Hazardous Waste Cleanup: Observations on States' Role, Liabilities at DOD and Hardrock Mining Sites, and Litigation Issues
Published: 2013-05-22T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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).

section_title: Letter
paragraphs: 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. 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  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.
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.
subsections: section_title: Background
paragraphs: 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.
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.
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. 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. 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.
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.
section_title: States Play a Critical Role in Characterizing and Cleaning Up Contaminated Sites
paragraphs: 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. 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  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.
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. Forty- seven states address such sites under their own versions of the  Superfund program.
section_title: DOD Is Responsible for Many Contaminated Sites, Including Over 80 Percent of Federal Facilities on the NPL
paragraphs: 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). Legal responsibility for cleanup  of federal facilities stems from a variety of sources, including Section 120  of CERCLA and a key executive order. 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.
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  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. 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.
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, we reported that although CERCLA requires federal agencies to  enter into an interagency agreement with EPA to guide cleanup within a  certain period, 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  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.  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  of Health and Human Services. 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. 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, 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  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.
section_title: The Federal Government Faces Liabilities from Abandoned Hardrock Mine Sites and Ensuring Adequate Financial Assurance for Liabilities from Current Mining Operations
paragraphs: Our previous work has found that hardrock mine sites present liabilities to  the federal government when they are abandoned or have inadequate  financial assurance. 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. 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  sites, spending at least $2.6 billion to reclaim abandoned hardrock mines  on federal, state, private, and American Indian lands. 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. 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. 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. At that time, we found that mine operators had  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.
section_title: CERCLA and Other Environmental Statutes Involve Litigation among Numerous Parties
paragraphs: 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. Of the approximately 2,500 cases we reviewed, about 5  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).
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).
According to the stakeholders we interviewed for our August 2011  report, a number of factors—including EPA’s failure to meet statutory  deadlines—affect plaintiffs’ decisions to bring litigation against EPA. 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  in high costs for the government, as well as the PRPs. 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. 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.
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.
section_title: GAO Contact and Staff Acknowledgments
paragraphs: 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.
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