We believe that the 

majority of the OIG recommendations can be implemented in CERCLIS and through a joint 

OSWER/OECA policy memorandum to the Regions. The Agency does not agree with the 

implication raised at several points in the report that the lack of full management controls may 

result in increased risk to human health and the environment. We suggest that it would be more 

appropriate to say that "Improvements are needed to ensure that recommendations are 

completed in a timely fashion so that remedy performance and protectiveness are documented." 

7

 Additional information provided by OECA on May 18, 2010, and by OSWER on May 19, 2010. 

23 
 10-P-0133 

As a follow-up to the OIG evaluation, OSWER and OECA will issue a joint 

memorandum to the Regions that will address the recommendations in the draft report. This 

memorandum will explain changes in how Review recommendations are tracked, monitored, and 

implemented. The memorandum will provide clarification to the Regions on issues that affect 

present and future protectiveness of the remedy. We will also explain the enforcements options 

and tools available to the Regions to help ensure that five-year recommendations are being 

implemented. 

We also understand that the universe of sites for your review was limited to NPL federal 

facility sites. Therefore, we also understand that the recommendations submitted in your draft 

report only pertain to federal facility sites. I will work to ensure, however, that other OSWER 

offices are aware of the recommendations and, if needed, will implement processes to improve 

on monitoring, tracking, and completing recommendations listed in all Reviews. 

Our attached response includes comments on the findings, agreement/disagreements with 

the recommendations, planned corrective action, and an action plan for implementing the 

recommendations. Our second attachment includes technical comments that should be 

considered. 

If you have any questions regarding this response, please contact John Reeder at (703) 

603-9089. 

Attachments 

24 
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Attachment 1 

EPA Response to OIG Recommendations 

Recommendation 2-1 

Develop and implement a management control for monitoring completion of federal facility 

Review recommendations. 

EPA Response 

We agree with this recommendation. FFRRO will begin to address the Review 

recommendations during our mid-year and end-of-the-year planning meetings with the Regions. 

Twice a year, we will send e-mails to the Regional Federal Facility Managers with a list of 

recommendations that have not been completed or are overdue. Our workplanning meetings 

occur in March and August. We will continue to monitor the implementation of the 

recommendation. 

OIG Response: The OIG agrees with the Agency’s proposed actions in response to 

Recommendation 2-1. The recommendation is open with agreed-to actions pending. In its final 

response to this report, EPA should provide estimated or actual completion dates for this 

recommendation. 

Recommendation 2-2 

Implement policies and procedures to address Section 3.8 of EPA’s 2001 Review Guidance, 

including (1) summary for each Review completed during the year, (2) an update on the status of 

OUs from sites designated as “not protective” or “protectiveness deferred” in Reviews from 

prior years, and (3) the status of follow-up actions identified in Reviews from prior years. To the 

extent this can be accomplished through the use of CERCLIS, specific reports should be 

implemented and monitored. 

EPA Response 

We agree with this recommendation. OSWER believes that there are existing reports 

within CERCLIS that can implement this recommendation. FFRRO will use the mid-year and 

end-of- the-year planning meetings as an opportunity for the Regions to provide updates on the 

Reviews. In the OSWER and OECA policy memorandum, FFRRO will include expectations for 

reporting requirements. 

OIG Response: The OIG agrees with the Agency’s proposed actions in response to 

Recommendation 2-2. The recommendation is open with agreed-to actions pending. In its final 

response to this report, EPA should provide estimated or actual completion dates for this 

recommendation. 

25 
 

 

 10-P-0133 

Recommendation 3-1 

Establish a policy to set the due date for Reviews every five years, consistent with the law. 

Current guidance sets the due date as 5 years from EPA’s concurrence date for the prior 

Review. 

EPA Response 

We do not agree with this recommendation as drafted. We believe that our current 

policy, if properly implemented, will achieve the intent of the OIG recommendation and is 

consistent with the law. We believe that dates are missed because of the late reports submitted 

by the federal agency or the continuous negotiations with federal agencies on the protectiveness 

determination for a site. Our joint OSWER/OECA memorandum to the Regions will emphasize 

that the review time should be based on what is indicated in the Federal Facility Agreement 

(FFA) for documents and that if agreement can not be reached, then the Regions should make an 

independent protectiveness determination statement. 

EPA Revised Response (5/19/2010) 

We agree with the intent of the recommendation. Starting in FY 2011, all Federal Facility fiveyear reviews will be due on the date five years from the remedial action start date. We will work 

with the Regions to ensure that both the Federal Agencies and the Regions know that the 

completion date for a five-year review is five years from the remedial action start date. The 

OSWER/OECA policy memorandum will reiterate to the Regions that they should communicate 

to the other federal agencies that review time is needed and should be added to the schedule for 

the completion of the report. FFRRO will continue to emphasize that five-year reviews must be 

completed on time and due dates will not be adjusted if reports are late. The issue of due dates 

will be addressed in the policy memorandum. 

OIG Response: In follow-up communication, the Agency agreed with the recommendation, and 

stated that it will require that all federal facility 5-year reviews be due on the date 5 years from 

the remedial action date. The Agency stated it will issue an OSWER/OECA policy 

memorandum to the regions to reiterate this policy. The OIG accepts this corrective action plan. 

The recommendation is open with agreed-to actions pending. In its final response to this report, 

EPA should provide estimated or actual completion dates for this recommendation. 

Recommendation 3-2 

Develop and consistently implement a transparent and public mechanism to identify, monitor, 

and resolve EPA nonconcurrence with federal facility Reviews. This should include policies and 

procedures for conducting concurrence reviews, addressing the lead time needed for EPA 

regional review prior to the due date, and define a standard format for concurrence letters. 

26 
 

 

 10-P-0133 

EPA Response 

We agree with this recommendation. As stated before, OSWER and OECA will develop 

a joint memorandum that will address procedures for conducting the federal facility Reviews and 

how to resolve nonconcurrence with the Reviews. As an attachment to the policy memorandum, 

OSWER and OECA will provide examples of concurrence and nonconcurrence letters. During 

our quarterly meetings with the other Federal Agencies, OSWER will add a standing agenda 

topic of Reviews and tracking and implementing the recommendations stated in the Reviews. 

Once the OSWER and OECA joint policy memorandum is finalized, we will post it on our web 

site. Also, the EPA concurrence and nonconcurrence letters and the final five-year review report 

are posted on the Regional web site and are part of the administrative record for the site. 

OIG Response: The OIG agrees with the Agency’s proposed actions in response to 

Recommendation 3-2. The recommendation is open with agreed-to actions pending. In its final 

response to this report, EPA should provide estimated or actual completion dates for this 

recommendation. 

Recommendation 3-3 

Develop a management control to monitor overdue Reviews. 

EPA Response 

We agree with this recommendation. Currently, we send letter to all of the Federal 

Agencies identifying Reviews which are due or overdue. In addition, we report to Congress 

every year those Reviews that have been completed or are overdue. During our mid-year and 

end-of-the-year planning meetings and our quarterly meetings with the other federal agencies, 

we will continue to address the due dates for Reviews. 

OIG Response: The OIG agrees with the Agency’s proposed actions in response to 

Recommendation 3-3. The recommendation is open with agreed-to actions pending. In its final 

response to this report, EPA should provide estimated or actual completion dates for this 

recommendation. 

Recommendation 3-4 

Develop enforcement policy that describes EPA enforcement tools, processes, and authorities to 

achieve completion of Review recommendations, as well as the timely submittal of complete 

Reviews. As appropriate, the guidance should include the desired wording in the FFA and the 

SMP to support this enforcement. 

EPA Response 

We agree with the recommendation and we will ensure that the EPA Regions are more 

aware of the possible enforcement options for Reviews. In fact, OECA has already provided 

27 
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new guidance on the use of stipulated penalties and will issue additional new enforcement policy 

which describes the Agency’s enforcement tools, processes and authorities for these Reviews. 

OIG's report should make clearer this critical point: that EPA’s ability to have the fiveyear review report as a primary document (and clearly enforceable) is dependent on a federal 

agency’s agreement that such document should be primary. The Defense Department, over at 

least the last 10 years, has not agreed to EPA requests that the Review report be a primary 

document in the FFA. 

Further, the Site Management Plan (SMP) has been included in FFAs only since 1999 so 

a significant number of earlier FFAs – approximately 100 FFAs, more than half the total – do not 

include the SMP and would not be affected by the above recommendation. Given that the vast 

majority of EPA’s FFAs are with the Defense Department, EPA does not expect the Defense 

Department to change its well-established position regarding the content of FFAs. Thus, while 

we support the OIG’s recommendations in concept, it is not within EPA’s control to effectuate 

the change OIG seeks in its recommendation to OECA regarding the wording in the FFA and 

SMP. 

EPA Revised Response (5/18/2010): 

We agree with the recommendation and we will ensure that the EPA Regions are more aware of 

the possible enforcement options for Reviews. In fact, OECA has already provided the 

Regions with a new enforcement tool consisting of a concise summary of EPA procedures for 

assessing stipulated penalties which includes practical examples of how this authority may be 

used. OECA will issue new enforcement policy which describes the Agency’s enforcement tools, 

processes and authorities for these Reviews. EPA agrees to develop a guide informing 

EPA regions of the various enforcement options when a Federal agency is late submitting the 

5-year review or fails to develop an adequate Review. EPA will ensure regions are aware of 

FFA model language and how it can be used to support enforcement. When actions are taken to 

enforce 5-year review requirements, OECA will inform the regions of those actions. 

OIG's report should make clearer this critical point: that EPA’s ability to have the five-year 

review report as a primary document (and clearly enforceable) is dependent on a federal 

agency’s agreement that such document should be primary. The Defense Department, over at 

least the last 10 years, has not agreed to EPA requests that the Review report be a primary 

document in the FFA. 

Further, the Site Management Plan (SMP) has been included in FFAs only since 1999 so 

a significant number of earlier FFAs – approximately 100 FFAs, more than half the total – do not 

include the SMP and would not be affected by the above recommendation. Given that the vast 

majority of EPA’s FFAs are with the Defense Department, EPA does not expect the Defense 

Department to change its well-established position regarding the content of FFAs. Thus, while 

we support the OIG’s recommendations in concept, it is not within EPA’s control to effectuate 

the change OIG seeks in its recommendation to OECA regarding the wording in the FFA and 

SMP. 

28 
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OIG Response: In a follow-up communication, OECA provided specific information stating 

that it will issue a new enforcement policy that describes the Agency’s enforcement tools, 

processes, and authorities for these Reviews. The OIG agrees with the Agency’s revised 

proposed actions in response to Recommendation 3-4. The recommendation is open with 

agreed-to actions pending. In its final response to this report, EPA should provide estimated or 

actual completion date for this recommendation. 

A sentence has been added to the final report to indicate that inclusion as a primary document is 

dependent upon the consent of the federal agency. 

Recommendation 4-1 

Develop a management control to ensure consistency between the Review and CERCLIS. At a 

minimum, this control should ensure that all Review recommendations that affect current or 

future protectiveness are entered into CERCLIS for monitoring, consistent with EPA’s 2001 

guidance. 

EPA Response 

We agree with this recommendation. We will reiterate to our Regional offices that only 

recommendations that affect present or future protectiveness should be tracked and monitored in 

CERCLIS. Question 28 in our recent FAQ on Reviews provides guidance to the Regions on the 

types of issues and recommendations that should be monitored and tracked. 

EPA Revised Response (5/19/2010): We agree with this recommendation. FFRRO will 

reiterate to the Regions in the joint OSWER/OECA policy memorandum that only the 

recommendations that affect current and future protectiveness should be tracked in CERCLIS. 

FFRRO will also remind the Regions that recommendations in the five-year review should be 

tracked in CERCLIS and that Regional managers should periodically check to ensure that the 

information is inputted in CERCLIS correctly. FFRRO will ask Regions to report on the 

implementation of this recommendation during the mid-year and end-of -the year work planning 

meeting. 

OIG Response: In a follow-up communication, OSWER provided information stating that it 

would address the recommendation in the OSWER/OECA memorandum and would ask regions 

to report on implementation of the recommendation during midyear and end-of-year work 

planning meetings. The OIG agrees with the Agency’s revised proposed actions in response to 

Recommendation 4-1. The recommendation is open with agreed-to actions pending. In its final 

response to this report, EPA should provide estimated or actual completion date for this 

recommendation. 

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Recommendation 4-2 

Develop guidance and/or CERCLIS controls to address data quality issues, including the 

modifications of data after entry, logical inconsistencies between CERCLIS data elements, and 

the close-out of recommendations from prior Reviews. 

EPA Response 

We agree with this recommendation. There are audit reports available which flag data 

errors. FFRRO will continue monitoring and developing reports, as necessary, to ensure that 

data quality issues are being addressed. Also, our recent FAQ on Reviews provides guidance to 

the Regions on how to close-out recommendations which were not implemented from prior 

Reviews. The FAQ states that the Region must change the status of the recommendation to 

“Considered and Not Implemented” and enter text of why the recommendation was not 

implemented. We will continue to monitor those fields to ensure that the Regions are closing-out 

recommendations. 

OIG Response: The OIG agrees with the Agency’s proposed actions in response to 

recommendation 4-2. The recommendation is open with agreed-to actions pending. In its final 

response to this report, EPA should provide estimated or actual completion date for this 

recommendation. 

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Attachment 2 

Technical Comments by OECA 

Specific Comments 

1.	 Under “Late Reviews Occur Because of Delays in EPA Concurrence,” on page 11, 

second full paragraph, OIG’s draft report discusses the SMP as a tool that could be used 

to avoid delays in EPA concurrence. The SMP is a document typically used only in 

FFAs signed since 1999. For the FFAs signed since EPA and DoD resolved the FFA 

dispute (February, 2009), the terms of the FFA state that the SMP’s deadline for 

submission of the Periodic Assessment Report is merely a target date, unenforceable 

under the terms of the FFA. While the target date could serve as a guideline, EPA could 

not enforce the SMP’s date. However, EPA could enforce the statutory deadline if the 

Federal agency failed to submit the report within 5 years of initiation of the remedial 

action as that would be a term or condition of the FFA. 

OIG Response: Language was added to the final report to reflect that EPA could enforce the 

statutory deadline if the federal agency failed to submit the report within 5 years of initiation of 

the remedial action. 

2.	 Under “Reviews Should be but are Not Consistently Enforceable under Existing Federal 

Agreements,” on page 13, first full paragraph, the OIG’s draft report could more clearly 

state that EPA lacks the authority to compel the Defense Department to include language 

in a consensual agreement. Whether a Review report is a primary document is dependent 

upon the consent of the Federal agency. The reader of the OIG report could likely get the 

impression that EPA has, within its control, the power to add the Review report as a 

primary document. EPA has no such control. As the OIG is aware, EPA recently 

resolved a several year-long FFA dispute with the Defense Department where the 

department refused to enter into FFAs altogether despite the requirement to enter one 

with EPA in CERCLA. The Defense Department refused to enter into FFAs where the 

requirement is clearly enunciated in statute. There is no analogous requirement that a 

Federal agency submit the Review report to EPA for review, let alone concurrence. 

OIG Response: Language was added to the final report stating EPA’s lack of authority. 

3.	 On page 14, first full paragraph above “Conclusions,” the OIG reviewed recent FFAs 

(signed since 2001) to reach a conclusion that nearly all FFAs should be enforceable. It 

seems that the OIG meant to say that the periodic assessment is enforceable, rather than 

“nearly all FFAs should be enforceable.” EPA views that all FFAs are enforceable; 

however, not all FFAs have the “Periodic Assessment” provision, and, in fact, most do 

not have the language reviewed by the OIG. This means that EPA could not generalize 

over the hundred other FFAs that the Review provisions are enforceable under the FFA to 

the same degree as the recent Periodic Assessment provision. 

OIG Response: Language was modified in the final report to be consistent with EPA’s 

statement. 

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Appendix B 

Distribution 

Office of the Administrator 

Assistant Administrator, Office of Solid Waste and Emergency Response 

Assistant Administrator, Office of Enforcement and Compliance Assurance 

Regional Administrators, Regions 1-10 

Director, Office of Regional Operations 

Agency Follow-up Official (the CFO) 

Agency Follow-up Coordinator 

General Counsel 

Principal Deputy Assistant Administrator, Office of Solid Waste and Emergency Response 

Principal Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for Public Affairs 

Director, Office of Federal Facilities Restoration and Reuse, Office of Solid Waste and 

Emergency Response 

Deputy Director, Office of Federal Facilities Restoration and Reuse, Office of Solid Waste and 

Emergency Response 

Director, Office of Federal Facilities Enforcement, Office of Enforcement and Compliance 

Assurance 

Deputy Director, Office of Federal Facilities Enforcement, Office of Enforcement and 

Compliance Assurance 

Audit Follow-up Coordinator, Office of Solid Waste and Emergency Response 

Audit Follow-up Coordinator, Office of Enforcement and Compliance Assurance 

Audit Follow-up Coordinators, Regions 1-10 

Acting Inspector General 

32